United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Bloomington, IN, Employer
__________________________________________

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

Docket No. 11-1185
Issued: February 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 19, 2011 appellant’s counsel timely appealed a February 4, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied
reconsideration. The last merit decision is dated July 19, 2010, more than 180 days from the date
of 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 has jurisdiction only of the February 4, 2011
nonmerit decision.
ISSUE
The issue is whether OWCP properly declined to reopen appellant’s case for merit review
under 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case was previously before the Board.2 Appellant, a 46-year-old former rural
carrier, has an accepted claim for bilateral shoulder, elbow and wrist tenosynovitis, and left
shoulder instability, which arose on or about April 21, 1998. On January 17, 2006 she returned
to work as a modified sales service/distribution associate, with no loss in pay. By decision dated
March 31, 2006, OWCP found that appellant’s earnings as a modified sales service/distribution
associate fairly and reasonably represented her wage-earning capacity. It determined that she
had zero loss of wage-earning capacity (LWEC).
Effective June 9, 2007, the employing establishment abolished appellant’s modified sales
service/distribution associate position. Appellant later filed a claim for a recurrence of disability
based on the June 9, 2007 withdrawal of her limited-duty assignment. OWCP adjudicated the
recurrence claim as a request for modification of the March 31, 2006 LWEC determination. In a
December 1, 2008 decision, it denied modification.3 By decision dated July 15, 2009, the
Branch of Hearings & Review affirmed the December 1, 2008 decision denying modification. In
a July 19, 2010 decision, the Board affirmed the hearing representative’s July 15, 2009 decision.4
On January 7, 2011 appellant’s counsel requested reconsideration of the prior
disallowance of the claim. He noted that his request was timely; having been filed within one
year of the last merit decision dated July 19, 2010. Counsel enclosed with his request a copy of
the Board’s decision in A.J., Docket No. 10-619 (issued June 29, 2010).5 He contended that the
cited decision “overturns the Board’s previous decision.” Counsel also noted that the
reconsideration request was submitted based on all the necessary medical and factual evidence
having been submitted. He did not provide any additional medical or factual evidence with the
January 7, 2011 request. Counsel argued that the prior decision was “contrary to fact and law”
and should be vacated.
OWCP treated counsel’s January 7, 2011 submission as a request for reconsideration
under 20 C.F.R. § 10.606, rather than a request for modification of the March 31, 2006 LWEC
determination. By decision dated February 4, 2011, it denied the January 7, 2011 request for
reconsideration and did not review the merits of the claim. OWCP explained that counsel’s
January 7, 2011 letter “neither raised substantive legal questions nor included new and relevant
evidence,” and thus, was insufficient to warrant review of the prior decision.
2

Docket No. 09-2246 (issued July 19, 2010).

3

Once the wage-earning capacity of an injured employee is determined, a modification of such determination is
not warranted unless there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated, or the original determination was erroneous. Tamra
McCauley, 51 ECAB 375, 377 (2000). The burden of proof is on the party seeking modification of the wageearning capacity determination. Id.
4

The Board’s July 19, 2010 decision is incorporated herein by reference.

5

In A.J. the Board considered whether a limited-duty assignment was makeshift, and therefore, insufficient to
support an LWEC determination. Based on the facts presented, the Board found that the limited-duty position was
in fact makeshift, and thus, the original LWEC determination was erroneous. Consequently, the Board reversed
OWCP’s decision denying modification of the LWEC determination.

2

LEGAL PRECEDENT
OWCP has the discretion to reopen a case for review on the merits.6 An application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.7
When an application for reconsideration does not meet at least one of the above-noted
requirements, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.8
ANALYSIS
OWCP lacks the authority to review a decision of the Board. Rather than reviewing the
Board’s July 19, 2010 decision, OWCP’s authority extends to its own prior decisions. The last
decision issued by OWCP was the hearing representative’s July 15, 2009 decision denying
modification of the March 31, 2006 LWEC determination. Although the Board affirmed the
July 15, 2009 decision, OWCP had the authority to revisit the issue of whether appellant
established a basis for modifying the March 31, 2006 LWEC determination. However, OWCP
never reached the merits of that particular issue.
Counsel’s January 7, 2011 request for reconsideration did not mention the March 31,
2006 LWEC determination or otherwise state a basis for reconsideration. While he enclosed a
copy of a recent Board decision, counsel’s January 7, 2011 request did not address the issue in
the case or explain how the enclosed decision was arguably relevant. Counsel did not articulate
a specific legal basis for the request, but summarily concluded that the prior decision was
contrary to law and fact and should be vacated. As such, the January 7, 2011 request for
reconsideration neither alleged nor demonstrated that OWCP erroneously applied or interpreted a
specific point of law. Additionally, counsel did not advance a relevant legal argument not
previously considered by OWCP. Merely enclosing a copy of a Board decision with an
otherwise nonspecific request for reconsideration does not entitle appellant to a review of the
merits of her claim based on the first and second above-noted requirements under section
10.606(b)(2).9 As the regulations note, an application for reconsideration must set forth
arguments and evidence that satisfy one of three requirements for obtaining merit review.
Appellant failed to submit any relevant and pertinent new evidence with her January 7,
2011 request for reconsideration. Counsel noted that reconsideration was based on all the
necessary medical and factual evidence having previously been submitted. He did not submit
any new evidence that might arguably impact the prior decision regarding modification of the
March 31, 2006 LWEC determination. Consequently, appellant is not entitled to a review of the
6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b)(2) (2011).

8

Id. at § 10.608(b).

9

Id. at § 10.606(b)(2)(i) and (ii).

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merits based on the third requirement under section 10.606(b)(2).10 The January 7, 2011 request
for reconsideration failed to meet the threshold requirement for further review of the March 31,
2006 LWEC determination.11
CONCLUSION
The Board finds that OWCP properly denied appellant’s January 7, 2011 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the February 4, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 17, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

Id. at § 10.606(b)(2)(iii).

11

See generally L.C., 58 ECAB 535, 538 (2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Oakland, CA, Employer
__________________________________________

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Appearances:
Sylvia R. Johnson, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1388
Issued: January 25, 2013

Case Submitted on the Record

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

JURISDICTION
On May 30, 2012 appellant, through her representative, filed a timely appeal from the
January 4, 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 the case.
ISSUE
The issue is whether appellant is entitled to compensation for intermittent wage loss for
January 3, February 28 and March 14, 2011 for medical appointments and February 14, 2011 for
total disability.
On appeal, appellant’s counsel contends that the evidence is sufficient to establish that
appellant was entitled to wage-loss compensation for certain hours on the aforementioned dates.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has been before this Board on a prior occasion. The facts as set forth in the
Board’s prior decision are hereby incorporated by reference.2 OWCP accepted appellant’s
claims for the following conditions: right arm strain, right knee contusion, right meniscus tear,
internal derangement of the knee, adjustment disorder with mixed anxiety and depressed mood,
pain disorder associated with psychological factors, rotator cuff syndrome and allied disorders of
the right shoulder. Appellant had various periods of not working or working part time. She
began working part time intermittently in January 2009. Appellant continued to submit claims
for intermittent periods. Her claims included requests for compensation for four hours for each
of the following days for doctor’s appointments: January 3, February 28 and March 14, 2011.
Appellant also requested compensation for eight hours on February 14, 2011 claiming that she
was totally disabled on that date.
By decision dated June 20, 2011, OWCP denied appellant’s request for compensation for
these dates. On June 24, 2011 appellant requested an oral hearing before an OWCP hearing
representative.
In support of her claim for intermittent periods of compensation, appellant submitted,
inter alia, a copy of a treatment note from Dr. Gail Barry Bourque, a psychologist, dated
January 3, 2010. Dr. Bourque indicated that she was treating appellant for depression and a
general anxiety disorder. Appellant also submitted a medical report dated February 9, 2011
wherein, her treating physician, Dr. Richard A. Nolan, a Board-certified orthopedic surgeon,
indicated that she was temporarily totally disabled until February 14, 2011. Dr. Nolan noted that
appellant was experiencing a constant aching pain in the anterior aspect of the knee, that
nocturnal rest was disturbed an average of four times per night as she attempted to change
position, that she had an increase in pain in her right shoulder. He indicated that appellant could
resume her normal job activities on February 14, 2011. A prescription note on Dr. Nolan’s
stationery indicates that appellant was temporarily totally disabled until February 14, 2011. The
signature on this note is illegible.
At the hearing held on October 26, 2011, appellant’s representative argued that appellant
received frequent treatment and that the regulations did not require a medical report every time
appellant receives treatment. Appellant testified that she missed the whole day on February 14,
2011 because she was temporarily totally disabled due to a knee and shoulder injury which
caused her a lot of pain. She provided dates of her medical appointments.
The record contains a document labeled “ACS Web Bill Processing Portal” which
indicates that OWCP paid bills for psychologist’s appointments on January 3, February 28 and
March 14, 2011 for treatment for adjustment reaction.
By decision dated January 4, 2012, OWCP’s hearing representative affirmed the denial of
appellant’s claim for compensation for medical appointments on January 3, February 28 and
2

Docket No. 08-1746 (issued September 24, 2009). On January 11, 2000 appellant, then a 24-year contract
representative, filed a traumatic injury claim alleging that on that date she slipped and fell on wet carpet and scraped
and bruised her right knee. She returned to work for periods of intermittent employment.

2

March 14, 2011. The hearing representative further denied appellant’s claim for compensation
for eight hours on February 14, 2011. However, the hearing representative remanded the case
for OWCP to determine if appellant was entitled to four hours of compensation on December 20,
2010, February 24 and March 24, 2011 for medical appointments.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.3 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.4 Whether a particular injury causes an
employee to become disabled for work, and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.5
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.6 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.7 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.8 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.
To meet this burden, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factor(s).9 The opinion of the physician must be based on a
complete factual and medical background, 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.10
3

See Amelia S. Jefferson, 57 ECAB 183 (2005).

4

Id.

5

See Edward H. Horton, 41 ECAB 301 (1989).

6

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
7

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

8

Merle J. Marceau, 53 ECAB 197 (2001).

9

A.D., 58 ECAB 149 (2006).

10

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 291 (2001).

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The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.11
An injured employee may also be entitled to compensation for lost wages incurred while
obtaining authorized medical services.12 This includes the actual time spent obtaining the
medical services and a reasonable time spent traveling to and from the medical provider’s
location.13 As a matter of practice, OWCP generally limits the amount of compensation to four
hours with respect to routine medical appointments.14 However, longer periods of time may be
allowed when required by the nature of the medical procedure and/or the need to travel a
substantial distance to obtain the medical care.15
In situations where compensation is claimed for periods when leave was used, OWCP has
the authority and the responsibility to determine whether the employee was disabled during the
period for which compensation is claimed.16 It determines whether the medical evidence
establishes that an employee is disabled by an employment-related condition during the period
claimed for leave buyback, after which the employing establishment will determine whether it
will allow the employee to buy back the leave used.17
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for wage-loss
compensation on January 3, February 28 and March 14, 2011 for medical appointments and
February 14, 2011 for total disability.
Appellant alleged that she was totally disabled on February 14, 2011. In a medical report
dated February 9, 2011, Dr. Nolan stated that appellant was temporarily totally disabled but
could resume her normal job activities on February 14, 2011. Accordingly, appellant was
released to work as of February 14, 2011. Appellant’s representative contends on appeal that
appellant only had the prescription note which indicated that appellant was temporarily totally
disabled until February 14, 2011, and that appellant interpreted this note to mean that she was
disabled on that date. However, there is no medical evidence of record that supports that
11

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

12

See 5 U.S.C. § 8103(a) (2006); Gayle L. Jackson, 57 ECAB 546-48 (2006).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16a (December
1995).
14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).
15

Id.

16

See Glen M. Lusco, 55 ECAB 148 (2003); see also 20 C.F.R. § 10.425.

17

Id.

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appellant was disabled on February 14, 2011; this is the date she was to return to work pursuant
to Dr. Nolan’s instructions. Accordingly, OWCP properly denied appellant’s claim for
compensation on February 14, 2011.
The remaining dates: January 3, February 28 and March 14, 2011 are claims for
compensation for four hours on each date for a medical appointment. The Board finds that
appellant has not proven that she saw a physician for treatment of her accepted injury on these
dates. A treatment note dated January 3, 2011 from Dr. Bourque listed only a general diagnosis
of anxiety disorder. Appellant’s representative contends that as OWCP paid for appellant’s
psychologist bills on these dates, that this is sufficient to establish that appellant was entitled to
wage-loss compensation for these dates. However, the Board will not require OWCP to pay
compensation for disability in the absence of medical evidence directly addressing the specific
dates of disability for which compensation is claimed.18 There is no medical evidence in the file
supporting appellant’s claim for compensation for medical appointments on these dates.
Accordingly, appellant has not met her burden of proof to establish compensation on these dates.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant is not entitled to compensation for intermittent wage loss
for January 3, February 28 and March 14, 2011 for medical appointments and February 14, 2011
for total disability.

18

Supra note 11. See also M.C., Docket No. 12-64 (issued May 10, 2012); Gary L. Whitmore, 43 ECAB 441
(1993) (where the Board found that payment of compensation by OWCP does not, in and of itself, constitute
acceptance of a particular condition or disability in absence of evidence from OWCP indicating that the condition or
disability has been accepted as work related.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 4, 2012 is affirmed.
Issued: January 25, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Seattle, WA,
Employer
__________________________________________

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

Docket No. 18-1155
Issued: February 21, 2019

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 May 14, 2018 appellant filed a timely appeal from an April 25, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective April 25, 2018, due to his failure to attend a scheduled
medical examination.
1

5 U.S.C. § 8101 et seq.

2
The Board notes that appellant submitted new evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for the first time on appeal. Id.
Sandra D. Pruitt, 57 ECAB 126 (2005).

FACTUAL HISTORY
On November 29, 2015 appellant, then a 51-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that he developed right arm/shoulder and joint
pain/stiffness on the left side of his body as a result of his repetitive work duties and increased
work hours.3 He first became aware of his conditions and their relationship to his federal
employment on November 23, 2015. Appellant stopped work on November 24, 2015. OWCP
accepted the claim for unspecified sprain of the left shoulder joint and adhesive capsulitis of the
left shoulder. On March 8, 2016 appellant returned to full-time, limited-duty work.
In a February 25, 2016 medical report, Dr. Charles A. Peterson, a Board-certified
orthopedic surgeon, diagnosed left shoulder rotator cuff tendinitis/adhesive capsulitis. He
determined that appellant had reached maximum medical improvement (MMI) on the date of his
examination.
By decision dated January 24, 2017, OWCP granted four hours of wage-loss compensation
for temporary total disability on December 1, 2015, but denied compensation for the remaining
hours of temporary total disability which had been claimed for the period November 23, 2015
through September 19, 2016.4
On June 16, 2017 appellant filed a claim for a schedule award (Form CA-7). In a
development letter dated July 3, 2017, OWCP requested that he submit additional medical
evidence establishing his schedule award claim. It afforded appellant 30 days for a response.
Appellant did not submit the requested medical evidence.
By letters dated March 1 and 6, 2018, OWCP referred appellant to Dr. Jeffrey L.
Holtgrewe, a Board-certified orthopedic surgeon, for a second opinion medical examination to
determine the extent of his permanent impairment, if any, based on the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides)5 and establish the date on which he reached MMI. It advised that an appointment had
been scheduled for March 28, 2018 at 1:00 p.m. Appellant was further advised that, if he refused
or obstructed the examination, his compensation could be suspended under 5 U.S.C. § 8123(d).
On March 19, 2018 appellant informed OWCP that he was not going to attend the
March 28, 2018 appointment because something was going on with his social security benefits and
he did not have an attorney.
A March 28, 2018 e-mail reflects that OWCP was notified by Medical Consultants
Network, OWCP’s scheduling contractor, that appellant did not appear for his March 28, 2018
examination.

3

Prior to the filing of his occupational disease claim, appellant worked in a temporary assignment as a casual
employee, which ended on December 24, 2004. He was rehired on December 1, 2012. Appellant became a career
employee on May 30, 2015.
4

On July 12, 2016 the employing establishment placed appellant off work due to his conduct. Appellant was
terminated on February 8, 2017.
5

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

2

In an April 6, 2018 notice, OWCP proposed to suspend appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d) as he failed to attend the examination scheduled for March 28,
2018 with Dr. Holtgrewe. Appellant was advised that he should provide a written explanation of
his reasons, with substantive corroborating evidence, within 14 days for failing to attend the
scheduled examination.
By telephone conversation on April 16, 2018, appellant initially advised OWCP of his
refusal to attend an examination. Subsequently during the conversation, he related that he needed
to talk to someone about the examination. No further response was received from appellant.
By decision dated April 25, 2018, OWCP finalized its proposed suspension, effective that
day. It noted that it directed appellant on March 1, 2018 to report for the examination scheduled
on March 28, 2018, but he did not attend the examination or explain why he had refused to attend
or had obstructed the examination.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability as
a result of federal employment, to undergo a physical examination as it deems necessary.6 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP.7 OWCP
regulations at section 10.320 provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as it considers reasonably necessary.8 Section
8123(d) of FECA and section 10.323 of its regulations provide that, if an employee refuses to
submit to or obstructs a directed medical examination, his or her right to compensation is
suspended until the refusal or obstruction ceases.9 OWCP procedures provide that, before OWCP
may invoke these provisions, the employee is to be provided a period for 14 days within which to
present in writing his or her reasons for the refusal or obstruction.10 If good cause for the refusal
or obstruction is not established, entitlement to compensation is suspended in accordance with
section 8123(d) of FECA.11
ANALYSIS
The Board finds that OWCP properly suspended appellant’s compensation, pursuant to
5 U.S.C. § 8123(d), for failure to attend a medical examination.

6

5 U.S.C. § 8123.

7

J.T., 59 ECAB 293 (2008); S.B., 58 ECAB 267 (2007).

8

20 C.F.R. § 10.320.

9

5 U.S.C. § 8123; 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).
11

Id.

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By letter dated March 1 2018, OWCP notified appellant that he was being referred for a
second opinion evaluation on March 28, 2018 with Dr. Holtgrewe to determine the extent of his
permanent impairment and the date in which he reached MMI. Appellant was advised of the need
for the examination and the time and place for the scheduled appointment and the notices clearly
explained that appellant’s entitlement to compensation benefits would be suspended for failure to
report or if he obstructed the examination. Additionally, in a record of a telephone conversation
dated March 6, 2018, appellant inquired about the scheduled appointment for a second opinion
and was advised that OWCP arranged the appointment to obtain an impairment rating for his left
arm. As noted, he did not appear for the scheduled examination.
The determination of the need for an examination, the type of examination, the choice of
locale, and the choice of medical examiners are matters within the province and discretion of
OWCP. The only limitation on OWCP’s authority, with regard to instructing a claimant to undergo
a medical examination, is that of reasonableness.12 The Board has interpreted the plain meaning
of section 8123(d) to provide that compensation is not payable while a refusal or obstruction of an
examination continues unless appellant can establish good cause for failing to report at the
scheduled time.13
OWCP subsequently allowed appellant 14 days to provide reasons for failing to appear.14
In response, appellant advised that he would not attend an examination with Dr. Holtgrewe. He
failed to explain why he did not attend the scheduled examination and did not indicate his intent
to reschedule the appointment in his response. Thus, the Board finds that he has not provided good
cause for refusing to attend the March 28, 2018 appointment.
As appellant did not attend the March 28, 2018 scheduled examination and failed to
provide good cause for failing to appear within 14 days of OWCP’s April 6, 2018 notice of
proposed suspension, the Board finds that OWCP properly suspended entitlement to future
compensation in accordance with 5 U.S.C. § 8123(d) until the date on which he agrees to attend
the examination.15 When appellant actually reports for examination, payment retroactive to the
date on which he agreed to attend the examination may be made.16
On appeal, appellant alleges that he was intentionally infected with an illness and sustained
work-related injuries because he filed an Equal Employment Opportunity (EEO) complaint. The
Board finds that the fact that appellant claimed that he sustained employment-related injuries is
not a sufficient reason for his failure to attend the March 28, 2018 medical examination.
Appellant further contends that he was not required to attend the scheduled examination
because he was wrongfully terminated by the employing establishment. The fact that he claimed
that he may have been wrongfully terminated from employment is not a sufficient reason for his
12

D.K., Docket No. 18-0217 (issued June 27, 2018); Lynn C. Huber, 54 ECAB 281 (2002).

13

D.K., id.; M.B., Docket No. 10-1755 (issued March 24, 2011); supra note 9.

14

5 U.S.C. § 8123; D.K., supra note 12; S.B., 58 ECAB 267 (2007).

15

D.K., supra note 12; L.B., Docket No. 14-2005 (issued January 28, 2015).

16

Id.; C.S., Docket No. 11-1366 (issued December 12, 2011); E.B., 59 ECAB 298 (2008).

4

failure to attend the scheduled medical examination. Appellant has not otherwise explained why
he did not attend the scheduled examination. The Board thus finds that OWCP properly suspended
his entitlement to future compensation, in accordance with 5 U.S.C. § 8123(d), until the date on
which he agrees to attend the examination.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective April 25, 2018, due to his failure to attend a scheduled
medical examination.
ORDER
IT IS HEREBY ORDERED THAT the April 25, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 21, 2019
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
__________________________________________
B.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, North Canton, OH,
Employer
__________________________________________

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

Docket No. 21-1109
Issued: December 28, 2021

Case Submitted on the Record

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

JURISDICTION
On July 11, 2021 appellant filed a timely appeal from a June 17, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left shoulder
condition causally related to the accepted September 5, 2018 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 5, 2018 appellant, then a 54-year-old supervisory transportation security
specialist, filed a traumatic injury claim (Form CA-1) alleging that, on that date, he injured his left
upper arm when clearing lodged baggage in a tunnel while in the performance of duty. He did not
stop work.
In support of his claim, appellant submitted a report of magnetic resonance imaging (MRI)
scan of the left shoulder dated September 10, 2020, which demonstrated tendinosis and partial
tears of the supraspinatus, infraspinatus, and subscapularis tendons, a partial tear of the superior
labrum, and a mild partial tear of the posterior band of the inferior glenohumeral ligament.
On October 25, 2020 appellant filed a notice of recurrence (Form CA-2a), indicating that
on July 26, 2020 he experienced a recurrence of pain in the left upper arm. He noted that he was
originally injured on September 5, 2018 and following the initial injury, his pain had been
controlled with medication. Appellant alleged that over time his pain worsened and that what he
initially believed to have been a minor tear in the muscle of his rotator cuff had advanced to three
tears.
In a November 4, 2020 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary
evidence.
OWCP thereafter received a July 31, 2020 medical note from Amy Beth Firrell, a nurse
practitioner, who indicated that appellant reported weakness and pain in his neck and left shoulder
when lifting. Ms. Firrell noted that he related that these symptoms had been present for
approximately one month, but denied trauma or injury.
An MRI scan of the cervical spine dated September 10, 2020 demonstrated mild
degenerative changes.
In a September 11, 2020 note from Mathew Moughiman, a physical therapist, appellant
related a history of an insidious onset of left shoulder pain which had been increasing for the past
two to three months. Mr. Moughiman performed a physical examination and recommended
scapular stabilization therapy and rotator cuff strengthening for six weeks.
In an October 29, 2020 medical report, Dr. Emmanual Yanelli, a Board-certified internal
medicine specialist, noted appellant’s complaints of worsening left shoulder pain which appellant
attributed to moving luggage at the airport in 2018. He performed a physical examination of the
left shoulder and documented reduced range of motion with abduction and extension. Dr. Yanelli
related that appellant had received a steroid injection to the shoulder and had undergone an MRI
scan, which revealed three torn rotator cuff muscles. He diagnosed acute on chronic rotator cuff
tendinitis and recommended that appellant refrain from lifting baggage greater than 20 to 40
pounds and that appellant avoid overhead activities and excessive jerking or lifting motions with
the left shoulder. Dr. Yanelli opined that appellant had a chronic shoulder condition due to an
injury appellant sustained while carrying and distributing luggage in 2018.

2

In a November 22, 2020 statement, appellant explained that, in September 2018, he
experienced left shoulder pain with radiation into the left arm due to moving and searching
passenger property. He related that he sought medical care and was advised that the injury would
take some time to heal, but that he was not prescribed any diagnostic testing or given any lifting
restrictions at that time. Appellant asserted that he thereafter experienced an increase in irritation
in the left shoulder in the summer of 2020, which prompted him to seek further medical care,
including an MRI scan and a cortisone injection.
By decision dated January 8, 2021, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that his diagnosed conditions were
causally related to the accepted September 5, 2018 employment incident.
On March 30, 2021 appellant requested reconsideration.
In support of his request, appellant submitted a February 10, 2021 medical report from
Dr. Robert Urchek, an orthopedic surgeon, who detailed appellant’s history of injuring his left
shoulder at work on September 5, 2018 followed by progressively worsening pain. He noted that
the pain increased in July 2020, especially with activities of reaching, lifting, sleeping on his left
side, and reaching behind his back. Dr. Urchek performed a physical examination and noted
positive Neer’s and Hawkin’s tests and reduced range of motion. He obtained x-rays during the
visit and also reviewed the September 10, 2020 MRI scan of the left shoulder. Dr. Urchek
diagnosed an incomplete tear of the rotator cuff and biceps tendinitis of the left shoulder. He
opined that appellant’s condition started after a work-related injury “a number of years ago,” and
that appellant reported his shoulder pain had progressed over time. Dr. Urchek explained that
appellant’s job involved repetitive motion while lifting luggage, and that it was reasonable to find
that appellant’s current symptoms and MRI scan findings were related to his employment.
By decision dated June 17, 2021, OWCP denied modification of its January 8, 2021
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

2

Id.

3

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

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employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 A physician’s
opinion on whether there is causal relationship between the diagnosed condition and the implicated
employment incident must be based on a complete factual and medical background. 8 Additionally,
the physician’s opinion must be expressed in terms of a reasonable degree of medical certainty,
and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment incident. 9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left shoulder
condition causally related to the accepted September 5, 2018 employment incident.
Dr. Yanelli, in his October 29, 2020 medical report, diagnosed acute on chronic rotator cuff
tendinitis, and found that appellant had a chronic shoulder condition since the original injury in
2018. He opined that appellant’s left shoulder condition was due to carrying and distributing
luggage. However, Dr. Yanelli failed to explain, with rationale, how the accepted employment
incident either caused or contributed to appellant’s left shoulder condition. The Board has held
that a medical opinion should reflect a correct history and offer a medically -sound and rationalized
explanation by the physician of how the specific employment incident physiologically caused or

4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

Id.

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aggravated the diagnosed conditions. 10 Therefore, the Board finds that the October 29, 2020
medical report from Dr. Yanelli is insufficient to establish causal relationship.
Similarly, in his February 10, 2021 medical report, Dr. Urchek diagnosed an incomplete
tear of the rotator cuff and biceps tendinitis of the left shoulder. He opined that appellant’s
condition started after a work-related injury, that appellant’s job involved repetitive motion while
lifting luggage, and that appellant’s symptoms were consistent with his work-related activities.
However, Dr. Urchek failed to explain, with rationale, how the accepted employ ment incident
either caused or contributed to appellant’s left shoulder condition. Thus, the Board finds that the
February 10, 2021 medical report of Dr. Urchek is also insufficient to establish causal relationship.
The remaining evidence of record consists of diagnostic testing reports and notes from a
physical therapist and a nurse practitioner. The Board has held that diagnostic studies, standing
alone, lack probative value and are insufficient to establish the claim. 11 In addition, certain
healthcare providers such as physician assistants, nurse practitioners, and physical therapists are
not considered physicians as defined under FECA. 12 Their medical findings, reports and/or
opinions, unless cosigned by a qualified physician, will not suffice for purposes of establishing
entitlement to FECA benefits. 13 Consequently, this additional evidence is insufficient to meet
appellant’s burden of proof.
As the medical evidence of record is insufficient to establish causal relationship between
appellant’s left shoulder condition and the accepted September 5, 2018 employment incident, the
Board finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left shoulder
condition causally related to the accepted September 5, 2018 employment incident.

10

T.G., Docket No. 21-0175 (issued June 23, 2021); J.D., Docket No. 19-1953 (issued January 11, 2021); see K.W.,
Docket No. 19-1906 (issued April 1, 2020).
11

J.K., Docket No. 20-0591 (issued August 12, 2020); A.B., Docket No. 17-0301 (issued May 19, 2017).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); C.G., Docket No. 20-0957 (issued January 27, 2021); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists
are not competent to render a medical opinion under FECA). K.A., Docket No. 18-0999 (issued October 4, 2019).
12

13

K.A., id.; K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, id.

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ORDER
IT IS HEREBY ORDERED THAT the June 17, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brookland, NY, Employer
__________________________________________

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

Docket No. 15-0618
Issued: July 1, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 26, 2015 appellant, through counsel, filed a timely appeal from a
September 24, 2014 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.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective January 23, 2014 as he no longer had any residuals
or disability causality related to his accepted employment-related injury; and (2) whether
appellant has met his burden of proof to establish any continuing employment-related residuals
or disability after January 23, 2014.

1

5 .U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 27, 2010 appellant, then a 33-year-old city carrier, filed a traumatic injury
claim alleging that he was pulling a cart over snow and as he crossed the street his left ankle
twisted underneath him. He stopped working after the injury and returned to full-duty capacity
on May 18, 2010. OWCP accepted the claim for closed fracture of the left lateral malleolus and
paid benefits. Appellant stopped work on May 24, 2010 and returned to full-duty capacity on
September 27, 2010. He worked full-duty capacity until he filed a recurrence of disability
effective September 7, 2011, when he underwent authorized left ankle surgery. Appellant has
not returned to work. OWCP eventually retained him on the periodic compensation rolls.
Following appellant’s surgery, OWCP received medical evidence from appellant’s
physician finding that appellant was totally disabled. In a January 26, 2012 report, Dr. Ludwig
Licciardi, a Board-certified orthopedic surgeon, noted examination findings. He found the
peroneals were not as inflamed, but the posterior tibialis tendon was inflamed. Dr. Licciardi
found a positive Tinel’s sign along the tarsal canal, paresthesias on the bottom of the foot and pes
planus (flat feet) deformity. He determined that appellant was unable to perform letter carrier
work and requested authorization for electromyogram (EMG) and nerve conduction velocity
(NCV) studies of the lower extremities to rule out tarsal tunnel syndrome. In an April 17, 2012
report, he stated that appellant had experienced calf pain for the past couple of weeks, swelling in
the ankle, and paresthesias on the bottom of the foot. Dr. Licciardi stated the EMG and NCV
studies of the bilateral lower extremities April 10, 2012 confirmed left tarsal tunnel syndrome
with increased distal latency, decreased amplitude, and slightly increased H reflex on the left
side. The studies confirmed left-sided lumbar radiculopathy and tarsal tunnel syndrome in the
left foot and ankle. In a September 10, 2012 report, Dr. Licciardi advised that appellant
continued to have symptomatic pain with weight-bearing and he subsequently developed left
tarsal tunnel syndrome. He also noted that appellant used a cane and ambulated with an antalgic
gait. Dr. Licciardi found the objective examination was unchanged from the previous
examination. Due to the unbalanced gait, he found that appellant had developed symptoms such
as pain and stiffness in the lumbar spine which were consequentially related to the injury to his
left ankle. Dr. Licciardi requested authorization for inclusion of the lumbar spine as being
consequentially related to the initial injury of the left ankle and for left tarsal tunnel surgical
decompression.
In order to determine appellant’s current conditions and to ascertain whether he continued
to suffer residuals from his accepted condition, OWCP referred him for a second opinion
examination with Dr. Kenneth P. Heist, an osteopath and orthopedic surgeon. Prior to the
examination, Dr. Heist was provided with a statement of accepted facts, a set of questions, and
appellant’s case record. In an April 15, 2013 report, he noted examination findings of the left
lower extremity, including range of motion. Dr. Heist diagnosed healed fracture of the lateral
malleolus left ankle and status postoperative (09/07/11) arthroscopic surgery left ankle, removal
of osteochondral fragment, and lysis of adhesions of the deltoid ligament with synovectomy. He
stated that there were no objective findings of the accepted condition of left ankle fracture, lateral
malleolus and opined that it most likely resolved eight weeks following the injury. Dr. Heist
further opined that there was no current disability and that appellant was capable of returning to
work full time without restrictions. He stated that appellant had reached maximum medical
improvement and no additional treatment was indicated.
2

OWCP provided Dr. Heist an updated statement of accepted facts dated May 22, 2013,
which included a description of all claims appellant had filed with OWCP. Dr. Heist was
requested to provide an addendum report which discussed whether a back condition should be
accepted under this claim. He was also asked to provide additional rationale for the prior
conclusions.
On May 31, 2013 OWCP received Dr. Heist’s addendum report. Dr. Heist indicated that
his clinical examination documented restriction of motion of the left ankle which was medically
connected to the accepted work injury, but that appellant had recovered from the effects of the
surgery sufficiently to return to full-duty work. He stated no surgery was indicated as there were
no objective signs of a nerve condition involving the left ankle and no evidence of lumbar
radiculopathy. Dr. Heist estimated that appellant reached maximum medical improvement 12
weeks following the September 17, 2011 surgery and was capable of returning to work full time
without restrictions.
In an April 25, 2013 report, Dr. Licciardi noted appellant’s complaints of pain, difficulty
ambulating, and his inability to work. He also noted appellant complained of paresthesias on the
dorsum of the foot, as well as the medial and lateral malleoli. Dr. Licciardi noted appellant
ambulated with an antalgic gait. On examination, appellant had positive Tinel’s sign along the
tarsal canal and muscle spasms, paresthesias going down the foot.
Limitations to
flexion/extension were noted as well as atrophy in the foot muscles. Dr. Licciardi advised
appellant to refrain from work. He also requested authorization for tarsal tunnel decompression
of the left foot and reinstatement of physical therapy.
OWCP found that there was a conflict in the medical opinion of Dr. Heist who concluded
that there were no objective signs of a work-related disability, that appellant did not have a workrelated condition, did not require surgery, and was able to return to full-time full-duty work with
Dr. Licciardi’s findings that there was an objectively diagnosed work-related condition which
required surgery and that appellant was totally disabled for work. Accordingly, it referred
appellant to Dr. Robert Dennis, a Board-certified orthopedic surgeon, for a referee examination.
Dr. Dennis was provided with an updated statement of accepted facts dated October 16, 2013 a
list of questions, and appellant’s entire case record.
In a November 26, 2013 report, Dr. Dennis provided findings on examination and
reviewed the medical history, statement of accepted facts, and position description for city
carrier. He diagnosed left ankle sprain, severe pes planus with appellant walking on the inside of
both feet in a symmetric fashion, a congenital pathology impacting ambulation whether he is a
mail carrier or just walking in the mall, and status post arthroscopy left ankle, completely
resolved. Dr. Dennis stated that careful consideration was given to the various opinions and to
appellant’s stated complaints. He stated that the examination, was extraordinarily normal.
Dr. Dennis indicated that the ligament injury may have produced a minor avulsion of the medial
and lateral malleoli and some mild thickening of the ligament with possible old base of the fifth
metatarsal fracture and severe pes planus. He found these sufficient issues to cause appellant
some difficulty and fatigue in walking long distances. However, the orthopedic conditions that
arose from this injury had completely resolved and the thickening of any ligaments represent a
healing process that was now complete. Dr. Dennis opined that appellant no longer suffered
from any of the accepted conditions as they had resolved and he could return to work. He stated

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that the objective findings support preexisting flat feet which were unaltered by the work injury.
Dr. Dennis stated that the additional conditions of severe pes planus (severe flat feet) and
calcaneal valgus positioning caused by the flat feet were congenital and unrelated to and
undisturbed by the work injury. He concluded that there was no residual pathology or disability
from the work injury as the muscle strength and motion of both ankles were identical.
Dr. Dennis indicated that left ankle surgery September 17, 2011 was primarily diagnostic
and resolved the issue of any substantial intra-articular pathology. He stated that, a micro
fragment of the tibia was not a disability, it was not uncommon, and it did not produce a
dysfunction in this case. Dr. Dennis further indicated that the sprain or minor avulsion fracture
and the preexisting cyst in the bone were not altered or aggravated as the condition of both feet
were identical and only one had been injured. He stated a tarsal tunnel decompression of the left
foot was not indicated and carried far more risks than benefits. Dr. Dennis noted the clinical
examination did not fully support appellant’s complaints or the need for a cane. He opined that
appellant could resume his mail carrier duties and there was no residual alteration of the left
ankle related to this injury.
On December 19, 2013 OWCP issued a notice of proposed termination of compensation.
It found that Dr. Dennis’ November 26, 2013 impartial opinion established that appellant’s
accepted condition of closed fracture of the lateral malleolus of the left ankle had resolved and
that he had no work-related residuals or disability stemming from that condition.
In a January 6, 2014 report, Dr. Licciardi stated that appellant remained persistently
symptomatic with his left ankle despite conservative and arthroscopic intervention and showed
residual avulsion fracture over the medial malleolus and post-traumatic joint space narrowing of
the tibiotalar joint. He noted that appellant had persistent pain, intolerance to attempts at
prolonged periods of standing or ambulation which affected activities of daily life and quality of
life, and complaints of paresthesias and dysesthesia radiating into the medial plantar aspect of his
left foot. Examination of the left ankle demonstrated decreased range of motion in plantar
flexion and dorsi flexion with plantar flexion more effected, pain with varus stress placed on the
ankle and tenderness at the insertional site of the anterior talofibular ligament, and a mildly
positive anterior drawer test of the ankle with some tenderness over the lateral aspect of the ankle
when maneuver was performed. Appellant was not able to single leg toe raise on the affected
extremity, which was found to be neurovascularly intact. An assessment of status post
arthroscopy of the left ankle was provided. Dr. Licciardi opined that appellant remained
disabled. Authorization for tarsal tunnel decompression of the left foot was requested.
By decision dated January 23, 2014, OWCP terminated appellant’s compensation for
wage-loss and medical benefits effective that date, finding that Dr. Dennis’ impartial opinion
represented the weight of the medical evidence.
On July 1, 2014 OWCP received counsel’s June 25, 2014 request for reconsideration.
Counsel argued that Dr. Licciardi’s reports of November 11, 2013 and March 6, 2014 support
residual disability and a need for ongoing treatment, including left tarsal tunnel decompression.
Medical reports from Dr. Licciardi dated March 6, April 17, June 5, July 21, and
September 3, 2014 were received. In his reports, Dr. Licciardi noted appellant’s subjective

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complaints and advised the objective examination was unchanged from previous examination.
An assessment of status post arthroscopy of the left ankle was provided. Dr. Licciardi continued
to opine that appellant was totally disabled.
By decision dated September 24, 2014, OWCP denied modification of the January 23,
2014 termination decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his or her employment, OWCP may not terminate compensation without establishing that the
disability had ceased or that it was no longer related to the employment.2 OWCP’s burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.3 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability. To terminate
authorization for medical treatment, OWCP must establish that a claimant no longer has
residuals of an employment-related condition that requires further medical treatment.4
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.5 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.6 In situations where there exist opposing medical reports of virtually
equal weight and rationale and the case is referred to an impartial medical specialist for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.7
ANALYSIS -- ISSUE 1
OWCP accepted that on February 27, 2010 appellant sustained closed fracture of the left
lateral malleolus and paid benefits, including a left ankle arthroscopy on September 7, 2010. It
determined that a conflict existed between Dr. Licciardi, his treating physician, and Dr. Heist,
OWCP’s second opinion physician, as to whether appellant continued to be disabled due to
2

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

3

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

4

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

5

5 U.S.C. § 8123(a).

6

20 C.F.R. § 10.321.

7

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

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residuals of his accepted orthopedic condition and whether tarsal tunnel decompression surgery
was indicated. In this regard, Dr. Licciardi found that there was an objectively diagnosed workrelated condition which required surgery and that appellant was totally disabled for work.
Dr. Heist found that there were no objective signs of a work-related disability and was able to
return to full-time full-duty work. Accordingly, OWCP referred appellant to Dr. Dennis for an
impartial medical examination to resolve the conflict in medical opinion evidence, pursuant to 5
U.S.C. § 8123(a). It terminated appellant’s wage-loss compensation and medical benefits
effective January 24, 2014 finding that Dr. Dennis’ report that he had no further employmentrelated disability constituted the weight of the evidence.
The Board finds that OWCP met its burden of proof to terminate appellant’s medical and
wage-loss compensation benefits based on the November 26, 2013 report of the impartial
medical specialist, Dr. Dennis.
As the impartial medical specialist Dr. Dennis’ report is entitled to special weight. It
properly reviewed appellant’s medical history, the statement of accepted facts, and stated
comprehensive examination findings. Dr. Dennis found no objective evidence to support
ongoing employment-related residuals or disability due to the accepted condition of closed
fracture of the left lateral malleolus. He related that appellant’s physical examination was
extraordinarily normal and showed that appellant had bilaterally consistent findings.
Dr. Dennis provided a diagnostic impression of left ankle sprain, severe pes planus which
was congenital impacting ambulation, and status post arthroscopy left ankle, completely
resolved. He stated that the ligament injury may have produced a minor avulsion of the medial
and lateral malleoli and some mild thickening of the ligament with possible old base of the fifth
metatarsal fracture, however, the orthopedic conditions that arose from this injury have
completely resolved and the thickening of any ligaments represented a healing process that was
now complete.
Dr. Dennis explained that appellant had preexisting flat feet which were unaltered by the
work injury. He stated that the additional conditions of severe pes planus and calcaneal valgus
positioning caused by the flat feet were congenital and unrelated to or undisturbed by the work
injury. Dr. Dennis concluded that there was no residual pathology or disability from the work
injury as the muscle strength and motion of both ankles were identical and it was only the left
ankle that had been injured. He opined that appellant returned to his preinjury state and was
capable of carrying out the requirements of a letter carrier.
Dr. Dennis indicated that the left ankle surgery of September 17, 2011 was primarily
diagnostic and had resolved the issue of any substantial intra-articular pathology. He stated that
a micro fragment of the tibia was not a disability, was not uncommon, and did not produce a
dysfunction in this case. He further indicated that the sprain or minor avulsion fracture and the
preexisting cyst in the bone were not altered or aggravated.
Dr. Dennis further found a tarsal tunnel decompression of the left foot was not indicated
and carried far more risks than benefits, he opined that no further treatment was needed, and that
appellant’s progress was good to excellent. Dr. Dennis noted the clinical examination did not
fully support appellant’s complaints or the need for a cane. He concluded that appellant could

6

resume his regular duties as there was no residual alteration of the left ankle as related to the
accepted injury.
The Board finds that Dr. Dennis’ report represents the special weight of the medical
evidence regarding appellant’s left ankle condition. It is well rationalized and based on a
complete and accurate history, a complete statement of accepted facts, and the entire case record,
including a position description. Dr. Dennis examined appellant thoroughly, reviewed the
medical records, and reported accurate medical and employment histories. He concluded, with
supporting medical rationale, that appellant had no residuals from the accepted left ankle
condition and was able to return to full-duty work without limitations. Thus, Dr. Dennis’
opinion is entitled to special weight and OWCP properly terminated appellant’s compensation
benefits in reliance on his report.8
The January 6, 2014 report from Dr. Licciardi is insufficient to overcome the weight
accorded to Dr. Dennis as an impartial medical specialist. While Dr. Licciardi submitted an
additional report, he had been on one side of the conflict in medical opinion regarding whether
residuals of the accepted condition remained and whether additional surgery was warranted.
Reports from a physician who was on one side of a medical conflict are generally insufficient to
overcome the weight accorded to the opinion of the impartial physician or to create a new
conflict.9 In his January 6, 2014 report, Dr. Licciardi stated that appellant remained persistently
symptomatic within his left ankle despite conservative and arthroscopic intervention. Appellant
had persistent pain, intolerance of attempts at prolonged periods of standing or ambulation
affecting activities of daily life and quality of life, and complaints of paresthesias and dysesthesia
radiating into the medial plantar aspect of his left foot. Examination findings of the left ankle
were provided. Dr. Licciardi provided an assessment of status post arthroscopy of the left ankle
and opined that appellant remained disabled and required tarsal tunnel decompression of the left
foot. However, he provided no medical rationale as to how his continued findings were related
to the accepted injury and would cause disability in light of the fact Dr. Dennis stated appellant’s
pes planus and calcaneal valgus deformity of both feet were congenital and the clinical
examination revealed both feet and calves were symmetrical. Dr. Licciardi also provided
insufficient medical rationale as to why the tarsal tunnel syndrome was indicated or causally
related to the accepted work incident or condition.
The Board notes that OWCP has not accepted the back condition as being work related.
For conditions not accepted by OWCP as being work related, it is the employee’s burden to
provide rationalized medical evidence sufficient to establish causal relation, not OWCP’s burden
to disprove such relationship.10 While Dr. Licciardi requested inclusion of the lumbar spine as a
consequential condition, he offered no medical rationale in support of his opinion. A mere
conclusion without the necessary rationale explaining how a claimant’s accepted exposure could

8

See Bryan O. Crane, 56 ECAB 713 (2005).

9

Jaja K. Asaramo, 55 ECAB 200 (2004).

10

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).

7

result in a consequential condition is not sufficient to meet a claimant’s burden of proof.11 In this
regard the Board also notes that Dr. Heist found no evidence of lumbar radiculopathy.
Therefore, the Board finds that OWCP properly terminated appellant’s wage-loss and
medical compensation benefits effective January 24, 2014, as the weight of the competent
medical evidence established that the accepted February 27, 2010 fracture of lateral malleolus of
ankle, closed, left had resolved without residuals.
On appeal, appellant’s counsel contends that Dr. Dennis’ report cannot carry the weight
of the medical evidence as Dr. Licciardi’s March 6, 2014 report confirmed appellant had
residuals of the left ankle surgery and had persistent pain on standing and walking and numbness
in the left foot. As noted, however, Dr. Licciardi provided no medical rationale to explain how
or why appellant would have residuals from the work-related condition or any explanation as to
why the tarsal tunnel syndrome was causally related to the accepted condition or work incident.
Counsel further argues it was inappropriate for Dr. Dennis to compare appellant’s ankles
as appellant had severe flat feet and a calcaneal valgus deformity of both feet and the right foot
and ankle were not normal. Dr. Dennis opined that appellant had equal deficiencies in both
ankles given the congenital conditions. In this case, it was appropriate to compare appellant’s
feet and ankles to determine whether or not the work injury had aggravated appellant’s
preexisting condition, which Dr. Dennis found it did not. Contrary to counsel’s assertions
regarding Dr. Dennis’ examination and conclusion with regard to the left tarsal tunnel syndrome,
he specifically stated that he found no asymmetry or difference between the two ankles, there
was no swelling or edema or evidence of ligament damage or instability, and no evidence of a
tarsal tunnel syndrome. Counsel’s remaining assertions lack validity as Dr. Dennis was provided
an updated statement of accepted facts along with a job description.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminates appellant’s compensation benefits, the burden shifts to
him to establish that he has continuing disability after that date related to his accepted injury.12
To establish a causal relationship between the condition as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evidence
based on a complete medical and factual background, supporting such a causal relationship.13
Causal relationship is a medical issue and the medical evidence required to establish a causal
relationship is rationalized medical evidence.14

11

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

12

See Manuel Gill, 52 ECAB 282 (2001).

13

Id.

14

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

ANALYSIS -- ISSUE 2
The Board finds that appellant submitted insufficient medical evidence to establish
residuals of the accepted conditions after January 23, 2014.
OWCP received additional medical reports from Dr. Licciardi dated March 6, April 17,
June 5, July 21, and September 3, 2014. In his reports, Dr. Licciardi noted appellant’s subjective
complaints and advised the objective examination was unchanged from previous examination.
An assessment of status post arthroscopy of the left ankle was provided. He continued to opine
that appellant was totally disabled. However, Dr. Licciardi failed to provide a medical diagnosis
and also failed to provide any medical rationale explaining how appellant remained disabled
from the accepted condition. A mere conclusion without the necessary medical rationale to
explain how and why the physician believes that appellant’s accepted exposure could result in a
diagnosed condition is not sufficient to meet his burden of proof. The medical evidence must
also explain how the physician reached the conclusion he is supporting, which Dr. Licciardi
failed to do.15 As such, Dr. Licciardi’s reports are insufficient to meet appellant’s burden of
proof.
There is no other medical evidence of record from a physician providing reasoned
support that appellant had any employment-related residuals or disability after January 23, 2014.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective January 23, 2014 because he no longer had any residuals or
disability causally related to his accepted February 27, 2010 employment-related injury. The
Board further finds that he did not meet his burden of proof to establish that he had any
employment-related residuals or disability after January 23, 2014.

15

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).

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ORDER
IT IS HEREBY ORDERED THAT the September 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Sacramento, CA,
Employer
__________________________________________

)
)
)
)
)
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)
)
)

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

Docket No. 17-0928
Issued: October 23, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 22, 2017 appellant filed a timely appeal from a December 21, 2016 merit
decision and a February 15, 2017 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish carpal tunnel
syndrome causally related to factors of her federal employment; and (2) whether the Branch of
Hearings and Review properly denied appellant’s request for a review of the written record as
untimely filed.
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence after OWCP rendered its December 21, 2016 decision. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final merit decision.
Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).

FACTUAL HISTORY
On September 23, 2016 appellant, then a 43-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she sustained mild carpal tunnel syndrome as a result of
repetitive movement of her right hand required by her federal employment duties. She first
became aware of her claimed condition and of its relationship to her federal employment on
July 19, 2016. Appellant did not stop work. A supervisor noted that appellant had previously
been off work from July 2015 through February 2016 due to a left thumb injury, but returned to
full duties in April 2016.
In a narrative statement dated September 23, 2016, appellant asserted that she first
noticed the pain while working limited duty and casing letters. She stated that, after she was
released to full duty, the pain would sometimes wake her from her sleep.
In a diagnostic report dated August 5, 2016, Dr. Marcia Redwood, a Board-certified
internist, evaluated the results of a nerve conduction velocity study, finding that the test revealed
mild carpal tunnel syndrome.
By letter dated October 5, 2016, OWCP requested that appellant submit additional
medical evidence in support of her claim. It noted that she had not submitted a physician’s
opinion regarding a causal relationship between her carpal tunnel syndrome and factors of her
federal employment. Appellant was afforded 30 days to submit the additional evidence.
In a report dated October 13, 2016, Dr. Brian Knapp, Board-certified in occupational
medicine, diagnosed right carpal tunnel syndrome. He noted that appellant had previously been
diagnosed with left carpal tunnel syndrome in 2004 and right carpal tunnel syndrome in 2006,
but that appellant reported the symptoms had resolved. Dr. Knapp recounted appellant’s history
of injury, noting that she had previously been placed on limited duty due to a left thumb injury
and that, while she was on limited duty, she began to experience symptoms of carpal tunnel
syndrome. On physical examination he noted a positive Phalen’s test and a positive Tinel’s sign.
Dr. Knapp commented that it was unclear if pushing and pulling of carts in the course of
employment was a risk factor because appellant had performed these duties for only one month
in duration when the symptoms first began, but that typically carpal tunnel syndrome developed
over a period of six months or more. He noted that it was interesting that appellant had handled
over-the-road containers for nine years without any symptoms. Dr. Knapp concluded that casing
and hand-held scanner usage were irrelevant, and that appellant most likely had underlying mild
idiopathic near-carpal tunnel syndrome, which was aggravated by handling of over-the-road
containers. He noted that this opinion was speculative and that causation was unclear.
On October 18, 2016 Dr. Knapp diagnosed right carpal tunnel syndrome and noted that
appellant could return to full duty on October 18, 2016.
In a report dated November 9, 2016, Dr. Knapp noted that appellant was recovering well
after a steroid injection and that her paresthesia had almost completely disappeared. He
diagnosed right carpal tunnel syndrome and tendinitis of the right forearm. Dr. Knapp opined
that the tendinitis was due to repetitive forceful grasping and pulling at work.
On November 30, 2016 Dr. Knapp noted that appellant’s right forearm tendinitis
symptoms continued, but that her carpal tunnel syndrome symptoms were almost completely
2

eliminated. Appellant complained of two weeks of pain over the left dorsal thumb. In a work
status report of the same date, Dr. Knapp recommended no forceful pushing or pulling with the
right hand.
By decision dated December 21, 2016, OWCP denied appellant’s claim. It found that she
had not submitted sufficient medical evidence to establish that her carpal tunnel syndrome was
work related.
By letter dated January 21, 2017, appellant requested a review of the written record by an
OWCP hearing representative. The request was postmarked January 23, 2017. With her request,
appellant submitted a December 21, 2016 report from Dr. Knapp, modified job offers, and a
report of maximum medical improvement dated January 6, 2017.
By decision dated February 15, 2017, an OWCP hearing representative with the Branch
of Hearings and Review denied appellant’s request for a review of the written record as
untimely. She noted that OWCP had issued its decision on December 21, 2016, while
appellant’s hearing request was postmarked January 23, 2017. Consequently, the hearing
representative found that appellant was not entitled to a review of the written record as a matter
of right, as the request was submitted more than 30 days after OWCP’s decision. She also
considered whether to grant appellant a discretionary hearing, but determined that the issue in
appellant’s case could equally well be addressed by her requesting reconsideration before
OWCP.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The claimant has the burden of establishing by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a

3

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Michael E. Smith, 50 ECAB 313, 315 (1999).

3

specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence.7 Rationalized medical opinion
evidence is medical evidence which includes a physician’s reasoned opinion on whether there is
a causal relationship between the claimant’s diagnosed condition and the compensable
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 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant was a federal civilian employee who filed a timely claim
that the work factors occurred as alleged, that a medical condition had been diagnosed, and that
appellant was within the performance of duty. It denied her claim as appellant had not submitted
sufficient medical evidence to establish a causal relationship between her carpal tunnel syndrome
and the accepted factors of her federal employment.
In support of her claim, appellant initially submitted a diagnostic report from
Dr. Redwood dated August 5, 2016. This report related that a nerve conduction velocity study
revealed mild carpal tunnel syndrome. However, Dr. Redwood offered no opinion regarding the
cause of this condition. The Board has 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.10
In a report dated October 13, 2016, Dr. Knapp diagnosed right carpal tunnel syndrome.
He recounted appellant’s history of injury, noting that she had previously been placed on limited
duty due to a left thumb injury, and that, while she was on limited duty, she began to experience
symptoms of carpal tunnel syndrome. Dr. Knapp commented that it was unclear if pushing and
pulling of carts in the course of employment was a risk factor, because the symptoms first began,
5

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

7

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

8

Leslie C. Moore, 52 ECAB 132, 134 (2000).

9

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

10

See E.R., Docket No. 16-1634 (issued May 25, 2017).

4

after only one month. Typically, he believed carpal tunnel syndrome develops over a period of
six months or more. Dr. Knapp noted that it was interesting that appellant handled over-the-road
containers for nine years without any symptoms. He stated that he felt casing and hand-held
scanner usage were not relevant, and that appellant most likely had underlying mild idiopathic
near-carpal tunnel syndrome, which was aggravated by handling of over-the-road containers.
As Dr. Knapp indicated in his October 13, 2016 report, his opinion as to the cause of
appellant’s carpal tunnel syndrome was speculative, and that the actual cause of her condition
was unclear. While the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, the opinion must not be speculative or equivocal. To be of probative
value, a physician’s opinion on causal relationship should be expressed in terms of reasonable
medical certainty.11
There are no other medical reports of records containing a clear opinion as to the cause of
appellant’s carpal tunnel syndrome. As such, appellant has not submitted any medical evidence
containing a physician’s well-rationalized opinion, based on a complete factual and medical
background, expressed within a reasonable degree of medical certainty, and supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by appellant.12
The Board finds that as appellant has not submitted any rationalized medical evidence to
support her claim for compensation for carpal tunnel syndrome sustained in the course of her
federal employment, she has not met her burden of proof to establish a claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
A claimant, injured on or after July 4, 1966, who has received a final adverse decision by
OWCP, may obtain a hearing by writing to the address specified in the decision.13 The hearing
request must be sent within 30 days (as determined by postmark or other carrier’s date marking)
of the date of the decision for which a hearing is sought. The claimant must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision. If the
request is not made within 30 days, a claimant is not entitled to a hearing as a matter of right.
However, the Branch of Hearings and Review may exercise its discretion to either grant or deny
a hearing.14

11

D.F., Docket No. 17-0135 (issued June 5, 2017).

12

Supra note 8.

13

20 C.F.R. § 10.616(a).

14

5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33
ECAB 140 (1981).

5

ANALYSIS -- ISSUE 2
Appellant’s January 21, 2017 request for a review of the written record was postmarked
on January 23, 2017. OWCP issued its last merit decision on December 21, 2016. The
regulations provide that “[t]he hearing request must be sent within 30 days […] of the date of the
decision for which a hearing is sought.”15 Because appellant’s request postmarked January 23,
2017 was untimely, she was not entitled to a review of the written record as a matter of right.
OWCP’s hearing representative also denied appellant’s request finding that the issue of causal
relationship could equally well be addressed by requesting reconsideration before OWCP. The
Board finds that the hearing representative properly exercised her discretionary authority in
denying appellant’s request for a hearing.16
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish carpal tunnel
syndrome causally related to factors of her federal employment. The Board further finds that the
Branch of Hearings and Review properly denied appellant’s request for a review of the written
record as untimely filed.

15

20 C.F.R. § 10.616(a).

16

Mary B. Moss, 40 ECAB 640, 647 (1989). 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).

6

ORDER
IT IS HEREBY ORDERED THAT the February 15, 2017 and December 21, 2016
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 23, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7