United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, OFFICE OF REGIONAL
CHIEF COUNSEL, Chicago, IL, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-938
Issued: December 1, 2009

Case Submitted on the Record

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

JURISDICTION
On February 25, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 21, 2009 merit decision, denying his claim. 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 appellant met his burden of proof to establish that he sustained
Ganser’s syndrome due to his December 12, 2002 employment injury.
FACTUAL HISTORY
This is the third appeal in this case. In an October 15, 2007 decision,1 the Board set aside
the Office’s denial of appellant’s claim that he sustained Ganser’s syndrome due to his

1

Docket No. 07-1356 (issued October 15, 2007).

December 12, 2002 employment injury.2 The Board found that additional clarification was
needed from Dr. Robert M. Galatzer-Levy, a Board-certified psychiatrist who served as an
impartial medical specialist.3
On May 18, 2006 Dr. Galatzer-Levy indicated that an examination on April 20, 2006
showed evidence that, at times appellant failed to make logical connections about the matters he
discussed. He noted that Ganser’s syndrome was not recognized as a psychiatric disorder in the
current edition of Diagnostic and Statistical Manual of the American Psychiatric Association but
was referred to once in the text under the heading “Dissociative Disorder Not Otherwise
Specified.” Dr. Galatzer-Levy stated that the text listed Ganser’s syndrome as one of a number
of examples of disorders in which the predominant feature (i.e., a disruption in the usual
integrated functions of consciousness, memory, identity or perception of the environment) does
not meet the criteria for any specific dissociative disorder. The text referred to Ganser’s
syndrome as the giving of approximate answers to questions, such as two plus two equals five, in
the absence of dissociative amnesia or dissociative fugue. Dr. Galatzer-Levy stated that the
writers of the text appeared to consider Ganser’s syndrome not as a specific psychiatric disorder
but, at most, a subtype of the psychiatric disorder “Dissociative Disorder Not Otherwise
Specified.” He posited that appellant did not exhibit the cardinal features of such a dissociative
disorder and was not suffering from any form of dissociative disorder, including Ganser’s
syndrome. While at times appellant exhibited “blatantly disturbed thought processes,” these
difficulties with thinking were better understood as elements of an ongoing severe psychiatric
disorder rather than as symptoms of Ganser’s syndrome. Dr. Galatzer-Levy posited that these
difficulties with thinking were entirely consistent with a psychotic depressive disorder, which
had previously been diagnosed and which was supported by the current clinical examination. He
also noted that appellant was receiving a large number of potent psychiatric medications and has
been described as sensitive to their side effects, which include psychiatric symptoms.

2

The Office accepted that on December 12, 2002 appellant, then a 33-year-old legal assistant, sustained a
concussion when he slipped and hit his head on the sink and floor in a restroom at work. It later accepted
conversion disorder due to this injury. The Office terminated appellant’s compensation effective June 23, 2003 on
the grounds that he had no disability due to his December 12, 2002 employment injury after that date. Appellant
later claimed that he sustained Ganser’s syndrome due to his December 12, 2002 employment injury. He asserted
that he had this condition during the 9 or 10 months after the December 12, 2002 employment injury and that it
totally disabled him. The Office denied appellant’s claim based on the opinion of Dr. Dixon F. Spivy, a Boardcertified psychiatrist and neurologist and Office referral physician, who opined that he did not have work-related
Ganser’s syndrome.
3

In a March 9, 2006 decision (Docket No. 06-241, issued March 9, 2006), the Board found that there was a
conflict in the medical evidence between Dr. Joseph A. Bongiorno, an attending Board-certified psychiatrist and
neurologist, and Dr. Spivy, the Office referral physician, regarding whether appellant sustained Ganser’s syndrome
due to his December 12, 2002 employment injury. The Board remanded the case to the Office for referral of
appellant to an impartial medical specialist to resolve the conflict in medical evidence and this remand led to the
referral to Dr. Galatzer-Levy.

2

Dr. Galatzer-Levy felt that it was possible that some of these medications were contributing to
appellant’s current psychiatric impairment.4
In its October 15, 2007 decision, the Board found that Dr. Galatzer-Levy’s opinion that
appellant did not have work-related Ganser’s syndrome was in need of clarification because it
appeared to have been based more on his condition at the time of the April 20, 2006 examination
than on his condition during the 9 or 10 months after the December 12, 2002 accident, i.e., the
period that appellant claimed he had Ganser’s syndrome. The Board noted that Dr. GalatzerLevy acknowledged that at times appellant exhibited “blatantly disturbed thought processes” but
pointed out that he did not provide much specific discussion of these instances. Moreover,
Dr. Galatzer-Levy did not provide any explanation of the role head trauma might play in
contributing to Ganser’s syndrome. Therefore, in order to resolve the continuing conflict in the
medical opinion, the Board remanded the case to the Office for referral of the case record, a
statement of accepted facts and, if necessary, appellant, to Dr. Galatzer-Levy for a supplemental
report regarding whether the December 12, 2002 employment injury contributed to him
sustaining Ganser’s syndrome or any other condition not previously accepted. The Board
directed the Office to issue an appropriate decision regarding this matter after such development
as it deemed necessary. The facts and the circumstances of the case up to that point are set forth
in the Board’s prior decision and are incorporated herein by reference.
On remand, the Office referred the case to Dr. Galatzer-Levy for a supplemental report
regarding whether the December 12, 2002 employment injury contributed to him sustaining
Ganser’s syndrome or any other condition not previously accepted.
In a November 14, 2007 report, Dr. Galatzer-Levy provided a discussion of Ganser’s
syndrome, reiterating that it was a dissociative disorder, not otherwise classified. He noted that,
the condition in which individuals, who are otherwise psychiatrically intact with regard to major
psychiatric disorders, behave in a manner as if to appear to have a psychiatric disorder. The
condition is the psychiatric parallel to conversion symptoms in which persons exhibit symptoms
that they believe to be consistent with physical ailments, but do not have any underlying physical
condition. Dr. Galatzer-Levy indicated that during the 9 or 10 months after his December 12,
2002 head injury appellant did exhibit some symptoms consistent with descriptions of Ganser’s
syndrome. In particular, he gave approximate but wrong answers to simple questions and
exhibited conversion symptoms, i.e., changes in bodily function that could not be explained by
physical, as opposed to psychological, causes. However, appellant did not exhibit several typical
features of the condition. He did not have amnesia for the precipitating event documented and
he did not make “absurd statements” of the type described for Ganser’s syndrome, i.e.,
statements of the sort that an individual attempting to mimic psychiatric illness, but unaware of
4

The record also contains a December 11, 2006 report, in which Dr. Bongiorno stated that he did not believe that
appellant had Ganser’s syndrome at the present time but rather developed the condition several days after his
December 12, 2002 accident at work. He indicated that this condition rendered appellant disabled by bilateral
lower-limb paralysis requiring a wheelchair, difficulty thinking and concentrating, visual problems, increased groin
pain and profound difficulty in speaking. Dr. Bongiorno asserted that the December 12, 2002 fall caused the
emergence of new symptoms after that date, whether they were characterized as Ganser’s syndrome or some other
condition, but that appellant’s conflicts with supervisors “made him still more vulnerable to the physical and
psychological traumas of the fall.” Dr. Bongiorno stated that the fall aggravated appellant’s preexisting psychiatric
conditions and “tipped him (further) over the edge.”

3

the actual symptoms the psychiatric conditions might make. Dr. Galatzer-Levy indicated that
appellant stood to gain administrative or legal advantages by virtue of having a psychiatric
disorder and indicated that it was possible he was malingering.
Dr. Galatzer-Levy stated that additional factors weighing against appellant having had
Ganser’s syndrome were the clearly documented presence of other psychiatric disorders, his not
being a prisoner (approximately half of Ganser’s syndrome sufferers being prisoners) and the
availability of other, simpler explanations for his symptoms. He indicated that, most tellingly,
the course of appellant’s condition did not follow that typically described in Ganser’s syndrome,
which ordinarily has a sudden onset and completely and equally suddenly remits, usually after
several days. Some of the symptoms that began after the December 12, 2002 episode have not
remitted almost five years later and many of them lasted many months. Dr. Galatzer-Levy noted
that although Ganser’s syndrome following head trauma has been reported, the number of cases
was so tiny that no statement could be made about the severity of head trauma needed to
contribute to Ganser’s syndrome, nor even whether head trauma could contribute to (as opposed
to be associated with) the syndrome.
Dr. Galatzer-Levy noted that it is general medical practice that if an individual’s
symptoms can be explained as well or better by a commonly occurring condition than by a rare
condition, the diagnosis of the more common condition should be made. He noted that Ganser’s
syndrome was an extremely rare condition and indicated that all of appellant’s symptoms could
be accounted for by a nonwork-related psychotic depression, with which he had previously been
diagnosed. At the time of the December 12, 2002 incident appellant had suffered from a
nonwork-related psychiatric disorder characterized by delusions, suspiciousness, anxiety, social
adjustment problems and thought disorder for a considerable time. Dr. Galatzer-Levy stated that
appellant appeared to have incorporated the experience of his December 12, 2002 fall into a
delusional belief which was a result of his underlying nonwork-related illness. Appellant then
proceeded to act in a way that was consistent with this belief by manifesting various symptoms,
including disturbed thought processes, that were not caused by the fall but rather by the
underlying psychiatric illness. Dr. Galatzer-Levy stated that, although some of appellant’s
symptoms were consistent with Ganser’s syndrome in the 9 or 10 months after December 12,
2002, he did not suffer from many of the symptoms associated with the condition, he did not
belong to the population in which the condition typically appears, his condition deviated
markedly from the time course typical of Ganser’s syndrome, his symptoms are better explained
in other ways and the likelihood of his having this extremely rare condition was very small.
Therefore, appellant did not have Ganser’s syndrome during the time in question.
Appellant submitted a November 11, 2008 report in which Dr. Bongiorno indicated that
he disagreed that appellant’s symptoms in the months after his December 12, 2002 fall could be
explained by his nonwork-related preexisting psychiatric condition. He posited that the Ganserrelated symptoms appellant exhibited after December 12, 2002 were not typical of psychotic
depression and asserted that appellant had both Ganser’s syndrome and psychotic depression
after that date. Dr. Bongiorno indicated that appellant’s rapid deterioration after December 12,
2002, including developing lower-limb paralysis requiring a wheelchair and having difficulties in
seeing, thinking, concentrating and speaking, were explained by his development of Ganser’s
syndrome.

4

In a January 21, 2009 decision, the Office determined that appellant did not meet his
burden of proof to establish that he sustained Ganser’s syndrome due to his December 12, 2002
employment injury. It found that the supplemental opinion of Dr. Galatzer-Levy, the impartial
medical specialist represented the weight of the medical evidence with respect to this matter.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act5 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.6 The medical evidence
required to establish a causal relationship between a claimed period of disability and an
employment injury 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
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.7
Section 8123(a) of the Act provides in pertinent part: “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.”8 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 he given special weight.9 In a situation where the Office secures an opinion from an
impartial medical examiner for the purpose of resolving a conflict in the medical evidence and
the opinion from such examiner requires clarification or elaboration, the Office has the
responsibility to secure a supplemental report from the examiner for the purpose of correcting the
defect in the original opinion.10

5

5 U.S.C. §§ 8101-8193.

6

Elaine Pendleton, 40 ECAB 1143, 1145 (1989). The Board has held that an emotional condition related to the
effects or residuals of an employment injury could be covered under the Act. See Arnold A. Alley, 44 ECAB 912,
921-22 (1993); Charles J. Jenkins, 40 ECAB 362, 367 (1988).
7

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

8

5 U.S.C. § 8123.

9

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

10

Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

5

ANALYSIS
The Office accepted that on December 12, 2002 appellant sustained a concussion when
he slipped and hit his head on the sink and floor in a restroom at work. It also accepted
conversion disorder due to this injury. Appellant later claimed that he sustained Ganser’s
syndrome due to his December 12, 2002 employment injury and that this condition caused
disability for 9 or 10 months after December 12, 2002.
The Board has previously determined that the opinion of the impartial medical specialist,
Dr. Galatzer-Levy, a Board-certified psychiatrist, was in need of clarification and remanded the
case to the Office in order to obtain such clarification. The Board finds that the opinion of
Dr. Galatzer-Levy, as supplemented by his comprehensive November 14, 2007 supplemental
report, represents the weight of the medical evidence regarding whether appellant had Ganser’s
syndrome.11 Dr. Galatzer-Levy’s reports show that appellant did not develop Ganser’s syndrome
due to his December 12, 2002 injury.
In his May 18, 2006 and November reports, Dr. Galatzer-Levy discussed the nature of
Ganser’s syndrome, noting that it is a dissociative disorder, not otherwise classified. He
indicated that during the 9 or 10 months after appellant’s December 12, 2002 head injury
appellant did exhibit some symptoms consistent with descriptions of Ganser’s syndrome. In
particular, appellant gave approximate but wrong answers to simple questions and exhibited
conversion symptoms, i.e., changes in bodily function that could not be explained by physical, as
opposed to psychological, causes. However, he did not exhibit several typical features of the
condition. Appellant did not have amnesia for the precipitating event documented and he did not
make “absurd statements” of the type described for Ganser’s syndrome, i.e., statements of the
sort that an individual attempting to mimic psychiatric illness, but unaware of the actual
symptoms the psychiatric conditions might make. Dr. Galatzer-Levy stated that additional
factors weighing against appellant having had Ganser’s syndrome were the clearly documented
presence of other psychiatric disorders, his not being a prisoner (approximately half of Ganser’s
syndrome sufferers being prisoners) and the availability of other, simpler explanations for his
symptoms. He concluded that, although some of appellant’s symptoms were consistent with
Ganser’s syndrome in the 9 or 10 months after December 12, 2002, he did not suffer from many
of the symptoms associated with the condition, he did not belong to the population in which the
condition typically appears, his condition deviated markedly from the time course typical of
Ganser’s syndrome, his symptoms are better explained in other ways and the likelihood of his
having this extremely rare condition was very small. Therefore, appellant did not have Ganser’s
syndrome during the time in question.
The Board has carefully reviewed the opinion of Dr. Galatzer-Levy 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. Galatzer-Levy’s opinion is based on a proper factual and
medical history and he reached conclusions in accord with this history.12 He provided medical
rationale for his opinion by explaining that, most tellingly, the course of appellant’s condition did
11

See supra notes 8 through 10.

12

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

6

not follow that typically described in Ganser’s syndrome, which ordinarily has a sudden onset
and completely and equally suddenly remits, usually after several days. Some of the symptoms
that began after the December 12, 2002 episode have not remitted almost five years later and
many of them lasted many months. Dr. Galatzer-Levy noted that Ganser’s syndrome was an
extremely rare condition and explained that all of appellant’s symptoms could be accounted for
by a nonwork-related psychotic depression, with which he had previously been diagnosed. At
the time of the December 12, 2002 incident appellant had suffered from a nonwork-related
psychiatric disorder characterized by delusions, suspiciousness, anxiety, social adjustment
problems and thought disorder for a considerable time. Dr. Galatzer-Levy stated that appellant
appeared to have incorporated the experience of his December 12, 2002 fall into a delusional
belief, which was a result of his underlying nonwork-related illness.
In reports dated December 11, 2006 and November 11, 2008, Dr. Bongiorno, an
attending Board-certified psychiatrist and neurologist, determined that appellant sustained
Ganser’s syndrome due to his December 12, 2002 work injury. He posited that appellant had
both Ganser’s syndrome and a continuing nonwork-related psychotic depression after
December 12, 2002.
Dr. Bongiorno indicated that appellant’s rapid deterioration after
December 12, 2002, including developing lower-limb paralysis requiring a wheelchair and
having difficulties in seeing, thinking, concentrating and speaking, were explained by his
development of Ganser’s syndrome. These reports are similar to prior reports of Dr. Bongiorno,
including those that helped to create a conflict in the medical evidence. As he was on one side of
the conflict resolved by Dr. Galatzer-Levy, his additional reports, which are essentially
duplicative of his prior stated opinions, are insufficient to give rise to a new conflict.13
For these reasons, appellant has not shown that he sustained work-related Ganser’s
syndrome and the Office properly denied his claim.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained Ganser’s syndrome due to his December 12, 2002 employment injury.

13

See Richard O’Brien, 53 ECAB 234 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
January 21, 2009 decision is affirmed.
Issued: December 1, 2009
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

8


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

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

Docket No. 12-729
Issued: September 5, 2012

Case Submitted on the Record

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

JURISDICTION
On February 14, 2012 appellant, through his attorney, filed a timely appeal from a
September 14, 2011 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 established that modification of a July 30, 2009 wageearning capacity determination was warranted.
FACTUAL HISTORY
OWCP accepted that appellant, a 41-year-old letter carrier, sustained a cervical disc
displacement and root lesions in the performance of duty on February 16, 2005 in File No.
xxxxxx054. In File No. xxxxxx218, it accepted his occupational disease claim for herniated
lumbar disc and lumbar strain. The cases were consolidated, with File No. xxxxxx054 serving as
1

5 U.S.C. § 8101 et seq.

the master file.
benefits.

OWCP approved several injury-related surgeries and paid compensation

On April 2, 2009 appellant accepted a position as a modified mail carrier. The written
job offer indicated that appellant would not be required to work more than eight hours per day
and would take frequent breaks, in accordance with restrictions provided by his treating
physician.
By decision dated July 30, 2009, OWCP determined that appellant’s actual earnings
fairly and reasonably represented his wage-earning capacity.
On January 26, 2011 appellant was advised that, pursuant to the National Reassessment
Program (NRP), he was being offered a modified position working only four hours a day.
Appellant accepted the position under protest.
On January 27, 2011 appellant filed a notice of recurrence (Form CA-2a), claiming that
his light-duty job had been withdrawn under NRP. The CA-2a form contained a confirmation by
the employing establishment that the January 26, 2011 job offer was made under NRP.
By letter dated February 17, 2011, OWCP informed appellant that, as a formal decision
establishing his wage-earning capacity had been issued, he must meet the criteria for modifying
the July 30, 2009 wage-earning capacity determination. Appellant must therefore show that
there had been a material change in the nature and extent of the injury-related condition, that he
had been retrained or otherwise vocationally rehabilitated or that the original determination was,
in fact, erroneous.
In a letter dated February 28, 2011, appellant contended that the original loss in wageearning capacity (LWEC) decision was erroneous because it was based on a regular position,
rather than a modified position. He stated that his medical condition had not changed.
By decision dated April 4, 2011, OWCP denied modification of the July 30, 2009 wageearning capacity determination. The claims examiner found that the position on which the
LWEC decision was based was a modified position, in that it reflected restrictions provided by
appellant’s physician.
Appellant requested a telephonic hearing before an OWCP hearing representative, which
was held on July 13, 2011. Appellant’s representative argued that the modified position was
sheltered or makeshift in nature and that, therefore, the original LWEC decision was erroneous.
By decision dated September 14, 2011, the hearing representative affirmed the April 4,
2011 decision, finding that there was no error in the original determination and appellant had not
established a material change in an employment-related condition. Based on Board precedent,
the hearing representative found that the modified position on which the July 30, 2009 LWEC
decision was based was not makeshift in nature.2

2

The claims examiner analyzed the issues in this case under Board precedent, citing A.J., Docket No. 10-619
(issued June 29, 2010) and M.R., Docket No. 10-1407 (issued April 4, 2011).

2

LEGAL PRECEDENT
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, in fact, erroneous.3 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.4
FECA Bulletin No. 09-05 outlines very specific procedures for light-duty positions
withdrawn pursuant to NRP. Regarding claims for total disability, when a wage-earning
capacity decision has been issued, OWCP should develop the evidence to determine whether a
modification of that loss of wage-earning capacity position is appropriate.
ANALYSIS
The Board finds this case not in posture for decision. OWCP accepted appellant’s claims
for cervical disc displacement, herniated lumbar discs and lumbar strain and approved several
injury-related surgeries. Based upon the medical restrictions recommended by appellant’s
treating physician, the employing establishment offered him a modified letter carrier position,
which he accepted on April 2, 2009. By decision dated July 30, 2009, OWCP found that
appellant’s actual earnings in the modified position fairly and reasonably represented his wageearning capacity.
The record reflects that appellant worked in the full-time modified position until
January 26, 2011, when the employing establishment offered him a modified position working
only four hours per day, rather than eight hours per day. Appellant filed a claim for a recurrence
of disability based on the withdrawal of his job offer under NRP. By letter dated February 17,
2011, OWCP advised him that as it had issued a formal decision establishing his wage-earning
capacity, he must meet the criteria for modifying the July 30, 2009 wage-earning capacity
determination. Appellant, therefore, argued that the original LWEC decision was erroneous
because it was based on a full-time, regular position. Alternatively, he argued that the decision
was erroneous because the position was makeshift in nature.
In its September 14, 2011 decision, OWCP denied appellant’s claim for modification of
the July 30, 2009 wage-earning capacity decision on the grounds that the original LWEC
decision was not erroneous, as it was not based on either a full-duty or a make-shift position. It
further found that there was no evidence indicating vocational rehabilitation or a worsening of
appellant’s work-related disability. OWCP, however, did not acknowledge that the original
modified position was withdrawn pursuant to NRP or make any relevant findings on the issue.
In this regard, the Director of OWCP set forth guidelines, in FECA Bulletin No. 09-05, for
developing the issue of modification of a wage-earning capacity determination when the job has
been withdrawn pursuant to NRP.5

3

Sue A. Sedgwick, 45 ECAB 211 (1993).

4

Id.

5

FECA Bulletin No. 09-05 (issued August 18, 2009).

3

In light of the requirements of FECA Bulletin No. 09-05, OWCP did not discuss the
medical evidence of record as it pertains to appellant’s employment-related residuals. The case
will be remanded to OWCP to properly analyze the modification issue presented in accord with
FECA Bulletin No. 09-05. After such further medical development as OWCP deems necessary,
it should issue an appropriate decision.
The Board therefore finds the case is not in posture for decision and will be remanded to
OWCP. On remand, OWCP should follow the procedures found in FECA Bulletin No. 09-05 to
determine if appellant met his burden to modify the July 30, 2009 wage-earning capacity
determination.
CONCLUSION
The Board finds that the case is not in posture for decision and will be remanded to
OWCP for further development.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 14, 2011 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: September 5, 2012
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, FOOD & DRUG
ADMINISTRATION, Fort Myers, FL, Employer
__________________________________________

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

Docket No. 17-1186
Issued: June 11, 2018

Case Submitted on the Record

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

JURISDICTION
On May 9, 2017 appellant filed a timely appeal from a November 15, 2016 merit decision
and an April 7, 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 the claim.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish an injury
causally related to the accepted September 22, 2016 employment incident; and (2) whether OWCP

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP issued its April 7, 2017 decision. The
Board’s review is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the Board
is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

properly denied appellant’s request for reconsideration of the merits of his claim pursuant to 5
U.S.C. § 8128(a).
FACTUAL HISTORY
On September 26, 2016 appellant, then a 55-year-old investigator, filed a traumatic injury
claim (Form CA-1) alleging that, on September 22, 2016, he sustained injuries to his trapezoid
muscles (neck and shoulder) and lower back when he was involved in a car accident at 2:20 p.m.
while in the performance of duty. Specifically he stated that the injury occurred when “driving
through intersection vehicle 1 driven by claimant impacted vehicle 2 on the driver side.” The
employing establishment did not dispute that appellant was injured in the performance of duty.
A travel document submitted with the claim indicated that appellant was on travel status in
Brooksville, Florida from September 19 through 23, 2016 to perform a work-related inspection.
In a September 24, 2016 form report, Dr. Jeffrey Johns, an osteopath and Board-certified
family practitioner, diagnosed trapezius muscle spasm bilaterally for the September 22, 2016
motor vehicle accident, which he indicated was work related.
By development letter dated October 5, 2016, OWCP advised appellant of the deficiencies
in his claim. It requested additional factual and medical evidence to support his claim, to include
a report from a qualified physician explaining that the diagnosed condition was causally related to
the employment incident. OWCP afforded appellant 30 days to submit the requested evidence.
Appellant subsequently submitted an October 13, 2016 narrative statement and a duplicate
copy of the previously submitted travel document.
In a September 24, 2016 progress note, Dr. Johns noted that appellant was involved in a
motor vehicle accident on September 22, 2016. He was the driver and was wearing a shoulder
belt. Appellant was tossed forward and backward during the impact. He was not seen in the
emergency room that day. Dr. Johns indicated that appellant exhibited tenderness, pain, and spasm
in the cervical region and the lumbar back. A diagnosis of trapezius muscle spasm was provided.
A duplicate copy of Dr. Johns’ September 24, 2016 form report was also submitted.
In an October 3, 2016 progress note, Carolyn Hoffman, an advanced registered nurse
practitioner, noted that appellant was involved in a motor vehicle accident when he accidently
t-boned another car while traveling for his job. A diagnosis of motor vehicle accident sequela, left
shoulder strain, and neck muscle strain was provided along with work restrictions. An
accompanying October 3, 2016 form report from Ms. Hoffman provided work restrictions.
Additional progress reports and form reports from Ms. Hoffman dated October 10, 19, and 24,
2016 were provided. She continued to diagnose motor vehicle accident sequela, left shoulder
strain and neck muscle strain. The form reports also noted appellant’s work restrictions.
By decision dated November 15, 2016, OWCP accepted that the September 22, 2016
incident occurred as alleged, but denied the claim finding that the medical component of fact of
injury had not been established. It found that while the evidence contained a diagnosis, the reports
had not been signed by a physician. OWCP additionally noted that even if appellant submitted

2

medical evidence which contained a diagnosis, medical evidence which established causal
relationship must also be submitted.
On January 5, 2017 appellant requested reconsideration.
In an October 28, 2016 progress report, Ms. Hoffman continued to report on appellant’s
status following the injuries sustained in the motor vehicle accident. Diagnoses of motor vehicle
accident, sequela, left shoulder strain and neck muscle strain were provided. Work restrictions
were also provided in an accompanying form report.
In a November 14, 2016 progress note, Ms. Hoffman referred appellant to physical therapy
for his diagnosed left shoulder strain, motor vehicle accident, sequela, and neck muscle strain. She
indicated that appellant was discharged from care and was released to full duty, with no
restrictions. Accompanying November 14, 2016 form reports were also submitted along with a
November 14, 2015 referral to physical therapy, all signed by Ms. Hoffman.
By decision dated April 7, 2017, OWCP denied appellant’s reconsideration request. It
found that the evidence submitted, while new, was considered cumulative and thus substantially
similar to the evidence already contained in the case file that was previously considered.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 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 are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.6 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
3

Supra note 1.

4

Gary J. Watling, 52 ECAB 278 (2001).

5

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

6

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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.7
ANALYSIS -- ISSUE 1
The Board finds that appellant has submitted insufficient medical evidence to establish his
claim.
Appellant filed a claim for a traumatic injury alleging that he sustained injury on
September 22, 2016 as a result of a work-related motor vehicle accident. He first sought medical
treatment on September 24, 2016 with Dr. Johns and continued treatment thereafter with advanced
registered nurse practitioner, Ms. Hoffman.
OWCP accepted that appellant was involved in the September 22, 2016 motor vehicle
accident in the performance of duty. It found, however, that the medical evidence of record was
insufficient to establish that appellant had a diagnosed medical condition causally related to the
accepted September 22, 2016 employment incident.
In his September 23, 2016 report, Dr. Johns reported the history of the September 22, 2016
motor vehicle accident and indicated that appellant exhibited tenderness, pain, and spasm in the
cervical spine and lumbar back. A diagnosis of trapezius muscle spasm and motor vehicle accident
was provided. The Board finds that Dr. Johns failed to specifically address how the motor vehicle
accident caused or aggravated a diagnosed medical condition. Noting that appellant was
experiencing bilateral trapezius muscle spasm without explanation of the condition causing the
spasm or pain, is a description of a symptom rather than a firm diagnosis of a compensable medical
condition.8 Dr. Johns failed to address how the September 22, 2016 motor vehicle incident caused
or aggravated a diagnosed medical condition. Thus, this report is insufficient to discharge
appellant’s burden of proof.9
Progress notes dated October 3, 10, 19, and 24, 2016 and form reports from Ms. Hoffman
were also submitted. Ms. Hoffman noted the history of the September 22, 2016 motor vehicle
accident and diagnosed motor vehicle accident sequela, left shoulder strain, and neck muscle
strain. However, these reports have no probative medical value as they were signed by a nurse
practitioner.10 A nurse practitioner is not considered a physician as defined under FECA.11 As the
7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

8

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. C.F.,
Docket No. 08-1102 (issued October 10, 2008). Similarly, spasm has been found to be a symptom, not a diagnosis.
J.C., Docket No. 14-1002 (issued December 19, 2014).
9

M.R., Docket No. 16-0380 (issued October 12, 2016).

10

K.J., Docket No. 16-0611 (issued May 13, 2016).

11

L.D., 59 ECAB 648 (2008) (a nurse practitioner is not considered a physician as defined under FECA). The term
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. § 8102(2).

4

underlying issue is medical in nature,12 reports from a layperson, such as a nurse practitioner, do
not constitute medical evidence and their findings and opinions do not suffice for purposes of
establishing FECA benefits.13
Consequently, appellant has submitted insufficient medical evidence to establish his claim
and, thus, 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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA, the
evidence or argument submitted by a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously considered
by OWCP; or (3) constitute relevant and pertinent new evidence not previously considered by
OWCP.14 To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
a claimant also must file his or her application for review within one year of the date of that
decision.15 When a claimant fails to meet one of the above standards, OWCP will deny the
application for reconsideration without reopening the case for review on the merits.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim.
Appellant’s January 5, 2017 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, he did not
advance a relevant legal argument not previously considered by OWCP. Consequently, appellant
is not entitled to further review of the merits of his claim based on the first and second above-noted
requirements under 20 C.F.R. § 10.606(b)(3).
In support of his reconsideration request, appellant submitted additional progress reports
and form reports from Ms. Hoffman dated October 28 and November 14, 2016. The Board finds
that, while these reports are new, they have no probative medical value as they were signed by a
nurse practitioner. As previously noted nurse practitioners are not considered physicians as

12

See Carol A. Lyles, 57 ECAB 265 (2005) (causal relationship is a medical issue which must be resolved by
competent medical opinion).
13

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

14

20 C.F.R. § 10.606(b)(3).

15

Id. at § 10.607(a).

16

Id. at § 10.608(b).

5

defined under FECA.17 Therefore, these reports are of no relevance to the underlying issue of
medical fact of injury and do not comprise a basis for reopening the case for a merit review.18 A
claimant may be entitled to a merit review by submitting relevant and pertinent new evidence, but
appellant did not submit any such evidence, and thus, he failed to satisfy the third requirement
under 20 C.F.R. § 10.606(b)(3).
As appellant failed to meet any of the three regulatory criteria for reopening a claim, he
was not entitled to further merit review of his claim.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted September 22, 2016 employment incident. The Board also finds
that OWCP properly denied appellant’s request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 7, 2017 and November 15, 2016 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 11, 2018
Washington, DC

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

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

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

17

See supra note 10.

18

Supra note 10; Joseph A. Brown, Jr., 55 ECAB 542 (2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF THE ARMY, NATIONAL
GUARD, Jefferson City, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
David A. Weidner, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2211
Issued: June 10, 2011

Case Submitted on the Record

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

JURISDICTION
On August 30, 2010 appellant, through his attorney, filed a timely appeal from a July 26,
2010 merit decision of the Office of Workers’ Compensation Programs denying his claim for a
schedule award. Pursuant to the Federal Employees’ Compensation Act1 and 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 is entitled to a schedule award for a permanent impairment
of the extremities.
FACTUAL HISTORY
On March 4, 2003 appellant, then a 38-year-old training officer, filed a claim alleging
that on February 28, 2003 he injured his left knee and left elbow when he slipped on snow. The

1

5 U.S.C. § 8101 et seq.

Office accepted his claim for a left knee contusion, back strain and a herniated C5-6 cervical
disc. On April 27, 2004 appellant underwent an anterior cervical fusion at C5-6.
By decision dated March 17, 2004, the Office denied appellant’s request for authorization
for an anterior cervical fusion. On October 18, 2004 a hearing representative vacated the
March 17, 2004 decision and instructed the Office to further develop the medical evidence
regarding whether his surgery resulted from his accepted work injury.
In a June 30, 2005 report, Dr. Don Miskew, a Board-certified orthopedic surgeon and
Office referral physician, opined that appellant’s herniated C5-6 disc was causally related to his
February 28, 2003 work injury. He further found that the cervical fusion was necessary and
employment related. Dr. Miskew noted appellant’s complaints of intermittent numbness of the
hands. He measured range of motion of the neck and noted that he had tenderness over the left
trapezius with palpation but “no gross motor, sensory, or reflex loss to the upper extremities.”
On August 25, 2005 the Office determined that the April 2004 surgery was causally
related to appellant’s February 28, 2003 work injury and expanded acceptance of the claim to
include a herniated cervical disc.
On August 24, 2009 appellant filed a claim for a schedule award. Counsel asserted that
appellant had impairment due to numbness of the arms and hands bilaterally.
By letter dated August 28, 2009, the Office informed appellant that the medical evidence
was currently insufficient to show that he had a permanent impairment. It noted that the last
medical evidence in the record was a June 30, 2005 report from Dr. Miskew. The Office
requested that he submit a detailed impairment evaluation in accordance with the American
Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A.,
Guides).
On December 27, 2009 an Office medical adviser reviewed the June 30, 2005 report form
Dr. Miskew.
He opined that appellant reached maximum medical improvement on
June 30, 2005. The Office medical adviser found that pain over the left trapezius was “not a
radicular finding” and that numbness of the hands “could not be a residual of the surgical
management at the C5, C6 level.” He noted that the intermittent numbness might be the result of
peripheral nerve entrapment. The Office medical adviser found that appellant had “no radicular
sensory, pain or motor impairments” of the upper extremities due to his cervical fusion and thus
no upper extremity impairment.
By decision dated January 14, 2010, the Office denied appellant’s claim for a schedule
award. On February 23, 2010 appellant requested a telephone hearing. At the hearing, held on
May 6, 2010, he described his symptoms of pain and numbness in his arms, a loss of strength
and decreased range of motion. Appellant’s counsel requested that the Office schedule an
impairment evaluation. The hearing representative advised that Dr. Miskew did not address the
issue of permanent impairment and that appellant should submit an evaluation from his attending
physician with current findings.

2

By decision dated July 26, 2010, the hearing representative affirmed the January 14, 2010
decision. He found that appellant had not submitted any evidence in support of his schedule
award claim.
On appeal counsel argued that his testimony showed that he had an impairment of the
upper extremities. He asserted that his attending physician, Dr. Robert Gaines, a Board-certified
orthopedic surgeon, found that he had a 10 percent whole person impairment, which equaled a
17 percent impairment of the upper extremities. Counsel also argued that the Office should refer
appellant for an impairment evaluation.
LEGAL PRECEDENT
The schedule award provision of the Act,2 and its implementing federal regulations,3 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 for all claimants, the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 As of May 1,
2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.5
Before the A.M.A., Guides can be utilized, a description of appellant’s impairment must
be obtained from his physician. In obtaining medical evidence required for a schedule award,
the evaluation made by the attending physician must include a description of the impairment
including, where applicable, the loss in degrees of active and passive motion of the affected
member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation or other pertinent descriptions of the impairment. This description must
be in sufficient detail so that the claims examiner and others reviewing the file will be able to
clearly visualize the impairment with its resulting restrictions and limitations.6
ANALYSIS
The Office accepted that appellant sustained a left knee contusion, back strain and a
herniated cervical disc at C5-6 due to a February 28, 2003 employment injury. Appellant
underwent an anterior cervical fusion at C5-6 on April 27, 2004. On June 30, 2005 Dr. Miskew,
a second opinion examiner, listed findings on examination and opined that the cervical fusion
was related to the accepted work injury. Based on his opinion, the Office accepted the April 27,
2004 cervical fusion as necessary and due to the February 28, 2003 employment injury.
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

Peter C. Belkind, 56 ECAB 580 (2005); Vanessa Young, 55 ECAB 575 (2004).

3

On August 24, 2009 appellant requested a schedule award. The Office advised appellant
in a letter dated August 28, 2009 to obtain an impairment evaluation from his attending physician
in accordance with the provisions of the A.M.A., Guides. Appellant did not submit any medical
evidence in support of his schedule award claim.
An Office medical adviser reviewed Dr. Miskew’s report and asserted that numbness of
the hand and left trapezius pain was not a radicular finding related to the C5-6 fusion.
Dr. Miskew’s 2005 opinion, however, was relevant to the issue of surgical authorization and did
not address the extent of any permanent impairment. Office procedures and Board precedent
require that, for a schedule award, the record contain a medical report with a detailed description
of the impairment.7 This description must be in sufficient detail so that the claims examiner and
others reviewing the file will be able to clearly visualize the impairment with its resulting
restrictions and limitations.8
Appellant has the burden of proof to submit medical evidence supporting that he has a
permanent impairment of a scheduled member or function of the body.9 As he did not submit
such evidence, the Office properly denied his request for a schedule award.
On appeal counsel argues that the Office should have referred appellant for an
impairment evaluation. As discussed, however, appellant has the burden to submit evidence
showing a permanent impairment.
Counsel also argues that Dr. Gaines found a 10 percent whole person impairment. The
record, however, does not contain an impairment evaluation from Dr. Gaines. Counsel further
contends that appellant’s testimony at the hearing establishes that he has a permanent
impairment. The extent of permanent impairment, however, is a medical question and must be
established by probative medical evidence.10
Appellant may submit new evidence or argument with a written request for
reconsideration to the Office 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 established that he is entitled to a schedule award
for a permanent impairment of the extremities.

7

See Peter C. Belkind, supra note 6; Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and
Permanent Disability Claims, Chapter 2.808.6(c)(1) (August 2002).
8

See Vanessa Young, supra note 6; Robert B. Rozelle, 44 ECAB 615 (1993).

9

See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993).

10

See Ronald M. Cokes, 46 ECAB 967 (1995).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 26, 2010 is affirmed.
Issued: June 10, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
S.J., Appellant
)
)
and
)
)
DEPARTMENT OF THE TREASURY,
)
U.S. MINT, Philadelphia, PA, Employer
)
___________________________________________ )

Docket No. 10-1318
Issued: February 3, 2011

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

Case Submitted on the Record

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

JURISDICTION
On April 5, 2010 appellant filed a timely appeal from a nonmerit decision of the Office of
Workers’ Compensation Programs dated October 7, 2009. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review this decision. The last merit decision was issued by
the Office on December 23, 2008. Because more than 180 days elapsed from issuance of that
decision to the filing of this appeal, the Board does not have jurisdiction over that decision.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim under 5 U.S.C. § 8128(a).

1

For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to
the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On May 14, 2005 appellant, then a 46-year-old packaging machine operator, filed a
traumatic injury claim alleging that on May 10, 2005 he was lifting counting machines and
sustained an injury to his low back in the performance of duty. He stopped work on
May 19, 2005.2 The Office accepted the claim for sprain/strain of the lumbar region and
aggravation of preexisting herniated lumbar disc at L4-5.
In support of his claim, appellant submitted several reports from his treating physicians.
They included a July 13, 2005 report, Dr. Bruce Williams, an osteopath and Board-certified
family practitioner, who advised that appellant could return to full-time light duty on July 14,
2005 with restrictions on lifting. Dr. Williams noted that the herniated nucleus pulposus could
be unpredictable, therefore his prognosis was guarded. In a July 25, 2006 report, he advised that
appellant had a neurologic deficit and severe weakness in his hip flexor, tibialis anterior and
extensor hallucis longus on the right side.
In an August 15, 2006 report, Dr. Eric Williams, a Board-certified orthopedic surgeon,
determined that appellant had severe critical high-grade stenosis at both L3-4 and L4-5; at L3-4,
which was secondary to spinal stenosis, and at L4-5 which was secondary to a combination of
spinal stenosis and a disc herniation. He noted that his right hip flexor weakness was secondary
to hip osteoarthritis. Dr. Williams recommended lumbar spine surgery. On August 31, 2006 he
performed an L3-5 laminectomy/fusion, partial facetectomies and foraminotomies bilaterally.
Dr. Williams noted that appellant had a long history of severe low back and right buttock pain.
He returned to limited duty for eight hours per day on December 4, 2006. Appellant
subsequently requested authorization for the August 31, 2006 back surgery.
On October 24, 2006 the Office referred appellant for a second opinion, along with a
statement of accepted facts and the medical record to Dr. Steven Valentino, a Board-certified
orthopedic surgeon. In a November 9, 2006 report, Dr. Valentino concluded that appellant had
recovered from the accepted condition. He also explained that, while the surgery was reasonable
and justified, it was not related to the work injury of May 10, 2005.
On May 11, 2007 the Office referred appellant to Dr. Gregory Maslow, a Board-certified
orthopedic surgeon, for an impartial medical evaluation to resolve the conflict in opinion
between Dr. Bruce Williams, appellant’s treating physician, and Dr. Valentino regarding the
need for the surgery.
In a June 1, 2007 report, Dr. Maslow noted appellant’s history of injury and treatment
and found the surgery was not work related as the condition for which surgery was warranted,
lumbar stenosis, preexisted the work injury. He opined that appellant had recovered from the
work injury.
In a decision dated August 28, 2007, the Office determined that the back surgery, while
reasonable and necessary for the preexisting condition of lumbar stenosis was not related to the
injury of May 10, 2005.
2

Appellant returned to light duty on July 18, 2005 and full duty on August 29, 2005.

2

On September 24, 2007 appellant requested a hearing, which was held on
January 18, 2008. A hearing representative set aside this decision on March 25, 2008 and
remanded the case for the Office to update the record and the statement of accepted facts to
include appropriate reference to a prior 1994 employment injury3 to be followed by a
supplemental report from Dr. Maslow.
In an October 2, 2008 supplemental report, Dr. Maslow referenced documents regarding
the 1994 injury and noted that the 2005 claim was accepted for lumbar sprain and aggravation of
the preexisting herniated disc at L4-5 level. He opined that the accepted conditions had resolved
with no evidence of a worsening of the L4-5 disc herniation. Dr. Maslow noted that Dr. Eric
Williams’ August 31, 2006 surgical report noted “minimal disc bulging” at L4-5 and did not
describe this as a herniated disc. He opined that the need for surgery was causally related to a
degenerative condition of the spine, with spinal stenosis and with radiculopathy caused by that
degenerative condition. Dr. Maslow opined that the fact that Dr. Williams did not note a
herniated disc at the time of the surgery clearly indicated that a worsening of a preexistent
herniated disc did not occur. He concluded that the need for surgery on August 31, 2006 was not
causally related to either the injury in 1994 or to the injury of May 10, 2005 but was performed
due to degenerative disc disease and stenosis.
In a decision dated December 23, 2008, the Office denied authorization for the requested
back surgery based on the opinion of Dr. Maslow.
Appellant requested a hearing on February 2, 2009. In a decision dated March 17, 2009,
the Office denied his request for a hearing as the request was not made within 30 days of the
December 23, 2008 decision. It noted that appellant could further pursue the matter by
requesting reconsideration.
On July 24, 2009 appellant requested reconsideration. He indicated that the Office
should have interviewed his supervisor, Marecella Shubrick, at the time of the injury instead of
Dennis Martell, who was not his supervisor. Appellant also indicated that the employing
establishment should have checked his medical history. He alleged that he was reassigned to the
same department where he sustained his previous injury and he should not have been reassigned
to it. The Office also received duplicate copies of Dr. Maslow’s June 1, 2007 and October 20,
2008 reports.
In a decision dated October 7, 2009, the Office denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant review of its prior
decision.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,4 the Office may
reopen a case for review on the merits in accordance with the guidelines set forth in section
3

The prior claim, which the Office reconstructed following the hearing representative’s remand, was accepted for
a herniated disc at L4-5. The condition was treated conservatively.
4

5 U.S.C. § 8128(a).

3

10.606(b)(2) of the implementing federal regulations, which provide that a claimant may obtain
review of the merits if the written application for reconsideration, including all supporting
documents, sets forth arguments and contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”5
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.6
ANALYSIS
Appellant disagreed with the denial of his claim for back surgery and requested
reconsideration.
In support of his request, appellant argued that the Office should have interviewed his
supervisor, Ms. Shubrick instead of Mr. Martell, who was not his supervisor. He also argued
that the employing establishment should have checked his medical history as he was reassigned
to the same department where he sustained his previous injury. The Board finds that these
arguments would not be relevant to the issue of the present case, i.e., whether appellant’s back
surgery was related to his accepted conditions or caused or aggravated by factors of his federal
employment. This underlying issue is medical in nature and should be resolved by the
submission of medical evidence. Thus, these assertions do not show that the Office erroneously
applied or interpreted a specific point of law, or advanced a relevant new argument not
previously submitted.
Appellant submitted duplicate copies of Dr. Maslow’s reports dated June 1, 2007 and
October 20, 2008. The Board has held that the submission of evidence or argument which
repeats or duplicates that already in the case record does not constitute a basis for reopening a
case.7 The Board further notes that the reports of Dr. Maslow did not support the need for
surgery due to an accepted condition.
Consequently, the evidence submitted by appellant on reconsideration does not satisfy
any of the regulatory criteria for reopening a claim for a merit review. Therefore, the Office
properly denied his request for reconsideration.
5

20 C.F.R. § 10.606(b).

6

Id. at § 10.608(b).

7

Edward W. Malaniak, 51 ECAB 279 (2000).

4

On appeal, appellant reiterated his arguments on reconsideration. He also alleged that
Dr. Maslow’s report was unclear while his doctor indicated the surgery was needed.
Additionally, appellant alleged that the report of his physician, Dr. Bruce Williams, was not
considered. However, the Board only has jurisdiction to consider whether the Office properly
denied his reconsideration request without conducting a merit review of the claim. As discussed,
appellant did not submit sufficient evidence to require the Office to reopen the claim for a merit
review.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 7, 2009 is affirmed.
Issued: February 3, 2011
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, MORGAN PARK
STATION POST OFFICE, Chicago, IL,
Employer
__________________________________________

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

Docket No. 15-386
Issued: April 23, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 2, 2014 appellant filed a timely appeal from a June 9, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP) and a July 31, 2014 nonmerit
decision denying his request for reconsideration.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from June 9, 2014, the date of OWCP’s last merit decision was
December 8, 2014. Since using December 9, 2014, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights for the merit decision, the date of the postmark is considered the date
of filing. The date of the U.S. Postal Service postmark is December 2, 2014, rendering the appeal of the June 9,
2014 merit decision timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant sustained an injury on February 7, 2014 in the
performance of duty; and (2) whether OWCP properly denied his request to reopen his case for
further review of the merits under 5 U.S.C. § 8128.
FACTUAL HISTORY
On February 10, 2014 appellant, then a 55-year-old city carrier, filed a traumatic injury
claim alleging that on February 7, 2014 he sprained his right knee when he fell on stairs while
working. He stopped work on February 10, 2014. The employing establishment did not
controvert the claim.
On February 8, 2014 appellant related that he fell on stairs while delivering mail and
asked to see a “company doctor.”
In a work status report dated February 10, 2014, Dr. Charlotte H. Albinson, Boardcertified in emergency medicine, diagnosed a knee and leg sprain at an unspecified site and a
hand sprain at an unspecified site. She released appellant to return to work on that date with
restrictions.
A magnetic resonance imaging (MRI) scan study of the right knee performed on
March 12, 2014 revealed a horizontal tear of the posterior horn of the medial meniscus, apparent
mucoid degeneration of the lateral meniscus, degenerative changes, grade 2 chondromalacia
patella, and moderate effusion.
By letter dated April 7, 2014, OWCP requested that appellant submit a medical report
from his attending physician addressing the relationship between any diagnosed condition and
the identified work incident.
In a decision dated June 9, 2014, OWCP denied appellant’s claim after finding that he did
not establish that he sustained an injury on February 7, 2014. It determined that the medical
evidence was insufficient to show that he sustained a diagnosed condition as a result of the
accepted February 7, 2014 employment incident.
On July 10, 2014 appellant requested reconsideration. In a letter dated July 12, 2014, he
indicated that he was submitting medical evidence.
By decision dated July 31, 2014, OWCP denied appellant’s request for reconsideration as
he did not raise an argument or submit evidence sufficient to warrant reopening his case for
further merit review under section 8128.
On appeal, appellant contends that he submitted medical evidence from Dr. Charles
Mercier, a Board-certified orthopedic surgeon, and an attending physician’s form report from
Dr. Albinson to OWCP, but that it was not contained in the case record. He notes that
Dr. Mercier wanted to perform knee surgery and also told him that it would be very expensive to
write a report addressing causation.

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of 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 and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.7 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.8
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained an injury to his right knee on February 7, 2014 when
he fell on stairs. There is no dispute that the February 7, 2014 incident occurred at the time,
place, and in the manner alleged. The issue, consequently, is whether the medical evidence
establishes that appellant sustained an injury as a result of this incident.
The Board finds that appellant has not established that the February 7, 2014 employment
incident resulted in an injury. The determination of whether an employment incident caused an
injury is generally established by medical evidence.9
On February 10, 2014 Dr. Albinson diagnosed knee, leg, and hand sprains at unspecified
sites. She found that appellant could work with restrictions. Dr. Albinson, however, did not
provide a history of the February 7, 2014 work incident or address causation. Medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of diminished
3

Id.

4

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

5

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

6

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

7

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

Id.

9

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

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probative value on the issue of causal relationship.10 Additionally, medical reports based on an
incomplete factual history of are little probative value.11
Appellant also submitted a March 12, 2014 MRI scan study. The diagnostic study,
however, does not address causation and thus is insufficient to establish causal relationship
between any diagnosed conditions and the February 7, 2014 work incident.12
By letter dated April 7, 2014, OWCP notified appellant of the type of medical evidence
required to establish his claim. Appellant did not, however, provide the medical evidence
necessary to substantiate his claim. Therefore, he has not met his burden of proof.
On appeal, appellant maintains that Dr. Mercier told him that it would cost him a lot of
money to obtain a medical opinion with a causation finding. He has the burden, however, to
establish causal relationship through the submission of rationalized medical opinion evidence.13
Appellant further asserts that he submitted additional medical evidence from Dr. Mercier
and Dr. Albinson to OWCP, but that it is not in the case record. He submitted new evidence with
his appeal. The Board, however, has no jurisdiction to review new evidence on appeal.14
However, 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 and
20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,15
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.16 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.17 When a claimant fails to meet one of the above standards, OWCP

10

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

11

See M.W., 57 ECAB 734 (2006).

12

See supra note 10.

13

John J. Montoya, 54 ECAB 306 (2003).

14

See 20 C.F.R. § 501.2(c).

15

Supra note 2. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.”
16

20 C.F.R. § 10.606(b)(3).

17

Id. at § 10.607(a).

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will deny the application for reconsideration without reopening the case for review on the
merits.18
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.19 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.20 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.21
ANALYSIS -- ISSUE 2
On July 10, 2014 appellant requested reconsideration and, on July 12, 2014, asserted that
he was submitting medical evidence in support of his request. In his request for reconsideration,
he did not show that OWCP erroneously applied or interpreted a specific point of law, nor did he
interpreted or advance a new and relevant legal argument, or submit any new and relevant
evidence. Appellant argued that he submitted additional medical evidence to OWCP, but OWCP
did not receive any medical evidence with his reconsideration request. As he did not meet any of
the necessary regulatory requirements, he is not entitled to further merit review.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
February 7, 2014 in the performance of duty. The Board further finds that OWCP properly
denied his request to reopen his case for further review of the merits under section 8128.

18

Id. at § 10.608(b).

19

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

20

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).
21

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the July 31 and June 9, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 23, 2015
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1222
Issued: December 21, 2010

Case Submitted on the Record

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

JURISDICTION
On March 30, 2010 appellant, through her representative, filed a timely appeal from the
March 15, 2010 nonmerit decision of the Office of Workers’ Compensation Programs, which
denied reconsideration. As the last merit decision was issued on September 25, 2009, more than
180 days prior to March 30, 2010, the date of this appeal, the Board does not have jurisdiction to
review the merits of the claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the nonmerit decision.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 18, 2004 appellant, then a 47-year-old processing clerk, sustained an injury in
the performance of duty when she fell in a parking lot. The Office accepted her claim for right
leg contusion, right ankle fracture, left ankle fracture and left ankle arthritis. Appellant received
compensation for temporary total disability on the periodic rolls.

On September 3, 2009 the Office issued a notice of proposed suspension because
appellant failed to report for a functional capacity evaluation on August 27, 2009 and a medical
second opinion examination on September 1, 2009 as directed.
On September 10, 2009 appellant’s representative stated that appellant attended the
August 27, 2009 functional capacity evaluation. He stated that she would attend and fully
cooperate with a rescheduled second opinion examination. Counsel added that the Office
minimized appellant’s request to have the second opinion examination rescheduled to an earlier
time:
“It was not merely for the convenience of picking a child up from school.
Dr. Moss’s office is 58 miles and more than 1 hour from [appellant’s] home.
[She] cannot leave her son alone for the time required to travel to and attend the
second opinion examination at the time it was scheduled. The Office has
previously accommodated [her] child care needs when scheduling second opinion
examinations.”
On September 11, 2009 the Office reissued the notice of proposed suspension, dropping
any reference to the functional capacity evaluation and citing appellant’s failure to report for the
September 1, 2009 second opinion examination as directed. It received the September 10, 2009
reply of appellant’s representative on September 14, 2009.
In a September 25, 2009 decision, the Office suspended appellant’s compensation for
failing to report for the second opinion examination scheduled for September 1, 2009. It noted
as follows:
“You did not attend your scheduled examination. By letter dated September 11,
2009, our Office gave you 14 days to provide written evidence justifying your
failure to attend or cooperate with this examination.
“You have not provided an explanation of your failure to attend or cooperate.”
On February 15, 2010 appellant’s representative requested reconsideration of the
September 25, 2009 suspension. Arguing that decision was incorrect because appellant provided
a good cause explanation for not attending the second opinion examination, he repeated what he
wrote on September 10, 2009. Appellant’s representative added that appellant agreed to attend
the second opinion examination before the Office suspended her benefits. Moreover, he argued
that she attended the rescheduled examination, so the Office should reinstate her compensation
retroactive to the date on which she agreed to attend.
In a decision dated March 15, 2010, the Office denied appellant’s request for
reconsideration. It found that appellant’s representative presented the same argument he made
on September 10, 2009, which the Office considered in its September 25, 2009 decision. The
Office denied a merit review of appellant’s case because she failed to submit a new and relevant
argument to counter the September 25, 2009 decision.
On appeal, appellant’s representative repeats his September 10, 2009 argument and adds:
“These arguments were not considered in the original decision dated September 25, 2009 and
therefore a merit review is warranted.”
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LEGAL PRECEDENT
The Office may review an award for or against payment of compensation at any time on
its own motion or upon application.1 The employee shall exercise this right through a request to
the district Office.2
An employee (or representative) seeking reconsideration should send the request for
reconsideration to the address as instructed by the Office in the final decision. The request for
reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.3
A request for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.4 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the request for reconsideration without reopening the case for a review on the merits.5
ANALYSIS
Following the Office’s September 25, 2009 decision suspending compensation,
appellant’s representative sent a timely request for reconsideration. The issue, therefore, is
whether that request met at least one of the standards for obtaining a merit review of appellant’s
case.
The request for reconsideration asserted that the Office’s September 25, 2009 decision
was incorrect because appellant provided a good cause explanation for not attending the second
opinion examination. Putting aside the particulars of that explanation and whether they
constituted good cause, the Board notes that the Office suspended appellant’s compensation on
September 25, 2009 without addressing the reasons appellant’s representative provided in his
September 10, 2009 reply, which the Office received on September 14, 2009. Indeed, the
Office’s September 25, 2009 decision stated: “You have not provided an explanation of your
failure to attend or cooperate.” The record shows that statement to be incorrect.
The Board finds that appellant’s request for reconsideration advanced a relevant legal
argument not previously considered by the Office, namely, that the Office may not suspend
1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.605.

3

Id. at § 10.606.

4

Id. at § 10.607(a).

5

Id. at § 10.608.

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compensation under 5 U.S.C. § 8123(d) without duly considering whether the explanation
provided establishes good cause and without addressing the reasons for its determination in its
final decision.6 Because appellant’s request for reconsideration meets at least one of the three
standards for obtaining a merit review of her case, the Board will reverse the Office’s March 15,
2010 decision and remand the case for a merit review and final decision on the suspension of
appellant’s compensation for failing to report to the September 1, 2009 second opinion
examination as directed.
CONCLUSION
The Board finds that the Office improperly denied appellant’s request for reconsideration.
Appellant is entitled to a merit review of her case.
ORDER
IT IS HEREBY ORDERED THAT the March 15, 2010 decision of the Office of
Workers’ Compensation Programs is reversed and the case remanded for further action
consistent with this opinion.
Issued: December 21, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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Id. at § 10.126 (an Office decision shall contain findings of fact and a statement of reasons); see Raymond C.
Dickinson, 48 ECAB 646 (1997) (holding that, although the Office did not review the employee’s stated reasons in
its decision to suspend compensation, an Office hearing representative duly considered the evidence on review).

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