United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Palatine, IL,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 11-1903
Issued: March 26, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On August 16, 2011 appellant timely appealed a July 14, 2011 merit decision of the
Office of Workers’ Compensation Programs (OWCP), which declined to consider her claim for
recurrence. The Board assigned the appeal Docket No. 11-1903.1
Appellant, a 60-year-old manual distribution clerk, filed a notice of recurrence of
disability on June 14, 2011. She claimed to have suffered a recurrence of disability on
August 16, 2010, causally related to an August 5, 1992 employment-related back injury.
Appellant submitted a June 7, 2011 report from Dr. Jacob Salomon, who diagnosed lumbosacral
disc disease and bilateral sciatica. He noted that appellant had a history of chronic low back pain
that started in 1992 and was an “accepted condition.” Dr. Salomon indicated that appellant
recently had recurrent back pain. He also noted that appellant’s case had been closed on
March 31, 2011. Dr. Salomon requested that appellant’s case be reopened so that he could
evaluate and treat her current back pain. He also provided a June 14, 2011 duty status report.
On July 14, 2011 an OWCP claims examiner advised appellant that her case (xxxxxx595)
had been formally denied by decision dated March 12, 1993. OWCP further explained that it
could not consider a recurrence on a denied claim and, therefore, no further action would be
1

Pursuant to the Federal Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101-8193 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over this case.

taken concerning the June 14, 2011 recurrence claim. It effectively denied appellant’s
recurrence claim. However, the July 14, 2011 correspondence did not provide any appeal rights.
The Board considers the claims examiner’s July 14, 2011 action a final, adverse decision subject
to review under 20 C.F.R. §§ 501.2(c) and 501.3(a).
Having been served with a copy of the notice of appeal, OWCP transferred the case
record to the Board on September 21, 2011. The fully-imaged case record consisted of eight
documents, the earliest of which was an April 20, 2011 letter from OWCP advising appellant
that her case record (xxxxxx595) had been retrieved from the Federal Records Center and a copy
was enclosed. Although appellant received a copy of her case record, OWCP did not provide the
complete record to the Board. The current record does not include, inter alia, a copy of the
March 12, 1993 decision that purportedly justified OWCP’s denial of appellant’s recurrence
claim.
The Board, therefore, finds that the appeal docketed as No. 11-1903 is currently not in
posture for decision. Because the record is incomplete, the Board is unable to render a fully
informed adjudication of the case. Accordingly, the case is remanded to OWCP for
reconstruction and proper assemblage of the case record, followed by the issuance of an
appropriate decision.
IT IS HEREBY ORDERED THAT the July 14, 2011 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this order of the Board.
Issued: March 26, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2


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

)
)
)
)
)
)
)
)

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

Docket No. 13-618
Issued: March 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 24, 2013 appellant, through her attorney, filed a timely appeal from a
December 26, 2012 decision of the Office of Workers’ Compensation Programs (OWCP)
denying a claim for an employment-related injury. 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 met her burden of proof to establish that she sustained
lower back conditions in the performance of duty on December 21, 2009, as alleged.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 29, 2011 appellant, then a 35-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging injury to her lower back due to a slip and fall on snow-covered
wooden stairs in the performance of duty on December 21, 2009. The employing establishment
controverted the claim.
In an April 13, 2011 letter, OWCP notified appellant of the deficiencies of her claim and
afforded 30 days for the submission of additional evidence.
Appellant submitted a September 23, 2010 surgical report from Dr. Edward J. Goldberg,
a Board-certified orthopedic surgeon, who diagnosed left herniated nucleus pulposus (HNP) at
L5-S1 and performed a left L5-S1 hemilaminotomy and discectomy that day. Dr. Goldberg
released her to light-duty work effective January 3, 2011 with restrictions. On March 30, 2011
he indicated that appellant had some residual symptoms from her disc herniation. Appellant
reported that she injured her back in December 2009.
On August 17, 2010 Dr. April Fetzer, a Board-certified physiatrist, diagnosed lumbar
HNP and lumbar myofascial pain.
A May 17, 2010 x-ray showed hypolordosis of the lumbar spine and a May 24, 2010
magnetic resonance imaging (MRI) scan revealed a protrusion at L5-S1.
Appellant submitted physical therapy notes dated October 18 through
November 24, 2010. A May 17, 2010 report from Dr. Sal J. Cirrincione, a chiropractor, noted
that she was not able to perform her regular work duties as of May 12, 2010.
By decision dated May 19, 2011, OWCP denied the claim finding that fact of injury had
not been established.
On August 15, 2011 appellant, through her attorney, requested reconsideration. In a
June 1, 2011 report, Dr. Cirrincione opined that lifting a tub of mail on May 11, 2010 ruptured a
weakened bulging lumbar disc that occurred on December 21, 2009 when she fell down snowcovered stairs. Appellant also submitted a July 6, 2011 report from Dr. Goldberg, who reiterated
the factual history of the December 21, 2009 incident and opined that her herniated disc was due
to the work-related accident.
By decision dated November 15, 2011, OWCP denied modification of its May 19, 2011
decision.
On August 8, 2012 appellant, through her attorney, requested reconsideration and
submitted additional physical therapy notes and chiropractic notes from Dr. Cirrincione. She
also submitted a June 20, 2011 electromyography (EMG) report and an MRI scan of the lumbar
spine dated June 20, 2011. In a January 18, 2012 report, Dr. Goldberg opined that appellant was
totally incapacitated and unable to work. In a report dated March 28, 2012, he diagnosed chronic
lower back pain and left lumbosacral radiculopathy. Dr. Goldberg opined that appellant’s
condition was causally related to the work incident of December 21, 2009. Appellant reported
that, when she slipped and fell, the stairs hit her lower back and she began to experience
2

immediate throbbing pain in her lower back and noticed three separately spaced welts on her
lower back. Dr. Goldberg stated that these welts were from the impact of the three stairs on
which she landed.
By decision dated December 26, 2012, OWCP denied modification of its November 15,
2011 decision finding that the evidence submitted was not sufficient to establish causal
relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 timely filed within the applicable time
limitation period of FECA, that an injury3 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 employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, 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 employee.6

2

Id. at §§ 8101-8193.

3

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
5

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

6

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

3

ANALYSIS
OWCP accepted that the employment incident of December 21, 2009 occurred at the
time, place and in the manner alleged. The issue is whether appellant’s lower back conditions
resulted from the December 21, 2009 employment incident. The Board finds that she did not
meet her burden of proof to establish a causal relationship between her lumbar condition and the
accepted employment incident.
Dr. Goldberg diagnosed left herniated disc at L5-S1, chronic lower back pain and left
lumbosacral radiculopathy. He found that appellant was totally incapacitated and unable to
work. On March 28, 2012 Dr. Goldberg opined that her condition was causally related to the
December 21, 2009 employment incident. Appellant reported that, when she slipped and fell, the
stairs hit her lower back and she began to experience immediate throbbing pain in her lower back
and noticed three separately spaced welts on her lower back. Dr. Goldberg did not provide
adequate medical rationale explaining the mechanism of her lower back conditions or how they
were caused or aggravated by slipping and falling down stairs on December 21, 2009. He noted
that appellant’s conditions occurred after slipping and falling at work, however, such generalized
statements do not establish causal relationship because they merely repeat her allegations and are
unsupported by adequate medical rationale explaining how this physical activity actually caused
the diagnosed conditions.7 Lacking thorough medical rationale on the issue of causal
relationship, Dr. Goldberg’s reports are of limited probative value and insufficient to establish
that appellant sustained an employment-related injury in the performance of duty on
December 21, 2009.
On August 17, 2010 Dr. Fetzer diagnosed lumbar HNP and lumbar myofascial pain. The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.8
Dr. Fetzer failed to address the issue of causal relationship between the December 21, 2009
employment incident and the diagnosed conditions. Therefore, the Board finds that appellant did
not meet her burden of proof with this submission.
The notes and reports dated May 17, 2010 and June 1, 2011 from Dr. Cirrincione, a
chiropractor, are of no probative value. The Board has held that a chiropractor is a physician as
defined under FECA to the extent that the reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist.9 There is no indication in the report that the doctor diagnosed a subluxation as
demonstrated by x-ray to exist. The Board finds that Dr. Cirrincione is not a physician as
defined under FECA and thus his reports do not constitute competent medical opinion evidence.

7

See K.W., Docket No. 10-98 (issued September 10, 2010).

8

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

9

20 C.F.R. § 10.311(a). Cf., D.S., Docket No. 09-860 (issued November 2, 2009).

4

Similarly, the physical therapy notes submitted do not constitute medical evidence as
they were not prepared by a physician.10 As such, the Board finds that appellant did not meet her
burden of proof with these submissions.
The May 17, 2010 x-ray, June 20, 2011 EMG report and MRI scans dated May 24, 2010
and June 20, 2011 are diagnostic in nature and do not address causal relationship. As such, the
Board finds that they are insufficient to establish appellant’s claim.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to the December 21, 2009 employment
incident, she has failed to meet her burden of proof to establish a claim.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. For the
reasons stated above, the Board finds that counsel’s arguments are not substantiated.
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 her burden of proof to establish that she
sustained lower back conditions in the performance of duty on December 21, 2009, as alleged.

10

Physical therapists are not physicians under FECA. See 5 U.S.C. § 8101(2).

5

ORDER
IT IS HEREBY ORDERED THAT the December 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Duluth, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-419
Issued: August 28, 2009

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 November 28, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 23, 2008. The record also contains a
November 7, 2008 decision, denying her application for reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established an employment-related disability
for August 4 and 8, 2008; and (2) whether the Office properly denied appellant’s application for
reconsideration without merit review of the claim.
FACTUAL HISTORY
On July 6, 2007 appellant, then a 41-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that she sustained injury on July 2, 2007 in the performance of duty when she
slipped and her left side struck an ice machine. The reverse of the claim form indicated that her

regular work schedule was two days per week at five hours per day. The Office accepted the
claim for contusions to the left arm and shin. According to a February 21, 2008 statement of
accepted facts, appellant had a February 26, 2002 employment injury and was currently working
four hours per day.
Appellant continued to work four hours per day and she filed claims for compensation
(Form CA-7) for intermittent dates. On August 27, 2008 she filed a CA-7 form for August 4
and 8, 2008. The accompanying time analysis CA-7a form indicated that appellant claimed
compensation for four hours on August 4, 2008 and four hours on August 11, 2008.
The medical evidence includes a note dated August 11, 2008 from Dr. Ethel Smith, an
internist, stating that appellant “reports she has been ill” since August 1, 2008 and she may return
to work August 18, 2008. In a note dated August 4, 2008, Dr. Randall Berinhout, a pain
management specialist, indicated that she was under his care and could return to work
August 8, 2008.
By decision dated October 23, 2008, the Office denied appellant’s claim for
compensation on August 4 and 11, 2008. Appellant requested reconsideration and submitted
additional evidence. In a report dated September 30, 2008, Dr. Ralph D’Auria, an orthopedic
surgeon, provided a history of the February 26, 2002 injury and an opinion as to a whole person
impairment.
In a decision dated November 7, 2008, the Office found that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed are causally related to the employment
injury.2 The term disability is defined as the incapacity because of an employment injury to earn
the wages the employee was receiving at the time of the injury, i.e., a physical impairment
resulting in loss of wage-earning capacity.3
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.4 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
1

5 U.S.C. §§ 8101-8193.

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
4

See Fereidoon Kharabi, 52 ECAB 291 (2001).

2

employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.5 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.6
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.7 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.8
ANALYSIS -- ISSUE 1
Appellant filed a claim for wage-loss compensation on August 4 and 8, 2008. It is her
burden of proof to submit probative medical evidence establishing an employment-related
disability on those dates. The evidence submitted prior to the October 23, 2008 Office decision
is of little probative value on the issue. Dr. Smith reported that appellant had been “ill” without
further explanation. Dr. Berinhout indicated only that appellant was under his care. None of the
physicians provided a rationalized medical opinion that she was disabled for the claimed dates
due to the accepted employment injuries. The Board finds that she did not meet her burden of
proof in this case.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,9
the Office’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
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 evidence not previously considered by [the Office].”10
Section 10.608(b) states that any application for review that does not meet at least one of the
5

Id.

6

Id.

7

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

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

9

5 U.S.C. § 8128(a) (providing 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”).
10

20 C.F.R. § 10.606(b)(2).

3

requirements listed in section 10.606(b)(2) will be denied by the Office without review of the
merits of the claim.11
ANALYSIS -- ISSUE 2
In her application for reconsideration appellant did not show that the Office erroneously
applied or interpreted a specific point of law or advance a relevant legal argument not previously
considered by the Office. With respect to additional evidence submitted, she did not submit any
new and relevant evidence to the issue presented.12 Dr. D’Auria did not address the issue of
disability on August 4 or 8, 2008.
The Board therefore finds that appellant did not meet any of the standards of 20 C.F.R.
§ 10.606(b)(2). Accordingly, the Office properly denied the application for reconsideration
without review of the merits of the claim.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish disability for
work on August 4 or 8, 2008. On application for reconsideration, appellant did not meet the
requirements of 20 C.F.R. § 10.606(b)(2) and the Office properly declined to reopen the case for
review of the merits of the claim.

11

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

12

The Board notes that evidence submitted on appeal to the Board cannot be considered; the Board’s jurisdiction
is limited to evidence that was before the Office at the time of its final decision. 20 C.F.R. § 501.2(c) (1999).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs’ dated November 7 and October 23, 2008 are affirmed.
Issued: August 28, 2009
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Paris, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1572
Issued: February 21, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 16, 2012 appellant, through her attorney, filed a timely appeal from a June 13,
2012 decision of the Office of Workers’ Compensation Programs (OWCP) affirming the
termination of her compensation benefits. 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 OWCP met its burden of proof to terminate appellant’s
compensation benefits for her accepted injury effective March 16, 2011.
FACTUAL HISTORY
On May 9, 2006 appellant, then a 31-year-old part-time flexible carrier, filed an
occupational disease claim alleging low back pain as a result of carrying a heavy mailbag and
1

5 U.S.C. §§ 8101-8193.

walking distances. She became aware of her condition on September 24, 2004 and realized it
was causally related to her employment on May 9, 2006. OWCP accepted appellant’s claim for
aggravation of mild lumbar scoliosis with intermittent left S1 radiculitis over multilevel bulging
lumbar discs. Appellant stopped work on August 20, 2008 and returned to limited duty on
May 11, 2009.
Appellant was treated by Dr. David K. Johnson, a Board-certified physiatrist, from
July 19, 2006 to March 23, 2007. Dr. Johnson diagnosed mild scoliosis, intermittent left S1
radiculitis with multilevel bulging discs in the lower lumbar spine and aggravation of the above
condition associated with her work activities. He performed an electromyogram (EMG), which
revealed no abnormalities and recommended medications and physical therapy. A July 13, 2006
magnetic resonance imaging (MRI) scan of the lumbar spine revealed mild multilevel
circumferential disc bulging from L3-4 through L5-S1 and mild disc desiccation at L5-S1. A
June 10, 2008 MRI scan revealed L5-S1 degeneration of the intervertebral disc without evidence
of herniation, stenosis or significant nerve root encroachment.
Appellant came under the treatment of Dr. James B. Hoover, a Board-certified orthopedic
surgeon, for low back pain which developed after years of carrying a mailbag and prolonged
walking at work. Dr. Hoover diagnosed lumbosacral neuritis, scoliosis, lumbosacral or sacroiliac
sprain and sacroiliac dysfunction on the left side. He opined that appellant’s work duties
including delivering mail aggravated her back problems and that she was totally disabled from
August 19, 2008 to May 11, 2009 when she returned to a limited-duty position.2 On May 19,
2009 Dr. Hoover opined that she reached maximum medical improvement. In reports
February 18 and March 2, 2010, he diagnosed lumbosacral neuritis and scoliosis. Dr. Hoover
noted that appellant experienced an exacerbation of her condition and was disabled from
February 28 to March 9, 2010.
On March 4, 2010 OWCP referred appellant to Dr. Gregory Fisher, a Board-certified
orthopedic surgeon, to determine if the accepted conditions had resolved. In a March 25, 2010
report, Dr. Fisher reviewed the records provided and statement of accepted facts. He noted
findings on examination of decreased range of motion of the lumbar region, positive Faber test
on the left side and minimally positive straight leg raises on the left side. Dr. Fisher diagnosed
mild degenerative disc disease at L5-S1 as noted on the MRI scan of June 2008 and myofascial
pain syndrome from chronic left sacroiliitis. He noted that the mild scoliosis over the lumbar
area was only noted on an x-ray by a chiropractor in 2006 and not confirmed on three MRI scans
taken in 2007 to 2008 and therefore was no longer present. Dr. Fisher asserted that the
intermittent left S1 radiculitis healed and resolved as it was not present on examination or the
EMG in 2007. He opined that the accepted work-related condition of aggravation of mild
lumbar scoliosis with intermittent left S1 radiculitis over multilevel bulging discs resolved as the
MRI scan in June 2008 revealed no disc herniations, stenosis or nerve root encroachment but
simply mild degenerative disc disease over L5-S1. Dr. Fisher noted that there were no objective
findings to support work-related residuals and appellant’s complaints of left S1 joint pain was

2

On August 11, 2009 the employing establishment
service/administrative support position, which she accepted.

2

offered

appellant

a

limited-duty

customer

due to chronic left sacroiliitis and unrelated to the September 28, 2004 work injury. He advised
that since the work-related conditions resolved medical treatment was not medically necessary.
OWCP found that a conflict of medical opinion existed between Dr. Hoover, who found
that appellant had residuals of her work-related injuries and was partially disabled and
Dr. Fisher, who determined that her accepted conditions had resolved and she could return to
work without restrictions.
On May 3, 2010 OWCP referred appellant to a referee physician, Dr. Alan R. Kohlhaas, a
Board-certified orthopedic surgeon. In a May 19, 2010 report, Dr. Kohlhaas reviewed the
record, including the history of her work injury and statement of accepted facts. In reviewing the
record, he detailed findings of diagnostic testing, including the normal July 2006 EMG and the
July 2006 lumbar MRI scan, which made no mention of scoliosis. Examination revealed
ambulation without difficulty, no sign of scoliosis, tenderness of the left S1 joint, limited range
of motion of the lumbar spine and negative straight leg raises. Dr. Kohlhaas opined that
appellant did not have residuals of the accepted aggravation of mild lumbar scoliosis with
intermittent left S1 radiculitis as the physical examination was normal. He noted that there was
no x-ray confirmation of scoliosis and the left S1 radiculitis was no longer present on
examination or EMG study. Dr. Kohlhaas further noted that multilevel bulging discs were
present based on the lumbar MRI scans but they had resolved clinically and were no longer
symptomatic. He advised that appellant could not return to her regular duties as a part-time
flexible letter carrier because of the lifting required but could return to work subject to
restrictions. Dr. Kohlhaas advised that she required no further treatment for the accepted work
conditions of September 28, 2004.
Appellant submitted reports from Dr. Hoover dated March 24 to August 6, 2010.
Dr. Hoover diagnosed lumbosacral neuritis, scoliosis, sacroiliitis and sacroiliac dysfunction as a
consequence of her work injury. He opined that all the diagnoses were a direct result of
appellant’s work injury and work activities. In a May 3, 2010 duty status report, Dr. Hoover
diagnosed neuritis and advised that she could return to work part time with restrictions.
OWCP requested a supplemental report from Dr. Kohlhaas clarifying his findings. In a
November 12, 2010 report, Dr. Kohlhaas noted that the physical findings of tenderness of the left
S1 joint were not related to the accepted work injury and were subjective in nature.
In reports dated November 12, 2010 and January 17, 2011, Dr. Hoover diagnosed
lumbosacral neuritis, scoliosis and sacroiliitis and opined that she was temporarily disabled due
to her work injury. He advised that her employer had no modified work for her starting
September 8, 2010.
On January 28, 2011 OWCP proposed to terminate appellant’s compensation benefits
finding that Dr. Kohlhaas found that her work-related condition had resolved without residuals.
In a February 10, 2011 statement, appellant asserted that she could no longer carry mail.
She disagreed with the proposed termination, contending that her lumbosacral neuritis had not
resolved. In a January 26, 2010 report, Dr. Hoover diagnosed scoliosis, lumbosacral neuritis,
sacroiliitis, myofascial pain syndrome, nonallopathic lesions in the sacral region and sacroiliac

3

region sprain. He opined that the diagnosed conditions were the result of the work injury of
September 2004 and they remained symptomatic and caused disability. In a February 4, 2011
report, Dr. Hoover reiterated the diagnosed conditions requiring work restrictions.
In a decision dated March 16, 2011, OWCP terminated appellant’s compensation benefits
effective that day finding that the medical evidence established that she had no continuing
residuals of her accepted conditions.
On March 25, 2011 appellant requested an oral hearing, which was held on
June 21, 2011. In reports dated March 16 and April 27, 2011, Dr. Hoover listed her diagnoses
and opined that she was permanently disabled due to her work injury. In a May 20, 2011 report,
he reviewed Dr. Fisher’s report and disagreed with his conclusion that appellant’s work-related
condition resolved. Dr. Hoover noted objective evidence supported that her conditions were
active.
In a decision dated August 30, 2011, an OWCP hearing representative affirmed the
March 16, 2011 decision.
Appellant appealed her claim to the Board. In a decision dated May 23, 2012, the Board
set aside the August 30, 2011 decision, finding that OWCP failed to consider all the evidence
submitted at the time of the decision.3
In a decision dated June 13, 2012, an OWCP hearing representative affirmed the
March 16, 2011 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.4 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.5 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, which requires further
medical treatment.6
ANALYSIS
OWCP accepted appellant’s claim for aggravation of mild lumbar scoliosis with
intermittent left S1 radiculitis over multilevel bulging lumbar disc. It determined that a conflict
3

Docket No. 12-13 (issued May 23, 2012).

4

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

5

Mary A. Lowe, 52 ECAB 223 (2001).

6

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

4

in medical opinion existed between appellant’s attending physician, Dr. Hoover, who indicated
that she sustained residuals of her work-related injuries and was disabled from work and
Dr. Fisher, who determined that her accepted conditions had resolved and she could return to
work without restrictions related to her accepted injuries. OWCP referred appellant to
Dr. Kohlhaas to resolve the conflict.
In a May 19, 2010 report, Dr. Kohlhaas reviewed appellant’s history, reported findings
and noted that she exhibited no objective complaints or findings due to the accepted conditions.
He opined that the physical examination was normal and she did not have residuals of the
accepted work-related condition of aggravation of mild lumbar scoliosis with intermittent left S1
radiculitis over multilevel bulging lumbar disc. Dr. Kohlhaas noted that there was no x-ray
confirmation of scoliosis and the left S1 radiculitis was no longer present on examination or
EMG study. He further noted that multilevel bulging discs were present based on the lumbar
MRI scans; however, there were no clinical findings and therefore they were no longer
symptomatic. Dr. Kohlhaas advised that appellant could not return to her regular duties as a
part-time flexible letter carrier because of the lifting required but could return to work subject to
restrictions. He advised that she required no further treatment for the accepted work conditions
of September 28, 2004. In a supplemental report dated November 12, 2010, Dr. Kohlhaas noted
that the physical findings were not related to the accepted work injury and were subjective in
nature.7
The Board finds that, under the circumstances of this case, the opinion of Dr. Kohlhaas is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that disabling residuals of appellant’s work-related conditions
have ceased. Where there exists a conflict of medical opinion and the case is referred to an
impartial specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, is entitled to special
weight.8
The Board finds that Dr. Kohlhaas had full knowledge of the relevant facts and evaluated
the course of appellant’s condition. Dr. Kohlhaas clearly opined that appellant had no workrelated disability. His opinion as set forth in his reports of May 19 and November 12, 2010 is
probative evidence and reliable. The Board finds that Dr. Kohlhaas’ opinion constitutes the
special weight of the medical evidence and supports OWCP’s termination of wage-loss and
medical benefits for the accepted conditions.
In reports from January 26 to February 4, 2011, Dr. Hoover set forth appellant’s
diagnoses and stated that they were the result of the work injury of September 2004. He set forth
work restrictions that he attributed to residents of her accepted conditions. While Dr. Hoover
generally supported that appellant continuing symptoms due to the work injury, his opinion on
7

See Guiseppe Aversa, 55 ECAB 164 (2003) (where OWCP secures an opinion from an impartial medical
specialist for the purpose of resolving a conflict in the medical evidence and the opinion from such specialist
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental report from the specialist
for the purpose of correcting the defect in the original opinion).
8

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a).

5

causal relationship was conclusory without any additional explanation as to how the accepted
conditions remained symptomatic or caused disability.9 The Board notes that OWCP did not
accept lumbosacral neuritis or sacroiliitis as being work related.10 Moreover, Dr. Hoover was on
one side of the conflict that gave rise to the referral to Dr. Kohlhaas. His reports are insufficient
to overcome the opinion of Dr. Kohlhaas or to create a new medical conflict.11
The Board finds that Dr. Kohlhaas’ opinion constitutes the weight of the medical
evidence.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective March 16, 2011.

9

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
10

See Jaja K. Asaramo, 55 ECAB 200 (2004) (for conditions not accepted or approved by OWCP, the claimant
bears the burden of proof to establish that the condition is causally related to the employment injury).
11

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Hoover’s report did not contain new findings or rationale
on causal relationship upon which a new conflict might be based.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 13, 2012 is affirmed.
Issued: February 21, 2013
Washington, DC

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

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

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

7


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

)
)
)
)
)
)
)
)

Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1209
Issued: March 24, 2022

Case Submitted on the Record

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

JURISDICTION
On August 5, 2021 appellant, through counsel, filed a timely appeal from a June 16, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than five
percent permanent impairment of the left lower extremity, for which he has received schedule
award compensation.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 17, 2017 appellant, then a 55-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he sprained his left thigh and upper leg when he lost
his footing and slipped on mud and ice while in the performance of duty. He stopped work on
January 18, 2017. OWCP accepted the claim for a strain of the left thigh muscle. On June 30,
2017 appellant underwent an OWCP-authorized left L3-4 foraminotomy and microdiscectomy.
OWCP subsequently expanded acceptance of the claim to include L3-4 disc protrusion and lumbar
radiculopathy secondary to left L3-4 disc protrusion. It paid appellant wage-loss compensation on
the supplemental rolls from March 4 until May 26, 2017.
In an impairment evaluation report dated April 25, 2019, Dr. Neil Allen, a Board-certified
internist and neurologist, obtained a history of appellant’s January 17, 2017 employment injury
and discussed his continued complaints of back pain radiating into the left thigh. On examination
he found some thigh and calf atrophy, intact sensation, and full strength of the lumbar spine and
left hip. To ascertain the range of motion (ROM), Dr. Allen performed three measurements of the
left hip, with the highest measurement yielding 70 degrees flexion, plus 6 degrees extension, 45
degrees external rotation, 55 degrees internal rotation, 61 degrees abduction, and 24 degrees
adduction. Dr. Allen found 10 percent permanent impairment of the left lower extremity due to
loss of ROM. Referencing The Guides Newsletter, Rating Spinal Nerve Extremity Impairment
Using the Sixth Edition (July/August 2009) (The Guides Newsletter), which is a supplemental
publication of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides),4 Dr. Allen found no sensory or motor impairment of
either lower extremity due to a spinal condition. He determined that using the diagnosis-based
impairment (DBI) method for the diagnosis of hip strain yielded a lower extremity impairment
rating between five and seven percent. Dr. Allen reported that the ROM method resulted in a
greater impairment rating.
On May 22, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.

3

Docket No. 20-1146 (issued December 18, 2020).

4

(6 th ed. 2009).

2

On October 8, 2019 5 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving
as a DMA, concurred with Dr. Allen’s finding that appellant had no impairment of either lower
extremity due to a spinal nerve impairment under The Guides Newsletter. He found that ROM
was not permitted as an alternative impairment rating for the applicable class of diagnosis (CDX)
of left hip strain. Dr. Katz found that a CDX of hip strain with mild motion deficits was a Class 1
impairment, which yielded a default value of two percent of the left lower extremity according to
Table 16-4 on page 512 of the A.M.A., Guides. He applied a grade modifier for functional history
(GMFH) and a grade modifier for physical examination (GMPE) of one each and indicated that a
grade modifier for clinical studies (GMCS) was inapplicable. Dr. Katz utilized the net adjustment
formula and found no change from the default value of two percent. He concluded that appellant
had two percent permanent impairment of the left lower extremity.
By decision dated October 22, 2019, OWCP granted appellant a schedule award for two
percent left lower extremity permanent impairment. The period of the award ran for 5.76 weeks
from April 25 to June 4, 2019.
On November 19, 2019 counsel requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review and submitted an addendum report
from Dr. Allen dated November 14, 2019, in which he opined that the ROM method yielded 10
percent permanent impairment due to loss of hip flexion, and thus was preferable to the DBI
method as it resulted in a higher impairment rating.
By decision dated March 23, 2020, an OWCP hearing representative affirmed the
October 22, 2019 schedule award decision.
On May 13, 2020 counsel filed an appeal with the Board. By decision dated December 18,
2020, the Board set aside the March 23, 2020 decision and remanded the case to OWCP for
clarification from the DMA as to whether the accepted conditions included a left hip strain and
whether appellant had a mild or moderate motion deficit of the left hip. 6
On January 6, 2021 OWCP requested clarification from the DMA, Dr. Katz, as to whether
the accepted conditions included a left hip strain. It also requested h e clarify his left lower
extremity impairment rating using Table 16-4 and to explain his finding that appellant had only
mild motion deficit given that Dr. Allen found he had moderately reduced hip ROM.
In an addendum dated January 7, 2021, Dr. Katz noted that appellant’s accepted left thigh
strain encompassed the left hip. He again found that ROM was not permitted as an alternative
impairment rating for the applicable CDX of left hip strain. Dr. Katz found that a CDX for hip
strain with moderate motion deficits, which is a Class 1 impairment, yielded a default value of five
percent of the left lower extremity according to Table 16-4 on page 512 of the A.M.A., Guides.
He applied a GMFH and a GMPE of one each and indicated that GMCS was inapplicable. Dr. Katz

The report notes the year as “2018” which appears to be a typographical error as OWCP referred the claim to the
DMA on September 26, 2019.
5

6

Supra note 3.

3

utilized the net adjustment formula and found no change from the default value of five percent.
He concluded that appellant had five percent permanent impairment of the left lower extremity.
By decision dated January 27, 2021, OWCP granted appellant an additional three percent
schedule award for left lower extremity permanent impairment, for a total five percent left lower
extremity permanent impairment. The period of the award ran for 8.64 weeks from June 5 to
August 4, 2019.
On February 25, 2021 counsel requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated June 16, 2021, OWCP’s hearing representative affirmed the January 27,
2021 schedule award decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 7 and its implementing regulations 8 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified
edition of the A.M.A., Guides, published in 2009. 9 The Board has approved the use by OWCP of
the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the
body for schedule award purposes. 10
In determining permanent impairment of the lower extremities under the sixth edition of
the A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the
lower extremity to be rated. With respect to the hip, the relevant portion of the leg for the present
case, reference is made to Table 16-4 (Hip Regional Grid) beginning on page 512. 11 After the
CDX is determined from the Hip Regional Grid (including identification of a default grade value),
the net adjustment formula is applied using GMFH, GMPE, and GMCS. The net adjustment

7

Supra note 2.

8

20 C.F.R. § 10.404.

9

For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
10

L.E., Docket No.20-1505 (issued June 7, 2021); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
11

A.M.A., Guides 512-15 (6 th ed. 2009).

4

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 Under Chapter 2.3, the
evaluators are directed to provide reasons for their impairment rating choices, including the
choices of diagnoses from regional grids and calculations of modifier scores. 13
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than five
percent permanent impairment of his left lower extremity, for which he previously received
schedule award compensation.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s March 23, 2020 merit decision because the
Board considered that evidence in its December 18, 2020 decision. Findings made in prior Board
decisions are res judicata absent any further review by OWCP under section 8128 of FECA. 15
On prior appeal, the Board remanded the case to OWCP to request clarification from the
DMA as to whether the accepted conditions include a left hip strain, and whether appellant had a
mild or moderate motion deficit of the left hip. In a report dated January 18, 2021, Dr. Katz again
found that ROM was not permitted as an alternative impairment rating for the diagnosis of left hip
strain. Dr. Katz found that a CDX of hip strain with moderate motion deficits, which is a Class 1
impairment, yielded a default value of five percent of the left lower extremity according to Table
16-4 on page 512 of the A.M.A., Guides. He applied a GMFH and a GMPE of one each and
indicated that GMCS was inapplicable. Dr. Katz utilized the net adjustment formula and found no
change from the default value of five percent. He concluded that appellant had five percent
permanent impairment of the left lower extremity.
The Board finds that Dr. Katz adequately explained how he arrived at his rating of
permanent impairment by listing specific tables and pages in the A.M.A., Guides. The Board also
finds that Dr. Katz properly interpreted and applied the standards of the sixth edition of the
A.M.A., Guides to conclude that appellant qualified for five percent permanent impairment of the
left lower extremity. Dr. Katz’s opinion therefore represents the weight of the medical evidence
and supports that appellant has five percent permanent impairment of the left lower extremity.

12

Id. at 515-22.

13

Id. at 23-28.

14

See supra note 9 at Chapter 2.808.6(f) (March 2017).

15

T.R., Docket No. 20-0588 (issued June 25, 2021); A.G., Docket No. 18-0329 (issued July 26, 2018); Clinton E.
Anthony, Jr., 49 ECAB 476 (1998).

5

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than five
percent permanent impairment of his left lower extremity, for which he previously received
schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Campbell, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-177
Issued: March 24, 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 November 3, 2014 appellant filed a timely appeal of the October 3, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days has elapsed since the most recent merit decision dated October 9, 2013 and the filing of this
appeal on November 3, 2014, the Board lacks jurisdiction to review the merits of the claim
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
without a merit review.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 21, 2000 appellant, then a 58-year-old automotive worker, filed a Form CA-1,
traumatic injury claim, alleging that on March 24, 2000 while unloading engine parts from a
pallet he slipped and twisted his right thigh. OWCP accepted his claim for meralgia paresthetica.
Appellant did not stop work.
Appellant was treated by Dr. Curtis J. Hagenan, a Board-certified neurologist, on
April 17, 2000, for numbness and paresthesias over the anterolateral aspect of his right thigh. He
reported offloading engine parts from a pallet and twisting and feeling right thigh discomfort,
numbness, and dysesthesias. Dr. Hagenan diagnosed meralgia paresthetica. He opined that
when appellant slipped two weeks prior he irritated the right lateral femoral cutaneous nerve in
the inguinal region producing sensory disturbance in the thigh. In an attending physician’s
report dated April 17, 2000, Dr. Hagenan diagnosed meralgia paresthetica. He noted with a
checkmark “yes” that appellant’s condition was caused or aggravated by a work activity.
On September 4, 2013 appellant filed a Form CA-2a, notice of recurrence of disability,
asserting that since the date of his original injury he had continuous numbness and tingling on
the upper right leg. He did not stop work.
By letter dated September 9, 2013, OWCP advised appellant that his claim was originally
received as a simple, uncontroverted case which resulted in minimal or no time loss from work.
Appellant’s claim had been administratively handled to allow medical payments up to $1,500.00;
however, the merits of the claim had not been formally adjudicated. OWCP advised that,
because he had filed a notice of recurrence, his claim would be formally adjudicated. It
requested that appellant submit additional information including a comprehensive medical report
from his treating physician which included a reasoned explanation as to how the specific work
factors or incidents identified by appellant had contributed to his claimed right thigh injury.
In a statement dated September 9, 2013, appellant indicated that his condition was related
to the injury that occurred on March 24, 2000 and noted the affected area on his thigh had gotten
worse. He claimed to not have sustained any other injury. Appellant stated that his condition
was not a recurrence but a continuation of symptoms from the original injury. He submitted an
attending physician’s report from Dr. Hagenan dated April 17, 2000 and a Form CA-1 notice of
traumatic injury, previously of record. Appellant submitted a note from a physician assistant at
the employing establishment health clinic dated April 19, 2000 finding that he could return to
full duty.
On October 9, 2013 OWCP accepted appellant’s claim for meralgia paresthetica, and by
a second decision of the same date it also denied appellant’s claim for a recurrence of disability.
It determined that he had failed to establish disability due to a material change/worsening of his
accepted work-related conditions. OWCP found that there was no medical evidence supporting
that appellant continually sought treatment for the injury or any medical reports addressing how
his current need for treatment was due to his work duties and not to other factors
Appellant requested reconsideration on September 30, 2014 and asserted that he
continued to have residuals of his work-related injury of March 24, 2000. He noted that his

2

physician had retired, that he was scheduling an appointment with the new physician, and that he
would provide documentation in support of his claim. No additional evidence was submitted.
In an October 3, 2014 decision, OWCP denied appellant’s request for reconsideration on
the grounds that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,2 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or his written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.4
ANALYSIS
OWCP denied appellant’s recurrence of disability claim on the grounds that he failed to
establish that he was disabled due to a material change or worsening of his accepted work-related
conditions. Thereafter, it denied his reconsideration request, without a merit review.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In his request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. He did not identify a specific point of law or show that it was
erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument.
In his letter dated September 30, 2014, appellant asserted that he still had residuals of his
work-related injury of March 24, 2000. He advised that his physician retired and that he would
provide documentation in support of his claim after seeing his new physician. No additional
2

Id. at § 8128(a).

3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b).

3

evidence was submitted prior to the decision. These assertions do not show a legal error by
OWCP or a new and relevant legal argument. The underlying issue in this case is whether
appellant sustained a recurrence of disability causally related to his March 24, 2000 work injury.
That is a medical issue which must be addressed by relevant new medical evidence.5 Appellant
did not submit any new and relevant medical evidence in support of his claim. He noted that
new evidence would be submitted but no additional evidence was received.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, appellant’s asserts that he continued to have residuals of his accepted work
injury of March 24, 2000 and should be compensated. He further asserts that OWCP did not
provide him adequate time to submit medical evidence in support of his claim. As explained, the
Board does not have jurisdiction to review the merits of the claim. Appellant did not submit any
evidence or argument in support of his reconsideration request that warrants reopening of his
claim for a merit review under 20 C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.

5

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

4

ORDER
IT IS HEREBY ORDERED THAT the October 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Boston, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-901
Issued: November 13, 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 23, 2009 appellant filed a timely appeal from a July 21, 2008 decision of the
Office of Workers’ Compensation Programs that denied his claim and a January 21, 2009
decision that denied his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an employment-related back injury on May 25, 2004; and (2) whether the Office
properly refused to reopen appellant’s claim for further review of the merits pursuant to 5 U.S.C.
§ 8128(a). On appeal appellant contends that his claim should be accepted.
FACTUAL HISTORY
On June 1, 2004 appellant, then a 46-year-old law enforcement officer, field office
director, filed a Form CA-1, traumatic injury claim, with his employing establishment, alleging

that on May 25, 2004 he pulled a muscle in his left lower back with pain radiating into the groin
and left leg while lifting a plastic crate filled with files. John Lawyer, a witness, advised that on
May 25, 2004 appellant reported to him that he strained his lower back. In an attached statement
dated June 5, 2008, appellant asserted that he completed the claim form and forwarded it to
employing establishment headquarters where it was lost. He noted that he used 168 hours of
leave due to the injury. In support of his claim, appellant submitted emergency department notes
dated May 29, 2004 with illegible signatures that reported a history that three weeks previously
appellant had scrotal and left testicular pain that had resolved and on the prior Tuesday had left
leg pain with lifting. Physical examination demonstrated normal testicles, normal left thigh,
normal reflexes, and no leg or vertebral tenderness. Left groin pain was diagnosed, and
medication was prescribed. A June 12, 2004 magnetic resonance imaging (MRI) scan of the
lumbar spine demonstrated annular bulges and facet hypertrophy at L4-5 and L5-S1 which
caused narrowing of the exit foramen bilaterally. On June 21, 2004 Dr. John B. Sledge, III, a
Board-certified orthopedic surgeon, advised that appellant could return to work on
June 22, 2004. Appellant filed a schedule award claim on June 6, 2008.
By letter dated June 19, 2008, the Office informed appellant of the evidence needed to
support his claim, and in a separate letter also dated June 19, 2008, informed him that, as his
claim had not been adjudicated or accepted, the Office would not take action on the schedule
award claim.
Appellant submitted a June 9, 2004 treatment note in which Dr. Sledge noted that
appellant had a two to three week history of left groin and leg pain and now had numbness in the
proximal anterior thigh. Physical examination demonstrated no tenderness to palpation. Straight
leg raising was negative. An MRI scan was recommended. On June 21, 2004 Dr. Sledge
diagnosed left anterior thigh pain, numbness and weakness unrelated to disc herniation, L4-5 and
L5-S1 mild foraminal stenosis, and spondylosis of the lumbar spine without lower back pain. On
July 28, 2004 he reported that, after nearly one month of rest, appellant’s leg pain had gone but
that he had a bit of right low back pain. Dr. Sledge provided physical examination findings,
noted his review of the MRI scan films, and recommended physical therapy. In an October 13,
2004 treatment note, he advised that appellant was seen in follow-up and noted an almost
complete resolution of his symptoms with no leg pain, numbness or tingling and occasional
achiness and stiffness in his low back in the morning. Dr. Sledge recommended home exercise.
By decision dated July 21, 2008, the Office found that May 25, 2004 employment lifting
incident occurred but denied the claim on the grounds that the medical evidence was insufficient
to establish that appellant sustained an employment injury. In a separate July 21, 2008 letter,
appellant was notified that, as his claim was denied, he was not entitled to a schedule award. On
October 10, 2008 he requested reconsideration. In a nonmerit decision dated January 21, 2009,
the Office denied his reconsideration request.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that 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. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.2
Office regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.3 To determine whether an employee sustained a traumatic injury in the
performance of duty, the Office 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.
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. 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.4
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.6 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 causal relationship.7
1

5 U.S.C. §§ 8101-8193.

2

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

3

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

4

Gary J. Watling, supra note 2.

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

7

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

3

ANALYSIS -- ISSUE 1
The Board finds that the May 25, 2004 lifting incident occurred in the performance of
duty. The medical evidence of record, however, is insufficient to establish that appellant
sustained an injury or medical condition caused by this incident. The May 29, 2004 emergency
room report contains illegible signatures, and the Board has held that medical reports lacking
proper identification cannot be considered as probative evidence in support of a claim.8 None of
Dr. Sledge’s reports provided a cause of the diagnosed condition, and medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.9 Likewise, the MRI scan studies did not include an
opinion regarding the cause of any diagnosed condition.10
To meet his or her burden of proof, an employee must submit a physician’s rationalized
medical opinion on the issue of whether the alleged injury was caused by the employment
incident.11 The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to
federal employment and such relationship must be support with affirmative evidence, explained
by medical rationale and be based upon a complete and accurate medical and factual background
of the claimant.12 Appellant did not do so in this case and thus did not establish the critical
element of causal relationship.13
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.14 Section 10.608(a) of the Code of Federal Regulations provides that
a timely request for reconsideration may be granted if the Office determines that the employee
has presented evidence and/or argument that meets at least one of the standards described in
section 10.606(b)(2).15 This section provides that the application for reconsideration must be
submitted in writing and set forth arguments and contain evidence that either: (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

8

D.D., 57 ECAB 734 (2006).

9

Willie M. Miller, 53 ECAB 697 (2002).

10

Id.

11

Gary J. Watling, supra note 2.

12

Patricia J. Glenn, 53 ECAB 159 (2001).

13

Jacqueline M. Nixon-Steward, supra note 5.

14

5 U.S.C. § 8128(a).

15

20 C.F.R. § 10.608(a).

4

evidence not previously considered by the Office.16 Section 10.608(b) provides that when a
request for reconsideration is timely but fails to meet at least one of these three requirements, the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.17
ANALYSIS -- ISSUE 2
In his October 20, 2008 request for reconsideration, appellant merely checked on an
Office form that he requested reconsideration. He therefore did not allege or demonstrate that
the Office erroneously applied or interpreted a specific point of law, or advance a relevant legal
argument not previously considered by the Office. Consequently, appellant is not entitled to a
review of the merits of his claim based on the first and second above-noted requirements under
section 10.606(b)(2).18 With respect to the third above-noted requirement under section
10.606(b)(2), appellant submitted no additional evidence. As appellant did not show that the
Office erroneously applied or interpreted a specific point of law, advance a relevant legal
argument not previously considered by the Office, or submit relevant and pertinent new evidence
not previously considered by the Office, the Office properly denied his reconsideration request.19
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury causally related to the May 25, 2004 employment incident and that the Office
properly refused to reopen appellant’s case for further consideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

16

Id. at § 10.608(b)(1) and (2).

17

Id. at § 10.608(b).

18

Id. at § 10.606(b)(2).

19

Supra note 16; see Susan A. Filkins, 57 ECAB 630 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 21, 2009 and July 21, 2008 be affirmed.
Issued: November 13, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.S., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY,
Redstone Arsenal, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-972
Issued: October 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 25, 2014 appellant filed a timely appeal from the December 23, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied authorization for surgery.2

1

5 U.S.C. § 8101 et seq.

2

Id. at § 8103.

FACTUAL HISTORY
On February 2, 2005 appellant, a 52-year-old commissary management specialist,
sustained an injury in the performance of duty when she lifted a case of groceries from a pallet to
a cart. OWCP accepted her claim for lumbar strain and paid compensation for a period of wage
loss.
In 2013 Dr. Larry M. Parker, appellant’s Board-certified orthopedic surgeon, requested
authorization to perform low back surgery. Appellant had a history of chronic back pain and
right lower extremity pain. She had received multiple lumbar epidural steroid injections and she
took chronic pain medication. Appellant had associated spinal stenosis and lumbar radicular
syndrome at L5 in the right lower extremity. She had advanced degenerative disc disease with
bone on bone at L5-S1. Dr. Parker found that she was a candidate for an anterior lumbar
interbody fusion at that level.
An OWCP medical adviser reviewed the matter and believed that any benefits from
spinal fusion surgery would be untimely. He noted that appellant was 60 years old with an
employment-related lumbar strain, a recent imaging study that was entirely benign and a
neurological examination that was completely within normal limits.
Dr. Parker, in a later report, disagreed with findings that appellant was a candidate for
surgery given the fact that she failed 10 years of conservative management.
In a decision dated December 23, 2013, OWCP denied authorization for surgery. It
explained that it could not grant authorization for surgery based on its medical adviser’s review
of the evidence.
LEGAL PRECEDENT
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances and supplies prescribed
or recommended by a qualified physician that the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.3 OWCP must therefore exercise discretion in determining whether the
particular service, appliance or supply is likely to affect the purposes specified in FECA.4 The
only limitation on OWCP’s authority is that of reasonableness.5

3

Id. at § 8103(a).

4

See Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad discretionary authority in the administration of
FECA and must exercise that discretion to achieve the objectives of section 8103).
5

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

2

ANALYSIS
OWCP accepted that the February 2, 2005 incident at work caused a lumbar strain and
nothing more. It paid her compensation benefits on the basis of the accepted soft-tissue injury.
Eight years later, Dr. Parker, appellant’s orthopedic surgeon, requested authorization to
perform low back surgery. Appellant had a history of chronic back pain and right lower
extremity pain. She had associated spinal stenosis and lumbar radicular syndrome at L5 in the
right lower extremity. Appellant had advanced degenerative disc disease with bone on bone at
L5-S1. She had failed 10 years of conservative treatment.
Although Dr. Parker made the case for an anterior lumbar interbody fusion at the L5-S1
level, he did not explain what this had to do with a lumbar muscle strain in 2005, nor did he
make it clear how spinal fusion surgery was likely to cure, give relief, reduce the degree or the
period of any disability or aid in lessening the amount of any monthly compensation paid on
account of appellant’s 2005 lumbar strain.
Based upon his review of the medical evidence of record, OWCP’s medical adviser
concluded that, based on appellant’s age, a benign imaging study and a normal neurological
examination, appellant would not benefit from surgery.
Dr. Parker did not provide a full history of appellant’s back condition from the time of
injury to his recommendation for surgery in 2013. He did not fully address the diagnostic testing
to explain how a soft tissue strain of the lumbar spine, as accepted by OWCP, developed or
contributed to the degenerative disc disease found at L5-S1 for which surgery was advised.
Absent sufficient explanation on the issue of causal relationship, as noted by the medical adviser,
the Board finds that OWCP did not abuse its discretion by denying Dr. Pollen’s surgical
recommendation.
CONCLUSION
The Board finds that OWCP properly denied authorization for surgery.

3

ORDER
IT IS HEREBY ORDERED THAT the December 23, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 15, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 17-0145
Issued: May 3, 2017

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 28, 2016 appellant, through counsel, filed a timely appeal from an August 31,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Board docketed the appeal as 17-0145.
The Board, having duly considered the matter, concludes that the case is not in posture
for decision. On June 16, 2015 appellant filed an occupational disease claim (Form CA-2) under
File No. xxxxxx828 alleging that she sustained bilateral carpal tunnel syndrome as a result of her
federal employment. OWCP denied this claim by decision dated July 30, 2015, finding
insufficient medical evidence to establish causal relationship. It noted reviewing evidence in the
current case record as well as evidence in File No. xxxxxx825, which had been accepted for a
left thumb sprain and ganglion cyst. On October 23, 2015 appellant requested reconsideration.
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

In a November 6, 2015 decision, OWCP denied her reconsideration request. It noted that
appellant had a prior claim for a bilateral wrist injury under File No. xxxxxx299 which was
accepted for bilateral carpal tunnel syndrome. OWCP found that her request for reconsideration
was insufficient to warrant reopening her claim for further merit review under 5 U.S.C.
§ 8128(a). On May 23, 2016 counsel requested reconsideration. By decision dated August 31,
2016, OWCP denied modification of the July 30, 2015 decision, again finding that causal
relationship had not been established.
The Board notes that OWCP procedures provide for the doubling of a claim when a new
injury is reported for an employee who previously filed an injury claim for a similar condition
for the same part of the body.2 As it has accepted appellant’s prior claims which include a claim
for bilateral carpal tunnel syndrome under File No. xxxxxx299 and a left thumb sprain and
ganglion cyst under File No. xxxxxx825, it should have combined the case files in accordance
with its procedures.3
As OWCP failed to properly associate the evidence from all of appellant’s case files, the
Board is unable to properly address the relevant issue in this case. The case is thus not in posture
for decision as the record before the Board is incomplete and would not permit an informed
adjudication of the case. On remand, OWCP should combine the present case record, File No.
xxxxxx828, with File Nos. xxxxxx825 and xxxxxx299. After combining these case records, it
should consider all the evidence and, following any necessary further development, issue an
appropriate merit decision on appellant’s occupational disease claim.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).
3

Id.; see also G.B., Docket No. 15-0756 (issued September 16, 2015).

2

IT IS HEREBY ORDERED THAT the August 31, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: May 3, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3