United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 08-1078
Issued: October 21, 2008

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 February 27, 2008 appellant filed a timely appeal from a November 28, 2007
nonmerit decision of the Office of Workers’ Compensation Programs’ denying her request for
reconsideration and an October 23, 2007 merit decision denying her traumatic injury claim.
Under 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 her burden of proof in establishing that she
sustained a traumatic injury in the performance of duty on March 8, 2007; and (2) whether the
Office properly denied appellant’s reconsideration request without conducting a merit review.
FACTUAL HISTORY
On March 16, 2007 appellant, then a 43-year-old custodian, filed a traumatic injury claim
(Form CA-1) alleging that she sustained injuries when she was struck in the stomach while in the
performance of duty on March 8, 2007. She explained that the bulk mail container was being

pulled by a motorized tug, which bumped into a trash cart that struck her in the stomach.
Appellant stopped work immediately after the incident.
Appellant submitted several witness statements regarding the March 8, 2007 incident and
medical evidence from Dr. Zoltan Csuka, a Board-certified internist. In a March 26, 2007 Form
CA-17 duty status report, Dr. Csuka noted that on March 8, 2007 a motorized tug hit a trash cart
which bumped appellant’s stomach. He assessed low back pain and abdominal muscle pain and
checked the box on the form which indicated that the history of injury given by the employee
corresponded to the description of how the injury occurred. He completed a light-duty request
form listing appellant’s restrictions and a form required under the Family Medical Leave Act,
indicating that she was being treated for back and abdominal muscle injuries from a March 8,
2007 work injury. Dr. Csuka advised that appellant should be able to return to light duty with
restrictions after March 26, 2007 and would need continuing pain management.
Appellant returned to limited-duty work March 27, 2007. The Office handled appellant’s
claim administratively to allow for medical payments up to $1,500.00.
Dr. Csuka submitted additional reports. On April 17 and May 15, 2007 he noted the date
of injury as March 8, 2007 and assessed low back pain. Subsequent reports dated August 15,
2007, reported the history of injury and diagnosis.1
In an August 23, 2007 letter, the employing establishment controverted appellant’s
claim.2
By letter dated September 14, 2007, the Office informed appellant that her claim was
reopened to determine the nature and extent of her injuries from the March 8, 2007 work injury.
It advised appellant to submit a medical report with a diagnosis and a rationalized medical
opinion as to the cause of any diagnosed condition, including any aggravation of preexisting
degenerative disc disease.
On September 11, 2007 Dr. Csuka noted the date of injury and provided an assessment of
low back pain. He again checked a box on the form that the history of injury given by the
employee was consisted with the description of the injury.
By decision dated October 23, 2007, the Office denied appellant’s claim. It found that
the record did not contain a rationalized medical opinion explaining the causal relationship
between any diagnosed condition and the accepted March 8, 2007 work incident. The Office
further noted that the diagnosis of pain was not compensable to support total disability from
work.
On November 1, 2007 appellant requested reconsideration. In an October 9, 2007 duty
status report, Dr. Csuka noted the date of injury and provided an assessment of low back pain.

1

The May 15, 2007 description of injury advised “tug pushed her against wall.”

2

It also offered appellant a limited-duty assignment, which she accepted on August 29, 2007.

2

He checked the box on the form that the history of injury given by the employee corresponded to
the description of the injury.
In an October 24, 2007 report, Dr. Csuka noted the history of injury and advised that
appellant had lower back pain. He noted that a magnetic resonance imaging (MRI) scan of the
lumbar spine revealed degenerative disc disease at multiple levels and a slipped disc. He opined
that appellant had some underlying back problems that were aggravated by the employment
injury. Dr. Csuka stated that appellant’s symptoms had become chronic and that she sustained a
long-term disabling injury at her employment.
By decision dated November 28, 2007, the Office denied appellant’s reconsideration
request without performing a merit review. It did not indicate that it had reviewed Dr. Csuka’s
October 24, 2007 report.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 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 disabilities and/or specific conditions 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 upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.
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.6 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.7
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.8 The
opinion of the physician must be based on a complete factual and medical background of the
3

5 U.S.C. §§ 8101-8193.

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

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

7

Id.

8

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

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claimant9 and must be one of reasonable medical certainty10 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.11
ANALYSIS -- ISSUE 1
The record establishes that on March 8, 2007 appellant was struck in the stomach by a
trash cart after a motorized tug had bumped it. The Board finds that the incident occurred as
alleged. The medical evidence, however, does not provide a rationalized medical opinion
addressing the causal relationship between appellant’s abdominal and back conditions, including
degenerative disc disease and the March 8, 2007 work incident.
In support of her claim, appellant submitted numerous form reports from Dr. Csuka. On
March 26, 2007 Dr. Csuka indicated that appellant was being treated for back and abdominal
muscle following the March 8, 2007 work injury and required restrictions upon her return to
work. However, he did not provide a firm medical diagnosis or adequately address how
appellant’s medical conditions caused disability due to the work incident.12 Dr. Csuka listed
back and abdominal injuries from the work incident, but did not provide medical rationale
explaining how the employment incident caused or aggravated a particular diagnosed condition.
In the March 26, 2007 duty status report, he provided an assessment of low back pain and
abdominal pain. Dr. Csuka noted a proper history of injury and indicated with a check mark that
the history of injury given by appellant corresponded to the description of how the injury
occurred. However, he did not further explain how or why the employment incident caused or
contributed to a diagnosed condition. A report which only addresses causal relationship with a
checkmark, without more by way of medical rationale explaining how the incident caused the
injury, is of diminished probative value.13 The diagnosis of pain, alone, does not constitute the
basis for payment of compensation.14
The additional firm reports submitted by Dr. Csuka listed low back pain and degenerative
disc disease. However, they are similarly deficient in addressing the issues of causal relationship
and disability for work. Dr. Csuka failed to provide an opinion supported by objective findings
on examination pertaining to appellant’s degenerative disc disease or how it was related to the
March 8, 2007 work incident.15

9

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

10

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

11

Judy C. Rogers, 54 ECAB 693 (2003).

12

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
13

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

14

Robert Broome, 55 ECAB 339 (2004).

15

See Jimmie H. Duckett, supra note 12.

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There is insufficient rationalized evidence in the record to establish appellant’s claim.
The Office advised appellant of the evidence required to establish her claim. However, she
failed to submit a probative narrative medical report addressing causal relation. The Office
properly denied her claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128 of the Act, the Office has discretion to grant a claimant’s request for
reconsideration and reopen a case for merit review. Section 10.606(b)(2) of the implementing
federal regulations provides guidance for the Office in using this discretion.16 The regulations
provide that the Office should grant a claimant merit review when the claimant’s request for
reconsideration and all documents in support thereof:
“(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 Office].”17
Section 10.608(b) provides that, when an application for review of the merits of a claim
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.18 When reviewing an Office decision denying a merit review, the function of the
Board is to determine whether the Office properly applied the standards set forth at section
10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in
support thereof.19
The Act provides that the Office shall determine findings of fact in making an award for
or against payment of compensation after considering the claim presented by the employee and
after completing such investigation as the Office considers necessary with respect to the claim.
Since the Board’s jurisdiction of a case is limited to reviewing that evidence which was before
the Office at the time of its final decision, it is necessary that the Office review all evidence
submitted by a claimant and received by the Office prior to issuance of its final decision. As the
Board’s decisions are final as to the subject matter appealed, it is crucial that the Office address
all evidence relevant to that subject matter which was properly submitted to the Office prior to

16

20 C.F.R. § 10.606(b)(2).

17

Id.

18

Id. at § 10.608(b).

19

Annette Louise, 54 ECAB 783 (2003).

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the time of issuance of its final decision.20 The Board has held that this principal applies with
equal force when evidence is received by the Office the same day a final decision is issued.21
ANALYSIS -- ISSUE 2
Appellant submitted an October 9, 2007 duty status report and an October 24, 2007 report
from Dr. Csuka, which was received by the Office on November 28, 2007, the same day it issued
the decision denying appellant’s request for reconsideration. There is no evidence that the Office
considered this report prior to issuing its November 28, 2007 decision. The Board finds that
medical evidence related to appellant’s claim was received but not reviewed by the Office prior
to its denial of her request for reconsideration. As noted, the Board’s decisions are final as to the
subject matter appealed and it is crucial that the Office review all newly received evidence
relevant to that subject matter prior to the time of issuance of its final decision. Therefore, in
accordance with Board precedent,22 the case will be remanded for a proper review of the
evidence and an appropriate final decision on appellant’s request for reconsideration.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained an injury in the performance of duty. The Board also finds that the case is not in
posture for a decision regarding the Office’s denial of appellant’s reconsideration request and
that the case must be remanded for further review of the evidence and issuance of an appropriate
final decision.

20

William A. Couch, 41 ECAB 548 (1990).

21

Linda Johnson, 45 ECAB 439 (1994).

22

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 28, 2007 is set aside and remanded for further action
consistent with this decision and the October 23, 2007 decision is affirmed.
Issued: October 21, 2008
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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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-402
Issued: June 26, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

On November 17, 2011 appellant filed an application for review of the September 22,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
claim for a recurrence of disability. The appeal was docketed as No. 12-402.1 Having reviewed
the case record submitted by OWCP, the Board finds that this case is not in posture for a
decision.
OWCP accepted appellant’s February 5, 2008 occupational disease claim for
costochondritis and placed appellant on the periodic rolls. Appellant returned to work with
restrictions on August 7, 2008.2 On October 10, 2008 she filed a claim for lost wages
1

This case was previously before the Board. In a September 9, 2009 decision, the Board set aside OWCP’s
September 29, 2008 overpayment decision and remanded the case for further development. Docket No. 09-177
(issued September 9, 2009). In a decision dated April 13, 2011, the Board reversed OWCP’s February 8, 2010
decision as to the termination of appellant’s medical benefits and set aside and remanded the case for further
development as to her entitlement to compensation after September 26, 2008. Docket No. 10-1521 (issued
April 13, 2011).
2

On August 13, 2008 appellant’s accepted a light-duty assignment as a modified mail processing clerk, based on
restrictions provided by her treating physician, Dr. Jill Waggoner, who is Board-certified in family medicine.
Restrictions included: lilting no more than 10 pounds, 2 hours per day: standing and walking no more than 3 hours
per day; pulling and pushing a maximum of 2 hours per day; and simple grasping, fine manipulation, reaching above
the shoulder and driving a maximum of 4 hours per day.

commencing September 26, 2008, which OWCP developed as a claim for recurrence of total
disability.
OWCP found a conflict in medical opinion between Dr. Waggoner, who opined that
appellant was not capable of performing her light-duty job, and its second opinion physician,
Dr. James Hood, a Board-certified orthopedic surgeon, who opined that she had no work
limitations due to her accepted condition. It referred her to Dr. Bernie L. McCaskill, a Boardcertified orthopedic surgeon, in order to resolve the conflict.
In an April 13, 2011 decision, the Board found that Dr. McCaskill’s opinion was
insufficiently rationalized to resolve the conflict in medical opinion. Accordingly, the Board
remanded the case for further development as to whether she sustained a recurrence of disability
on September 26, 2008.3
On remand, OWCP referred appellant, together with a statement of accepted facts and
questions for determination, to Dr. Lige B. Rushing, a Board-certified internist, for a referee
examination. Dr. Rushing was asked to provide an opinion as to whether appellant was capable
of performing her regular duties as a mail processing clerk beginning September 1, 2008. He
was not asked to offer an opinion on appellant’s ability to perform the duties of her light-duty
job. By decision dated September 22, 2011, OWCP denied appellant’s recurrence claim on the
grounds that the evidence did not establish that her condition had objectively worsened so that
she could no longer work.
When an employee who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden of
establishing by the weight of the reliable, probative and substantial evidence, a recurrence of
total disability and of showing that she cannot perform such light duty. As part of this burden,
the employee must show a change in the nature and extent of the light-duty job requirements or a
change in the nature and extent of the injury-related condition such that she is unable to perform
the duties of the light-duty job.4
Dr. Rushing was selected to serve as an impartial medical examiner to resolve a conflict
in medical opinion regarding whether appellant sustained a recurrence of disability commencing
September 26, 2008. The relevant issue, therefore, was whether appellant’s injury-related
condition had worsened such that she was unable to perform the duties of the light-duty job.
OWCP, however, did not ask Dr. Rushing to provide an opinion regarding appellant’s ability to
perform the modified assignment. Rather, it asked him whether appellant was capable of
performing the duties of a regular mail carrier. OWCP did not comply with the Board’s April 13,
2011 decision to obtain a rationalized opinion as to whether appellant sustained a recurrence of
disability on September 26, 2008.

3

See supra note 1.

4

Terry R. Hedman, 38 ECAB 222 (1986).

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The case will be remanded to OWCP to obtain a report from Dr. Rushing or another
expert regarding whether appellant’s injury-related condition had worsened as of September 26,
2008 such that she was unable to perform the duties of the light-duty job. Following this and any
other development deemed necessary, OWCP will issue an appropriate decision in the case.
IT IS HEREBY ORDERED THAT the September 22, 2011 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded for further development
consistent with this order of the Board.
Issued: June 26, 2012
Washington, DC

Alec J. Koromilas, 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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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF THE INTERIOR, U.S.
GEOLOGICAL SURVEY, Las Cruces, NM,
Employer
_________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0309
Issued: June 25, 2021

Case Submitted on the Record

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

On December 29, 2020 appellant through counsel, filed a timely appeal from a
December 10, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 21-0309.
In a letter dated and received June 1, 2021, counsel requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that counsel’s request for the
dismissal of the appeal should be granted. Accordingly,

1

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

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-0309 is dismissed.
Issued: June 25, 2021
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 07-1385
Issued: December 11, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 13, 2006 nonmerit decision refusing to reopen her case for
further review of the merits of her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction over this nonmerit decision. The most recent merit decision of record was
the Office’s October 25, 2004 decision denying appellant’s emotional condition claim. Because
more than one year has elapsed between the last merit decision and the filing of this appeal, the
Board lacks jurisdiction to review the merits of this claim.1
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
On March 14, 2003 appellant, then a 49-year-old processing and distribution operations
manager, filed an occupational disease claim alleging that she sustained a stress-related stroke on
February 12, 2003 due to various incidents and conditions at work. She claimed that Louise
Dunlap, a supervisor, subjected her to harassment and discrimination on numerous occasions in
2002 and 2003. Appellant asserted that Ms. Dunlap unfairly disciplined her regarding her use of
leave and work performance and that she was improperly sent for a fitness-for-duty examination.
During a discussion on January 2, 2003, Ms. Dunlap pointed her fingers in appellant’s face and
ordered her to sit down after she stood up.
Appellant submitted documents concerning disciplinary matters including a copy of a
March 18, 2003 letter which indicated that a March 17, 2003 proposed letter of warning in lieu of
time-off suspension was being rescinded. The rescission of the letter was made “without
prejudice to the position of the U.S. Postal Service.” Appellant also submitted reports of
attending physicians including Dr. Romeo H. Tabbilos, a Board-certified gynecologist.
In a September 3, 2003 decision, the Office denied appellant’s stress claim on the grounds
that she did not establish any compensable employment factors. The Office found that appellant
had not shown that Ms. Dunlap subjected her to harassment or discrimination or that any
disciplinary actions were improper.
Appellant submitted medical evidence including reports of Dr. Vincent R.C. Maribao, an
attending Board-certified internist, and additional reports of Dr. Tabbilos. She also submitted
statements of several coworkers. At a June 30, 2004 hearing before an Office hearing
representative, appellant provided additional details regarding her claims of harassment and
discrimination.
In an October 25, 2004 decision, the Office hearing representative affirmed the
September 3, 2003 decision. The hearing representative found that none of the disciplinary
actions taken against appellant demonstrated error or abuse by her supervisor.
In a form dated October 21, 2005, appellant requested reconsideration of her claim.2 Her
attorney argued that her claim was denied because the Office “chose to give greater weight to the
statements of management” than to her testimony. Counsel indicated that a pending Equal
Employment Opportunity (EEO) claim might “shed more light on the issues of harassment and
discrimination.”
In an October 21, 2005 statement, appellant argued that she was wrongly disciplined and
indicated that several disciplinary actions were rescinded or reduced to a lesser form of
punishment. She asserted that, beginning in 2002, Ms. Dunlap harassed her and threatened her
with disciplinary action and termination. Appellant reiterated that Ms. Dunlap abused her during
a January 2, 2003 meeting when she pointed her finger at her and told her to sit down after she

2

The form was marked as received by the Office on October 26, 2005. The record does not contain the envelope
in which the form was mailed to the Office.

2

stood up.
She asserted that Ms. Dunlap issued an improper disciplinary action on
January 31, 2003.
In a May 8, 2003 statement, Melody Moore noted that on January 2, 2003 she witnessed
“the aftermath of the meeting” that appellant had with Ms. Dunlap. Ms. Moore stated that
appellant was crying and shaking and told her that Ms. Dunlap screamed at her and “put her out
of her office.” Appellant submitted letters from employing establishment officials which
commended her work performance and statements from coworkers Brenda Wilkins and Georgia
Butler who indicated that she was a dedicated employee.
Appellant resubmitted a copy of a March 18, 2003 letter which indicated that a March 17,
2003 proposed letter of warning in lieu of time-off suspension was being rescinded. She also
resubmitted the June 22, 2004 report of Dr. Tabbilos and the June 25, 2004 report of
Dr. Maribao. In an October 21, 2005 report, appellant’s social worker stated that appellant felt
her stress was employment related.
In a November 13, 2006 decision, the Office denied appellant’s request for
reconsideration without further review of the merits of her claim.3
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,4 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.5 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file her application for review within one year of the
date of that decision.6 When a claimant fails to meet one of the above standards, the Office will
deny the application for reconsideration without reopening the case for review on the merits.7
The Board has held that the submission of evidence or argument which repeats or duplicates

3

The Office mentioned the clear evidence of error standard for evaluating untimely reconsideration requests but it
appears that it applied the proper standard for evaluating timely reconsideration requests in denying appellant’s
reconsideration request. See 5 U.S.C. § 2128(a); 20 C.F.R. § 10.607(a), (b).
4

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(2).

6

20 C.F.R. § 10.607(a). Timeliness is determined by the postmark on the envelope, if available. Otherwise, the
date of the letter itself should be used. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,
Chapter 2.1602.3(a) (May 1991); Douglas McLean, 42 ECAB 759, 761-62 (1991); William J. Kapfhammer, 42 ECAB
271, 272-74 (1990).
7

20 C.F.R. § 10.608(b).

3

evidence or argument already in the case record8 or the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.9
ANALYSIS
Appellant claimed that she sustained a stress-related stroke on February 12, 2003 due to
various incidents and conditions at work. In September 3, 2002 and October 25, 2004 decisions,
the Office denied appellant’s claim on the grounds that she did not establish any compensable
employment factors.
In support of her timely October 21, 2005 reconsideration request,10 appellant argued that
Ms. Dunlap, a supervisor, subjected her to harassment and discrimination and asserted that
management took unjustified disciplinary action against her, including a January 31, 2003
disciplinary action.11 She claimed that Ms. Dunlap abused her during a January 2, 2003 meeting
when she pointed her finger at her and told her to sit down after she stood up. The submission of
this argument does not require the Office to perform a merit review, because it repeats or
duplicates an argument already raised and considered by the Office.12 Appellant previously
contended error at the January 2, 2003 rating and in the January 31, 2003 disciplinary action.
The Office has previously considered these matters and rejected them.13
Appellant submitted a May 8, 2003 statement in which Ms. Moore, a coworker, noted that
on January 2, 2003 she witnessed “the aftermath of the meeting” with Ms. Dunlap. Ms. Moore
stated that appellant was crying and shaking and told her that Ms. Dunlap screamed at her and put
her out of her office. The submission of this document does not require reopening of appellant’s
claim because it is not relevant to the issue of the present case, i.e., whether appellant has
established a compensable employment factor.14 Ms. Moore’s statement is not relevant because

8

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

9

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

10

As the case record does not contain the envelope that accompanied appellant’s request for reconsideration, the date
of the request itself must be used to determine the timeliness of his request. The date of request itself is October 21,
2005 and therefore appellant’s reconsideration request was filed within one year of the Office’s last merit decision dated
October 25, 2004. See supra note 6 and accompanying text.
11

Appellant indicated that several disciplinary actions were rescinded or reduced to a lesser form of punishment.

12

See supra note 8 and accompanying text.

13

Appellant indicated that a pending EEO claim would help to establish her claims of harassment and
discrimination, but she did not submit the findings of any EEO claim or grievance against the employing
establishment.
14

See supra note 9 and accompanying text.

4

she did not witness appellant’s January 2, 2003 meeting with Ms. Dunlap and therefore her
statement does not establish the error or abuse as alleged by appellant.15
Appellant submitted a copy of a March 18, 2003 letter which indicated that a March 17,
2003 proposed letter of warning in lieu of time-off suspension was being rescinded. She also
submitted a June 22, 2004 report of Dr. Tabbilos, an attending Board-certified gynecologist, and
a June 25, 2004 report of Dr. Maribao, an attending Board-certified internist. However, appellant
had previously submitted these documents and they were already considered by the Office.16
Appellant has not established that the Office improperly denied her request for further
review of the merits of its October 25, 2004 decision under section 8128(a) of the Act, because
the evidence and argument she submitted did not to 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 constitute relevant and pertinent new evidence not previously considered by the
Office.17
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

15

Appellant submitted letters from employment establishment officials which commended her work performance
and statements from coworkers which indicated that she was a dedicated employee. She did not explain the
relevance of these documents or how they would help to establish her claim. Appellant submitted an October 21,
2005 report in which her social worker stated that she felt her stress was employment related. The Office has already
considered similar statements of record in which appellant posited that her stress was employment related.
16

Moreover, the medical reports would not be relevant because appellant had not established any compensable
employment factors. When a claimant has not established any compensable employment factors, the Office need not
consider the medical evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
17

Appellant submitted additional evidence on appeal to the Board, but the Board cannot consider such evidence for
the first time on appeal. See 20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 13, 2006 decision is affirmed.
Issued: December 11, 2007
Washington, DC

David S. Gerson, 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
__________________________________________
M.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Syracuse, NY, Employer
__________________________________________

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

Docket No. 17-1026
Issued: April 20, 2018

Case Submitted on the Record

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

JURISDICTION
On April 10, 2017 appellant filed a timely appeal of an October 27, 2016 merit decision
and a January 17, 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 in this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a right foot
injury causally related to an August 15, 2016 employment incident; and (2) whether OWCP
properly denied appellant’s request for a review of the written record as untimely filed.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence following the issuance of OWCP’s October 27, 2016
decision. However, the Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final
decision. Therefore the Board is precluded from considering this new evidence for the first time on appeal. See 20
C.F.R. § 501.2(c)(1); Joseph F. McHale, 45 ECAB 669 (1994).

FACTUAL HISTORY
On August 23, 2016 appellant, then a 50-year-old mechanic, filed a traumatic injury claim
(Form CA-1), alleging that, while repositioning a staging buffer at work on August 15, 2016, he
put weight on his right foot and then felt sharp pain in that same foot. He stopped work on
August 23, 2016. Appellant also provided an August 23, 2016 notification to his supervisor,
which also related that he felt pain in his foot while repositioning a buffer and using his feet for
leverage on August 15, 2016.
Appellant came under the treatment of Dr. Frederick Lemley, a Board-certified
orthopedist, on August 26, 2016, for pain/dysfunction in the right foot. He reported that on
August 15, 2016 he was pushing and pulling heavy objects at work and experienced right foot
pain. Appellant noted findings on examination of tenderness over the second and third metatarsal
shafts. Dr. Lemley reviewed appellant’s old x-rays which did not reveal a fracture. He diagnosed
right foot pain and recommended an immobilization boot walker and sedentary work. In a work
status form dated August 26, 2016, Dr. Lemley noted that appellant was out of work for three
weeks. In an August 31, 2016 attending physician’s report (Form CA-20), he noted that appellant
described that on August 15, 2016 while at work he was pulling something and experienced pain
in the right foot. Dr. Lemley diagnosed right foot pain and indicated that appellant was totally
disabled from August 23 to September 14, 2016.
Appellant was treated by a physician assistant on August 23, 2016 who evaluated him and
noted that he would be out of work until further evaluation.
By development letter dated September 16, 2016, OWCP advised appellant of the type of
evidence needed to establish his claim, particularly requesting that he submit a physician’s
reasoned opinion addressing the relationship of his claimed condition and specific employment
factors. It noted that medical evidence must be submitted by a qualified physician and that a
physician assistant is not considered a qualified physician under FECA.
Appellant was treated by Dr. Lemley, on September 14, 2016, who noted that appellant
presented with pain/dysfunction in the right foot. He reported that on August 15, 2016 he was
pulling something at work and experienced foot pain. Appellant noted improvement with the “cam
[controlled ankle movement]” boot. Dr. Lemley noted a right foot x-ray revealed no evidence of
fracture. On examination, appellant had tenderness over the second and third metatarsal shafts
suggestive of a stress reaction. Dr. Lemley diagnosed right foot pain and returned appellant to
regular duty. In a September 14, 2016 attending physician’s report, he noted that appellant
reported pulling something at work on August 15, 2016 and having sharp right foot pain.
Dr. Lemley diagnosed right foot pain with stress reaction. He checked a box marked “yes”
indicating that appellant’s condition was caused or aggravated by work activity. Dr. Lemley noted
that appellant was totally disabled from August 23 to September 18, 2016 and could resume
regular work on September 19, 2016.
On August 23, 2016 Dr. Michael Clarke, a Board-certified orthopedist, treated appellant
for right foot pain. Appellant reported that, a week before, he was working and pulling something
and felt a sharp pain on the top of the foot which has not resolved. He noted an x-ray of the right
foot revealed no abnormalities. Dr. Clarke diagnosed right foot pain and prescribed a Reese shoe

2

to wear for comfort and pain relief. He noted that appellant was out of work until further
evaluation.
Appellant responded to OWCP development questionnaire on September 23, 2016 and
indicated that when he injured his right foot he felt pain, but continued to work. He noted
completing a notification of injury to his supervisor, but did not file a claim because he was hoping
his foot would heal. Although appellant treated his foot with ice and stayed off his feet, he
indicated that his pain intensified and he sought medical attention and filed a claim.
In an October 27, 2016 decision, OWCP denied the claim, finding that appellant failed to
submit medical evidence establishing that a medical condition was diagnosed in connection with
the accepted work incident.
In an appeal request form dated November 28, 2016 and postmarked November 29, 2016,
appellant requested a review of the written record by an OWCP hearing representative. He
submitted a report from Dr. Lemley dated November 16, 2016.
In a decision dated January 17, 2017, OWCP denied appellant’s request for a review of the
written record as untimely filed. It informed him that his case had been considered in relation to
the issues involved and that the request was further denied as it could equally be addressed by
requesting reconsideration from OWCP and submitting evidence not previously considered.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. 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 medical evidence to
establish that the employment incident caused a personal injury.4
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
background, must be one of reasonable medical certainty, and must be supported by medical

3

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

4

T.H., 59 ECAB 388 (2008).

3

rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.5
ANALYSIS -- ISSUE 1
It is undisputed that, on August 15, 2016, while working as a mechanic, appellant
repositioned a staging buffer and put weight on his right foot. However, the Board finds that he
failed to submit sufficient medical evidence to establish that this work incident caused or
aggravated his diagnosed right foot condition. In a letter dated September 16, 2016, OWCP
requested that appellant submit a comprehensive medical report from his treating physician which
included a reasoned explanation as to how the accepted work incident had caused his claimed
injury.
Appellant submitted reports dated August 26 and September 14, 2016 from Dr. Lemley,
who treated appellant for right foot pain/dysfunction. He reported that on August 15, 2016 he was
pushing and pulling heavy objects at work and experienced foot pain. Appellant noted findings
on examination of tenderness over the second and third metatarsal shafts suggestive of a stress
reaction and diagnosed right foot pain. Dr. Lemley noted a right foot x-ray showed no fracture.
He recommended an immobilization boot walker and sedentary work. However, Dr. Lemley
merely repeated the history of injury as reported by appellant without providing his own opinion
regarding whether his condition was work related. To the extent that he is providing his own
opinion, the Board finds that he failed to provide a rationalized opinion regarding causal
relationship between appellant’s right foot condition and the accepted work incident.6 Therefore,
this report is insufficient to meet appellant’s burden of proof.
In a work status note dated August 26, 2016, Dr. Lemley noted that appellant was out of
work for three weeks. This note is insufficient to establish appellant’s claim as Dr. Lemley did
not provide a history of injury7 or specifically address whether appellant’s employment activities
had caused or aggravated a diagnosed medical condition.8
Appellant submitted attending physician’s reports from Dr. Lemley dated August 31 and
September 14, 2016, who noted that appellant reported, that on August 15, 2016 he was pulling
something at work and experienced pain in the right foot. Dr. Lemley diagnosed right foot pain
with stress reaction and indicated that appellant was totally disabled from work from August 23 to
September 18, 2016. On September 14, 2016 he checked a box marked “yes” indicating that
appellant’s condition was caused or aggravated by an employment activity. The Board has held
that a physician’s opinion on causal relationship which consists only of checking “yes” to a form
5

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

6

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
8
A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

4

question, without explanation or rationale, is of diminished probative value and is insufficient to
establish a claim.9
Appellant submitted an August 23, 2016 report from Dr. Clarke who treated appellant for
right foot pain. He reported that, a week before, he was pulling something at work and felt a sharp
pain on the top of the foot which had not resolved. Appellant noted that an x-ray of the right foot
revealed no abnormalities. Dr. Clarke diagnosed right foot pain and prescribed a Reese shoe for
comfort and pain relief. He noted that appellant was out of work until further evaluation.
Dr. Clarke merely repeated the history of injury as reported by appellant without providing his
own opinion regarding whether his condition was work related. To the extent that he is providing
his own opinion, the Board finds that he failed to provide a rationalized opinion regarding the
causal relationship between appellant’s right foot condition and the accepted work incident.10
Therefore, this report is insufficient to meet his burden of proof.
Appellant was treated by a physician assistant on August 23, 2016 who noted that appellant
was evaluated and would be out of work until further evaluation. The Board has held that
document notes signed by a physician assistant lack probative value as medical evidence as
physician assistants are not considered physicians under FECA.11
The remainder of the medical evidence is of limited probative value as it fails to provide a
physician’s opinion on causal relationship between appellant’s work incident and his diagnosed
right foot back condition.12 For this reason, this evidence is insufficient to meet his burden of
proof.
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor the
belief that his condition was caused, precipitated, or aggravated by his employment is sufficient to
establish causal relationship. Causal relationships must be established by rationalized medical
opinion evidence.13 Appellant failed to submit such evidence and therefore he has not met his
burden of proof.

9

D.D., 57 ECAB 734 (2006); Sedi L. Graham, 57 ECAB 494 (2006).

10

Jimmie H. Duckett, supra note 6.

11

See David P. Sawchuk, 57 ECAB 316, 320, n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).
12

See S.E., Docket No. 08-2214 (issued May 6, 2009) (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).
13

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

5

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
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary ... is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his [or her] claim before a representative of the
Secretary.”14 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provides that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.15 A claimant is entitled to a hearing or review
of the written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.16 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.17
ANALYSIS -- ISSUE 2
Appellant requested a review of the written record in an appeal request form dated
November 28, 2016 and postmarked November 29, 2016. This was more than 30 days after the
issuance of the October 27, 2016 OWCP decision. Section 8124(b)(1) is unequivocal on the time
limitation for requesting a hearing.18 Because the hearing request was not timely filed, appellant
was not entitled to an oral hearing as a matter of right.
OWCP has the discretionary power to grant an oral hearing when a claimant is not entitled
to one as a matter of right. It exercised this discretion in its January 17, 2017 decision, finding that
appellant’s issue could equally be addressed by requesting reconsideration and submitting
additional evidence. This basis for denying his request for a hearing is a proper exercise of
OWCP’s authority.19 Accordingly, the Board finds that OWCP properly denied appellant’s
request for a review of the written record as untimely filed.
On appeal appellant contends that his request for a review of the written record was late
because he did not timely receive the information from a nurse liaison. The Board notes that
OWCP’s October 27, 2016 denial of his claim was accompanied by appeal rights which provided

14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. § 10.615.

16

Id. at § 10.616(a).

17

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

18

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

19

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

6

a timeline and instructions pertaining to the different avenues of appeal. Appellant’s request for a
review of the written record was not made within 30 days and was therefore untimely filed.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right foot
injury causally related to an August 15, 2016 employment incident. The Board further finds that
OWCP properly denied his request for review of the written record as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the January 17, 2017 and October 27, 2016 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 20, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
U.S. BORDER PATROL, Tucson, AR, Employer
__________________________________________

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Appearances:
Ralph Hunt, for the appellant
Office of Solicitor, for the Director

Docket No. 08-1470
Issued: November 18, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 16, 2008 appellant filed a timely appeal from a March 17, 2008 Office of
Workers’ Compensation Programs’ merit decision. Under 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a right shoulder injury in
the performance of duty on September 13, 2007.
FACTUAL HISTORY
Appellant, a 30-year-old border patrol agent, alleged that he sustained an injury to his right
arm, shoulder and upper back on September 13, 2007 while driving his motor vehicle over rough
roads and terrain. He filed a claim for benefits on September 27, 2007. Appellant indicated that he
experienced pain and numbness while driving the vehicle on a dirt road in rough terrain on
September 13, 2007.

Appellant submitted an emergency room report dated September 27, 2007 which indicated
he was treated for paresthesia and excused from work from September 27 through 28, 2007.
Following his discharge, he was placed on light duty.
In an October 1, 2007 report, Dr. Scott V. Slagis, Board-certified in orthopedic surgery,
stated that he was treating appellant for right arm and shoulder pain. He stated:
“[Appellant] reports about five months ago he was involved in a scuffle. He works
as a border patrol agent. [Appellant] hurt his shoulder. Since that time he has
developed numbness and tingling in his right arm. It goes all the way down into
[appellant’s] hand. It has not gotten any better. [Appellant] has good motion of his
shoulder. No real impingement. [Appellant] also has good motion of his neck.”
Dr. Slagis noted that a cervical spine radiograph demonstrated some C5-6 disc space
narrowing. He advised that right shoulder radiographs are normal and stated:
“Tingling, numbness and burning all the way down into the hand is certainly much
more consistent with a radiculopathy or brachial plexus injury rather than primary
shoulder pathology. Therefore I think workup should be more in this direction with
a magnetic resonance imaging [MRI] scan of the cervical spine and
electromyelogram/nerve conduction velocity studies to pick up any peripheral
neuropathy, possibly brachial plexus injury.”
In a report dated October 1, 2007, Dr. Ben A. Leeson, a specialist in emergency medicine,
stated:
“This is a 30-year-old male with a history of a right arm injury in April 2007 that
occurred at work as he works at [the employing establishment]. [Appellant] reports
that in April he was chasing a border crosser when he wrestled the crosser to the
ground, he sustained an injury to his right arm and shoulder that was diagnosed as
shoulder strain. Over the past two weeks on and off, [he] has had arm numbness
that comes and goes. [Appellant] reports the numbness has been occurring more
often, he describes it as electric and tingly. It radiates from the right shoulder blade
down the whole arm. [Appellant] has associated sharp pain in the right shoulder.
The pain is rated a 2 to 3 out of 10 on the pain scale.”
On examination, Dr. Leeson noted that appellant has normal strength and full range of
motion of the right shoulder, with tenderness to full extension. He also related that appellant had
100 percent sensation at the shoulder level and 100 percent sensation at the entire left arm and
bilateral lower extremities. Dr. Leeson diagnosed paresthesia, neuropathy, neurapraxia, pinched or
entrapped nerve, frozen shoulder, cervical or thoracic fracture, nerve impingement, right shoulder
fracture, degenerative changes and osteoarthritis. He noted that x-rays of the cervical spine,
thoracic spine and right shoulder showed no fractures, no degenerative changes, and no
dislocations. Dr. Leeson advised that, given appellant’s history and the possibility that his
condition might be related to work, he should follow up for a full evaluation and continue with
light duty until cleared for full duty.

2

By letter dated October 24, 2007, the Office advised appellant that he needed to submit
additional factual and medical evidence in support of his claim. It stated that appellant had 30 days
to submit the requested information.
By decision dated November 27, 2007, the Office denied appellant’s claim, finding that he
failed to establish fact of injury. It stated that appellant failed to submit sufficient evidence to
establish that he sustained an injury in the performance of duty on September 13, 2007.
On December 12, 2007 appellant requested reconsideration. By letter dated December 12,
2007, Ralph Hunt, appellant’s union representative, noted that appellant had filed a previous claim
for a right shoulder injury, No. xxxxxx303, which occurred in April 2007 when appellant wrestled
an illegal alien to the ground. The claim was accepted by the Office. Mr. Hunt stated that there
was documentation indicating appellant had sustained a new work injury on September 13, 2007
while driving on rough roads and terrain; however, the Office had not received and evaluated this
evidence.
By decision dated March 17, 2007, the Office accepted that appellant drove over rough
terrain on September 13, 2007, as alleged. It modified the November 27, 2007 decision to find that
he established the incident of that date. However, the Office found that appellant failed to submit
sufficient medical evidence to establish that the September 13, 2007 employment incident
resulted in an injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that 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.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.3
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.
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.4 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.5 The medical evidence required
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

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

5

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

3

to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
ANALYSIS
The record establishes that appellant drove over rough terrain on September 13, 2007 at
the time, place and in the manner alleged. However, the question of whether this incident caused
a personal injury must be established by medical evidence.7 Appellant has not submitted
sufficient, probative medical evidence to establish that the employment incident on
September 13, 2007 caused a personal injury and resultant disability. The Board has held that the
mere fact that a condition manifests itself during a period of employment does not raise an
inference that there is a causal relationship between the two.8
In this case, appellant submitted October 1, 2007 reports from Drs. Slagis and Leeson.
On October 1, 2007 Dr. Leeson noted numbness and tingling in appellant’s right arm,
radiating down into his hand, stemming from the April 2007 scuffle with the illegal alien. He
advised that appellant had good motion of his shoulder with no real impingement and good motion
of his neck. Dr. Slagis stated that a cervical spine radiograph demonstrated some C5-6 disc space
narrowing and that right shoulder radiographs were normal. He asserted that appellant’s symptoms
were more consistent with radiculopathy or brachial plexus injury as opposed to primary shoulder
pathology. Dr. Slagis recommended an MRI scan of the cervical spine and electromyelogram/
nerve conduction velocity studies to evaluate whether appellant had any peripheral neuropathy or
brachial plexus injury.
Dr. Leeson stated findings on examination and indicated that appellant had pain in his
right shoulder with full range of motion and tenderness to full extension. He diagnosed
paresthesia, neuropathy, neurapraxia, pinched or entrapped nerve, frozen shoulder, cervical or
thoracic fracture, nerve impingement, right shoulder fracture, degenerative changes and
osteoarthritis. Dr. Leeson noted that x-rays of the cervical spine, thoracic spine and right shoulder
showed no fractures, no degenerative changes and no dislocations.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.9 Although Drs. Slagis and Leeson did present several diagnoses
6

Id.

7

John J. Carlone, supra note 4.

8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

See Anna C. Leanza, 48 ECAB 115 (1996).

4

of appellant’s condition, they did not provide a rationalized, probative medical opinion indicating
how these conditions were causally related to the September 13, 2007 work incident. These
physicians did not sufficiently describe or explain the medical process through which the
September 13, 2007 work incident caused an injury.
The Office advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. Accordingly, as appellant has failed to submit any
probative medical evidence establishing that he sustained a right shoulder injury in the
performance of duty on September 13, 2007, the Office properly denied appellant’s claim for
compensation. The Board will affirm the March 17, 2008 decision.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a right shoulder injury in the performance of duty on September 13, 2007.
ORDER
IT IS HEREBY ORDERED THAT the March 17, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: November 18, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
DEFENSE HEALTH AGENCY, NATIONAL
CAPITAL REGION MEDICAL
DIRECTORATE, Bethesda, MD, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0048
Issued: July 19, 2021

Case Submitted on the Record

ORDER REVERSING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
On October 14, 2020 appellant, through counsel, ﬁled a timely appeal from a
September 10, 2020 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). The Clerk of the Appellate Boards assigned Docket No. 21-0048.
This case has previously been before the Board.2 The facts and circumstances of the case
as set forth in the Board’s prior decision and prior order are incorporated herein by reference. The
relevant facts are as follows.
On September 29, 2015 appellant, a 46-year-old medical technologist, ﬁled a traumatic
injury claim (Form CA-1) alleging that she sustained a left wrist injury on July 21, 2015 when
using a microscope and manual counter while in the performance of duty. By decision dated
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

Docket No. 16-1352 (issued August 28, 2017); Order Remanding Case, Docket No. 18-0816 (issued
May 26, 2020).

December 22, 2015, OWCP denied appellant’s claim. On January 19, 2016 appellant requested
reconsideration and submitted reports from Dr. Akhil Chhatre, a Board-certiﬁed physical medicine
and rehabilitation specialist. By decision dated April 13, 2016, OWCP denied modiﬁcation of its
December 22, 2015 decision. On June 14, 2016 appellant appealed OWCP’s April 13, 2016
decision to the Board. By decision dated August 28, 2017,3 the Board afﬁrmed the April 13, 2016
decision.
On November 2, 2017 appellant, through counsel, requested reconsideration and submitted
a January 22, 2016 operative note and a series of reports from Dr. Chhatre, as well as other
attending physicians. By decision dated January 31, 2018, OWCP denied modiﬁcation of its prior
decisions. It indicated that the evidence submitted on reconsideration consisted of Dr. Chhatre’s
May 19, 2016 report, which was insufficient to establish appellant’s claim.
On March 7, 2018 appellant, through counsel, appealed OWCP’s January 31, 2018
decision to the Board. By order dated May 26, 2020,4 the Board set aside the January 31, 2018
decision and remanded the case to OWCP for further development, noting that OWCP had failed
to evaluate all the evidence submitted by appellant upon reconsideration. The Board directed
OWCP to issue an appropriate decision after evaluating this evidence.
On remand, OWCP issued a July 7, 2020 “de novo decision,” denying appellant’s traumatic
injury claim. In an August 11, 2020 informational letter, it advised appellant that it had failed to
provide appeal rights on July 7, 2020 and, therefore, would be issuing a valid final decision with
appeal rights. On August 12, 2020 OWCP issued a decision with appeal rights, which denied
appellant’s traumatic injury claim, noting that the decision superseded the July 7, 2020 “de novo
decision.”
On August 18, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review in connection with the August 12, 2020
decision.
By decision dated September 10, 2020, OWCP denied appellant’s hearing request, finding
that she had “already previously requested reconsideration” and, therefore, was not, as a matter of
right, entitled to a hearing. OWCP then, in its discretion, considered appellant’s hearing request
and determined that it was further denied because the traumatic injury issue in the case could
equally well be addressed by requesting reconsideration from OWCP and submitting new
evidence.
The Board has held that OWCP has the discretion to grant or deny a hearing request on a
claim when the request is made after the 30-day period for requesting a hearing,5 when the request
is for a second hearing on the same issue,6 and when the request is made after a reconsideration

3

See id.

4

Id.

5

E.R., Docket No. 20-1110 (issued December 23, 2020); Herbert C. Holley, 33 ECAB 140, 142 (1981).

6

D.M., Docket No. 19-0686 (issued November 13, 2019); Johnny S. Henderson, 34 ECAB 216, 219 (1982).

2

request was previously submitted.7 Section 10.616(a) of OWCP’s regulations provides that the
claimant seeking a hearing must not have previously submitted a reconsideration request (whether
or not it was granted) on the same decision.8
OWCP asserted that appellant was not entitled to a hearing as a matter of right because she
had previously requested reconsideration of the August 12, 2020 decision. The Board finds,
however, that appellant had not previously requested reconsideration of the August 12, 2020
decision. Appellant had last requested reconsideration of an improperly issued decision, dated
July 7, 2020. Appellant timely filed her hearing request on August 18, 2020, a date less than 30
days after OWCP’s August 12, 2020 decision. Therefore, as she filed a valid, timely hearing
request, the case must be remanded to OWCP for the holding of a hearing before a representative
of OWCP’s Branch of Hearings and Review, to be followed by the issuance of a de novo merit
decision.9
IT IS HEREBY ORDERED THAT the September 10, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 19, 2021
Washington, DC

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

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

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

7

R.H., Docket No. 07-1658 (issued December 17, 2007); S.J., Docket No. 07-1037 (issued September 12, 2007).

8

20 C.F.R. § 10.616(a).

9

See id. See also supra note 5.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
DEPARTMENT OF INTERIOR, REDWOOD
NATIONAL PARK, Orick, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-1444
Issued: May 22, 2020

Case Submitted on the Record

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

On June 17, 2019 appellant filed a timely appeal from a May 9, 2019 decision of the Office
of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the
appeal Docket 19-1444.
On August 1, 2018 appellant, then a 26-year-old forestry aid, filed a traumatic injury claim
(Form CA-1) alleging that in August 2010 he sustained multiple injuries while playing in a
basketball game scheduled on a regular workday evening while in the performance of duty. The
record as presented to the Board establishes that appellant has not been properly served with any
documents in the development or adjudication of his claim. Therefore, the case shall be remanded
for proper claim development and service of all documentation regarding the adjudication of the
claim.
Accordingly, the May 9, 2019 decision shall be set aside and the case remanded for further
development to provide appellant an opportunity to cure the deficiencies in his claim.1 Following
this and any other such further development as deemed necessary, OWCP shall issue a de novo
decision.

1

See G.A., Docket No. 18-0266 (issued February 25, 2019).

IT IS HEREBY ORDERED THAT the May 9, 2019 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: May 22, 2020
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Columbia, SC, Employer
__________________________________________

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

Docket No. 10-447
Issued: September 23, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 7, 2009 appellant filed a timely appeal of a July 9, 2009 decision of the
Office of Workers’ Compensation Programs denying her request for reconsideration without a
merit review. Because more than 180 days has elapsed from the last merit decision dated
January 16, 2009 to the filing of this appeal on December 7, 2009, the Board lacks jurisdiction
over the merits of this case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without further merit review under 5 U.S.C. § 8128.
FACTUAL HISTORY
On July 18, 2008 appellant, then a 53-year-old nurse, filed an occupational disease claim
alleging that she developed depression, panic attacks, and stress due to “people at work and
being stress out” as well as being discriminated against at work. She first realized that her

condition was caused or aggravated by her employment activities on August 1, 2006.1 Appellant
did not stop work. The employing establishment controverted the claim.
After the Office advised appellant of the factual and medical evidence necessary to
establish her claim, she submitted documents pertaining to her Equal Employment Opportunity
(EEO) complaint dated between March 22, 2002 and February 15, 2008. These documents
included counselor’s reports, complaints, decisions, orders and a settlement agreement. These
January 5, 2005 and June 30, 2006 decisions of an EEO Commission administrative judge found
that appellant had not been discriminated against as alleged. Appellant also submitted
proficiency reports from the Veterans Administration (VA) dated June 28, 2001 to
November 22, 2006. The record also contains several letters and e-mail correspondences
between appellant and her supervisors regarding her requests for leave without pay dated
between March 29 and December 12, 2005.
In an August 14, 2008 statement, appellant noted that she had provided descriptions of
practices, incidents and confrontations that affected her condition, but that she would be
submitting more evidence. She was offered jobs that she was unable to perform due to three
workers’ compensation injuries for which she was being treated. Appellant also noted that her
father had passed away three years prior causing her stress and that she was previously treated by
a psychotherapist. She became agitated when dealing with people or claims examiners. In a
statement dated July 7, 2008, appellant noted working as a nurse at the employing establishment
for 22 years. She also noted working hard “while continuing to be overlooked.” Appellant filed
a claim for discrimination with the EEO Commission in August 2006, which was denied. She
described the types of positions she held at the employing establishment and the duties
performed at each. Appellant also noted stress from the workers’ compensation claims process.2
In a May 13, 2008 report, Dr. Rodney Fitzgibbon, II, Board-certified in family medicine,
noted treating appellant for depression and anxiety since January 2007. He indicated that
appellant was currently being treated by psychiatry specialists and would need treatment
indefinitely.
The record contains several modified job offers dated between December 21, 2005 and
April 6, 2006 as well as appellant’s statements declining these offers dated March 3 and
October 18, 2006. Appellant also continued submitting EEO and VA decisions.
An August 24, 2005 unsigned work status form indicated that appellant was medically
qualified to perform work duties but required restrictions. A September 12, 2005 unsigned work
status form diagnosed impingement syndrome and advised that appellant could work with
restrictions.

1

Appellant subsequently amended her statement to indicate that she first realized this condition on
August 1, 2005.
2

Appellant indicated that the stress was caused by a prior claim, which the Office accepted for right lateral
epicondylitis. That claim was assigned case number xxxxxx447 and has previously been before the Board in docket
number 09-1952. Case number xxxxxx447 is not before the Board on the present appeal.

2

Appellant submitted psychiatric treatment notes from Dr. Timothy Malone, a Boardcertified psychiatrist, dated between January 4, 2004 and February 13, 2008.
In a January 16, 2009 decision, the Office denied appellant’s claim finding that she did
not sustain an emotional condition related to factors of employments within the performance of
duty. It found that, because appellant did not establish any compensable factors of employment,
it was not necessary to address the medical evidence.
Appellant requested reconsideration on June 25, 2009. In a statement dated June 23,
2009, she asserted that the claims examiner based the denial of her claim on the fact that her
EEO claim had been denied. Appellant also noted that the claims examiner stated that she would
have accepted appellant’s claim for stress if her EEO claim had been accepted.
In support of her reconsideration request, appellant submitted a June 18, 2009 report from
Dr. Malone who noted that appellant had been under his care since 2004. He diagnosed
depression and indicated that he treated appellant on a regular basis for medical management.
Dr. Malone opined that due to stress from appellant’s medical and psychiatric issues and daily
work stressors, she was unable to work. He also opined that appellant should be strongly
considered for disability.
In a July 9, 2009 decision, the Office denied reconsideration without a merit review,
finding that the new evidence was not relevant to the issue in the present claim.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.3 Section 10.608(b) of Office
regulations provide that when an application for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.4
ANALYSIS
Appellant’s reconsideration request consists of a statement asserting that the Office
denied her claim because her EEO complaint had also been denied. She also asserted that the
claims examiner would have accepted her emotional condition claim if her EEO claim had been
accepted. However, neither of these assertions satisfies the criteria necessary to reopen a case
for merit review as they do not show that the Office erroneously applied a specific point of law
and they do not advance any new legal arguments. Moreover, appellant’s assertions are broad
and general statements unsupported by any evidence of record. While a reopening of a case may
3

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

4

K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

3

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.5
Although Dr. Malone’s June 18, 2009 report constitutes new evidence, it is not relevant
to the issue on which her claim was denied. It does not address the underlying issue, which is
factual in nature, regarding whether the evidence establishes a compensable employment factor
in appellant’s emotional condition claim. The Board has held that evidence that does not address
the pertinent issue in a claim does not warrant a reopening of the case for a merit review.6
For these reasons, the Office properly denied a merit review of appellant’s claim as she
did not meet one of the three regulatory criteria for reopening her claim for a merit review.
On appeal, appellant asserts that she has been discriminated against, harassed and
assigned jobs without training that white coworkers refused to perform. She further asserts that
her psychiatrist advised that her job causes stress, anxiety, panic attacks and depression.
Appellant has filed over six EEO claims and that the first claim had been settled. The Board,
however, only has jurisdiction to consider whether the July 9, 2009 Office decision properly
denied further merit review of her claim. As noted, appellant has not shown that the Office
erroneously applied or interpreted a specific point of law, advanced a relevant legal argument not
previously considered by the Office or submitted new and relevant evidence not previously
considered.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
without a merit review.

5

Elaine M. Borghini, 57 ECAB 549 (2006).

6

See E.M., 60 ECAB ___ (Docket No. 09-39, issued March 3, 2009) (where the Board held that new evidence
submitted upon a reconsideration request that does not address the pertinent issue is not relevant evidence).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 9, 2009 is affirmed.
Issued: September 23, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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
__________________________________________

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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