United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF INTERIOR,
NATIONAL BUSINESS CENTER,
Washington, DC, Employer
__________________________________________

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

Docket No. 12-1831
Issued: February 4, 2013

Case Submitted on the Record

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

JURISDICTION
On August 28, 2012 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated August 8, 2012. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained permanent impairment to a scheduled member of
his body causally related to his accepted thoracic strain/thoracic bulging disc conditions, entitling
him to a schedule award under 5 U.S.C. § 8107.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 41-year-old foreman, injured his back and left ring finger on September 27,
2002 when he slipped and fell while walking on a damaged metal step. He filed a claim for
benefits on October 1, 2002, which OWCP accepted for thoracic strain, herniated/bulging disc of
the thoracic region and a fractured left ring finger. A January 6, 2003 magnetic resonance
imaging (MRI) scan of the thoracic region, noted a mild left paracentral disc bulge at T7-8 and a
mild right paracentral disc bulge at T6-7, without impingement.
In a report dated July 23, 2003, Dr. Leonid Selya, an attending orthopedic surgeon, stated
that appellant had a herniated disc at T6-7 and T7-8 secondary to the September 27, 2002
employment injury. In reports dated January 28, 2004, February 20, 2008 and January 21, 2009,
He opined that appellant was dealing with the residuals of acute herniations at T6-7 and T7-8,
causally related to his September 27, 2002 work injury, as well as discogenic pain.
OWCP referred appellant to Dr. Robert J. Smith, Board-certified in orthopedic surgery,
for a second opinion examination, in order to determine his current condition and the residuals of
his accepted conditions. In a May 4, 2009 report, Dr. Smith noted that the claim had been
accepted for a finger fracture, back strain and herniated and bulging discs in the thoracic region.
He stated, however, that the results of the January 2003 thoracic MRI scan showed bulges at the
T6-7 and T7-8 without any evidence of neurological impingement and no evidence of fracture.
The MRI scan did not explicitly state whether appellant had an acute herniation of the thoracic
spine, as Dr. Selya found. Dr. Smith stated that there was no evidence that appellant had any
ongoing back strain and noted that a 2002 functional capacity examination showed that he was
capable of light- to medium-duty work. He agreed that appellant could perform such work given
his ongoing symptomatology and provided work restrictions based on his nonindustrial
degenerative disc disease, as opposed to any specific residuals from the September 2002
employment injury.
OWCP found a conflict in the medical opinion between Dr. Selya and Dr. Smith as to
appellant’s residuals and work limitations from the September 27, 2002 employment injury. It
referred appellant to Dr. Michael J. Franchetti, a Board-certified orthopedic surgeon, for an
impartial examination to resolve the conflict. In an October 14, 2009 report, Dr. Franchetti
stated that appellant sustained a thoracic strain due to his September 27, 2002 injury, in addition
to a fractured left finger which had healed with no residuals. He concurred with Dr. Smith’s
opinion that, although appellant’s injury was accepted for a bulging disc condition, it was at most
a minimal bulge which was not causing any neural compression. The bulging disc condition was
due to age-related degenerative changes and not traumatic in origin. Dr. Franchetti agreed with
Dr. Smith that appellant clinically had no ongoing thoracic spinal injury or strain due to the
September 27, 2002 work injury.
By decision dated December 7, 2009, OWCP terminated appellant’s compensation. By
decision dated June 8, 2010, OWCP’s hearing representative affirmed the December 7, 2009
termination decision. In a decision dated June 1, 2011,2 the Board affirmed OWCP’s June 8,
2

Docket No. 10-1925 (issued June 1, 2011).

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2010 decision. The Board found that Dr. Franchetti’s referee opinion established that appellant’s
accepted herniated/bulging discs of the thoracic region had ceased and that his report was
entitled to the weight of the evidence. The facts of this case as set forth in the Board’s June 1,
2011 decision are incorporated by reference.
On August 17, 2011 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of his upper extremities.
By letter dated September 6, 2011, OWCP informed appellant that it required additional
medical evidence in support of his claim for a schedule award. It asked him to submit a medical
report which described his current condition and addressed whether he had any permanent
impairment resulting from his accepted, work-related condition. OWCP informed appellant that
the report should include an impairment rating using the American Medical Association, Guides
to the Evaluation of Permanent Impairment (sixth edition) (A.M.A., Guides). It requested that
he submit the report within 30 days. Appellant did not respond.
By decision dated November 22, 2011, OWCP found that appellant had no ratable
impairment causally related to an accepted thoracic condition and was not entitled to a schedule
award.
On April 11, 2012 appellant, through his attorney, requested reconsideration.
In a report dated January 5, 2012, Dr. Stuart J. Goodman, Board-certified in orthopedic
surgery, found that appellant had an 18 percent whole person impairment pursuant to the
A.M.A., Guides. He reviewed the history of injury and noted that Dr. Selya had diagnosed
thoracic sprain and disc herniations at T6-7 and T7-8 based on an MRI scan. Dr. Goodman
advised that appellant continued to experience chronic, severe thoracic pain and had significant
limitations in all levels of activity. Pursuant to Table 17-3, page 567 of the A.M.A., Guides,3 the
regional grid which rates thoracic spine impairments, appellant had a class 4 impairment which
represented an 18 percent whole person impairment. This translated to a 90 percent permanent
impairment of the thoracic spine region.
By decision dated August 8, 2012, OWCP denied modification of the November 22, 2011
decision. It reviewed Dr. Goodman’s January 5, 2012 report and found that his impairment
rating was related to the thoracic spine, a region that was not a listed scheduled member under
FECA. Therefore appellant did not have a ratable impairment of any extremity pursuant to the
sixth edition of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
3

A.M.A., Guides 567

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides. (6th ed. 2009).

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loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.7
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.9
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP procedures indicate that The AMA
Guides Newsletter “Rating Spinal Nerve Extremity Impairment using the sixth edition” (July to
August 2009) is to be applied.10
ANALYSIS
OWCP accepted that appellant sustained the conditions of thoracic strain and bulging
disc conditions. Appellant filed a claim for a schedule award due to his accepted injury. He
submitted the January 5, 2012 report of Dr. Goodman, who rated an 18 percent whole person
impairment of the thoracic spine. This report, however, did not provide an impairment rating of
any extremity or schedule member as definded at section 8107. Dr. Goodman found that appellant
chronic, severe thoracic pain with significant activity limitations. He stated that appellant had a
class 4 impairment under Table 17-3 of the A.M.A., Guides. The Board notes that a class 4
thoracic impairment is based on intervertebral disc herniation.

6

Id.

7

Veronica Williams, 56 ECAB 367, 370 (2005).

8

Pamela J. Darling, 49 ECAB 286 (1998).

9

Thomas J. Engelhart, 50 ECAB 319 (1999).

10

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as
Exhibit 4.

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OWCP reviewed Dr. Goodman’s report in its August 8, 2012 decision and properly
found that a schedule award is not payable under FECA for any injury to the spine11 or based on
whole person impairment.12 While appellant may be entitled to a schedule award for permanent
impairment to an extremity even though the cause of the impairment originated in the spine. The
medical evidence does not establish such impairment.13 Dr. Goodman’s January 5, 2012 report
did not provide sufficient findings to meet the standards for rating an upper extremity
impairment in accordance with the sixth edition of the A.M.A., Guides. OWCP properly
determined that his report did not provide a basis for a schedule award under FECA.14 The
Board will affirm the August 8, 2012 decision.
Appellant may request a schedule award or increased schedule award 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 did not establish permanent impairment of a scheduled
member causally related to his accepted thoracic disc conditions.

11

Supra note 8.

12

N.M., 58 ECAB 273, note 9 (2007).

13

Supra note 9.

14

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580,
585 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the August 8, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2013
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE STEAM PLANT, Drakesboro, KY,
Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1911
Issued: September 7, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 29, 2016 appellant, through counsel, filed a timely appeal from an
August 25, 2016 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 to consider 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 met his burden of proof to establish a pulmonary condition
causally related to factors of his federal employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
prior decisions are incorporated herein by reference. The relevant facts are as follows.
On November 7, 2006 appellant, then a 58-year-old retired gas and diesel mechanic and
machinist, filed an occupational disease claim (Form CA-2) alleging that his chronic obstructive
airway disease, chronic bronchitis, and pneumoconiosis were due to his exposure to coal dust
and asbestosis in his federal employment from 1976 to 1996. He stated that he first became
aware of these conditions and the connection to his federal employment on November 6, 2006.
On February 8, 2007 OWCP accepted that appellant was exposed to coal dust and
asbestos on a daily basis for eight-plus hours, and that he wore no protective mask.
Appellant submitted an October 3, 2006 report from Dr. Glen R. Baker, Jr., Boardcertified in pulmonary disease and a certified B-reader, who reported that appellant had
occupational pneumoconiosis caused by his history of coal dust exposure and probable asbestos
exposure. Dr. Baker opined that appellant’s chronic obstructive airway disease and chronic
bronchitis were caused by a combination of coal dust exposure and smoking, with smoking being
a more substantial factor.
By report dated April 19, 2007, Dr. H. Dale Haller, Jr., Board-certified in pulmonary
disease and a second opinion physician, related that appellant did have some pulmonary
pathology with a degree of chronic obstructive pulmonary disease (COPD) and maybe some
early emphysema, but the predominant process was chronic bronchitis. He reported that he was
not at all convinced that appellant had evidence of pneumoconiosis or asbestos-related disease.
In an addendum, Dr. Haller reviewed computerized tomography (CT) scans obtained on May 14,
2007 and concluded that it was unlikely that appellant had coal workers’ pneumoconiosis or
asbestos-related disease.
On June 4, 2007 OWCP denied appellant’s claim finding that he failed to establish that
his pulmonary condition was causally related to his federal employment.
Appellant requested a hearing before a representative of OWCP’s Branch of Hearings
and Review on June 24, 2007. On August 14, 2007 a hearing representative found a conflict in
medical opinion and remanded the case for referral to an impartial medical specialist to resolve
the conflict on the issue of causal relationship between appellant’s exposures in federal
employment and any diagnosed pulmonary condition.
3

Docket No. 13-1977 (issued March 18, 2014); Docket No. 10-1804 (issued April 15, 2011); Docket No. 081675 (issued May 4, 2009).

2

OWCP referred appellant, together with the case record and a statement of accepted facts
(SOAF) to Dr. Manoj H. Majmudar, Board-certified in pulmonary disease, for an impartial
medical evaluation. On September 27, 2007 Dr. Majmudar noted appellant’s complaints and
occupational history and concluded that, while appellant had worked with coal dust at the
employing establishment for 23 years, his symptoms of shortness of breath and cough and
sputum production were probably related to chronic obstructive airway impairment, mostly
secondary to cigarette smoking and exposure to gasoline fumes. He concluded that there was no
clinical evidence suggestive of pneumoconiosis or asbestosis.
In a decision dated November 5, 2007, OWCP denied appellant’s claim. It found that
Dr. Majmudar’s opinion was afforded the special weight of medical evidence in resolution of the
conflict in medical opinion on the issue of causal relationship.
On November 15, 2007 appellant requested a hearing before hearing with a
representative of OWCP’s Branch of Hearings and Review. In a decision dated April 1, 2008,
the hearing representative affirmed the November 5, 2007 decision, finding that the special
weight of the medical evidence, as represented by Dr. Majmudar’s opinion, failed to establish
that appellant had a pulmonary condition causally related to his exposure to coal dust and
asbestos at work.
On May 27, 2008 appellant filed a timely appeal to the Board. In a decision dated May 4,
2009, the Board remanded the case for a supplemental report from Dr. Majmudar, the impartial
medical examiner.4 The Board noted that the SOAF did not adequately address the level of
appellant’s exposure to coal dust or asbestos in the course of his federal employment. Given
appellant’s objection that Dr. Majmudar was not a certified B-reader, the Board noted that
OWCP should consider whether it would be helpful to authorize Dr. Majmudar to consult a
certified B-reader.
OWCP further developed the evidence on appellant’s exposure. It prepared an addendum
to the SOAF incorporating additional evidence of the extent of workplace exposures and asked
Dr. Majmudar for a supplemental report.
In his supplemental report, Dr. Majmudar described findings on physical examination,
chest x-ray, and pulmonary function testing. He explained that appellant’s pulmonary function
test showed mild obstructive airway impairment, but no significant response to bronchodilator
therapy. Diffusion capacity and lung volumes were normal. Chest x-ray showed hyper inflated
lung, but no pleural plaque, pleural effusion, mass, or infiltrate. Dr. Majmudar further opined
that appellant’s shortness of breath was secondary to chronic obstructive lung disease and
chronic bronchitis, secondary to cigarette smoking. While appellant had significant exposure to
coal dust and there was some minimal asbestos exposure, there was no evidence of asbestosis,
pleural plaques, or any pneumoconiosis on his physical examination or chest x-ray finding.
Dr. Majmudar concluded that appellant’s symptoms were related to chronic obstructive airway
impairment, secondary to cigarette smoking. No evidence of asbestosis or pneumoconiosis was
noted.
4

Docket No. 08-1675 (issued May 4, 2009).

3

In a decision dated October 30, 2009, OWCP denied appellant’s claim for compensation.
It found that Dr. Majmudar’s opinion represented the special weight of the medical opinion
evidence and failed to substantiate that appellant sustained a pulmonary condition causally
related to his federal employment.
On November 5, 2009 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review.
In a February 5, 2010 report, Dr. William C. Houser, a Board-certified internist
specializing in pulmonary disease and an A-reader, diagnosed pneumoconiosis category 1 due to
mixed dust exposure including coal dust and asbestos, as well as mild COPD. He found that
appellant had sufficient exposure and roentgenographic findings appropriate for the diagnosis of
pneumoconiosis. Dr. Houser found that the restrictive changes on pulmonary function testing
were probably secondary to obesity and pneumoconiosis. He added that the findings of airway
obstruction were most likely secondary to inhaling respiratory irritants secondary to coal dust
and asbestos as well as cigarette smoking.
In a decision dated April 23, 2010, an OWCP hearing representative affirmed the denial
of appellant’s claim for compensation. The hearing representative found that Dr. Majmudar’s
opinion represented the special weight of the medical evidence.
Appellant filed an appeal with the Board on June 29, 2010. In an April 15, 2011
decision, the Board set aside OWCP’s April 23, 2010 decision and remanded the case for referral
to a second impartial medical examiner to resolve the conflict in the medical opinion evidence.5
OWCP thereafter referred appellant, to Dr. Jack H. Hasson, a Board-certified specialist in
pulmonary disease, a former certified B-reader, currently a certified A-reader and an assistant
professor of medicine, for an impartial medical evaluation.
Dr. Hrudaya P. Nath, a Board-certified diagnostic radiologist and professor of medicine,
interpreted a chest x-ray obtained for Dr. Hasson. Dr. Nath concluded that there was no acute
disease. Dr. Jubal R. Watts, Jr., a Board-certified diagnostic radiologist and certified B-reader,
interpreted the same chest x-ray. Dr. Watts’ impression was small opacities with a perfusion
compatible with pneumoconiosis.
Dr. Hasson evaluated appellant on July 21, 2011. He described his findings on
examination, and reviewed previous imaging studies. Dr. Hasson noted that appellant’s current
chest x-rays showed lungs free of infiltrates. There were no rounded or irregular opacities and
no conglomerate nodules. The pleural surfaces were free of plaque formation and pleural
thickening. Dr. Hasson found no evidence of pneumoconiosis. He concluded that appellant’s
significant pulmonary impairment was related to a number of factors, including COPD with an
asthmatic component. Dr. Hasson opined that appellant’s dyspnea and impairment were due to
his COPD related to tobacco exposure, but that pneumoconiosis played no role in his pulmonary
impairment. He concluded that he found no evidence of pneumoconiosis
5

Docket No. 10-1804 (issue April 15, 2011).

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In a decision dated September 2, 2011, OWCP denied appellant’s claim. It found that the
special weight of the medical evidence rested with the opinion of Dr. Hasson, supported by the
medical findings of Dr. Watts, the certified B-reader, and failed to substantiate that appellant’s
pulmonary condition was causally related to his federal employment exposures.
On September 8, 2011 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. On December 12, 2011 the hearing representative found that
the case was not in posture for decision. He observed that Dr. Hasson did not mention
Dr. Watts’ interpretation of appellant’s chest x-rays, which indicated that there was evidence of
pneumoconiosis. Dr. Hasson also did not mention having reviewed the SOAF. Further, he
provided no medical rationale to support his opinion that appellant sustained no impairment
related to exposure to coal dust. The hearing representative remanded the case for a
supplemental report from the impartial medical specialist to address specific questions.
Dr. Hasson provided a supplemental report dated January 4, 2012. He reported that he
did not believe pneumoconiosis was present based on Dr. Watts’ findings. Dr. Hasson explained
that he saw no evidence of pneumoconiosis after his own evaluation of the chest x-ray or other
evaluations of chest x-rays by other physicians, in spite of the fact that there were x-rays which
were felt to show pneumoconiosis. Further, he explained that the best evidence for no evidence
of pneumoconiosis on imaging studies was the CT scan, noted in his initial report, showing no
description of round or irregular opacities or any diagnosis of pneumoconiosis. Dr. Hasson
related that he considered CT scans to be the gold standard of imaging compared to a plain chest
x-ray, and that it was well known that the CT scan of the chest was a better imaging modality as
compared to a plain chest x-ray. He concluded that appellant’s pulmonary condition was totally
related to COPD from cigarette smoking. Although exposure to irritants and dust could
aggravate COPD, there was no evidence of any injury from either of those substances as there
was no evidence of pneumoconiosis on either his chest x-ray or his CT scan.
In a decision dated February 28, 2012, OWCP denied appellant’s claim. It found that the
special weight of the medical evidence rested with Dr. Hasson, the impartial medical examiner.
On March 15, 2012 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. On August 14, 2012 an OWCP hearing representative
remanded the case for another supplemental report from Dr. Hasson.
On November 1, 2012 OWCP received a response from Dr. Hasson in which he related
that he had reviewed the record and his opinion had not changed.
By decision dated November 13, 2012, OWCP denied appellant’s claim. It found that the
special weight of the medical evidence rested with the opinion of Dr. Hasson.
On November 28, 2012 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. By decision dated June 3, 2013, an OWCP hearing
representative affirmed the denial of appellant’s claim as there was no rationalized medical
evidence in support of appellant’s contention that the claimed pulmonary condition was causally

5

related to factors of his federal employment. She further found that Dr. Hasson’s opinion
represented the special weight of the medical evidence.
On August 28, 2013 appellant filed an appeal with the Board. The Board in a March 18,
2014 decision, set aside OWCP’s June 3, 2013 decision.6 The Board found that the opinion of
the impartial medical examiner, Dr. Hasson, was insufficient to resolve the conflict in the
medical opinion evidence as he provided insufficient rationale for his opinion. The Board also
found the opinion of Dr. Watts, a Board-certified diagnostic radiologist and certified B-reader,
who interpreted an x-ray as showing pneumoconiosis, was entitled to more weight than
Dr. Hasson’s opinion. The Board found that despite attempts by OWCP to obtain clarification
from Dr. Hasson, his opinion was insufficient to resolve the conflict of medical opinion in the
case. Thus, the case was remanded to OWCP for further development of the evidence.
Following the Board’s remand, in an April 3, 2014 memorandum of referral to specialist,
OWCP indicated the need for the type of specialist as “Pulmonary Specialist -- MUST be a Breader.”
On July 16, 2015 OWCP referred appellant to Dr. Kumar Yogesh, a Board-certified
pulmonologist, internist, and sleep medicine physician, to resolve the conflict in the medical
opinion evidence regarding whether appellant’s federal employment caused or aggravated any
pulmonary condition. At the time of the referral, it noted that in the questions posed, that the
impartial medical examiner should either refer appellant to a qualified B-reader to perform and
review x-ray interpretations or provide a prescription for a B-reader evaluation.
In a September 17, 2014 report, Dr. Yogesh, based upon a review of appellant’s medical
and employment histories, as well as his physical examination, diagnosed COPD, obstructive
sleep apnea, and multiple other health problems. He noted that appellant had a history of
smoking a pack of cigarettes a day from the time he was a teenager until he quit five to six years
ago. Dr. Yogesh reviewed a pulmonary function study performed in his office and found mildly
decreased lung capacity, normal residual volume, and moderate decreased diffusion. A chest xray was also performed which he interpreted as showing a 1.17 centimeter calcified opacity in
the right upper lung and several two to three millimeter opacities in both upper lungs. Based on
his review of appellant’s history of coal exposure, reports of pneumoconiosis by B-readers, and a
May 14, 2007 CT scan interpreted as negative for pneumoconiosis, Dr. Yogesh concluded that a
diagnosis of pneumoconiosis was less likely to be the cause of the chest x-ray abnormalities. He
noted that due to appellant’s large size, chest x-ray interpretations would be difficult to read.
Dr. Yogesh recommended a CT scan for an accurate determination of appellant’s respiratory
condition.
In letters dated November 18, 2014 and January 5, 2015, OWCP requested Dr. Yogesh,
as noted in June 17, 2014 questions provided to the doctor, to either refer appellant for a Breader evaluation or provide a prescription for a B-reader evaluation.
In response to OWCP’s request, Dr. Yogesh offered his opinion that referral to a B-reader
was unnecessary as the record contained several B-reader reports.
6

Docket No. 13-1977 (issued March 18, 2014).

6

An OWCP medical adviser reviewed Dr. Yogesh’s reports and concluded the evidence
was insufficient to determine whether appellant’s respiratory problems were employment related.
He recommended referral for a high resolution CT scan as recommended by Dr. Yogesh.
Dr. Yogesh referred appellant for a chest x-ray interpretation by a B-reader in a
March 16, 2015 prescription and for a CT chest scan by a B-reader in a March 17, 2015
prescription.
On April 22 and May 27, 2015 OWCP referred appellant to Dr. Jeff W. Selby, a certified
B-reader and physician Board-certified in internal medicine, pulmonology, and critical care, to
provide a second opinion as a certified B-reader and to review x-ray interpretations and other
diagnostic tests.
In a September 21, 2015 report, Dr. Selby summarized the x-ray interpretations, CT
scans, and PFS tests, and reports that reviewed. He reviewed a June 9, 2015 CT scan performed
by Dr. Anthony Perkins, a Board-certified diagnostic radiologist, and concurred with the
determination of no pneumoconiosis. Dr. Selby reviewed a June 9, 2015 chest x-ray
interpretation he performed. He found no evidence of any pleural or parenchymal abnormalities
associated with pneumoconiosis, but reported some bilateral lung calcified and noncalcified
granulomas. Based on his review of the objective tests and medical report, Dr. Selby opined that
there was no evidence of any asbestosis, mesothelioma, or pneumoconiosis. In finding no
evidence of pneumoconiosis, he relied on his review of a chest CT scan and the report from
Dr. Perkins. With respect to the legal definition of pneumoconiosis, Dr. Selby opined that the
preponderance of the evidence he reviewed clearly supported a diagnosis of asthma with waxing
and waning mild obstruction. He opined that appellant’s asthma was unrelated to workplace
exposure to asbestos or coal dust. Dr. Selby did not examine appellant.
By decision dated October 20, 2015, OWCP denied appellant’s claim. It found the
weight of the evidence rested with the opinion of Dr. Selby, a B-reader and referral physician,
who concluded that there was no evidence of pneumoconiosis or any lung impairment caused or
aggravated by his federal employment.
In a letter dated November 5, 2015, counsel requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. He, in a June 23, 2016 letter,
changed the request for an oral hearing to a review of the written record. Counsel summarized
the factual and medical histories. He alleged that OWCP erred in relying upon Dr. Selby’s
opinion as he never examined appellant and was not entitled to be accorded determinative
weight.
By decision dated August 25, 2016, OWCP’s hearing representative affirmed the denial
of appellant’s claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 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
7

5 U.S.C. § 8101 et seq.

7

United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.8 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.9
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.12 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.13
Section 8123(a) of FECA provides in pertinent part: if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.14 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.15
Board case precedent provides that, when OWCP obtains an opinion from an impartial
medical specialist for the purpose of resolving a conflict in the medical evidence and the
specialist’s opinion requires clarification or elaboration, OWCP must secure a supplemental
8

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

9

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

10

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Donald W. Wenzel, 56 ECAB
390 (2005); Roy L. Humphrey, 57 ECAB 238 (2005).
11

Y.J., Docket No. 08-1167 (issued October 7, 2008); D’Wayne Avila, 57 ECAB 642 (2006); A.D., 58 ECAB
149 (2006).
12

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

13

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

14

5 U.S.C. § 8123(a); Darlene R. Kennedy, 57 ECAB 414 (2006); R.C., 58 ECAB 238 (2006).

15

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

8

report from the specialist to correct the deficiency in his original report. Only when the impartial
specialist is unable to clarify or elaborate on his original report or if his supplemental report is
incomplete, vague, speculative or lacking in rationale, should OWCP refer the claimant to
another impartial specialist.16
ANALYSIS
In the last appeal, the Board remanded the case for a third impartial medical evaluation to
resolve the conflict in the medical opinion evidence as to whether appellant sustained a
pulmonary condition causally related to his federal employment. OWCP referred appellant to
Dr. Yogesh, a Board-certified pulmonologist, internist, and sleep medicine physician, to resolve
the conflict. Based on a referral order from Dr. Yogesh, OWCP referred appellant to Dr. Selby,
to provide review as a certified B-reader and second opinion physician of x-ray results and other
diagnostic tests. In denying appellant’s claim, OWCP relied upon Dr. Selby’s opinion that there
was no evidence of pneumoconiosis or any pulmonary condition attributable to appellant’s
employment.
The Board finds that this case is not in posture for decision as OWCP improperly relied
upon the report of Dr. Selby, a certified B-reader and OWCP referral physician, instead of the
impartial medical examiner, Dr. Yogesh to resolve the conflict in medical evidence.
In a September 17, 2014 report, Dr. Yogesh diagnosed COPD, obstructive sleep apnea
and multiple other health problems. He provided examination findings, reviewed diagnostic
tests, included x-ray interpretations and PFS studies, and concluded that the diagnosis of
pneumoconiosis was less likely to be the cause of the chest x-ray abnormalities. Dr. Yogesh
recommended a CT scan for an accurate determination of appellant’s respiratory condition as
appellant’s size precluded an accurate reading by x-ray interpretation. He did not specifically
address whether appellant’s pulmonary conditions had been caused or aggravated by his
employment.17 In addition, Dr. Yogesh recommended further testing in the form of a CT scan to
differentiate and determine the origins of the capacities noted on the chest x-ray and provide an
accurate determination regarding appellant’s condition. Thus, his opinion was insufficient to
resolve the medical conflict regarding whether appellant had an employment-related pulmonary
condition.
OWCP referred appellant for a B-reader evaluation with Dr. Selby, who reviewed the
medical evidence and had diagnostic testing performed. Dr. Selby reviewed an x-ray
interpretation he performed and a CT scan and opined that there was no evidence of
pneumoconiosis or any employment-related pulmonary condition.
By decision dated
October 20, 2015, OWCP found the weight of the medical opinion evidence rested with
Dr. Selby’s opinion, which was affirmed by an OWCP hearing representative in an August 25,
2016 decision. This was improper. To properly resolve the conflict of medical opinion, it is the
impartial medical specialist who should provide a reasoned opinion regarding appellant’s
16

See Nancy Keenan, 56 ECAB 687 (2005); Margaret Ann Connor, 40 ECAB 214 (1988).

17

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value).

9

condition and whether it had been caused or aggravated by the accepted employment factors.
OWCP’s procedures provide that if a referral physician needs to obtain information from another
provider, the referral physician is authorized to make subsidiary referrals as necessary (for
instance, a psychiatrist may refer a claimant to a clinical psychologist for testing). However, the
referral physician should submit a summary report discussing any discrepancies among the
physicians’ viewpoints so that questions posed by OWCP are fully answered.18
OWCP procedures also provide that a report by someone other than the physician
selected to resolve the conflict cannot be used to resolve a conflict in medical opinion and cannot
be afforded special weight.19 As OWCP requested a B-reader to perform and review an x-ray
interpretation, it should have forwarded Dr. Selby’s report to Dr. Yogesh for review. According
to OWCP procedures, Dr. Selby’s opinion could not constitute the weight of the evidence to
resolve the conflict was not the selected impartial medical examiner.20 OWCP should have
requested a supplemental report from Dr. Yogesh based upon review of Dr. Selby’s report. On
remand it should request a supplemental report from Dr. Yogesh. After such further
development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision. Further development of the
medical opinion evidence is required.

18

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b)(7)
(July 2011).
19

Id. at Chapter 3.500.4(g)(3)(a) (July 2011).

20

Id.

10

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 25, 2016 is set aside and the case remanded for further
development consistent with the above opinion.
Issued: September 7, 2017
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Carol Stream, IL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-665
Issued: July 16, 2014

Case Submitted on the Record

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

JURISDICTION
On February 3, 2014 appellant filed a timely appeal of a January 2, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant established that his low back pain and sciatica were
causally related to the accepted October 2, 2013 incident.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 2, 2014 decision, OWCP received additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20
C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal appellant argues that the evidence of record establishes his claim.
FACTUAL HISTORY
On October 29, 2013 appellant, then a 30-year-old mail handler assistant, filed a
traumatic injury claim alleging that on October 2, 2013 he injured his lower back as the result of
pushing an all-purpose container. He stopped work on October 2, 2013.
Accompanying his claim were reports dated October 10 to 23, 2013 from Dr. Mitchell
Goldflies, a treating Board-certified orthopedic surgeon, and an October 8, 2013 report from a
Dr. Nadira Alikhan, who noted that appellant was treated for a work-related back muscle pain
and sciatica nerve pain and released to work on October 23, 2013.
In a November 5, 2013 disability note, a physician indicated that appellant was totally
disabled due to back pain for the period November 4 to 11, 2013.3
A November 7, 2013 duty status report (Form CA-7), Dr. Goldflies noted that appellant
was disabled from working. He diagnosed pain, tenderness and limited range of motion and
stated that appellant injured his back at work on October 2, 2013.
In a November 7, 2013 progress note, Dr. Goldflies reported that appellant was in distress
with decreased hips, knees and spine range of motion with guarding and pain. He diagnosed
sciatica.
In a November 7, 2013 attending physician’s report, Dr. Goldflies noted that appellant
injured his back at work. He diagnosed sciatica and checked “yes” to the form question of
whether the condition was employment related. On physical examination, Dr. Goldflies noted
tenderness on palpation, decreased range of motion and pain.
By letter dated December 2, 2013, OWCP informed appellant that it initially appeared
that he had sustained a minor injury and that the merits of the claim had not been formally
adjudicated. It stated that his claim was reopened and that the evidence of record was
insufficient to support his claim. Appellant was advised as to the medical and factual evidence
required to support his claim and provided 30 days to submit additional information.
In a December 23, 2013 attending physician’s report, Dr. Goldflies advised that appellant
remained totally disabled from work. Under the history of the injury, he noted that appellant
presented with low back pain, sciatica radiating down the left leg and numbness in the left leg
and arm. The diagnoses included sciatica and low back pain. Dr. Goldflies checked “yes” to the
form question of whether the condition was employment related with an explanation stating the
condition was caused by the job’s repetitive motion.

3

The physician’s signature is illegible.

2

By decision dated January 2, 2014, OWCP denied appellant’s claim. It found that the
medical evidence was insufficient to establish a back injury as a result of the October 2, 2013
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of her claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.5 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.6
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.7
First, the employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time, place and in the manner alleged.8 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.9
If a claimant does establish an employment factor, he must also submit medical evidence
showing that a medical condition was caused by such a factor.10 The medical evidence required
to establish causal relationship is generally rationalized medical opinion evidence from a
physician. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the employee.11

4

5 U.S.C. § 8101 et seq.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 5.
10

C.D., Docket No. 09-1881 (issued April 20, 2010); Effie Morris, 44 ECAB 470 (1993).

11

D.S., Docket No. 09-860 (issued November 2, 2009); I.J., 59 ECAB 408 (2008); B.B., 59 ECAB 234 (2007);
Solomon Polen, 51 ECAB 341 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

3

ANALYSIS
OWCP accepted that the October 2, 2013 work incident occurred as alleged. It denied
appellant’s claim on the grounds that the medical evidence was not sufficient to establish his low
back condition was causally related to the accepted work incident. The Board finds that
appellant failed to submit sufficient medical evidence to establish that his low back condition is
causally related to the October 2, 2013 work incident.
In reports dated October 10 to November 6, 2013, Dr. Goldflies reported diagnoses of
low back pain and sciatica which he attributed to appellant’s work. In a November 7, 2013 duty
status report, Dr. Goldflies noted that appellant injured his back at work on October 2, 2013. He
provided no opinion explaining how the diagnosed conditions were caused or aggravated by the
accepted October 2, 2013 employment incident. Medical evidence that offers no opinion
regarding the cause of an employee’s condition is of diminished probative value and insufficient
to establish causal relationship.12
The record also contains attending physician’s forms dated November 7 and
December 23, 2013 in which Dr. Goldflies checked “yes” to the question of whether the
conditions had been caused or aggravated by the identified employment activity. Dr. Goldflies
attributed the condition to appellant’s repetitive work without any supporting rationale or
explanation as to how appellant’s job duties caused or contributed to the diagnosed sciatica
condition. The Board has held that when a physician’s opinion on causal relationship consists
only of checking “yes” to a form question, without explanation or rationale, that opinion is of
diminished probative value and is insufficient to establish a claim.13
Appellant also submitted a November 5, 2013 disability note from a doctor with an
illegible signature. The Board finds that this report is of no probative value as the author cannot
be identified as a physician.14
Dr. Alikhan diagnosed work-related muscle back pain in an October 8, 2013 report; but
this report is also of diminished probative value as the physician did not provide a history of the
October 2, 2013 employment incident; did not describe the employment activity appellant
engaged in on October 2, 2013; or provide any medical rationale explaining how and why
appellant’s condition was attributable to his employment activity.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.15 Causal relationship must be established by
12

A.F., 59 ECAB 714 (2008); Ellen L. Noble, 55 ECAB 530 (2004).

13

D.D., 57 ECAB 734 (2006); Cecelia M. Corley, 56 ECAB 662 (2005).

14

See Merton J. Sills, 39 ECAB 572, 575 (1988).

15

See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., 59 ECAB 158 (2007); Robert Broome, 55 ECAB
339 (2004); Anna C. Leanza, 48 ECAB 115 (1996).

4

rationalized medical opinion evidence and she failed to submit such evidence. OWCP advised
appellant that it was his responsibility to provide a comprehensive medical report which
described her symptoms, test results, diagnosis, treatment and the physician’s opinion, with
medical reasons, on the cause of his condition. Appellant failed to submit appropriate medical
documentation in response to OWCP’s request.
CONCLUSION
The Board finds that appellant failed to meet his burden in establishing that his back pain
and sciatica were causally related to the accepted October 2, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 2, 2014 is affirmed.
Issued: July 16, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, REMOTE ENCODING )
CENTER, East Syracuse, NY, Employer
)
__________________________________________ )
S.M., Appellant

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

Docket No. 08-418
Issued: September 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 21, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated July 18, August 28 and October 25, 2007
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether the Office properly suspended appellant’s compensation
benefits effective October 25, 2007 on the grounds that she failed to complete a Form EN-1032
as requested on June 6, 2007; (2) whether the Office properly denied modification of the
January 6, 2000 wage-earning capacity determination; (3) whether appellant received an
overpayment in the amount of $25,898.48; (4) whether the overpayment should be waived as
appellant was not at fault; and (5) whether the Office properly determined to collect the
overpayment by withholding $400.00 from appellant’s compensation benefits every 28 days.

FACTUAL HISTORY
This case has previously been before the Board on appeal. On March 25, 1998 the Office
accepted that appellant, a 45-year-old data entry clerk, sustained bilateral carpal tunnel syndrome
due to factors of her federal employment. By decision dated January 6, 2000, it reduced
appellant’s compensation benefits based on her actual earnings as a data transcriber working
30 hours a week, finding that the duties of this position corresponded to her work restrictions.
Following the January 6, 2000 decision, appellant filed a recurrence of disability claim on
February 15, 2002. She noted that the employing establishment terminated her appointment on
January 31, 2002 as the facility closed. Appellant refused the involuntary reassignment offered
by the employing establishment. She submitted medical evidence in support of her claim for
recurrence of disability. The Office accepted appellant’s claim for recurrence of total disability
beginning on January 25, 2002 and entered her on the periodic rolls by decision dated
June 6, 2002. It authorized compensation benefits due to the recurrence of total disability from
January 25, 2002 through September 19, 2003. The Office rescinded the acceptance of this
claim by decision dated September 19, 2003, finding that the medical evidence did not establish
a change in the nature and extent of appellant’s injury-related condition and that she was subject
to a noncompensable reduction-in-force. The rescission decision constituted the basis for the
Office’s August 19, 2004 preliminary finding an overpayment of compensation and the hearing
representative’s May 2, 2006 decision affirming that an overpayment had in fact occurred.1
Appellant appealed this decision to the Board. By order dated May 21, 2007,2 the Board found
that the Office’s September 19, 2003 decision had improperly stated the legal issue in appellant’s
claim. The case was remanded for determination of whether the January 6, 2000 wage-earning
capacity determination should be modified. The facts and the circumstances of the case as set
out in the Board’s prior decision are adopted herein by reference.
In a letter dated June 6, 2007,3 the Office requested information from appellant needed to
determine if she was entitled to benefits under the Federal Employees’ Compensation Act. It
directed appellant to complete the enclosed EN-1032 form within 30 days. The Office informed
appellant that if she failed to submit the completed form within the allotted time period her
compensation benefits would be suspended in accordance with 20 C.F.R. § 10.528.
In a letter dated June 12, 2007, the Office requested additional factual and medical
evidence in support of appellant’s request for modification of the January 6, 2000 wage-earning
capacity determination. Appellant did not respond. By decision dated July 18, 2007, the Office
declined to modified the January 6, 2000 wage-earning capacity determination. It noted that
appellant had filed a claim for recurrence on January 25, 2002, which was accepted on
June 6, 2002. The Office further stated that this claim was rescinded by decision dated
September 19, 2003. It stated, “By letter dated June 12, 2007 and were [sic] thereby afforded the
1

In an overpayment decision, the Board must first determine whether an overpayment occurred by examining the
underlying decision of the Office. Russell E. Wageneck, 46 ECAB 653, 659 (1995).
2

Docket No.06-1828 (issued May 21, 2007).

3

This letter was properly addressed to appellant at her address of record: 26 Woodworth Drive, Central Square,
NY 13036.

2

opportunity to provide supportive evidence. You were advised of the time frame within which
this evidence was to be submitted. No additional evidence was received.” The Office then
found that appellant had not established that she was entitled to compensation for total
disability. It concluded, “In your case, the employing agency provided you with limited duty
effective January 2, 1999 and a formal LWEC [loss of wage-earning capacity] decision was
issued on September 23, 1999. That decision will stand unless one of the criteria for
modification as outlined above has been met.”
The Office again issued a preliminary finding of overpayment on July 18, 2007 finding
that appellant was without fault in the creation of an overpayment in the amount of $28,698.48
due to the rescission of her claim for recurrence of disability. Appellant responded on
August 17, 2007 requesting a decision on the written evidence and waiver of the overpayment.
She completed an overpayment recovery questionnaire.
By decision dated August 28, 2007, the Office finalized its preliminary overpayment
decision finding that appellant had received an overpayment of compensation in the amount of
$25,898.48, that she was without fault in the creation of the overpayment and that the
overpayment would be recovered by withholding $400.00 from appellant’s continuing
compensation benefits.
By decision dated October 25, 2007, the Office suspended appellant’s compensation
benefits effective November 25, 2007 on the grounds that she failed to complete a Form
CA-1032 mailed to her on June 6, 2007.
LEGAL PRECEDENT -- ISSUE 1
Pursuant to section 10.528 of the Office’s regulations, it will periodically require each
employee who is receiving compensation benefits to complete an affidavit as to any work or
activity indicating an ability to work, which the employee has performed for the prior
15 months.4 If an employee who is required to file such a report fails to do so within 30 days of
the date of the request, his or her right to compensation for wage loss is suspended until the
Office receives the requested report. At that time the Office will reinstate compensation
retroactive to the date of suspension if the employee remains entitled to compensation.5
ANALYSIS -- ISSUE 1
On June 6, 2007 the Office sent appellant a correctly addressed request for completion of
an EN-1032 form. It requested a response within 30 days from the date of the CA-1032 and
EN-1032 forms. The record does not contain a response from appellant to this request. As she
did not respond to the Office’s request for completion of the EN-1032 form, the Board finds that
the Office properly suspended her wage-loss compensation pursuant to 20 C.F.R. § 10.528
effective November 25, 2007.
4

20 C.F.R. § 10.528.

5

Id.; see also 20 C.F.R. § 10.525; Robert A. Robbins, Docket No. 05-728, (issued July 15, 2005); Eugene S.
Moye, Docket No. 04-2072 (issued February 25, 2005).

3

LEGAL PRECEDENT -- ISSUE 2
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless the original rating was in error, there is a material
change in the nature and extent of the injury-related condition or that the employee has been
retrained or otherwise vocationally rehabilitated. The burden of proof is on the party attempting
to show a modification of the wage-earning capacity.6
In determining whether a claimant has discharged his or her burden of proof and is
entitled to compensation benefits, the Office is required by its statute, regulations and Board
precedent to make findings of fact.7 Section 8124(a) of the Act provides: “The [Office] shall
determine and make a finding of fact and make an award for or against payment of
compensation....”8 Section 10.126 of Title 20 of the Code of Federal Regulations provides:
“The decision shall contain findings of fact and a statement of reasons.”9
The Office’s procedure manual specifies additional requirements for a final Office
decision denying a claim for benefits. In the subsection titled, “Discussion of Evidence” the
procedure manual states, “[T]he [Office] should identify and discuss all evidence which bears on
the issue at hand, including any unsuccessful attempts to obtain significant evidence ... [and]
should summarize the relevant facts and medical opinions....” In the subsection titled, “Basis for
Decision” the procedure manual states, “The reasoning behind the [Office’s] evaluation should
be clear enough for the reader to understand the precise defect of the claim and the kind of
evidence which would overcome it.”10 In the section titled, “How to Write Notices of
Decisions” the procedure manual states, “A finding that claimant failed to meet the burden of
proof is properly made from the evidence or lack of it and not simply because the claimant did
not respond to a request for information from the [Office].”11
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision. The July 18, 2007 decision of
the Office does not fully comply with the Board’s remand order to consider appellant’s claim as
a request for modification of a loss of wage-earning capacity decision. The Board’s May 21,
2007 order clearly set aside the September 19, 2003 decision rescinding appellant’s recurrence
claim and remanded the case for adjudication on whether modification of a loss of wage-earning
capacity decision was warranted. On remand, the Office found that appellant failed to establish
that modification of a loss of wage-earning capacity decision was warranted without providing
any rationale or discussion of the factual and medical evidence of record. Its decision did not
6

Harley Sims, Jr., 56 ECAB 320, 323-24 (2005).

7

Avalon C. Bailey, 56 ECAB 223 (2004).

8

5 U.S.C. § 8124(a).

9

20 C.F.R. § 10.126.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4e (March 1997).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5a(2)(b) (March 1997).

4

contain any discussion of the factual or medical evidence submitted by appellant in conjunction
with her recurrence of disability claim or specify the precise defect of the claim so that she
would know the kind of evidence needed to overcome it.12 This decision therefore is not
sufficient for a finding of overpayment beginning on January 25, 2002 on the grounds that
appellant was not entitled to compensation, as the Office has not properly adjudicated whether
her loss of wage-earning capacity decision should be modified.
CONCLUSION
The Board finds that the Office met its burden of proof to suspend appellant’s
compensation benefits effective November 25, 2007 on the grounds that she failed to complete
the requested Form EN-1032. The Board further finds that the Office’s July 18, 2007 decision
regarding modification of appellant’s January 6, 2000 wage-earning capacity determination is
not in posture for decision.13
ORDER
IT IS HEREBY ORDERED THAT the October 25, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed. The August 28 and July 18, 2007 decisions of
the Office are set aside and remanded for further development consistent with this decision of the
Board.
Issued: September 9, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
12

Avalon C. Bailey, supra note 7; P.N., Docket No. 06-662 (issued September 14, 2006).

13

Due to the disposition of this issue it is not appropriate for the Board to address the issues of the August 28,
2007 final overpayment decision.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Topeka, KS, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
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)
)
)
)
)
)

Docket No. 14-745
Issued: July 29, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On February 18, 2014 appellant filed an appeal from a November 29, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP). The Board assigned Docket No.
14-745.
On April 10, 2013 appellant filed a traumatic injury claim (Form CA-1). On her
Form CA-1 she listed her address. By letters dated April 22 and 30, 2013, OWCP informed
appellant the case number assigned to her claim and advised her of the medical and factual
evidence needed. It mailed these letters to the address noted on the Form CA-1.
Although properly addressed based on the information provided by appellant on her
Form CA-1, the U.S. Post Office returned the April 22 and 30, 2013 letters to OWCP as
undeliverable. It noted on the envelope: return to sender, not deliverable as addressed, unable to
forward. OWCP received the nondelivered letters on May 7 and 28, 2013.
OWCP reissued the June 3, 2013 development letter to an updated address. In an
undated letter received July 5, 2013, appellant responded to OWCP’s development letter. She
also requested that her address be changed and provided a new address.

By decision dated July 9, 2013, OWCP denied appellant’s claim finding that the evidence
of record failed to establish fact of injury. The decision was addressed to the previous address of
record.
In a telephone call dated August 7, 2013, a claims examiner advised appellant that her
case had been denied and advised her to follow her appeal rights.
By letter dated August 7, 2013, appellant informed OWCP that she had not received her
decision. She further noted her new address.
On October 7, 2013 appellant requested review of the written record before the Branch of
Hearings and Review, again noting her new address.
By decision dated November 29, 2013, the Branch of Hearings and Review denied
appellant’s request for a review of the written record finding that her request was not made
within 30 days of the July 9, 2013 OWCP decision. This decision was also mailed to her
previous address of record.
On December 30, 2013 the November 29, 2013 decision was returned to OWCP as being
nondeliverable and unable to forward.
OWCP regulations provide that a copy of the decision shall be mailed to the employee’s
last known address.1 Under the mailbox rule, it is presumed, in the absence of evidence to the
contrary, that a notice mailed to an individual in the ordinary course of business was received by
that individual. This presumption arises when it appears from the record that the notice was
properly addressed and duly mailed.2 However, as a rebuttable presumption, receipt will not be
assumed when there is evidence of nondelivery.3 Also, it is axiomatic that the presumption of
receipt does not apply where a notice is sent to an incorrect address.4
OWCP mailed the July 9 and November 29, 2013 decisions to an incorrect address.
Appellant had requested her address be changed, prior to the issuance of the July 9, 2013
decision, and again noted her new address on August 7 and October 7, 2013, yet the
November 29, 2013 decision was again mailed to the incorrect address. Thus, appellant could
not have timely requested an appeal from an OWCP decision that she did not receive.5
As OWCP mailed appellant’s decisions to an incorrect address, the Board finds that
OWCP did not properly issue its July 9, 2013 decision.6 As the July 9, 2013 decision was
1

20 C.F.R. § 10.127.

2

See Michelle Lagana, 52 ECAB 187 (2000).

3

See C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-526 (issued September 14, 2009).

4

See Clara T. Norga, 46 ECAB 473 (1995); W.A., Docket No. 06-1452 (issued November 27, 2006).

5

E.C., Docket No. 11-1774 (issued February 27, 2012).

6

See Tammy J. Kenow, 44 ECAB 619 (1993).

2

improperly issued, appellant could not have timely requested an appeal for review of the written
record which was denied by OWCP in its November 29, 2013 decision. For these reasons, the
case will be remanded to OWCP for proper issuance of a de novo decision.7 Accordingly,
IT IS HEREBY ORDERED THAT the November 29, 2013 nonmerit decision of the
Office of Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
further action consistent with this order of the Board.
Issued: July 29, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

M.C., Docket No. 12-1778 (issued April 12, 2013); J.M., Docket No. 12-543 (issued March 12, 2013).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tolowa, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0956
Issued: October 19, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 18, 2020 appellant, through counsel, filed a timely appeal from a September 27,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s September 27, 2019 decision was March 25, 2020.
Because using the March 26, 2020 date of receipt would result in the loss of appeal rights, the date of the postmark is
considered the date of filing. The date of the U.S. Postal Service postmark is March 18, 2020, rendering the appeal
timely filed. See 20 C.F.R. § 501.3(f)(1).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.4
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a recurrence
of disability as of June 28, 2017 causally related to her accepted May 31, 2016 employment injury;
and (2) whether appellant has met her burden of proof to establish recurrences of disability
commencing June 2, 2018 and July 3, 2018 causally related to her accepted May 31, 2016
employment injury.
FACTUAL HISTORY
On June 3, 2016 appellant, then a 36-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 31, 2016 she was involved in a motor vehicle accident in the
performance of duty. She stopped work on May 31, 2016. On June 17, 2016 OWCP accepted the
claim for neck sprain/strain, lumbar sprain/strain, right knee contusion, right ankle sprain, right
shoulder contusion, and right hip contusion. It paid appellant wage-loss compensation on the
supplemental rolls from July 16 through October 15, 2016 and on the periodic rolls from
October 16, 2016. On March 29, 2017 OWCP accepted additional conditions of radiculopathy,
cervical region, and herniated disc at C4-5 and C5-6. Appellant returned to a full-time modified
letter carrier position on June 19, 2017. By decision dated March 14, 2018, OWCP determined
that the modified letter carrier positon fairly and reasonably represented her wage-earning
capacity. As appellant had no loss of wage-earning capacity (LWEC), it terminated her entitlement
to wage-loss compensation.
In a June 20, 2018 report, Dr. William A. Matarese, a Board-certified orthopedic surgeon,
indicated that appellant had recurring problems of neck pain, lower back pain, and right shoulder
pain, with the neck and back pain more severe. He noted examination findings and provided an
assessment of sprain of ligaments of lumbar spine, unchanged; other specific joint derangements
of right shoulder, unchanged, and sprain of ligaments of cervical spine, unchanged. Dr. Matarese
recommended physical therapy. He indicated that appellant could return to modified duty as of
June 25, 2018 with no lifting, pushing, or pulling more than 10 pounds. In a June 22, 2018
attending physician’s report (Form CA-20), Dr. Matarese noted that appellant was disabled from
June 2 through 25, 2018 and that she could return to light duty with restrictions of no lifting,
pushing, or pulling on June 25, 2018.
In a July 11, 2018 report, Dr. Matarese diagnosed cervical disc disorder at C5-6 level with
radiculopathy (primary), other specific joint derangements of right shoulder, sprain of ligaments
of cervical spine, and sprain of ligaments of lumbar spine (primary and subsequent encounters).
3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the September 27, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

2

He prescribed a course of physical therapy and referred appellant for a cervical magnetic resonance
imaging (MRI) scan.
On October 12, 2018 appellant filed a notice of recurrence (Form CA-2a) alleging that on
June 28, 2017 she stopped work due to a time loss from work as a result of her May 31, 2016
employment injury. She indicated that when she woke up on June 28, 2017 her back was in a
spasm and would not allow her to stand straight up or walk. Appellant noted that she has not
received any medical care since being discharged in May 2017. Evidence of record revealed that
she underwent a course of physical therapy. In a July 6, 2017 report, Dr. Steven H. Dane, a Boardcertified neurologist, noted a May 31, 2016 date of injury and that appellant was on modified duty.
He indicated that she had a flare-up of the neck and lower back pain that kept her out of work for
five days. Dr. Dane described examination findings, noting no significant change from her prior
cervical and lumbar examinations, and provided provisional diagnoses of cervical radiculopathy,
disc displacement with radiculopathy. He indicated that ap pellant could return to work on
July 8, 2017.
On October 16, 2018 appellant filed two additional CA-2a forms claiming recurrences of
disability due to a worsening of her employment-related conditions on June 2, 2018 and
July 3, 2018. She indicated that she experienced pain while working and daily pain after finishing
work. Appellant noted that she was unable to stand straight and that this had been happen ing since
the original injury.
OWCP received claims for compensation (Form CA-7) from appellant, claiming
intermittent disability from work from July 3 through December 27, 2018.
In development letters dated October 23, 2018, OWCP advised appellant that it received
her CA-2a forms completed on October 12 and 16, 2018. It noted that, following her May 31,
2016 work-related accident, she returned to work on June 19, 2017 in a full-time modified-duty
capacity. Appellant had work stoppages on June 28, 2017 and June 2 and July 3, 2018. OWCP
noted the deficiencies of the evidence received and to submit additional evidence showing a change
in the nature and extent of her limited-duty employment or a change in the extent of her injuryrelated condition. It provided a questionnaire for appellant’s completion. OWCP afforded her 30
days to respond.
Appellant subsequently submitted two narrative statements indicating that she had physical
therapy and was disabled from work from June 28 to July 31, 2017, June 2 through 24 and July 3,
2018 to present. She also advised that every recurrence happened while she was asleep and, when
she woke up, she could not move her neck or back or shoulder.
In a November 14 and 30, 2018 reports, Dr. Matarese indicated that cervical pain had been
a recurring problem. He noted examination findings of the cervical spine, lumbar spine and right
shoulder and diagnosed cervical disc disorder at C5-6 with radiculopathy, other specific joint
derangements of right shoulder, and sprain of ligaments of lumbar spine. Dr. Matarese indicated
that appellant was unable to work for three weeks.
By decision dated December 11, 2018, OWCP denied appellant’s claim for a recurrence of
disability commencing June 28, 2017. By separate decision also dated December 11, 2018, it

3

denied her claim for recurrence of disability commencing June 2, 2018. By third decision dated
December 11, 2018 decision, OWCP denied appellant’s claim for recurrence of disability
commencing July 3, 2018.
On July 1, 2019 appellant, through counsel, requested reconsideration of OWCP’s three
December 11, 2018 decisions and submitted additional evidence.
In a December 4, 2018 report, Dr. Matarese described the May 31, 2016 employment
incident and appellant’s course of treatment, noting that she did not improve with conservative
treatment. He also discussed findings of cervical diagnostic testing. Dr. Matarese diagnosed
cervical C5-6 disc herniation with radiculopathy. He indicated, from an orthopedic standpoint,
that appellant exhausted a full course of conservative treatment two years subsequent to the
May 31, 2016 employment incident and that she remained symptomatic. Dr. Matarese advised
that she required operative intervention and suggested C5-6 discectomy and fusion.
In progress notes dated August 22 and November 14 and 30, 2018, and January 30,
February 22, March 30, May 8 and 13, and July 3, 2019, Dr. Matarese noted physical examination
findings and indicated that appellant’s neck and back pain have been a recurring problem, discuss
findings from diagnostic testing, and provide diagnoses of cervical disc disorder at C5-6 level with
radiculopathy (primary), sprain of ligaments of cervical spine (initial and subsequent encounters),
sprain of ligaments of lumbar spine (initial and subsequent encounters), other specific joint
derangements of right shoulder, not elsewhere classified, sprain. In an August 22, 2018 and
subsequent reports, Dr. Matarese opined that appellant was unable to work.
In an August 1, 2019 report, Dr. Ivan Chen, a physical medicine and rehabilitation
specialist, reported a history of the May 31, 2016 employment-related motor vehicle accident and
noted that appellant’s low back and neck pain began after such accident. He presented examination
findings and provided an assessment of low back pain, cervicalgia, and other cervical disc
displacement, unspecified cervical region. Dr. Chen recommended right cervical epidural
injections with fluoroscopy to treat discogenic pain.
An August 10, 2019 MRI scan report of the lumbar spine revealed disc displacement at the
L3-4, L4-5, L5-S1 levels without significant central canal or neural foraminal narrowing.
By decision dated September 27, 2019, OWCP denied modification of its three
December 11, 2018 decisions.
LEGAL PRECEDENT -- ISSUE 1
OWCP’s procedures require that in cases where recurrent disability for work is claimed
within 90 days or less from the first return to duty, the claimant is not required to produce the same
evidence as a recurrence claimed long after apparent recovery and return to work.5 Thus, in cases

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013); see also R.E.,
Docket No. 20-0421 (issued May 17, 2021); R.W., Docket No. 17-0720 (issued May 21, 2018).

4

where a recurrence is claimed within 90 days of the first return to duty, the focus is on disability
rather than causal relationship of the accepted condition(s) to the work injury. 6
The Board has held that, if recurrent disability from work is claimed within 90 days or less
from the first return to duty, the attending physician should describe the duties whic h the employee
cannot perform and demonstrate objective medical findings that form the basis for the renewed
disability from work. 7
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision regarding whether appellant has
met her burden of proof to establish a recurrence of disability beginning June 28, 2017 causally
related to her accepted May 31, 2016 employment injury.
OWCP’s procedures provide that, in cases where recurrent disability from work is claimed
within 90 days or less from the first return to duty, the claimant is not required to produce the same
evidence as for a recurrence claimed long after apparent recovery and return to work. 8 In cases
where recurring disability from work is claimed within 90 days or less from th e first return to duty,
the focus is on disability rather than causal relationship.9 The attending physician should describe
the duties which the employee cannot perform and the demonstrated objective medical findings
that form the basis for the renewed disability from work. 10
On March 29, 2017 OWCP accepted additional conditions of radiculopathy, cervical
region, and herniated disc at C4-5 and C5-6. Appellant returned to a full-time modified letter
carrier position on June 19, 2017 and claimed a recurrence of disability on June 28, 2017. The
evidence of record contemporaneous to the claimed recurrence include physical therapy reports
and Dr. Dane’s July 16, 2017 report, in which he noted that appellant had a flare-up of her neck
and lower back pain that kept her out of modified-duty work for five days and provided provisional
diagnoses of cervical radiculopathy, disc displacement with radiculopathy. As appellant claimed
a recurrence of disability within 90 days of her first return to duty, OWCP should have developed
and decided the claim under the proper recurrence standard, emphasizing disability rather than
causal relationship. 11 However, the October 23, 2018 OWCP development letter improperly
instructed her to provide medical evidence in accordance with the standard for a recurrence of

6

R.E., id.; K.R., Docket No. 19-0413 (issued August 7, 2019).

7

M.H., Docket No. 19-1552 (issued February 2, 2021); A.B., Docket No. 18-0978 (issued September 6, 2019); J.F.,
58 ECAB 124 (2006).
8

Supra note 5 at Chapter 2.1500.5(a) (June 2013); M.H., id.; R.W., supra note 5.

9

Id.; K.R., supra note 6.

10

Supra note 5 at Chapter 2.1500.5(b). M.H., supra note 7; A.C., Docket No. 17-0384 (issued September 11, 2017).

11

Id.; Order Remanding Case, Docket No. 18-0604 (issued October 21, 2019).

5

disability claim after 90 days of her return to duty, which required that she establish a change in
her medical condition. 12
OWCP’s procedures provide that OWCP is responsible for requestin g evidence.13 Its
procedures further provide that the claims examiner should contact the claimant in writing to
obtain evidence and should specifically request the information needed, tailored to the specifics of
the individual case. 14 In this instance, OWCP improperly developed appellant’s claim under the
standard for a recurrence of disability claim after 90 days from return to duty. 15 The Board finds
that this case must be remanded for further development. 16 Following any further development as
deemed necessary, OWCP shall issue a de novo decision.17
LEGAL PRECEDENT -- ISSUE 2
The Board has held that OWCP may accept a limited period of disability without
modification of a formal LWEC determination. 18 OWCP’s procedures provide that this occurs
when there is a demonstrated temporary worsening of a medical condition of insufficient duration
and severity to warrant a modification of an LWEC determination. 19 This narrow exception is
only applicable for brief periods of medical disability. 20 If the claimant is off work for a brief
period due to his or her temporary inability to perform the duties of the rated position, this period
of medical disability can be paid without modification of the LWEC determination. 21
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new expo sure in the work
environment. 22 This term also means an inability to work because a light-duty assignment made
12

Supra note 5 at Chapter 2.1500.6.

13

Id. at Chapter 2.800.4(c)(2) (June 2011).

14

Id. at Chapter 2.800.5. See also V.R., Docket No. 16-1167 (issued December 22, 2016).

15

Order Remanding Case, P.D., Docket No. 19-0763 (issued November 26, 2019).

16

Id.

17

See generally B.N., Docket No. 17-0787 (issued July 6, 2018); C.D., Docket No. 17-1074 (issued
August 28, 2017).
18

D.R., Docket No. 18-1197 (issued April 30, 2020); S.J., Docket No. 16-1195 (issued January 4, 2017);
Katherine T. Kreger, 55 ECAB 633 (2004).
19

Supra note 5 at Chapter 2.1501.10 (June 2013). See Order Remanding Case, G.P., Docket No. 19-1258 (issued
July 14, 2020); T.G., Docket No. 18-1064 (issued April 26, 2019).
20

Id.; L.T., Docket No. 18-0797 (issued March 14, 2019).

21

Supra note 19; see J.M., Docket No. 18-0196 (issued July 12, 2018).

22

20 C.F.R. § 10.5(x); T.J., Docket No. 18-0831 (issued March 23, 2020); J.D., Docket No. 18-1533 (issued
February 27, 2019).

6

specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. 23
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to employment
injury, and supports that conclusion with medical reasoning. 24 Where no such rationale is present,
the medical evidence is of diminished probative value.25
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish recurrences of
disability commencing June 2 and July 3, 2018 causally related to her accepted May 31, 2016
employment injury.
The medical evidence of record is insufficient to establish that appellant’s accepted neck,
back, and shoulder conditions had worsened to the extent that she was totally disabled as of the
claimed recurrences of June 2 and July 3, 2018.
Appellant stopped work June 2, 2018. In a June 20, 2018 report, Dr. Matarese noted that
she had recurring problems of neck pain, lower back pain, and right shoulder pain, with the neck
and back pain more severe. He provided an assessment of unchange d sprain of ligaments of
lumbar spine, other specific joint derangements of right shoulder, and sprain of ligaments of
cervical spine. In a June 22, 2018 Form CA-20, Dr. Matarese noted that appellant was disabled
from June 2 through 25, 2018 and that she could return to light duty with restrictions of no lifting,
pushing, or pulling on June 25, 2018. However, he did not provide medical reasoning explaining
whether, how, and why her recurrent disability and current work restrictions were due to the
accepted May 31, 2016 injury. 26 Thus, Dr. Matarese’s report is insufficient to meet her burden of
proof.27
In his December 4, 2018 report, Dr. Matarese described the May 31, 2019 employmentrelated motor vehicle incident and provided a diagnosis of cervical C5-6 disc herniation with
radiculopathy. He noted that appellant had exhausted a two-year course of conservative treatment
23

Id.

24

J.D., Docket No. 18-0616 (issued January 11, 2019); C.C., Docket No. 18-0719 (issued November 9, 2018);
Ronald A. Eldridge, 53 ECAB 218 (2001).
25

E.M., Docket No. 19-0251 (issued May 16, 2019); H.T., Docket No. 17-0209 (issued February 8, 2019); Mary A.
Ceglia, Docket No. 04-0113 (issued July 22, 2004).
26

Id.

27

Id.

7

post the motor vehicle accident, she remained symptomatic and required operative intervention.
In his prior report of August 22, 2018 and subsequent reports from January through July 2019,
Dr. Matarese diagnosed cervical disorder at C5-6 level with radiculopathy, specific joint
derangements of right shoulder, not elsewhere classified, and initial and subsequent encounters of
sprain of ligaments of cervical and lumbar spine. He also opined that appellant was unable to
work. However, Dr. Matarese does not provide an opinion on whether the accepted employment
injury caused a recurrence of disability or otherwise provide rationale as to how work factors
caused or aggravated appellant’s disability, such that she could no longer perform her modified
work duties.28 Therefore, his reports are insufficient to meet appellant’s burden of proof.
Appellant also submitted an August 10, 2019 MRI scan. The Board has held that reports
of diagnostic tests, standing alone, lack probative value as they do not provide an opinion on causal
relationship between the accepted employment factors and a diagnosed condition.29
As the medical evidence of record is insufficient to establish that appellant’s accepted neck,
back, and right shoulder conditions had worsened to the extent that she was totally disabled from
work commencing on either June 2 or July 3, 2018, she has not met her burden of proof to establish
a recurrence of disability causally related to her May 31, 2016 employment injury.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether appellant
has met her burden of proof to establish a recurrence of disability commencing June 28, 2017
causally related to her accepted May 31, 2016 employment injury. The Board further finds that
appellant has not met her burden of proof to establish a recurrence of disability commencing June 2
and July 3, 2018 causally related to her accepted May 31, 2016 employment injury.

28

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value).
29

See J.M., Docket No. 17-1688 (issued December 13, 2018).

8

ORDER
IT IS HEREBY ORDERED THAT the September 27, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: October 19, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9