United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 15-0836
Issued: July 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 3, 2015 appellant filed a timely appeal from a February 11, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective February 11, 2015 as he no longer had any residuals or disability
causally related to his accepted employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board with regard to the denial of appellant’s
claim for leave buyback and wage-loss compensation.2 In an April 1, 2014 decision, the Board
set aside OWCP decisions which denied his claim for leave buyback and wage-loss
compensation for the period November 30, 2011 to April 20, 2012 and his request for a review
of the written record as untimely. The Board remanded the case for OWCP to refer appellant to
an appropriate second opinion specialist to determine whether he sustained a recurrent herniated
disc due to his accepted October 13, 2011 employment-related injury, whether the same accepted
work injury exacerbated or aggravated his preexisting lumbar degenerative disc disease, and
whether the recommended surgery was appropriate and causally related to the stated accepted
injury. The relevant facts are set forth below.
OWCP accepted that on October 13, 2011 appellant, then a 55-year-old industrial
engineering technician, sustained a back sprain of the lumbar region when he slipped and fell
while walking down a three-inch wet concrete incline. He stopped work on November 29, 2011.
Following issuance of the Board’s April 1, 2014 decision, OWCP, on May 22, 2014,
referred appellant, together with a statement of accepted facts and the medical record, to
Dr. Alexander N. Doman, a Board-certified orthopedic surgeon, for a second opinion evaluation.
In a July 9, 2014 medical report, Dr. Doman reviewed the statement of accepted facts, the results
of a September 27, 2011 lumbar magnetic resonance imaging (MRI) scan, and history of the
accepted October 13, 2011 employment injury. On physical examination, he found no acute
distress. Dr. Doman stated that appellant had obvious, intentional symptom exaggeration with
complaints of excruciating back pain with simple attempts to flex his left and right knee while in
the prone position on a nonphysiologic and nonanatomic basis which was indicative of
intentional exaggeration of his complaints for purposes of secondary gain. He found symmetric
deep tendon reflexes on physical examination. A straight leg test was negative. There were no
signs of muscular atrophy. X-rays of the lumbar spine showed disc space narrowing at L4-S1.
Nerve conduction velocity studies of the left lower extremity showed nonspecific F-wave
abnormality that was possibly secondary to L5-S1 radiculopathy.
Dr. Doman opined that appellant’s accepted work-related condition of the lumbar sprain
had resolved. He explained that a lumbar strain was a minor soft tissue injury that uniformly
resolved in a relatively brief period of time and certainly less than 90 days. Dr. Doman opined
that appellant had most certainly not sustained a recurrent herniated disc as a result of his
October 13, 2011 work injury. He explained that a disc injury with herniation was
well-documented on a prior MRI scan of the lumbar spine performed on September 27, 2011.
Dr. Doman opined that appellant did not sustain an aggravation of his preexisting degenerative
disc disease. He stated that it was clear from the prior MRI scan that appellant was already
symptomatic from degenerative disc disease of the lumbar spine. Dr. Doman noted that any
increased subjective complaints that he had after this injury merely represented the natural
history of his preexisting condition. He stated that appellant’s subjective complaints appeared to
be grossly exaggerated for purposes of deceiving him. Dr. Doman advised that there were no
2

Docket No. 13-59 (issued April 1, 2014).

2

residual conditions that resulted from the accepted work injury. He further advised that the
requested lumbar fusion at the L4-S1 levels was unequivocally not related to appellant’s
accepted work injury based on the rationale described above. Dr. Doman related that appellant
was most certainly not disabled for work from November 30, 20113 to April 20, 2012 due to his
work-related condition. He explained that any back pain appellant had would have been the
natural sequela in progression of his preexisting lumbar spine degenerative disorder.
In an August 14, 2014 decision, OWCP denied appellant’s claims for leave buyback
compensation for the period November 29, 2011 to April 12, 2012 and leave without pay
compensation for the period March 23 to April 20, 2012 based on Dr. Doman’s opinion.
By notice dated December 15, 2014, OWCP advised appellant that it proposed to
terminate his wage-loss compensation and medical benefits because Dr. Doman’s July 9, 2014
report found that appellant had no continuing residuals or disability due to his accepted
employment injury. It afforded appellant 30 days to submit additional evidence or argument
regarding the proposed termination.4
Appellant submitted laboratory tests dated November 12, 2013 and December 5, 2014.
In reports dated September 8, 2014 to January 25, 2015, Dr. Steve N. Tafor, an attending
Board-certified anesthesiologist, noted appellant’s complaints of abdominal and postlumbar
laminectomy, and degenerative lumbar disease with radiculopathy. He provided examination
findings and assessed appellant as having lumbar postlaminectomy syndrome, thoracic
spondylosis, lumbar radiculopathy, and long-term medications.
In a December 3, 2014 lumbar MRI scan report, Dr. Bradley A. Ebel, a Board-certified
radiologist, found number 1 stable degenerative features, and discogenic and bony narrowing
central canal and neural foramina at L4-5 and L5-S1.
In a December 19, 2014 report, Christopher Lutz, a physician’s assistant, diagnosed
appellant as having displacement of the cervical and lumbar intervertebral disc without
myelopathy.
By decision dated February 11, 2015, OWCP finalized the termination of appellant’s
wage-loss compensation and medical benefits effective that day. It found that the weight of the
medical opinion evidence rested with Dr. Doman’s July 9, 2014 report, which stated that he no
longer had any employment-related residuals or disability.

3

It appears that Dr. Doman inadvertently stated that appellant was not disabled commencing October 30, 2011
rather than November 30, 2011 in response to OWCP’s question regarding this matter which identified
November 30, 2011 as the start date of appellant’s claimed disability.
4

In a January 13, 2015 letter, appellant requested that his case under OWCP File No. xxxxxx981 be reopened
based on Dr. Doman’s report which validated that he still had a herniated disc from his June 17, 1989 work injury.
He noted that he did not receive a decision regarding this claim. The Board notes that the case record does not
contain a final decision issued by OWCP under File No. xxxxxx981.

3

LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s benefits.5 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
The burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.7 The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability compensation.8 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.9
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits as of February 11, 2015. OWCP accepted that appellant
sustained a back sprain of the lumbar region while in the performance of duty on
October 13, 2011. Appellant received monetary compensation after he stopped work. OWCP
terminated his wage-loss compensation and medical benefits based on the medical opinion of
Dr. Doman, a second opinion physician.
In a July 9, 2014 report, Dr. Doman reviewed the statement of accepted facts, the results
of a September 27, 2011 lumbar MRI scan, and history of the accepted October 13, 2011
employment injury. He provided normal physical examination findings. Dr. Doman found no
acute distress or signs of muscular atrophy. He also found symmetric deep tendon reflexes and
reported a negative straight leg raising test. Dr. Doman advised that appellant had obvious
intentional symptom exaggeration with complaints of excruciating back pain with simple
attempts to flex his left and right knee while in the prone position on a nonphysiologic and
nonanatomic basis. He stated that intentional exaggeration of his complaints was for purposes of
secondary gain. On x-ray examination of the lumbar spine, Dr. Doman found disc space
narrowing at L4-S1. He reported that nerve conduction velocity studies of the left lower
extremity showed nonspecific F-wave abnormality that was possibly secondary to L5-S1
radiculopathy.
Dr. Doman opined that appellant’s accepted work-related lumbar sprain had resolved. He
explained that a lumbar strain was a minor soft tissue injury that uniformly resolved in a
relatively brief period of time, less than 90 days. Dr. Doman advised that appellant certainly did
5

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

6

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor,
37 ECAB 541 (1986).
7

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

8

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

9

A.P., Docket No. 08-1822 (issued August 5, 2009); James F. Weikel, 54 ECAB 660 (2003); Pamela K.
Guesford, 53 ECAB 727 (2002).

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not sustain a recurrent herniated disc or an aggravation of his preexisting degenerative disc
disease as a result of the October 13, 2011 work injury. He explained that a disc injury with
herniation was well documented on a September 27, 2011 lumbar MRI scan. Dr. Doman further
explained that any increased subjective complaints that appellant had after this injury merely
represented the natural history of this preexisting condition. He related that his subjective
complaints appeared to be grossly exaggerated for purposes of deceiving him. Dr. Doman
opined that there were no residual conditions that resulted from the accepted work injury. He
further opined that the requested lumbar fusion at the L4-S1 levels was unequivocally not related
to the accepted employment injury based on his rationale stated above. Dr. Doman also advised
that appellant was most certainly not disabled for work from November 30, 2011 to April 20,
2012 due to his work-related condition. He explained that any back pain he had would have
been the natural sequela in progression of his preexisting lumbar spine degenerative disorder.
The Board finds that Dr. Doman’s report represents the weight of the medical evidence
and that OWCP properly relied on his report in terminating appellant’s wage-loss compensation
and medical benefits for the accepted condition on February 11, 2015. Dr. Doman’s opinion is
based on a proper factual and medical history as he reviewed the statements of accepted facts and
appellant’s prior medical treatment. He also related his comprehensive examination findings in
support of his opinion that appellant no longer had any residuals or disability causally related to
the accepted traumatic back sprain of the lumbar region.
The Board finds that the remaining evidence submitted by appellant prior to the
termination of his compensation is insufficient to show that he had any remaining work-related
residuals or disability. Dr. Tafor’s reports dated September 8, 2014 to January 25, 2015 found
that appellant had lumbar postlaminectomy syndrome, thoracic spondylosis, and lumbar
radiculopathy. However, Dr. Tafor did not provide any opinion stating whether appellant’s
conditions and disability for work were causally related to the accepted work injury. The Board
has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.10
Similarly, neither Dr. Ebel’s December 3, 2014 diagnostic test results nor the laboratory
tests dated November 12, 2013 and December 5, 2014 provided an opinion addressing whether
appellant had any continuing residuals or disability due to the accepted work injury.11
The December 19, 2014 report from Mr. Lutz, a physician’s assistant, has no probative
medical value. A physician’s assistant is not considered a physician as defined under FECA.12
The Board finds that Dr. Doman’s opinion that appellant had recovered from the
employment injury represents the weight of the medical evidence and the additional medical
evidence submitted is insufficient to create a conflict in opinion regarding whether he had
10

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); K.W.,
59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith,
50 ECAB 313 (1999).
11

Id.

12

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); George H. Clark, 56 ECAB 162 (2004).

5

continuing residuals or disability related to the accepted injury. Therefore, OWCP properly
terminated appellant’s compensation effective February 11, 2015 based on Dr. Doman’s opinion.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective February 11, 2015 as he no longer had any residuals or disability
causally related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 24, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenixville, PA, Employer
__________________________________________

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Appearances:
Aaron B. Aumiller, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-842
Issued: December 4, 2008

Case Submitted on the Record

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

JURISDICTION
On January 28, 2008 appellant, through counsel, filed a timely appeal from a merit
decision of the Office of Workers’ Compensation Programs dated August 9, 2007 denying his
claim on the grounds that he failed to establish fact of injury. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a back injury in the
performance of duty on June 13, 2005.
FACTUAL HISTORY
On June 13, 2005 appellant, then a 42-year-old city carrier, filed a traumatic injury claim
alleging that he injured his lower back on that date while delivering a heavy parcel. No medical
evidence was submitted with the claim.
On September 27, 2006 the Office received a bill from Healthcare Recoveries for
chiropractic treatment provided to appellant for the period June 15, 2005 to June 30, 2006.

By letter dated September 29, 2006, the Office informed appellant that the information
received was insufficient to support his claim. Appellant was advised as to the type of medical
and factual evidence to submit and given 30 days to provide the requested information. He did
not respond.
By decision dated October 30, 2006, the Office denied appellant’s claim on the grounds
that fact of injury was not established as there was no medical evidence diagnosing a condition
due to the accepted June 13, 2005 incident.
Subsequent to the decision, the Office received additional medical evidence including a
May 31, 2006 magnetic resonance imaging (MRI) scan; a November 30, 2006 report by
Dr. Randy E. Yucha, a chiropractor; chiropractic treatment notes; and a May 30, 2006 x-ray
interpretation by Dr. John Egan, an osteopath.
Dr. Egan diagnosed L3-4, L4-5 and L5-S5 central disc protrusions, lumbar spine facet
degenerative change and “no significant encroachment on the exiting nerve roots” in the May 30,
2006 x-ray interpretation.
On November 30, 2006 Dr. Yucha diagnosed lumbago, lumbar strain/sprain and L4-5
subluxation. An x-ray interpretation revealed “spinous rotational deviations present and a slight
concavity present in low back” with “[n]o other soft tissue or osseous pathological processes.”
He opined that appellant had sustained an injury on June 13, 2005 which had been aggravated by
his work activities.
On November 28, 2006 appellant requested reconsideration.
In a February 20, 2007 report, Dr. Kevin F. Hanley, a second-opinion Board-certified
orthopedic surgeon, diagnosed symptomatic lumbosacral degenerative disc disease. He noted
the injury history and reviewed the medical records. A physical examination reveals “some low
grades discomfort across the spinal axis” and no sensory loss. Dr. Hanley opined that “it is
entirely possible that the June 13, 2005 work-related incident could have aggravated the
underlying degenerative process,” but he found that “the absence of any medical data from that
time” makes it “difficult to say for sure that that is the case.”
By decision dated March 2, 2007, the Office denied appellant’s request for modification
of the denial of his claim. However, it modified the denial to reflect the fact that, although
Dr. Hanley provided a diagnosis, the evidence was insufficient to support a causal relationship
between the diagnosed condition and the June 13, 2005 employment incident.
On May 7, 2007 appellant requested reconsideration and submitted a March 7, 2007 note
of treatment by Dr. Imran J. Ahmed, a chiropractor; treatment notes dated November 29 and
December 20, 2006 and January 16, 2007 and reports dated September 13 and October 18, 2006
and April 4, 2007 by Dr. Steven J. Valentino, an osteopath.
In reports dated September 13 and October 18, 2006, Dr. Valentino stated that a physical
examination revealed significantly limited range of motion, significant facet pain at L2 to S1 on
extension and significant spasm upon palpation. In the September 13, 2006 report, he related
appellant had back pain complaints at L2 to S1 and that the pain is “worse with activity or
2

prolonged posture and also seems to be worse at the end of the workday.” Dr. Valentino also
noted that appellant felt a pop in his low back after lifting something in 2005. He attributed
appellant’s pseudoarthrosis and accelerated degenerative disc disease to his one pack a day
smoking habit. In both reports, Dr. Valentino diagnosed degenerative lumbar disc disease, facet
syndrome and sciatica.
On November 29, 2006 Dr. Valentino diagnosed internal disc derangement with
radiculitiis and sacroiliac dysfunction. A physical examination revealed tenderness upon
palpation at the sacroiliac joint and normal range of motion. In treatment notes dated
December 20, 2006 and January 16, 2007, Dr. Valentino reported that appellant had leg and low
back pain which “increased with activity or prolonged posture and decreased with rest and
recumbency.”
Dr. Valentino, in an April 4, 2007 report, noted that appellant sustained an injury on
June 13, 2005 while lifting a box out of a van. He noted a May 30, 2006 MRI scan revealed L3
to S1 central disc protrusions with facet degenerative changes. Dr. Valentino opined that
appellant’s employment injury aggravated his preexisting degenerative disc disease as appellant
had been asymptomatic prior to the injury.
On March 7, 2007 Dr. Ahmed stated that he had been treating appellant for lumbar and
thoracic strains on June 15 and 17, 2005.
By decision dated August 9, 2007, the Office vacated the March 2, 2007 decision and
reinstated the October 30, 2006 decision “for the reason that the evidence of file does not meet
the criteria supporting fact of injury.”
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of proof to establish the essential elements of his claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.1
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.2 Second, the
employee must submit evidence, in the form of medical evidence, to establish that the

1

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

2

See T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); see Federal (FECA) Procedure Manual,
Part 2 -- Claims, Fact of Injury, Chapter 2.803.2a (June 1995).

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employment incident caused a personal injury.3 The term injury as defined by the Act, refers to
some physical or mental condition caused by either trauma or by continued or repeated exposure
to, or contact with, certain factors, elements or conditions.4 A report is of limited probative value
on the issue of the causal relationship between an employment incident and a claimed medical
condition if it contains an opinion on causal relationship which is equivocal in nature.5
Under section 8101(2) of the Act, chiropractors are only considered physicians, and their
reports considered medical evidence, to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist.6 The Office’s regulations at 20 C.F.R. § 10.5(bb) have defined
subluxation as an incomplete dislocation, off-centering, misalignment, fixation or abnormal
spacing of the vertebrae which must be demonstrable on any x-ray film to an individual trained
in the reading of x-rays.7
ANALYSIS
On June 13, 2005 appellant filed a traumatic injury claim alleging that he sustained an
injury to his back at work on that date while delivering a heavy package. The Office accepted
that the employment incident occurred as alleged. The issue on appeal, therefore, is whether
appellant submitted sufficient medical evidence to establish that his back condition was caused
or aggravated by the employment incident.
The evidence reflects that appellant sought chiropractic treatment for the period July 15,
2005 to June 30, 2006. In a November 30, 2006 report, Dr. Yucha diagnosed lumbago, lumbar
strain/sprain and L4-5 subluxation. He reported an x-ray interpretation revealed “spinous
rotational deviations present and a slight concavity present in low back” with “[n]o other soft
tissue or osseous pathological processes.” Dr. Yucha opined that appellant’s condition had
sustained an injury on June 13, 2005 which had been aggravated by his work activities. The
Board finds, however, that his report does not constitute probative medical evidence as he failed
to indicate in his report that his findings of subluxations were demonstrated by x-rays to exist.8
3

V.F., 58 ECAB ___ (Docket No. 06-1497, issued January 30, 2007); John J. Carlone, 41 ECAB 354, 356-57
(1989); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.2a (June 1995).
4

Elaine Pendleton, 40 ECAB 1143 (1989); 20 C.F.R. § 10.5(a)(14).

5

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007) (medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
6

5 U.S.C. § 8101(2). See Paul Foster, 56 ECAB 208 (2004); Jack B. Wood, 40 ECAB 95, 109 (1988).

7

20 C.F.R. § 10.5(bb); see also Mary A. Ceglia, 55 ECAB 626 (2004); Bruce Chameroy, 42 ECAB 121 (1990).

8

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician under section 8101(2) of the Act, which provides: (2) “physician”
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law. The term “physician” includes chiropractors
only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the
spine to correct a subluxation as demonstrated by x-ray to exist, and subject to regulation by the secretary. See Paul
Foste, supra note 6.

4

On March 7, 2007 Dr. Ahmed stated that he had been treating appellant for lumbar and
thoracic strains on June 15 and 17, 2005. As he did not diagnose a subluxation as demonstrated
by x-ray, he is not considered a physician under the Act and his report is of no probative medical
value.9
In reports dated September 13 and October 18, 2006, Dr. Valentino diagnosed
degenerative lumbar disc disease, facet syndrome and sciatica. On November 29, 2006 he
diagnosed internal disc derangement with radiculitiis and sacroiliac dysfunction. In treatment
notes dated December 20, 2006 and January 16, 2007 and a September 13, 2006 report,
Dr. Valentino reported that appellant had leg and low back pain increased with activity. In the
September 13, 2006 report, he related that appellant felt a pop in his low back after lifting
something in 2005. Dr. Valentino attributed appellant’s pseudoarthrosis and accelerated
degenerative disc disease to his one pack a day smoking habit. Medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.10 As Dr. Valentino provided no opinion supported by rationale
as to the cause of appellant’s condition, these reports are insufficient to support that appellant has
a back condition caused or aggravated by the June 13, 2005 lifting injury.
Dr. Valentino, in an April 4, 2007 report, noted that appellant sustained an injury on
June 13, 2005 while lifting a box out of a van. He noted that a May 30, 2006 MRI scan revealed
L3 to S1 central disc protrusions with facet degenerative changes. Dr. Valentino opined that
appellant’s employment injury aggravated his preexisting degenerative disc disease as appellant
had been asymptomatic prior to the injury. The Board has held that an opinion that a condition is
causally related because the employee was asymptomatic before the injury is insufficient,
without sufficient rationale, is insufficient to establish causal relationship.11 Thus, as this report
lacks the requisite rationale, the Board finds that it is insufficient to establish that appellant
sustained a back condition due to the accepted June 13, 2005 employment injury.
The Office referred appellant to Dr. Hanley for a second opinion evaluation. In a
February 20, 2007 report, Dr. Hanley diagnosed symptomatic lumbosacral degenerative disc
disease. He noted the injury history and reviewed the medical records. A physical examination
reveals “some low grades discomfort across the spinal axis” and no sensory loss. Dr. Hanley
opined that “it is entirely possible that the June 13, 2005 work-related incident could have
aggravated the underlying degenerative process,” but that “the absence of any medical data from
that time” makes it “difficult so say for sure that that is the case.” The Board finds that the
medical report of Dr. Hanley constitutes the weight of medical opinion. Dr. Hanley reviewed all
the available and relevant medical evidence. Appellant initially sought treatment from a
chiropractor for the period June 15, 2005 to June 30, 2006, as supported by a bill from
Healthcare Recoveries. However, he did not submit the chiropractor report regarding his June 15
and 17, 2005 treatments to the Office. The record shows that appellant did not seek further
medical treatment for his alleged injury until almost a year after June 13, 2005, the date appellant
9

Isabelle Mitchell, 55 ECAB 623 (2004).

10

K.W., supra note 5.

11

Michael S. Mina, 57 ECAB 379 (2006).

5

alleged he injured his back. The only medical evidence submitted by appellant begins with a
May 30, 2006 x-ray interpretation which makes no mention of his employment injury.
Dr. Hanley reviewed all the available medical evidence submitted by appellant and provided an
opinion based on the medical reports before him. The Board finds that appellant has submitted
insufficient medical evidence to establish that his back condition was caused or aggravated by
factors of his federal employment.
There is no probative, rationalized medical evidence to establish that these conditions
were caused or aggravated by factors of appellant’s employment. Appellant has not met his
burden of proof in establishing that he sustained a medical condition in the performance of duty
causally related to factors of employment.
CONCLUSION
The Board finds that appellant has not established that he sustained a back injury in the
performance of duty on June 13, 2005.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 9, 2007 is affirmed.
Issued: December 4, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 15-1093
Issued: August 4, 2015

Case Submitted on the Record

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

JURISDICTION
On April 8, 2015 appellant filed a timely appeal from a January 7, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between the last merit decision of OWCP dated September 26, 2014, to the filing of this
appeal, the Board lacks jurisdiction to review the merits of this case pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely filed under 5 U.S.C. § 8124.
On appeal, appellant contends that she did not receive OWCP’s September 26, 2014
decision until October 2014. She states that when she requested an “appeal” of OWCP’s
1

5 U.S.C. § 8101 et seq.

2

See 20 C.F.R. § 501.3(e).

decision, she submitted a photocopy of a postmarked envelope containing her request. Appellant
explains that there was a delay in submitting the paperwork because it was an extremely busy
season and she worked 9 to 10 hours in pain. She requests reconsideration of her case as she did
not have any issues before working at the employing establishment.
FACTUAL HISTORY
On September 6, 2012 appellant, then a 34-year-old mail carrier, filed an occupational
disease claim alleging that on August 23, 2012 she first became aware of her left wrist pain and
carpal tunnel syndrome. She further alleged that on August 24, 2012 she first realized that her
conditions were caused or aggravated by repetitive motion of her hands while performing her
work duties six days a week.
On October 10, 2012 OWCP accepted appellant’s claim for left carpal tunnel syndrome
and authorized left carpal tunnel release performed on November 15, 2012. On October 24,
2013 it expanded the acceptance of her claim to include tenosynovitis of the left wrist.
On March 31, 2014 appellant filed a claim for a schedule award. In a May 28, 2014
medical report, Dr. Kellen K. Choi, an attending Board-certified orthopedic surgeon, reviewed
her history, noted her complaints of persistent intermittent and vague tingling in her thumb and
index finger, occasional nocturnal symptoms, difficulty with repetitive gripping and lifting
activities, and soreness. Activities of daily living and household chores had become more
symptomatic. Dr. Choi provided examination findings and diagnosed left carpal tunnel
syndrome and status post open carpal tunnel release with mild residual symptoms. He
determined that appellant had five percent impairment due to her left carpal tunnel release
according to Table 15-23, page 449 of the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). Dr. Choi concluded that
she had reached maximum medical improvement in January 2013 when she was released to
return to full-duty work.3
In a September 8, 2013 report, an OWCP medical adviser reviewed Dr. Choi’s May 28,
2014 report and agreed with his finding that appellant had five percent impairment of the left
upper extremity. He explained that Dr. Choi accurately interpreted and applied the A.M.A.,
Guides. The medical adviser determined that appellant had reached maximum medical
improvement on January 3, 2014, the date she was released back to work with no restrictions and
from ongoing acute orthopedic care.
In a September 26, 2014 decision, OWCP granted appellant a schedule award for an
additional one percent impairment of the left upper extremity based on Dr. Choi’s May 28, 2014
report and the medical adviser’s September 8, 2013 report. The period of the award ran for 3.12
weeks from January 3 to 24, 2014. OWCP noted that appellant was previously paid a schedule
award for four percent impairment of the right upper extremity under her claim assigned File
No. xxxxxx702. The decision was mailed to appellant’s address of record.

3

The Board notes that appellant returned to work on January 4, 2013 upon release to full-time regular work with
no restrictions by Dr. Choi.

2

In an undated appeal request form postmarked December 8, 2014 and received by OWCP
on December 11, 2014, appellant requested a telephone hearing with an OWCP hearing
representative.
In an October 2, 2013 report, Dr. Choi noted appellant’s complaints of continuing pain at
the volar aspect of her right wrist with occasional numbness and tingling, and pain and weakness
of her left hand. He reported that she had been able to work full duty despite these symptoms.
Dr. Choi stated that no new symptoms were reported and that no improvement had been noted.
He provided findings on examination and diagnosed right hand and wrist and left hand and wrist
pain, ruling out compressive neuropathy. Dr. Choi concluded that appellant could continue to
work while awaiting diagnostic test results.
By decision dated January 7, 2015, OWCP’s Branch of Hearings and Review denied
appellant’s request for an oral hearing as it was untimely filed. It found that the request was not
postmarked within 30 days of the issuance of the September 26, 2014 OWCP merit decision.
After exercising its discretion, OWCP further found that the issue in the case could equally well
be addressed through the reconsideration process.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his or her claim before a representative of the
Secretary.4 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.5 A claimant is entitled to a hearing or review
of the written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.6 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.7 OWCP procedures require that it
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).8
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for an oral
hearing was untimely filed as it was made more than 30 days after the issuance of OWCP’s
4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. §§ 10.616, 10.617.

6

Id. at § 10.616(a).

7

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

8

See R.T., Docket No. 08-408 (issued December 16, 2008).

3

September 26, 2014 schedule award decision. The undated form, on which appellant requested
the hearing, was postmarked on December 8, 2014. The time limitation to request an oral
hearing from OWCP’s Branch of Hearings and Review expired on October 27, 2014, 30 days
after OWCP’s September 26, 2014 decision.9 OWCP, therefore, properly denied appellant’s
hearing as a matter of right.
Although appellant’s request for a hearing was untimely, OWCP has the discretionary
authority to grant the request and it must exercise such discretion. In its January 7, 2015
decision, it properly exercised its discretion by notifying appellant that it had considered the
matter in relation to the issue involved and that additional argument and evidence could be
submitted with a request for reconsideration. The Board has held that the only limitation on
OWCP’s authority is reasonableness. An abuse of discretion is generally shown through proof
of manifest error, a clearly unreasonable exercise of judgment, or actions taken which are
contrary to both logic and probable deductions from established facts.10 In this case, there is no
evidence of record that OWCP abused its discretion by denying appellant’s hearing request.
Accordingly, the Board finds that OWCP properly denied appellant’s request for an oral hearing.
On appeal, appellant contended that she did not receive OWCP’s September 26, 2014
decision until October 2014. She stated that, when she requested an “appeal” of OWCP’s
decision, she submitted a photocopy of a postmarked envelope containing her request. Appellant
explained that there was a delay in submitting the paperwork because it was an extremely busy
season and she worked 9 to 10 hours in pain. The record reveals that the September 26, 2014
decision was sent to her address of record. Absent evidence to the contrary, the presumption
arises that the decision was received in the ordinary course of business.11 Appellant did not
submit sufficient evidence to rebut the presumption of receipt.12
Appellant further contended on appeal that her case should be reconsidered because she
did not have any issues before working at the employing establishment. The Board does not
have jurisdiction to review the September 26, 2014 schedule award decision.13 The only
decision properly before the Board on this is the January 7, 2015 nonmerit decision which denied
appellant’s request for an oral hearing as untimely filed.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124(b)(1).

9

The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review
commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989).
10

Samuel R. Johnson, 51 ECAB 612 (2000).

11

Jeffrey M. Sagrecy, 55 ECAB 724 (2004).

12

See Nelson R. Hubbard, 54 ECAB 156 (2002).

13

Supra note 1.

4

ORDER
IT IS HEREBY ORDERED THAT the January 7, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 4, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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Docket No. 17-0881
Issued: August 7, 2017

Appearances:
Debra Hauser, Esq., for the appellant1
Office of Solicitor, for the Director

Case Submitted on the Record

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

JURISDICTION
On March 13, 2017 appellant, through counsel, filed a timely appeal from a
September 12, 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 over the merits of this case.3

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
3

5 U.S.C. § 8101 et seq.

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 12, 2016 decision was Saturday,
March 11, 2017. Because the last day of the 180-day filing period fell on a Saturday, the filing period is extended
until the close of the next business day, which was Monday, March 13, 2017. Accordingly, the appeal is timely filed
pursuant to 20 C.F.R. § 501.3(f)(2).

ISSUE
The issue is whether appellant met her burden of proof to establish that her claimed
lumbar condition is causally related to her accepted factors of federal employment.
FACTUAL HISTORY
On September 8, 2015 appellant, then a 43-year-old city carrier, filed an occupational
disease claim (Form CA-2) for a back condition that she attributed to having been required to
work outside her medical restrictions. Specifically, she noted that the employing establishment
required her to walk more than what was medically defined. Appellant identified July 8, 2015 as
the date she first became aware of her disease/illness, and also the date when she first realized
her disease/illness was caused or aggravated by her federal employment. She stopped work on
July 17, 2015. The employing establishment controverted appellant’s occupational disease
claim.
In a narrative statement accompanying her claim, appellant asserted that, on July 8, 2015,
she advised a manager that her back hurt because she was required to work outside her medical
restrictions, but management continued to assign her work outside of her medical restrictions.
She claimed that she was required to walk more than one hour per day in contravention of the
work restrictions contained in a June 30, 2015 medical report.
In a September 7, 2015 letter, appellant’s postmaster indicated that the employing
establishment controverted her occupational disease claim. He advised that, prior to her July 7,
2015 return to work, appellant had been off work for more than three and a half years due to a
nonwork-related injury. The postmaster asserted that appellant was never assigned work that
exceeded the work restrictions outlined by her attending physician on June 30, 2015. He
indicated that on July 7, 2015 appellant was assigned mail delivery duties on two streets that
would require 45 minutes of walking to perform. The postmaster noted that, after being on duty
on July 7, 2015 for less than 90 minutes, appellant informed him that her back hurt and that she
had nearly exhausted her one-hour walking restriction. He told her that she had only been
walking on her delivery route for only 20 minutes. Appellant responded that, including her
walking at work prior to starting her delivery route, she had been walking for approximately one
hour. The postmaster indicated that the unfinished portion of the mail delivery route for that day
was assigned to another employee. When appellant returned on July 8, 2015, appellant’s
supervisor assigned her the same delivery route that she had been assigned the previous day, but
appellant reported she was close to exhausting her one-hour walking restriction after completing
a smaller portion of the route than she had completed on July 7, 2015. The postmaster noted that
appellant’s supervisor assigned the remainder of the route to another employee. He indicated
that on July 9, 2015 appellant advised him that her one-hour walking restriction had been
exhausted after she had completed even less of the delivery route than she had completed the
prior two days, and that she also reported she could not perform mounted delivery duties without
violating her three-hour sitting restriction. The postmaster indicated that he then ended
appellant’s work shift for that day.
After being off work for three days, appellant returned to work on July 13, 2015 and was
assigned mounted delivery duties for that date through July 16, 2015 which required sitting for
two hours per day. The postmaster indicated that appellant did not complete her mounted
delivery duties on any of the four days she worked between July 13 and 16, 2015. He noted that
2

on July 17, 2015 appellant was given a letter indicating that light-duty work was no longer
available and she stopped work on that date. The postmaster indicated that appellant never
worked a full eight-hour day during the seven days she worked in July 2015. He also noted that
she had not submitted any medical evidence establishing a work-related injury.
In a September 10, 2015 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of her occupational disease claim. On September 10, 2015 it
also requested additional information from the employing establishment.
Appellant submitted a June 30, 2015 report from Dr. Oladele Olusanya, an attending
Board-certified family practitioner, who provided various work restrictions. Dr. Olusanya noted
that appellant could work eight hours per day utilizing her back brace. He indicated that
appellant could walk for up to one hour per day (not including the walking required prior to
starting her shift), stand for up to three hours, and sit for up to eight hours. Appellant was
capable of twisting, bending, reaching above her shoulders, lifting 15 pounds intermittently and
10 pounds continuously, and using her hands for repetitive simple grasping, fine manipulation,
and pushing. Dr. Olusanya indicated that appellant could not crawl, climb, or kneel.
In a September 21, 2015 report, Dr. Naheed Shahid, an attending Board-certified
internist, indicated that appellant presented on that date and reported suffering an aggravation of
preexisting lumbar conditions “per her previous [magnetic resonance imaging (MRI) scan]
findings of a herniated disc.” He noted that appellant reported that she returned to work on
July 7, 2015 with light-duty restrictions and that she woke up on July 8, 2015 with acute back
spasms and pain, which she attributed to excessive walking of 30 minutes over her restrictions,
prolonged sitting while driving, and climbing stairs. Appellant advised that she continued to
work on July 8, 9, 10 and 13, 2015, that she was unable to return to work as of July 17, 2015, and
that her light-duty restrictions of not walking over one hour were pushed over the limit by 30
minutes each day she worked in July 2015. Dr. Shahid noted that appellant would be referred for
an MRI scan and electromyogram (EMG) testing of her lumbar spine, that she would participate
in physical therapy for six to eight weeks, and that she would receive follow-up treatment from
other physicians for lumbar radiculopathy. He indicated that August 28, 2015 lumbar x-rays
showed good disc space height maintained and lordosis within normal limits and he diagnosed
herniated disc, back injury, and lower back pain. Dr. Shahid advised that it was his professional
opinion that appellant sustained an injury in the performance of her duties as a city carrier which
had been “diagnosed as an aggravation of preexisting conditions of lumbar injury which required
[30] minutes of excessive walking beyond her restrictions while delivering mail.”
In a November 20, 2015 decision, OWCP denied appellant’s claim for an employmentrelated lumbar condition. It found that she established the existence of alleged employment
factors, i.e., carrying out her duties of delivering mail as a city carrier for several days in
July 2015. OWCP determined, however, that appellant failed to submit sufficient medical
evidence to establish that her claimed lumbar condition was causally related to her employment
factors, noting that Dr. Shahid’s September 21, 2015 report did not contain a rationalized opinion
on causal relationship.
On February 5, 2016 appellant, through counsel, requested reconsideration of OWCP’s
November 20, 2015 decision. Counsel indicated that appellant would be submitting an
additional report from Dr. Shahid that would establish her claim for a work-related lumbar
condition.
3

In a January 26, 2016 report, Dr. Shahid indicated that, on or about July 8, 2015,
appellant became aware of an aggravation to her lower back condition while she was performing
her duties as a city carrier. He further indicated that appellant’s physical duties as a city carrier
including inspecting her postal vehicle, retrieving mail weighing 10 pounds or more from a
distribution case, lifting and transporting the mail to a case for sorting, and loading the mail on a
case ledge. Appellant had to bend and lift trays and tubs of mail weighing 30 pounds or more
while casing mail, and that performing the task of case routing took up to three hours of
continuous standing, twisting, turning, and reaching above the shoulders. Dr. Shahid indicated
that appellant had to move a wheeled container weighing up to 70 pounds and load it into her
postal vehicle. Appellant then spent six hours or more delivering mail on her route carrying a
satchel over her shoulder weighing up to 35 pounds and walking over varied terrain. These
actions required continuous twisting, turning, bending, lifting, and stooping. Dr. Shahid
provided a recitation of appellant’s history of work activities in July 2015 and her reported back
symptoms. He indicated that appellant’s work activities caused shortening and weakening of the
muscles, which in turn caused increased pressure on her lumbar spine. Dr. Shahid noted that
appellant’s job duties over time put substantial pressure on the lumbar discs and the flexion,
compression, and axial loading forces from these activities placed great stress on the spine and
contributed to the failing of the annulus. He indicated that appellant’s continued lifting and
carrying of mail for extended periods caused extensive stress on the discs and facet joints and
resulted in protrusion or herniation of a disc. Dr. Shahid indicated that August 28, 2015 lumbar
x-rays showed good disc space height maintained and lordosis within normal limits, but noted
that even with preserved disc space height and lordosis appellant did have herniated discs with
significant pain and findings on physical examination. He advised that it was his professional
opinion that appellant sustained an aggravation of the preexisting conditions of herniated disc,
back injury, and lower back pain due to her city carrier job which required 30 minutes of
excessive walking beyond her restrictions while delivering mail, prolonged sitting while driving,
and climbing stairs. Dr. Shahid opined that there was nothing else in appellant’s history to
suggest any other contributing factor.
In a March 31, 2016 decision, OWCP denied modification of its November 20, 2015
decision denying appellant’s claim for an employment-related lumbar condition. It found that
Dr. Shahid’s latest report did not contain a rationalized opinion on causal relationship between
appellant’s employment factors and the diagnosed back conditions. OWCP also indicated that
Dr. Shahid did not provide a complete history of appellant’s preexisting back condition.
On June 15, 2016 appellant, through counsel, again requested reconsideration of the
merits of her claim and submitted a May 20, 2016 report from Dr. Shahid.
In his May 20, 2016 report, Dr. Shahid provided a recitation of appellant’s reported
July 2015 work duties and back symptoms, which was similar to that provided in his prior report.
He also provided a similar description of his belief that appellant’s work duties placed stress on
her lumbar discs and aggravated a disc herniation. Dr. Shahid provided a description of the work
restrictions that Dr. Olusanya recommended in his June 30, 2015 report. He noted that it was his
professional opinion that appellant sustained an aggravation of the preexisting condition of her
lumbar spine in the performance of her duties as a city carrier which required 30 minutes of
excessive walking beyond her one-hour restriction while delivering the mail, prolonged sitting
while driving in violation of her three-hour sitting restriction, and climbing stairs in violation of
her restriction against climbing. Dr. Shahid asserted that there was nothing else in appellant’s
4

history to suggest any other contributing factors. He indicated that he was enclosing medical
record which would show that the exacerbation of appellant’s preexisting lumbar condition was
present even three years ago. However, Dr. Shahid did not enclose any medical records.
In a September 12, 2016 decision, OWCP denied modification of its March 31, 2016
decision denying appellant’s claim for an employment-related lumbar condition. It found that
the Dr. Shahid’s May 20, 2016 report did not contain a rationalized opinion on the causal
relationship between appellant’s employment factors and the diagnosed back conditions.
LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence, including that an injury was sustained in the performance of duty as alleged and that
any specific condition or disability claimed is causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the identified employment factors.6
A physician’s opinion on causal relationship must be based on a complete factual and
medical background, must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the established employment factors.7
ANALYSIS
On September 8, 2015 appellant filed an occupational disease claim for a lumbar
condition that allegedly arose on or about July 8, 2015. She had returned to work on July 7,
2015 after being absent for several years due to a nonwork-related medical condition. Appellant
worked in a limited-duty capacity from July 8, 2015 until she stopped work on July 17, 2015.
OWCP denied her occupational disease claim in decisions dated November 20, 2015, March 31,
and September 12, 2016.
The Board finds that appellant failed to submit sufficient medical evidence to establish
that her claimed lumbar condition was causally related to factors of her employment. Appellant
established that for several days between July 7 and 16, 2015 she performed city carrier duties
4

Supra note 2.

5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a
medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996).
6

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

5

that included walking while delivering mail, sitting in her postal vehicle while performing
mounted mail delivery duties, and lifting, handling, and carrying mail while performing sorting
and delivery duties.8 The Board finds that appellant did not submit rationalized medical
evidence establishing causal relationship between these employment factors and a specific
diagnosed back condition.
In a September 21, 2015 report, Dr. Shahid, an attending physician, indicated that
appellant presented on that date and reported suffering an aggravation of preexisting lumbar
conditions “per her previous MRI scan findings of a herniated disc.” Dr. Shahid discussed the
work duties that appellant reported performing for several days between July 7 and 16, 2015 and
detailed the back symptoms that she reported. He indicated that August 28, 2015 lumbar x-rays
showed good disc space height maintained and lordosis within normal limits and he diagnosed
herniated disc, back injury, and lower back pain. Dr. Shahid advised that it was his professional
opinion that appellant sustained an injury in the performance of her duties as a city carrier which
had been “diagnosed as an aggravation of preexisting conditions of lumbar injury which required
[30] minutes of excessive walking beyond her restrictions while delivering mail.”
The Board notes that Dr. Shahid’s September 21, 2015 report is of limited probative
value in establishing appellant’s claim for a work-related lumbar condition because he did not
provide adequate medical rationale in support of his conclusive opinion on causal relationship.
The Board has held that a medical report is of limited probative value on the issue of causal
relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale.9 Although Dr. Shahid posited that appellant’s work duties, including walking
her delivery route, aggravated her preexisting lumbar condition, he did not adequately identify
what particular condition he felt had been aggravated. He diagnosed a herniated disc, but did not
identify the particular disc. Moreover, Dr. Shahid did not detail the objective medical evidence
supporting his diagnosis of a herniated disc. He did not explain how his diagnosis comported with
August 28, 2015 lumbar x-rays which showed good disc space height maintained and lordosis
within normal limits.10 Dr. Shahid’s opinion is not based on a complete factual and medical
history because he did not provide any notable discussion of the preexisting lumbar condition
which he felt had been aggravated by work activities in July 2015. The Board has held that an
opinion on a given medical question is of limited probative value if it is not based on a complete
and accurate factual and medical history.11 Dr. Shahid did not explain the medical process
through which appellant could have sustained a work-related aggravation of a preexisting lumbar
condition by working several days in July 2015, nor did he explain why appellant’s back problems
were not solely due to the natural progression of her underlying preexisting condition.

8

The Board notes that there is some discrepancy between the accounts of appellant and her postmaster regarding
the precise days that appellant performed her work duties in July 2015 and the amount of time she performed each
work task. Appellant alleged that she was forced to violate the June 30, 2015 work restrictions provided by
Dr. Olusanya and the postmaster disputed this assertion. The Board notes that the differences between the two
accounts are not significant and that the above-noted work factors have been established.
9

C.M., Docket No. 14-0088 (issued April 18, 2014).

10

The Board notes that appellant did not submit any diagnostic testing reports.

11

E.R., Docket No. 15-1046 (issued November 12, 2015).

6

In a January 26, 2016 report, Dr. Shahid provided a more extensive discussion of
appellant’s reported work duties in July 2015 and her reported symptoms around that time. He
indicated that August 28, 2015 lumbar x-rays showed good disc space height maintained and
lordosis within normal limits, but noted that even with preserved disc space height and lordosis
appellant did have herniated discs with significant pain and findings on physical examination.
However, this statement does not provide any notable clarification of why Dr. Shahid felt that
appellant sustained a herniated disc, which was reportedly aggravated by work duties. He
provided only a general discussion of how certain activities can place pressure on lumbar discs
and cause damage. For example, Dr. Shahid indicated that appellant’s job duties in July 2015
put substantial pressure on the lumbar discs and that the flexion, compression, and axial loading
forces from these activities placed great stress on the spine and contributed to the failing of the
annulus. However, he did not identify any specific objective findings to support this assertion
and, in fact, the record does not contain the detailed findings of any particular physical
examination conducted by him or any other attending physician. Dr. Shahid indicated that
appellant aggravated her preexisting lumbar herniated disc due to her city carrier job which
required 30 minutes of excessive walking beyond her restrictions while delivering mail,
prolonged sitting while driving, and climbing stairs.12 However, he did not provide any
additional explanation of this opinion. Dr. Shahid posited that there was nothing else in
appellant’s history to suggest any other contributing factor, but he did not discuss appellant’s
history prior to July 2015 in any detail.13 He also produced a May 20, 2016 report that contained
a discussion on causal relationship similar to that contained in his January 26, 2016 report.
However, this latter report is also of limited probative value on the relevant issue of this case
because it failed to provide a rationalized opinion that appellant sustained an employment-related
lumbar condition.14
On appeal, counsel argued that Dr. Shahid’s reports establish appellant’s claim for a
work-related lumbar condition, but the Board has explained why Dr. Shahid’s reports are of
limited probative value with respect to this matter.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
claimed lumbar condition was causally related to her accepted factors of her federal employment.

12

As noted above, appellant’s postmaster disputed that appellant’s work restrictions were violated. See supra
note 8.
13

See supra note 11.

14

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

7

ORDER
IT IS HEREBY ORDERED THAT the September 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 7, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 18-1569
Issued: March 7, 2019

Case Submitted on the Record

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

JURISDICTION
On August 9, 2018 appellant filed a timely appeal from a July 9, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated November 30, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of
Procedures 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.

FACTUAL HISTORY
On August 25, 2017 appellant, then an 47-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that she experienced stress and depression causally related to
factors of her federal employment. She became aware of her condition and its relationship to her
federal employment on June 21, 2016. Appellant stopped work on April 15, 2017.
By decision dated November 30, 2017, OWCP denied appellant’s emotional condition
claim. It found that she had not specifically described the work factors to which she attributed her
stress, and thus, had not factually established her claim. OWCP further noted that appellant had
not submitted medical evidence supporting a diagnosed condition resulting from her employment.
Appellant, on July 2, 2018, requested reconsideration. She submitted two pages of the
November 30, 2017 OWCP decision. Appellant advised that she had attached a description of the
implicated employment incidents and supporting medical evidence. OWCP, however, did not
receive any additional evidence with the reconsideration request.
By decision dated July 9, 2018, OWCP denied appellant’s request for reconsideration as
she had not raised an argument or submitted evidence sufficient to warrant reopening her case for
further merit review under 5 U.S.C. § 8128(a). It noted that she had not submitted any evidence
with her reconsideration request other than part of its November 30, 2017 decision.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.3 The Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.5
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.6 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.7 If the request is timely, but fails to meet at least one
3

5 U.S.C. § 8128(a).

4

Id.

5

20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(a); see also M.S., Docket No. 18-1041 (issued October 25, 2018).

2

of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
By decision dated November 30, 2017, OWCP denied appellant’s emotional condition
claim as she had not sufficiently identified the employment factors to which she attributed her
condition, and thus, failed to factually establish her claim. On July 2, 2018 appellant requested
reconsideration.
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant has not advanced a relevant legal argument
not previously considered. As such, she is not entitled to a review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(3).9
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered. With her reconsideration request, appellant submitted two
pages of OWCP’s November 30, 2017 decision. The Board has held that the submission of
evidence that duplicates or is substantially similar to evidence already in the case record does not
constitute a basis for reopening a case.10 As appellant did not provide relevant and pertinent new
evidence, she is not entitled to a merit review based on the third requirement under section
10.606(b)(3).11
The Board, accordingly, finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.12
On appeal appellant contends that OWCP did not receive the correct documents in support
of her claim.13 She raises argument relevant to the merits of her claim. The only issue before the
Board, however, is whether OWCP properly denied her request for reconsideration of the merits
of the claim, and thus, these arguments are not before the Board at this time.14

8

Id. at § 10.608(b); K.S., Docket No. 18-1022 (issued October 24, 2018).

9

C.B., Docket No. 18-1108 (issued January 22, 2019).

10

See A.M., Docket No. 18-0716 (issued December 10, 2018).

11

R.L., Docket No. 18-0175 (issued September 5, 2018).

12

See L.A., Docket No. 18-1226 (issue December 28, 2018) (when an application for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).
13

As noted, the Board has no jurisdiction to review the additional evidence submitted by appellant with her appeal.
Supra note 2.
14

H.W., Docket No. 18-1175 (issued December 6, 2018).

3

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 9, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 7, 2019
Washington, D

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

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

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

4


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

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

Docket No. 14-1648
Issued: December 15, 2014

Case Submitted on the Record

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

JURISDICTION
On July 21, 2014 appellant filed a timely appeal from a March 17, 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.
ISSUE
The issue is whether appellant established permanent impairment due to her accepted
parastomal hernia condition.
FACTUAL HISTORY
On August 26, 2013 appellant, then a 57-year-old mail processing clerk, filed a traumatic
injury claim alleging that she injured both wrists while lifting. In a subsequent statement,
received by OWCP on September 13, 2013, she alleged that she sustained an abdominal injury.
1

5 U.S.C. § 8101 et seq.

In an August 20, 2013 report, Dr. David Lewin, Board-certified in diagnostic radiology,
advised that a computerized tomography (CT) scan revealed 9.9 centimeter parastomal hernia
with no evidence of bowel obstruction or fluid collection. He further advised that appellant had
a left lower quadrant colostomy, left nephrolithiasis, and right side renal cyst without evidence of
urinary obstruction.
On November 7, 2013 OWCP accepted appellant’s claim for parastomal hernia. A
November 7, 2013 nurse referral report indicated that she had a nonwork-related colostomy.
OWCP noted accepting the claim for parastomal hernia and that appellant underwent surgery on
October 9, 2013. It found her temporarily totally disabled following her surgery. The record
indicates that appellant received wage-loss compensation from October 18 to
December 15, 2013.
In a December 6, 2013 postoperative report, Dr. James O’Donnell, a Board-certified
general surgeon, advised that appellant reported sensitivity and pain at the stoma site of the skin
lateral to the wound. In a December 6, 2013 disability status report, he advised that she was able
to return to work but was restricted to lifting 10 pounds. In a January 10, 2014 disability status
report, Dr. O’Donnell reiterated that appellant should not lift more than 10 pounds. In a
February 21, 2014 disability status report, appellant was released to full duty by Dr. O’Donnell.
On March 3, 2014 appellant requested a schedule award.
By decision dated March 17, 2014, OWCP denied appellant’s request for a schedule
award because medical evidence was insufficient to establish that she sustained a permanent loss
or permanent loss of use of a scheduled body member under FECA or OWCP regulations.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations2 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, 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 American Medical Association, Guides to the Evaluation of Permanent
Impairments3 has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.4 As of May 9, 2009, the sixth edition of the A.M.A., Guides is used
to calculate schedule awards.5

2

20 C.F.R. § 10.404.

3

A.M.A., Guides (6th ed. 2008).

4

Supra note 2.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (February 2013).

2

It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.6 OWCP
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail so that it can be visualized on review and computes the
percentage of impairment in accordance with the A.M.A., Guides.7
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the implementing regulations.8 FECA identifies members such as the arm, leg,
hand, foot, thumb and finger, organs to include the eye and functions as loss of hearing and loss
of vision.9 Section 8107(c)(22) of FECA provides for the payment of compensation for
permanent loss of any other important external or internal organ of the body as determined by the
Secretary of Labor.10 The Secretary of Labor has made such a determination and pursuant to the
authority granted in section 8107(c)(22), added the breast, kidney, larynx, lung, penis, testicle,
ovary, uterus, and tongue to the schedule.11
ANALYSIS
OWCP accepted appellant’s claim for left parastomal hernia due to an August 19, 2013
work-related injury. On March 3, 2014 appellant filed a schedule award claim for her hernia.
OWCP denied her schedule award claim finding that she had not submitted sufficient evidence to
establish that she sustained a permanent impairment to a scheduled body member.
The Board finds that the medical evidence fails to establish any permanent impairment.
Appellant has not submitted medical evidence establishing that she sustained any permanent
impairment to a scheduled member as defined under section 8107 of FECA or the implementing
federal regulations. No medical report from her physician specifically found permanent
impairment to a scheduled member based on the accepted hernia. Thus, OWCP properly denied
appellant’s request for a schedule award.
The Board further notes that a schedule award cannot be granted for permanent
impairment based on appellant’s hernia condition because the hernia or abdomen have not been
included under FECA or the regulations as a scheduled member.12 The terms of FECA are
6

Tammy L. Meehan, 53 ECAB 229 (2001).

7

Supra note 5 at Chapter 2.808.5(b) (February 2013).

8

See Leroy M. Terska, 53 ECAB 247 (2001).

9

Id.; 5 U.S.C. § 8107(c).

10

Id. at § 8122(c)(22).

11

Supra note 2; Henry B. Floyd, III, 52 ECAB 220 (2001).

12

K.S., Docket No. 14-133 (issued April 1, 2014); K.H., Docket No. 09-275 (issued August 14, 2009); S.K.,
Docket No. 08-848 (issued January 26, 2009).

3

specific as to the method and amount of payment of compensation. Neither, OWCP nor the
Board has the authority to enlarge the terms of FECA or to make an award of benefits under
terms other than those specified in the statute.13
On appeal appellant argues that, following her surgery, she continues to be limited in the
amount of weight she can lift and that several of her coworkers have been compensated for
hernias. As explained, the medical evidence is insufficient to establish that appellant sustained a
permanent impairment to a scheduled member.
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 OWCP properly denied appellant’s request for a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 15, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13

Danny E. Haley, 56 ECAB 393 (2005).

4


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

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

Docket No. 18-0612
Issued: October 19, 2018

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 January 30, 2018 appellant filed a timely appeal from an August 1, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether OWCP abused its discretion in denying authorization for a compound
medication.

1

Appellant asserts on appeal that he cannot afford to repay the full amount of an overpayment of compensation in
the amount of $2,738.39 as set forth in an overpayment decision dated June 6, 2017. Appellant specifically appealed
the decision dated August 1, 2017 which denied compounded medication. He did not file a timely appeal from the
June 6, 2017 decision within 180 days of issuance and, therefore, the Board lacks jurisdiction over the overpayment
decision and recovery plan ordered by OWCP. See 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 2, 2010 appellant, then a 50-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 20, 2010 he slipped on ice and injured his left knee,
while performing his federal employment duties. On February 25, 2010 OWCP accepted
appellant’s claim for a left knee sprain and contusion. It subsequently expanded acceptance of the
claim on May 31, 2011 to include effusion of the left lower leg joint; aggravation of left knee
osteoarthritis; and unspecified mechanical complication of internal orthopedic device, implant, and
graft. OWCP paid appellant intermittent wage-loss compensation on the supplemental rolls as of
March 9, 2010 and on the periodic rolls as of December 18, 2011. On April 2, 2013 appellant
underwent a left knee revision arthroplasty.
On June 1, 2017 OWCP received an Authorization Request form and Certification/Letter
of Medical Necessity for Compounded Drugs (OMB No. 1240-0055) for appellant. In this form,
Dr. Mark Stacherski, a Board-certified family practitioner, indicated that he last examined
appellant on May 30, 2017. He requested authorization for a compound medication identified as
“5F-DlCL03-GABA6-LIDO2-Prilo2%.” Dr. Stacherski noted that this medication was necessary
to treat appellant’s left knee. He indicated that appellant had tried and failed to obtain relief
through other products, and that there were no commercially available Federal Drug
Administration (FDA) drugs appropriate for the diagnosis. Dr. Stacherski indicated that appellant
had knee surgery in the past and still had chronic pain. He noted that appellant could not be
prescribed oral nonsteroidal anti-inflammatory drugs (NSAIDS) due to his gastroesophageal reflux
disease (GERD) for which he takes omeprazole. Dr. Stacherski noted that appellant was
prescribed oral hydrocodone for his chronic back pain.
On June 9, 2017 OWCP referred the matter to an OWCP medical adviser, Dr. William
Tontz, Jr., a Board-certified orthopedic surgeon. It noted that OWCP’ s procedures require that
consideration be given to whether there is justification for a prescription for a compounded
medication and that its use is consistent with the medical evidence of record. OWCP’s medical
adviser determined that the proposed compounded medication was not medically necessary. He
indicated that there were no recent medical reports documenting objective or diagnostic findings.
Dr. Tontz concluded that there was no need for compounded medication as there were no recent
medical reports documenting objective or diagnostic findings. Further, guidelines did not support
compound medications and there was no indication that appellant could not be prescribed oral
medication, therefore, the compound medication was unnecessary.
By letter dated June 20, 2017, OWCP informed appellant that the evidence of record was
insufficient to establish that the compounded medication was necessary to treat the effects of his
accepted employment conditions. It requested appellant to provide a narrative explanation from
his physician explaining why the compounded medication was medically necessary, including an
explanation as to why a commercially available drug was insufficient. OWCP afforded him 30
days to submit the requested information. Appellant did not respond.
By decision dated August 1, 2017, OWCP denied authorization for a compounded
medication as it determined that the evidence of record did not support that this medication was
medically necessary to treat the effects of appellant’s work-related injury.

2

LEGAL PRECEDENT
Section 8103(a) of FECA states in pertinent part: The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers likely
to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of
monthly compensation.3 In general, drugs and medications which are necessary to treat an injury
or occupational disease may be purchased at OWCP’s expense on the recommendation of the
attending physician. These include prescription as well as nonprescription medications.4
The Board has found that OWCP has great discretion in determining whether a particular
type of treatment is likely to cure or give relief.5 The only limitation on OWCP’s authority is that
of reasonableness.6 Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.7
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
a compound medication.
OWCP accepted appellant’s claim for left knee sprain and contusion, effusion of the left
lower leg, aggravation of left knee osteoarthritis, and unspecified mechanical complication of
internal orthopedic device, implant, and graft.
On June 1, 2017 Dr. Stacherski requested approval for a compounded drug, specifically
“5F-D1CLO3-GABA6-LIDO2-Prilo2%.” He noted that this was a topical drug for treatment of
appellant’s left knee arthropathy. Dr. Stacherski noted that the drug was necessary because
appellant had chronic pain, cannot take oral NSAIDS due to his GERD, and that he was still in
pain despite the fact that he was taking oral hydrocodone for his chronic back pain. However,
OWCP’s medical adviser, Dr. Tontz, opined that this compound drug was unnecessary. After
review of criteria for determining whether a compound drug was necessary, he concluded that
there was no need for compounded medication as there were no recent medical reports
documenting objective or diagnostic findings. The medical adviser also noted that guidelines did
not support compound medications, and there was no indication that the individual could not take
oral medications. OWCP advised appellant that a narrative report from his physician was

3

5 U.S.C. § 8103(a).

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Prescription and NonPrescription Drugs, Chapter 3.400.3(a) (October 1995).
5

See M.B., Docket No. 17-1389 (issued April 6, 2018); see also Vicky C. Randall, 51 ECAB 357 (2000).

6

See Lecil E. Stevens, 49 ECAB 673, 675 (1998).

7

Rosa Lee Jones, 36 ECAB 679 (1985).

3

necessary to justify the use of a compound drug, but no narrative explaining the rationale for this
drug was provided.
In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness.8 OWCP has the general objective of ensuring that an employee recovers
from his or her injury to the fullest extent possible, in the shortest amount of time. It, therefore
has broad administrative discretion in choosing means to achieve this goal.9
The Board finds that OWCP properly relied upon the well-rationalized opinion of OWCP’s
medical adviser, Dr. Tontz. Dr. Stacherski did not provide a well-rationalized opinion explaining
the necessity of the compounded drug. OWCP asked appellant to submit a well-rationalized
medical report from Dr. Stacherski to support his request, but he failed to do so. Accordingly,
OWCP acted within its discretion in denying appellant’s request for compounded medication.
CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying authorization for a
compounded medication.

8

See D.K., 59 ECAB 141 (2007).

9

See M.G., Docket No. 18-0099 (issued April 26, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 1, 2017 is affirmed.
Issued: October 19, 2018
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 15-0609
Issued: April 26, 2017

Case Submitted on the Record

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

On January 26, 2015 appellant, through counsel, filed an application for review of
September 17 and November 5, 2014 merit decisions of the Office of Workers’ Compensation
Programs (OWCP). The appeal was docketed as No. 15-609.
The only decision before the Board in the present appeal is the September 17, 2014
decision issued under File No. xxxxxx154, which terminated appellant’s medical benefits for
neck strain, leg and shoulder strain, and right lateral epicondylitis. Although counsel also
appealed a November 5, 2014 decision, adjudicated under file number xxxxxx741, the record
before the Board does not include File No. xxxxxx741, which was also accepted for right lateral
epicondylitis. The medical reports under file number xxxxxx741 have bearing on the issue of
whether OWCP properly terminated medical benefits in the September 17, 2014 decision.
The case must, therefore, be remanded to OWCP to combine OWCP File No. xxxxxx741
with the instant case, OWCP File No. xxxxxx154. This will allow OWCP to consider all
relevant claim files in developing appellant’s claim and serve to avoid piecemeal adjudication1
that could raise the possibility of inconsistent results. Following this and such other
development as deemed necessary, OWCP shall issue an appropriate de novo decision.
1

See William T. McCracken, 33 ECAB 1197 (1982).

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 17, 2014 is set aside and the case is remanded for
further proceedings consistent with this order of the Board.
Issued: April 26, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2