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

)
)
)
)
)
)
)
)

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

Docket No. 17-0423
Issued: December 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 16, 2016 appellant, through counsel, filed a timely appeal from an
August 22, 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.

The record also contains a September 7, 2016 decision denying appellant’s recurrence of disability claim (Form
CA-2a) beginning January 10, 2015. Appellant did not appeal this decision to the Board, but rather requested an
oral hearing before an OWCP hearing representative. The facts relevant to her recurrence of disability after
January 10, 2015 will therefore not be addressed in this decision.

ISSUE
The issue is whether appellant has established intermittent periods of total disability from
November 6, 2014 to January 9, 2015 causally related to her accepted employment injury.
FACTUAL HISTORY
On October 14, 2014 appellant, then a 42-year-old machine operator, filed an
occupational disease claim (Form CA-2) alleging that she developed back pain as a result of her
employment. She first became aware of her condition and realized its relation to her
employment on September 19, 2014. OWCP accepted appellant’s claim for sacroiliitis.
On January 3, 2015 appellant filed a claim for wage-loss compensation (Form CA-7) for
disability during the period September 19, 2014 to January 9, 2015. On the time analysis form
(Form CA-7a) she claimed a total of 308 hours of intermittent disability compensation.4
In support of her claim for wage-loss compensation, appellant submitted reports from
Dr. Renee M. Tamlyn, a family practitioner. Dr. Tamlyn noted in a September 24, 2014 report
that appellant complained of lower back pain, aggravated by bending and standing. She related
that appellant missed work earlier that week and would need to miss more work. Dr. Tamlyn
reviewed appellant’s history and diagnosed muscle spasm. In a disability slip, she requested that
appellant be excused from work through September 30, 2014. In an October 9, 2014 disability
slip, Dr. Tamlyn reported that appellant could return to work on October 10, 2014 with
restrictions of no standing for more than 4 hours without a 15-minute period of sitting and no
lifting over five pounds.
Dr. Tamlyn noted clinical findings of low back and radiculopathy symptoms and
diagnosed sacroiliitis and sciatica in an October 30, 2014 duty status report (Form CA-17). She
indicated that appellant could resume work with restrictions of intermittent standing for four to
six hours per day, intermittent walking and kneeling, and minimal bending, stooping, twisting,
pulling, pushing, simple grasping, and reaching above the shoulder.
Appellant requested temporary light duty on October 31, 2014. The employing
establishment advised that a temporary light-duty position was available from November 1
through December 1, 2014. The physical limitations of the light-duty position were listed as no
continuous lifting over 5 pounds, no intermittent lifting over 20 pounds, standing limited to four
to six hours per day, and minimal bending, stooping, twisting, pushing, and pulling. The
employment duties were noted as requiring manual lifting of flats and priority mail. Appellant
signed and accepted the temporary limited-duty position on October 31, 2014.
In a November 2, 2014 report, Dr. Tamlyn provided findings on examination and
diagnosed sacroiliitis and muscle spasm. She related that appellant’s symptoms of lower back
pain, worse on the left side, began on September 21, 2014. Dr. Tamlyn noted that appellant’s
4

Appellant claimed the following hours of wage-loss compensation during the specific time periods: 40 hours
from September 19 to 26, 2014; 16 hours from September 27 to October 3, 2014; 10 hours from October 9 and 10,
2014, 120 hours from October 11 to 31, 2014; 16 hours from November 1 to 14, 2014; 64 hours from November 15
to 28, 2014; 8 hours from November 29 to December 12, 2014; 3 hours from December 13 to 26, 2014; and 32
hours from December 27, 2014 to January 9, 2015.

2

employment duties included bending and twisting while lifting heavy objects and twisting and
reaching to various heights. She explained that the act of bending forward and twisting to lift an
object was a very common mechanism leading to sacroiliitis.
In disability slips dated December 1 and 15, 2014, Dr. Tamlyn reported that appellant had
missed work on November 21, 22, 25, 26, 28, and 29, 2014 “due to injury.” She indicated that
appellant could return to work on December 1, 2014 “with [appellant’s] limited duties that were
ordered in previous paperwork.” In a December 15, 2014 disability slip, Dr. Tamlyn
recommended that appellant continue light duty until December 31, 2014.
The employing establishment, by letter dated February 6, 2015, controverted the claim.
It claimed that there were light-duty jobs available, but that appellant chose to use unscheduled
leave for most of the time rather than work. A January 26, 2015 job offer was enclosed.
Appellant continued to receive medical treatment from Dr. Tamlyn.
By letter dated February 18, 2015, OWCP advised appellant that her compensation claim
for intermittent periods of total disability from September 19, 2014 to January 9, 2015 could not
be processed at that time and advised her that it needed to review the claim to determine whether
she was eligible for compensation benefits. It requested that she provide a day-by-day
breakdown for the claimed periods of disability and complete the attached Form CA-7a.
Appellant was afforded 30 days to submit the additional evidence.
In a letter dated February 18, 2015, appellant related that she wanted to clarify the
problems she experienced at work with management. She explained that on October 10, 2014
J.B., the postmaster, gave her a light-duty request form to fill out and sign, but the request form
noted that the request was for a “nonjob[-]related injury.” Appellant informed J.B. that the
request was for a job-related injury, but J.B. refused to change the clause and became very
offensive. She asserted that she was sent home and not allowed to work. Appellant related that
she received a letter from J.B., signed October 21, 2014, which threatened disciplinary action
since she had not worked since October 11, 2014. She explained that she went to the employing
establishment to drop off the requested paperwork and informed B.I., the plant manager, of the
light-duty request. Appellant related that he was able to get the “nonjob[-]related injury” clause
removed, so she signed the request form and returned to work. She explained that over the next
couple of months she missed a lot of work due to the discomfort of her hip. Appellant noted that
the past week she was finally allowed to work four to six hours a day.
Appellant resubmitted the light-duty request form dated October 31, 2014 where the
phrase “nonjob[-]related condition or injury” was crossed out.
By letter dated March 3, 2015, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim for intermittent periods of total disability from September 19,
2014 to January 9, 2015. It requested that she submit additional evidence to establish that she
was disabled from work during the claimed period as a result of her accepted employment injury.
Appellant was afforded 30 days to submit the additional information.
In a May 8, 2015 decision, OWCP denied appellant’s wage-loss claim for the period
September 19, 2014 to January 9, 2015. It found that the medical evidence of record failed to
establish that she was disabled for work on the specific dates claimed due to her work-related
3

medical condition. OWCP noted that Dr. Tamlyn attributed appellant’s inability to work
predominantly to pain and did not provide objective physical findings to support that her
condition worsened to the extent that she could no longer work.
On June 12, 2015 OWCP received appellant’s request for a review of the written record
by an OWCP hearing representative. On August 11, 2015 it received her request to convert her
request for review of the written record to a request for reconsideration.
In a November 1, 2015 report, Dr. Tamlyn indicated that appellant had been under her
care since September 24, 2014 for a work injury that occurred on September 19, 2014. She
described the medical treatment that she had provided. Dr. Tamlyn reported that she took
appellant off work on September 20, 23, 27, and 30, 2014 because appellant was unable to work
due to the pain that muscle spasms caused and because her job duties would exacerbate her
symptoms. She noted that she reevaluated appellant on October 9, 2014 and provided work
restrictions until further notice.
Dr. Tamlyn further related that appellant returned to work on October 10, 2014, but was
sent home by management. She noted that it appeared that the employing establishment would
not allow appellant to return to work throughout October 2014. Dr. Tamlyn indicated that she
issued work restrictions again on October 30, 2014 based on her “low back pain and radiating
left hip pain.” She explained that “pain” was not her diagnosis, but rather, the “symptom
[appellant was] experiencing from the conditions I have diagnosed her with and these conditions
are a direct result of the patient’s work activity.” Dr. Tamlyn reported that she examined
appellant again on December 1, 2014 and recommended that she continue light duty. She took
appellant off work again on December 27 and 30, 2014. Dr. Tamlyn described her continued
medical treatment of appellant and explained how she believed that appellant’s work activity
aggravated her sacroiliitis condition, as well as conditions of lumbar radiculopathy and
piriformis syndrome, and rendered her unable to work at certain times as indicated in previous
medical records.
By decision dated November 16, 2015, OWCP denied modification of its May 8, 2015
decision.
Appellant again requested reconsideration, through counsel, by letter dated and received
on December 2, 2015. Counsel described appellant’s employment duties and reviewed the
medical treatment she received from Dr. Tamlyn. He asserted that Dr. Tamlyn had provided
medical reports which took appellant off work during periods of temporary total disability due to
her conditions of sacroiliitis, lumbar radiculopathy, and piriformis syndrome. Counsel also
noted that, beginning October 11, 2014, the employing establishment would not accommodate
appellant’s established work restrictions based on her refusal to sign false paperwork.5
By decision dated March 4, 2016, OWCP vacated the May 8, 2015 decision in part and
accepted appellant’s claim for disability compensation for the period September 19 to
October 31, 2014. It noted that the medical evidence of record established that she was totally
disabled from September 19 to October 9, 2014 as a result of her employment injury. OWCP
5

Counsel also requested that OWCP expand appellant’s claim to include lumbosacral neuritis or radiculopathy
and piriformis syndrome.

4

further indicated that Dr. Tamlyn released appellant to work with restrictions beginning
October 9, 2014, however, the employing establishment had only provided appellant with a valid
job offer within her restrictions, effective November 1, 2014. Accordingly, it determined that
compensation was payable for the period September 19 through October 31, 2014, but the
remaining period of disability from November 6, 2014 to January 9, 2015 was denied due to
insufficient medical evidence to support total disability.
On April 12, 2016 OWCP received appellant’s request, through counsel, for
reconsideration of the March 4, 2016 decision. Appellant noted that she was enclosing an
April 3, 2016 report by Dr. Tamlyn, which explained why she was unable to work on the days
she claimed. Counsel asserted that Dr. Tamlyn had fully explained appellant’s inability to work
on certain days and provided a sufficiently rationalized opinion supporting appellant’s claimed
wage-loss compensation.
In the April 3, 2016 report, Dr. Tamlyn noted that appellant was currently under her care
and suffered from lumbosacral neuritis, with nerve compression most likely through the
piriformis muscle. She explained that, any time this muscle experienced increased hypertonicity
or increased inflammation, it could be expected that her neuritis would worsen and cause
increased pain. Dr. Tamlyn noted that repetitive lifting, twisting, or bending in appellant’s
regular work tasks would cause this increased hypertonicity/inflammation. She reported: “it
would be expected that [appellant] would be unable to perform her expected work duties on
these days when pain was exacerbated (as she would be physically unable and would potentially
worsen the condition by attempting to work.” Dr. Tamlyn opined that appellant needed and
would continue to need to be absent from work on these days as she was temporarily totally
disabled during these times.
In a decision dated August 22, 2016, OWCP denied modification of the March 4, 2016
decision which denied appellant’s claim for wage-loss compensation for the period November 6,
2014 to January 9, 2015.
LEGAL PRECEDENT
Under FECA,6 the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with impairment, which may or may not result in an incapacity to earn wages.
An employee who has a physical impairment causally related to a federal employment injury, but
who nevertheless has the capacity to earn wages he or she was receiving at the time of injury, has
no disability as that term is used in FECA.7 Furthermore, whether a particular injury causes an
employee to be disabled from employment and the duration of that disability are medical issues
which must be proved by the preponderance of the reliable, probative, and substantial medical
evidence.8

6

Supra note 2.

7

See 20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

8

Fereidoon Kharabi, 52 ECAB 291 (2001).

5

For each period of disability claimed, an employee must establish that he or she was
disabled from work as a result of the accepted employment injury. The Board will not require
OWCP to pay compensation for disability, in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.9
ANALYSIS
OWCP accepted appellant’s occupational disease claim for lumbar sacroiliitis due to her
repetitive duties as a machine operator. Appellant filed a Form CA-7 claiming intermittent
periods of total disability for the period September 19, 2014 to January 9, 2015. OWCP
accepted her wage-loss compensation for intermittent periods of disability from September 19 to
October 31, 2014, but denied compensation for the remaining period. It found that the medical
evidence of record was insufficient to establish total disability on the claimed dates during the
period November 6, 2014 to January 9, 2015 as a result of her accepted condition.
The Board finds that appellant has failed to submit sufficient medical opinion evidence to
establish intermittent periods of total disability from November 6 to December 1, 2014 causally
related to her accepted employment injury.
Appellant was treated by Dr. Tamlyn. In the October 30, 2014 Form CA-17, Dr. Tamlyn
authorized appellant to work with restrictions of intermittent standing for four to six hours per
day, intermittent walking and kneeling, and minimal bending, stooping, twisting, pulling,
pushing, simple grasping, and reaching above the shoulder. The Board notes that Dr. Tamlyn
did not opine that appellant was unable to work, but related that appellant could work with
specific restrictions. Accordingly, Dr. Tamlyn’s report failed to establish total disability from
work.10 She also provided disability slips dated December 1 and 15, 2014 wherein she related
that appellant missed work from November 21 through 29, 2014 “due to injury.” Dr. Tamlyn,
however, did not provide any explanation based on medical rationale for how appellant’s injury
had worsened to the extent that she was unable to work on the specific dates. Medical evidence
that states a conclusion, but does not offer any rationalized medical explanation regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.11 Because Dr. Tamlyn failed to provide any medical rationale for her conclusion
regarding total disability, her opinion is of diminished probative value.12
Appellant requested and accepted a light-duty position on October 31, 2014 for
temporary light-duty work from November 1 to December 1, 2014. She has provided no
evidence to establish that the employing establishment was unable to provide her with a
modified-duty assignment within her restrictions during the claimed period November 6 to
December 1, 2014. As such appellant has not met her burden of proof to establish temporary
9

Amelia S. Jefferson, 57 ECAB 183 (2005).

10

See M.C., Docket No. 16-1238 (issued January 26, 2017).

11

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

12

S.B., Docket No. 13-1162 (issued December 12, 2013).

6

total disability for
December 1, 2014.

intermittent

dates

during

the

claimed

period

November 6

to

While counsel submitted a report from Dr. Tamlyn dated April 3, 2016, which he claimed
established disability during all of appellant’s alleged dates of disability, the Board notes that this
report actually never addressed any specific date of disability during the relevant period. As
previously noted, the Board will not require that OWCP pay compensation for disability in the
absence of medical evidence directly addressing the specific dates of disability for which
compensation is claimed.13 Therefore, this report is also of limited probative value.
The Board finds, however, that the case is not in posture for a decision regarding
appellant’s wage-loss compensation for intermittent disability during the period December 2,
2014 to January 9, 2015. In disability slips dated December 1 and 15, 2014, Dr. Tamlyn
indicated that appellant could continue working light duty. The Board notes, however, that the
October 31, 2014 light-duty job offer was effective from November 1 to December 1, 2014. The
evidence of record does not establish that the employing establishment was able to accommodate
appellant’s work restrictions after December 2, 2014. OWCP regulations provide that an
employee is not entitled to compensation for any wage loss to the extent that evidence
establishes that an employee had medical restrictions in place, that light duty within those work
restrictions was available, and that the employee was previously notified in writing that such
duty was available.14 While the employing establishment related in a letter dated February 6,
2015 that it was attaching a light-duty job offer which established that light-duty work was
available at all relevant times, the job offer attached pertained to work after January 26, 2015.
In this case, the medical evidence of record demonstrates that appellant was authorized to
work with restrictions. The current record before the Board, however, does not clearly establish
that she was offered an appropriate light-duty position in writing in accordance with OWCP’s
regulations, such that her claim for wage-loss compensation should be denied.15
On remand OWCP must develop the case and make factual findings on the status of
whether work was available for appellant within her restrictions during the period December 2,
2014 to January 9, 2015. It is a well-established principle that it must make findings of fact and
offer a statement of reasons in its final decision.16 As this evidence is of the character normally
obtained by the employing establishment, it is more readily accessible to OWCP than to
appellant. Once factual findings are made, OWCP should evaluate the evidence to determine
whether a period of intermittent disability was established from December 2, 2014 to
January 9, 2015.

13

Supra note 10.

14

20 C.F.R. § 10.500(a).

15

See J.T., Docket No. 15-1133 (issued December 21, 2015).

16

20 C.F.R. § 10.126.

7

CONCLUSION
The Board finds that appellant has not established intermittent periods of total disability
from November 6 to December 1, 2014 causally related to her accepted employment injury. The
Board finds, however, that the case is not in posture for decision and must be remanded for
additional development of the factual evidence from the employing establishment regarding her
claim for intermittent disability from December 2, 2014 to January 9, 2015.
ORDER
IT IS HEREBY ORDERED THAT the August 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside and remanded in part for
further development consistent with this decision of the Board.17
Issued: December 20, 2017
Washington, DC

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

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

17

Colleen Duffy Kiko, Judge, participated in the original decision, but was longer a member of the Board
effective December 11, 2017.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, GREENE POST
OFFICE, Greene, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0644
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On March 19, 2021 appellant, through counsel, filed a timely appeal from an October 5,
2020 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.

The Board notes that OWCP received additional evidence following the October 5, 2020 decision. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include additional conditions as a consequence of the accepted
December 12, 2014 employment injury.
FACTUAL HISTORY
This case has been previously before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 5, 2015 appellant, then a 51-year-old rural carrier, filed a notice of recurrence
(Form CA-2a) claiming disability under OWCP File No. xxxxxx938.5 She alleged that she
reinjured her left shoulder moving mail from her vehicle to her supervisor’s vehicle on
December 12, 2014 while in the performance of duty. Appellant stopped work on that date.
OWCP converted the recurrence claim to a new traumatic injury claim (Form CA-1) and assigned
OWCP File No. xxxxxx312. On January 14, 2016 OWCP accepted the claim for partial rotator
cuff tear of the left shoulder and paid appellant retroactive wage-loss compensation on the
supplemental rolls as of February 1, 2015 and on the periodic rolls as of July 24, 2016.
In a May 5, 2016 report, Dr. Thomas Van Gorder, a Board-certified orthopedic surgeon,
diagnosed status post shoulder repair for rotator cuff tear of the left shoulder and a partial cuff tear
of the right shoulder. He noted her initial injury to her left shoulder in June 2013, and her
subsequent injury to her left shoulder in December 2014. He related that appellant had developed
discomfort in the right shoulder, noting that she did not have specific trauma to the right shoulder,
and opined that her right shoulder condition resulted from favoring her left shoulder. Dr. Van
Gorder noted that a right shoulder magnetic resonance imaging (MRI) scan in June 2015 revealed
a partial cuff tear and tendinitis, and that appellant was unable to obtain treatment for the right
shoulder. He also noted that the right shoulder had excellent strength and a little subacromial
crepitus.
In a July 28, 2016 report, Dr. Van Gorder diagnosed status post rotator cuff tear of the left
shoulder and a partial tear with tendinitis of the right shoulder. Regarding the right shoulder, he
explained that appellant developed impingement pain, tendinitis, and discomfort of the right
shoulder, which he opined “is definitely related to her left shoulder injury.” Dr. Van Gorder
concluded that her right shoulder condition was caused by overuse secondary to favoring her left
shoulder, which had been injured at work.
In an August 3, 2016 report, Dr. Van Gorder repeated his opinion from his July 28, 2016
report regarding the status and casual relationship of the right shoulder condition.

4

Docket No. 18-1514 (issued July 18, 2019).

5

In OWCP File No. xxxxxx938, OWCP accepted appellant’s July 22, 2013 occupational disease claim (Form
CA-2) for complete tear of the left rotator cuff.

2

In a letter dated August 29, 2016, counsel requested that the acceptance of appellant’s
claim be expanded to include the additional conditions of impingement, tendinitis, and a partial
rotator cuff tear of the right shoulder. He alleged that the conditions were a consequence of overuse
of the right shoulder due to her accepted left shoulder conditions. Counsel argued that
Dr. Van Gorder provided an unequivocal opinion and the requisite medical rationale to establish
that appellant’s right shoulder condition was related to overuse to compensate for the work-related
injury to her left shoulder.
In a development letter dated November 18, 2016, OWCP advised appellant of the
evidence needed to establish her claim for consequential injury to her right shoulder. It afforded
appellant 30 days to submit additional evidence.
OWCP thereafter received a June 12, 2015 MRI scan of the right shoulder interpreted by
Dr. Imanual Somers-Dehaney, a Board-certified diagnostic radiologist, which revealed a partial
tear of the supraspinatus partial articular surface tendon with avulsion of approximately 50 percent,
impingement on the myotendinous junction of the supraspinatus tendon with fluid along both
articular and bursal substance of subacromial subdeltoid bursa, bursitis, and biceps tendon
tenosynovitis.
On December 16, 2016 OWCP requested that a district medical adviser (DMA) provide an
opinion as to whether the accepted employment injury to appellant’s left shoulder was competent
to produce the injury to the right shoulder. It requested that the DMA review and specifically
comment on the opinion provided by Dr. Van Gorder in his July 28 and August 3, 2016 reports
regarding the conditions of right shoulder impingement, right shoulder tendinitis, and right partial
rotator cuff tear.
In a December 29, 2016 report, Dr. David J. Slutsky, a Board-certified orthopedic hand
surgeon serving as a DMA, noted appellant’s history of injury and medical treatment. Regarding
the right shoulder conditions, the DMA concluded that the acceptance of appellant’s claim should
not be expanded to include the consequential conditions of right shoulder impingement, right
shoulder tendinitis, and right partial rotator cuff tear. He advised that it was impossible to
determine with any certainty whether the left shoulder condition had caused the right shoulder
condition, unless an MRI scan of the right shoulder was performed prior to the work-related injury
of the left shoulder on December 12, 2014. The DMA explained that an asymptomatic partial right
rotator cuff tear of the right shoulder could not be ruled out and that an MRI scan of the right
shoulder prior to the December 12, 2014 left shoulder injury was “the only way to determine if
this lesion was preexisting or whether it developed following the accepted work -related injury.”
He referred to Dr. Van Gorder’s December 18, 2014 notes that appellant was pain free with normal
shoulder ROM following the left rotator cuff repair and explained that overuse of the right shoulder
was “not medically probable in view of the normal functioning of her left shoulder. ” The DMA
also reviewed Dr. Van Gorder’s medical reports dated July 28 and August 3, 2016 and noted that
appellant stopped work in December 2014 and remained off work since that time, and that there
was no mention of appellant’s right shoulder pain until May 5, 2016, almost two years later. He
further noted that appellant had a right shoulder MRI scan on June 12, 2015, more than one year
following the left rotator cuff repair, and explained that if she “had remained working in some
capacity, especially at a job that required overhead lifting, it would be reasonable to assign the
patient’s development of right shoulder pain and partial rotator cuff tear to overuse, but this is not
the case.” The DMA noted that, if additional medical records were provided that documented the
3

onset of appellant’s right shoulder pain while she was still employed by the employing
establishment or at any other job following the left rotator cuff repair, then the issue of causation
could be revisited.
By decision dated March 8, 2017, OWCP denied expansion of the acceptance of
appellant’s claim, finding that the medical evidence of record was insufficient to establish that the
conditions of right shoulder impingement, right shoulder tendinitis, and right partial rotator cuff
tear were consequential to the accepted left shoulder employment injury.
By letter dated June 20, 2017, OWCP referred appellant for a second opinion examination
with Dr. Kevin Scott, a Board-certified orthopedic surgeon, to assess appellant’s current condition.
An August 31, 2017 MRI scan of the right shoulder interpreted by Dr. Andrew
Goldschmidt, a Board-certified diagnostic radiologist, revealed the absence of a full-thickness
rotator cuff tear. In a July 13, 2017 report, Dr. Scott noted appellant’s history of injury and
treatment, examined appellant, and provided physical examination findings. He found full range
of motion (ROM) of both shoulders and diagnosed left shoulder rotator cuff tear. Dr. Scott
explained that there were no other injuries due to the December 12, 2014 employment injury. He
noted appellant’s preexisting left shoulder rotator cuff tear from her 2013 injury. Dr. Scott
reviewed the June 12, 2015 MRI scan of the right shoulder, which revealed partial tearing of the
supraspinatus tendon, subacromial bursitis, and biceps tendon tenosynovitis. He concluded that
the accepted conditions had resolved.
On March 6, 2018 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP had reached a false conclusion based upon the report of the DMA, Dr. Slutsky, that
the DMA’s report should not have been relied upon, and that appellant should have been referred
for a second opinion evaluation regarding the right shoulder.
OWCP received additional medical evidence.
In a March 20, 2018 report, Dr. Michael B. Lax, Board-certified in occupational medicine,
examined appellant and provided his findings. He diagnosed bilateral rotator cuff tears. Dr. Lax
opined that, within a reasonable degree of medical certainty, appellant’s work as a rural postal
delivery worker with many years of exposure to heavy lifting (40-pound buckets of mail) in small
spaces (her delivery car), repetitive movements (upwards of 500 stops for mail), and also a few
specific events, including lifting heavy buckets of mail in December 2014 and turning in her car
to grab a package, contributed significantly to the development of both bilateral chronic shoulder
pain and rotator cuff tears.
On April 30, 2018 OWCP requested clarification from Dr. Scott, regarding whether
appellant developed a right shoulder condition as a consequence of her accepted work-related left
shoulder condition.
In a May 3, 2018 addendum, Dr. Scott noted the definition of a consequential condition,
referred to his prior report and examination, and opined, “I do not find a consequential injury for
the left or right shoulder.”
By decision dated May 29, 2018, OWCP denied modification of the March 8, 2017
decision.
4

On August 2, 2018 appellant, through counsel, filed a timely appeal from the May 29, 2018
OWCP merit decision. By decision dated July 18, 2019, the Board affirmed the May 29, 2018
decision.6
OWCP continued to receive medical evidence regarding appellant’s left shoulder
condition.
On July 17, 2020 appellant, through counsel, requested reconsideration and submitted a
March 7, 2018 report from Dr. Lax. Counsel argued that a conflict existed between Dr. Lax and
the DMA, Dr. Slutsky, as to whether appellant suffered a consequential injury.
In a March 7, 2018 letter, Dr. Lax noted that he saw appellant on August 8, 2017,
referenced his physical findings from August 8, 2017, and advised that appellant suffered from a
right shoulder condition characterized by a rotator cuff tear and impingement. He related that
appellant gave a history that her right shoulder became symptomatic in 2014, shortly after she had
returned to work following a left shoulder rotator cuff repair and subsequent surgical repair related
to OWCP File No. xxxxxx938. Dr. Lax explained that appellant had just recuperated from surgery
and was protecting her left shoulder and utilizing her right arm to compensate. He opined that the
“same work duties, which caused the left shoulder injury then contributed to the injury in the right
shoulder. Consequently, it is my opinion that [appellant’s] right shoulder impingement and rotator
cuff tear was caused or aggravated by her attempting to compensate for the left shoulder injury.”
Dr. Lax noted that he had reviewed the DMA’s December 29, 2016 report and disagreed that
normal ROM and reduced pain in the left shoulder precluded the likelihood that appellant was
compensating for the left shoulder by using her right shoulder. He opined that “it was only natural
for her to protect the left shoulder from reinjury by using the right arm more.” Dr. Lax noted that
Dr. Van Gorder obtained an MRI scan of her right shoulder in June 2015, which supported that
the symptoms were present. He explained that an MRI scan was not usually pursued until the
symptoms became chronic.
By decision dated October 5, 2020, OWCP denied modification of the July 18, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, 7 that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

6

Supra note 4.

7

K.R., Docket No. 20-0995 (issued January 29, 2021); A.W., Docket No. 19-0327 (issued July 19, 2019); S.B.,
Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

employment injury.8 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease. 9
The general rule respecting consequential injuries is that, when the primary injury is shown
to have arisen out of and in the course of employment, every natural consequence that flows from
the injury is deemed to arise out of the employment, unless it is the result of an independent
intervening cause, which is attributable to the employee’s own intentional conduct. 10 The
subsequent injury is compensable if it is the direct and natural result of a compensable primary
injury. With respect to consequential injuries, the Board has held that, where an injury is sustained
as a consequence of an impairment residual to an employment injury, the new or second injury,
even though nonemployment related, is deemed, because of the chain of causation, to arise out of
and in the course of employment and is compensable. 11
A claimant bears the burden of proof to establish a claim for a consequential injury.12 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the accepted employment injury. 13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that acceptance
of her claim should be expanded to include additional conditions as a consequence of the
December 12, 2014 employment injury.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s May 29, 2018 merit decision because the
Board considered that evidence in its July 18, 2019 decision. Findings made in prior Board
decisions are res judicata absent further review by OWCP under section 8128 of FECA. 14

8

J.B., Docket No. 20-1566 (issued August 31, 2021); see J.M., Docket No. 17-0284 (issued February 7, 2018);
R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
9

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

See L.M., Docket No. 18-1514 (issued July 18, 2019); K.D., Docket No. 17-1894 (issued August 6, 2018); A.M.,
Docket No. 18-0685 (issued October 26, 2018); Mary Poller, 55 ECAB 483, 487 (2004); Arthur Larson & Lex K.
Larson, The Law of Workers’ Compensation § 10-1.
11

See K.D, id.; see also S.S., 59 ECAB 315 (2008).

12

See C.H., Docket No. 20-0228 (issued October 7, 2020); P.P., Docket No. 19-1359 (issued April 30, 2020).

13

See T.S., Docket No. 20-0968 (issued August 17, 2021); K.W., Docket No. 18-0991 (issued December 11, 2018);
P.M., Docket No. 18-0287 (issued October 11, 2018).
14

See M.F., Docket No. 21-0390 (issued August 23,2021); P.B., Docket No. 20-0124 (issued March 10, 2021);
J.S., Docket No. 19-0022 (issued November 4, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

6

In a March 7, 2018 letter, Dr. Lax referred to appellant’s right shoulder MRI scan from
June 2015, which revealed a partial cuff tear and tendinitis. He explained that it was his “opinion
that [appellant’s] right shoulder impingement and rotator cuff tear was caused or aggravated by
her attempting to compensate for the left shoulder injury.” However, the record reflects that, while
appellant had returned to work following her left shoulder injury in OWCP File xxxxxx938, she
did not return to work following the accepted December 12, 2014 employment injury. Therefore,
it is unclear how Dr. Lax formulated his opinion that appellant compensated for her left shoulder,
following the accepted December 12, 2014 employment injury. The Board has held that a medical
opinion that lacks medical rationale is of limited probative value. 15 Moreover, in this letter,
Dr. Lax opined that the “same work duties, which caused the left shoulder injury then contributed
to the injury in the right shoulder.” He did not further explain in this report what activities
appellant engaged in that caused her right shoulder conditions. His opinion was, therefore, not
based on a complete factual background.16 The Board also finds that as Dr. Lax attempted to relate
appellant’s diagnosed right shoulder conditions to performance of her employment duties, and
conversely attempted to opine that her right shoulder condition was a consequence of her
December 12, 2014 left shoulder injury, his opinion was internally consistent. The Board has held
that medical reports are of limited probative value if they are internally inconsistent.17
In his March 20, 2018 report, Dr. Lax opined that, within a reasonable degree of medical
certainty, appellant’s work as a rural postal delivery worker with many years of exposure to heavy
lifting (40-pound buckets of mail) in small spaces (her delivery car), repetitive movements
(upwards of 500 stops for mail), and also a few specific events, including lifting heavy buckets of
mail in December 2014 and turning in her car to grab a package, contributed significantly to the
development of both bilateral chronic shoulder pain and rotator cuff tears.
As Dr. Lax did not provide the necessary medical rationale to establish that appellant’s
right shoulder conditions were a consequence of the accepted left shoulder injury of December 12,
2014, his reports were insufficient to overcome the weight accorded to Dr Scott or to create a
conflict in the medical opinion evidence. The Board thus finds that appellant has not met her
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include the additional conditions as a consequence
of the accepted December 12, 2014 employment injury.

15

J.P., Docket No. 19-0129 (issued April 26, 2019).

16

Y.H., Docket No. 19-0835 (issued October 4, 2019); see F.C., Docket No. 19-0594 (issued August 13, 2019).

17

S.H., Docket No. 19-0631 (issued September 5, 2019); L.L., Docket No. 18-0861 (issued April 5, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the October 5, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Covington, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-990
Issued: August 8, 2007

Case Submitted on the Record

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

JURISDICTION
On March 1, 2007 appellant filed a timely appeal from the November 29, 2006 merit
decision of the Office of Workers’ Compensation Programs, which denied her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of her claim. The Board also has jurisdiction to review the Office’s February 8, 2007
nonmerit decision denying reconsideration.
ISSUES
The issues are: (1) whether appellant sustained a carpal tunnel injury in the performance
of duty; and (2) whether the Office properly denied her December 20, 2006 application for
reconsideration.
FACTUAL HISTORY
On September 6, 2006 appellant, then a 41-year-old tax analyst, filed a claim alleging
that her carpal tunnel syndrome was a result of her federal employment: “After the repetitive
keyboard entry in inputting data into the computer led to pain in both hands and weakness the

more keyboard entry I input the worse my hands felt and over the years continuing keyboard
work has added more pain and weakness.”
The Office asked appellant to submit additional information to support her claim,
including a comprehensive report from her physician providing, among other things, the
physician’s opinion, with medical reasons, on the cause of her condition: “Specifically, if your
doctor feels that work activities in your federal employment caused your condition, an
explanation of how your job activities caused your condition should be provided.”
On May 28, 2002 Dr. Robert J. Hellmann, an internist, noted appellant’s complaints of
intermittent tingling in both hands. “[Appellant] states working on computers will seem to
trigger.” Dr. Hellmann suspected mild carpal tunnel syndrome. An August 30, 2006 Dr. T. Greg
Sommerkamp, a hand surgeon, noted a 12-year history of bilateral whole hand pain and
paresthesias, right greater than left. Appellant complained of increased symptomatology with
holding a steering wheel, newspaper, keyboard and the like. Dr. Sommerkamp diagnosed
bilateral carpal tunnel syndrome. The Office received appellant’s official position description.
In a November 29, 2006 decision, the Office denied appellant’s claim for compensation
benefits. The Office found that the evidence failed to establish that the claimed medical
condition was related to the established work-related events.
In a letter postmarked December 20, 2006, appellant requested reconsideration. She
stated that she asked Dr. Sommerkamp’s office for the statement of explanation the Office had
requested and was told that the Office should contact the doctor’s office for a medical narrative.
The Office provided Dr. Sommerkamp with a copy of its development letter but advised
appellant that it was her responsibility to provide the documentation requested.
In a February 8, 2007 decision, the Office denied appellant’s application for
reconsideration. The Office noted that it had received no additional information to support a
causal relationship between appellant’s carpal tunnel syndrome and her federal employment.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.1 An
employee seeking compensation under the Act has the burden of proof to establish the essential
elements of her claim. When an employee claims that she sustained an injury in the performance
of duty, she must submit sufficient evidence to establish that she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. She must also
establish that such event, incident or exposure caused an injury.2

1

5 U.S.C. § 8102(a).

2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton,
40 ECAB 1143 (1989).

2

Causal relationship is a medical issue3 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,4 must be one of reasonable medical certainty5
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.6
ANALYSIS -- ISSUE 1
The Office does not dispute that appellant used a keyboard at work for data input. The
Office does not dispute that she performed repetitive motions in the course of her employment as
a tax analyst. Appellant has met her burden to establish that she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. The question that
remains is whether this particular employment activity caused or aggravated her bilateral carpal
tunnel syndrome.
The medical evidence appellant submitted does not support her claim. Dr. Hellmann, the
internist, and Dr. Sommerkamp, the hand surgeon, both supported a diagnosis of carpal tunnel
syndrome, but neither offered an opinion connecting this diagnosis to repetitive motion at work
and explaining how data input on a keyboard caused or aggravated her condition. This
explanation is crucial to appellant’s claim. Without it, she has not established that she sustained
an injury in the performance of duty. The Board will affirm the Office decision denying
compensation benefits.
LEGAL PRECEDENT -- ISSUE 2
The Office may review an award for or against payment of compensation at any time
upon application of the employee.7 The employee shall exercise this right through a request to
the district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”8
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
3

Mary J. Briggs, 37 ECAB 578 (1986).

4

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

5

See Morris Scanlon, 11 ECAB 384, 385 (1960).

6

See William E. Enright, 31 ECAB 426, 430 (1980).

7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.605 (1999).

3

interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.9
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.10 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.11
ANALYSIS -- ISSUE 2
Appellant’s December 20, 2006 application for reconsideration is timely, but it meets
none of the standards for obtaining a merit review of her case. She submitted no additional
evidence to support her claim. Appellant simply explained her communication with
Dr. Sommerkamp’s office.
The Office forwarded its request for information to
Dr. Sommerkamp but received nothing in return. Because appellant failed to support her
application for reconsideration with new and relevant evidence or argument, the Office properly
denied her request. The Board will affirm the Office decision denying reconsideration.
Appellant is not entitled to a reopening of her case.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a carpal tunnel injury in the performance of duty. The Board also finds that the Office
properly denied her December 20, 2006 application for reconsideration.

9

Id. § 10.606.

10

Id. § 10.607(a).

11

Id. § 10.608.

4

ORDER
IT IS HEREBY ORDERED THAT the February 8, 2007 and November 29, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 8, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
DEPARTMENT OF THE ARMY,
TANK-AUTOMOTIVE COMMAND,
Warren, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-264
Issued: October 6, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 5, 2010 appellant filed a timely appeal of the May 10, 2010 merit decision
by the Office of Workers’ Compensation Programs (OWCP) terminating appellant’s
compensation and medical benefits.1 Appellant’s appeal was also timely filed from the July 7,
2010 decision denying her request for an oral hearing. Pursuant to the Federal Employees’
Compensation Act and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit
decision was issued on May 10, 2010, the 180-day computation begins May 11, 2010. 180 days from May 11, 2010
was November 8, 2010. Since using November 10, 2010, the date the appeal was received by the Clerk of the
Board, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is November 5, 2010, which renders the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).

ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective May 10, 2010 as she had no further employmentrelated residuals; and (2) whether OWCP properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On August 16, 1989 appellant, then a 56-year-old secretary, filed a traumatic injury claim
alleging that, on August 14, 1989, while walking through a freight loading zone, she slipped and
fell on an oily patch and sustained a fracture of her right wrist. On December 7, 1989 OWCP
accepted her claim for right wrist fracture and herniated disc at L4-5. It paid medical and
compensation benefits.
On March 19, 2009 OWCP referred appellant to Dr. Norman L. Pollak, a Board-certified
orthopedic surgeon, for a second opinion. In a medical opinion dated April 2, 2009, Dr. Pollak
opined that there were no current objective findings to support the residuals of any of the
accepted conditions including left ankle sprain, left ankle contusion, left knee medial meniscus
tear with surgery, right wrist fracture, lumbar strain, herniated disc L4-5 and right elbow
epicondylitis. He noted that there did not appear to be any medical connection between
appellant’s current complaints and the accepted work-related injuries. Dr. Pollak opined that the
complaints were secondary to nonwork-related conditions, specifically, chronic pain syndrome.
He stated “There are no apparent residuals of work[-]rated conditions still active that would
preclude [appellant] from performing duties of date[-]of[-]injury job as a secretary/
stenographer.”
On December 10, 2009 OWCP proposed terminating appellant’s compensation and
medical benefits for the reason that the weight of the medical evidence established that she was
medically capable of working without restrictions as a secretary/stenographer and that no further
treatment was necessary for the conditions of leg ankle sprain, left ankle contusion, left knee
medial meniscus tear, with surgery, right wrist fracture, lumbar strain, herniated disc at L4-5 and
right elbow epicondylitis.
In an August 19, 2008 report, Dr. Craig Watson, a Board-certified neurologist of
professorial rank, indicated that appellant had been a patient of his for a long time, was being
treated for epilepsy and has had a left anterior temporary lobectomy and lesionectomy in
March 2000. He noted that he was currently treating her with anti-seizure medications, which
can have sedating side effects but was still prone to breakthrough seizures.
In a December 18, 2009 report, Dr. Gerald Sherman, a Board-certified otolaryngologist,
indicated that appellant had brain surgery approximately three years ago for right acoustic
neuroma, which resulted in a complete hearing loss in her right ear with some accompanying
vertigo. He noted that she walked with the assistance of a cane. Dr. Sherman stated that,
because of her recent surgery, her epilepsy and vertigo, she was not a candidate for the
workplace and that he did not believe that she was capable of any time of work activity.

2

In a December 30, 2009 report, Dr. David H. Mendelson, a Board-certified orthopedic
surgeon, listed appellant’s diagnoses as left knee arthritis, low back pain, right wrist history of
Colles’ fracture with underlying trigger finger and left foot and ankle arthritis. He noted that her
main problem is buckling and catching. Dr. Mendleson also noted that appellant has significant
arthritis and medial joint space loss. He noted that she is a candidate for a knee replacement, but
that she is not interested in this option. In a February 10, 2010 report, Dr. Mendleson indicated
that appellant is disabled as she has multiple issues with both upper and lower extremities. He
noted that walking is a risk and that sitting is a problem due to lumbar spine. Dr. Mendleson
noted that appellant’s hands are a problem as they limit her as a stenographer.
At Dr. Mendelson’s request, appellant was evaluated on February 9, 2010 by
Dr. Martin B. Kornblum, a Board-certified orthopedic surgeon. He noted that she was very
pleasant, but that the examination was difficult due to pain. Dr. Kornblum listed his impression
as cervical, thoracic and lumbar pain and radiculopathy. He requested an updated magnetic
resonance imaging (MRI) scan.
On March 3, 2010 OWCP referred appellant to Dr. Robert Levine, a Board-certified
orthopedic surgeon, to resolve the conflict between Dr. Mendelson and Dr. Pollak with regard to
whether her continuing disability was causally related to her employment and the extent of her
work-related injury.
A March 5, 2010 MRI scan was interpreted by Dr. Vivke Sehgal, a Board-certified
radiologist, for Dr. Kornblum, a Board-certified orthopedic surgeon, as evincing central disc
protrusion at L5-S1 and left neural foraminal disc protrusion with left neural foraminal
narrowing at L2-3. In a March 8, 2010 report, Dr. Kornblum stated that appellant’s MRI scan
did not show severe findings. He stated that at this point he was going to recommend a pain
management program. Dr. Kornblum stated that he was not inclined to offer appellant surgery
based on the MRI scan findings and would see her on an as needed basis.
On April 1, 2010, Dr. Sheila Simpson, a Board-certified physiatrist, interpreted an
electromyogram and nerve conduction study as showing severe electrodiagnostic evidence of
bilateral L4-S1 radiculopathy, right greater than left, with the majority of the abnormalities seen
at the L5-S1 levels. The abnormalities are more prominent on the right and they appeared acute
and chronic. Dr. Simpson also noted severe electrodiagnostic evidence of a sensory and motor
peripheral neuropathy, myelinopathic and axonopathic involving both lower extremities and are
likely due to both the bilateral radiculopathy and the peripheral neuropathy. She also noted
abnormal nerve conduction studies of the bilateral peroneal, posterior tibial and sural nerves.
In an April 2, 2010 opinion by Dr. Levine, the impartial medical examiner, listed his
diagnoses of nonwork-related conditions as degenerative spondylosis lumbar and cervical spine;
degenerative arthrosis both knees; degenerative arthrosis left ankle, balance problems secondary
to acoustic neuroma removal, obesity, history of trigger fingers right hand and probable
psychological factors affecting physical condition. He noted a history of sprain in the left ankle
that had resolved that was work related by history. Dr. Levine also noted a history of right wrist
fracture without original documentation that would have been work related. He noted that based
on x-rays there was no residual of the reported fracture and that therefore at most it would have
caused a temporary aggravation of wrist pain. Dr. Levine opined that there were no objective

3

findings to support continued residuals of appellant’s accepted condition, noting that her ankle
sprain and contusion had healed, that her torn meniscus has been removed and the herniated disc
is not the result of the fall rather it is a degenerative process associated with normal aging. He
opined that her current problems were degenerative in nature and that the lumbar spondylosis
and arthritis in her knees and ankle has been aggravated and accelerated because she is obese.
Dr. Levine agreed with Dr. Pollak that there are no current objective findings to support the
residuals of any of the accepted conditions. He noted that there are no objective findings that
would indicate the presence of a work-related disease process that would preclude appellant’s
performing a sedentary job. Dr. Levine concluded that, as her accepted conditions have
resolved, no further treatment was needed. He stated that appellant’s work restrictions are not
related to her work-related problems.
By decision dated May 10, 2010, OWCP terminated appellant’s compensation and
medical benefits effective that date for the reason that the medical evidence of record established
that she no longer demonstrated residuals or required medical treatment for the accepted workrelated conditions of left ankle sprain, left ankle contusion, left knee medial meniscus tear with
surgery, right wrist fracture, lumbar strain, herniated disc at L4-5 and right elbow epicondylitis.
By form dated June 9, 2010 and post-marked June 10, 2010, appellant requested an oral
hearing.
By decision dated July 7, 2010, OWCP denied appellant’s request for a hearing as it was
untimely filed. It further reviewed the request and denied it at its discretion as it found that the
issue could equally well be addressed by requesting reconsideration and submitting evidence not
previously considered that established continuing disability related to the work injury of
August 14, 1989.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or was no longer related to the employment.2
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.4 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.5
2

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001); see also C.B., Docket No. 101623 (issued April 11, 2011).
3

Gewin C. Hawkins, 52 ECAB 242 (2001).

4

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

5

Id.

4

Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.6 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.7
ANALYSIS -- ISSUE 1
OWCP accepted that, as a result of her federal duties, appellant sustained a fracture of
part of the right radius and an ulnar sprain of lumbosacral joint ligament, displacement of lumbar
intervertebral disc without myelopathy and right later epicondylitis. It paid wage-loss
compensation and medical benefits. OWCP may not terminate compensation without
establishing that appellant’s disability ceased or was no longer related to her employment.8 It
may not terminate medical benefits without showing that she no longer has residuals from the
accepted injury that require further treatment.9
The Board finds that OWCP properly found a conflict in medical opinion arose between
Dr. Mendelson, appellant’s treating physician, and Dr. Pollak, the second opinion physician with
regard to whether she still had residuals from her accepted employment injuries. Dr. Mendelson
opined that appellant was still disabled as she had multiple issues with both her upper and lower
extremities. Dr. Pollak opined that there did not appear to be any medical connection between
her current complaints and the accepted work-related injuries and declared that there were no
apparent residuals for work-related conditions that would preclude her from performing the
duties of her date of employment position. In order to resolve the conflict, OWCP referred
appellant to Dr. Levine for an impartial medical examination.
In a well-rationalized opinion, Dr. Levine opined that appellant’s accepted conditions had
resolved and that no further treatment was needed. He stated that her work restrictions are not
related to her work problems. In reaching this conclusion, Dr. Levine noted that x-rays showed
that there is no residuals of the reported fracture of appellant’s right wrist and that at most the
work injury resulted in a temporary aggravation of wrist pain. He noted that her ankle sprain and
contusion had healed and that her torn meniscus had been removed. Dr. Levine opined that
appellant’s current problems were the result of normal aging and her obesity. Accordingly, he
provided a well-rationalized opinion finding that she no longer had residuals as a result of her
accepted work condition.

6

5 U.S.C. § 8123(a).

7

R.C., 58 ECAB 524 (2007); Pamela K. Guesford, supra note 4.

8

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

9

T.P., supra note 4.

5

The remaining medical reports are not sufficient to overcome the weight accorded the
opinion of the impartial medical specialist. Drs. Watson and Sherman addressed appellant’s
ability to work with regard to the nonwork-related issues of epilepsy, hearing loss and vertigo;
these physicians did not find that she had any disability or residuals with regard to her accepted
conditions. Drs. Kornblum and Simpson also did not provide an opinion with regard to
continuing residuals from her employment injury. Accordingly, as the case was referred to
Dr. Levine as an impartial medical examination to resolve the conflict in the medical evidence,
his well-rationalized opinion represents the special weight of the medical evidence and the Board
find that OWCP properly terminated appellant’s compensation benefits.10
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 10.607.11
LEGAL PRECEDENT -- ISSUE 2
A claimant for compensation not satisfied with a decision by OWCP is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.12 According to 20 C.F.R. § 10.615, a claimant
shall be afforded a choice of an oral hearing or a review of the written record.13 The regulations
provide that a request for a hearing or review of the written record must be made within 30 days
as determined by the postmark or other carrier’s date marking, of the date of the decision.14 A
claimant is not entitled to a hearing or a review of the written record as a matter of right if the
request is not made within 30 days of the date of OWCP’s decision.15 OWCP as discretion,
however, to grant or deny a request that is made after this 30-day-period.16 In such a case, it will
determine whether to grant a discretionary hearing and, if not, will so advise the claimant with
reasons.17

10

R.C., supra note 7.

11

The Board notes that appellant submitted additional evidence after OWCP rendered its May 10, 2010 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision
and therefore this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 35 ECAB 36 n.2 (1952).
12

5 U.S.C. § 8124(b)(1).

13

20 C.F.R. § 10.615.

14

Id. at § 10.616(a).

15

See James Smith, 53 ECAB 188 (2001).

16

Herbert C. Holey, 33 ECAB 140 (1981).

17

Id.

6

ANALYSIS -- ISSUE 2
In the present case, OWCP issued its decision terminating appellant’s compensation and
medical benefits on May 10, 2010. The postmark for her request for an oral hearing is
June 10, 2010. As appellant’s request was made more than 30 days after the date of issuance of
OWCP’s decision, OWCP properly found in its July 7, 2010 decision that she was not entitled to
an oral hearing as a matter of right because her request for an oral hearing was not made within
30 days of its May 10, 2010 decision.18
Although appellant’s request for a review of the written record was untimely, OWCP has
the discretionary authority and it must exercise such discretion.19 In its July 7, 2010 decision,
OWCP reviewed her request and denied it at its discretion as it found that the issue could equally
well be addressed by requesting reconsideration and submitting evidence not previously
considered that established continued disability related to the work injury of August 14, 1989.
The Board has held that the only limitation on OWCP’s authority is reasonableness and an abuse
of discretion that is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment or actions taken which are contrary to both logic and probable deduction
from established facts.20 In this case, the Board finds that the evidence of record does not
indicate that OWCP abused its discretion in its denial of appellant’s request for an oral hearing.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective May 10, 2010 as she had no further employment-related residuals.
The Board further finds that OWCP properly denied her request for an oral hearing.

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602 (May 1991).

19

See Cora L. Falcon, 43 ECAB 915 (1992).

20

Daniel J. Perea, 42 ECAB 214, 221 (1990).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 7 and May 10, 2010 are affirmed.
Issued: October 6, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8