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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-989
Issued: August 27, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 25, 2014 appellant, through her attorney, filed a timely appeal from a
December 6, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
which denied her recurrence of disability claim. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability beginning March 27, 2013 causally related to her August 11, 2006 and
January 14, 2007 employment injuries.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the December 6, 2013 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

FACTUAL HISTORY
OWCP accepted that on August 11, 2006 appellant, then a 42-year-old mail handler,
sustained a lumbar sprain and thoracic or lumbosacral neuritis or radiculitis as a result of an
employment injury. It also accepted that on January 14, 2007 she sustained spinal stenosis as a
result of an employment injury.3 Both claims were combined into the present claim. Appellant
stopped work and received disability compensation. On September 11, 2007 she was placed on
the periodic rolls.
On November 10, 2008 appellant returned to limited duty. She continued to receive
medical treatment and undergo physical therapy.
In a March 19, 2013 report, Dr. A.R. Sayed Bakhaty, a pain medicine specialist, related
appellant’s complaints of persistent severe, recurrent lower back pain and left leg symptoms. He
stated that appellant was previously treated for a January 14, 2007 work-related injury, which
exacerbated an August 11, 2006 injury. Dr. Bakhaty noted that appellant was treated with
several epidural and facet injections including denervation on the right side. He reported that
appellant had sustained significant improvement with the right side of the back and the right leg.
Dr. Bakhaty related that a September 2012 magnetic resonance imaging (MRI) scan revealed a
broad-based posterior bulge at L2-3 compromising the left neural foramina with some stenosis
and evidence of broad-based bulge at L5-S1. Upon examination, he observed tenderness
extending along the paraspinal muscle of the lumbar spine L3 through S1. Percussion of the
lumbar spinous process was tender, of moderate severity, and maximum at L3 and L5.
Dr. Bakhaty reported that appellant lacked 20 to 30 degrees forward bending and 10 degrees of
extension. He diagnosed status post work-related injury on January 14, 2007 with multiple
injuries and persistent recurrent complaints, post-traumatic lumbar disc herniation with
recurrence at L2-3 and L5-S1, post-traumatic lumbar facet joint pain syndrome and chronic
refractory lower back pain interfering with daily living activities. Dr. Bakhaty opined that all
diagnoses were causally and directly related to the January 14, 2007 work injury that exacerbated
an August 11, 2006 injury. He reported that these injuries were permanent in nature and
interfered with daily living activities, working activities and sleep pattern.
On March 27, 2013 appellant underwent an authorized medial branch block of the lumbar
spine and lumbar facet injection performed by Dr. Bakhaty.
On April 3, 2013 appellant filed a recurrence claim alleging that on March 27, 2013 she
sustained a recurrence of the August 11, 2006 and January 14, 2007 employment injuries and
was unable to work. She claimed that after receiving an authorized spinal injection the pain in
her back returned and prevented her from doing her normal activities. Appellant filed for
disability compensation beginning March 27 until November 1, 2013.
In an April 1, 2013 report, Mark A.P. Filippone, Board-certified in physical medicine and
rehabilitation, related that appellant’s back was still painful without any interval or intercurrent
history of trauma or injury. Upon examination, he observed that central and peripheral
neurological examinations and manual muscle testing were unchanged. Dr. Filippone reported
3

File No. xxxxxx803.

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pain, guarding and spasm in the lumbar paraspinals. Hormans’ sign was negative. Dr. Filippone
stated that appellant was in too much pain after the March 27, 2013 pain management procedure
and was unable to work in any capacity. He reported that appellant continued to be totally
disabled.
In a handwritten prescription note, Dr. Filippone stated that appellant was not able to
return to work in any capacity since the March 27, 2013 pain management procedure.
In a letter dated April 10, 2013, OWCP advised appellant that the evidence submitted was
insufficient to establish her recurrence claim and requested additional evidence to establish that
she was unable to work as a result of her accepted conditions.
In an April 15, 2013 handwritten statement, appellant explained that on March 27, 2013
she had a lumbar injection due to a preexisting work injury. After three hours at home she began
to experience lower back pain and soreness on the right side. Appellant noted that she continued
to receive medical treatment for her preexisting work injury after returning to work following the
original injury. She stated that her MRI scan and electromyography (EMG) reports from
returning to work would show that her back injury was more intense than previous years.
Appellant submitted a September 13, 2012 MRI scan of the lumbar spine and various
physical therapy treatment notes.
On April 17, 2013 appellant underwent another facet joint block spinal injection.
In an April 23, 2013 report, Dr. Bakhaty related appellant’s complaints of persistent,
recurrent lower back pain. He noted that her pain improved significantly for a few days after the
March 27 and April 17, 2013 facet joint and nerve block injections but recurred and was severe.
In a May 15, 2013 report, Dr. Filippone stated that appellant had been under his care for
injuries sustained while at work. He reviewed June 2, 2011 and September 13, 2012 MRI scans
of the lumbar spine and reported that a November 15, 2012 EMG demonstrated evidence of a
bilateral S1 radiculopathy, right more than left. Dr. Filippone noted that he most recently
examined appellant on May 1, 2013 and reported that her medical history and review of systems
were unchanged. He opined that appellant continued to be totally disabled despite not working
and modifying activities of daily living. Upon examination, Dr. Filippone observed increasing
low back pain, guarding and spasm. He noted that peripheral neurologic examinations and
manual muscle testing were unchanged. Appellant was able to flex 15 degrees at the low back
and her peripheral pulses were preserved. Dr. Filippone stated that all of appellant’s above
abnormalities were directly and solely the result of injuries sustained while at work.
In a May 22, 2013 report, Dr. Filippone stated that appellant’s medical history and review
of systems were unchanged. He reported that appellant continued to be totally disabled and
symptomatic referable to the low back pain radiating into the lower extremities despite not
working or modifying activities of daily living.
In a decision dated June 26, 2013, OWCP denied appellant’s recurrence of disability
claim finding that the medical evidence was insufficient to establish that her current disability

3

was causally related to a change or worsening of the August 11, 2006 or January 14, 2007
employment injuries.
By letter dated July 9, 2013 and received on July 10, 2013, appellant, through her
attorney, requested a hearing, which was held on October 23, 2013. She was represented by
counsel. Appellant stated that she began working for the employing establishment on October 7,
2000 as a mail handler and that she did not have any limitations or trouble with her back before
she started to work for the employing establishment. She described her duties as a mail handler
and the August 11, 2006 and January 14, 2007 employment injuries. Appellant noted that she
was out of work for 22 months following the January 14, 2007 injury and returned to work in
November 2008 with limitations of lifting no more than 45 pounds. She continued to receive
medical and physical therapy treatment. Appellant noted that the spinal injections helped
initially but the pain returned so she underwent a discectomy. She stated that on March 27, 2013
she received authorized spinal injections. Appellant explained that later that evening she
experienced a lot of discomfort, pressure, pain and stiffness in her lower back again. She noted
that she was unable to work after the March 27, 2013 injection and related that she did not
sustain any other injuries or accidents to her back around that time. Counsel pointed out that
Dr. Filippone submitted various medical reports which noted the March 27, 2013 spinal injection
and stated that appellant remained disabled from work. He contended that there was sufficient
evidence to establish a recurrence of disability.
In a June 25, 2013 report, Dr. Filippone noted appellant’s continued complaints of
radicular pain from the low back bilaterally, right more than left, radiating into both legs. He
stated that the medical history and review of systems were unchanged. Dr. Filippone reported
pain, guarding and spasm in the lumbar paraspinals. He stated that appellant remained grossly
symptomatic and noted that appellant remained totally disabled.
In attending physician’s reports dated July 31, September 27, October 24 and
November 20, 2013, Dr. Filippone diagnosed lumbosacral radiculopathy and noted that appellant
was totally disabled beginning March 27, 2013. He also submitted various duty status reports
which indicated that she remained totally disabled.
In various reports dated August 20, September 27 and October 24, 2013, Dr. Filippone
related appellant’s complaints of persistent low back pain despite not working, modifying
activities of daily living and attending physical therapy. He noted that her medical history and
review of systems were unchanged. Dr. Filippone provided examination findings similar to his
previous reports and reported pain, guarding, and spasm persisting in the lumbar paraspinals and
sciatic notches bilaterally. He stated that appellant had not been able to work since March 27,
2013 and remained totally disabled.
In an October 21, 2013 report, Dr. Filippone stated that a June 2, 2011 MRI scan of the
lumbar spine demonstrated bilateral posterior lateral bulging of the annulus fibrosis at L4-5 with
annular tear, posterior bulging of the annular fibrosis at L5-S1, posterior bulging of the annulus
fibrosis at L2-3 and bilateral posterior lateral bulging of the annulus fibrosis at L3-4. A
September 13, 2012 MRI scan revealed similar findings along with mild broad-based posterior
bulge of the L1-2 intervertebral disc. Dr. Filippone noted that a November 15, 2013 EMG and
nerve conduction study demonstrated evidence of bilateral S1 radiculopathy, right more than left.

4

He stated that he examined appellant on May 1, 2013 and related that her medical history and
review of systems were unchanged. Dr. Filippone reported that he took her out of work on
April 1, 2013 because she was in too much pain status post pain management procedure on
March 27, 2013. He stated that appellant was still disabled and unable to return to work due to
no improvement in the low back pain following these injections. Upon examination,
Dr. Filippone observed that she was able to flex 15 degrees at the low back at which juncture,
there was increasing low back pain, guarding and spasm. He opined that all of appellant’s above
abnormalities were directly and solely the result of the injuries sustained while at work for the
employing establishment.
By decision dated December 6, 2013, an OWCP hearing representative affirmed the
June 26, 2013 denial decision.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition, which resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.4 This term also means an inability to
work when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn (except when such
withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reduction-inforce) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.5
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden to establish by the weight of the reliable, probative and substantial evidence a recurrence
of total disability and to show that he or she cannot perform the limited-duty position. As part of
this burden, the employee must show either a change in the nature and extent of the injuryrelated condition or a change in the nature and extent of the limited-duty requirements.6 This
burden includes the necessity of furnishing evidence from a qualified physician who concludes,
on the basis of a complete and accurate factual and medical history, that the disabling condition
is causally related to the employment injury.7 The medical evidence must demonstrate a change
in the degree of the work-related injury or condition and explain how and why the accepted

4

20 C.F.R. § 10.5(x).

5

Id.

6

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (January 2013).

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injury or condition disabled the claimant for work on and after the date of the alleged recurrence
of disability.8
ANALYSIS
OWCP accepted that on August 11, 2006 and January 14, 2007 appellant sustained
lumbar sprain, lumbosacral neuritis or radiculitis and spinal stenosis in the performance of duty.
Both claims were combined into the present claim. Appellant stopped work and returned to fulltime limited duty on November 10, 2008. She continued to receive medical treatment and
physical therapy. Appellant stopped work on March 27, 2013 and filed a claim for a recurrence
of disability. She alleged that after receiving an authorized spinal injection the pain in her back
returned and prevented her from doing her normal activities. By decisions dated June 26 and
December 6, 2013, OWCP denied appellant’s recurrence claim finding insufficient medical
evidence to establish that her current disability was causally related to a change in or worsening
of her accepted employment injuries. The Board finds that appellant did not meet her burden of
proof to establish a recurrence of disability beginning March 27, 2013.
In Ruey J. Yu,9 appellant’s claim was accepted for muscle spasm and herniated L4-5 disc.
She subsequently sustained hemiparesis when she received an epidural steroid injection for the
treatment of her employment-related back condition. The Board found that the condition
appellant sustained from her medical treatment was a consequence of her primary employmentrelated injury. The Board explained that, if treatment is performed as a result of an employment
injury, an injury caused by this treatment would constitute a consequential injury.10
Appellant submitted various reports by Dr. Filippone dated April 1 to October 24, 2013.
Dr. Filippone reported that her back was still painful without any interval or intercurrent history
of trauma or injury. Upon examination, he observed pain, guarding and spasm in the lumbar
paraspinals. Hormans’ sign was negative. Dr. Filippone noted that peripheral neurologic
examinations and manual muscle testing were unchanged. Appellant was able to flex 15 degrees
at the low back and her peripheral pulses were preserved. Dr. Filippone reviewed June 2, 2011
and September 13, 2012 MRI scans of the lumbar spine and reported that a November 15, 2012
EMG demonstrated evidence of a bilateral S1 radiculopathy, right more than left. He stated that
all of appellant’s above abnormalities were directly and solely the result of injuries sustained
while at work. Dr. Filippone opined that she was in too much pain after the March 27, 2013 pain
management procedure and was unable to work in any capacity.
The Board notes that Dr. Filippone provides findings on examination and an opinion that
appellant was unable to work after the March 27, 2013 spinal injection. Dr. Filippone does not,
however, provide any medical rationale or explanation for how appellant’s condition changed or
worsened to the extent that she was no longer able to work in her limited-duty capacity, to
support a finding of a consequential injury. He merely states that she was in “too much” pain.
8

James H. Botts, 50 ECAB 265 (1999).

9

49 ECAB 256 (1997).

10

See also Kathryn Haggerty, 45 ECAB 383 (1994); L.S., Docket No. 10-134 (issued September 27, 2010).

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The Board has found 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.11 Because Dr. Filippone failed to provide medical rationale explaining how
appellant’s accepted injuries changed or worsened to the extent that she sustained a
consequential injury from the March 27, 2013 injection and was no longer able to work, his
reports are insufficient to establish her recurrence claim.
Appellant also submitted reports by Dr. Bakhaty. In a March 19, 2013 report,
Dr. Bakhaty noted that appellant was previously treated for a January 14, 2007 work-related
injury, which exacerbated an August 11, 2006 injury. He reviewed her medical treatment and
reported that she had sustained significant improvement with the right side of the back and the
right leg. Dr. Bakhaty provided findings on examination and diagnosed status post work-related
injury on January 14, 2007 with multiple injuries and persistent recurrent complaints, posttraumatic lumbar disc herniation with recurrence at L2-3 and L5-S1, post-traumatic lumbar facet
joint pain syndrome and chronic refractory lower back pain interfering with daily living
activities. He opined that all diagnoses were causally and directly related to the January 14, 2007
work injury that exacerbated an August 11, 2006 injury. Dr. Bakhaty reported that these injuries
were permanent in nature and still interfered with daily living activities, working activities and
sleep pattern. In an April 23, 2013 report, he noted that appellant’s pain improved significantly
for a few days after the March 27 and April 17, 2013 facet joint and nerve block injections but
recurred and was severe. The Board notes that Dr. Bakhaty did not provide an accurate history
as appellant has alleged that her pain increased within hours of the March 27, 2013 injection,
causing disability. Dr. Bakhaty also did not explain why appellant underwent the April 17, 2013
injection if the March 27, 2013 injection caused a consequential injury. He did not provide a
diagnosis of appellant’s condition following the March 27, 2013 injection to explain the alleged
worsening of her physical condition. Dr. Bakhaty did not support his conclusion regarding
disability with findings upon examination, did not discuss the physiological cause of any period
of disability beginning March 27, 2013 nor explain whether she was unable to work in her
limited-duty capacity. His reports, therefore, are likewise insufficient to establish appellant’s
claim.
On appeal, appellant’s attorney contends that the reports of Drs. Filippone and Bakhaty
are sufficient to establish that appellant was disabled beginning March 27, 2013 as a result of her
accepted conditions. As explained above, however, Drs. Filippone and Bakhaty’s reports failed
to contain rationalized medical opinion explaining how her current disability resulted from a
change or worsening of her accepted employment conditions. Because appellant has not
submitted sufficiently reasoned medical opinion explaining why her recurrence of disability
beginning March 27, 2013 resulted from her accepted employment injuries, she did not meet her
burden of proof to establish her claim.

11

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-975 (issued February 6, 2009).

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CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability beginning March 27, 2013 causally related to her August 11, 2006 and January 14,
2007 employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the December 6, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 27, 2014
Washington, DC

Patricia Howard Fitzgerald, 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.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Westminster, MD, Employer
__________________________________________

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

Docket No. 16-0964
Issued: August 8, 2016

Case Submitted on the Record

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

JURISDICTION
On April 6, 2016 appellant filed a timely appeal from a March 1, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that her left hand, left
leg, back, and neck injuries were causally related to a November 16, 2015 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of OWCP’s March 1, 2016 OWCP decision and on appeal,
appellant submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP
at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On November 16, 2015 appellant, then a 48-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she injured her left hand that day as a result of a motor vehicle
accident in the performance of duty. She stopped work on November 17, 2015 and has not
returned to work.
In a November 16, 2015 narrative statement, appellant related that, a jeep slammed into
her truck and pushed it into a tree on that date. She hit her knees and left hand on the metal part
of a track where trays were placed.
Appellant submitted a copy of a November 16, 2015 Carroll County sheriff’s office
motor vehicle collision information exchange form which provided vehicle, owner, and driver
information related to herself and the driver involved in the motor vehicle accident.
In a November 17, 2015 disability form, Dr. Jonathan H. Dunn, an attending Boardcertified orthopedic surgeon, advised that appellant was disabled and, therefore, unable to
perform her work duties through November 24, 2015.
By letter dated January 25, 2016, OWCP notified appellant of the deficiencies of her
claim and afforded her 30 days to submit additional medical and factual evidence.
In a December 8, 2015 follow-up medical report, Dr. Dunn indicated that appellant was
being seen for orthopedic evaluation of injuries sustained due to a work accident. He noted her
pain symptoms, reported findings on physical and x-ray examination, and reviewed prior
diagnostic test results. Dr. Dunn assessed continued symptoms from injuries to appellant’s
cervicothoracic spine, thoracolumbar spine, left wrist, and left foot. He concluded that she
would remain off work.
A State of Maryland motor vehicle crash report completed by the Carroll County sheriff’s
office stated that, on November 16, 2015 appellant’s vehicle was stopped and she was delivering
mail when the back of her vehicle was struck by another vehicle that was trying to pass on the
left. Her vehicle went off the road and struck two mailboxes.
In a January 28, 2016 statement, appellant asserted that the police report was incorrect as
it did not indicate an injury. She sustained left hand, left leg, lower back, and neck injuries when
she was pushed into a tree during the accident. Appellant immediately called her supervisor who
came to the accident scene. She described her pain and medical treatment.
In disability forms dated December 8, 2015 and January 5, 2016, Irine Breslaw, a
physician assistant, advised that appellant was disabled, and therefore unable to perform her
work duties from December 8, 2015 to January 26, 2016.
A January 5, 2016 duty status report (Form CA-17) and an undated Form CA-17 report
with an unknown signature provided a history of injury that on November 16, 2015 appellant’s
hand struck against a metal tray. The reports indicated that she was placed off work. The
undated Form CA-17 report provided clinical findings of widespread degenerative changes in the

2

cervical and lumbar spine and indicated that appellant sustained an injury due to the
November 16, 2015 incident.
In a February 2, 2016 report, Dr. Dunn noted that appellant was involved in a workrelated injury on November 16, 2015. He noted her medical treatment. Dr. Dunn also noted that
appellant was placed off work on November 17, 2015 and she continued to be on out-of-work
status as of January 26, 2016.
In disability forms dated January 26 and February 2, 2016, Daniel Schechter, a physician
assistant, reported that appellant was disabled and, therefore, unable to perform her work duties
from January 26 to March 8, 2016.
By decision dated March 1, 2016, OWCP denied appellant’s traumatic injury claim as the
medical evidence did not establish that the accepted work incident caused a diagnosed medical
condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

John J. Carlone, 41 ECAB 354 (1989); see supra note 1 at § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q) (traumatic injury and occupational disease defined, respectively).

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identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury caused by the November 16, 2015 employment incident. Appellant failed to submit
sufficient medical evidence to establish that she had left hand, left leg, back, and neck injuries
causally related to the accepted employment incident.
Appellant submitted several reports from Dr. Dunn. In a December 8, 2015 follow-up
report, Dr. Dunn indicated that appellant was being seen for an orthopedic evaluation of injuries
sustained due to a work accident. He noted her pain symptoms, reported findings on physical
and x-ray examination, and reviewed prior diagnostic test results. Dr. Dunn assessed continued
symptoms from injuries to appellant’s cervicothoracic spine, thoracolumbar spine, left wrist, and
left foot. He concluded that she would remain off work. Dr. Dunn’s report does not establish
causal relationship because he did not provide a firm medical diagnosis of a particular medical
condition,10 a clear history of injury11 or a specific opinion as to whether the accepted
November 16, 2015 employment incident caused or aggravated appellant’s condition and
resultant disability.12
Similarly, Dr. Dunn’s November 17, 2015 disability form and February 2, 2016 report
are of limited probative value. While he noted that appellant was involved in a work-related
injury on November 16, 2015, he did not provide findings on examination, a firm medical
diagnosis,13 a clear history of injury,14 or explain how her condition and disability commencing
on November 24, 2015 were caused or aggravated by the accepted employment incident.15 As
such, Dr. Dunn’s reports are insufficient to establish appellant’s claim.

8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

10

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
11

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).
12

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
13

See supra note 10.

14

See supra note 11.

15

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (a medical opinion not fortified by rationale is of
limited probative value).

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The disability forms from Ms. Breslaw and Mr. Schechter, physician assistants, regarding
appellant’s disability for work have no probative value in establishing her claim. Physician
assistants are not considered physicians as defined under FECA.16
The Form CA-17 reports with an unknown signature are insufficient to establish
appellant’s claim. A report that is unsigned or bears an illegible signature lacks proper
identification that a physician authored it and cannot be considered probative medical evidence.17
The Board finds that appellant has failed to submit any rationalized probative medical
evidence to establish that she sustained left hand, left leg, back, and neck injuries causally related
to the November 16, 2015 employment incident. Appellant did not meet 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 failed to meet her burden of proof to establish that her
left hand, left leg, back, and neck injuries were causally related to a November 16, 2015
employment incident.

16

5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law);
J.B., Docket No. 13-0976 (issued September 5, 2013); Roy L. Humphrey, 57 ECAB 238, 242 (2005).
17

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the March 1, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 8, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Decatur, GA, Employer
__________________________________________

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

Docket No. 07-1615
Issued: November 7, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 23, 2007 appellant filed a timely appeal of a February 1, 2007 merit decision of
the Office of Workers’ Compensation Programs suspending his compensation benefits. 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 the Office properly suspended appellant’s compensation benefits
effective February 1, 2007 pursuant to 5 U.S.C. § 8123(d), on the grounds that he failed to
submit to a scheduled medical examination without showing good cause.
FACTUAL HISTORY
On September 26, 2005 appellant, then a 48-year-old program support assistant, filed a
traumatic injury claim alleging that he sustained injuries to his back, right side and shoulder
when he slipped and fell on a wet bathroom floor. The Office initially accepted his claim for
bilateral elbow and right hip contusions and lumbar and cervical strains, and later amended the

accepted conditions to include aggravation of cervical spinal stenosis. Appellant was placed on
the periodic rolls and received appropriate compensation benefits.
On December 7, 2006 the Office notified appellant that he was being referred for a
second opinion medical evaluation to address the issues of continued residuals and work
capacity. The Office advised him of his responsibility to attend the appointment and that, if he
failed to do so without an acceptable reason, his compensation benefits could be suspended in
accordance with section 8123(d). By letter dated December 7, 2006, QTC, a company that
schedules medical examinations on behalf of the Office, advised appellant that he had an
appointment on January 4, 2007 at 10:45 a.m. with Dr. Harold H. Alexander, a Board-certified
orthopedic surgeon. Appellant was advised to contact the Office prior to that time if it was
necessary to reschedule the appointment. The notice was properly addressed to appellant’s
address of record and included Dr. Alexander’s address and telephone number.
On January 5, 2004 the Office was advised that appellant had not attended the scheduled
medical examination with Dr. Alexander. By letter dated January 8, 2007, the Office proposed
to suspend appellant’s compensation benefits on the grounds that he failed to attend the medical
examination scheduled for January 4, 2007. The Office afforded appellant 14 days to furnish his
reasons in writing, with supporting evidence, for failing to attend the examination. The Office
advised him that, if his reasons were deemed invalid, then he would be found to be in obstruction
of a medical examination and his compensation benefits would be suspended under section
8123(d) of the Federal Employees’ Compensation Act until the obstruction ceased.
On January 12, 2007 appellant informed the Office by telephone that the reason he did
not attend the scheduled appointment was that his house had been vandalized. He was informed
that the Office could not accept his explanation for failing to attend the scheduled medical
examination by telephone and that he was required to provide his reasons in writing, along with
supporting documentation.
Appellant submitted a letter dated January 4, 2007 from Detective Steve Fowler of the
Covington Police Department Criminal Investigation Unit, indicating that he had received a copy
of his report and had been assigned to appellant’s case. In a partially legible statement dated
January 25, 2007, he indicated that his home had been vandalized and that his truck and cell
phone had been stolen. Appellant did not identify the date of the alleged burglary. The record
contains a report of a January 29, 2007 telephone conversation between the Office and Detective
Fowler, who confirmed that the last incident reported by appellant occurred on
December 13, 2006. Detective Fowler stated that appellant did not report any incident of
vandalism in January 2007.
By decision dated February 1, 2007, the Office suspended appellant’s compensation
benefits, effective that date. It found that he failed to attend the medical examination scheduled

2

for January 4, 2007 or to provide written evidence justifying his failure to attend the
examination.1
LEGAL PRECEDENT
Section 8123 of the Act authorizes the Office to require an employee, who claims
disability as a result of federal employment, to undergo a physical examination as it deems
necessary.2 The determination of the need for an examination, the type of examination, the
choice of locale, and the choice of medical examiners are matters within the province and
discretion of the Office.3 The Office’s federal regulations, at section 10.320, provides that a
claimant must submit to examination by a qualified physician as often and at such time and
places as the Office considers reasonably necessary.4 Section 8123(d) of the Act and section
10.323 of the Office’s regulations provide that, if an employee refuses to submit to or obstructs a
directed medical examination, his or her compensation is suspended until the refusal or
obstruction ceases.5 However, before the Office may invoke these provisions, the employee is
provided a period of 14 days within which to present in writing his or her reasons for the refusal
or obstruction.6 If good cause for the refusal or obstruction is not established, entitlement to
compensation is suspended in accordance with section 8123(d) of the Act.7
ANALYSIS
Following appellant’s failure to attend a scheduled medical examination on January 4,
2007, the Office suspended his compensation benefits, effective February 1, 2007, pursuant to
section 8123(d) of the Act. The Board finds that the suspension of benefits was proper.
The Board notes that the Office determined that a second opinion examination was
reasonably necessary to determine appellant’s work capacity, and the extent and degree of any

1

The Board notes that appellant submitted additional evidence after the Office rendered its February 1, 2007
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision. 20 C.F.R. § 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36
n.2 (1952). Therefore, this new evidence cannot be considered by the Board on appeal. Appellant may submit this
evidence to the Office, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606(b)(2).
2

5 U.S.C. § 8123(a).

3

James C. Talbert, 42 ECAB 974, 976 (1991).

4

20 C.F.R. § 10.320.

5

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).
7

Id.; see Scott R. Walsh, 56 ECAB ___ (Docket No. 04-1962, issued February 18, 2005); Raymond C. Dickinson,
48 ECAB 646 (1997).

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employment-related residuals. Under section 8123 of the Act and its implementing regulations,
appellant was required to attend the examination.8
On December 7, 2006 the Office notified appellant that he was being referred for a
second opinion evaluation on the issues of continuing residuals and current work capacity. The
Office informed him of his obligations to attend and cooperate. The notice clearly explained that
appellant’s compensation benefits could be terminated for failure to report to or obstruction of
the examination. In a letter dated December 7, 2006, which was properly addressed to appellant
at his address of record, QTC, for the Office, advised appellant of the date and time of his
scheduled January 4, 2007 appointment with Dr. Alexander. Appellant was also provided with
Dr. Alexander’s address and telephone number. As noted, he did not appear for the appointment,
nor did he attempt to reschedule the appointment prior to the designated time. Appellant’s
refusal to submit to the medical examination warrants suspension of compensation unless he can
establish good cause for his failure to report at the scheduled time.9
The Board finds that appellant did not establish good cause for his failure to report to the
scheduled examination with Dr. Alexander. The Office notified him on January 8, 2007 that it
proposed suspension of his compensation benefits. Appellant was given 14 days to submit a
valid reason for his failure to attend the scheduled medical appointment. The Board has held
that, where a claimant raises the issue of having difficulty attending a scheduled examination
prior to the date of the examination, and the Office fails to address those concerns, then the
claimant has grounds after the suspension for challenging the propriety of the suspension of
compensation.10 The Board has found, however, that the claimant must properly raise his
concern prior to the scheduled examination.11 In this case, appellant did not make any attempt
prior to the scheduled examination to reschedule or explain why he was unable to attend.
The record reflects that on January 12, 2007 appellant informed the Office by telephone
that the reason he did not attend the scheduled appointment was that his house had been
vandalized. He was informed that the Office could not accept his explanation by telephone, and
that he was required to provide his reasons and supporting documentation, for failing to attend
the scheduled medical examination in writing. Thereafter, appellant submitted a letter dated
January 4, 2007 from Detective Fowler of the Covington Police Department Criminal
Investigation Unit, indicating that he had received a copy of his report and had been assigned to
appellant’s case. On January 25, 2007 he indicated that his home had been vandalized and that
his truck and cell phone had been stolen. Appellant did not identify the date of the alleged
burglary. On January 29, 2007 Detective Fowler informed the Office that the last incident
reported by appellant occurred on December 13, 2006, and that no incident of vandalism had
been reported in January 2007. The evidence submitted by appellant is insufficient to establish
that his residence was vandalized on or about January 4, 2007, the date of the missed medical
8

5 U.S.C. § 8123 (d); 20 C.F.R. § 10.320.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).
10

See Gustavo H. Mazon, 49 ECAB 156 (1997).

11

Id.

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appointment. He has not otherwise provided any evidence to explain why he was unable to
attend the scheduled medical examination. The fact that appellant’s residence may have been
vandalized on December 13, 2006 is not a sufficient reason for his failure to attend a January 4,
2007 medical examination.
The Office, in its December 7, 2006 letter, appropriately directed appellant to report for a
second opinion evaluation on January 4, 2007. He failed to appear for the examination on the
scheduled date and did not provide adequate reasons for not complying with the Office’s
directive. The Office properly determined that appellant refused to submit to a scheduled
medical examination without good cause and properly suspended his right to compensation
benefits effective February 1, 2007.12
The Board finds that appellant received proper notice of his rights and responsibilities
and proper notice of the scheduled examination with Dr. Alexander. The Office followed
established procedures in suspending appellant’s compensation under 5 U.S.C. § 8123(d). The
Board will affirm the Office’s February 1, 2007 decision suspending compensation effective that
same date.
CONCLUSION
The Board finds that the Office properly suspended appellant’s compensation benefits
effective February 1, 2007, as he failed to attend a scheduled medical examination without
showing good cause for his refusal.

12

5 U.S.C. § 8123; see Maura D. Fuller, 54 ECAB 386 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the February 1, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2007
Washington, DC

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

David S. Gerson, 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
__________________________________________
R.O., Appellant
and
U.S. POSTAL SERVICE, NEW BRAUNFELS
POST OFFICE, New Braunfels, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0156
Issued: November 24, 2020

Case Submitted on the Record

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

On August 18, 2020 appellant filed an appeal from an August 26, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0156.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180th day following the August 26, 2019 decision was February 22, 2020. As
appellant did not file an appeal with the Board until August 18, 2020, more than 180 days after the
August 26, 2019 OWCP decision, the Board finds that the appeal docketed as No. 21-0156 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0156 is dismissed.
Issued: November 24, 2020
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

3

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, Fort Belvoir, VA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-1774
Issued: February 27, 2012

Case Submitted on the Record

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

On July 26, 2011 appellant sought appeal from a June 21, 2011 decision of the Office of
Workers’ Compensation Programs (OWCP) which found that he abandoned his request for an
oral hearing. On appeal appellant stated that he did not receive the letter from OWCP providing
the hearing date as it was sent to the wrong address. The Board assigned Docket No. 11-1774.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP.
On December 23, 2010 appellant, then a 54-year-old supply technician, filed a traumatic
injury claim (Form CA-1) alleging that he fell from his chair and injured his knees, left elbow
and chest in the performance of duty on December 20, 2010. By decision dated February 8,
2011, OWCP denied appellant’s claim on the grounds that the evidence submitted was not
sufficient to establish fact of injury. On March 3, 2011 appellant requested an oral hearing,
indicating an address in Fredericksburg, Virginia. In a letter dated April 29, 2011 OWCP
notified appellant that an oral hearing was scheduled for June 6, 2011 at 12:00 p.m. in
Washington, DC. OWCP mailed the letter to a similar address in Stafford, Virginia. By decision
dated June 21, 2011, an OWCP hearing representative found that appellant abandoned his

request for a hearing as he received written notification of the hearing 30 days in advance and he
failed to appear.
Section 10.617(b) of OWCP’s regulations require OWCP to mail a notice of the time and
place of the hearing to appellant at least 30 days before the scheduled date.1 OWCP has the
burden of proving that it mailed a notice of a scheduled hearing to appellant.2 Under the mailbox
rule, it is presumed, in the absence of evidence to the contrary, that a notice mailed to an
individual in the ordinary course of business was received by that individual. This presumption
arises when it appears from the record that the notice was properly addressed and duly mailed.3
However, as a rebuttable presumption, receipt will not be assumed when there is evidence of
nondelivery.4 Also, it is axiomatic that the presumption of receipt does not apply where a notice
is sent to an incorrect address.5 OWCP mailed the April 29, 2011 letter notifying appellant of
the time and place of the hearing to an incorrect address in Stafford, Virginia and not to
appellant’s correct home address in Fredericksburg, Virginia. Thus, the Board finds that OWCP
did not meet its burden of proof to establish that it mailed a notice of a scheduled hearing to
appellant. For this reason, the case will be remanded to OWCP for proper adjudication of
appellant’s request for an oral hearing before an OWCP hearing representative. Following this
and any necessary further development, OWCP shall issue a de novo decision. Accordingly,

1

20 C.F.R. § 10.617(b). Under the Federal Employees’ Compensation Act and its implementing regulations, a
claimant who has received a final adverse decision by OWCP is entitled to receive a hearing upon writing to the
address specified in the decision within 30 days of the date of the decision for which a hearing is sought. 5 U.S.C.
§ 8124(b)(1); 20 C.F.R. § 10.616(a).
2

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

3

See Michelle Lagana, 52 ECAB 187 (2000).

4

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

5

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

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IT IS HEREBY ORDERED THAT the June 21, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
action consistent with this order of the Board.
Issued: February 27, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chapin, SC, Employer
__________________________________________

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

Docket No. 07-1407
Issued: December 12, 2007

Case Submitted on the Record

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

JURISDICTION
On May 1, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ hearing representative’s merit decision dated April 13, 2007 finding that she did not
establish a period of disability causally related to her federal employment. 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 has met her burden of proof in establishing that she was
totally disabled for the period August 21 to November 10, 2006.
FACTUAL HISTORY
On July 28, 2003 appellant, then a 49-year-old rural carrier, filed a traumatic injury claim
alleging a back injury while reaching to throw mail into a bin. The Office accepted appellant’s
claim for a herniated disc at L3-4 on December 23, 2003. The Office authorized surgery.
Appellant underwent a surgical excision of the L3-4 disc on January 28, 2004. On March 23,
2004 the Office entered appellant on the periodic rolls. The Office approved additional surgery

on August 9, 2004. Appellant underwent a surgical left L4-5 hemilaminectomy, medial
facetectomy and decompression of the L5 nerve root on August 27, 2004. On January 7, 2005
the Office approved additional surgery. Appellant underwent a lumbar spinal fusion on
January 13, 2005.
Appellant returned to part-time light-duty work on July 12, 2005. She underwent an
authorized surgical repair of a right rotator cuff tear on August 9, 2005. Appellant again returned
to part-time light-duty work on December 13, 2005.
In a telephone message dated June 27, 2006, appellant informed the Office that she broke
her left ankle at her mother’s house on June 9, 2006. She attributed this new injury to her
accepted employment injuries. Appellant stated that she broke her ankle when her back went
out.
Appellant filed a claim for compensation on August 18, 2006 requesting compensation
for leave without pay from August 7 to 18, 2006. She requested compensation from August 21
to September 1, 2006 on September 2, 2006. In a letter dated September 12, 2006, the Office
requested that appellant provide medical evidence addressing the relationship between her
current total disability and her accepted back and right shoulder injuries. Appellant submitted
treatment notes regarding her left ankle fracture. Dr. Timothy J. Shannon, a Board-certified
orthopedic surgeon, examined appellant on June 10, 11 and 12, July 5 and August 22, 2006. He
diagnosed left ankle biomalleolar fracture.
Appellant claimed compensation from September 4 through 15, 2006. In a letter dated
September 29, 2006, the Office again requested factual and medical information to establish that
her left ankle fracture was due to her accepted employment injuries. Appellant claimed
compensation from September 18 to 29 and October 2 to 13, 2006. The Office requested
additional information regarding her disability beginning October 2, 2006 in a letter dated
November 2, 2006. Appellant filed an additional claim for compensation for the period
October 16 to 27, 2006. The Office requested additional information regarding this period of
disability on November 13, 2006. Appellant did not respond to the requests for information, but
submitted an additional claim form requesting compensation from October 30 to
November 10, 2006. The Office addressed this claim in a letter dated November 29, 2006. It
requested that she submit medical evidence addressing how her work injuries of herniated disc at
L3-4 and right rotator cuff tear caused her left ankle fracture. In a telephone conversation on
December 8, 2006, appellant informed the Office that her back problem caused her to go limp,
fall and break her ankle.
By decision dated January 3, 2007, the Office adjudicated appellant’s claim for the period
August 21 to September 1, September 4 to 15, October 2 to 13 and 16 to 27 and October 30 to
November 10, 2006. The Office found that appellant failed to submit medical evidence to
establish that she was totally disabled during these periods due to her accepted employment
injuries.
Appellant requested a review of the written record on January 16, 2007. In a report dated
January 12, 2007, Dr. Claire Birdsong, a Board-certified family practitioner, stated: “I do
believe it feasible that her ankle injury is related to her previous back injury due to her chronic

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lumbar radiculopathy causing her chronic leg pain, which in effect caused her inability to prevent
her fall that caused her ankle injury.”
By decision dated April 13, 2007, an Office hearing representative found that
Dr. Birdsong had not provided sufficient medical reasoning to establish that appellant’s left ankle
fracture was due to the accepted back injury. Due to the lack of supporting medical evidence, he
found that appellant had not met her burden of proof in establishing that she was totally disabled
from August 21 through November 10, 2006 due to her accepted employment injuries.
LEGAL PRECEDENT
Appellant, for each period of disability claimed, has the burden of proving by a
preponderance of the reliable, probative and substantial evidence that she is disabled for work as
a result of her employment injury. Whether a particular injury caused an employee to be
disabled for employment and the duration of that disability are medical issues which must be
provide by a preponderance of the reliable probative and substantial medical evidence.1
ANALYSIS
Appellant claimed that she was totally disabled due to her left ankle fracture beginning
August 21, 2006. The Office requested that she submitted medical evidence establishing that
this condition and the resulting disability were causally related to her accepted back and shoulder
injuries. Appellant alleged that her left ankle fracture occurred because instability due to her
back condition. In support of this allegation, she submitted a January 12, 2007 report from
Dr. Birdsong, a Board-certified family practitioner, who stated: “I do believe it feasible that her
ankle injury is related to her previous back injury due to her chronic lumbar radiculopathy
causing her chronic leg pain, which in effect caused her inability to prevent her fall that caused
her ankle injury.” The Board finds that this report is not sufficient to meet appellant’s burden of
proof. Dr. Birdsong stated that it was “feasible” that chronic leg pain could have had an impact
on appellant’s June 2006 fall which resulted in her left ankle fracture. However, she did not state
in terms of reasonable medical certainty that appellant’s back condition did cause or contribute to
the fall which resulted in her left ankle fracture. The Board has held that opinions such as the
condition was “probably” related, “most likely” related or “could be” related are speculative and
diminish the probative value of the medical opinion evidence. The opinion regarding causal
relationship does not have to reduce the cause or etiology of a disease or condition to an absolute
certainty, but the opinion must be one of reasonable medical certainty regarding the relationship
of the condition to the employment and must be supported with affirmative evidence explained
by medical rationale and based upon a complete and accurate factual and medical background.2
Dr. Birdsong did not describe the circumstances surrounding appellant’s fall, did not explain
why she believed that chronic leg pain could have impaired appellant’s ability to walk such that a
fall was likely and did not offer any medical reasoning in support of her opinion. For these
reasons, the Board finds that appellant has not submitted sufficient medical opinion evidence to

1

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

2

Kathy A. Kelley, 55 ECAB 206 211-12 (2004).

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establish that she was totally disabled as a result of her accepted employment injuries from
August 21 to November 10, 2006.
CONCLUSION
The Board finds that appellant has not submitted the necessary rationalized medical
opinion evidence to establish a causal relationship between her accepted back injury and her left
ankle fracture. Therefore, she has not established that she was totally disabled for the period
August 21 to November 10, 2006 due to accepted employment-related injuries.
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 12, 2007
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERAL REVENUE SERVICE,
Syracuse, NY, Employer
__________________________________________

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

Docket No. 21-0667
Issued: March 3, 2022

Case Submitted on the Record

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

JURISDICTION
On March 15, 2021 appellant filed a timely appeal from an October 1, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish that an injury
occurred in the performance of duty on May 20, 2020, as alleged.
FACTUAL HISTORY

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the issuance of the October 1, 2020 decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

On June 1, 2020 appellant, then a 55-year-old internal revenue agent, filed a traumatic
injury claim (Form CA-1) alleging that on May 20, 2020 she fractured her left upper extremity
while in the performance of duty. She further explained that, while working from home, she
tripped and fell while trying to kick a toy to her cat. On the reverse side of the claim form B.D.,
an employing establishment supervisor, indicated that appellant was in telework status and that the
incident occurred during scheduled work hours, but controverted the claim, contending that
appellant was not in the performance of duty. Appellant stopped work on the date of injury and
returned to work with restrictions on June 8, 2020.
In a June 3, 2020 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim and
afforded her 30 days to submit the necessary evidence.
In a statement dated June 8, 2020, appellant indicated that at the time of her injury, she was
walking to her home office when she noticed a cat toy in her path. While trying to kick it toward
her cat, her right foot skidded on the floor and she fell, landing on her left arm and face. Appellant
indicated that she believed she was in the performance of duty at the time of the injury, because
she was ordered to work from home until further notice due to the closing of federal buildings due
to COVID-19.
In a report dated May 21, 2020, Dr. Russell M. LaFrance, a Board-certified orthopedic
surgeon, diagnosed appellant with a left proximal humerus fracture including the greater tuberosity
with endosteal scalloping in the humeral head. He noted a history that she fell while kicking a cat
toy across her wood floor.
By decision dated July 8, 2020, OWCP denied appellant’s claim, finding that she had not
established that her injury was sustained in the performance of duty. It found that she was injured
while working from home and engaged in an act for personal comfort and convenience. OWCP
further noted that the personal comfort doctrine did not apply to employees working at home and
that only activities directly related to official duties were covered. It further found that the activity
appellant was engaged in at the time of her injury was not directed to the actual performance of
the duties of her federal employment. Consequently, OWCP concluded that the requirements had
not been met to establish an injury or medical condition as defined by FECA.
On August 6, 2020 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review. In support of her request, she submitted a second
statement reiterating that she believed she was in the performance of duty when she was injured,
because she was instructed to work from home effective March 23, 2020. Appellant also explained
that, due to the sensitive nature of her work materials involving taxpayer information, she utilized
a confined space in her home as an office, and when she finishes her coffee in the morning, she
takes the cup downstairs to her kitchen so that it does not take up necessary office space. She
related that on May 20, 2020 she was returning to her home office from the kitchen and tried to
kick a toy to her cat, missed, and went flying onto the ground in front of her stairs.
By decision dated October 1, 2020, OWCP’s hearing representative affirmed OWCP’s
denial of the claim.

2

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, that the claim was timely filed within the applicable
time limitation period of FECA, 3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”6 The phrase
“sustained while in the performance of duty” has been interpreted by the Board to be the equivalent
of the commonly found prerequisite in workers’ compensation law of “arising out of and in the
course of employment.”7 The phrase “in the course of employment” is recognized as relating to
the work situation, and more particularly, relating to elements of time, place, and circumstance.
To arise in the course of employment, an injury must occur at a time when the employee may
reasonably be stated to be engaged in the master’s business, at a place where the employee may
reasonably be expected to be in connection with the employment, and while he or she was
reasonably fulfilling the duties of his employment or engaged in doing something incide ntal
thereto.8 This alone is insufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown, and this
encompasses not only the work setting, but also a causal concept, the requireme nt being that the
employment caused the injury. 9
Its procedures provide that ordinarily, the protections of FECA 10 do not extend to the
employee’s home, but there is an exception when the injury is sustained while the employee is
performing official duties. In situations of this sort, the critical problem is to ascertain whether at
the time of injury the employee was in fact doing something for the benefit of the employer.11
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

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).
6

5 U.S.C. § 8102(a).

7

See D.L., Docket No. 19-0276 (issued April 20, 2020); M.T., Docket No. 17-1695 (issued May 15, 2018); S.F.,
Docket No. 09-2172 (issued August 23, 2010); Charles Crawford, 40 ECAB 474, 476-77 (1989).
8

See M.T., id.; Mary Keszler, 38 ECAB 735, 739 (1987).

9

See M.T., id.; Eugene G. Chin, 39 ECAB 598, 602 (1988).

10

Supra note 1.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(f)(1) (August 1992);
see also M.T., Docket No. 16-0927 (issued February 13, 2017); S.F., Docket No. 09-2172 (issued August 23, 2010).

3

In determining whether an injury occurs in a place where the employee may reasona bly be
or constitutes a deviation from the course of employment, the Board will focus on the nature of
the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment. 12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty on May 20, 2020, as alleged.
As noted above, for employees performing official duties at home, OWCP has provided
that employees must be directly engaged in the performance of their duties to be covered under
FECA.13 Appellant alleged that she was injured when she kicked a toy to her cat. Her actions
constitute a deviation from the course of employment. At the time of the slip and fall, appellant
was not engaged in an activity essential to her employment or reasonably incidental to the duties
that she was hired to perform. 14 The Board thus finds that the injury she sustained did not occur
in the performance of her federal employment duties.
For these reasons, the Board finds that appellant has not met her burden of proof to establish
an injury in the performance of duty on May 20, 2020, as alleged.
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 an injury, in the
performance of duty on May 20, 2020, as alleged.

12

See A.S., Docket No. 17-1880 (issued December 12, 2018); T.C., Docket No. 16-1070 (January 24, 2017).

13

Supra note 1

14

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the October 1, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
U.S. POSTAL SERVICE, FAR ROCKAWAY
POST OFFICE, Far Rockaway, NY, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1044
Issued: March 16, 2022

Case Submitted on the Record

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

On June 30, 2021 appellant, through counsel, filed a timely appeal from an April 2, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 21-1044.
On November 20, 2019 appellant, then a 41-year-old city carrier, filed a notice of
recurrence (Form CA-2a) alleging that on October 25, 2019 he sustained a recurrence of disability
and the need for medical treatment causally related to his accepted January 10, 2018 employment
injury,2 after his return to light-duty work. He related that his left hip degenerative joint disease
was caused by work-related activities including, sitting on a folding chair, walking, and loading
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

The record reflects that appellant has an accepted traumatic injury claim (Form CA-1) for left hip tear sustained
on January 10, 2018 following a slip and fall on ice. Appellant returned to work following this injury on
October 1, 2019. OWCP assigned this claim File No. xxxxxx514.

parcels into a postal container, however, that he had not sustained any injury between January 10,
2018 and October 7, 2019. Appellant stopped work on October 25, 2019. OWCP assigned this
claim No. xxxxxx572.
In an October 30, 2019 report, Dr. Donald Rose, a Board-certified orthopedic surgeon,
noted that appellant was approximately one year and six months status postoperative left hip
arthroscopy. He noted that appellant had returned to work and that he was working outside his
recommended restrictions. Dr. Rose explained appellant’s pain occurred when he increased
activities, which was consistent with arthritic changes.
In a November 12, 2019 report, Dr. Craig Capeci, a Board-certified orthopedic surgeon,
diagnosed left hip degenerative joint disease. He noted that appellant’s left hip pain related back
to a January 2018 work injury when he injured his left hip while slipping and falling on ice.
Dr. Capeci reported that appellant returned to work in September 2019 following the January 2018
work injury. Appellant stopped work after three weeks as his pain progressively worsened. He
explained that appellant had left hip arthritis in the setting of his 2018 left hip injury and labral
tear.
In a letter dated February 19, 2020, the employing establishment requested OWCP
adjudicate appellant’s recurrence claim as a new occupational disease claim based on his
identification of new work factors as the cause of his alleged condition. OWCP subsequently
converted the claim from a recurrence to an occupational disease claim.
By decision dated May 5, 2020, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence did not demonstrate that the claimed condition was causally
related to the accepted employment factors.
On January 11, 2021 appellant, through counsel, requested reconsideration and submitted
an August 19, 2020 report from Dr. Capeci.
Dr. Capeci, in his August 19, 2020 report, summarized appellant’s treatment from June 4,
2018 through August 19, 2020. Diagnoses included status post left hip arthroscopy and left hip
degenerative joint disease. Dr. Capeci opined that it was reasonable to attribute appellant’s left
hip degenerative joint disease to the accepted January 10, 2018 employment injury.
By decision dated April 2, 2021, OWCP denied modification. It found that Dr. Capeci’s
report did not discuss the claimed work factors, but rather explained that appellant’s left hip
condition was caused by the traumatic event of January 10, 2018, which was already accepted for
left hip strain and was currently open for medical care.

2

The Board, having duly considered the matter, finds that the case is not in posture for
decision.3
The Board finds that OWCP’s procedures provide that cases should be administratively
combined when correct adjudication of the issues depends on frequent cross-referencing between
case files.4 For example, if a new injury case is reported for an employee who previously filed an
injury claim for a similar condition or the same part of the body, doubling is required.5
As OWCP File Nos. xxxxxx572 and xxxxxx514 both involve injuries to appellant’s left
hip, for a full and fair adjudication, the Board will remand the case to OWCP to administratively
combine the present claim with OWCP File No xxxxxx514.6 This will allow OWCP to consider
all relevant claim files and accompanying evidence in developing his current compensation claim.
Following this and other such further development as deemed necessary, OWCP sha ll issue a
de novo decision.

3

The Board notes that appellant filed his claim as one for a recurrence of his accepted condition under OWCP File
No. xxxxxx514. Dr. Capeci reported that appellant’s current condition was causally related to appellant’s accepted
January 10, 2018 employment injury under OWCP File No. xxxxxx514. However, OWCP converted appellant’s
recurrence claim, which was filed within 90 days of the first return to work, to a claim for occupational disease and
denied it as appellant had not established causal relationship. In cases where a recurrence is claimed within 90 days
of the first return to duty, the focus is on disability rather than causal relationship of the accepted condition(s) to the
work injury. Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013); see
also R.E., Docket No. 20-0421 (issued May 17, 2021); R.W., Docket No. 17-0720 (issued May 21, 2018).
4

R.R., Docket No. 19-0368 (issued November 26, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, File
Maintenance & Management, Chapter 2.400.8c (February 2000).
5

L.B., Docket No. 21-0241 (issued October 28, 2021).

6

T.T., Docket No. 21-0049 (issued May 3, 2021); S.D., Docket No. 19-0590 (issued August 28, 2020).

3

IT IS HEREBY ORDERED THAT the April 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 16, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Philadelphia, PA,
Employer
__________________________________________

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Appearances:
Marjorie J. Redford, for the appellant
Office of Solicitor, for the Director

Docket No. 09-995
Issued: December 9, 2009

Case Submitted on the Record

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

JURISDICTION
On March 6, 2009 appellant, through his representative, filed a timely appeal from the
December 3, 2008 decision of the Office of Workers’ Compensation Programs, which denied his
request for merit review. Because more than one year has elapsed between the last merit
decision dated November 15, 2007 and the filing of this appeal, the Board lacks jurisdiction to
review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2 and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
consideration of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. On June 29, 1987 appellant, then a 43year-old preventative maintenance worker, sustained a thigh and groin injury when an elevator
closed on his left leg. The Office accepted his claim for muscle ligament strain and bruise and
avascular necrosis of the left femoral head. Appellant underwent surgery on January 12, 1988.

He underwent a total hip replacement on October 20, 1993. The Office accepted this condition
as employment related. By decision dated February 15, 1995, it determined that appellant’s
actual earnings in the position of roofer fairly and reasonably represented his wage-earning
capacity. Appellant began working in this position on December 13, 1994. The Office granted
him a schedule award for 44 percent impairment of his left lower extremity on April 3, 1995.
Appellant filed a recurrence of disability claim on September 25, 2003. The Office
denied his claim for a consequential back injury and the Branch of Hearings and Review
affirmed this decision on February 9, 2005. Appellant appealed this decision to the Board. In an
order remanding case dated October 7, 2005,1 the Board found that the Office should have
adjudicated the case as a request for modification of wage-earning capacity determination and
remanded the case for further review.
By decision dated December 13, 2005, the Office denied modification of the February 15,
1995 wage-earning capacity determination, finding that the evidence did not establish that
appellant’s back condition was a consequence of his accepted employment injuries and that he
did not sustain a material change in the nature and extent of his injury-related condition.
Appellant again requested an appeal before the Board. By decision dated August 11, 2006,2 the
Board affirmed the Office’s decision. The record before the Board contained a report from
Dr. Scott Kurzrok, a Board-certified osteopath specializing in family medicine, dated
January 21, 2004. Dr. Kurzrok attributed appellant’s current lumbar disc herniations to his total
hip replacement, which did not allow “the normal and natural forces of realignment in his back.”
He opined that a total hip replacement would cause undue stress in the lumbar spine and make
appellant prone toward disc herniation.
On June 27, 2007 appellant resubmitted medical and factual records regarding his left hip
claim, dated December 1987 and through his recovery from total hip replacement and return to
work in December 1994. He submitted additional factual information regarding his left hip
claim on July 18, 2007. Appellant requested reconsideration before the Office on August 6,
2007 and referenced the previously submitted report from Dr. Kurzrok. In a report dated
July 6, 2007, Dr. Kurzrok stated that appellant had developed increasing pain in his low back
without any strenuous work requirements. He opined that appellant’s total hip replacement
caused or contributed to his herniated discs and chronic back pain. Dr. Kurzrok stated that
asymmetry and walking gait following a total hip replacement can precipitate the development of
osteoarthritis due to abnormal biomechanics, such as “an unleveling of the pelvis which can lead
to disc herniations and chronic back pain.” He referenced and included several articles.
By decision dated November 15, 2007, the Office denied modification of the August 11,
2006 decision.
Appellant requested reconsideration on September 30, 2008 and submitted an
August 20, 2008 report from Dr. Kurzrok, who again opined that appellant’s back problems
could be related to his 1987 employment injury. By decision dated December 3, 2008, the
1

Docket No. 05-807 (issued October 7, 2005).

2

Docket No. 06-459 (issued August 11, 2006).

2

Office declined to reopen appellant’s claim for consideration of the merits, finding that
Dr. Kurzrok’s report was repetitive of his previously submitted opinions.
LEGAL PRECEDENT
Section 8128(a) of Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review, may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.3 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.4
ANALYSIS
The Office issued a wage-earning capacity determination on February 15, 1995 based on
appellant’s actual earnings as a roofer. By decision dated December 13, 2005, the Office denied
modification of its February 15, 1995 decision. The Board affirmed the December 13, 2005
decision on August 11, 2006.
To reopen the case for merit review appellant must meet one of the requirements of
section 10.606(b)(2) of the Office’s regulations. He did not raise any new legal arguments in his
request for reconsideration. Appellant attempted to submit relevant and pertinent new evidence
in the form of an additional report from Dr. Kurzrok, a Board-certified osteopath specializing in
family medicine, dated August 20, 2008. In this report, Dr. Kurzrok noted appellant’s history of
injury, again referenced the medical literature, reviewed the medical reports and offered his
opinion that appellant’s back problems could be related to his 1987 hip injury. This report
merely repeated the findings and conclusions offered in Dr. Kurzrok’s earlier reports. As there
was no new medical reasoning or rationale in support of his conclusions, Dr. Kurzrok’s report
did not provide any pertinent new and relevant evidence with respect to the issue of whether
appellant had sustained a change in the nature and extent of his employment-related condition.

3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b).

3

The Board accordingly finds that appellant did not meet any of the requirements of
section 10.606(b)(2). He therefore is not entitled to a merit review in this case.5
CONCLUSION
Appellant was not entitled to a merit review since he did not meet any of the
requirements of 20 C.F.R. § 10.606(b)(2).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 3, 2008 is affirmed.
Issued: December 9, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5

L.C., 58 ECAB ___ (Docket No. 06-1928, issued May 31, 2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
U.S. POSTAL SERVICE, MAIL PROCESSING
ANNEX, Aurora, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1273
Issued: August 15, 2012

Case Submitted on the Record

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

JURISDICTION
On April 29, 2011 appellant, through his attorney, timely appealed from an April 7, 2011
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) which denied
reconsideration and a November 15, 2010 merit decision denying wage-loss compensation.
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.
ISSUES
The issues are: (1) whether appellant is entitled to wage-loss compensation commencing
July 21, 2005; and (2) whether OWCP properly declined to reopen appellant’s case for merit
review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.2 Appellant’s April 23, 2004 claim for
compensation was accepted by OWCP on August 10, 2006 for displacement of a lumbar
intervertebral disc with myelopathy and degeneration at L5-S1 with disc bulging and narrowing
at L4-5. In an April 16, 2009 decision, the Board found that he did not meet his burden of proof
to establish that he was totally disabled as of July 21, 2005.3 The Board determined that the
opinion of the attending physician, Dr. Christopher B. Ryan, Board-certified in physical
medicine and rehabilitation, was not sufficiently rationalized on how appellant’s accepted
condition rendered him totally disabled from performing the light-duty position of equipment
operator.4 The facts of the claim, as set forth in the Board’s prior decision, are incorporated by
reference.
The record reflects that appellant also filed a claim, File No. xxxxxx905, which was
accepted on March 27, 2007 for an aggravation of post-traumatic stress disorder. Under that
claim, the record contains a FECA supplemental rolls payment sheet that notes a retroactive
payment of wage-loss compensation to appellant covering the period July 23, 2005 to
May 12, 2007. Effective June 7, 2008, OWCP suspended wage-loss benefits under that claim
because it suspected that appellant might be receiving a dual benefit from the Department of
Veterans Affairs due to a service-connected psychiatric disorder (schizophrenia). On June 24,
2008 it granted a schedule award for 14 percent impairment of the left lower extremity. The
period of the award covered 40.32 weeks from March 18 to December 25, 2008.
On December 31, 2009 appellant’s counsel requested reconsideration. Appellant
submitted a December 29, 2009 report from Dr. Ryan, who stated that appellant should not have
been performing his job duties prior to his retirement and should never perform those duties
again. Dr. Ryan found appellant to be disabled as of July 22, 2005 and stated that he would be
disabled from performing work the rest of his life. It was his understanding that appellant’s
modified equipment operator job accommodated psychiatric factors and did not result in any
changes in the physical demands of the position.
In a February 5, 2010 decision, OWCP denied reconsideration on the basis that the
December 31, 2009 request was untimely and failed to establish clear evidence of error. It
subsequently vacated the February 5, 2010 decision as appellant’s request had been made within
one year of the Board’s April 16, 2009 decision.5
By decision dated May 11, 2010, OWCP noted the accepted lumbar and emotional
condition claims and found that the modified duty effective February 10, 2004 was designed for
2

Docket No. 08-1927 (issued April 16, 2009).

3

Appellant retired on disability as of July 22, 2005. Following acceptance of his lumbar condition, he filed a
claim for wage loss commencing July 21, 2005.
4

On September 17, 2009 the Board issued an order denying appellant’s petition for reconsideration.

5

Because appellant filed his December 31, 2009 request for reconsideration within one year of the Board’s
decision, the request was timely under 20 C.F.R. § 10.607(a).

2

his emotional condition with no indication that the employing establishment considered his
physical limitations. The decision states: “[OWCP] approved total disability compensation
under File No. xxxxxx905 for the psychiatric condition and FECA benefits were paid from
July 22, 2005 to June 7, 2008 when benefits were suspended. Entitlement to disability benefits
are [sic] being restored retroactively to June 8, 2008 under File No. xxxxxx905.” The claim
remained denied for compensation on the basis that appellant was not disabled from all work but
only from the date-of-injury job and that FECA compensation was not payable concurrently with
benefits under the civil service or federal employees retirement systems.
Appellant requested reconsideration, contending that he need only demonstrate that he
was disabled from performing his date-of-injury position, which OWCP already found to have
been established.
By decision dated November 15, 2010, OWCP denied modification of the May 11, 2010
decision. It found that appellant was capable of performing full-time light-duty work, prior to
his July 21, 2005 disability retirement and that his employer was willing and able to
accommodate his partially disabled status with full-time light-duty work.
On January 11, 2011 counsel again requested reconsideration
In an April 7, 2011 decision, OWCP denied reconsideration without further merit review.
LEGAL PRECEDENT
A claimant has the burden of establishing the essential elements of his claim, including
that the medical condition for which compensation is claimed is causally related to the
employment injury.6 For wage-loss benefits, the claimant must submit medical evidence
showing that the condition claimed is disabling.7 The evidence submitted must be reliable,
probative and substantial.8 Benefits are available only while the effects of a work-related
condition continue.9 Compensation for wage loss due to disability is available for periods during
which an employee’s work-related medical condition prevents him from earning the wages

6

20 C.F.R. § 10.115(e) (2010); see Tammy L. Medley, 55 ECAB 182, 184 (2003). 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). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.
7

20 C.F.R. § 10.115(f).

8

Id. at § 10.115.

9

Id. at § 10.500(a).

3

earned before the work-related injury.10 The employee is responsible for providing sufficient
medical evidence to justify payment of any compensation sought.11
ANALYSIS
The Board finds that the case is not in posture for decision.
Since the prior appeal, OWCP combined the case records of appellant’s lumbar condition
claim and his emotional condition claim under File No. xxxxxx043. The record pertaining to
appellant’s emotional condition claim contains evidence that on or about August 15, 2007
OWCP authorized wage-loss compensation from July 23, 2005 to May 12, 2007 in a retroactive
payment. The Board is unable to confirm actual payment from the fiscal records in this case. If
appellant received wage-loss compensation commencing July 23, 2005 under the emotional
condition claim, he would not be entitled to such compensation under the present file concerning
his accepted lumbar condition.
If appellant did not receive compensation for the period July 23, 2005 to June 30, 2007,
the Board notes that OWCP’s May 11, 2010 decision accepted that he was disabled from
performing his regular mail handler duties and the modified equipment operator position he held
as of the date of his disability retirement. OWCP noted that the medical evidence supported an
inability to perform his duties as of April 2, 2004. Appellant continued to work until he retired
effective July 22, 2005.
In a December 29, 2009 report, Dr. Ryan explained that, based on appellant’s lumbar disc
pathology, he should not have continued to work as a mail handler equipment operator for as
long as he did. He explained that appellant opted for disability retirement in July 2005 because
he could no longer stand the pain associated with his employment-related lumbar condition.
According to Dr. Ryan, appellant’s underlying lumbar disc pathology and associated pain
prevented further activity. He concluded that appellant was disabled from performing his dateof-injury position as of July 22, 2005. Dr. Ryan provided a rationalized opinion regarding the
causal relationship between appellant’s lumbar condition and his employment and also explained
how his condition precluded him from performing his assigned job duties on or after
July 21, 2005. The Board finds it sufficiently rationalized to support appellant’s claim of
disability due to his accepted lumbar condition commencing July 22, 2005.
The Board will remand the case to OWCP for a merit decision that sets forth findings of
fact and a statement of reasons as to appellant’s entitlement to compensation as of July 21, 2005.
OWCP should verify whether payment of wage loss was made to appellant under the emotional
condition claim. After such further development of the record as necessary, it shall issue a de
novo decision in order to protect appellant’s right of appeal to the Board.

10

Id.

11

Id. at § 10.501(a).

4

CONCLUSION
The Board finds that the case is not in posture for decision as to appellant’s entitlement to
wage-loss compensation commencing July 22, 2005 due to his accepted employment injuries.12
ORDER
IT IS HEREBY ORDERED THAT the November 15, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded to OWCP for further
action in conformance with this decision.
Issued: August 15, 2012
Washington, DC

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

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

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

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In light of the Board’s disposition of the case on the merits, the April 7, 2011 decision denying reconsideration
is rendered moot.

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