United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.P. Appellant
and
DEPARTMENT OF THE NAVY,
HUNTERS POINT NAVAL SHIPYARD,
San Francisco, CA, Employer
__________________________________________

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

Docket Nos. 12-670 & 12-1250
Issued: November 15, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 23, 2012 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) November 15, 2011 merit decision rescinding schedule
awards and a May 8, 2012 overpayment decision.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1

The Board notes that appellant stated that he was appealing a December 14, 2011 OWCP decision. The Board
notes that the December 14, 2011 document is an informational letter and does not purport to be a final adverse
decision. See 20 C.F.R. § 501.3(a). In a letter, OWCP responded to appellant’s request for payment of an existing
third-party surplus. It advised him that he was not entitled to the surplus due to his ineligibility for a schedule
award. The record contains OWCP’s November 15, 2011 merit decision rescinding appellant’s schedule awards for
bilateral lung impairment which is within the Board’s jurisdiction as it was filed within 180 days from the date of
issuance. 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly rescinded its finding that appellant was
entitled to schedule awards; (2) whether it properly found that he received an overpayment of
compensation in the amount of $6,402.16 from May 2, 2003 through January 22, 2005 due to
rescission of the schedule awards; and (3) whether OWCP properly denied waiver of recovery of
the overpayment.
FACTUAL HISTORY
This case has previously been before the Board.3 In a December 3, 2004 decision,4 the
Board affirmed a March 16, 2004 OWCP merit decision finding that appellant had no more than
30 percent impairment of each lung, for which he received a schedule award5 and a June 3, 2004
nonmerit decision denying his request for reconsideration of the schedule award decision on the
grounds that he did not meet any of the requirements of 20 C.F.R. § 10.606(b)(2). In a
January 23, 2007 decision,6 the Board affirmed it nonmerit decision dated March 9, 2006 which
denied appellant’s request for an oral hearing regarding the denial of his claim for total disability
compensation commencing August 1997. In a November 27, 2007 decision,7 the Board affirmed
a May 18, 2007 OWCP nonmerit decision denying appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error in its March 8, 2005 decision which affirmed
the denial of his claim for total disability compensation commencing August 1997. In an order
dated August 8, 2008,8 the Board dismissed appellant’s appeal of a November 27, 2007 OWCP
decision, finding that there was no adverse final decision issued within one year of the filing of
the appeal on December 13, 2007. The facts of the case as set forth in the Board’s prior
decisions and order are incorporated herein by reference.
In a March 17, 2011 decision, OWCP granted appellant a schedule award for an
additional two percent impairment of each lung, for a total 32 percent impairment of each lung.
The period of the award ran from June 24 to August 6, 2010.9
3

On January 16, 2002 appellant, then a 64-year-old boilermaker, filed an occupational disease claim alleging that
on August 3, 2001 he first became aware of his asbestos-related lung disease and realized that his condition was
caused by stripping asbestos from pipes in boiler rooms on ships while working at the employing establishment. He
was separated from the employing establishment on November 21, 1961 due to a reduction-in-force. OWCP
accepted appellant’s claim for calcified plaques due to asbestos exposure, bilateral pleurisy effusion or current
tuberculosis, bilateral lung calcified nodules and left invasive moderately differentiated adenocarcinoma. On
August 11, 2004 appellant notified OWCP of a third-party recovery in the amount of $60,000.00.
4

Docket No. 04-1867 (issued December 3, 2004).

5

The period of the March 16, 2004 schedule award ran from May 2, 2003 to February 15, 2005.

6

Docket No. 06-1019 (issued January 23, 2007).

7

Docket No. 07-1663 (issued November 27, 2007).

8

Order Dismissing Appeal, Docket No. 08-853 (issued August 8, 2008).

9

The March 17, 2011 schedule award which amounted to $521.04 was credited to appellant’s third-party
recovery surplus of $838.22.

2

On March 18, 2011 appellant requested an oral hearing before an OWCP hearing
representative.
In a September 22, 2011 decision, OWCP’s hearing representative affirmed the
March 17, 2011 decision finding that appellant had no more than 32 percent impairment to each
lung. The decision was set aside and remanded to OWCP for determination of his correct pay
rate and consideration of an overpayment. The hearing representative found that appellant was
not entitled to consumer price index (CPI) increases because his accepted employment injuries
occurred prior to October 1, 1966 and he was not disabled for work more than one year prior to
that date.
In an October 12, 2011 notice, OWCP proposed to rescind the March 16, 2004 and
March 17, 2011 schedule award decisions on the grounds that it misapplied the law in appellant’s
case. It found that he was last exposed to the accepted work exposure on November 21, 1961.
The lung did not become a scheduled organ under FECA until September 7, 1974 when FECA
was amended. Citing, Hiram L. Hendricks,10 OWCP noted that the Board had clearly stated that
the provision was applicable only to an injury or death occurring on or after the date of
enactment. Since appellant accepted work exposure ceased prior to the 1974 enactment, he was
not entitled to a schedule award as the lung was not a scheduled organ at the time of his injury.
OWCP stated that while appellant did not know of his condition until 2001, he sustained his
injury during the period of exposure. Since he was last exposed on November 21, 1961,
appellant’s entitlement to a schedule award must be based on the pre-1974 statute, which did not
provide for a schedule award of the lung. He was afforded 30 days to submit additional evidence
or argument. Appellant did not respond.
In a November 15, 2011 decision, OWCP finalized the proposed rescission and
terminated appellant’s entitlement to schedule award compensation.
On November 16, 2011 OWCP issued a preliminary notice of overpayment, finding that
appellant received schedule award payments in the amount of $6,402.16 from May 2, 2003
through January 22, 2005 to which he was not entitled. Although the period of the March 16,
2004 schedule award for which he received compensation for 30 percent impairment to each
lung ran from May 2, 2003 to February 15, 2005, appellant only received payments from May 2,
2003 to January 22, 2005. OWCP further noted that on March 17, 2011 he was advised that his
schedule award for an additional two percent impairment to each lung amounted to $521.04, but
since he had an existing third-party surplus award that exceeded this amount, he was not paid an
additional schedule award. It found that appellant was without fault in creating the overpayment.
Appellant was advised that he could request a telephone conference, a final decision based on the
written evidence only or a prerecoupment hearing within 30 days if he disagreed that the
overpayment occurred, with the amount of the overpayment or if he believed that recovery of the
overpayment should be waived. OWCP requested that he complete an accompanying
overpayment recovery questionnaire and submit financial documents.
On November 19, 2011 appellant requested a prerecoupment hearing, contending that he
did not receive an overpayment. At the March 13, 2012 hearing, he reported that he received
10

33 ECAB 1487 (1982).

3

$970.00 a month in social security retirement benefits less $180.00 for medical expenses.
Appellant received no other income and was not married. He reported monthly expenses which
included $210.00 for rent, $200.00 for food, $50.00 for telephone service, $70.00 for internet
service, $50.00 for automobile insurance and $30.00 to $40.00 for automobile gasoline.
Appellant used credit cards for food and gasoline, but stated these expenses were duplicates of
the previously mentioned expenses. Following the hearing, he submitted financial records which
included a statement from the Social Security Administration noting that his monthly gross
benefit was $972.90 less $99.90 for Medicare, resulting in $873.00. A letter from Kaiser
Hospital reported a monthly premium of $76.00. Another letter from Kaiser stated that appellant
owed $100.00 for various services. A letter from Foremost Insurance Group noted a monthly
premium of $50.40 for automobile insurance. Gas and electric bills for the past several months
indicated that $94.53 was paid for the two months ending on December 20, 2011, $47.14 for the
period ending on February 21, 2012 and $41.90 for the period ending on March 21, 2012. The
total for this four-month period was $183.57. AT&T bills for telephone and internet service
were $116.74 for a two-month period ending on December 20, 2011, $61.36 for the month
ending on February 20, 2012 and $56.45 for the month ending on March 20, 2012, totaling
$234.55. A Merrick Bank statement showed a balance of $1,051.99 and a payment of $40.00. A
Chevron credit card bill showed a balance of $2,185.64 and a current payment due of $100.00.
In a May 8, 2012 decision, OWCP’s hearing representative finalized the $6,402.16
overpayment, finding that appellant was not entitled to wavier of recovery of the overpayment.
Appellant’s monthly income exceeded his monthly ordinary and necessary expenses by $50.00.
The hearing representative found that he had monthly income of $873.00 based on a recent
statement from the Social Security Administration. He further found that appellant’s ordinary
and necessary monthly expenses included $210.00 for rent, $200.00 for food, $40.00 for
gasoline, $50.40 for automobile insurance, $45.89 for gas and electric,11 $58.64 for internet and
telephone service12 and $76.00 for a Kaiser supplemental health insurance premium, totaling
$680.93. The hearing representative did not include the monthly credit card payments for
Merrick Bank and Chevron based on appellant’s hearing testimony that the payments were
included in his other expenses. He subtracted appellant’s monthly expenses of $680.93 from his
monthly income of $873.00 to calculate a balance of $192.07. The hearing representative
directed repayment of the overpayment at the rate of $80.00 a month.
LEGAL PRECEDENT -- ISSUE 1
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or application.13 The Board has
upheld OWCP’s authority to set aside or modify a prior decision and issue a new decision under
section 8128 of FECA.14 The power to annul an award, however, is not an arbitrary one and an
11

OWCP’s hearing representative calculated that the total amount of appellant’s average four-month expense for
gas and electric was $45.89.
12

OWCP’s hearing representative calculated that the total amount of appellant’s average four-month expense for
Internet and telephone service was $58.64.
13

5 U.S.C. § 8128; see also M.E., 58 ECAB 694 (2007).

14

John W. Graves, 52 ECAB 160 (2000).

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award for compensation can only be set aside in the manner provided by the compensation
statute.15
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud.16 It is well
established that, once OWCP accepts the claim, it has the burden of justifying the termination or
modification of compensation benefits.17 OWCP’s burden of justifying termination or
modification of compensation holds true where OWCP later decides that it has erroneously
accepted a claim of compensation. In establishing that its prior acceptance was erroneous,
OWCP is required to provide a clear explanation of its rationale for rescission.18
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained calcified plaques, bilateral pleurisy effusion or
current tuberculosis, bilateral lung calcified nodules and left invasive moderately differentiated
adenocarcinoma due to his accepted asbestos work exposure. On March 16, 2004 it granted him
a schedule award for 30 percent impairment to each lung. On March 17, 2011 OWCP granted
appellant a schedule award for an additional two percent impairment for each lung, for a total 32
percent impairment of each lung.
The schedule award provisions of FECA provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body.19 The lung was
added to the list of organs in 1974 under the implementing federal regulations20 as a result of the
1974 amendments to FECA.21 Congress provided, however, that the amendment was not
retroactive.22 Therefore, injuries occurring before 1974 are not covered. For schedule award
purposes, the date of injury for an occupational disease is the date of last exposure to the causal
agent, which in this case is the date that appellant was separated from the employing
establishment on November 21, 1961.23 The Board finds that OWCP properly determined that
appellant was not entitled to schedule awards for impairment to his lungs under FECA. OWCP
met its burden to rescind appellant’s schedule awards for impairment to his lungs.
15

See Cary S. Brenner, 55 ECAB 739 (2004); Stephen N. Elliott, 53 ECAB 659 (2002); 20 C.F.R. § 10.610.

16

L.C., 58 ECAB 493 (2007).

17

Andrew Wolfgang-Masters, 56 ECAB 411 (2005).

18

See Amelia S. Jefferson, 57 ECAB 183 (2005); Delphia Y. Jackson, 55 ECAB 373 (2004).

19

5 U.S.C. § 8107.

20

20 C.F.R. § 10.404; see Eugene Van Dyke, 53 ECAB 706 (2002).

21

5 U.S.C. § 8107(c)(22).

22

See Katherine M. Dunlap, 32 ECAB 875 (1981); Robert Henry Guy, 29 ECAB 734 (1978).

23

See Patricia K. Cummings, 53 ECAB 623 (2002); Sherron A. Roberts, 47 ECAB 617 (1996); Manuel Carbajal,
37 ECAB 216 (1985).

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LEGAL PRECEDENT -- ISSUE 2
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his duty.24
Permanent impairment to specified members of the body may entitle a claimant to a schedule
award.25 If OWCP later rescinds a claim, the amount of any compensation paid is considered an
overpayment of compensation.26
If an injury for which compensation is payable is caused under circumstances creating a
legal liability in a person other than the United States to pay damages and a beneficiary entitled
to compensation from the United States for that injury receives money or other property in
satisfaction of that liability as a result of suit or settlement by him or in his behalf, the
beneficiary, after deducting therefore the costs of suit and a reasonable representative’s fee, shall
refund to the United States the amount of compensation paid by the United States and credit any
surplus on future payments of compensation payable to him for the same injury. If compensation
has not been paid to the beneficiary, he shall credit the money or property on compensation
payable to him by the United States for the same injury.27
The refundable disbursements of a specific claim consist of the total money paid by
OWCP from the Employees’ Compensation Fund with respect to that claim to or on behalf of a
FECA beneficiary, less charges for any medical file review done at the request of OWCP and
certain medical examinations.28
ANALYSIS -- ISSUE 2
The record establishes that an overpayment was created as appellant received schedule
awards to which he was not entitled. OWCP paid him a schedule award in the amount of
$6,402.16 from May 2, 2003 through January 22, 2005 for 30 percent impairment of both lungs.
It also paid appellant a schedule award for an additional two percent impairment for each lung,
totaling 32 percent impairment of each lung. OWCP properly rescinded the schedule awards
based on his date of injury, which precluded him from receiving schedule award payments. It
properly determined that the period of the overpayment was May 2, 2003 through
January 22, 2005. The record establishes that appellant received schedule award payments for
30 percent impairment of each lung only during the stated period rather than during the actual
period of the award which ran from May 2, 2003 to February 15, 2005. Further, he was not
entitled to receive additional compensation from June 24 to August 6, 2010 under the March 17,
2011 schedule award because the amount of the award, $521.04, was properly credited by

24

5 U.S.C. § 8102(a).

25

Id. at § 8106(a).

26

George A. Rodriguez, 57 ECAB 224 (2005).

27

5 U.S.C. § 8132.

28

20 C.F.R. § 10.714.

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OWCP to his third-party recovery surplus of $838.22.29 The Board finds that, as appellant was
not entitled to the schedule award, for which he received payment of $6,402.16, an overpayment
of compensation was created from May 2, 2003 through January 22, 2005.
LEGAL PRECEDENT -- ISSUE 3
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment.30
If OWCP finds that the recipient of an overpayment was not at fault, repayment will still
be required unless: (1) adjustment or recovery of the overpayment would defeat the purpose of
FECA; or (2) adjustment or recovery of the overpayment would be against equity and good
conscience.31
Recovery will defeat the purpose of FECA if both: (a) the individual from whom
recovery is sought needs substantially all of his current income (including periodic benefits
under FECA) to meet current ordinary and necessary living expenses; and (b) the individual’s
assets do not exceed the resource base (including but not limited to cash, the value of stocks,
bonds, savings accounts, mutual funds) of $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent, plus $960.00 for each additional dependent. The first
$4,800.00 or more, depending on the number of claimant’s dependents, is also exempted from
recoupment as a necessary emergency resource. If an individual has current income or assets in
excess of the allowable amount, a reasonable repayment schedule can be established over a
reasonable, specified period of time. It is the individual’s burden to submit evidence to show
that recovery of the overpayment would cause the degree of financial hardship sufficient to
justify waiver.32 An individual is deemed to need substantially all of his or her income to meet

29

The Board notes that section 8132 of FECA provides that an employee who sustained an injury for which
compensation is payable under circumstances creating a legal liability in a party other than the United States has the
obligation to reimburse to the United States that amount of compensation paid and credit any surplus on future
payments of compensation payable to him for the same injury. The purpose underlying this obligation is to prevent
a double recovery by the employee. See Thomas P. Murray, 51 ECAB 630 (2000). OWCP regulations, at section
10.711, provide that a beneficiary can retain, as a minimum, one-fifth of the net amount of money or property
remaining after a reasonable attorney’s fee and the costs of litigation have been deducted from the third-party
recovery. The United States shares in the litigation expense by allowing the beneficiary to retain at the time of
distribution, an amount equivalent to a reasonable attorney’s fee proportionate to the refund due the United States.
After the refund owed to the United States is calculated, the beneficiary retains any surplus remaining and this
amount is credited, dollar for dollar, against future compensation for the same injury. OWCP will resume the
payment of compensation only after the beneficiary has been awarded compensation which exceeds the amount of
the surplus. 20 C.F.R. § 10.711; see Alvin Collins, 54 ECAB 752 (2003).
30

Id. at § 10.433(a).

31

Id. at § 10.434. See 5 U.S.C. § 8129(b).

32

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a) (June 2009). See Miguel A. Muniz, 54 ECAB 217 (2002); 20 C.F.R. §§ 10.436, 10.437.

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current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.33
Recovery of an overpayment is considered to be against equity and good conscience
when any individual who received an overpayment would experience severe financial hardship
in attempting to repay the debt.34 Recovery of an overpayment is also considered to be against
equity and good conscience when any individual, in reliance on such payments or on notice that
such payments would be made, gives up a valuable right or changes his position for the worse.35
ANALYSIS -- ISSUE 3
As OWCP found appellant without fault in the creation of the overpayment of
compensation, waiver must be considered and repayment is still required unless adjustment or
recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience.36
In determining that appellant was not entitled to a waiver of the recovery of the
overpayment, OWCP reviewed his income, expenses and assets. Based on the hearing testimony
and financial documentation supplied by appellant, it found that he had a monthly income of
$873.00 and monthly expenses of $680.93 or a difference of $192.07. Its procedures provide
that an individual is deemed to need substantially all of his or her current income to meet current
ordinary and necessary living expenses if monthly income does not exceed monthly expenses by
more than $50.00.37 The Board finds that, as appellant’s monthly income of $873.00 exceeded
his documented reasonable monthly expenses of $680.93 by $192.07, he is not entitled to waiver
as he does not need substantially all of his income to meet current ordinary and necessary
expenses.
Appellant does not argue, and the record does not establish, that recovery of the debt
would be against equity and good conscience. He did not show that he gave up a valuable right
or changed his position for the worse in reliance on the overpayment.
Because appellant has failed to establish that, recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, the Board finds that he has failed
to show that OWCP abused its discretion by refusing to waive the $6,402.16 overpayment.38

33

Sherry A. Hunt, 49 ECAB 467, 473 (1998).

34

20 C.F.R. § 10.437(a).

35

Id. at § 10.437(b).

36

Id. at §§ 10.436, 10.437.

37

Federal (FECA) Procedure Manual, supra note 32 at Chapter 6.200.6(a)(3) (June 2009).

38

As recovery from continuing compensation benefits under FECA is not involved in this case, the Board has no
jurisdiction over the amount OWCP determined that appellant should repay each month. Terry A. Keister, 56 ECAB
559 2005); see also Cheryl Thomas, 55 ECAB 610 (2004).

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CONCLUSION
The Board finds that OWCP properly rescinded its finding that appellant was entitled to
schedule awards. The Board further finds that it properly found that appellant received an
overpayment of compensation in the amount of $6,402.16 from May 2, 2003 through January 22,
2005 due to its rescission of the schedule awards. Lastly, the Board finds that OWCP properly
denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the May 8, 2012 and November 15, 2011 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 15, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Juan, PR, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1800
Issued: February 21, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On July 29, 2013 appellant filed an application for review of a May 9, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) which denied his February 24, 2012 request
for reconsideration on the grounds that the request was untimely filed and the evidence failed to
establish clear evidence of error. The appeal was docketed as No. 13-1800.
In a September 23, 2011 decision, OWCP denied modification of an August 30, 2010
decision which denied appellant’s claim for an emotional condition. In a February 24, 2012
letter, received by OWCP on March 6, 2012, appellant stated, “I feel my case should be
approved and I be placed on the periodic rolls” and submitted evidence in support of his claim
from his treating physician, Dr. Luis Polo, who performed a psychiatric evaluation, that he hoped
“clears the record.” The letter was sent to the address that OWCP’s September 23, 2011 decision
provided for reconsideration requests. In an appeal request form dated February 2, 2012 and
received on May 2, 2013, appellant requested reconsideration of OWCP’s decision dated
August 30, 2010. In a May 9, 2013 decision, OWCP denied the request finding that appellant’s
reconsideration request received on May 2, 2013 was not filed within one year of OWCP’s
September 23, 2011 merit decision.
The Board has considered the matter and finds that the February 24, 2012 request
constituted a timely request for reconsideration. OWCP regulations provide that an application
for reconsideration must be received by OWCP within one year of the date of the OWCP

decision for which review is sought.1 OWCP procedures note that the one-year time limit for
requesting reconsideration begins on the date of the original decision and also accompanies any
subsequent merit decision on the issues.2 The procedures further note that the “request does not
have to be submitted on the appeal request form; letter format is acceptable” and “the word
‘reconsideration’ does not need to be stated in the request for it to be considered valid, but
sufficient detail should be provided to discern the decision being contested.”3
As the September 23, 2011 OWCP decision was a merit decision, appellant had one year
from September 23, 2011 to request reconsideration. The Board finds that appellant’s letter
dated February 24, 2012 and received by OWCP on March 6, 2012 was a request for
reconsideration of the September 23, 2011 OWCP decision. Although appellant did not use the
word “reconsideration” he provided sufficient detail to discern that he was contesting the denial
of his claim. The Board finds that appellant’s request was timely, as it was dated February 24,
2012 and received on March 6, 2012, and was clearly made within one year of the OWCP’s
September 23, 2011 decision. Because appellant filed a timely reconsideration request, the case
will be remanded to OWCP for application of the standard for reviewing timely requests for
reconsideration.4 The “clear evidence of error” standard utilized by OWCP in its May 9, 2013
decision is appropriate only for untimely reconsideration requests. After such further
development as OWCP deems necessary, it should issue an appropriate decision to protect
appellant’s appeal rights.

1

20 C.F.R. § 10.607(a).

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a) (October 2011).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(a)(1-2)
(October 2011). See Jack D. Johnson, 57 ECAB 593 (2006) (the Board has held that there may be a request for
reconsideration in situations where a letter does not contain the word reconsideration).
4

See 20 C.F.R. § 10.606(b)(2).

2

IT IS HEREBY ORDERED THAT the May 9, 2013 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded to OWCP for further action
consistent with this order of the Board.
Issued: February 21, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATIONAL FORESTS IN TEXAS, Lufkin, TX,
Employer
__________________________________________

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

Docket No. 06-1712
Issued: February 1, 2007

Case Submitted on the Record

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

JURISDICTION
On July 20, 2006 appellant filed a timely appeal of a June 9, 2006 merit decision of an
Office of Workers’ Compensation Programs’ hearing representative, who denied modification of
a March 3, 2005 wage-earning capacity determination.1 Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of these decisions.
ISSUES
The issue is whether the Office properly denied modification of appellant’s March 3,
2005 wage-earning capacity determination.

1

On July 28, 2005 the Office granted appellant a schedule award for the left leg. On appeal, appellant has not
sought review of the schedule award decision. Thus, the Board will not consider this issue on appeal.

FACTUAL HISTORY
On March 15, 2004 appellant, then a 45-year-old forest biologist, filed a traumatic injury
claim (Form CA-1) alleging that on March 9, 2004 she twisted her leg and fell while attempting
to cross a river. She injured her left knee. On May 11, 2004 the Office accepted the claim for
left meniscus tear, bilateral shoulder sprain and left chondromalacia patellae. The Office
authorized a right knee arthroscopy on May 27, 2004 and surgical repair of a torn left shoulder
rotator cuff on July 8, 2004. It paid appropriate medical and compensation benefits.
On September 1, 2004 Dr. Steven Dickhaut, a Board-certified orthopedic surgeon,
released appellant to work with restrictions.
On December 1, 2004 the employing establishment offered appellant a position as a
wildlife biologist. The position was a temporary position from December 13, 2004, not to
exceed one year, at 40 hours per week. The employing establishment noted that the temporary
appointment was the same type of appointment appellant held on the date of injury. Appellant
accepted the position and began work on December 13, 2004.
By decision dated March 3, 2005, the Office determined that appellant’s actual wages as
a wildlife biologist fairly and reasonably represented her wage-earning capacity. The Office
determined that her actual wages met or exceeded her date-of-injury wages. Therefore, she did
not have a loss of wage-earning capacity.2
On March 14, 2005 appellant requested a schedule award. By decision dated July 28,
2005, the Office granted her a schedule award for a 10 percent left lower extremity impairment.
The award ran for the period March 24 to October 28, 2005.3
Effective March 18, 2005, appellant’s position as a wildlife biologist was terminated due
to lack of work and funding.
On January 4, 2006 she underwent another left shoulder arthroscopy, which the Office
approved. On January 28, 2006 she filed a Form CA-7 for temporary total disability
commencing January 4, 2006. Progress reports from Dr. Norman Kane, a Board-certified
orthopedic surgeon, dated January 12 and 23, 2006, indicated that appellant was temporary
totally disabled as a result of the right shoulder arthroscopic debridement and decompression.
By decision dated March 8, 2006, the Office denied appellant’s claim for compensation
for the period commencing January 4, 2006. It noted that her temporary appointment ended
effective March 18, 2005 and its March 3, 2005 letter indicated that appellant had demonstrated
the ability to perform the duties as a wildlife biologist for several months. The medical evidence
was not reviewed.
2

The Office found that the current pay rate for date-of-injury position and the new position was $971.94 per
week, based on a full-time position at $50,541.00 per annum. The Office indicated that appellant was in a
temporary appointment on her date of injury and she was brought back to the same type of appointment.
3

As previously noted, appellant has not appealed this decision.

2

In a letter dated March 23, 2006, appellant requested reconsideration. She advised that
she had filed an Equal Employment Opportunity (EEO) complaint against the employing
establishment as it had available jobs. Appellant submitted treatment records of psychological
counseling due to her March 9, 2004 injury. This included copies of appellant’s individual
therapy sessions and medical documentation from Dr. Robert Helston, an emergency physician,
who diagnosed major depression. In an initial diagnostic screening report, Sandra Lynam a
licensed marriage and family therapist, and Erica Rivers, a licensed professional counselor,
diagnosed pain disorder, depressive disorder and anxiety disorder as being related to the injury.
In an unsigned March 31, 2006 letter of medical necessity, Dr. Edward Wolski, a family
practitioner, and Jack Currin, Ph.D., licensed clinical psychologist, diagnosed pain disorder,
depressive disorder and anxiety disorder associated with appellant’s work-related injury.
Appellant was found totally disabled.
In an October 7, 2005 report, Dr. Randall Browning, Board-certified in emergency
medicine, advised that appellant was involved in a motor vehicle accident in a parking lot where
she had stopped and another vehicle backed out and struck her from behind. Examination
revealed no evidence of head, chest or abdominal injury or any neurologic involvement. Some
tenderness was noted in the neck and back areas. An impression of cervical and lumbar strains
was provided and appellant was discharged from care. In an October 8, 2005 report,
Dr. Steven M. Gabriel, Board-certified in emergency medicine, noted a history of the October 7,
2005 motor vehicle accident. He provided an impression of hypertension and musculoskeletal
pain in the back, neck and shoulder.
By decision dated June 9, 2006, the Office denied modification of its March 3, 2005
wage-earning determination. It found that insufficient evidence had been presented to modify
the loss of wage-earning determination.
LEGAL PRECEDENT
The Office’s procedure manual provides that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss.4 The procedure manual further indicates that,
under these circumstances, the claims examiner will need to evaluate the request according to the
customary criteria for modifying a formal loss of wage-earning capacity decision.5
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Mary E. Marshall, 56 ECAB ___ (Docket No. 04-1048, issued
March 25, 2005).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Harley Sims, Jr., 56 ECAB ___ (Docket No. 04-1916, issued
February 8, 2005).

3

rehabilitated or the original determination was, in fact, erroneous.6 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.7
ANALYSIS
The Board notes that there is no indication in the record that the original March 3, 2005
wage-earning capacity determination was erroneous. The record clearly establishes that
appellant’s wildlife biologist position was a temporary appointment similar to the type of
appointment held on the date of injury. As the wildlife biologist position was also a temporary
appointment, the Office may use actual wages from such position in determining wage-earning
capacity.8 Appellant worked in the position more than 60 days,9 and the temporary position was
available for approximately one year. Appellant worked in this position for approximately 90
days before being terminated by the employing establishment for lack of work and funding.10
Furthermore, there is no evidence in the record that appellant was retrained or otherwise
vocationally rehabilitated.
The evidence appellant submitted also fails to establish that there was a material change
in the nature and extent of appellant’s injury-related condition. The evidence either pertained to
unrelated medical conditions or did not specifically address the relevant issue of whether there
was a material change in the nature and extent of the injury-related condition. The March 30,
2006 functional capacity evaluation and the medical reports from Dr. Gabriel and Dr. Browning,
which concern a nonwork-related motor vehicle accident on October 7, 2005, fail to address the
accepted work injuries of March 9, 2004. Appellant’s psychological counseling records fail to
include a medical report which contains any explanation as to how or why appellant’s accepted
physical conditions changed for the worse. Dr. Helston’s reports fail to address the accepted
work injuries of March 9, 2004. The March 31, 2006 report from Drs. Wolski and Currin fail to
provide any rationale to support the causal relationship of the psychological conditions to
appellant’s work-related injuries and fail to provide any explanation as to how or why appellant’s
physical conditions changed for the worse. The report from Sandra Lynam, a licensed marriage
and family therapist, and Erica Rivers, a licensed professional counselor, is insufficient to
establish the claim as they were not signed by a physician and thus are not competent medical

6

Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000).

7

Harley Sims, Jr., supra note 5; Stanley B. Plotkin, supra note 6.

8

If the claimant is not in a temporary position at the time of injury, a temporary job is not appropriate for a wageearning capacity determination. See Pamela J. Darling, 49 ECAB 286 (1998).
9

The procedure manual states that, after the claimant has been working for 60 days, the Office will determine
whether actual earnings fairly and reasonably represent wage-earning capacity. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7(c) (December 1993).
10

A.P., 58 ECAB ___ (Docket No. 06-1428, issued November 29, 2006) (where the Board held that wages earned
from reemploying a temporary worker in another temporary position may be considered if the new position lasts at
least 90 days).

4

evidence.11 As such, the Board finds that the evidence and the medical reports submitted are
insufficient to meet appellant’s burden of proof to show a material change in the nature and
extent of the injury-related condition.
Appellant also submitted reports from Dr. Kane to support her claim of total disability.
The medical evidence from Dr. Kane support appellant was temporarily totally disabled for a
period of time on and after January 4, 2006 due to her second left shoulder arthroscopy, a
procedure which the Office authorized. These reports are relevant to whether appellant had a
limited period of work-related disability following the accepted surgery. The Board notes that
consideration of the modification of wage-earning capacity issue does not preclude the Office
from the acceptance of a limited period of employment-related disability, without a formal
modification of the wage-earning capacity determination.12 In this case, the Office authorized
the January 4, 2006 left shoulder arthroscopy. The Office’s procedure manual provides that
wages lost for compensable medical examination or treatment may be reimbursed.13 The case
will be remanded to the Office for further development of the record as it deems necessary and
the issuance of a de novo decision on the issue of the nature and extent of any compensable
disability arising from appellant’s January 4, 2006 authorized surgery.
CONCLUSION
The Board finds that appellant has not established a basis for modification of her wageearning capacity decision. The case is remanded for the issuance of a de novo decision on the
issue of the nature and extent of any disability arising from appellant’s January 4, 2006
authorized surgery.

11

See 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. See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that a medical
opinion, in general, can only be given by a qualified physician).
12

Katherine T. Kreger, 55 ECAB 633 (2004). See Sharon C. Clement, 55 ECAB 552 (2004).

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16
(December 1995).

5

ORDER
IT IS HEREBY ORDERED THAT the June 9, 2006 decision of the Office of Workers’
Compensation Programs is affirmed in part and the case remanded for further action consistent
with this opinion.
Issued: February 1, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1668
Issued: March 2, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 28, 2020 appellant, through counsel, filed a timely appeal from an August 5,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No
contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative,
prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met her burden of proof to establish that OWCP should
expand the acceptance of her claim to include a low back injury, pelvic or hip condition, right lower
extremity pain, and a balance disorder causally related to an accepted July 23, 2019 employment
injury.
FACTUAL HISTORY
On July 23, 2019 appellant, then a 52-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her right shin when she stepped into a hole
on a customer’s property while in the performance of duty. She stopped work on July 23, 2019. On
August 7, 2019 OWCP accepted the claim for right ankle sprain, a right lower extremity laceration,
and cellulitis of the right lower extremity.
In an August 8, 2019 report, Dr. Amy S. Beck, an osteopath Board-certified in internal
medicine, noted that the right anterior shin laceration was healing poorly, with serous sanguineous
fluid and mild surrounding reactive erythema. In a separate note of the same date, she held appellant
off work through August 29, 2019.
OWCP paid appellant wage-loss compensation on the supplemental rolls from September 7
through 13, 2019.
In September 18, 2019 reports, Dr. David S. German, a Board-certified plastic surgeon,
noted that appellant sustained a right lower leg injury with flap laceration on July 23, 2019. He
diagnosed a healed chronic ulcer of the right anterior lower leg and right lower leg discomfort with
activity. In a work status report of the same date, Dr. German returned appellant to light-duty work
with a restriction against operating vehicles.
Appellant returned to part-time, light-duty work on or about September 18, 2019 and again
stopped work on September 21, 2019.
In a September 23, 2019 prescription note, Dr. German held appellant off work through
October 3, 2019. In a report dated September 27, 2019, he returned her to light-duty work for four
hours a day with restrictions. Dr. German released appellant to full-duty work as of
October 14, 2019.4
Appellant resumed light-duty work on October 5, 2019. She stopped shortly afterward due
to right lower extremity pain. 5

4

Dr. German submitted periodic reports dated through November 6, 2019 noting appellant’s continuing lumbar and
right lower extremity symptoms.
5

OWCP received an October 5, 2019 hospital emergency department report signed by Nichole MacLellan, a family
nurse practitioner.

2

In a letter dated October 10, 2019, appellant requested that OWCP expand its acceptance of
her claim to include a balance problem, paraspinal muscle spasms, back pain, right hip pain,
coccygeal pain right lower extremity pain, right knee pain, and right-sided pelvic pain.
In an October 11, 2019 report, Dr. Mahesh Bagwe, a Board-certified orthopedic surgeon,
noted appellant’s complaints of back discomfort due to a slight limp. He opined that October 10,
2019 magnetic resonance imaging (MRI) scans of the right lower extremity demonstrated edema at
the anterior tibia wound site, and mild tendinitis along multiple tendons of the right ankle. 6
Dr. Bagwe recommended physical therapy to address muscle weakness in the right lower extremity.
In a development letter dated October 22, 2019, OWCP informed appellant of the additional
evidence needed to expand her claim for additional conditions causally related to the July 23, 2019
employment incident. It afforded her 30 days to submit the necessary evidence.
In response, appellant submitted an October 5, 2019 emergency department report by
Dr. John P. Fortney, Board-certified in emergency medicine, who diagnosed low back pain and
sequela of the accepted right lower extremity injury.
In an October 6, 2019 emergency department report, Dr. Steven Hilton, Board-certified in
emergency medicine, noted appellant’s complaints of back pain after lifting items and placing
weight on her right leg while at work. Appellant also experienced right-sided low back spasms
while pushing and pulling carts at work. Dr. Hilton opined that her back pain and spasms were due
to not bearing weight on her right leg for some time and continuing to favor it.
In an October 8, 2019 report, Dr. Beck diagnosed acute right-sided low back pain, neck pain,
weakness, and gait instability.
In an October 30, 2019 report, Dr. Bagwe noted slight weakness of right plantar flexion. He
recommended physical therapy to address deficits in balance and strength.
Appellant returned to work for four hours a day in early November 2019.
In a November 6, 2019 emergency department report, Dr. Thomas F. Wheeler, Boardcertified in emergency medicine, diagnosed lumbar spasm.
In reports dated November 8 and 13, 2019, Dr. Bagwe opined that appellant had right leg
weakness as she had not been physically active for months during recuperation from the July 23,
2019 employment injury. He recommended a work conditioning program. 7
In a December 12, 2019 development letter, OWCP again informed appellant of the type of
medical evidence needed to expand acceptance of her claim to include additional conditions causally

6

An October 10, 2019 MRI scan of the right lower extremity demonstrated subcutaneous edema in the region of a
skin wound anterior to the tibia, intramuscular edema within the tibialis anterior muscle and mild irregularity of its
myotendinous junction, and possible fluid collection along the anterior margin of the tibialis anterior muscle.
7

November 14, 2019 electromyography/nerve conduction velocity testing of the right lower extremity was within
normal limits.

3

related to the July 23, 2019 employment incident. It noted that there was no deadline for her to
request expansion of her claim.
In a December 13, 2019 report, Dr. Bagwe noted that appellant was able to balance easily
on her right lower extremity and had run half a mile on a treadmill without difficulty. He noted that
an MRI scan demonstrated an injury to the tibialis anterior musculature with soft tissue injury and
a partial tear of the tibialis anterior tendon. In reports through January 15, 2020, Dr. Bagwe
recommended that appellant gradually increase her work hours.
By decision dated January 29, 2020, OWCP denied expansion of the claim to include
additional diagnosed conditions of the back or right knee, finding that the medical evidence of record
did not diagnose a back or knee condition or support a causal relationship between any additional
conditions and the July 23, 2019 employment injury.
On February 4, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review held on June 5, 2020. She submitted
additional evidence.
In January 31, 2020 reports, Dr. Bagwe noted that appellant had scar tissue at the site of the
accepted injury that moved with flexion of the tibialis anterior muscle. He opined that she had
residual weakness in her tibialis anterior musculature that affected her balance. Dr. Bagwe
permanently restricted lifting to 60 pounds.
In an April 2, 2020 report, Dr. Bagwe opined that appellant had attained maximum medical
improvement (MMI) on January 31, 2020. He opined that she had sustained 15 percent permanent
impairment of the right lower extremity. Dr. Bagwe noted permanent work restrictions against
working more than eight hours a day and lifting more than 60 pounds. He opined that these
restrictions and permanent impairment were “the result of [appellant’s] loss of strength of the tibialis
anterior musculature due to a partial tendon and muscular laceration.” Appellant had chronic right
lower extremity weakness that precipitated “early fatigue and poor balance with isolated weight
bearing on [her] right lower extremity.”
By decision dated August 5, 2020, the hearing representative affirmed the prior decision.
She found that the medical evidence was insufficient to establish causal relationship between the
July 23, 2019 employment incident and right knee, pelvis, hip, low back, or balance conditions.
Additionally, appellant related her conditions to restricted duties performed following the accepted
injury.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.8

8

D.B., Docket No. 20-1280 (issued March 2, 2021); R.R., Docket No. 19-0086 (issued February 10, 2021); K.T.,
Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

4

Causal relationship is a medical question that requires medical opinion evidence to resolve
the issue.9 The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the accepted
employment injury.10
To establish causal relationship between the condition as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evidence. 11 The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant. 12 The weight of medical evidence is determined by
its reliability, its probative value, its convincing quality, the care of analysis manifested, and the
medical rationale expressed in support of the physician’s opinion.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that OWCP
should expand the acceptance of her claim to include additional medical conditions as causally
related to an accepted July 23, 2019 employment injury.
Dr. Fortney indicated in his October 5, 2019 report that appellant had low back pain related
to sequela of the accepted right lower extremity injury. Dr. Hilton opined on October 6, 2019 that
appellant’s lumbar spasms were caused by not bearing weight on her right lower extremity during
recuperation and continuing to favor it. Both physicians provided a conclusory opinion and did not
explain, with rationale, their opinions as to how the accepted employment injury had caused or
aggravated additional diagnosed conditions. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/disability was causally related to employment factors.14 Thus, their opinions are
of limited probative value and insufficient to establish expansion of the claim.
In an August 8, 2019 reports, Dr. Beck held appellant off work noting that her right anterior
shin laceration was healing poorly. She observed objective right leg weakness and acute right-sided
lumbar pain, as noted in her October 8, 2019 report. Dr. Wheeler diagnosed gait instability and
right lower extremity weakness in his November 6, 2019 report. However, these medical reports
9

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

10

Id.

11

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
12

D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
13

See P.M., Docket No. 18-0287 (issued October 11, 2018).

14

D.S., Docket No. 21-0673 (issued October 10, 2021); A.L., Docket No. 18-1706 (issued May 20, 2019); Y.D.,
Docket No. 16-1896 (issued February 10, 2017).

5

do not offer an opinion as to whether these diagnosed conditions were causally related to the
accepted employment injury. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 15 These reports are, therefore, of no probative value on the issue of causal
relationship and are insufficient to meet appellant’s burden of proof.
In an October 11, 2019 report, Dr. Bagwe noted appellant’s complaints of back discomfort
due to a slight limp. In an October 30, 2019 report, he noted slight weakness of right plantar flexion.
In November 8 and 13, 2019 reports, Dr. Bagwe attributed this weakness to physical inactivity
during recuperation from the July 23, 2019 employment injury. He opined in January 31, 2020
reports that residual weakness in the tibialis anterior musculature affected appellant’s balance.
Dr. Bagwe noted in an April 2, 2020 report that the accepted laceration caused weakness of the
tibialis anterior musculature that precipitated poor balance with isolated weight bearing on
appellant’s right lower extremity. Although Dr. Bagwe indicated that the accepted injury could
cause or contribute to the additional conditions, he did not specify the objective clinical findings
that established causation. The Board has held that a medical opinion must provide an explanation
of how the specific employment incident or employment factors physiologically caused or
aggravated the additional diagnosed conditions. 16 Therefore, the Board finds that Dr. Bagwe’s
reports are of limited probative value and insufficient to establish appellant’s burden of proof.
In September 18, 2019 reports, Dr. German noted that appellant sustained a right lower leg
injury with flap laceration on July 23, 2019 and diagnosed a healed chronic ulcer of the right anterior
lower leg and right lower leg discomfort with activity. In a work status report of the same date, he
returned appellant to light-duty work with a restriction against driving vehicles. In a September 23,
2019 prescription note, Dr. German held appellant off work through October 3, 2019. In a report
dated September 27, 2019, he returned her to light-duty work for four hours a day with restrictions,
releasing appellant to full-duty work as of October 14, 2019. Dr. German also submitted periodic
reports through November 6, 2019, noting appellant’s continuing lumbar and right lower extremity
symptoms. In none of those reports, however, did Dr. German provide an opinion regarding causal
relationship between appellant’s additional diagnosed conditions and the accepted July 23, 2019
employment injury. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship. 17 Thus, the Board finds that the reports of Drs. German are of no probative value on
the issue of causal relationship and are insufficient to meet appellant’s burden of proof.

15

S.S., Docket No. 21-0837 (issued November 23, 2021); see J.M., Docket No. 19-1926 (issued March 19, 2021);
L.D., Docket No. 20-0894 (issued January 26, 2021); T.F., Docket No. 18-0447 (issued February 5, 2020); L.B., Docket
No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
16

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and a
diagnosed condition/disability).
17

Id.

6

Appellant also submitted diagnostic studies that addressed her right lower extremity.
However, the Board has held that diagnostic studies, standing alone, lack probative value on the
issue of causal relationship. 18
As the medical evidence of record is insufficient to establish expansion of the acceptance of
the claim to include additional conditions causally related to or as a consequence of her accepted
employment injury, the Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that OWCP
should expand the acceptance of her claim to include a low back injury, pelvic or hip condition,
right lower extremity pain, and a balance disorder causally related to an accepted July 23, 2019
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 2, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

S.S., id.; C.H., Docket No. 20-0228 (issued October 7, 2020); E.G., Docket No. 17-1955 (issued
September 10, 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Richmond, VA, Employer
)
___________________________________________ )
E.S., Appellant

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

Docket No. 14-2018
Issued: February 18, 2015

Case Submitted on the Record

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

JURISDICTION
On September 19, 2014 appellant filed a timely appeal from the April 17, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), denying her request for
further merit review of her claim. As the last merit OWCP decision was issued on April 2, 2013
more than 180 days from the filing of this appeal, the Board does not have jurisdiction over the
merits of the 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 nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board. In a June 2, 2005 decision, the
Board found that appellant did not meet her burden of proof to establish that she sustained a
recurrence of disability causally related to her accepted right thoracic outlet syndrome.2 On
November 29, 2012 the Board issued an order remanding case.3 In the remand order, the Board
set aside the November 25, 2011 OWCP decision, which denied a merit review with regard to
whether appellant had established permanent impairment of an upper extremity. The Board
found that while OWCP stated that certain documents submitted by appellant were not of record,
the evidence showed that OWCP had received these documents. The Board remanded the case
for OWCP to obtain these records and to conduct a merit review of the claim. The facts and
history contained in the prior appeals are incorporated by reference.
Subsequent to the Board’s November 29, 2012 order, OWCP, in an April 2, 2013
decision, denied appellant’s claim for a schedule award. It found that the medical evidence of
record did not support a permanent impairment to a scheduled member or function of the body as
a result of her December 17, 1997 occupational injury.
On March 12, 2014 appellant requested reconsideration. She advised that she was
enclosing additional evidence. In an August 22, 2013 treatment note, Dr. Kimberly Monnell, a
Board-certified neurologist, noted appellant’s history, reported findings, and diagnosed brachial
plexus palsy, cervical spondylosis, right arm pain, and carpal tunnel syndrome of the right wrist.
In a March 7, 2014 report, Dr. Monnell noted that appellant was seen for right brachial
plexopathy, chronic and cervical spondylosis and released from care. A July 9, 2013
electromyogram (EMG) and nerve conduction study (NCS) performed for Dr. Monnell showed a
sensory neuropathy of the upper extremities and possible signs of brachial plexopathy on the
right.
A June 3, 2014 magnetic resonance imaging (MRI) scan of the cervical spine, read by
Dr. John M. Razook, a Board-certified diagnostic radiologist, revealed moderate to severe
multilevel foraminal stenosis, moderate multilevel thecal sac stenosis, involving her C4-5 and
C5-6 levels, and no bone marrow edema. OWCP also received an October 29, 2013 functional
capacity evaluation (FCE).
In a decision dated April 17, 2014, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant review of its prior decision.
LEGAL PRECEDENT
Under section 8128(a) of FECA,4 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
2

Docket No. 05-78 (issued June 2, 2005).

3

Docket No. 12-460 (issued November 29, 2012).

4

5 U.S.C. § 8128(a).

2

application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”5
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.6
ANALYSIS
In an April 3, 2013, decision, OWCP denied appellant’s claim for a schedule award. It
found that the evidence did not support permanent impairment. Appellant timely requested
reconsideration on March 12, 2014. The issue presented is whether she met any of the
requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the
merits of the claim. In her application for reconsideration, appellant did not contend that OWCP
erroneously applied or interpreted a specific point of law. She did not advance a new and
relevant legal argument.
Appellant submitted new evidence which included an August 22, 2013 treatment note
from Dr. Monnell, who noted her history, findings, and diagnoses. She also provided a March 7,
2014 report in which Dr. Monnell noted that appellant was seen for right brachial plexopathy,
chronic and cervical spondylosis and released from care. Appellant further submitted a July 9,
2013 EMG and NCS report, a June 3, 2014 cervical spine MRI scan report by Dr. Razook, and
an October 29, 2013 FCE report. However, none of the reports provided a physician’s
permanent impairment rating caused by her accepted condition. The Board finds that these
reports are not relevant to the issue of whether appellant has impairment to a scheduled member
or function of her body as a result of her accepted condition.7
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or
constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.

5

20 C.F.R. § 10.606(b).

6

Id. at § 10.608(b).

7

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

3

On appeal, appellant argued that she had a new impairment rating and submitted new
evidence with her appeal. The Board has no jurisdiction to review this evidence for the first time
on appeal.8 However, appellant may request a schedule award or increased schedule award
based on evidence of a new exposure or medical evidence showing progression of an
employment-related condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 18, 2015
Washington, DC

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

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

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

8

20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________
Appearances:
Daniel B. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-0884
Issued: June 16, 2020

Case Submitted on the Record

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

On March 18, 2019 appellant, through counsel, filed a timely appeal from a March 12,
2019 nonmerit merit decision of the Office of Workers’ Compensation Programs (OWCP) in
OWCP File No. xxxxxx624.2 The Clerk of the Appellate Boards assigned this appeal Docket No.
19-0884.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated December 12,
2019, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-0884 (issued
December 12, 2019).
3

The Board notes that, following the March 12, 2019 nonmerit 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 March 24, 2014 appellant, then a 58-year-old tractor trailer operator, filed an
occupational disease claim (Form CA-2) alleging that, after a total right knee replacement on
December 17, 2002, he compensated with use of his left leg and developed severe degenerative
arthritis of his left knee due to factors of his federal employment. Appellant also indicated that
this was a claim for consequential injury.4 OWCP assigned this claim OWCP File No. xxxxxx624.
Appellant has three prior claims regarding the right knee. On June 23, 1995 appellant filed
a notice of traumatic injury (Form CA-1) alleging that he sustained a right knee injury on that date
when a stuck postal container was loosened and smashed into his knee while in the performance
of duty. OWCP assigned that claim File No. xxxxxx590 and accepted it for right knee contusion.
On October 28, 1996, appellant filed a notice of traumatic injury (Form CA-1) alleging that on that
date he sustained another right knee injury when he tripped over a plate on the floor while in the
performance of duty. OWCP assigned that claim OWCP File No. xxxxxx361 and accepted it for
tear of the right knee medial meniscus.5 The record also reflects that appellant filed a notice of
traumatic injury (Form CA-1) on July 28, 2008 alleging right knee and shoulder injuries due to
stepping in a hole on that date while in the performance of duty. OWCP assigned that claim OWCP
File No. xxxxxx770 and accepted it for right knee effusion. These three prior right knee claims,
OWCP File Nos. xxxxxx770, xxxxxx590, and xxxxxx361, have been administratively combined
with File No. xxxxxx770 designated the master file.
By decision dated July 1, 2014, OWCP denied appellant’s March 24, 2014 occupational
disease claim under OWCP File No. xxxxxx624, finding that the medical evidence of record was
insufficient to establish causal relationship between the diagnosed left knee osteoarthritis and
appellant’s employment duties extending over more than one work shift. On July 29, 2014
appellant requested an oral hearing before an OWCP hearing representative. In a January 13, 2015
decision, OWCP’s hearing representative found the case was not in posture for a hearing and
remanded the case for findings as to whether appellant was claiming a consequential injury or a
new occupational disease. By decision dated May 20, 2015, OWCP denied appellant’s
occupational disease claim, finding that the claimed work factors did not occur as alleged. It found
that the requirements had not been met to establish an injury as defined by FECA. On June 10,
2015 appellant requested an oral hearing before an OWCP hearing representative, which was held
on November 20, 2015. By decision dated February 23, 2016, OWCP’s hearing representative,
affirmed the May 20, 2015 decision as modified. The hearing representative noted all of
appellant’s accepted claims for right and left knee injuries and found that appellant established a
factual basis for the occupational disease claim. The claim remained denied, however, because
the medical evidence of record was insufficient to establish causal relationship between a
diagnosed medical condition and the accepted factors of his federal employment.

4

Appellant has previously filed a traumatic injury claim (Form CA-1) on May 28, 1996 alleging that he sustained
a left knee injury that day when climbing out of his truck while in the performance of duty. OWCP accepted this
claim for left knee strain on August 8, 1996 and on January 18, 2019 expanded acceptance of the claim to include tear
of the left knee meniscus and acceleration of left knee osteoarthritis. This claim was assigned by OWCP as File No.
xxxxxx228. OWCP File No. xxxxxx624 and File No. xxxxxx228 have been administratively combined, with the
latter designated as the master file.
5

Appellant underwent a total right knee replacement under OWCP File No. xxxxxx361 on December 12, 2012.

2

On January 17, 2017 and April 3, 2018 appellant, through counsel, requested
reconsideration and submitted additional arguments and medical evidence. By decisions dated
April 7, 2017 and May 10, 2018, OWCP denied modification.
On January 23, 2019 appellant, through counsel, requested reconsideration and submitted
new medical evidence. By decision dated March 12, 2019, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
The Board has duly considered the matter and concludes that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files.6 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.7
In the instant case, appellant is alleging a consequential left knee condition arising
following a total right knee replacement. The record reflects that the present claim has already
been administratively combined with appellant’s prior claim pertaining to his left knee; however,
OWCP has not administratively combined the present claim with his prior claims pertaining to his
right knee conditions.
For a full and fair adjudication, the Board finds that this case must be remanded to OWCP
to administratively combine with master File No. xxxxxx770. Following this and other such
further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
7

Id.; see P.B., Docket No. 19-1532 (issued April 30, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

3

ORDER
IT IS HEREBY ORDERED THAT the March 12, 2019 merit decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this order of the Board.
Issued: June 16, 2020
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

4


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

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

Docket No. 13-1509
Issued: February 19, 2014

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 June 11, 2013 appellant, through his attorney, filed a timely appeal from an Office of
Workers’ Compensation Programs’ (OWCP) decision dated February 28, 2013. Pursuant to the
Federal Employees’ Compensation Act1 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 sustained a recurrence of disability on May 5, 2008
due to his October 29, 2007 injury; (2) whether appellant sustained a low back injury in the
performance of duty on May 5, 2008; and (3) whether OWCP abused its discretion by denying
appellant authorization for lumbar laminectomy/spinal fusion surgery.
FACTUAL HISTORY
This case has previously been before the Board. Appellant, then a 63-year-old truck
driver, injured his low back on October 29, 2007 while pushing heavy cases of wire mail off a
1

5 U.S.C. § 8101 et seq.

truck. OWCP accepted a claim for lumbosacral sprain under case number xxxxxx309.
Appellant stopped work on October 29, 2007 and returned on November 7, 2007. In a
January 11, 2008 report, Dr. Brian J. Sullivan, a specialist in neurosurgery, stated that appellant
had experienced difficulties with his low back after October 2007 due to some axial low back
discomfort with radicular and claudication symptoms, greater on the right side. He opined that
appellant’s symptoms were consistent with spondylolisthesis and relatively severe spinal canal
stenosis as shown by magnetic resonance imaging (MRI) scan.
In a May 23, 2008 report, Dr. Sullivan stated that, based on the May 20, 2008
examination, appellant had significant low back and neurogenic claudication symptoms. He
reiterated his January 2008 findings and noted that he had since undergone aggressive
nonsurgical treatment. Dr. Sullivan opined that appellant could benefit from surgical
intervention. He recommended an L2 to L4-L5 decompressive laminectomy, instrumented
posterolateral fusion, reduction of dislocation and interbody fusion. Dr. Sullivan stated that
appellant had experienced significant discomfort with his back since October 29, 2007, with a
significant flare up of his discomfort on May 5, 2008 which caused him to stop work. He stated
that this flare up was “approximately” related to his October 29, 2007 work injury.
In a Form CA-2a dated May 27, 2008, appellant alleged that he sustained a recurrence of
disability on May 5, 2008 due to his accepted injury. On June 3, 2008 Dr. Sullivan requested
authorization to perform lumbar surgery. On June 5, 2008 OWCP denied authorization to
perform lumbar surgery. It relied on the referral opinion of Dr. Robert Allen Smith, a Boardcertified surgeon, who disagreed with Dr. Sullivan’s opinion that appellant required spinal
surgery. In a June 30, 2008 report, Dr. Smith stated that several reports of record diagnosed
appellant with spondylolisthesis, degenerative disease of the spine and neurogenic claudication.
He opined that these conditions were not accepted as being related to the work incident of
October 29, 2007. Dr. Smith stated that appellant did not demonstrate any findings of ongoing
back strain and that therefore the accepted condition had resolved, with no need for surgery or
additional treatment.
By decision dated July 17, 2008, OWCP denied appellant’s claim for a recurrence of
disability due to the absence of medical and factual evidence demonstrating how the claimed
recurrence was related to the original work-related injury. Based on Dr. Smith’s report,
appellant did not require any additional treatment for his accepted lumbosacral strain.
On July 28, 2008 appellant filed a Form CA-1 traumatic injury claim under case number
xxxxxx389, alleging that he sustained a low back injury in the performance of duty on May 5,
2008 while unloading heavy mail containers off the truck. Appellant’s supervisor, Mr. Harris,
stated on the form that appellant had previously led him to believe that he sustained a recurrence
of his October 2007 disability and claimed not to be aware that appellant had sustained a new
injury on May 5, 2008. He indicated that appellant stopped work and sought medical attention
on May 5, 2008. In an August 1, 2008 report, Dr. Sullivan reiterated the findings and
conclusions of his January 2008 report. He again recommended surgery.
By decision dated November 6, 2008, OWCP found that appellant failed to submit
sufficient medical evidence to establish that he sustained a low back injury on May 5, 2008. By
decision dated February 20, 2009, an OWCP hearing representative affirmed the July 17, 2008
decision denying compensation for an alleged recurrence of disability, pursuant to case number
xxxxxx309. By decision dated May 7, 2009, he affirmed the November 6, 2008 decision
2

denying appellant’s claim for a low back injury on May 5, 2008, under case number xxxxxx389.
The hearing representative found that appellant failed to meet his burden to prove fact of injury.
In a May 19, 2010 decision,2 the Board affirmed the July 17 and November 6, 2008,
February 20 and May 7, 2009 OWCP decisions.
Appellant requested reconsideration and submitted a May 14, 2010 report from
Dr. Sullivan who reiterated his opinion that appellant had experienced ongoing troubles since his
October 29, 2007 work injury and that the May 5, 2008 incident was an exacerbation and
continuation of the same symptoms. By decision dated July 22, 2010, OWCP denied
modification of its previous decisions. In an August 16, 2011 decision,3 the Board affirmed the
July 22, 2010 decision. The Board found that appellant failed to establish a worsening of his low
back condition as of May 5, 2008; did not submit sufficient medical evidence to establish an
injury to his low back on May 5, 2008 and OWCP did not abuse its discretion by denying
authorization for lumbar laminectomy/spinal fusion surgery. The facts of this case as set forth in
the Board’s prior decisions are incorporated by reference.
By letters dated February 3 and March 8, 2013, appellant’s attorney requested
reconsideration and submitted the January 16 and February 10, 2012 reports of Dr. Sullivan, who
stated that an MRI scan of May 2011 showed severe changes, most notably at the L4-5 level.
There were moderately severe and significant degenerative changes at L3-4 which seem to have
progressed since the previous test showing degeneration at L5-S1. Dr. Sullivan stated that there
was more facet arthropathy than there was previously, which resulted in significant degenerative
changes at the L3-4 and L4-5 levels. He recommended surgery which included an L3 through
S1 decompressive laminectomy, with instrumented posterolateral fusion, interbody fusion and
reduction of dislocation at the L4-5 level.
Dr. Sullivan also stated that he had been given a copy of appellant’s CA-1 form which
stated that he experienced low back and leg pain while pushing extremely heavy wire mail cages
to the back of a truck. He stated that this was consistent with the significant degenerative
changes that he noted on appellant’s May 2011 MRI scan. Dr. Sullivan opined that the May 5,
2008 activity provided enough force to cause the severe axial low back discomfort that appellant
experienced and his need for ongoing treatment. He advised that not all of appellant’s
degenerative changes originated on May 5, 2008; however, they became symptomatic on that
date.
By decision dated February 28, 2013, OWCP denied modification of its previous
decisions in this case.
LEGAL PRECEDENT -- ISSUE 1
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
2

Docket Nos. 09-1545 and 09- 1546 (issued May 19, 2010).

3

Docket No. 11-99 (issued August 16, 2011).

3

causally related to the employment injury, and who supports that conclusion with sound medical
reasoning.4 A recurrence of disability is defined as the inability to work caused by a spontaneous
change in a medical condition which results from a previous injury or illness without an
intervening injury or new exposure in the work environment that caused the illness.5
ANALYSIS -- ISSUE 1
In the instant case, appellant has failed to submit any medical opinion containing a
rationalized, probative report which relates his claimed recurrence of disability for work as of
May 5, 2008 to his accepted lumbosacral strain condition. For this reason, he has not discharged
his burden of proof to establish that he sustained a recurrence of disability as a result of his
accepted employment condition.
In reports dated January 16 and February 10, 2012, Dr. Sullivan reiterated his opinion
that appellant had experienced ongoing troubles since the October 29, 2007 work injury and, on
May 5, 2008, he experienced an exacerbation of the symptoms which began with the
October 2007 injury. He advised that a May 2011 MRI scan showed severe changes at the L4-5
level in addition to moderately severe and significant degenerative changes at L3-4 which had
progressed since the previous study. Dr. Sullivan stated that the test showed more facet
arthropathy. However, he did not adequately explain how the degenerative changes were due to
appellant’s accepted lumbosacral strain condition. Dr. Sullivan offered no medical rationale to
causally relate appellant’s condition after May 5, 2008 to his accepted October 2007 injury.
As noted, appellant has the burden of proof to submit rationalized medical evidence
establishing the relationship of the claimed recurrence to the original injury. The weight of the
medical opinion is determined by the opportunity for and thoroughness of examination, the
accuracy and completeness of physician’s knowledge of the facts of the case, the medical history
provided the care of analysis manifested and the medical rationale expressed in support of stated
conclusions.6 Appellant has not submitted a physician’s reasoned opinion adequately addressing
why appellant’s current condition is a spontaneous worsening of the accepted October 2007
lumbosacral strain injury. The medical evidence is insufficient to establish a recurrence of a
medical condition causally related to the accepted lumbosacral sprain condition. The Board
affirms the denial of appellant’s claim for a recurrence of disability beginning May 5, 2008.
LEGAL PRECEDENT -- ISSUE 2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place and in the manner alleged.7 Second, the employee must

4

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.121(a).

5

See 20 C.F.R. § 10.5(x); Donald T. Pippin, 54 ECAB 631 (2003).

6

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

7

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

4

submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8
ANALYSIS -- ISSUE 2
Dr. Sullivan did not describe or explain the medical process by which the claimed May 5,
2008 work activities were competent to cause a new injury. In this regard, the Board has held that
the mere fact that a condition manifests itself during a period of employment does not raise an
inference that there is a causal relationship between the two.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.10 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
Dr. Sullivan stated generally in his January 16 and February 10, 2012 reports that
appellant experienced ongoing back problems since his accepted October 29, 2007 work injury.
He advised that a May 2011 MRI scan showed changes at the L4-5 level with moderately severe
and significant degenerative changes at L3-4 which had progressed since a previous study, in
addition to more facet arthropathy. Dr. Sullivan stated that the significant degenerative changes
demonstrated by the May 2011 MRI scan were not all present as of May 5, 2008, but became
symptomatic on that day. While he opined that appellant’s activities in moving wire cages on
May 5, 2008 caused back symptoms, Dr. Sullivan did not provide sufficient medical rationale
that appellant’s work activities on that day caused any specific medical condition.
Dr. Sullivan’s reports are not probative because they did not contain medical opinion
adequately addressing causal relation. His opinion on causal relationship is of limited probative
value in that he did not provide adequate medical rationale in support of his conclusions.11
Dr. Sullivan did not describe appellant’s May 5, 2008 work activities in any detail or state how
these activities would have been competent to cause the claimed low back condition.
Appellant failed to provide a rationalized, probative medical opinion relating his current
condition to any factors of his employment. Accordingly, as he has failed to submit any
probative medical evidence establishing that he sustained an injury to his low back in the
performance of duty on May 5, 2008, OWCP properly denied modification of its denial of
appellant’s claim for compensation.

8

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

9

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

10

Id.

11

William C. Thomas, 45 ECAB 591 (1994).

5

LEGAL PRECEDENT -- ISSUE 3
Section 8103 of FECA12 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.13 In interpreting this section of FECA, the Board has recognized that OWCP has
broad discretion in approving services provided under FECA. OWCP has the general objective
of ensuring that an employee recovers from his injury to the fullest extent possible in the shortest
amount of time. It therefore has broad administrative discretion in choosing means to achieve
this goal. The only limitation on OWCP’s authority is that of reasonableness. Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.14
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.15
ANALYSIS -- ISSUE 3
On June 3, 2008 Dr. Sullivan formally requested authorization for lumbar spine
fusion/laminectomy surgery; he indicated that the procedure was necessary to ameliorated
appellant’s accepted low back symptomatology. On June 5, 2008 OWCP found that the need for
such surgery was not related to any employment-related incident or activity. In its July 17, 2008
decision, relying on Dr. Smith’s opinion, it found that appellant did not require any additional
treatment for his accepted lumbosacral sprain condition.
As stated above, the only restriction on OWCP’s authority to authorize medical treatment
is one of reasonableness. While appellant has submitted Dr. Sullivan’s January 16 and
February 10, 2012 reports, these reports are not sufficient to vitiate OWCP’s reliance on
Dr. Smith’s opinion, which negated a causal relationship between appellant’s condition and the
proposed lumbar laminectomy/spinal fusion surgery. Dr. Sullivan reiterated his recommendation
that appellant undergo surgery which included an L3 through S1 decompressive laminectomy,
with instrumented posterolateral fusion, interbody fusion and reduction of dislocation at the L4-5
level.
OWCP has properly determined, in numerous decisions, that the weight of the medical
evidence of record, as represented by Dr. Smith’s referral opinion, indicates that appellant’s
spondylolisthesis, degenerative disease of the spine and neurogenic claudication conditions are
12

Supra note 1.

13

5 U.S.C. § 8103.

14

Dale E. Jones, 48 ECAB 648 (1997); Daniel J. Perea, 42 ECAB 214 (1990).

15

5 U.S.C. § 8123(a).

6

not work related. The only accepted condition in this case is lumbosacral sprain. Dr. Sullivan
did not render an opinion regarding the necessity of surgery to ameliorate this condition in his
January 16 and February 10, 2012 reports. Therefore there are no grounds to modify OWCP’s
prior determination denying appellant’s request for surgery to ameliorate these conditions.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he was entitled to
compensation for a recurrence of disability as of May 5, 2008 causally related to his accepted
low back condition. The Board finds that OWCP properly found that appellant failed to meet his
burden of proof to establish that he sustained an injury to his low back in the performance of
duty. The Board finds that OWCP did not abuse its discretion to deny appellant authorization for
lumbar laminectomy/spinal fusion surgery.
ORDER
IT IS HEREBY ORDERED THAT the February 28, 2013 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: February 19, 2014
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

7