United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chelsea, MA, Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0468
Issued: June 15, 2018

Case Submitted on the Record

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

JURISDICTION
On December 28, 2016 appellant, through counsel, filed a timely appeal from a
September 2, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2
Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

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
Together with the appeal request, counsel, on behalf of appellant, submitted a timely request for oral argument
pursuant to 20 C.F.R. § 501.5(b). After exercising its discretion, by order dated April 5, 2018, the Board denied the
request as appellant’s arguments on appeal could be adequately addressed in a decision based on a review of the case
as submitted on the record. Order Denying Request for Oral Argument, Docket No. 17-0468 (issued April 5, 2018).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
casually related to the accepted November 14, 2015 employment incident.
FACTUAL HISTORY
On January 13, 2016 appellant, then a 62-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a left knee injury while delivering mail at work on
November 14, 2015. He asserted that, while climbing onto a curb with a full satchel on his right
shoulder, he felt a “sting/pop” in his left leg and the leg buckled beneath him. Appellant stopped
work on November 14, 2015.
In a November 16, 2015 report, Dr. Abraham T. Shurland, an attending Board-certified
orthopedic surgeon, indicated that appellant returned to his office complaining of left knee pain
again. Appellant advised that he was doing well and then all of a sudden began to have severe left
knee pain. Dr. Shurland noted that appellant reported feeling a pop in his left knee and having
pain mostly in the medial aspect of the knee. He reported the findings of his November 16, 2015
physical examination of appellant’s left knee, noting that the knee exhibited normal alignment
without swelling, warmth, erythema, or effusion. There was tenderness to palpation along the
patellofemoral joint line, but strength was 5/5, range of motion was from 0 to 110 degrees, and
stability was found upon varus/valgus stress, anterior/posterior drawer, and Lachman testing.
Dr. Shurland diagnosed left knee pain and recommended obtaining a magnetic resonance imaging
(MRI) scan of the left knee to evaluate the medial meniscus. In a November 16, 2015 note, he
found that appellant was unable to return to work until a date to be determined.
A December 1, 2015 MRI scan of appellant’s left knee contained an impression of a large
radial oblique tear of the posterior horn of the medial meniscus with a large meniscal fragment
displaced posteriorly to the medial femoral condyle.
In a December 3, 2015 report, Dr. Shurland provided a history of appellant’s medical
condition which was the same as that contained in his November 16, 2015 report, except that he
now noted that appellant had undergone a left knee MRI scan. He detailed physical examination
findings for appellant’s left knee which were the same as those obtained on November 16, 2015.
Dr. Shurland diagnosed left knee medial meniscus tear and recommended left knee surgery.
On January 29, 2015 appellant underwent arthroscopic left knee surgery, including partial
medial meniscectomy. The procedure was not authorized by OWCP.
In a February 16, 2016 development letter, OWCP requested that appellant submit
additional evidence in support of his claim, including a physician’s opinion supported by a medical
explanation as to how the reported employment incident caused or aggravated a medical condition.
It requested that he complete and return an attached questionnaire which posed various questions
regarding the circumstances of his claimed employment injury and the course of his medical
treatment. OWCP afforded appellant 30 days to submit a response.

2

On March 17, 2016 OWCP received appellant’s responses to its development
questionnaire. Appellant indicated that he had sought treatment for his claimed November 14,
2015 injury on the date of the injury.4 He asserted that he reported the injury to his supervisor on
the date of injury, noting that his supervisor picked him up after the accident and drove him back
to the employing establishment premises. Appellant noted that he previously sustained an
employment-related injury on September 11, 2015 and that the employing establishment provided
him with a form for claiming a recurrence of disability due to the September 11, 2015 injury (Form
CA-2a). He explained that he delayed in filing a claim for a November 14, 2015 traumatic injury
(using a Form CA-1), because he initially filed a claim for recurrence of disability due to the
September 11, 2015 injury after OWCP gave him “the wrong paperwork.”
In a January 20, 2016 report, Thomas F. Walsh, an attending physician assistant, noted that
appellant reported sustaining a left knee injury three months prior. He indicated that he advised
appellant regarding the nature of his upcoming left knee surgery. On February 8, 2016 Mr. Walsh
noted that appellant’s left knee pain had resolved after his January 29, 2016 surgery and he advised
appellant to return that week to full-duty work with restrictions.
In a February 8, 2016 note, Dr. Shurland indicated that appellant would be able to return
to work on February 10, 2016.
By decision dated March 18, 2016, OWCP denied appellant’s claim for an employmentrelated November 14, 2015 injury, finding that the evidence of record was insufficient to establish
that the November 14, 2015 incident occurred as alleged.5
In a March 9, 2016 report, Dr. Shurland indicated that appellant had been treated for an
injury he sustained at work on September 11, 2015. He noted that a December 1, 2015 MRI scan
of appellant’s left knee revealed a complex meniscal tear and that surgery for this tear was
performed on January 29, 2015. Dr. Shurland indicated that OWCP denied appellant’s request for
authorization of the surgery due to insufficient evidence that the meniscal tear was caused by the
work injury. He noted, “It is my opinion that his work injury either caused his tear or was a major
contributing factor. Please reconsider your denial of his case as his surgery was due to the meniscal
tear which was found after his work injury.”
On April 14, 2016 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. He resubmitted a copy of Dr. Shurland’s March 9,
2016 report.
By decision dated September 2, 2016, OWCP’s hearing representative affirmed OWCP’s
March 18, 2016 decision as modified to reflect that, while appellant had established that the
November 14, 2015 employment incident occurred as alleged, he failed to establish a diagnosed
medical condition causally related to this accepted November 14, 2015 employment incident. She
4
It is noted that the above-noted November 16, 2015 report and note are the oldest medical documents in the case
record.
5

OWCP asserted that appellant failed to complete and submit the questionnaire attached to the February 16, 2016
development letter within the afforded 30-day time period. The Board notes that OWCP actually received appellant’s
responses to the questionnaire on March 17, 2016, a date 30 days after the date of the development letter.

3

found that the medical evidence of record, including Dr. Shurland’s March 9, 2016 report, did not
contain an opinion that appellant sustained an injury due to the November 14, 2015 employment
incident.6
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.8 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. 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.10 Second, the employee must submit evidence, in the form
of medical evidence, to establish that the employment incident caused a personal injury.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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

6

The hearing representative noted that OWCP had previously accepted a left knee condition due to a September 11,
2015 employment incident under OWCP File No. xxxxxx229. She indicated that the present claim, OWCP File No.
xxxxxx268, should be administratively combined with OWCP File No. xxxxxx229, with OWCP File No. xxxxxx268
designated as the master file.
7

See supra note 3.

8

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

9

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury caused
by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an
occupational disease refers to an injury produced by employment factors which occur or are present over a period longer
than a single workday or work shift. 20 C.F.R. §§ 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).
10

Julie B. Hawkins, 38 ECAB 393 (1987).

11

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

12

See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

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ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to the accepted November 14, 2015 employment incident.
Appellant submitted a March 9, 2016 report in which Dr. Shurland indicated that he had
been treated for a work injury he sustained at work on September 11, 2015. Dr. Shurland noted
that a December 1, 2015 MRI scan of appellant’s left knee revealed a complex meniscal tear and
that surgery for this tear was performed on January 29, 2015. He indicated that OWCP denied
appellant’s request for authorization of the surgery due to insufficient evidence that the meniscal
tear was caused by the work injury. Dr. Shurland noted, “It is my opinion that his work injury
either caused his tear or was a major contributing factor. Please reconsider your denial of his case
as his surgery was due to the meniscal tear which was found after his work injury.”
The Board finds that Dr. Shurland’s March 9, 2016 report is insufficient to establish
appellant’s claim for a November 14, 2015 employment injury. The subject of OWCP’s decision
presently before the Board, i.e., OWCP’s September 2, 2016 decision, is whether appellant
established a traumatic injury causally related to the accepted November 14, 2015 employment
incident. The matter of any employment-related medical conditions sustained on September 11,
2015 is not currently before the Board. Dr. Shurland’s March 9, 2016 report is of no probative
value on the relevant issue of the present case because Dr. Shurland did not provide an opinion
that appellant sustained a diagnosed condition due to the accepted November 14, 2015
employment incident. The Board has held that medical evidence which does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.13 In fact, in his March 9, 2016 report, Dr. Shurland did not provide any mention of a
November 14, 2015 employment incident.
In November 16 and December 3, 2016 reports, Dr. Shurland noted appellant’s selfreported history of suddenly experiencing severe left knee pain after feeling a pop in that knee.
However, he did not clearly describe the November 14, 2015 employment incident in either of
these reports. In the December 3, 2016 report, Dr. Shurland diagnosed left knee medial meniscus
tear, but he did not comment on the cause of the condition. These reports also are of no probative
value on the relevant issue of the present case because Dr. Shurland did not provide an opinion
that appellant sustained a diagnosed condition due to the accepted November 14, 2015
employment incident.14 Appellant also submitted January 20 and February 8, 2016 reports of
Mr. Walsh, an attending physician assistant, but these reports are of no probative value regarding
appellant’s claim for a November 14, 2015 employment injury because they do not constitute
probative medical evidence from a physician within the meaning of FECA. Under FECA, the

13

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

14

See id.

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report of a nonphysician, including a physician assistant, does not constitute probative medical
evidence.15
On appeal counsel contends that an improper procedure was used to “implement” the
September 2, 2016 OWCP decision, resulting in loss of appellate rights on an issue that appellant
had no knowledge was under consideration. He contends that this action had “due process
implications.” However, counsel did not provide any details regarding the claimed procedural
error by OWCP or cite any authority to support his contention.
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 his burden of proof to establish a traumatic
injury causally related to the accepted November 14, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 2, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 15, 2018
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
15
R.S., Docket No. 16-1303 (issued December 2, 2016); L.L., Docket No. 13-0829 (issued August 20, 2013). See
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, METROPOLITAN
CORRECTIONAL CENTER, Chicago, IL,
Employer
__________________________________________

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0638
Issued: October 9, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 2, 2018 appellant, through counsel, filed a timely appeal from an August 7,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision dated June 25, 2014, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On May 4, 2014 appellant, then a 48-year-old correctional systems officer, filed a traumatic
injury claim (Form CA-1) alleging that, on May 3, 2014, he sustained a bump on the right side of
his head when an inmate attempted to strike another inmate with a push broom, but instead the
inmate struck him in the forehead. He stopped work on May 6, 2014 and returned to work on
May 28, 2014. Appellant did not submit additional evidence.
OWCP, in a May 24, 2014 development letter, advised appellant of the deficiencies in his
claim and afforded him 30 days to submit medical evidence. Appellant did not respond.
By decision dated June 25, 2014, OWCP denied appellant’s traumatic injury claim. It
found that he had failed to respond to its May 24, 2014 development letter and thus failed to
establish a medical diagnosis in connection with the accepted May 3, 2014 injury and/or work
event.
In a May 22, 2014 prescription note, Dr. Tony Hampton, a Board-certified family
practitioner, placed appellant off work through May 27, 2014 due to medical illness. He advised
that appellant could return to work on May 28, 2014. Dr. Hampton, in a June 6, 2014 attending
physician’s report (Form CA-20), indicated a date of injury as May 3, 2014. He provided
examination findings and diagnosed headache, hypertension, and head injury. Dr. Hampton
checked a box marked “yes” indicating that the diagnosed conditions were caused or aggravated
by an employment activity, noting that appellant was hit in the forehead with a broom. He advised
that appellant was totally disabled as of May 6, 2014. Dr. Hampton noted that the date on which
he could resume his regular work was undetermined.
A May 5, 2014 handwritten employee health record contained an unknown signature and
related a history of injury that on May 3, 2014 an inmate hit appellant on the forehead with a
broom. The record reflected examination findings and an assessment of blunt forehead injury.
Hospital records dated May 5, 2014 documented appellant’s evaluation by Dr. Dale V.
Davenport, Board-certified in emergency medicine, for a head injury sustained on May 3, 2014
after being struck in the head by a broom handle at work. Dr. Davenport diagnosed headache and
unspecified essential hypertension. In a separate note dated May 5, 2014, he reiterated appellant’s
history of injury and diagnosis of hypertension. Dr. Davenport also diagnosed head trauma.
On May 12, 2017, appellant, through counsel, requested reconsideration of OWCP’s
June 25, 2014 decision. Counsel acknowledged that the reconsideration request was untimely, but
cited Board precedent and contended that the medical evidence of record clearly established that
appellant sustained headache and hypertension due to his May 3, 2014 employment incident.
By decision dated August 7, 2017, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
2

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.5
Timeliness is determined by the document receipt date of the request for reconsideration as
indicated by the “received date” in the Integrated Federal Employees’ Compensation System.6
OWCP will consider an untimely request for reconsideration only if the request demonstrates clear
evidence of error on the part of OWCP in its most recent merit decision.”7 The request must
establish on its face that such decision was erroneous.8 Where a request is untimely filed and fails
to demonstrate clear evidence of error, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.9
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s application for review is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.10 To
demonstrate clear evidence of error, a claimant must submit evidence that is relevant to the issue
that was decided by OWCP,11 is positive, precise, and explicit, and manifests on its face that
OWCP committed an error.12 The evidence must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must also shift the weight of
the evidence in favor of the claimant and raise a substantial question as to the correctness of
OWCP’s decision for which review is sought. Evidence that does not raise a substantial question
is insufficient to demonstrate clear evidence of error. It is not enough merely to show that the
3

This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.607.

5
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016).
6

Id. at Chapter 2.1602.4b.

7

20 C.F.R. § 10.607(b).

8

Id.

9

Supra note 7 at § 10.608(b).

10

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (February 2016) (the term clear evidence of error is
intended to represent a difficult standard).
11

Dean D. Beets, 43 ECAB 1153 (1992).

12

Leona N. Travis, 43 ECAB 227 (1991).

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evidence could be construed so as to produce a contrary conclusion. A determination of whether
the claimant has demonstrated clear evidence of error entails a limited review of how the evidence
submitted with the reconsideration request bears on the evidence previously of record.13
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. OWCP’s regulations14 and procedures15 establish a one-year time
limit for requesting reconsideration, which begins on the date of the original OWCP decision. The
most recent merit decision was OWCP’s June 25, 2014 decision. Appellant had one year from the
date of that decision to make a timely request for reconsideration. Since OWCP did not receive
his request until May 12, 2017, it was filed outside the one-year time period. As appellant’s
May 12, 2017 request for reconsideration was submitted more than one year after the June 25,
2014 merit decision, it was untimely filed. Consequently, he must demonstrate clear evidence of
error by OWCP in the denial of his May 4, 2014 traumatic injury claim.16
The Board has reviewed the record and finds that the evidence submitted does not raise a
substantial question as to the correctness of OWCP’s last merit decision and is therefore
insufficient to demonstrate clear evidence of error. The underlying issue in appellant’s claim was
medical in nature with respect to causal relationship. The Board notes that the term clear evidence
of error is intended to represent a difficult standard.17 Even a detailed, well-rationalized medical
report, which would have created a conflict in medical opinion requiring further development if
submitted prior to issuance of the denial decision, is insufficient to demonstrate clear evidence of
error.18 It is not enough to show that evidence could be construed so as to produce a contrary
conclusion.19
The evidence submitted to the record following the June 25, 2014 merit OWCP decision
consisted of several medical reports. To demonstrate clear evidence of error in the denial of the
claim, the new evidence had to establish the underlying issue of causal relationship. The May 5,
2014 hospital record and Dr. Davenport’s May 5, 2015 report did not address causal relationship.
The only medical reports discussing causal relationship, the underlying merit issue in this case,
were the June 6, 2014 Form CA-20 report and May 22, 2014 prescription note from Dr. Hampton.
13

J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010).

14

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

15

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.4 (February 2016); see Veletta C. Coleman,
48 ECAB 367, 370 (1997).
16

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

17

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.5 (February 2016); see Dean D. Beets, supra
note 11.
18

See id., Chapter 2.1602.5(a) (February 2016); J.S., Docket No. 16-1240 (issued December 1, 2016); D.G., 59
ECAB 455 (2008).
19

See M.N., Docket No. 15-0758 (issued July 6, 2015).

4

While Dr. Hampton, in his June 6, 2014 Form CA-20 report, checked a box marked “yes” that
appellant’s headache, hypertension, and head injury resulted from the May 3, 2014 employment
incident, the Board has long held that when a physician’s opinion on causal relationship consists
only of checking “yes” to a form question, without sufficient rationale, as here, that opinion is of
diminished probative value.20 While his opinion is generally supportive of causal relationship, it
does not demonstrate clear error on the part of OWCP in rendering its June 25, 2014 decision.21
In his May 22, 2014 prescription note, Dr. Hampton placed appellant off work through
May 27, 2014 due to medical illness. This evidence does not raise a substantial question as to the
correctness of OWCP’s decision as it does not address the relevant issue of causal relationship
between the claimed injuries and the accepted May 3, 2014 employment incident.22 Dr. Hampton
did not specifically attribute a diagnosed condition and resultant disability to the May 3, 2014 work
incident.23
Appellant did not submit medical evidence sufficient to shift the weight of the evidence in
his favor or raise a substantial question as to the correctness of OWCP’s decision. Consequently,
the Board finds that he has failed to demonstrate clear evidence of error on the part of OWCP such
that it abused its discretion in denying merit review.
On appeal counsel acknowledges that appellant’s request for reconsideration was untimely,
but cites Board precedent and contends that the medical evidence of record clearly establishes that
appellant sustained injury due to the May 3, 2014 employment incident. The Board finds that the
legal precedent cited by counsel are cases in which the Board had jurisdiction over the merits of
the claim. Here, however, the Board does not have jurisdiction over the merits and thus these
cases are inapplicable to the present claim. For the reasons set forth above, the Board finds that
the evidence submitted in support of appellant’s untimely request for reconsideration was
insufficient to prima facie shift the weight of the evidence in appellant’s favor and raise a
substantial question as to the correctness of OWCP’s June 25, 2014 decision denying his traumatic
injury claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

20

Sedi L. Graham, 57 ECAB 494 (2006).

21

See C.D., Docket No. 17-1915 (issued February 21, 2018).

22

F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the claim
was denied is insufficient to demonstrate clear evidence of error).
23

See E.P., Docket No. 17-1544 (issued April 10, 2018); T.D., Docket No. 16-1600 (issued March 23, 2017).

5

ORDER
IT IS HEREBY ORDERED THAT the August 7, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, FOOD & DRUG
ADMINISTRATION, Puerto Rico, Employer
__________________________________________

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

Docket No. 12-578
Issued: August 1, 2012

Case Submitted on the Record

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

JURISDICTION
On January 23, 2012 appellant, through her attorney, filed a timely appeal from a
September 8, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a cervical condition as
a result of factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the September 8, 2011 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

FACTUAL HISTORY
On June 28, 2011 appellant, then a 51-year-old Food & Drug Administration (FDA)
investigator, filed an occupational disease claim alleging muscle spasms, pain and inflammation
in her neck, shoulders and arms as a result of her federal employment. She stated that the stress
of hectic official foreign travel and work schedule and handling heavy luggage resulted in her
current conditions. Appellant did not stop work.3
In an attached statement, appellant related that she first experienced muscle spasms
during the third week of an official trip to Ireland and Denmark. On May 21, 2011 she traveled
for 10 hours from Ireland to Denmark after working for a week. On the morning of May 23,
2011 appellant woke up with pain in her arm. The next day she experienced stiffness and pain in
her neck and shoulders, which increased throughout the week, but she continued to work full
days until May 27, 2011. Appellant then traveled back home, which totaled 18 hours, including
layovers. During travel she handled her luggage while switching flights and going through
customs, which included pushing a cart containing her luggage up a hill to take a train between
terminals in New York. Appellant also lifted her carry-on luggage, which weighed
approximately 20 pounds, to place in the overhead compartments in her flights. She stated that
on June 3, 2011 her physician examined her and diagnosed spasms and inflammation of the
trapezius. Appellant explained that she had never suffered spasms of the trapezius, but she had
experienced lower back pain.
In a handwritten June 20, 2011 prescription note, Dr. Minette Colon Jimenez, who
specializes in physical medicine and rehabilitation, treated appellant since June 3, 2011 and
prescribed physical therapy. She diagnosed myofascial pain syndrome and muscle spasm
presented secondary to carrying luggage and indicated that it was job related.
In a handwritten July 11, 2011 prescription note, Dr. Jimenez stated that appellant
worked until May 23, 2011 after a long travel when she started to experience severe cervical
pain, stiffness in her neck and severe shoulder pain. She prescribed oral medication and physical
therapy for appellant’s muscle spasm and cervical myofascial pain syndrome. On July 11, 2011
Dr. Jimenez reevaluated appellant and found partial impingement. She opined that appellant’s
muscle spasms were triggered by a job-related situation due to a combination of stress, long
travel hours and handling luggage.
On July 27, 2011 OWCP advised appellant that the evidence submitted was insufficient
to establish her claim and requested additional evidence. It informed her that pain was not a
valid diagnosis and requested a comprehensive medical report with a diagnosis, results of
examinations and tests and a physician’s opinion with medical reasons on the cause of her
condition.

3

Appellant’s supervisor related that appellant’s injury occurred or worsened in May 2011 when she conducted an
international inspection in Denmark as part of her official duties. Appellant informed her supervisor that she
experienced muscle pains and spasms in her right shoulder and arm. She sought medical treatment when she
returned to the United States and underwent physical therapy. Appellant’s supervisor reported that her duties were
scaled back and she had not conducted an inspection since then.

2

In an August 25, 2011 report, Dr. Joyce M. Castro, Board-certified in physical medicine
and rehabilitation, stated that she examined appellant on June 3 and August 4, 2011. She noted
appellant’s complaints of severe pain at the neck and upper back region and stiffness and pain
with rotation and flexion of the neck that started during a work-related trip to several European
countries. Appellant related that she lifted and carried heavy luggage during the trip and
experienced stress related to unplanned changes to the schedule and logistics of the trip.
Examination of her upper back did not reveal any edema of extremities or atrophy of muscles.
Dr. Castro observed mild swelling and severe tenderness to palpation to both upper trapezius
muscles. Appellant had full strength and intact sensation in all extremities and full range of
motion of the neck although it was painful. Dr. Castro noted that August 8, 2011 cervical x-rays
revealed very minimal degenerative changes. She diagnosed cervicodorsal myofascial pain,
cervical myositis and cervicalgia. Dr. Castro opined that carrying heavy luggage and stress
related to the changes and logistics of the trip could be the cause of the myofascial pain at the
neck of appellant.
In a decision dated September 8, 2011, OWCP denied appellant’s occupational disease
claim finding insufficient medical evidence to establish that she sustained a cervical condition as
a result of her work duties.
LEGAL PRECEDENT
Under FECA, an employee on travel status, temporary-duty status or special mission for
her employer is in the performance of duty and therefore under the protection of FECA 24 hours
a day with respect to any injury that results from activities essential or incidental to her special
duties. It remains the employee’s burden of proof to establish injury incidental to the
employment duties.4
In an occupational disease claim, appellant’s burden requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the

4

See Ann P. Drennan, 47 ECAB 750 (1996); Janet Kidd (James Kidd), 47 ECAB 670 (1996); William K.
O’Connor, 4 ECAB 21 (1950).
5

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB
623 (2000).
6

I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658 (issued October 22, 2009); D.I.,
59 ECAB 158 (2007).

3

specified employment factors or incident.7 The opinion of the physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
employee.8
ANALYSIS
Appellant alleged that she sustained muscle spasms and inflammation in her neck and
shoulders while on travel status as a result of her duties as a FDA investigator. OWCP accepted
that she underwent stress and handled heavy luggage during a work-related trip, but denied her
claim finding insufficient medical evidence to establish that she sustained a diagnosed medical
condition causally related to those duties. The Board finds that appellant has failed to provide
sufficient medical evidence to establish that she sustained any medical condition due to factors of
her employment.
In June 20 and July 11, 2011 handwritten prescription notes, Dr. Jimenez noted
appellant’s complaints of severe neck and shoulder pain on May 23, 2011 after a long travel.
She diagnosed myofascial pain syndrome and muscle spasms presented secondary to carrying
luggage. The Board finds that Dr. Jimenez’ reports did not relate an accurate history of injury as
appellant related that she traveled on May 21, 2011 and first felt arm pain when awaking on
May 23, 2011 and then developed neck and shoulder pain on May 24, 2011. Dr. Jimenez opined
that appellant’s muscle spasms were triggered by a job-related situation of stress, long travel
hours and handling luggage, but she offered no explanation why such spasms would present days
after appellant’s travel, first as arm pain and then on another day as neck and shoulder spasms.
While Dr. Jimenez provided an opinion supporting causal relationship, the Board finds that she
did not provide any medical rationale explaining how those employment duties caused or
contributed to appellant’s symptoms. Medical evidence that states a conclusion but does not
offer any rationalized medical explanation regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.9 Thus, these reports are insufficient
to establish appellant’s claim.
In an August 25, 2011 report, Dr. Castro related appellant’s complaints of severe upper
back and neck pain and stiffness that started during a work-related trip to Europe. She observed
mild swelling and severe tenderness to palpation to both upper trapezius muscles and diagnosed
cervical myositis and cervicalgia, based upon x-ray findings. Dr. Castro stated that carrying
heavy luggage and stress related to the changes and logistics of the trip could be the cause of the
myofascial pain at the neck of appellant. The Board notes that she did not opine that appellant’s
diagnosed conditions based upon her x-ray findings were causally related to her employment, but
merely that her myofascial pain could be related. The Board has generally held that opinions
7

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

8

D.S., Docket No. 09-860 (issued November 2, 2009); B.B., 59 ECAB 234 (2007); Solomon Polen, 51 ECAB
341 (2000).
9

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

4

such as the condition is “probably” related, “most likely” related or “could be” related are
speculative and diminish the probative value of the medical opinion.10 Furthermore the Board
has consistently held, that pain is a symptom, not a compensable medical diagnosis.11 This
report therefore also fails to establish causal relationship.
On appeal, appellant alleged that the medical evidence demonstrates that her alleged
condition resulted from her duties as a FDA investigator. The Board has held, however, that the
mere fact that a condition manifests itself during a period of employment does not raise an
inference of a causal relationship between the two. Neither the fact that the condition became
apparent during a period of employment, nor the belief that the condition was caused or
aggravated by employment factors or incidents, is sufficient to establish causal relationship.12
Causal relationship is a medical question that must be established by reasoned medical opinion
evidence.13 Because appellant has not provided such rationalized medical opinion in this case,
she has failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an occupational disease causally related to factors of her employment.

10

S.E., Docket No. 08-2214 (issued May 6, 2009); D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB
206 (2004).
11

C.F., Docket No. 08-1102 (issued October 10, 2008).

12

Roy L. Humphrey, 57 ECAB 238, 242 (2005); Joe T. Williams, 44 ECAB 518,521 (1993).

13

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, 57 ECAB 137 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the September 8, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2012
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN DIEGO VA MEDICAL CENTER,
San Diego, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1065
Issued: March 30, 2022

Case Submitted on the Record

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

On July 9, 2021 appellant filed a timely appeal from a May 3, 2021 merit decision and a
July 1, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as Docket No. 21-1065.
On August 6, 2008 appellant, then a 31-year-old vocational nurse, filed an occupational
disease claim (Form CA-2) alleging that she sustained right upper extremity injuries as a result of
factors of her federal employment including repetitive use of a computer, keyboarding, and
extensive dressing changes for patients. She indicated that she first became aware of her condition
and its relationship to her federal employment on March 3, 2008. OWCP accepted the claim for
right-sided thoracic outlet syndrome, also known as brachial plexus lesions.
On November 18, 2009 appellant underwent a right first rib resection with right anterior
scalenectomy to treat her diagnosed right thoracic outlet syndrome.
In a report dated May 8, 2010, Dr. Christopher Chisholm, a pain medicine specialist,
diagnosed reflex sympathetic dystrophy (RSD), also known as complex regional pain syndrome
(CRPS), of the upper right limb, and myofascial myalgia and myositis.

In a report dated October 11, 2010, Dr. Marilyn Carlin, an internist, diagnosed RSD
secondary to thoracic outlet syndrome despite surgical intervention.
Dr. Carlin, in a report dated April 4, 2011, diagnosed thoracic outlet syndrome with failed
response to surgery, right upper extremity chronic pain syndrome, possibly RSD, and right
hemidiaphragm paralysis as a complication of thoracic outlet syndrome, causing dyspnea on
exertion.
In a report dated October 10, 2011, Dr. Carlin diagnosed thoracic outlet syndrome,
myofascial pain syndrome versus RSD secondary to thoracic outlet syndrome and right
diaphragmatic paralysis secondary to thoracic outlet surgery.
In a report dated June 10, 2013, Dr. Carlin diagnosed thoracic outlet syndrome with
increasing pain following surgical intervention, RSD, myofascial pain syndrome, diaphragmatic
paralysis causing dyspnea on exertion, and recurrent major depression exacerbated by chronic
pain. She opined that factors of appellant’s federal employment caused appellant’s increased pain.
Dr. Carlin recommended work restrictions.
In a report dated June 25, 2014, Dr. Carlin diagnosed cervicalgia, diaphragmatic paralysis,
myofascial pain syndrome, recurrent major depression in full remission, RSD of the right upper
extremity, and thoracic outlet syndrome. In a report dated September 22, 2014, she diagnosed
thoracic outlet syndrome with poor results after surgical intervention , flare-up of chronic
cervicalgia and myofascial pain syndrome, RSD of the right upper extremity, also in flare-up, and
recurrent major depression in remission. Dr. Carlin again diagnosed these conditions in progress
notes dated August 22, 2014.
In a letter dated February 2, 2015, Dr. Carlin requested that the acceptance of appellant’s
claim be expanded to include fibromyalgia. She explained that it had developed as a result of
appellant’s chronic neck, chest wall, and right arm pain, secondary to failed surgery for thoracic
outlet syndrome and secondary RSD.
In a report dated June 25, 2015, Dr. Carlin explained that appellant continued to suffer from
thoracic outlet syndrome with increased pain following failed surgical intervention, along with
RSD and a postsurgical right partially paralyzed diaphragm. She noted that appellant had been
diagnosed with fibromyalgia as a result of her chronic myofascial pain. Dr. Carlin stated that
appellant’s conditions continued to be medically present and disabling and that appellant was
permanently disabled from all work. She reiterated appellant’s diagnoses and disability status in
narrative medical reports dated June 27, 2016 and July 17, 2017.
In progress notes dated August 24, 2016, Dr. Carlin noted, as part of appellant’s history of
present illness, that appellant had been diagnosed with fibromyalgia, failed surgery for thoracic
outlet syndrome, and development of RSD of the right upper extremity.
In a report dated July 13, 2018, Dr. Carlin again diagnosed thoracic outlet syndrome with
increased pain following surgical intervention, RSD of the right upper extremity, which began
after the failed surgery, fibromyalgia, secondary to chronic pain, diaphragmatic paralysis causing
some dyspnea on exertion, also a result of the failed surgery , and recurrent major depression
exacerbated by her chronic pain syndromes. She stated that appellant’s conditions continued to be
2

medically present and disabling, noting that appellant’s physical restrictions were extensive and
unlikely to allow her to work effectively in any job. Dr. Carlin reiterated these diagnoses and
opinions in a letter dated August 20, 2019.
In progress notes dated February 10, 2021, Dr. Peter Weis, a Board-certified
rheumatologist, examined appellant to evaluate her for fibromyalgia. He diagnosed left hip
trochanteric bursitis, pain syndrome related to complications of thoracic outlet s urgery with
chronic neck pain, and CRPS of the right upper extremity, refractory to surgery.
In a development letter dated March 24, 2021, OWCP advised appellant that it had received
notification of a possible consequential condition of CRPS of the right upper extremity. It noted
receipt of Dr. Weis’ February 10, 2021 report, but indicated that it required a detailed description
of the newly diagnosed condition. OWCP afforded appellant 30 days to submit additional medical
evidence. No additional evidence was received by OWCP.
By decision dated May 3, 2021, OWCP denied appellant’s request to expand the
acceptance of her claim to include CRPS of the right upper extremity. It again referenced
Dr. Weis’ February 10, 2021 report. By appeal request form dated June 2, 2021, postmarked on
June 3, 2021 and received by OWCP on June 9, 2021, appellant requested an oral hearing before
a representative of OWCP’s Branch of Hearings and Review. By decision dated July 1, 2021,
OWCP denied her request for an oral hearing, as the request was untimely filed. It noted that
appellant’s case had been considered in relation to the issues involved and that the issues could be
equally well addressed by requesting reconsideration and submitting evidence not previously
considered establishing that she sustained a consequential injury due to her accepted injury of
March 3, 2008.
The Board has duly considered the matter and finds that th is case is not in posture for
decision.
In the case of William A. Couch,1 the Board held that when adjudicating a claim OWCP is
obligated to consider all evidence properly submitted by a claimant and received by OWCP before
the final decision is issued. As detailed above, OWCP received a report from Dr. Chisholm dated
May 8, 2010, containing a diagnosis of RSD, also known as CRPS. It also received numerous
reports, letters, and progress notes from Dr. Carlin beginning October 11, 2010 containing
diagnoses of RSD. OWCP, however, did not review this evidence in its May 3, 2021 merit
decision. It, thus, failed to follow its procedures by not considering all of the relevant evidence of
record.2

1

41 ECAB 548 (1990); see also K.B., Docket No. 20-1320 (issued February 8, 2021); R.D., Docket No. 17-1818
(issued April 3, 2018).
2

OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision.
Evidence received following development that lacks probative value also should be acknowledged. Whenever
possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Denials, Chapter 2.1401.5(b)(2) (November 2012).

3

As Board decisions are final with regard to the subject matter appealed, it is crucial that
OWCP address all relevant evidence received prior to the issuance of its final decision. 3 On
remand shall review and consider all evidence properly submitted by appellant prior to the issuance
of the May 3, 2021 OWCP decision. Following other such further development as deemed
necessary, OWCP shall issue an appropriate decision.
IT IS HEREBY ORDERED THAT the May 3, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board. 4
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

E.D., Docket No. 20-0620 (issued November 18, 2020); see also L.B., Docket No. 21-0140 (issued August 25,
2021); C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); William A.
Couch, supra note 1.
4

As this case is remanded for further proceedings, the July 1, 2021 denial of appellant’s request for an oral hearing
before an OWCP hearing representative is rendered moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
TRAINING & DOCTRINE COMMAND,
Monterey, CA, Employer
__________________________________________

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

Docket No. 12-730
Issued: September 18, 2012

Case Submitted on the Record

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

JURISDICTION
On February 14, 2012 appellant, through her attorney, filed a timely appeal from a
November 22, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to wage-loss compensation for the period
November 4, 2007 through July 3, 2008.
FACTUAL HISTORY
This case was previously before the Board. By decision dated July 26, 2011, the Board
affirmed a July 22, 2010 OWCP decision which found appellant did not meet her burden of
1

5 U.S.C. §§ 8101-8193.

proof to establish that she was disabled for the period November 4, 2007 through July 3, 2008
due to her accepted work-related injuries.2 The facts and circumstances as set forth in the prior
decision are hereby incorporated by reference.
On September 7, 2011 appellant requested reconsideration. Her attorney indicated that
medical evidence from Dr. Lisa Dwelle, a Board-certified family practitioner, not previously
considered was being submitted.
OWCP received evidence previously of record3 along with a May 29, 2010 letter from
Dr. Dwelle addressed to appellant’s attorney. In a May 29, 2010 letter, Dr. Dwelle referred to
her December 3, 2008 medical report, previously of record, which documented the worsening of
appellant’s psychological condition during the period November 5, 2007 through
November 3, 2008. She stated that appellant’s fall at work occurred during a time of conflict
with the chairman of her department. Dr. Dwelle noted that appellant’s experiences at her job
and the fall became known through the work environment and the Arabic community and that
appellant was a permanently disgraced female because of her belief that she was being sexually
harassed. She noted that appellant’s symptoms worsened and included depression, anxiety, pain
and insomnia and she was not able to complete any work responsibilities due to the pain and
psychiatric conditions, she could not care for her baby and was afraid to leave the house.
Dr. Dwelle described appellant’s recent condition, noting that appellant felt unsafe and, during
office visits, wore dark glasses and cried silently. She noted several medications had been
prescribed for anxiety and depression with modest improvement in symptoms and appellant and
her husband were encouraged to seek care and therapy from an Arabic and/or culturally sensitive
psychologist. Dr. Dwelle stated that appellant had deteriorated from a highly functional,
professional teacher, to a nonfunctional withdrawn ashamed female because of the environment,
colleagues and ultimately trauma at work. She opined that appellant’s ongoing symptoms were
the direct result of her work experience and made her unable to work.
By decision dated November 22, 2011, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
For each period of disability claimed, an employee has the burden of establishing that he
was disabled for work as a result of the accepted employment injury.4 Whether a particular
injury causes an employee to become disabled for work and the duration of that disability, are

2

Docket No. 10-2229 (issued July 26, 2011). On October 29, 2007 appellant, then a 31-year-old instructor, filed
a traumatic injury claim alleging that on October 25, 2007 she fell down stairs while at work. She was hospitalized
and the employing establishment indicated her last day of employment was October 29, 2007. OWCP accepted the
claim for left elbow and left shoulder contusions, lumbar and neck sprains and a concussion without loss of
consciousness.
3

This included handwritten medical notes for the period September 29, 2007 to May 28, 2010 from the Pacific
Family Medical Group and copies of Dr. Dwelle’s progress reports from 2007 through 2008.
4

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also David H. Goss, 32 ECAB 24 (1980).

2

medical issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.5
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.6 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.7 An employee who has a physical impairment causally related to her federal
employment, but who nonetheless has the capacity to earn the wages she was receiving at the
time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.8 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.
To meet this burden, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factor(s).9 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.10
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.11
ANALYSIS
OWCP accepted appellant’s claim for contusion of left elbow, contusion of left shoulder
region, neck and back sprains and concussion without loss of consciousness as a result of an
October 26, 2007 work-related fall down the stairs. Appellant claimed disability for the period
November 4, 2007 through July 3, 2008 due to the work-related injuries sustained on
October 26, 2007. In Docket No. 10-2229, the Board affirmed the denial of her claim for wage5

See Edward H. Horton, 41 ECAB 301 (1989).

6

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
7

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

8

Merle J. Marceau, 53 ECAB 197 (2001).

9

A.D., 58 ECAB 149 (2006).

10

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

11

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

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loss compensation for the period November 4, 2007 through July 3, 2008.
Appellant
subsequently requested reconsideration. The Board finds that she submitted insufficient medical
evidence to establish her claim.
In her May 29, 2010 letter, Dr. Dwelle opined that appellant’s ongoing symptoms of
anxiety and depression were the direct result of her work experience and rendered her unable to
work. OWCP, however, did not accept an emotional condition related to the October 26, 2007
fall at work. For conditions not accepted by OWCP as being employment related, it is the
employee’s burden to provide rationalized medical evidence sufficient to establish causal
relation, not OWCP’s burden to disprove such relationship.12 Dr. Dwelle did not provide any
explanation with medical rationale on why appellant was not able to work during the period in
question because of her work-related conditions. Thus, her report is of diminished probative
value.
The other evidence of record was previously submitted and reviewed by both OWCP and
the Board.
The Board finds that the medical evidence of record is not sufficient to meet appellant’s
burden of proof with respect to the claimed dates of disability. Accordingly, OWCP properly
denied wage-loss compensation for those days.
Appellant argues on appeal that OWCP’s decision was contrary to fact and law. As
noted, the medical evidence did not sufficiently address the causal relationship of her alleged
disability during the claimed period to her accepted work-related injuries. Therefore, appellant
failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she was disabled for the period
November 4, 2007 through July 3, 2008 due to her accepted work-related injuries.

12

See G.A., Docket No. 09-2153 (issued June 10, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the November 22, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 18, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Lyons, NJ, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-239
Issued: January 27, 2012

Case Submitted on the Record

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

JURISDICTION
On November 8, 2010 appellant, through his attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ (OWCP) May 11, 2010 merit decision affirming the
termination of his monetary compensation for refusing suitable work and an October 27, 2010
decision denying his request for reconsideration.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

This case was previously before the Board with respect to a wage-earning capacity determination. In a June 6,
2001 decision, the Board reversed a June 10, 1999 OWCP decision, which reduced appellant’s compensation on the
grounds that the constructed position of electronics mechanic apprentice represented his wage-earning capacity.
Docket No. 99-2444 (issued June 6, 2001).
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s monetary
compensation benefits effective October 26, 2008 for refusing an offer of suitable work pursuant
to 5 U.S.C. § 8106(c); and (2) whether OWCP properly denied his request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, counsel contends that the offered position was not suitable as it was not
located in appellant’s commuting area nor did it take into consideration appellant’s
nonemployment-related conditions. He further contends that appellant was entitled to relocation
expenses to accept the offered position.
FACTUAL HISTORY
OWCP accepted that on December 12, 1984 appellant, then a 31-year-old housekeeping
aid, sustained a lumbosacral sprain/strain and displacement of lumbar intervertebral discs
without myelopathy as a result of lifting newspaper machines at work. He moved from Lyons,
New Jersey to Weldon, North Carolina as of June 26, 1992. Subsequently, appellant moved to
Roanoke Rapids, North Carolina.
On July 11, 2006 Dr. Raven L. DeLoatch, an attending Board-certified internist, advised
that appellant was permanently and totally disabled for work and was not a candidate for
vocational rehabilitation.
By letter dated March 21, 2007, OWCP referred appellant, together with a statement of
accepted facts and the case record, to Dr. Edward W. Gold, a Board-certified orthopedic surgeon,
for a second opinion. In a March 26, 2007 medical report, Dr. Gold advised that appellant had
an employment-related chronic lumbar strain with sciatica. Appellant also had continuing
residuals causally related to the accepted condition, but there were some elements of symptom
magnification. Dr. Gold concluded that appellant was unable to return to work as a
housekeeping aid, but could perform light-duty work with restrictions for eight hours a day.
By letter dated May 3, 2007, OWCP inquired as to whether the employing establishment
could offer appellant a position based on the restrictions set forth by Dr. Gold.
By letter dated September 12, 2007, the employing establishment offered appellant a fulltime housekeeping aid position that was immediately available in Lyons, New Jersey based on
Dr. Gold’s restrictions. It was unable to offer him a position in North Carolina since its nearest
facilities to him were more than a 50-mile commuting distance. The employing establishment
offered to pay appellant’s relocation expenses. It advised him that, if he did not accept the job
offer and return to work by October 1, 2007, it would inform OWCP of his refusal, which could
result in the termination of his monetary compensation. The employing establishment submitted
a list of its facilities located in North Carolina and Virginia.
By letter dated October 11, 2007, OWCP advised appellant that the offered modifiedduty position was available and found suitable to his physical limitations. Appellant had 30 days
to accept the position or provide an explanation for his refusal to accept it. OWCP informed him

2

that, if he failed to accept the position or provide a reasonable cause for his refusal, his
compensation benefits would be terminated.
In an October 23, 2007 report, Dr. DeLoatch stated that appellant suffered from chronic
back pain due to herniated lumbar and thoracic discs. Appellant also had hypertension, anxiety
and was under a lot of stress. The lack of job security at the same date-of-injury job site in New
Jersey forced him to retire in 1991. The cold weather was a factor that precipitated appellant’s
chronic pain and increased his current suffering. Dr. DeLoatch stated that a move to New Jersey
would not be advantageous to him. Also, appellant’s wife did not want to relocate due to her
illnesses and age.
On November 13, 2007 appellant refused the offered position on the grounds that he was
physically unable to work 40 hours a week. He stated that his physical condition would result in
his termination from the employing establishment and he had no family or friends in New Jersey
who could provide food, shelter or basic necessities.
On December 3, 2007 OWCP advised appellant that the reasons given for refusing to
accept the offered position were not sufficient. He was provided an additional 15 days to accept.
By letters dated December 20, 2007 and January 17, 2008, the employing establishment
advised OWCP that appellant had not accepted the offered position and that it remained
available.
On January 28, 2008 OWCP determined that there was a conflict in the medical opinion
evidence between Dr. Gold and Dr. DeLoatch regarding the extent of appellant’s disability. On
February 20, 2008 it referred appellant, together with the case record and statement of accepted
facts, to Dr. Robert W. Elkins, a Board-certified orthopedic surgeon, for an impartial medical
examination.
On February 27, 2008 the employing establishment advised OWCP that the offered
position remained available. It noted that the average high temperature in Roanoke Rapids,
North Carolina was eight degrees higher than in Lyons, New Jersey. The average low
temperature in Roanoke Rapids was eight degrees warmer than in Lyons.
In a March 26, 2008 report, Dr. Elkins reviewed a history of the December 12, 1984
injury and appellant’s medical treatment and occupational background. He noted complaints of
pain which awakened appellant three to four times at night. Appellant’s spinal complaints
included pain in the central and left side of his low back, bilateral buttock and left thigh calf and
foot. He identified various physical activities and weather conditions that caused increased pain.
Appellant’s symptoms remained the same over the past month. He rated his current and average
daily intensity of pain as 6 out of 10. Dr. Elkins described a full physical examination which
included a slightly choppy gait, good toe walking, fair heel walking, but with left-sided pain and
poor use of a cane that appellant used 80 percent of the time in his left hand. There was no
particular tenderness in the lumbar sacroiliac joints, sciatic notch, posterior thigh or thoracic
spine area. There was restricted range of motion of the lumbar spine and normal range of motion
of the bilateral hip, knee and ankle. There was normal strength testing of the bilateral hips,
quadriceps, ankle and toes. Ancillary test results revealed diminished left hand strength,

3

somewhat nonphysiologic pain that was rated as 27 and a self-rated depression score of 62.
Dr. Elkins diagnosed chronic low back pain, possible chronic herniated disc at L4-5 with
possible L5-S1 radiculopathy and chronic deconditioning. He stated that appellant was
overweight with high blood pressure, and demonstrated mild symptom-magnification and pain
accentuation. Dr. Elkins advised that he was capable of gainful employment in the sedentary to
light-duty category with occasional lifting of 25 pounds, frequent lifting of 10 pounds and no
repetitive bending, stooping or squatting. He stated that this type of gainful employment could
be done in any state and was accurate regardless of the weather since appellant mostly worked
inside.
On May 22, 2008 the employing establishment advised OWCP that it needed a work
capacity evaluation (Form OWCP-5c) before offering a job to appellant.
In a June 11, 2008 Form OWCP-5c, Dr. Elkins stated that appellant could not walk or
stand more than four hours, twist, squat, kneel or climb more than one hour, bend or stoop more
than one-half hour and push, pull or lift more than 25 pounds for more than one hour. The
restrictions applied for one year.
By letter dated June 13, 2008, the employing establishment offered appellant a full-time
modified housekeeping aid position that was available in Lyons, New Jersey based on the
physical restrictions set forth in Dr. Elkins’ June 11, 2008 Form OWCP-5c. The duties included
folding patient linens such as, bed pads and clothing such as, pajama tops and bottoms, and
bagging up mops and rags for distribution. The employing establishment reiterated that it was
unable to offer appellant a position in North Carolina since its nearest facilities to him were more
than a 50-mile commuting distance. It again offered to pay his relocation expenses.
On June 22, 2008 appellant accepted the June 13, 2008 job offer. He stated that he was
being pressured and coerced to make this decision. Appellant indicated that both OWCP referral
physicians explained to him that their decisions were based on his condition in 1987 and not on
his current back conditions. He knew his body and stated that his decision to accept the job offer
was a mistake. Appellant did not return to work.
A memorandum of a July 31, 2008 telephone conference with an employing
establishment nurse and OWCP claims examiner indicated that the nurse had reviewed the
offered position and determined that it was not suitable for appellant. The job offer did not
specifically identify the physical requirements of the position. The nurse planned to rewrite the
job offer taking into consideration appellant’s relocation to New Jersey and his ability to undergo
vocational rehabilitation to identify a position in North Carolina.
By letter dated August 12, 2008, the employing establishment revised its June 13, 2008
job offer to include the requirements of the limited-duty housekeeping aid position. The position
was sedentary in nature and involved folding patient linens such as, bed pads, using hands and
arms to fold pads that were on a table, lifting up to three pounds and intermittently standing and
walking up to one hour placing the pads into a cart. The position also required folding patient
clothing such as, pajama tops and bottoms, using hands and arms to fold the clothing on a table,
lifting up to two pounds and intermittently standing and walking up to one hour placing the
clothing into a cart. The position further required bagging mops and rags for distribution using

4

hands and arms to place the mops and rags into a bag on a table, lifting up to five pounds
intermittently while standing and walking up to one hour placing the items into a cart. The
employing establishment stated that, “unfortunately, we are unable to offer you a position in
North Carolina since our nearest VA facility/CBOCs to you are more than a 50-mile commuting
distance.” It reiterated its offer to pay his relocation expenses. The employing establishment
advised appellant that, if he did not accept the offered position and return to work by
September 2, 2008, it would inform OWCP of his refusal, which may result in the termination of
his monetary compensation.
By letter dated August 26, 2008, OWCP advised appellant that the offered modified-duty
position was available and found suitable to his physical limitations set forth by Dr. Elkins.
Appellant had 30 days to accept the position or provide an explanation for his refusal to accept it.
OWCP informed him that, if he failed to accept the position or provide a reasonable cause for his
refusal, his compensation benefits would be terminated.
On August 27, 2008 OWCP received appellant’s August 12, 2008 acceptance of the
employing establishment’s job offer. Appellant stated that his back condition would not
withstand a trip to New Jersey and allow him to perform his work duties. He stated that none of
OWCP’s referral physicians were asked to determine whether he could currently perform the
offered position, instead the physicians based their opinion on his ability to work on his
condition in 1984.
On September 26, 2008 the employing establishment advised OWCP that appellant did
not report to work and that the offered position was still available.
On September 30, 2008 OWCP advised appellant that the reasons given for refusing to
accept the offered position were not sufficient. Appellant was given an additional 15 days to
accept. He did not respond.
In an October 23, 2008 decision, OWCP terminated appellant’s monetary compensation
benefits effective that date on the grounds that he refused an offer of suitable work.
On November 1, 2008 appellant requested an oral hearing. Reports dated August 29 and
December 7, 1987 from Dr. Mark Friedman, a Board-certified physiatrist, advised that appellant
had a herniated disc at L4-5 that was causally related to his December 12, 1984 employment
injuries. Dr. Friedman stated that the diagnosed condition prevented appellant from lifting and
carrying heavy items.
In an April 23, 2009 decision, an OWCP hearing representative affirmed the October 23,
2008 decision, finding the evidence sufficient to establish that appellant refused an offer of
suitable work.
In a March 11, 2010 letter, appellant, through his attorney, requested reconsideration.
Citing 20 C.F.R. § 10.508 and M.L.,3 counsel contended that the modified-duty position was not
suitable as appellant was not on the employing establishment’s rolls and there was no indication
3

57 ECAB 746 (2006).

5

that it gave any consideration to positions located in his commuting area. Citing Kenneth A.
Crawford,4 he further contended that the cost of living in Lyons, New Jersey was four times
greater than the cost of living in Roanoke Rapids, North Carolina. Appellant submitted
documents which compared the cost of living in Roanoke Rapids, North Carolina with certain
cities in New Jersey, including Lyons, New Jersey.
In a March 18, 2010 note, Dr. DeLoatch advised that appellant suffered from chronic low
back pain due to degenerative lumbar disc disease. Appellant also had fatigue and did not feel
well due to sleep apnea syndrome. He suffered from hypertensive cardiovascular disease and
osteoarthritis. Dr. DeLoatch concluded that appellant was not a suitable participant for gainful
employment due to his noted multiple ailments.
In a May 11, 2010 decision, OWCP denied modification of the April 23, 2009 decision.
It found that the evidence submitted by appellant failed to establish that he was unable to
perform the requirements of the offered modified position.
By letter dated October 6, 2010, appellant, through his attorney, requested
reconsideration. He again contended that appellant was no longer on the employing
establishment’s rolls and that his relocation from North Carolina to New Jersey was financially
prohibitive. Counsel further contended that appellant’s nonwork-related conditions would
prevent him from performing the modified position.
Appellant resubmitted a cost-of-living comparison between Roanoke Rapids, North
Carolina and Lyons, New Jersey. A financial resources questionnaire dated July 22, 2010
indicated that his monthly expenses exceed his monthly income.
In an undated letter, appellant advised the President of the United States that his physical
condition prevented him from performing the duties of the offered position. He could not afford
to move from North Carolina to New Jersey. Appellant experienced financial difficulties and
was unable to make his bankruptcy payments.
In an October 27, 2010 decision, OWCP denied appellant’s request for reconsideration.
It found that the evidence submitted was cumulative in nature or not relevant and, thus,
insufficient to warrant further merit review of his claim.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c) of FECA provides in pertinent part, a partially disabled employee who
refuses or neglects to work after suitable work is offered to, procured by, or secured for him is
not entitled to compensation.5 It is OWCP’s burden to terminate compensation under section
8106(c) for refusing to accept suitable work or neglecting to perform suitable work.6 The
implementing regulations provide that an employee who refuses or neglects to work after
4

Docket No. 02-2306 (issued September 5, 2003).

5

5 U.S.C. § 8106(c).

6

Joyce M. Doll, 53 ECAB 790 (2002).

6

suitable work has been offered or secured for the employee has the burden of showing that such
refusal or failure to work was reasonable or justified and shall be provided with the opportunity
to make such a showing before entitlement to compensation is terminated.7
To support termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of his refusal to accept such employment.8 In
determining what constitutes suitable work for a particular disabled employee, it considers the
employee’s current physical limitations, whether the work is available within the employee’s
demonstrated commuting area, the employee’s qualifications to perform such work and other
relevant factors.9 OWCP’s procedures state that acceptable reasons for refusing an offered
position include withdrawal of the offer or medical evidence of inability to do the work or travel
to the job.10 Section 8106(c) will be narrowly construed as it serves as a penalty provision which
may bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer
of employment.11 It is well established under this section of FECA, OWCP must consider both
preexisting and subsequently acquired conditions in the evaluation of the suitability of an offered
position.12
OWCP regulations provide that the employer, if possible, should offer suitable
reemployment in the location where the employee currently resides. If this is not practical, the
employer may offer suitable reemployment at the employee’s former duty station or other
location.13 Where the distance between the location of the offered job and the location where the
employee currently resides is at least 50 miles, OWCP may pay such relocation expenses as are
considered reasonable and necessary if the employee has been terminated from the employing
establishment employment rolls and would incur relocation expenses by accepting the offered
reemployment. It may also pay such relocation expenses when the new employer is other than a
federal employer. OWCP will notify the employee that relocation expenses are payable if it
makes a finding that the job is suitable. To determine whether a relocation expense is reasonable
and necessary, it shall use as a guide the federal travel regulations for permanent changes of duty
station.14

7

20 C.F.R. § 10.517(a).

8

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
9

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5.a(1) (July 1997); see Lorraine C. Hall, 51 ECAB 477 (2000).
11

Gloria G. Godfrey, 52 ECAB 486 (2001).

12

Richard P. Cortes, 56 ECAB 200 (2004).

13

20 C.F.R. § 10.508; Sharon L. Dean, 56 ECAB 175 (2004) (where the employing establishment, among other
things, did not attempt to determine whether suitable employment was available where appellant resided. The Board
reversed OWCP’s termination of benefits).
14

20 C.F.R. § 10.508.

7

OWCP procedures provide that an injured employee who relocates to accept a suitable
job offer after termination from the employing establishment rolls may receive payment or
reimbursement of moving expenses from the compensation fund. Relocation expenses are
payable only to claimants who are no longer on the employing establishment rolls. They are
payable whether the claimant still resides in the locale where he last worked and is offered
employment in another area, or whether the claimant has moved away from the locale where he
was employed and is offered employment in either the original area or a different one.15
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.16 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.17
ANALYSIS -- ISSUE 1
OWCP accepted that on December 12, 1984 appellant sustained a lumbosacral
sprain/strain and displacement of the lumbar intervertebral discs without myelopathy as a result
of lifting newspaper machines while working as a housekeeping aid. The Board notes that a
conflict in the medical opinion evidence arose with respect to appellant’s disability for work.
Dr. Gold, an attending physician, opined that appellant was totally disabled, while Dr. DeLoatch,
a second opinion physician, found that appellant could work full time with restrictions. To
resolve the conflict, OWCP properly referred appellant to Dr. Elkins for an impartial medical
examination.18
In a March 26, 2008 report, Dr. Elkins reviewed the history of injury and medical
treatment. He reported essentially normal findings with the exception of a slightly choppy gait,
fair heel walking with left-sided pain, restricted range of motion of the lumbar spine, along with
ancillary test results. Dr. Elkins diagnosed chronic low back pain, possible chronic herniated
disc at L4-5 with possible L5-S1 radiculopathy and chronic deconditioning. He advised that
appellant was overweight with high blood pressure, and demonstrated mild symptom
magnification and pain accentuation. Dr. Elkins found that appellant could perform light-duty
work with restrictions, which included occasional lifting of 25 pounds, frequent lifting of 10
pounds and no repetitive bending, stooping or squatting. He concluded that the position could be
located in any state regardless of the weather since appellant mostly worked inside. In a June 11,
2008 OWCP-5c form, Dr. Elkins clarified appellant’s limitations. Appellant was restricted from
walking or standing more than four hours, twisting, squatting, kneeling and climbing more than
one hour, bending or stooping more than one-half hour and pushing, pulling and lifting more
than 25 pounds for more than one hour.
15

Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.814.6 (July 1997).

16

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

17

Manuel Gill, 52 ECAB 282 (2001).

18

See R.H., 59 ECAB 382 (2008).

8

The Board finds that Dr. Elkins provided a complete and rationalized opinion, based on
an accurate factual and medical background. His opinion that appellant could return to lightduty work, is accorded special weight as an impartial medical examiner with respect to
appellant’s work restrictions.19
Appellant did not submit sufficient medical evidence to establish that he could not return
to light duty within Dr. Elkins’ restrictions. Although he subsequently submitted Dr. Friedman’s
August 29 and December 7, 1987 reports, the physician did not provide a rationalized opinion
explaining how appellant continued to be totally disabled due to his employment injuries.20
Although Dr. Friedman restricted appellant from lifting and carrying heavy items, the offered
modified housekeeping aid position involved lifting and carrying items that only weighed two to
five pounds, a weight within the restrictions set by the impartial medical specialist.
Dr. DeLoatch stated that appellant was not suitable for gainful employment due to his chronic
low back pain resulting from degenerative lumbar disc disease, fatigue resulting from sleep
apnea syndrome, hypertensive cardiovascular disease and osteoarthritis. As noted, he was on
one part of the conflict in the medical opinion for which appellant was referred to Dr. Elkins. In
his March 18, 2010 brief note, Dr. DeLoatch merely listed appellant’s symptomatology due to
degenerative disease and other conditions. He did not provide any narrative opinion explaining
how these conditions disabled appellant from performing the duties of the offered position. The
Board has held that a medical opinion not fortified by rationale is of diminished probative
value.21 The Board finds that the reports of Dr. Friedman and Dr. DeLoatch are insufficient to
overcome the special weight accorded to the well-rationalized opinion of Dr. Elkins, the
impartial medical specialist, who found appellant capable of returning to limited-duty work.
The employing establishment offered appellant a full-time modified housekeeping aid
position located in Lyons, New Jersey, where he worked at the time of his employment injury
based on Dr. Elkins’ June 11, 2008 work restrictions. Appellant accepted the position but
thereafter refused to return to work. The position involved using hands and arms to fold patient
linens such as, bed pads, and patient clothing such as, pajama tops and bottoms, lifting up to
three and two pounds of each item, respectively, and intermittently standing and walking up to
one hour while placing the items into a cart. The position also required the use of hands and
arms to bag mops and rags for distribution, lifting up to five pounds of the items and placing
them into a bag on a table and intermittently standing and walking up to one hour placing the
items into a cart. The Board finds that the physical requirements of the offered position fall
within appellant’s work restrictions as set by the impartial medical specialist.
Once OWCP has established that a particular position is suitable, an employee who
refuses or neglects to work after suitable work has been offered to him has the burden of
showing that such refusal to work was justified. An acceptable reason, if supported by medical
evidence, for refusing an offer of suitable work is inability to travel to work.22 OWCP’s
19

See L.W., 59 ECAB 471 (2008).

20

See Jaja K. Asaramo, 55 ECAB 200 (2004).

21

Id.

22

Mary E. Woodard, 57 ECAB 211 (2005).

9

procedures and Board precedent provide that the inability to travel to work is an acceptable
reason if the inability is because of residuals of the employment injury.23 Appellant contended
that his employment-related back condition prevented him from traveling to New Jersey and
performing the modified housekeeping aid position.24 The issue of whether appellant is able to
perform the offered position is a medical one and must be resolved by probative medical
evidence.25 As noted, the medical evidence from his attending physicians, Dr. Friedman and
Dr. DeLoatch, did not provide any rationalized opinion explaining why appellant was not
capable of performing the duties of the modified position in New Jersey. Their reports were
insufficient to outweigh the special weight accorded to Dr. Elkins’ impartial medical opinion that
he could perform light-duty work. The employing establishment notified appellant that it was
unable to offer him a position in North Carolina since its nearest facility to him was more than a
50-mile commuting distance. It offered to pay his expenses to relocate to New Jersey. The
record demonstrates that the employing establishment made reasonable efforts to accommodate
appellant’s return to work in the area of his residence at that time, Roanoke Rapids, North
Carolina, but there were no permanent jobs in that commuting area. The employing
establishment then offered him a permanent position consistent within Dr. Elkins’ restrictions in
New Jersey and made relocation expenses part of the job offer.26 The Board finds that OWCP
complied with the appropriate procedures and implementing regulations in finding that the
offered position was suitable.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP
advised appellant on August 26, 2008 that it found the job offer to be suitable and gave him an
opportunity to provide reasons for refusing the position within 30 days. It advised him in a
September 30, 2008 letter that he had 15 additional days to accept the offered position. The
Board finds that OWCP followed established procedures prior to the termination of
compensation pursuant to section 8106(c) of FECA.
The Board finds that the position offered was medically and vocationally suitable and
OWCP complied with the procedural requirements of section 8106(c) of FECA. OWCP met its
burden of proof to terminate appellant’s compensation benefits effective October 26, 2008.27
On appeal, appellant contended that the modified housekeeping aid position was not
suitable because it was not located in his commuting area and it did not consider his nonworkrelated conditions.
As noted, OWCP complied with the appropriate procedures and
implementing regulations in finding that the job offered to appellant in Lyons, New Jersey was
suitable. Further, the Boards notes that, although Dr. DeLoatch’s March 18, 2010 report found
23

Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.814.5(a)(5 ) (July 1997); see Mary E. Woodard,
supra note 22; Janice S. Hodges, 52 ECAB 379 (2001).
24

An acceptable reason for refusal when a claimant is no longer on the agency’s rolls is the employee has moved
and a medical condition contraindicates return to the area of residence at the time of injury. Federal (FECA)
Procedure Manual, supra note 10 at Chapter 2.814.5(b)(3 ).
25

Kathy E. Murray, 55 ECAB 288, 290 (2004).

26

See supra notes 14 and 15.

27

Joyce M. Doll, supra note 6.

10

that appellant was disabled from gainful employment due to his degenerative lumbar disc
disease, fatigue, hypertensive cardiovascular disease and osteoarthritis, he did not provide any
medical rationale addressing how the diagnosed conditions were caused by the accepted
employment injuries.
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128 of FECA28
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.29 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.30 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
ANALYSIS -- ISSUE 2
Appellant’s October 6, 2010 request for reconsideration of the May 11, 2010 OWCP
decision terminating his compensation benefits neither alleged nor demonstrated that OWCP
erroneously applied or interpreted a specific point of law.
On reconsideration, counsel reargued that appellant was no longer on the employing
establishment’s rolls and that his relocation from Roanoke Rapids, North Carolina to Lyons,
New Jersey was financially prohibitive. Appellant resubmitted a cost-of-living comparison
between the two cities. The submission of this argument and evidence does not require
reopening of his claim for merit review because they were previously considered by OWCP.
The Board has held that evidence that repeats or duplicates evidence already of record has no
evidentiary value and does not constitute a basis for reopening a case.31
Counsel further contended that appellant had nonemployment-related conditions that
prevented him from performing the modified position. However, appellant did not submit any
medical evidence on reconsideration to establish that he had a preexisting or subsequently
acquired condition which would prevent him from performing the modified housekeeping aid

28

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
29

20 C.F.R. § 10.606(b)(1)-(2).

30

Id. at § 10.607(a).

31

See L.H., 59 ECAB 253 (2007); James E. Norris, 52 ECAB 93 (2000).

11

position. The Board finds, therefore, that his argument is not sufficient to constitute a basis for
reopening a case.
Appellant failed to submit relevant and pertinent new evidence not previously considered
by OWCP. The July 22, 2010 financial resources questionnaire indicated that his monthly
expenses exceeded his monthly income. However, the relevant issue is whether appellant
properly refused an offer of suitable work. Only medical evidence can establish that the
August 26, 2008 job offer is not medically suitable.32
The undated letter appellant wrote to the President of the United States contending that
his physical condition and financial difficulties prevented him from relocating from North
Carolina to New Jersey to accept the modified position is insufficient to reopen his claim for
further merit review. His letter merely repeated his arguments previously considered by OWCP
and, thus, is repetitive and cumulative in nature.33
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his October 6, 2010 request for reconsideration.34
CONCLUSION
The Board finds that OWCP properly terminated appellant’s monetary compensation
benefits effective October 26, 2008 for refusing an offer of suitable work pursuant to 5 U.S.C.
§ 8106(c). The Board further finds that OWCP properly denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8182(a).

32

Gloria J. McPherson, 51 ECAB 441 (2000).

33

See cases cited supra note 31.

34

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits).

12

ORDER
IT IS HEREBY ORDERED THAT the October 27 and May 11, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 27, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13