United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

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Appearances:
Dean Albrecht, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-790
Issued: December 3, 2009

Case Submitted on the Record

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

JURISDICTION
On January 30, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 17, 2008 merit decision regarding forfeiture of
compensation and its January 7, 2009 merit decision regarding an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether the Office properly found that appellant forfeited his right to
compensation for the period November 12, 2002 to February 12, 2004 because he knowingly
failed to report his earnings and employment activities; (2) whether the Office properly
determined that he received a $52,084.76 overpayment of compensation; (3) whether the Office
properly determined that he was at fault in creating the overpayment of compensation, thereby
precluding waiver of recovery of the overpayment; and (4) whether the Office properly required
repayment of the overpayment by deducting $650.00 from his compensation payments every
28 days.

FACTUAL HISTORY
The Office accepted that on March 14, 1995 appellant, then a 46-year-old supervisor of
customer service, sustained a right knee sprain when he twisted his right knee while twisting to
lift a large mail pouch out of a container. It later accepted that he sustained right knee
osteoarthritis due to the March 14, 1995 injury. Appellant was paid appropriate compensation
for periods of disability.1 He received schedule awards for a 75 percent permanent impairment
of his right leg.2
On January 29, 2004 the Office requested that appellant complete a Form EN1032 which
required him to report employment activities and earnings from employment during the
15-month period preceding the date of the completion of the form.
On February 12, 2004 appellant responded “no” in response to questions on the Form
EN1032 regarding whether he had self-employment or employment other than self-employment
during the 15 months prior to his completion of the form. The form requested that he report
employment other than self-employment for which he received salary, wages, sales
commissions, piecework or other payment. Appellant was to report all self-employment or
involvement in business enterprises including, but not limited to, farming, sales work, operating
a business (including a store or restaurant), and providing services in exchange for money, goods
or other services. He was required to report activities such as keeping books and records or
managing and/or overseeing a business of any kind, including a family business and even parttime or intermittent activities were to be reported. Appellant was to report work or any
ownership interest in any business enterprise even if he was not paid, the work was for a family
member or relative, the business lost money, or income was reinvested or paid to others.3
An investigation was conducted by the Office of the Inspector General (OIG) of the
employing establishment regarding appellant’s employment activities and earnings. In an
April 18, 2008 report, Special Agent Mathew Smith documented that appellant was the
proprietor and president of a real estate development business, P.K.S. Enterprises, Inc., that he
created on September 27, 2002.4 The report shows that appellant engaged in employment
activities and had earnings during the 15-month period covered by the Form EN1032 he signed
on February 12, 2004, i.e., the period November 12, 2002 to February 12, 2004. The
investigation was documented through surveillance, witness interviews and other investigative
techniques that appellant engaged in a real estate development business. Special Agent Smith
1

In March 1998, the Office adjusted appellant’s compensation based on his ability to earn actual wages as an
administrative supervisor.
2

The Office authorized several right knee surgeries, including a total knee replacement in January 1999.
Appellant last worked for the employing establishment on November 29, 1999.
3

The Form EN1032 appellant signed asked him to certify that the information he provided was correct. He was
advised that he might be subject to criminal prosecution if he made a false statement or misrepresentation of a
material fact in claiming a payment of benefits under the Federal Employees’ Compensation Act or fraudulently
concealed or failed to report income or other information which could have an effect on benefits.
4

On a 2003 yearly business report required by North Carolina, P. K. S. Enterprises was described as a “Real
Estate Development” company.

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documented numerous real estate development deals that appellant oversaw since 1999 which
resulted in aggregate profits of several hundred thousand dollars.5 For example, on February 5,
2003 appellant purchased a property known as “Lot 6, Heritage Wood Subdivision” for
$25,000.00. On September 12, 2003 he sold the property for $34,000.00 resulting in an apparent
$9,000.00 profit.6
Special Agent Smith detailed an interview that he conducted with appellant on
March 11, 2008. Appellant initially denied having any other source of income while in receipt of
compensation for his work-related injury, but when questioned again, he acknowledged that he
had been involved in the buying and selling of real estate in the mountains of North Carolina
until the real estate market crashed. When questioned about running a real estate development
business, appellant initially denied the existence of any such business, but upon further
questioning, he confirmed that he was the president of P.K.S. Enterprises, Inc. Appellant
initially asserted to Special Agent Smith that P.K.S. Enterprises was not a business and was only
established to assist with tax relief for buying and selling real estate. However, he later indicated
after answering additional questions about P.K.S. Enterprises, “You probably could say it was a
business.” Appellant told Special Agent Smith that as the proprietor and president of P.K.S.
Enterprises, he would purchase plots of land, hire someone to clear the land, contract a house to
be built and then sell the property. He admitted that he did not report these activities to the
Office.7
In a July 17, 2008 decision, the Office determined that appellant forfeited his right to
compensation for the period November 12, 2002 to February 12, 2004 because he knowingly
failed to report his employment activities. It indicated that the evidence supported that he was
employed during the period in question and omitted earnings and business activities during the
15-month period covered by the Form EN1032 he signed on February 12, 2004 “with
knowledge” that failure to report earnings or business activities might have an effect on his
benefits. The Office found that appellant willfully and knowingly omitted earnings and work
activities on the Form EN1032 covering the period November 12, 2002 to February 12, 2004 and
concluded that, under section 8106(b) of the Act, he forfeited compensation for this period in the
amount of $52,084.76.
In a July 17, 2008 letter, the Office advised appellant that it had made a preliminary
determination that he received a $52,084.76 overpayment of compensation because he forfeited
that amount of compensation for the period November 11, 2002 to February 12, 2004 when he
knowingly falsified a Form EN1032 completed on February 12, 2004 (covering the prior
15-month period) and did not report employment activities and earnings from his real estate
development business, P.K.S. Enterprises. It also made a preliminary determination that
appellant was at fault in the creation of this overpayment, because he denied receiving earnings
or engaging in business activities during the period covered by the Form EN1032 completed on
5

It appears that appellant was involved in real estate development activities prior to founding P.K.S. Enterprises.

6

The record contains copies of numerous supporting documents, including copies of deeds signed by appellant.

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Special Agent Smith also obtained a voice recording in which appellant indicated that he and some friends built
most of a house in 2005.

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February 12, 2004 and signed the form “with knowledge” that failure to report income or other
business activities may have an effect on his benefits. The Office provided appellant an
opportunity to submit evidence if he contested the proposed overpayment determination. It
asked him to complete and return a financial information questionnaire.
Appellant requested a review of the written record by an Office hearing representative.
In an August 13, 2008 letter, appellant’s attorney asserted that appellant’s real estate activities
between November 12, 2002 and February 12, 2004 only constituted a passive business
investment. In a December 17, 2008 decision, the Office hearing representative affirmed the
Office’s July 17, 2008 decision finding that appellant forfeited his right to compensation for the
period November 12, 2002 to February 12, 2004.
In a January 7, 2009 decision, the Office determined that appellant received a $52,084.76
overpayment of compensation. It found that appellant was at fault in creating the overpayment
of compensation, thereby precluding waiver of recovery of the overpayment. The Office
required repayment of the overpayment by deducting $650.00 from appellant’s compensation
payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of the Act8 provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.... An employee who -(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings;
forfeits his right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this subsection, if
already paid, shall be recovered by a deduction from the compensation payable to
the employee or otherwise recovered under section 8129 of this title, unless
recovery is waived under that section.”9

8

5 U.S.C. § 8106(b).

9

While section 8106(b)(2) refers only to partially disabled employees, the Board has held that the test for
determining partial disability is whether, for the period under consideration, the employee was in fact either totally
disabled or merely partially disabled, and not whether he received compensation for that period for total or partial
loss of wage-earning capacity. Ronald H. Ripple, 24 ECAB 254, 260 (1973). The Board explained that a totally
disabled employee normally would not have any employment earnings and therefore a statutory provision about
such earnings would be meaningless. Id. at 260.

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Before the Office can declare a forfeiture of compensation, it must establish that
appellant has received earnings from his own employment, not from passive investment in
business ventures.10
It is not enough merely to establish that there was unreported employment or earnings.
Appellant can only be subjected to the forfeiture provision of 5 U.S.C. § 8106(b) if he or she
knowingly failed to report employment or earnings.11 The term knowingly as defined in the
Office’s implementing regulations, means with knowledge, consciously, willfully or
intentionally.12 To meet this burden, the Office is required to examine closely appellant’s
activities and statements. It may meet this burden without an admission by the claimant if the
circumstances of the case establish that he failed to reveal fully and truthfully the full extent of
his employment activities and earnings.13
Section 10.5(g) of the Office’s regulations defines earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack or profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”14
ANALYSIS -- ISSUE 1
In the present case, the record establishes that appellant omitted earnings on a Form
EN1032 he signed on February 12, 2004 and which covered the period November 12, 2002 to
February 12, 2004. In this form, the Office notified appellant of his responsibility to complete
the form and provide relevant information concerning his employment status and earnings during
the period covered by the form. The record reveals, however, that appellant had employment
and earnings during the period covered by this form in that he was self-employed and running his
own real estate development business and had earnings from this employment.
An investigation was conducted by the OIG of the employing establishment regarding
appellant’s employment activities and earnings. In an April 18, 2008 report, Special Agent
10

Anthony V. Knox, 50 ECAB 402 (1999).

11

Barbara L. Kanter, 46 ECAB 165 (1994).

12

20 C.F.R. § 10.5(n).

13

Terry A. Geer, 51 ECAB 168 (1999).

14

20 C.F.R. § 10.5(g); see Monroe E. Hartzog, 40 ECAB 322, 329 (1988).

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Smith documented that appellant was the proprietor and president of a real estate development
business, P.K.S. Enterprises, Inc., that he created on September 27, 2002. The report shows that
appellant engaged in employment activities and had earnings during the 15-month period
covered by the Form EN1032 he signed on February 12, 2004, i.e., the period November 12,
2002 to February 12, 2004. For example, on February 5, 2003 appellant purchased a property
known as “Lot 6, Heritage Wood Subdivision” for $25,000.00. On September 12, 2003 he sold
the property for $34,000.00 resulting in an apparent $9,000.00 profit. Special Agent Smith of the
OIG detailed an interview that he conducted with appellant on March 11, 2008. Appellant
initially asserted to Special Agent Smith that P.K.S. Enterprises was not a business and was only
established to assist with tax relief for buying and selling real estate. However, he later indicated
after answering additional questions about P.K.S. Enterprises, “You probably could say it was a
business.” Appellant told Special Agent Smith that as the proprietor and president of P.K.S.
Enterprises, he would purchase plots of land, hire someone to clear the land, contract a house to
be built and then sell the property. He admitted that he did not report these activities to the
Office.
The present case does not involve any question as to the definition of “earnings” that
must be reported. Appellant’s attorney asserted that appellant’s real estate activities between
November 12, 2002 and February 12, 2004 only constituted a passive business investment.15
However, appellant’s real estate activities, including his running his own real estate business,
were too extensive to be considered merely a passive business investment. There is no question
that appellant had earnings as the proprietor and owner of a real estate development business
during the period in question.
The Board further finds that appellant knowingly failed to report earnings and
employment activities during the relevant period. The Form EN032 signed by appellant used
such terms as “business,” “enterprise” and “service” to explain the obligation for reporting all
forms of employment, self-employment and earnings. The explicit language of the Form CA1032 clearly advised appellant that the nature of his work running a real estate development
business would require him to report such employment activities on the form. Appellant’s
signing of a strongly-worded certification clause on the Form EN1032 further shows that he was
aware of materiality of his failure to report his employment. Moreover, the fact that appellant
initially attempted to conceal the full extent of his employment activities and earnings from
Special Agent Smith suggest that he knew that he was required to report such activities and
earnings.16
Under these circumstances, the Board concludes that appellant “knowingly” omitted his
earnings under section 8106(b)(2) of the Act by failing to report his employment activities and
earnings on the applicable Form EN1032 for the period.17 Accordingly, the Board finds that the
Office properly determined that appellant forfeited his right to compensation for the period
November 12, 2002 to February 12, 2004. Appellant received $52,084.76 in compensation for
15

See supra note 10.

16

See supra note 13.

17

See generally Lewis George, 45 ECAB 144 (1993).

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the period November 12, 2002 to February 12, 2004 and therefore he forfeited compensation in
this amount.18
LEGAL PRECEDENT -- ISSUE 2
Section 10.529 of the Office’s implementing regulations provide as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, [the Office] shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C. [§]
8129 [recovery of overpayments] and other relevant statues.”19
If a claimant has any earnings during a period covered by a Form EN1032 which he
knowingly fails to report, he is not entitled to any compensation for any portion of the period
covered by the report, even though he may not have had earnings during a portion of that
period.20
ANALYSIS -- ISSUE 2
As noted, Office regulations provide that the Office may declare an overpayment of
compensation for the period of a given forfeiture of compensation. The Office paid appellant
compensation in the amount of $53,084.76 for the period November 12, 2002 to
February 12, 2004. It properly found that appellant forfeited his entitlement to compensation
during this time because he failed to report earnings and employment activities from
employment on a Form EN1032. Therefore, there exists an overpayment of compensation in the
amount of $53,084.76.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of the Act provides that where an overpayment of compensation has
been made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.21 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
by the United States may not be made when incorrect payment has been made to an individual
18

On appeal, appellant asserted that the Office hearing representative only found a forfeiture of $8,000.00 in
compensation, but the December 17, 2008 decision reveals that a $52,084.76 forfeiture of compensation was found.
19

20 C.F.R. § 10.529. See also Harold F. Franklin, 57 ECAB 387 (2006).

20

Robert Ringo, 53 ECAB 258 (2001).

21

5 U.S.C. § 8129(a).

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who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”22 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.23
In determining whether an individual is not “without fault” or alternatively, “with fault,”
section 10.433(a) of Title 20 of the Code of Federal Regulations provide in relevant part:
“An individual is with fault in the creation of an overpayment who -(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect….”24
Section 10.433(c) of the Office’s regulations provides:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”25
ANALYSIS -- ISSUE 3
The Board finds that appellant was at fault under the third standard described above as he
accepted payments of compensation covering the period November 12, 2002 to February 12,
2004 which he knew or should have known to be incorrect. Appellant had signed a Form
EN1032 which directed him to return any and all checks to which he was not entitled. He
knowingly failed to report employment activities and earnings on a Form EN1032 covering the
period November 12, 2002 to February 12, 2004. The form advised him of the materiality of the
duty to report employment activities and earnings from employment and informed him that
failure to properly report these activities or earnings could affect his compensation. However,
appellant accepted incorrect compensation payments for the period November 12, 2002 to
February 12, 2004. Therefore, appellant is at fault in the creation of the $52,084.76
overpayment, such that it is not subject to waiver.26
22

5 U.S.C. § 8129(b).

23

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

24

20 C.F.R. § 10.433(a).

25

Id. at § 10.433(c).

26

See Bob R. Gilley, 51 ECAB 377 (2000); Albert Pineiro, 51 ECAB 310 (2000).

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LEGAL PRECEDENT -- ISSUE 4
Section 10.441(a) of Title 20 of the Code of Federal Regulations provides in pertinent
part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
the same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual, and any other
relevant factors, so as to minimize any hardship.”27
ANALYSIS -- ISSUE 4
The record supports that, in requiring repayment of the overpayment by deducting
$650.00 from appellant’s compensation payments every 28 days, the Office took into
consideration the financial information submitted by appellant as well as the factors set forth in
section 10.441 and found that this method of recovery would minimize any resulting hardship on
appellant.28 Therefore, the Office properly required repayment of the overpayment by deducting
$650.00 from appellant’s compensation payments every 28 days.
CONCLUSION
The Board finds that the Office properly found that appellant forfeited his right to
compensation for the period November 12, 2002 to February 12, 2004 because he knowingly
failed to report his employment activities. The Board further finds that the Office properly
determined that appellant received a $52,084.76 overpayment of compensation and that he was
at fault in creating the overpayment of compensation, thereby precluding waiver of recovery of
the overpayment. The Board finds that the Office properly required repayment of the
overpayment by deducting $650.00 from appellant’s compensation payments every 28 days.

27

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

28

Appellant did not complete and return a financial information questionnaire as directed by the Office and he
was receiving a gross amount of Office compensation per month of more than $3,700.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
January 7, 2009 and December 17, 2008 decisions are affirmed.
Issued: December 3, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.Q., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, El Paso, TX, Employer
__________________________________________

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

Docket No. 13-275
Issued: May 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 19, 2012 appellant, through his attorney, filed a timely appeal from an
August 31, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) that
denied his claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his post-traumatic
stress disorder (PTSD) was aggravated in the performance of duty or causally related to factors
of his federal employment.
On appeal, appellant’s attorney asserts that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On February 14, 2012 appellant, then a 38-year-old enforcement and removal assistant,
filed an occupational disease claim alleging that he sustained employment-related PTSD because
Charles Edwards admitted to felony violations when he would not sign a Form CA-2 claim.2 He
first realized that he had an emotional condition and of its relationship to employment on
April 25, 2007. Angelita Vargas, enforcement and removal assistant supervisor, stated that she
had no prior knowledge of the claimed injury.
In correspondence dated February 17, 2012, OWCP noted that no additional
documentation was received with appellant’s claim form. It advised him of the requirements
needed to accept his claim and advised him to submit a physician’s diagnosis with an opinion as
to how his employment activities caused, contributed to or aggravated the claimed condition.
OWCP also requested that the employing establishment respond to appellant’s claim.
The record contains one page of a claim form with a hand-written notation by appellant,
copies of e-mails regarding employing establishment policies and his claim and disciplinary
letters dated April 6 and December 5, 2011 with his response. There is also correspondence
from appellant to the Secretary of the Department of Homeland Security regarding his
allegations of illegal activities at the agency and correspondence regarding an unidentified
coworker.
By decision dated March 23, 2012, OWCP denied the claim. It found that appellant had
not provided a statement sufficiently identifying claimed employment factors.
In a March 15, 2012 statement, received by OWCP on March 23, 2012, Ms. Vargas noted
that she had been appellant’s supervisor from January 17 through April 2009, April 26 through
December 31, 2010 and again commencing January 1, 2012. She stated that she was unable to
provide or substantiate any information in regard to his claim. Ms. Vargas provided a position
description for an enforcement and removal assistant.
Dr. Henry H. Calderoni, Board-certified in family medicine, provided a January 30, 2008
report, prepared for the employing establishment. A medical history prepared by appellant stated
that he was seeking treatment for flying issues. Dr. Calderoni provided findings on examination
and diagnosed stable diabetes, no evidence of tremor and an otherwise stable examination. On
February 1, 2008 Dr. Lynn J. Soffer, a Board-certified internist, advised that appellant should
have a psychiatric evaluation.
In a February 29, 2008 report, Dr. Robert G. Zenner, a Board-certified psychiatrist,
advised that appellant was being seen for anxiety regarding air travel and to determine if he
could perform all the duties of a weapon-carrying position without restriction. He reported a
history of diabetes and migraines and described appellant’s complaints of anxiety when he
travelled by air that began at the age of 13 after he saw a plane going down. Dr. Zenner
performed a mental status examination and diagnosed specific phobia, situational type
2

Appellant did not clearly identify Mr. Edwards’ position. From the context of the evidence of record, it appears
that Mr. Edwards works for the employing establishment inspector general’s office.

2

(airplanes), diabetes, migraines and psychosocial stressors within the last six months of current
job pressures. He reported that appellant had been diagnosed with PTSD several years prior
when he witnessed two airplane incidents but he did not appear to have the condition any
longer.3 Dr. Zenner stated that appellant’s phobia was restricted to flying only and
recommended cognitive therapy. In an April 2, 2008 report, prepared for the employing
establishment, Dr. Kenneth Gaarder, a Board-certified psychiatrist, noted that he had evaluated
appellant’s records. He advised that, while appellant was free of other psychiatric illness, insofar
as flying was a requirement of his position, he was not fit for duty due to his specific phobia, fear
of flying.
On April 2, 2012 appellant, through counsel, requested a hearing that was held on
July 16, 2012. He testified that he had military service-related tremors and migraines. Appellant
described his employment history, stating that his problems began in 2007, after he alleged,
illegal activities were being conducted at the employing establishment. He stated that proper
procedures were not being followed and alleged that J.J. Bandanza, a supervisor, performed
illicit activities, made disparaging remarks to appellant about being Hispanic, discussed his
medical condition with coworkers and generally harassed him. Appellant stated that he was fired
from an officer position due to his PTSD. He complained that Mr. Bandanza’s wife was his
secretary, an example of an environment of nepotism that worsened his condition and that an
agency attorney, Robert Erbe, sabotaged any attempts to get promoted to other positions for
which he applied. The record was left open for 30 days for the submission of additional
evidence.
By decision dated August 31, 2012, an OWCP hearing representative affirmed the
March 23, 2012 decision, finding that appellant did not establish a compensable factor of
employment. The hearing representative noted that he submitted no evidence following the
hearing to substantiate any allegations of wrong doing or harassment.
LEGAL PRECEDENT
To establish his claim that he sustained a stress-related condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he or she has
an emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his or her condition; and (3) rationalized
medical opinion evidence establishing that the identified compensable employment factors are
causally related to his stress-related condition.4 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor.5 When the matter asserted is a compensable factor of employment and the evidence of

3

Dr. Zenner referenced records that are not contained in the record before the Board.

4

Leslie C. Moore, 52 ECAB 132 (2000).

5

Dennis J. Balogh, 52 ECAB 232 (2001).

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record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case, of Lillian Cutler,7 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.8 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.9 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.10 Where the
claimant alleges compensable factors of employment, he or she must substantiate such
allegations with probative and reliable evidence.11 Personal perceptions alone are insufficient to
establish an employment-related emotional condition.12
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.13 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.14
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.15
6

Id.

7

28 ECAB 125 (1976).

8

See Robert W. Johns, 51 ECAB 137 (1999).

9

Lillian Cutler, supra note 7.

10

J.F., 59 ECAB 331 (2008).

11

M.D., 59 ECAB 211 (2007).

12

Roger Williams, 52 ECAB 468 (2001).

13

Charles D. Edwards, 55 ECAB 258 (2004).

14

Kim Nguyen, 53 ECAB 127 (2001).

15

James E. Norris, 52 ECAB 93 (2000).

4

With regard to emotional claims arising under FECA, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the Equal Employment Opportunity Commission, which is charged with statutory authority to
investigate and evaluate such matters in the workplace. Rather, in evaluating claims for workers’
compensation under FECA, the term “harassment” is synonymous, as generally defined, with a
persistent disturbance, torment or persecution, i.e., mistreatment by co employees or workers.
Mere perceptions and feelings of harassment will not support an award of compensation.16
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an aggravation of PTSD causally related to factors of his federal employment.
The record notes that appellant was diagnosed with PTSD and anxiety prior to 2008.
Appellant has not attributed his PTSD to the performance of his regular work duties or to any
special work requirement arising from his employment duties under Cutler.17 Rather, his claim
pertains to allegations of illegal activities, including nepotism, at the employing establishment
beginning in 2007 and to allegations that he was harassed by employing establishment
management, was sabotaged and discriminated against because of whistle-blowing and because
he is Hispanic, that he was spoken to in an abusive manner and that his medical condition was
inappropriately discussed. Appellant also testified that he was inappropriately fired from an
officer position.
As noted, administrative or personal functions of the employer, rather than the regular or
specially assigned work duties of the employee are not covered under FECA unless the evidence
demonstrates that management either erred or acted abusively in discharging its administrative or
personnel responsibilities.18 The record before the Board, however, contains insufficient
evidence regarding appellant being “fired.” Appellant submitted no evidence to establish that
individuals at work acted illegally or improperly in any administrative matter. The evidence
does not establish error or abuse.
Appellant also submitted insufficient evidence, such as witness statements, regarding his
allegation that Mr. Bandanza or other supervisors, spoke to him in a disrespectful manner or
inappropriately discussed his medical condition. He did not establish a factual basis for these
allegations.19
Regarding appellant’s contention that he was harassed by Mr. Bandanza or other
employing establishment managers, mere perceptions of harassment or discrimination are not
compensable under FECA.20 Unsubstantiated allegations of harassment or discrimination are not
16

Beverly R. Jones, 55 ECAB 411 (2004).

17

See James E. Norris, supra note 15.

18

Kim Nguyen, supra note 14.

19

See T.G., 58 ECAB 189 (2006).

20

James E. Norris, supra note 15.

5

determinative of whether such harassment or discrimination occurred. A claimant must establish
a factual basis for his or her allegations with probative and reliable evidence.21 In this case,
appellant did not submit evidence to support specific actions by Mr. Bandanza, the attorney
Mr. Erbe or other employing establishment personnel to show a persistent disturbance, torment
or persecution, i.e., mistreatment by employing establishment management.22 Appellant
therefore did not establish a factual basis for his claim of harassment by probative and reliable
evidence.23
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an aggravation of PTSD in the performance of duty causally related to factors of his
federal employment.24 Appellant’s emotional reaction must be considered self-generated, in that
it resulted from his perceptions about employing establishment management actions.25
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 did not establish that he sustained an emotional condition
in the performance of duty.

21

Id.

22

Beverly R. Jones, supra note 16.

23

See Robert Breeden, 57 ECAB 622 (2006).

24

Leslie Moore, supra note 4.

25

See V.W., 58 ECAB 428 (2007). As appellant failed to establish a compensable employment factor, the Board
need not address the medical evidence of record; see Katherine A. Berg, 54 ECAB 262 (2002). The Board,
however, notes that the record does not contain any medical evidence diagnosing PTSD. While Dr. Zenner
mentioned a previous diagnosis of PTSD and in his February 29, 2008 report diagnosed a specific phobia, fear of
flying, he also advised that appellant did not currently have PTSD.

6

ORDER
IT IS HEREBY ORDERED THAT the August 31, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bronx, NY, Employer
__________________________________________

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

Docket No. 17-1568
Issued: October 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 11, 2017 appellant filed a timely appeal from a March 17, 2017 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 right ankle injury
due to a January 23, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its March 17, 2017 decision.
However, the Board is precluded from reviewing evidence that was not part of the record at the time OWCP issued
its final decision. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On January 31, 2017 appellant, then a 29-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on January 23, 2017 she sustained a right ankle injury at
work. She indicated that she was walking on a concrete sidewalk when she twisted her right
ankle. Appellant stopped work on January 23, 2017.3
In a February 8, 2017 letter, OWCP requested that appellant submit additional evidence
in support of her claim, including a physician’s opinion supported by a medical explanation as to
how the reported January 23, 2017 employment incident caused or aggravated a medical
condition.
Appellant submitted an unsigned January 24, 2017 visit summary report regarding her
January 24, 2017 visit with Dr. Betsy Koickel, a Board-certified family practitioner at the
Northwell Health urgent care clinic. The report listed the reason for appellant’s visit to
Dr. Koickel as twisted ankle and the diagnosis as ankle arthralgia.
In a February 1, 2017 duty status report (Form CA-17), Dr. John Tsialas, an attending
Board-certified family practitioner, listed the date of injury as January 23, 2017 and the history
of injury as “twisted my ankle.” He listed clinical findings of swelling and pain in the lateral
aspect of her left ankle. Dr. Tsialas indicated that appellant was not able to perform her regular
work as a city carrier assistant. In a February 1, 2017 post injury evaluation form, he diagnosed
ankle sprain and checked a box marked “No work for (circle) 1/2/3 days,” but he did not indicate
the length of time appellant was unable to work. An unsigned February 1, 2017 visit summary
report indicated that appellant was seen by Dr. Tsialas on that date and listed the diagnosis as
ankle sprain, work-related injury.
In a February 6, 2017 postinjury evaluation form, Dr. Toral Parikh, an attending Boardcertified family practitioner, diagnosed ankle sprain and checked a box marked “No work for
(circle) 1/2/3 days,” but he did not indicate the length of time appellant could not work. An
unsigned February 6, 2017 visit summary report indicated that appellant was seen by Dr. Parikh
on that date for a work-related ankle sprain. It was noted that appellant was referred for
orthopedic evaluation.
In a February 27, 2017 attending physician’s report (Form CA-20), Dr. Richard N.
Weinstein, an attending Board-certified orthopedic surgeon, listed the date of injury as
January 23, 2017 and the history of injury as “twisted right lateral ankle [at] work.”4 He
diagnosed right lateral ankle sprain and checked a box marked “Yes” indicating that the
condition found was caused or aggravated by an employment activity. Dr. Weinstein found that

3

On the same form, appellant’s immediate supervisor noted that the employing establishment was controverting
her claim for a January 23, 2017 employment injury because she did not report the injury at the time of its alleged
occurrence.
4

In the findings portion of the report, Dr. Weinstein indicated that right ankle x-rays from an unspecified date
showed no fracture.

2

appellant was totally disabled from January 23, 2017 to the present and recommended that she
wear a controlled ankle motion walker boot and engage in physical therapy.5
In a March 17, 2017 decision, OWCP denied appellant’s claim for a work-related ankle
injury. Although appellant established that the January 23, 2017 employment incident -“walking on concrete” -- occurred as alleged and that a medical condition had been diagnosed,
she failed to establish that the diagnosed right ankle sprain was causally related to the accepted
work event.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 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.6 These are the essential elements of each
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the 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.8 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.9
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

5

Appellant also submitted an administrative document indicating that Dr. Weinstein had referred her for physical
therapy on February 27, 2017.
6

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

7

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).
8

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

9

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

3

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.10
ANALYSIS
Appellant filed a traumatic injury claim alleging that on January 23, 2017 she twisted her
ankle while walking on a concrete sidewalk. In a March 17, 2017 decision, OWCP denied
appellant’s claim because the medical evidence failed to establish that her diagnosed right ankle
sprain was causally related to the accepted January 23, 2017 employment incident. The Board
finds that appellant did not meet her burden of proof to establish a right ankle injury due to the
January 23, 2017 employment incident.
On January 24, 2017 appellant was seen on an urgent care basis by Dr. Koickel. An
unsigned January 24, 2017 visit summary report listed the reason for the visit as twisted ankle
and contained the diagnosis of ankle arthralgia (pain). However, this report is of no probative
value regarding appellant’s claim for a January 23, 2017 work injury because it was not signed
by a physician as defined by FECA. The Board has held that a document not signed by a
physician as defined by FECA does not constitute medical evidence and has no probative value
regarding a given medical matter.11
In a February 1, 2017 duty status report, Dr. Tsialas, an attending physician, listed the
date of injury as January 23, 2017 and the history of injury as “twisted my ankle.” He listed
clinical findings and indicated that appellant was disabled from her regular job. This report is of
limited probative value with respect to establishing causal relationship between appellant’s
medical condition and the January 23, 2017 employment incident because Dr. Tsialas did not
provide a diagnosis or discuss the cause of her medical condition. The Board has held that
medical evidence which does not offer a clear opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.12
In a February 1, 2017 postinjury evaluation form, Dr. Tsialas diagnosed ankle sprain and
checked a box marked “No work for (circle) 1/2/3 days” but did not indicate the length of time
appellant could not work. This report is of limited probative value on the main issue of the
present case because Dr. Tsialas did not identify a work-related cause for any period of
disability.13

10

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

11

R.R., Docket No. 17-0176 (issued July 21, 2017); Merton J. Sills, 39 ECAB 572, 575 (1988). Section
8101(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice under State law. 5 U.S.C.
§ 8101(2).
12

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

13

See id. An unsigned February 1, 2017 visit summary report indicated that appellant was seen by Dr. Tsialas on
that date and listed the diagnoses of ankle sprain and work-related injury. However, this document is of no
probative value regarding appellant’s claim for a January 23, 2017 work injury because it also was not signed by a
physician as defined by FECA and does not constitute probative medical evidence. See supra note 11.

4

In a February 6, 2017 postinjury evaluation form, Dr. Parikh, an attending Board-certified
family practitioner, diagnosed ankle sprain and checked a box marked “No work for (circle)
1/2/3 days” but did not indicate the length of time appellant could not work. This report is of
limited probative value with respect to establishing a causal relationship between appellant’s
condition and the January 23, 2017 employment incident because Dr. Parikh provided no opinion
indicating a work-related cause for appellant’s disability.14
In a February 27, 2017 attending physician’s report, Dr. Weinstein listed the date of
injury as January 23, 2017 and the history of injury as “twisted right lateral ankle [at] work.”
Dr. Weinstein diagnosed right lateral ankle sprain and checked a box marked “Yes” indicating
the condition found was caused or aggravated by an employment activity. He found that
appellant was totally disabled from January 23, 2017 to the present.
The Board has held that when a physician’s opinion on causal relationship consists only of
checking “Yes” to a form question, without more by the way of medical rationale, that opinion has
little probative value and is insufficient to establish causal relationship.15 Appellant’s burden
includes the necessity of furnishing an affirmative opinion from a physician who supports his or
her conclusion with sound medical reasoning.16 As Dr. Weinstein did no more than check “Yes”
to a form question, his opinion on causal relationship is of little probative value and is insufficient
to discharge appellant’s burden of proof.17 He did not describe the January 23, 2017 employment
incident in any detail or explain in medical terms how it could have caused the diagnosed
condition. Dr. Weinstein’s report is of limited probative value in establishing a January 23, 2017
employment injury because he did not provide a rationalized medical opinion on causal
relationship.18
On appeal appellant argues that the medical evidence of record establishes her claim for a
January 23, 2017 employment injury, but the Board has explained why this evidence is insufficient
to establish her claim.
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.

14

See supra note 12. An unsigned February 6, 2017 visit summary report indicated that appellant was seen by
Dr. Parikh on that date and listed the diagnoses of work-related injury and ankle sprain. This document is of no
probative value on the relevant issue of this case because it was not signed by a physician as defined by FECA and
does not constitute probative medical evidence. See supra note 11.
15

See D.D., 57 ECAB 734, 739 (2006); Deborah L. Beatty, 54 ECAB 340, 341 (2003).

16

Lillian M. Jones, 34 ECAB 379, 381 (1982).

17

See supra note 15.

18

C.M., Docket No. 14-88 (issued April 18, 2014) (finding that a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).

5

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a right ankle injury due to a January 23, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 17, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 26, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF THE ARMY, HEALTH
SERVICES COMMAND, Fort Gordon, GA,
Employer
__________________________________________

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

Docket No. 14-1157
Issued: September 12, 2014

Case Submitted on the Record

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

JURISDICTION
On April 21, 2014 appellant filed a timely appeal from a February 11, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Because more than 180 days has elapsed between the last merit decision dated
March 18, 2013 to the filing of this appeal, and pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has a lengthy appellate history before the Board. In the first appeal, the Board
issued a decision on October 1, 1999 which set aside a September 24, 1997 OWCP decision.
The Board found that appellant had submitted medical evidence regarding permanent
impairment at a date subsequent to the prior schedule award decision and remanded the case to
OWCP for further review.2 Therefore, on March 1, 2001 the Board affirmed a November 16,
1999 OWCP decision that appellant had not established permanent impairment to any of her
extremities.3 By decision dated September 17, 2003, the Board affirmed OWCP decisions dated
October 24, 2002, January 16 and March 7, 2003, which found that appellant had no more than a
25 percent permanent impairment of her right lower extremity and a 5 percent permanent
impairment of the left lower extremity.4
By decision dated July 16, 2004, the Board found that OWCP had failed to consider the
merits of appellant’s request for an increased schedule award and set aside a January 30, 2004
OWCP decision.5 The Board, by decision dated June 1, 2005, affirmed OWCP decisions dated
October 6 and 14, 2004,6 finding no more than six percent left lower extremity impairment. On
December 1, 2011 the Board issued a decision setting aside a July 23, 2010 schedule award
decision and remanded the case for further development of the medical opinion evidence.7 The
Board found that the evidence of record did not contain a sufficiently reasoned medical opinion
regarding the degree of impairment for appellant’s left lower extremity using the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment. On
November 22, 2013 the Board affirmed decisions dated November 19, 2012 and March 18, 2013.
The Board found that appellant failed to establish clear evidence of error with respect to her
request for review of an October 2, 2009 decision concerning the denial of a recurrence claim.
In affirming the March 18, 2013 decision, the Board found that appellant had not met her burden
of proof to establish that she had more than a six percent impairment of her left lower extremity.
The facts and circumstances of the case up to that point are set forth in the Board’s prior
decisions and are incorporate herein by reference.8

2

51 ECAB 115 (1999).

3

Docket No, 00-845 (issued March 1, 2001).

4

Docket Nos. 03-1068 and 03-1342 (issued September 17, 2003). OWCP issued a schedule award for a 25
percent right leg permanent impairment on January 16, 2003 and a 5 percent left leg permanent impairment on
March 7, 2003.
5

Docket No. 04-919 (issued July 16, 2004).

6

Docket No. 05-354 (issued June 1, 2005).

7

Docket No. 11-517 (issued December 1, 2011).

8

On August 23, 1992 appellant, then a 46-year-old food service worker, filed a traumatic injury claim alleging
that on August 20, 1992 she injured her back while picking up a large mixing bowl. OWCP accepted the claim for
sciatica, which was subsequently expanded to include the conditions of lumbar stenosis, L4-L5 spondylolisthesis
and degenerative disc disease. Appellant resigned from the employing establishment effective February 13, 1994
and is currently not working.

2

On January 10, 2014 appellant requested reconsideration of the March 18, 2013 decision
denying her request for an additional schedule award of her left lower extremity. In support of
her request, appellant submitted factual and medical evidence including a November 7, 2013
report from Dr. Kenneth M. Faile, a treating Board-certified family practitioner. Dr. Faile
indicated that he had treated appellant since 2002 and that her sciatica symptoms had worsened.
Appellant also resubmitted impairment ratings by OWCP medical advisers dated March 13,
2002, September 16 and December 16, 2004.
By decision dated February 11, 2014, OWCP denied reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9
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) submit relevant and pertinent new evidence not previously
considered by OWCP.10 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.11 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.12
ANALYSIS
OWCP previously granted appellant a schedule award for a six percent impairment of her
left lower extremity. By decision dated March 18, 2013, OWCP denied appellant’s request for
an additional schedule award of her left lower extremity. On November 22, 2013 the Board
affirmed the March 18, 2013 decision. On January 29, 2014 OWCP received appellant’s request
for reconsideration dated January 10, 2014 of the March 18, 2013 decision. The issue presented
on appeal is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3),
requiring OWCP to reopen the case for review of the merits of the claim. The Board finds that,
in her application for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. She did not identify a specific point of law or show that it
was erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument.

9

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
10

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
11

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

12

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

3

Accompanying her January 10, 2014 reconsideration request, appellant resubmitted
medical reports from OWCP medical advisers which were previously addressed and evaluated
by OWCP in its prior merit decisions. The submission of evidence which repeats or duplicates
evidence already of record and considered by OWCP does not constitute a basis for reopening a
case and is insufficient to warrant further merit review.13
Appellant also submitted a November 7, 2013 report by Dr. Faile, a treating Boardcertified family practitioner, who indicated that appellant’s sciatica symptoms had worsened.
Although this report is new, it is irrelevant to the issue of appellant’s claim for an additional
schedule award for her left lower extremity as Dr. Faile provided no medical opinion on
appellant’s permanent impairment.14
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
constitute relevant and pertinent new evidence not previously considered.15 Pursuant to 20
C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board further finds that OWCP properly denied appellant’s request for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

13

E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007); D’Wayne Avila, 57 ECAB
642 (2006).
14

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

15

A.K., Docket No. 09-2032 (issued August 3, 2010); W.C., 59 ECAB 372 (2008); Susan A. Filkins, supra note

10.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 11, 2014 is affirmed.
Issued: September 12, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 14-1889
Issued: January 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 26, 2014 appellant, through counsel, filed a timely appeal from an August 7,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because
more than one year elapsed between the last merit decision dated April 1, 2013 and pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant’s counsel argues that the decision is contrary to fact and law.
1
2

5 U.S.C. § 8101 et seq.

A claimant has 180 days from the issuance of an adverse OWCP decision to file an appeal with the Board
appeal. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On March 30, 2012 appellant, then a 48-year-old painter, filed an occupational disease
claim alleging that her bilateral hearing loss was due to her employment. She stated that she first
became aware of this condition and its relationship to her employment on January 18, 2011.
By letter dated March 30, 2012, OWCP informed appellant that the evidence of record
was insufficient to establish her claim. Appellant was advised of the medical and factual
evidence required and given 30 days to provide this information.
In support of her claim, appellant submitted hearing conservation data and audiograms
dated March 16, 2005 to June 2, 2008 as well as February 22 and March 7, 2011 audiograms. A
position description for a painter was submitted along with an employment history noting her
employment as a painter from April 18, 2005 to the present.
In a June 6, 2008 report by Paul V. Stephens, an audiologist, stated that appellant
exhibited pseudohypacusis characteristics based on her half work response, exaggerated
listening, and elevated pure tone thresholds. He stated that he believed her hearing to be normal
or near normal.
On March 11, 2011 Mr. Stephens reported normal bilateral hearing acuity, normal middle
hearing function and “[s]peech audiometric results show significant rollover of the P1-PB
function.” He opined that the inconsistencies found on appellant’s audiological examination
appeared functional in nature.
On June 7, 2012 OWCP referred appellant to Dr. Dennis G. Pappas, Jr., a Board-certified
otolaryngologist and neurologist, for a second opinion evaulation regarding her hearing loss. In
a July 12, 2012 report, Dr. Pappas reported inconsistent hearing studies and opined that appellant
had not sustained work-related hearing loss. Under history of injury, he related that she reported
falling off of a ladder at work. Appellant related having bilateral ringing tinnitus, that she
worked for the employing establishment for seven and one-half years and is currently retired on
disability. She also stated that she consistently wore hearing protection while working with air
tools with significant noise exposure. Dr. Pappas reviewed an audiogram performed that day
which showed bilateral moderate-to-severe hearing loss. He compared this audiogram to the
prior audiograms starting with the 2005 study. Dr. Pappas related that the 2005 audiogram was
normal, but that results from the following years varied with normal studies for 2005, 2007, and
March 2011 and abnormal studies with great variation showing moderate-to-severe hearing loss
in 2008 and February 2011. He indicated that appellant’s “[p]ure tone results are inconsistent
with speech reception thresholds at 40 to 45 decibels bilateral” and that otoacoustic emission
testing was normal on all frequencies. In concluding, Dr. Pappas noted that functional hearing
loss has to be considered as appellant related having hearing loss follow a 2007 fall from a ladder
at work. In addition, he noted that she “demonstrated a wide variation of normal hearing studies
mixed with difference degrees of hearing loss in either ear,” an otoacoustic emission study
revealed normal results with a 40 percent range on testing for discrimination scores minutes
later, and the results were inconsistent with speech and pure tone scores. An audiogram
performed on July 12, 2012 revealed the following decibel losses at 500, 1,000, 2,000 and 3,000
hertz: 50, 65, 65, and 75 for the left ear and 50, 60, 60, and 70 for the right ear. On the

2

audiogram test results, Dr. Pappas related that the functional otoacoustic emission testing was
normal bilaterally and that her prior test results were also inconsistent.
In an August 6, 2012 addendum, Dr. Pappas related that testing performed in 2005, 2007
and March 2011 was normal while testing performed in 2008 and February 2011 demonstrated
abnormal findings. He related that the results of appellant’s pure tone speech testing were
inconsistent and, thus, were unreliable. Dr. Pappas reported that her otoacoustic omissions test
for both ears was normal and that these results were inconsistent with the audiometry pure tone
results. He related that appellant’s ability to converse during her examination was inconsistent
with the discrimination results found on testing. For these, reasons, Dr. Pappas opined that
appellant had not sustained an employment-related hearing loss.
By decision dated August 17, 2012, OWCP denied appellant’s claim on the grounds that
the evidence was insufficient to establish hearing loss causally related to the identified
employment factors. In reaching this conclusion, it relied upon the report of Dr. Pappas and the
lack of any supporting evidence establishing a noise-induced hearing loss.
On August 21, 2012 appellant requested an oral hearing before an OWCP hearing
representative which was changed to a review of the written record after appellant failed to call
in at the scheduled time.
On January 22, 2013 appellant submitted a September 24, 2012 audiogram in support of
her claim.
By decision dated April 1, 2013, the hearing representative reviewed the merits of the
claim and affirmed the denial of appellant’s claim on the grounds that she failed to establish that
she sustained an injury as alleged.
On March 28, 2014 appellant’s attorney requested reconsideration and noted that a copy
of an audiogram was attached. He argued that Dr. Pappas’ opinion was insufficient to support
the denial of her claim as the report was inadequate and not based on the facts. Appellant argued
that the facts and documents in the record should outweigh a physician’s opinion. No audiogram
was submitted with this request.
By decision dated August 7, 2014, OWCP denied reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
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

3

Supra note 1. Section 8128(a) of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.

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considered by OWCP.4 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.5 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
On March 28, 2014 appellant, through counsel, disagreed with the denial of her hearing
loss claim and requested reconsideration. The threshold issue on reconsideration is whether she
submitted sufficient medical evidence to establish her claim for employment-related bilateral
hearing loss.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In her March 28, 2014 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law or advance a new and relevant legal
argument not previously considered by OWCP. Appellant’s representative argued that OWCP
should not have relied on Dr. Pappas’ opinion as inadequate, not based on the facts and the facts
and documents in the record should outweigh physician’s opinion. However, this is not a new
argument and has been thoroughly reviewed by an OWCP hearing representative in its April 1,
2013 decision. Evidence or argument that repeats or duplicates evidence previously of record
has no evidentiary value and does not constitute a basis for reopening a case.7 Consequently,
appellant was not entitled to a review of the merits of the claim based on the first and second
above-noted requirements under section 10.606(b)(3).8
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence, but appellant did not submit any new evidence in support of her request.
Consequently, appellant was not entitled to a review of the merits of the claim based on the third
above-noted requirements under section 10.606(b)(3).9
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3).

4

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
5

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

6

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
7

J.P., 58 ECAB 289 (2007); Helen E. Paglinawan, 51 ECAB 591 (2000).

8

20 C.F.R. § 10.606(b)(3)(i, ii).

9

Id. at 10.606(b)(3)(iii).

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On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds the attorney’s arguments are not
substantiated.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 7, 2014 is affirmed.
Issued: January 15, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kearny, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-896
Issued: September 17, 2007

Case Submitted on the Record

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

JURISDICTION
On February 15, 2007 appellant filed a timely appeal of the merit decision of the Office
of Workers’ Compensation Programs’ dated August 24, 2006 terminating her compensation and
medical benefits. She also filed a timely appeal of a January 5, 2007 nonmerit decision denying
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this appeal.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage-loss
compensation and medical benefits effective September 2, 2006 on the basis that she did not
have any remaining residuals causally related to her March 14, 2005 accepted employment
injury; and (2) whether the Office properly refused to reopen appellant’s case for further review
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 14, 2005 appellant, then a 55-year-old clerk, sustained injury when she was
struck by a broken postal cart which caused her to fall and injure her right knee. On May 19,

2005 the Office accepted her claim for a right knee contusion and torn medial meniscus.
Appellant stopped work on August 16, 2005. She underwent a right knee arthroscopy and partial
medial meniscectomy on August 18, 2005.
On November 18, 2005 Dr. Marc W. Urquhart, an attending Board-certified orthopedic
surgeon, noted that appellant had medial compartmental arthritis and was a candidate of medial
compartment arthroplasty. On March 12, 2006 the Office medical adviser suggested an
additional medical opinion to determine the appropriateness of the recommended surgery in
relation to appellant’s work injury of March 14, 2005. In a December 16, 2005 report,
Dr. Marc Urquhart noted that appellant continued to have knee pain with decreased swelling.
In a report dated February 6, 2006, Dr. Erica Rowe-Urquhart, an attending orthopedic
surgeon, noted that appellant was “having exquisite inflammatory sensation secondary to medial
compartment osteoarthritis.” In a report of the same date, she found that appellant was unable to
do any work and recommended physical and occupational therapy. Dr. Rowe-Urquhart noted
that appellant’s condition was related to her work. In a March 13, 2006 report, she noted that
appellant was a good candidate for a unicompartmental arthroplasty. Dr. Rowe-Urquhart noted
that she would like appellant “to have this procedure before she develops a significant varus
deformity which will preclude this minimally invasive procedure.”
On March 9, 2006 the Office referred appellant to Dr. David I. Rubinfeld, a Boardcertified orthopedic surgeon, for a second opinion. In a medical report dated March 25, 2006,
Dr. Rubinfeld diagnosed osteoarthritis in appellant’s right knee supported by examination
findings of crepitus with discomfort in the right knee. He also noted that the right knee
arthroscopy and x-ray reports were consistent with this diagnosis. Dr. Rubinfeld opined that
appellant had fully recovered from the effects of the March 14, 2005 work-related injury and was
not prevented from returning to her job by the work injury, although he did note restrictions due
to her preexisting arthritis. He opined: “The prognosis for the accepted work[-]related condition
is good and no further treatment, including surgery, is required for this condition.”
Dr. Rubinfeld further indicated that the surgical procedure proposed by appellant’s rating
physician was related to her preexisting arthritis. He concluded: “The nature of the work injury
was such that it would not cause an arthritic condition.”
In a June 19, 2006 report, Dr. Rowe-Urquhart noted that, in the past several months,
appellant experienced worsening of her right knee condition although she had been treated with
physical therapy. Appellant had increasing dependence on a cane for ambulation with significant
medial joint line pain and tenderness. Dr. Rowe-Urquhart also noted that appellant had adopted
a sedentary lifestyle which has resulted in significant weight gain. She noted appellant’s
diagnosis as right knee degenerative joint disease, medial compartment and chondosis.
Dr. Rowe-Urquhart recommended that appellant refrain from work-related activities until
definitive treatment.
The Office found a conflict in medical opinion between Dr. Rowe-Urquhart and
Dr. Rubinfeld. On June 16, 2006 the Office referred appellant to Dr. Robert Dennis, a Boardcertified orthopedic surgeon, for an impartial medical examination. The Office advised appellant
that, if she had a substantive objection to the selected physician, that she should make her
objections known. No objections were noted.

2

In a medical report dated July 6, 2006, Dr. Dennis diagnosed: (1) strain of the right knee
secondary to a fall on the cement floor; (2) twist injury to the right knee resulting in a tear of the
medial meniscus which was appropriately and timely treated; (3) status post right knee medial
meniscectomy;1 (4) magnification of symptoms; and (5) no current evidence to confirm
osteoarthritic changes of the knee and no evidence to confirm that her osteoarthritis was severe
enough to warrant consideration of a hemi-arthroplasty. He noted that appellant’s condition, not
including diagnosis of arthritic changes to the knee, was due to the fall at work. Dr. Dennis
opined that the arthritic condition was not due to the fall and that, if it had been, such aggravation
had ceased. He further noted:
“In my opinion [appellant] has fully recovered from the injuries incurred on
March 15, 2005. There were no current objective findings that relate to ongoing
or permanent residuals as related to this injury other than the arthroscopic scars.
[Appellant’s] condition has resolved. The delay in recovery is superimposed
upon the full organic tissue recovery for reasons that I do not understand nor can I
explain.”
Dr. Dennis noted that appellant could return to work full duty with no restrictions. She no longer
had a cushion to buffer her knee, but there was no indication that the condition of the medial
meniscectomy would alter her overall function on a permanent basis. Dr. Dennis stated that
appellant did not carry indications for a hemi-arthroplasty as there was no evidence of a clinical
objective basis of arthritis, a collapse of the medial joint line, an inflammation or increased
warmth about the knee or significant arthritic changes. He noted that appellant was only
56 years old and that she had not been informed about the risk and severity of a total knee joint
replacement.
On July 24, 2006 the Office issued a proposal to terminate appellant’s compensation and
medical benefits.
In a letter dated August 11, 2006, appellant responded to Dr. Dennis’ report by stating
that, when Dr. Dennis asked her to stand, she stood for approximately 30 seconds on each leg.
She stated that when Dr. Dennis pushed on her knee she was in pain and asked him to stop.
Appellant indicated that she was properly taught to use the cane with her left hand, but due to
problems with her left shoulder, she used her right hand.
On August 14, 2006 Dr. Rowe-Urquhart noted that appellant continued to have knee pain
and discomfort. She recommended that appellant have a hemi-arthroplasty, but that appellant
had undergone a course of Synvisc as per her second opinion. In a note dated August 15, 2006,
her attending physicians indicated that appellant had the following treatments for knee arthritis:
physical therapy, cortisteroid injections, activity modification, weight management and drug
therapy. Due to the failure of these therapies, the physicians recommended viscosupplement
injections.

1

Dr. Dennis noted that he did not have the full operative note from the right knee medial menisectomy or the
Polaroid film. He noted that, if these films became available, he would appreciate the opportunity to review them.

3

By decision dated August 24, 2006, the Office terminated appellant’s compensation and
medical benefits effective September 2, 2006.
On October 27, 2006 appellant requested reconsideration. She submitted a copy of the
operative report from her August 18, 2005 right knee arthroscopy and partial medial
menisectomy.
In an October 9, 2006 report, Dr. Rowe-Urquhart released appellant to return to lightduty work with restrictions. In a note of the same date, she noted that appellant continued to
have significant tenderness and pain along the lateral and medial joint line. Dr. Rowe-Urquhart
advised that appellant should continue with physical therapy. In a November 29, 2006 report,
Dr. Marc Urquhart noted that appellant continued to complain of medial-sided right knee pain.
He noted a recurrent injury on November 20, 2006 while appellant was at work when she twisted
and pivoted on her right knee and felt a sudden onset of excruciating pain in the medial aspect of
her right knee. Dr. Marc Urquhart noted that x-rays taken at Clara Maas Hospital immediately
after the injury demonstrated evidence of osteophyte formation of the medial compartment with
some joint space narrowing as well as sclerosis. Appellant also submitted the medical reports
that had previously been submitted and reports of her physical therapists.
By decision dated January 5, 2007, the Office denied reconsideration without further
merit review.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.2 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.3 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.4 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition which requires further medical treatment.5
Section 8123(a) of the Federal Employees’ Compensation Act provides that if there is a
disagreement between the physician making the examination for the Untied States and the
physician of an employee, a third physician will be appointed to make an examination.6 Where
there exists a conflict of medical opinion and the case is referred to an impartial medical
specialist for the purpose of resolving the conflict, the opinion of such specialist is entitled to
2

Curtis Hall, 45 ECAB 316 (1994).

3

Jason C. Armstrong, 40 ECAB 907 (1989).

4

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

5

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

6

5 U.S.C. § 8128(a).

4

special weight if sufficiently well rationalized and based upon a proper factual review of the
case.7
ANALYSIS -- ISSUE 1
The Office properly found that a conflict existed in the medical evidence between
appellant’s treating physicians, Dr. Marc Urquhart and Dr. Rowe-Urquhart, and the second
opinion physician, Dr. Rubinfeld, with regard to whether she had any continuing residuals and
disability related to her March 14, 2005 injury. Accordingly, the Office referred appellant to
Dr. Dennis to resolve the conflict.
In a report dated July 6, 2006, Dr. Dennis opined that appellant had fully recovered from
the injuries she sustained on March 14, 2005. He noted that appellant’s strain of her right knee
secondary to her employment injury was appropriately and timely treated, that there was
magnification of symptoms and that there was no current evidence to confirm osteoarthritic
changes of the knee. Dr. Dennis opined that appellant’s preexisting arthritic condition was not
due to the fall and that, if it had been, any aggravation had ceased. He concluded that appellant
could return to full-duty work without restrictions.
The Board finds that the Office properly relied on the impartial medical examiner’s
report in determining that appellant’s accepted employment injury had resolved. The opinion of
Dr. Dennis was sufficiently well rationalized and based upon a proper factual background. He
not only examined appellant, he reviewed his medical records. Appellant’s reports constitute the
special weight of the medical opinion evidence.
The August 14 and 15, 2006 notes of Dr. Rowe-Urquhart are insufficient to overcome the
special weight of the medical evidence as represented by Dr. Dennis as they were on one side of
the conflict Dr. Dennis resolved and thus they cannot now create another conflict.8
On appeal, appellant’s attorney raised objections to the choice of physicians for the
second opinion and impartial medical examinations. The Board notes that she was provided an
opportunity to object to the choice of the impartial medical examiner but chose not to do so.
Instead, appellant raised her objection for the first time on appeal. As she did not raise these
objections before the Office, the Board is precluded from reviewing these arguments raised for
the first time on appeal.9
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,
the Office’s regulations provide that the application for reconsideration, including all supporting
documents, must set forth arguments and contain evidence that either: (1) shows that the Office
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
7

Barry Neutach, 54 ECAB 313 (2003).

8

See Howard Y. Miyashiro, 43 ECAB 1101 (1992).

9

See 5 U.S.C. § 501.2(c).

5

not previously considered by the Office; or (3) constitutes relevant and pertinent new evidence
not previously considered by the Office.10
ANALYSIS -- ISSUE 2
The Board finds that appellant’s request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law. With
regard to the evidence submitted with her request, several of the medical reports are duplicative
of reports already in the record. The new reports by Dr. Marc Urquhart and Dr. Rowe-Urquhart
generally contain statement cumulative of reports in the record previously considered. The
Board has held that evidence that repeats or duplicates that already of record does not constitute
a basis for reopening a claim for merit review.11 The Board notes that appellant alleges that she
has a new x-ray but no such x-ray or report was in the record before the Office. Dr. Marc
Urquhart noted that appellant sustained a recurrent injury on November 20, 2006; however, this
is irrelevant to the threshold issue.
Appellant has not submitted any relevant and pertinent new evidence, advanced a legal
argument not previously considered by the Office, nor argued that the Office erroneously
interpreted a specific point of law. Thus, she has not met the criteria to have the Office reopen
her case for review on the merits.12
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective September 2, 2006 on the basis that she did not have any
remaining residuals causally related to her March 14, 2005 accepted employment injury. The
Board further finds that the Office properly refused to reopen appellant’s case for further review
of the merits of the claim pursuant to 5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.606(b)(2)(i-iii).

11

See James E. Norris, 52 ECAB 93 (2000).

12

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 5, 2007 and August 24, 2006 are affirmed.
Issued: September 17, 2007
Washington, DC

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

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

7