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

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

Docket No. 12-953
Issued: October 12, 2012

Case Submitted on the Record

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

JURISDICTION
On March 26, 2012 appellant filed a timely appeal from a February 23, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) that denied an additional schedule
award. 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 the decision.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
14 percent impairment of the left arm for which he previously received a schedule award.
FACTUAL HISTORY
On July 7, 2003 appellant, then a 39-year-old clerk, filed an occupational disease claim
alleging that his federal job duties caused a left shoulder injury. OWCP accepted left shoulder
tendinitis and impingement. On February 12, 2004 appellant underwent arthroscopic repair of a
1

5 U.S.C. §§ 8101-8193.

labral tear of the left shoulder. He returned to modified duty on January 6, 2005. On February 1,
2005 appellant was granted a schedule award for 14 percent loss of use of the left arm, for a total
of 43.68 weeks to run from January 6 to November 7, 2005. He continued to work modified
duty.
On March 18, 2011 Dr. Andre J. Fontana, a Board-certified orthopedic surgeon,
performed a second arthroscopic procedure on appellant’s left shoulder, shaving of frayed
labrum and decompression acromioplasty. Appellant was placed on the periodic compensation
rolls. He returned to full-time modified duty on July 15, 2011. In a June 10, 2011 report,
Dr. Fontana stated that appellant was at maximum medical improvement. He advised that
appellant had 10 percent impairment of his shoulder in the past and as a result of his recent
surgery, had an additional 10 percent impairment.
On November 3, 2011 appellant filed a schedule award claim. In a September 22, 2011
report, Dr. Fontana noted that appellant reported that he still had some discomfort, especially
with overhead activities. He advised that on physical examination appellant was neurovascularly
intact. As a result of appellant’s employment injury, Dr. Fontana had 10 percent impairment but
now had another five percent, or a total 15 percent impairment. On October 27, 2011 he
reiterated that appellant had a five percent increase in left shoulder impairment. Dr. Fontana
diagnosed a history of impingement syndrome and work-related injury to the left shoulder.
In a November 16, 2011 report, Dr. Howard P. Hogshead, an OWCP medical adviser
Board-certified in orthopedic surgery, stated that maximum medical improvement was reached
on October 27, 2011. He noted that in a June 10, 2011 report, Dr. Fontana stated that appellant
had an additional 10 percent impairment, but in his later reports, he found only five percent
impairment. Dr. Hogshead stated that Dr. Fontana did not explain his impairment rating in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (hereinafter A.M.A., Guides).2 He provided a worksheet with an
impairment analysis under Table 15-5, Shoulder Regional Grid and found a class 1 impairment
for functional residual loss due to impingement syndrome, with a default impairment of three
percent. Dr. Hogshead applied the net adjustment formula, finding zero adjustment. He
concluded that, as appellant had previously received a schedule award for 14 percent impairment
of the left arm and now had 3 percent impairment, he was not entitled to an additional schedule
award.
By letter dated November 23, 2011, OWCP asked that Dr. Fontana provide an
impairment rating in accordance with the sixth edition of the A.M.A., Guides. In a December 8,
2011 report, Dr. Fontana advised that maximum medical improvement was reached as of
July 11, 2011. He reported that appellant continued to experience pain and had loss of range of
motion. In accordance with Table 15-5 of the sixth edition of the A.M.A., Guides, appellant had
four percent impairment as a result of shoulder pain, muscle or tendon. Since he could only
forward flex to about 155 degrees, he had an additional one percent impairment under Table
15-34, for a total five percent impairment of the left upper extremity.

2

A.M.A., Guides (6th ed. 2008).

2

In a February 17, 2011 report, Dr. James W. Dyer, an OWCP medical adviser and Boardcertified orthopedic surgeon, reviewed the record including Dr. Fontana’s December 8, 2011
report. He advised that, since appellant had previously received a schedule award for 14 percent
impairment of the left arm, the medical evidence did not establish greater impairment than that
previously awarded.
In a February 23, 2012 decision, OWCP found that appellant was not entitled to an
additional schedule award because the medical evidence did not establish a greater impairment to
his left arm.
LEGAL PRECEDENT
The schedule award provision of FECA,3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.6
For decisions issued after May 1, 2009, the sixth edition is to be used.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).9 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
7

FECA Bulletin No. 09-03 (issued March 15, 2009).

8

A.M.A., Guides, supra note 2 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
9

Id. at 385-419.

10

Id. at 411.

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percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.11
ANALYSIS
The Board finds that appellant has not established that he is entitled to an additional
schedule award for left upper extremity impairment. He was granted a schedule award for a 14
percent impairment of the left arm on February 1, 2005. By decision dated February 23, 2012,
OWCP found that appellant did not have left arm impairment greater than 14 percent, for which
he had received a schedule award.
Dr. Fontana, an attending orthopedic surgeon, advised on December 8, 2011 that, under
Table 15-5, appellant had four percent impairment as a result of shoulder pain, muscle or tendon.
He further indicated that, since appellant could only forward flex to about 155 degrees, he had an
additional one percent impairment under Table 15-34, for a total five percent impairment of the
left upper extremity. While the sixth edition of the A.M.A., Guides provides for an impairment
rating for loss of range of motion, under section 15.7, the sixth edition states that range of motion
is to be used as a stand-alone rating when other grids refer to this section or when no other
diagnosis-based sections for the upper extremity are applicable for impairment rating of a
condition.12 Table 15-5, marks the shoulder impairment diagnosis used by Dr. Fontana,
“Muscle/Tendon,” with an asterisk. This indicates that, if motion loss is present, the shoulder
impairment may alternatively be assessed using loss of range of motion.13 Dr. Fontana noted
that appellant had four percent impairment for shoulder pain under Table 15-5 for the
Muscle/Tendon diagnosis. A review of Table 15-5, Muscle/Tendon, history of painful injury,
indicates that the maximum impairment allowed is one percent, less than the four percent
indicated by the physician.14 Dr. Fontana did not address the grade modifiers found in section
15.3 of the A.M.A., Guides or apply the Net Adjustment Formula to his impairment rating under
Table 15-5. Regarding his analysis for loss of forward shoulder flexion, a review of Table 15-34
indicates that forward flexion of 155 degrees yields three percent impairment. Dr. Fontana did
not discuss the modifiers found in Table 15-35 or Table 15-36. The three percent left upper
extremity impairment due to loss of forward flexion is more favorable to appellant than the
diagnosis-based impairment found under Table 15-5 of one percent. However, as 3 percent is
less than the 14 percent previously awarded, OWCP properly found that appellant is not entitled
to an increased schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
12

A.M.A., Guides, supra note 2 at 461.

13

Id. at 401.

14

Id.

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CONCLUSION
The Board finds that appellant has not established entitlement to a left upper extremity
schedule award greater than the 14 percent previously awarded.
ORDER
IT IS HEREBY ORDERED THAT the February 23, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 12, 2012
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 11-511
Issued: October 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 28, 2010 appellant filed a timely appeal from a September 14, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) and a November 4, 2010
nonmerit decision. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
sustained an injury in the performance of duty on January 4, 2010, as alleged; and (2) whether
OWCP properly denied appellant’s request for an oral hearing as untimely filed.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the November 4, 2010 OWCP decision and on appeal, appellant
submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time
it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On January 4, 2010 appellant, then a 47-year-old customer service representative, filed a
traumatic injury claim (Form CA-1) alleging that on January 4, 2010 she sustained a knee injury
when she was walking to work, slipped and fell on ice, attempted to get back up and then fell
again on both knees.
Appellant submitted a January 4, 2010 statement by a witness who indicated that he saw
her slip on the ice and fall at approximately 7:15 a.m. on January 4, 2010.
In a January 6, 2010 medical report, Dr. Gina Day, a Board-certified internist, reported
that appellant slipped and fell in the parking lot at work injuring both knees and the right side of
her back.
By letter dated January 25, 2010, OWCP notified appellant that the evidence submitted
was not sufficient to support her claim and requested additional factual and medical evidence. It
allotted 30 days for appellant to respond to its inquiries.
Appellant submitted a medical note by Dr. Day excusing her from work from January 22
to 30, 2010.
In a January 9, 2010 medical report, Dr. Day diagnosed a bilateral knee and lower back
injury due to a slip and fall and prescribed a lumbar and knee brace.
In a January 11, 2010 medical report, Dr. Day diagnosed chronic severe low back pain
due to a work-related injury. She indicated that appellant’s injuries included sprain/strain
injuries, with possible disc injury and instability. Dr. Day opined that a rigid lumbar brace was
imperative for appellant’s recovery as it would lessen her pain, make her more functional and aid
in the healing process by allowing additional tissue healing. It would help maintain the normal
lordosis curve which was critical for a lumbar spine injury and would help slow the progression
of appellant’s condition.
In another January 11, 2010 medical report, Dr. Day diagnosed chronic severe bilateral
knee pains due to a work-related injury. She indicated that appellant’s injuries included
sprain/strain injuries, with possible internal derangement injury and instability. Dr. Day again
explained the benefits of rigid hinged knee braces with stop pins for appellant’s recovery as they
would lessen her pain, make her more functional and aid in the healing process by allowing
additional tissue healing.
Appellant submitted a February 8, 2010 medical note by Dr. Day excusing appellant from
physical activity until February 20, 2010 and restricting her to working only half days.
By decision dated February 25, 2010, OWCP denied appellant’s claim on the basis that
the medical evidence submitted was insufficient to establish fact of injury. It found that,
although the described employment activities occurred as alleged, the medical evidence provided
no firm diagnosis and did not establish causal relationship.

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In a March 24, 2010 medical report, Dr. Day diagnosed bilateral erythema and
ecchymosis of the patella region. She indicated that appellant was status post fall at work in the
parking lot with trauma to bilateral knees and right back. Dr. Day indicated that there was
significant tenderness and swelling of both knees, left greater than right and noted limited range
of motion bilaterally. There was also significant right-sided tenderness in the lower region of the
back. Dr. Day reported that appellant returned for follow-up visits on January 14, 21
and 30, 2010. During the course of those visits, she indicated that there was gradual
improvement of the knees and back.
On March 25, 2010 appellant requested a review of the written record by an OWCP
hearing representative and submitted a narrative statement.
By decision dated June 10, 2010, OWCP set aside the case and remanded it for further
development.
On July 13, 2010 OWCP sent a request to Dr. Day, together with a statement of accepted
facts, for a supplemental report with a firm diagnosis and an opinion regarding causal
relationship between the employment incident and the claimed condition. It allotted 30 days for
a response to its inquiries.
In an August 21, 2010 supplemental report, Dr. Day reiterated her diagnoses and opined
that appellant had bilateral knee trauma and back trauma with associated back muscle spasm.
By decision dated September 14, 2010, OWCP denied appellant’s claim on the basis that
the medical evidence submitted was insufficient to establish fact of injury. It found that the
medical evidence provided no firm diagnosis and did not establish causal relationship.
By letter postmarked October 21, 2010, appellant requested an oral hearing before an
OWCP hearing representative and submitted additional evidence.
In a January 7, 2010 radiological report, Dr. Alan S. Lubitz, a radiologist, diagnosed
tricompartmental degenerative changes of the right knee with minimal degenerative changes also
noted in the left knee. He indicated that the x-ray of bilateral knees failed to demonstrate any
evidence of fracture or dislocation. In a second January 7, 2010 radiological report, Dr. Lubitz
diagnosed slight narrowing of the hip joints bilaterally. He indicated that the x-ray of the pelvis
failed to demonstrate any evidence of fracture and no destructive lesions were seen. In a third
January 7, 2010 radiological report, Dr. Lubitz diagnosed some straightening of the lumbar
lordosis, which suggested muscle spasm and mild degenerative changes with some disc space
narrowing at L4-5 and L5-S1. He indicated that the x-ray of the lumbar spine revealed no
compression fractures and the vertebral bodies showed normal alignment.
By decision dated November 4, 2010, OWCP denied appellant’s request for an oral
hearing. It found that her request was untimely because it was not made within 30 days of its
September 14, 2010 decision. OWCP further indicated that it had exercised its discretion and
further denied appellant’s request for the reason that the relevant issue of the case could be
addressed by requesting reconsideration and submitting evidence not previously considered by
OWCP.

3

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing 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 injury4 was sustained in the performance of duty, as alleged
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. 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. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury.
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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
compensable employment factors. 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.6
ANALYSIS -- ISSUE 1
OWCP has accepted that the employment incident of January 4, 2010 occurred at the
time, place and in the manner alleged. The issue is whether appellant sustained an injury which
resulted from the January 4, 2010 employment incident. The Board finds that she did not meet
her burden of proof to establish that she sustained an injury in the performance of duty on
January 4, 2010.7

3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
6

Id. See also Gary J. Watling, 52 ECAB 278 (2001).

7

See T.S., Docket No. 09-2184 (issued June 9, 2010).

4

In progress reports spanning the period January 6 through August 21, 2010, Dr. Day
reported that appellant slipped and fell in the parking lot at work injuring both knees and the
right side of her back. She indicated that appellant’s injuries included sprain/strain injuries, with
possible disc and internal derangement injuries and instability. Dr. Day opined that a rigid
lumbar brace and rigid hinged knee braces with stop pins were imperative for appellant’s
recovery. Although the Board finds that she did provide firm diagnoses, she failed to directly
address the issue of causal relationship as they did not explain how the mechanism of the
January 4, 2010 employment incident caused or aggravated appellant’s condition and
necessitated surgical intervention. Dr. Day also did not provide rationale explaining how the
conditions were so debilitating as to disable appellant for work. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.8 Lacking thorough medical rationale
on the issue of causal relationship, the reports are of limited probative value and not sufficient to
establish that appellant sustained an employment-related injury in the performance of duty on
January 4, 2010.
Similarly, Dr. Lubitz provided firm diagnoses on x-ray examination. However, due to
the diagnostic nature of his reports, he did not address causal relationship. As such, the Board
finds that they are insufficient to establish appellant’s 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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title
[relating to reconsideration], a claimant for compensation not satisfied with a decision of the
Secretary under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on [her] claim before a representative of the
Secretary.”9
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”10 The hearing request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.11 OWCP has discretion, however, to grant or

8

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

9

5 U.S.C. § 8124(b)(1).

10

20 C.F.R. § 10.615.

11

Id. at § 10.616(a).

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deny a request that is made after this 30-day period.12 In such a case, it will determine whether
to grant a discretionary hearing and, if not, will so advise the claimant with reasons.13
ANALYSIS -- ISSUE 2
Appellant had 30-calendar days from OWCP’s September 14, 2010 decision or until
October 14, 2010, to request an oral hearing before an OWCP hearing representative. Because
her request was postmarked October 21, 2010, her request was untimely. Appellant was not
entitled to an oral hearing as a matter of right under section 8124(b)(1) of FECA. Exercising its
discretion to grant an oral hearing, OWCP denied her request on the grounds that she could
equally well address any issues in her case by requesting reconsideration. Because
reconsideration exists as an alternative appeal right to address the issues raised by OWCP’s
September 14, 2010 decision, the Board finds that OWCP did not abuse its discretion in denying
appellant’s untimely request for an oral hearing.14
CONCLUSION
The Board finds that, while appellant established that the incident occurred as alleged,
she did not establish that she sustained an injury in the performance of duty on January 4, 2010,
as alleged. The Board further finds that OWCP properly denied her request for an oral hearing
as untimely filed.

12

G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

13

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

14

See Gerard F. Workinger, 56 ECAB 259 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the November 4 and September 14, 2010 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 12, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tulsa, OK, Employer
__________________________________________

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

Docket No. 15-372
Issued: May 22, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 8, 2014 appellant, through counsel, filed a timely appeal of the
November 3, 2014 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 the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty.
FACTUAL HISTORY
On January 18, 2013, appellant then a 53-year-old rural carrier, filed a Form CA-1,
traumatic injury, alleging that on November 6, 2012, while pushing a gurney full of parcels she
felt a sharp pain in her lower right knee. She stopped work on January 16, 2013.

1

5 U.S.C. §§ 8101-8193.

Appellant submitted a January 7, 2013 report from Dr. Ronald S. LaButti, an osteopath,
who noted that she had a traumatic onset of left knee pain on November 6, 2012 while walking
into the employing establishment. Dr. LaButti noted positive findings on examination of an
antalgic gait, small joint effusion of the left lower extremity, and medial joint line pain. He
noted x-rays of the left knee revealed medial subchondral fracture along the periphery of the
medial tibial plateau with some joint space loss of the patellofemoral joint on the left.
Dr. LaButti diagnosed acute traumatic onset of the left knee pain related to a fracture of the
periphery of the medial tibial plateau and patellofemoral osteoarthritis. On January 16, 2013 he
diagnosed acute atraumatic left knee pain ongoing for two months related to a subchondral
insufficiency fracture of the medial tibial plateau with underlying osteochondral lesion.
Dr. LaButti recommended double crutches nonweightbearing on the left lower extremity and
returned appellant to sedentary work. A January 10, 2013 left knee magnetic resonance imaging
(MRI) scan revealed destabilizing radial tear of the posterior root of the medial meniscus with
loss of circumferential hoop containment of the meniscus, subchondral insufficient fracture with
osteonecrosis, medial collateral ligament bursitis, bicompartmental arthrosis, advanced chondral
loss of the anterior medial tibial plateau and patella, and moderate knee effusion with synovitis
and plica.
By letter dated February 1, 2013, OWCP advised appellant of the type of evidence
needed to establish her claim, particularly requesting that she submit a physician’s reasoned
opinion addressing the relationship of her claimed condition and specific employment factors. It
also requested the employing establishment to provide comments from a knowledgeable
supervisor on the accuracy of her statements and provide witness statements from those who
witnessed the injury or had immediate knowledge of the injury.
In a February 12, 2013 statement, appellant noted that she was pushing a gurney to her
casing area and her knee “popped.” She noted finishing her mail route while in pain and
stopping for a knee brace while on her route. Appellant indicated that she did not seek medical
treatment because she believed that her left knee would resolve but it did not. She noted that her
supervisor informed her that there was no time limit for filing a claim. Appellant submitted
November 30, 2012 emergency room reports, which noted her treatment for a left foot injury.
She reported dropping a 30-pound metal object directly on her foot. An x-ray of the left foot was
negative. Dr. Daniel Feinberg, a Board-certified emergency room physician, diagnosed crush
injury of the foot. In a January 24, 2013 duty status report, Dr. LaButti diagnosed left knee pain
and noted that appellant could return to work on January 7, 2013 to a full-time sedentary
position.
Also submitted were reports from Dr. LaButti. In a January 25, 2013 attending
physician’s report, Dr. LaButti diagnosed subchondral insufficiency fracture of medial tibial
(osteochondral lesion). He checked a box “yes” that appellant’s condition was caused or
aggravated by an employment activity. Dr. LaButti returned appellant to a sedentary position.
On February 2, 2013 he noted that she could return to work with temporary restrictions and
recommended physical therapy. In a February 11, 2013 report, Dr. LaButti treated appellant for
left knee pain which began on November 6, 2012 while she was walking into the employing
establishment. He noted findings on examination and diagnosed exacerbation of patellofemoral
osteoarthritis and insufficiency fracture of the medial tibial plateau with an underlying
osteochondral lesion. Dr. LaButti returned appellant to work with restrictions. In a February 18,
2013 report, he diagnosed exacerbation of patellofemoral osteoarthritis and insufficiency fracture
2

of the medial tibial plateau with an underlying osteochondral lesion. Dr. LaButti noted that
based on appellant’s history she had an asymptomatic left knee until November 6, 2012 when
she walked into the employing establishment. He noted that his opinion and diagnoses were
based on her history, a physical examination, and radiographic findings.
In a March 8, 2013 decision, OWCP denied the claim as the evidence was insufficient to
establish the events occurred as described.
On April 2, 2013 appellant requested a review of the written record. She submitted a
March 13, 2013 report from Dr. LaButti who summarized her injury and history of treatment.
Dr. LaButti noted that appellant presented only 50 percent improved and continued to have pain
in the medial aspect of the left knee and could not fully extend her knee. He noted findings on
examination with x-rays revealing progression of the osteochondral injury to the medial tibial
plateau, sclerosis, patellofemoral osteophytes, and patellofemoral joint space loss. Dr. LaButti
diagnosed left knee pain related to osteochondral injury to the medial tibial plateau and
osteoarthritis of the patellofemoral, and medial joint compartment. In a March 18, 2013 report,
he noted that appellant had a work-related injury while walking into her place of employment.
Dr. LaButti diagnosed medial tibial plateau fracture with underlying osteochondral injury. He
diagnosed a work-related left knee injury, which occurred on November 6, 2012 osteochondral
injury of the medial tibial plateau and medial femoral condyle and exacerbation of preexisting
osteoarthritis of the patellofemoral joint. Dr. LaButti noted that given the changes on the MRI
scan and appellant’s failure to progress or improve over six months following her injury he
recommended a total left knee replacement.
In a March 18, 2013 note, Dr. LaButti provided clarification of the history of her left
sided knee pain. He noted initially dictating that appellant had onset of knee pain while walking
into her place of work. However, upon obtaining further history from appellant, Dr. LaButti
noted that she was actually at work when injured. On April 1, 2013 he diagnosed traumatic
osteochondritis desiccans with underlying osteonecrosis of the medial tibial plateau and
bicompartmental osteoarthritis. Dr. LaButti noted worsening progression of the osteochondral
injury and avascular necrosis. He diagnosed traumatic osteochondritis dissecans and worsening
avascular necrosis of the medial femoral condyle of the left knee and recommended a left knee
replacement due to severe disabling pain with daily living activities.
On April 9, 2013 Dr. LaButti performed a left total knee arthroplasty, partial lateral
patellectomy, reduction osteotomy of the proximal tibia, and diagnosed end stage osteoarthritis
of the left knee. A March 13, 2013 left knee MRI scan revealed interval development of a very
small subchondral fracture central to posterior weight bearing medial femoral condyle, stable full
thickness radial tear of the posterior root attachment of the medial meniscus with mild
subluxation of the medial meniscus, stable grade 2 cartilage loss, no ligament tear, and stable
grade four chondromalacia of the medial patellar facette.
On March 11, 2013 appellant’s supervisor, Julie Minyard, noted that, on November 6,
2013, appellant reported that during the morning her knee popped and she was having pain.
Ms. Minyard noted that at that time and on subsequent occasions appellant indicated that she did
not want to file a claim, but one month later, her physician noted that it was probably work
related, and she wished to file a claim.

3

In a decision dated July 24, 2013, an OWCP hearing representative affirmed as modified
the March 8, 2013 decision. She found that the gurney pushing incident was established, but
denied the claim because the medical evidence was insufficient to establish causal relationship.
On June 3, 2014 appellant, through counsel, requested reconsideration. She submitted a
December 11, 2013 report from Dr. M. Stephen Wilson, a Board-certified orthopedist, who noted
on November 6, 2012 that she was pushing a gurney of parcels and felt a left knee popping
sensation. Dr. Wilson noted that appellant was treated by Dr. LaButti and underwent a total left
knee replacement on April 9, 2013. He noted normal range of motion, weakness against
resistance with flexion and extension, mild laxity was exhibited on stressing the medial collateral
ligaments, tenderness to palpation over the medial, and lateral joint lines. Dr. Wilson opined that
appellant sustained an injury on November 6, 2012 to her knee due to a work-related accident
while employed as a letter carrier. He noted that she attempted to self-treat her symptoms
without improvement, but her condition worsened. Dr. Wilson noted that by the time appellant
presented to Dr. LaButti the fracture was minimally displaced and diagnostic studies revealed
osteonecrosis caused by a stress fracture. He noted that she continued to weight bear and work
which caused daily increased trauma which can result in altered blood supply to the bone and
cause progressively worsening symptoms over the two months she attempted to self-treat.
Dr. Wilson opined that the major cause of appellant’s condition was the November 6, 2012
accident and she sustained an acute injury to her left knee, superimposed on some preexisting
changes. He noted the fact that she did not seek immediate treatment more likely than not
caused a progressive increase in her condition which then resulted in osteonecrosis, secondary
collapse, resulting in a total knee replacement.
In a decision dated November 3, 2014, OWCP denied modification of the July 24, 2013
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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 filed within the applicable time limitation
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 is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or occupational disease.2
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 actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.3

2

Gary J. Watling, 52 ECAB 357 (2001).

3

T.H., 59 ECAB 388 (2008).

4

Rationalized medical opinion evidence is generally required to establish causal
relationship. 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.4
ANALYSIS
It is not disputed that, on November 6, 2012, appellant was pushing a gurney full of
parcels to a casing area. It is also established that she has been diagnosed with left knee
traumatic osteochondritis desiccans with underlying osteonecrosis of the medial tibial plateau
and bicompartmental osteoarthritis. However, appellant has not submitted sufficient medical
evidence to establish that her diagnosed conditions were caused or aggravated by this pushing
incident.
Appellant submitted reports dated January 7 and February 11, 2013 from Dr. LaButti
who noted that she had a traumatic onset of left knee pain on November 6, 2012 while walking
into the employing establishment. Dr. LaButti noted findings and diagnosed an acute atraumatic
onset of the left knee pain related to a fracture of the medial tibial plateau and also
patellofemoral osteoarthritis as confirmed by x-rays. On February 11, 2013 he treated appellant
for left knee pain which began on November 6, 2012 while she was walking into the employing
establishment. Dr. LaButti diagnosed exacerbation of patellofemoral osteoarthritis and an
insufficiency fracture of the medial tibial plateau with an underlying osteochondral lesion. In a
February 18, 2013 report, he noted diagnoses and stated that, based on appellant’s history, she
had an asymptomatic left knee until November 6, 2012 when she walked into the employing
establishment. However, Dr. LaButti’s reports did not provide an accurate history of the
November 6, 2012 injury to the extent that he indicated the injury occurred when she was
walking into the employing establishment. This account differed from the history provided by
appellant that she injured her knee at work pushing a gurney full of parcels to the casing area.5
Dr. LaButti also failed to provide a rationalized opinion explaining the causal relationship
between appellant’s left knee condition and her factors of employment.6 In a January 25, 2013
attending physician’s report, he diagnosed a subchondral insufficiency fracture of the medial
tibia and checked a box “yes” to indicate that the condition was employment related. However,
the Board has held that an opinion on causal relationship which consists only of a physician
checking a box “yes” regarding causal relationship is of little probative value. Without any
explanation or rationale for the conclusion reached, such report is insufficient to establish causal
relationship.7

4

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

5

See Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
6

See Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

5

In a March 18, 2013 note, Dr. LaButti corrected his history of the injury and noted that
initially he had reported that appellant had an onset of knee pain while walking into her place of
employment; however, he clarified that she was actually at work and walking in her place of
employment at the time of the onset of the injury. In a March 18, 2013 report, he diagnosed a
work-related left knee injury which occurred on November 6, 2012. Dr. LaButti found an
osteochondral injury of the medial tibial plateau and a medial femoral condyle and an
exacerbation of preexisting osteoarthritis of the patellofemoral joint. Although he supported
causal relationship, he did not provide sufficient medical rationale to explain his conclusion
regarding the causal relationship. Dr. LaButti did not explain how “walking in [appellant’s]
place of employment” would have caused or aggravate the diagnosed conditions or why the
osteochondral injury of the medial tibial plateau and medial femoral condyle and exacerbation of
preexisting osteoarthritis of the patellofemoral joint was not the result of nonwork-related
factors.
A December 11, 2013 report from Dr. Wilson noted that on November 6, 2012 appellant
was pushing a gurney of parcels and felt a popping sensation in her left knee. He diagnosed an
injury on November 6, 2012 to her knee on that date due to a work-related accident. Dr. Wilson
noted that appellant attempted to self-treat her symptoms without improvement. Appellant also
continued to use the knee and to work which caused increased trauma and progressively
worsening symptoms. Dr. Wilson opined that the major cause of her condition was the acute
injury to her left knee, superimposed on some preexisting changes. He noted that the fact that
appellant did not seek immediate medical treatment more likely than not caused a progressive
worsening of her condition which then resulted in osteonecrosis, secondary collapse, and a total
knee replacement. Although Dr. Wilson supported causal relationship, he did not provide
sufficient medical rationale explaining the basis of his conclusion opinion. He did not explain
how pushing a gurney of parcels would have caused or aggravated the diagnosed conditions.
Rather, Dr. Wilson did not clarify how preexisting changes of the left knee and lack of
immediate medical treatment interacted with the November 6, 2012 incident to cause her
condition and the need for a total knee replacement.
Appellant submitted a November 30, 2012 emergency room report from Dr. Feinberg
who noted her treatment for a left foot injury. She reported injuring her left foot at work when
she dropped a 30-pound metal object directly on the foot. Dr. Feinberg noted an x-ray of the left
foot was negative for fracture or dislocation and diagnosed crush injury of the foot. However,
his report that appellant dropped a 30-pound metal object directly on the foot, differs from the
history provided by her that she injured her knee pushing a gurney full of parcels to the casing
area.8
The remainder of the medical evidence, including diagnostic test reports, fails to provide
an opinion on the causal relationship between appellant’s job and her diagnosed left knee
condition. For this reason, this evidence is insufficient to meet her burden of proof.9

8

See supra note 5.

9

A.D., 58 ECAB 149 Docket No. 06-1183 (issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).

6

An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated, or aggravated by her employment is
sufficient to establish causal relationship. Causal relationships must be established by
rationalized medical opinion evidence.10 Appellant failed to submit such evidence, and OWCP
therefore properly denied her claim for compensation.
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 meet her burden of proof to establish that her
claimed conditions were causally related to her employment.
ORDER
IT IS HEREBY ORDERED THAT the November 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 22, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 06-1724
Issued: January 10, 2007

Case Submitted on the Record

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

JURISDICTION
On July 24, 2006 appellant timely appealed nonmerit decisions dated December 13,
2005, January 9 and July 11, 2006 of the Office of Workers’ Compensation Programs denying
his requests for reconsideration. The most recent merit decision of June 17, 2005 affirmed the
termination of his monetary compensation under section 8106(c)(2) of the Federal Employees’
Compensation Act. Because more than one year has elapsed between the last merit decision
dated June 17, 2005 and the filing of this appeal, the Board lacks jurisdiction to review the merits
of the case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s requests for reconsideration
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 30, 2003 appellant, then a 48-year-old letter carrier, filed a Form CA-2,
occupational disease claim, for a bilateral thumb complaint which he attributed to repetitive work

activities. The Office accepted his claim for basal joint osteoarthritis of both thumbs and paid
appropriate compensation benefits, including an April 28, 2003 right thumb surgery. Appellant
stopped working on April 28, 2003 and has not returned. He was placed on the periodic
compensation rolls. Appellant has another claim, file number 160327715, which the Office
accepted for bilateral carpal tunnel syndrome and tenosynovitis of the bilateral wrists/hands.
In a report dated December 23, 2003, Dr. Farooq Selod, a Board-certified orthopedic
surgeon and Office referral physician, opined that appellant had basal joint osteoarthritis in both
thumbs but was able to return to regular-duty work with no restrictions after three to six weeks of
rehabilitation.
On March 4, 2004 the employing establishment offered appellant a modified letter carrier
position of casing and carrying mail.1
In a March 26, 2004 report, Dr. Robert G. Ranelle, an orthopedic surgeon, noted that
appellant retired on September 2, 2003. He advised that appellant had reached maximum
medical improvement and found “no reason why appellant could not return to work.” In a
March 29, 2004 work capacity evaluation, Dr. Ranelle advised that appellant was not capable of
performing his regular letter carrier job but was able to work a modified assignment for eight
hours a day with restrictions.
On April 23, 2004 the employing establishment offered appellant a position as a modified
city carrier. The duties included: answer telephone with headset, watch the back dock, and
answer the dutch door and relate information to another employee for further assistance. The
physical requirements of the position required sitting, standing and walking intermittently within
physical restrictions. On April 29, 2004 appellant declined the April 23, 2004 job offer. He
advised that he was accepting medical retirement from the employing establishment, which was
previously approved.
On May 3, 2004 a telephone conference was conducted regarding the suitability of the
position offered. The Office verified that on March 29, 2004 Dr. Ranelle had released appellant
to return to work eight hours a day with restrictions. During the conference, appellant reiterated
his intention to retire rather than accept the modified position.
In a letter dated May 3, 2004, the Office advised appellant that the April 23, 2004
position was suitable to his work restrictions. It afforded appellant 30 days within which to
accept the position without penalty or provide reasons as to why the position was not suitable. In
a May 12, 2004 letter, appellant declined the job offered for the reason his attendance in such a
position would suffer because of his continuing problems in his arms, hands, escalating
bronchitis and health problems related to his military service. He advised the Office of his
intention to accept medical retirement. Appellant also submitted a May 12, 2004 election of
benefits form indicating that he was electing retirement benefits immediately.

1

This job offer was eventually replaced by the April 23, 2004 modified assignment.

2

In a letter dated June 2, 2004, the Office advised appellant that his reasons for declining
the modified-duty job offer were not valid. Appellant was afforded another 15 days within
which to accept the modified-duty assignment. He did not respond.
By decision dated June 17, 2004, the Office terminated appellant’s entitlement to
monetary compensation on the basis that he refused an offer of suitable employment. A June 10,
2004 election of benefits form indicated that appellant elected retirement benefits effective
June 17, 2004.
In a July 12, 2004 letter, appellant disagreed with the Office’s decision and requested an
oral argument, which was held on March 23, 2005. He submitted a June 9, 2004 letter and a
June 9, 2004 medical report from Dr. Ranelle who advised that appellant was unable to return to
work. Dr. Ranelle explained that appellant’s multiple surgeries to both of his upper extremities
left him with lost motion, sensation and strength. He opined that appellant’s arms would not
allow him to return to his usual and customary employment and that he did not think there was a
job appellant could do with his current level of function.
In an April 7, 2005 report, Dr. Ranelle summarized appellant’s medical history pertaining
to both his upper extremities and thumbs. He advised that, with any type of repetitive
movement, appellant developed pain, numbness and tingling along the course of his ulnar and
median nerves. Dr. Ranelle opined that appellant was totally disabled and that there were no
jobs he could perform without aggravating or worsening of his symptoms.
By decision dated June 17, 2005, an Office hearing representative affirmed the June 17,
2004 termination decision. The Office hearing representative found that Dr. Ranelle failed to
explain why he changed his March 26, 2004 opinion that appellant could engage in gainful
employment.
In a July 12, 2005 letter, appellant requested reconsideration of the June 17, 2005
decision. He noted that Dr. Ranelle found him not capable of performing his job.
In a July 5, 2005 report, Dr. Ranelle set forth objective findings pertaining to appellant’s
wrists, hands and elbows and stated that appellant was unable to lift heavy objects and could not
perform continuous repetitive tasks. He stated, “when you sum up the problems with this
gentleman, he has difficulty as far as pain, numbness and tingling when he attempts to use his
upper extremities. Appellant cannot perform fine motor movements and he cannot perform
repetitive movements because of these nerve problems.” He explained that his opinion on
appellant’s ability to work changed because appellant’s symptoms worsened and he regressed
clinically such that he was unable to perform those activities. Dr. Ranelle opined that appellant
was unable to seek gainful employment because he did not think appellant’s nerves were going
to improve.
By decision dated December 13, 2005, the Office denied appellant’s request for
reconsideration without reviewing the merits of the case. The Office found that Dr. Ranelle’s
opinion regarding appellant’s ability to work was not based on a review of the modified-duty
position description and, thus, was cumulative and repetitive of information already submitted.

3

In a December 17, 2005 letter, appellant requested reconsideration of the Office’s
decision. He stated that he would like to submit evidence from the Veterans Administration
which declared him unemployable. Appellant argued that the modified position involved
repetitive and fine manipulation of motor skills. He stated that answering a telephone with a
headset involved repetitively pushing of buttons with his fingers, writing messages and taking
down badge numbers, which he was not able to do. Appellant stated that answering the dutch
door involved unlocking the door each time, which was a repetitive motion using fine motor
skills. A copy of Dr. Ranelle’s July 5, 2005 letter was enclosed. No new medical evidence was
submitted.
By decision dated January 9, 2006, the Office denied appellant’s request for
reconsideration without further merit review.
In a January 16, 2006 letter, appellant requested reconsideration. In an April 3, 2006
report, Dr. Ranelle reiterated his opinion that appellant was unable to work and had been unable
to work since 2003. He stated that appellant’s physical examination revealed persistent
numbness, tingling and pain in both hands. Appellant stated that his activities were limited by
his ability to do things with his arms. Dr. Ranelle noted that, if appellant tried to use his arms
aggressively, he experienced increased pain, weakness, numbness and tingling. He indicated that
appellant was a candidate for surgeries in the future. A copy of Dr. Ranelle’s March 29, 2006
progress notes were attached, together with copies of his July 5, 2005 report.
By decision dated July 11, 2006, the Office denied appellant’s request for reconsideration
without reviewing the merits of the case.
LEGAL PRECEDENT
The Act2 provides that the Office may review an award for or against compensation upon
application by an employee who receives an adverse decision. The employee may obtain this
relief through a request to the district Office. The request, along with the supporting statements
and evidence, is called the application for reconsideration.3
To require the Office to reopen a case for merit review under 5 U.S.C. § 8128(a), the
Office’s regulations provide that the application for reconsideration 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 legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent new evidence not previously considered by the Office.4

2

5 U.S.C. § 8101 et seq.

3

20 C.F.R. § 10.605.

4

20 C.F.R. § 10.606.

4

A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meet at least one of these standards. If
reconsideration is granted, the case is reopened and is reviewed on the merits.5
ANALYSIS
With his requests for reconsideration, appellant did not submit any new relevant legal
argument, nor did he allege that the Office erroneously applied or interpreted a specific point of
law. Appellant argued that his work restrictions would not allow him to perform the activities
required by the modified-duty position. The relevant issue, however, is whether appellant
properly refused an offer of suitable work. Only medical evidence can establish that the
April 23, 2004 job offer is not medically suitable.6 Appellant’s lay opinion is not relevant to the
medical issue in this case. Consequently, he is not entitled to a review of the merits of his claim
based on the first and second requirements of section 10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant submitted medical reports by Dr. Ranelle
indicating that he could not maintain gainful employment because of problems with his upper
extremities. In a July 5, 2005 report, Dr. Ranelle stated that appellant was unable to lift heavy
objects or perform continuous repetitive tasks because of problems with his nerves when he used
his upper extremities. In an April 3, 2006 report, Dr. Ranelle stated that appellant’s upper
extremity activities were limited because increased pain, weakness, numbness and tingling
occurred when he tried to use his arms aggressively. Dr. Ranelle’s opinion that appellant is
unable to perform repetitive movements and his objective findings of increased pain, weakness,
numbness and tingling when appellant used his upper extremities were described in previous
reports of June 9, 2004 and April 7, 2005. Furthermore, Dr. Ranelle’s April 7, 2005 report
indicates that there are no jobs appellant could perform without aggravating or worsening his
symptoms. Thus, Dr. Ranelle’s additional reports are duplicative of his June 9, 2004 and
April 7, 2005 opinions previously submitted and considered by the Office. The Board has held
that the submission of evidence or argument which repeats or duplicates evidence already in the
case record does not constitute a basis for reopening a case.7 The reports do not address the issue
of appellant’s refusal of an offer of suitable work on April 23, 2004. Evidence that does not
address the particular issue involved does not constitute a basis for reopening a case.8 Therefore,
these reports do not constitute relevant and pertinent evidence not previously considered by the
Office.
Appellant did not show that the Office erroneously applied or interpreted a specific point of
law, advance a relevant legal argument not previously considered by the Office or submit
5

5 U.S.C. §§ 8101-8193, § 8128(a). The Board has found that the imposition of the one-year limitation does not
constitute an abuse of discretionary authority granted the Office under section 8128(a) of the Act. See Adell Allen
(Melvin L. Allen), 55 ECAB 390 (2004).
6

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

7

John Polito, 50 ECAB 347 (1999).

8

Ronald A. Eldridge, 53 ECAB 218 (2001).

5

pertinent new and relevant evidence not previously considered. As he did not meet any of the
necessary regulatory requirements, he is not entitled to further merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s requests for reconsideration
in its December 13, 2005, January 9 and July 11, 2006 decisions pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 11 and January 9, 2006 and December 13,
2005 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 10, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Sepulveda, CA, Employer
__________________________________________

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

Docket No. 09-1949
Issued: April 26, 2010

Case Submitted on the Record

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

JURISDICTION
On July 27, 2009 appellant, through her attorney, filed a timely appeal from
September 23, 2008 and June 24, 2009 merit decisions of the Office of Workers’ Compensation
Programs terminating compensation and medical treatment. 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 terminated appellant’s compensation
effective September 28, 2008 on the grounds that she had no further employment-related
disability; and (2) whether the Office properly terminated her authorization for medical
treatment.
FACTUAL HISTORY
On September 19, 1990 appellant, then a 50-year-old secretary, filed a claim alleging that
she sustained an injury to her low back on September 17, 1990 in the performance of duty. The

Office accepted the claim for a lumbosacral sprain and disorders of the sacrum. Appellant
worked intermittently until April 9, 1991, when she stopped and did not return.
In a report dated January 11, 2008, Dr. Ashish Sharma, an attending internist, found that
appellant was “permanently disabled due to her degenerative disc disease at multiple levels in
her back, causing severe pain and limited motion and movement.”
The Office referred appellant to Dr. Aubrey A. Swartz, a Board-certified orthopedic
surgeon, for a second opinion examination. On January 29, 2008 Dr. Swartz opined that there
were no objective findings of either lumbosacral sprain or disorders of sacrum. He listed
findings of possible symptom magnification and somatoform disorder. Dr. Swartz found that
appellant could perform sedentary work. He attributed her limitations to her age and
nonemployment-related thoracaolumbar scoliosis, multilevel degenerative arthritis disease and
psychological condition.
On March 4, 2008 the Office notified appellant of its proposed termination of her
compensation and medical benefits. On March 31, 2008 her attorney challenged the proposed
termination. Counsel submitted a December 28, 2007 report from Dr. Sharma, who related that
appellant remained disabled from her employment-related lumbosacral strain and disorders of
the sacrum.
The Office determined that a conflict in medical opinion arose between Dr. Swartz and
Dr. Sharma regarding whether appellant had any residuals of her accepted work injury. On
August 12, 2008 the Office referred her to Dr. Mark J. Rosen, a Board-certified orthopedic
surgeon, for an impartial medical examination.
On September 8, 2008 Dr. Rosen reviewed the history of injury and the medical reports
of record. On physical examination he found no objective weakness or muscle spasm and a
negative straight leg raising sign but pain to touch in the back. Dr. Rosen stated:
“[Appellant] has had persistent subjective pain since her original injury in 1990.
Her lawyer states this must be related to the industrial injury because she has such
pain. However, it is my task to determine whether or not this is reasonable.
Clearly, it is not reasonable to expect that a sprain suffered in 1990 from a slip
and fall in this patient should still be responsible for the severe disabling pain of
which she is now complaining. Given her other findings and diagnostic tests, it is
more reasonable to expect that the pain she is now suffering from in the lower
back is secondary to the severe degenerative disc disease and scoliosis present on
x-ray, these objective findings are not related to any accident.”
He related, “There are no objective findings related to the accepted condition.” Dr. Rosen found
no objective findings of fibromyalgia and that there was no basis to attribute either a diagnosis of
fibromyalgia or pain disorder to her accepted work injury. He concluded:
“[Appellant] is suffering from degenerative disease of the cervical spine. There is
no medical reason to attribute this to the September 17, 1990, injury event. The
record does not document complaints of neck pain contemporaneous to that
accident.”
2

In a work restriction evaluation, Dr. Rosen found that appellant was unable to perform
her usual employment but could work four hours with restrictions.
By decision dated September 23, 2008, the Office terminated appellant’s compensation
and medical benefits effective September 28, 2008. It found that Dr. Rosen’s report constituted
the weight of the evidence and established that she had no residuals of her accepted work injury.
On October 16, 2008 appellant requested a telephone hearing. At the hearing, held on
February 11, 2009, she asserted that the Office informed her in 1992 that it had accepted
fibromyalgia as employment related. Appellant’s attorney argued that the impartial medical
examiner did not address whether the accepted condition of disorders of the sacrum had
resolved. Counsel contended that the diagnosis of disorders of the sacrum was the same as a
diagnosis of degenerative disc disease.
By decision dated June 24, 2009, the hearing representative affirmed the September 23,
2008 termination.
On appeal appellant’s attorney asserts that the Office had a duty pursuant to 5 U.S.C.
§ 8124 to determine whether appellant sustained fibromyalgia and a psychological condition as a
consequence of her employment injury prior to terminating her benefits. Counsel also argues
that the medical evidence did not adequately address the accepted condition of disorders of the
sacrum.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.1
The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.2
Section 8123(a) 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.3 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.4

1

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

2

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

3

5 U.S.C. § 8123(a).

4

20 C.F.R. § 10.321.

3

When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.5
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained lumbosacral sprain and disorders of the
sacrum due to a September 17, 1990 employment injury. Appellant received compensation for
total disability beginning 1991. The Office determined that a conflict existed between
Dr. Sharma, appellant’s attending physician, and Dr. Swartz, an Office referral physician,
regarding whether she had any further residuals of her accepted employment injury. On
August 12, 2008 the Office referred her to Dr. Rosen for an impartial medical examination.
When the record contains a conflict in medical opinion and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.6 On September 8, 2008 Dr. Rosen reviewed the history of injury and
medical reports of record. On examination he found no muscle spasm or objective weakness.
Dr. Rosen determined that it was “not reasonable” that her lumbosacral sprain from 1990 should
cause her complaints of disabling pain. He attributed her pain to severe degenerative disc
disease and scoliosis, which he found were unrelated to her employment injury. Dr. Rosen
concluded that appellant had “no objective findings related to the accepted condition.” The
Board finds that, regarding the accepted condition of lumbosacral sprain, Dr. Rosen’s opinion is
well rationalized and based on a proper factual background. He explained that the diagnostic
studies indicated that appellant’s pain arose from degenerative disc disease and scoliosis.
Dr. Rosen’s opinion is thus entitled to the special weight accorded an impartial medical examiner
and is sufficient to meet the Office’s burden of proof to establish that appellant had no further
disability due to her accepted condition of lumbosacral sprain.7
The Board finds, however, that Dr. Rosen’s report is insufficient to establish that
appellant had no employment-related condition or disability as of September 28, 2008 due to her
accepted condition of disorders of the sacrum. On appeal appellant’s attorney contends that the
medical evidence did not adequately address her accepted condition of disorders of the sacrum.
Dr. Rosen did not specifically address whether appellant had any further residuals or disability
from the accepted condition of disorders of the sacrum. The Office accepted disorder of the
sacrum and has the burden to establish that disability related to this condition ceased prior to
terminating benefits.8 Dr. Rosen attributed appellant’s current back pain to nonemploymentrelated severe degenerative disc disease. He did not, however, provide a determination that she
5

R.C., 58 ECAB 238 (2006); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

6

Darlene R. Kennedy, 57 ECAB 414 (2006).

7

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

8

See David W. Pickett, supra note 5.

4

had no further residuals due to her sacrum disorder. Consequently, the Office did not meet its
burden of proof to terminate compensation benefits.
On appeal appellant’s attorney argues that pursuant to section 8124 the Office must issue
a decision regarding any consequential injuries prior to terminating benefits.9 The Office,
however, may terminate compensation for an accepted condition if it meets its burden of proof to
show that the condition is no longer disabling.10
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.11 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.12
ANALYSIS -- ISSUE 2
The Office met its burden of proof to terminate authorization for medical benefits for the
accepted condition of lumbosacral sprain through the opinion of Dr. Rosen, the impartial medical
examiner, who found that appellant had no residuals of this accepted condition. Dr. Rosen
provided rationale for his findings by explaining that the findings on physical examination
showed no evidence of continuing lumbosacral sprain. As his opinion is detailed and well
rationalized, it is entitled to the special weight accorded an impartial medical examiner and
establishes that appellant has no further residuals of her accepted employment injury.
The Board finds, however, that the Office failed to meet its burden to terminate medical
benefits for the accepted condition of disorders of the sacrum, as Dr. Rosen did not address
whether appellant had any residuals of this condition.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation and
authorization for medical benefits effective September 28, 2008 for the accepted condition of
lumbosacral sprain. The Board further finds that the Office improperly terminated appellant’s
compensation and authorization for medical benefits effective September 28, 2008 on the
grounds that she had no further employment-related condition or disability due to her accepted
condition of disorders of the sacrum.

9

Section 8124 provides that the Office must “make findings of facts and made an award for or against payment of
compensation….”
10

J.M., 58 ECAB 478 (2007); Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

11

Pamela K. Guesford, 53 ECAB 727 (2002).

12

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 24, 2009 and September 23, 2008 are affirmed in part and
reversed in part.
Issued: April 26, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Administrator of the Estate of J.W.,
Appellant
and
NATIONAL AERONAUTICS & SPACE
ADMINISTRATION, GODDARD SPACE
FLIGHT CENTER, Greenbelt, MD, Employer
__________________________________________

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

Docket No. 16-1728
Issued: February 2, 2017

Case Submitted on the Record

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

JURISDICTION
On August 25, 2016 appellant, through counsel, filed a timely appeal from April 27 and
August 19, 2016 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

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 found that appellant was not entitled to wage-loss
compensation for the period December 10, 2012 to February 1, 2015 because the employee did
not file a claim for disability during his lifetime.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the prior decision are hereby incorporated by reference. The facts relevant to the current
appeal will be set forth.
On September 11, 2012 the employee, then a 54-year-old satellite communications
engineer, filed a traumatic injury claim (Form CA-1) alleging that on September 4, 2012 he
broke his leg when he fell out of his wheelchair while exiting an employing establishment taxi.4
He underwent an open reduction and internal fixation of a fractured right femur on
September 10, 2012.
By decision dated November 30, 2012, OWCP denied the employee’s claim after finding
that he was not in the performance of duty at the time of the September 4, 2014 work incident. It
determined that he had deviated from his employment by stopping at a building to return library
books before reporting to work.
On November 25, 2013 the employee, through counsel, requested reconsideration. He
asserted that the incident occurred during work hours, and that the employee was on the premises
of the employing establishment renewing technical manuals related to his employment.
By decision dated February 21, 2014, OWCP denied the employee’s request to reopen his
case for further review of the merits of his claim under 5 U.S.C. § 8128(a). It found that he had
not raised an argument or submitted evidence sufficient to warrant reopening of his case for
further merit review.
The employee appealed to the Board. In a decision dated September 4, 2014, the Board
set aside the February 21, 2014 decision.5 The Board found that the employee had raised a new
legal argument not previously considered and thus remanded the case for OWCP to reopen his
case for further merit review under section 8128(a).
The employee died in February 2015.
On July 30, 2015 OWCP vacated its February 21, 2014 decision and accepted the claim
for a closed fracture of the lower end of the right femur.

3

Docket No. 14-0825 (issued September 4, 2014).

4

The employee suffered from muscular dystrophy.

5

See supra note 3.

2

Appellant filed a claim for compensation (Form CA-7) on October 23, 2015 on behalf of
the employee from December 10, 2012 to February 1, 2015.
The employing establishment, in an October 23, 2015 statement, controverted the claim
for wage-loss compensation as it was not filed by the employee within his lifetime.
By decision dated April 27, 2016, OWCP denied appellant’s claim for compensation for
the period December 10, 2012 to February 1, 2015. It found that, according to its procedures, it
could not accept a posthumous claim for disability.
On May 24, 2016 appellant, through counsel, requested reconsideration. He maintained
that the Board addressed the issue of a posthumous disability claim in Margie Smith (J.B.
Smith),6 and determined that OWCP regulations did not prohibit a claim for disability
posthumously.
By decision dated August 19, 2016, OWCP denied modification of its April 27, 2016
decision.
On appeal counsel contends that 20 C.F.R. § 10.105(d) requires that the employee file a
claim for a traumatic injury or an occupational disease claim before death but does not prohibit
the posthumous filing of a claim for disability compensation, noting that the Board specifically
addressed this matter in Margie Smith (J.B. Smith).
LEGAL PRECEDENT
OWCP’s implementing regulations provides: “If an injured employee or someone acting
on the employee’s behalf does not file a claim before the employee’s death, the right to claim
compensation for disability other than medical expenses ceases and does not survive.”7
OWCP’s procedures regarding posthumous claims provide that “[s]uch a claim may be
made by the estate or a survivor of a deceased employee for medical benefits only. A
posthumous disability claim cannot be accepted.”8
ANALYSIS
The employee filed a traumatic injury claim on September 11, 2012 alleging that he
broke his leg on September 4, 2012 in the performance of duty. OWCP initially denied the claim
but, following further development, on July 30, 2015 it accepted the claim for a closed fracture
of the lower end of the right femur.
The employee died in February 2015. On October 23, 2015 appellant, as administrator of
the estate, filed a claim for wage-loss compensation on behalf of the employee for the period
6

56 ECAB 349 (2005).

7

20 C.F.R. § 10.105(d).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.8 (March 1993).

3

December 10, 2012 to February 1, 2015. OWCP denied the claim as the employee had not filed
a claim for compensation prior to his death. It noted that its procedures provide that it could not
accept a posthumous disability claim.9
The Board previously considered the issue of whether OWCP’s regulations allowed a
posthumous claim for disability compensation. In Margie Smith (J.B. Smith),10 the employee
filed an occupational disease claim in January 2001. The employee died on April 18, 2002.
Appellant, his executrix, requested compensation for wage loss from July 1, 1998 to
April 18, 2002. OWCP denied the claim for disability compensation as it was not filed within
the employee’s lifetime. The Board noted that section 10.105(d) of OWCP’s regulations
provided that the right to claim disability ceases if a claim is not filed before the employee’s
death. It further reviewed OWCP’s regulation defining a claim as “a written assertion of an
individual’s entitlement to benefits under FECA, submitted in a manner authorized by this
part.”11 The Board concluded that as the employee filed an occupational disease claim prior to
his death, the right to claim disability compensation survived his death.12
The Board, consequently, finds that OWCP erred in failing to adjudicate appellant’s
claim for disability compensation as it was not filed prior to the employee’s death. The
employee timely filed a traumatic injury claim within his lifetime and thus the right to file a
claim for disability compensation survived his death. The case will be remanded for OWCP to
adjudicate whether appellant, on behalf of the employee’s estate, is entitled to compensation for
wage loss from December 10, 2010 to February 1, 2015.
CONCLUSION
The Board finds that OWCP improperly interpreted 20 C.F.R. § 10.105(d) in finding that
the right to disability compensation did not survive the employee’s death as he filed his traumatic
injury claim prior to his death. The case will be remanded for OWCP to determine whether the
employee’s estate is entitled to compensation for wage loss from December 10, 2010 to
February 1, 2015.

9

Id.

10

See supra note 6.

11

20 C.F.R. § 10.5(c).

12

The Board cited Ned C. Lofton (John D. Lofton), 33 ECAB 1497 at 1506 (1982) (finding a conflict in medical
opinion in a case where the employee filed a claim for compensation prior to his death).

4

ORDER
IT IS HEREBY ORDERED THAT the August 19 and April 27, 2016 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: February 2, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Z.Z., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Compton, CA, Employer
__________________________________________

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 11-835
Issued: December 1, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 15, 2011 appellant, through his representative, filed a timely appeal from an
Office of Workers’ Compensation Programs’ (OWCP) August 31, 2010 nonmerit decision
denying his request for reconsideration. As the last merit decision was issued on August 24,
2009, the Board lacks jurisdiction to review the merits of this case.1 Pursuant to the Federal
Employees’ Compensation Act (FECA)2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

For final adverse OWCP decisions issued on and after November 19, 2008, a claimant has 180 days to file an
appeal with the Board. See 20 C.F.R. § 501.3(e).”
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 23, 2008 appellant, a 57-year-old letter carrier filed an occupational disease
claim alleging that he developed employment-related stress as a result of his employer’s abusive
treatment. He alleged that he was forced to eat his lunch on a stool by a mailbox in an unsafe
location, where he was exposed to the elements; that he was often not allowed to use the
employing establishment’s restroom, but was given a special bottle so he would not have to
urinate frequently; that he was the subject of numerous disciplinary actions, the majority of
which were rescinded; that the vehicle he was required to drive was unsafe; that he was told to
go home on December 11, 2007, although he was not finished with his work; and that, although
his manager refused to allow him to attend safety meetings, he was required to affirm that he had
attended them. Appellant alleged that his supervisor threatened to have him arrested if he
reported abuse to his union representative.
By decision dated February 10, 2009, OWCP denied appellant’s claim, finding that he
had failed to establish a compensable factor of employment. Appellant made a timely request for
an oral hearing.
Appellant submitted numerous Carrier-Auxiliary Control forms requesting assistance
completing his work; documents charging appellant with use of more work hours than had been
authorized by management; a notice of a 14-day suspension dated June 1, 2009 and a reduction
of the suspension to 7 days dated June 4, 2009; forms requesting leave for 6 days between
April 24 and August 6, 2009. all of which were disapproved; and copies of grievances for
incidents which reportedly occurred on March 26 to 29, August 29 and November 13, 2008,
April 16, May 8, June 1, 9, 10, 12 and July 1, 2009, some of which were settled. He submitted
memorandums to supervisors and union stewards from April 14 through July 1, 2009 regarding
requests to have a vehicle to deliver his route, the right to use the restroom and break room, the
instruction to use a stool to take his lunch outside, suspensions Post Master Tyrone Williams had
imposed, being recorded on camera on June 9, 2009 and being made to use sick leave. In an
April 30, 2009 witness statement, a Lionel Felix confirmed that an “LLV” had a back gate which
could easily be opened without keys and that appellant had reported this on May 16, 2008, but it
had not yet been fixed. Appellant also submitted notes, reports and disability slips supporting his
claimed stress condition.
By decision dated August 24, 2009, an OWCP hearing representative affirmed the
February 10, 2009 decision, finding that appellant had not established a compensable factor of
employment.
On August 19, 2010 appellant, through his representative, submitted a request for
reconsideration. Counsel argued that the hearing representative had not given adequate weight to
the incidents which had occurred subsequent to OWCP’s February 10, 2009 decision.
In support of his reconsideration request, appellant submitted copies of the following
previously-submitted documents: “Day in Court” notices dated May 20 and 26 and June 1,
2009; copies of previously submitted letters and statements from appellant dated April 16, 18,
25, 27 and 30, May 6, 7, 8, 20, 22, 23, 28 and 30, June 7, 12, 16, 19 and 23 and July 16, 2009;
April 27, 2009 statement from Sharon Whitaker; grievance settlement dated May 20, 2009;

2

investigative interview notes dated May 20, 2009; and a May 15, 2009 precomplaint counseling
document. Appellant also submitted treating physician’s notes and reports for the period May 4,
2009 to June 17, 2010; “Day in Court” notices dated April 20, 25 and 29 and May 6, 2009; a
June 5, 2009 statement from a William King confirming that appellant was sent home on
May 30, 2009; a May 20, 2009 statement from a William Kinle regarding his own work
schedule; a July 14, 2009 inquiry from appellant regarding the status of his case; PS3996 forms
dated April 14 and 21, 2009; June 30, 2009 Equal Employment Opportunity (EEO) Commission
notification; letters from appellant dated May 26, June 2 and 11, 2009 regarding a suspension;
14-day suspension documents dated May 24, June 1 and 4, 2009; a June 26, 2009 notice of right
to file an EEO complaint; leave of absence requests; a June 15, 2009 report of hazard;
appellant’s May 29, 2009 request for investigation into his pay; and the first page of a July 14,
2009 notice of occupational disease.
By decision dated August 31, 2010, OWCP denied appellant’s reconsideration request on
the grounds that the evidence submitted did not warrant merit review.
On appeal, appellant’s representative argues that appellant submitted a timely request for
reconsideration and new evidence not previously addressed by OWCP.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3 the
evidence or argument submitted by 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.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his 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
The Board has held that the submission of evidence which does not address the particular issue
involved does not constitute a basis for reopening a case.7
ANALYSIS
As noted above, the Board does not have jurisdiction over the August 24, 2009 hearing
representative’s decision. The issue presented on appeal is whether appellant met any of the
requirements of 20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the
merits of the claim. In his August 19, 2010 application for reconsideration, appellant did not
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

3

show that OWCP erroneously applied or interpreted a specific point of law. He did not identify a
specific point of law or show that it was erroneously applied or interpreted; nor did he advance a
new and relevant legal argument. Rather, appellant merely argued generally that the hearing
representative had not given adequate weight to the incidents which had occurred subsequent to
OWCP’s February 10, 2009 decision.
The Board also finds that appellant did not submit new and relevant evidence warranting
merit review. Many of the numerous documents provided were copies of documents previously
received and reviewed by OWCP. They are therefore cumulative and duplicative in nature and
insufficient to warrant merit review.8 Letters from appellant reiterating his claims of harassment,
forms and notices relating to his EEO complaint, disciplinary letters documenting previously
described events, and witness statements confirming evidence already of record are cumulative
in nature and do not constitute relevant and pertinent new evidence not previously considered by
OWCP.9 The medical evidence submitted is irrelevant to the issue that was before the hearing
representative, namely, whether he established a compensable factor of employment. Further,
appellant has not alleged or shown how the remaining evidence submitted, including requests for
leave of absence and investigation into his pay, reports of hazard and the first page of an
occupational disease claim, could be relevant to the issue in this case. Therefore, OWCP
properly determined that this evidence did not constitute a basis for reopening the case for a
merit review.
On appeal, appellant’s representative argues that appellant submitted a timely request for
reconsideration and new evidence not previously addressed by OWCP. As noted, appellant
failed to submit new evidence that was relevant to the issue at hand. Therefore, he failed to meet
his burden of proof.
The Board finds that OWCP properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his August 19, 2010 request for reconsideration.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

8

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
9

See Susan A. Filkins, 57 ECAB 630 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the August 31, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5