United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, Hadley, MA, Employer
__________________________________________

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

Docket No. 17-0197
Issued: May 1, 2018

Case Submitted on the Record

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

JURISDICTION
On November 7, 2016 appellant filed a timely appeal from a May 12, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established permanent impairment of a scheduled
member or function of the body causally related to his accepted Lyme disease.
FACTUAL HISTORY
On June 16, 2009 appellant, then a 37-year-old biological science technician, filed an
occupational disease claim (Form CA-2) alleging that he contracted Lyme disease and experienced
various symptoms such as headaches, fatigue, muscle weakness, joint pain, and arthritis due to
1

5 U.S.C. § 8101 et seq.

factors of his federal employment. He explained that, on June 5, 2008, he was performing bird
surveys and later that evening pulled two ticks off of his waist. Appellant indicated that in the
weeks leading up to July 1, 2008 he became more fatigued and weak. He reported that he first
became aware of his condition and its relation to his federal employment on July 1, 2008.
Appellant noted that the last date of exposure to his work environment was on July 7, 2009.
OWCP accepted appellant’s claim for Lyme disease; tick-borne fever.
Appellant stopped work effective October 11, 2009 when his temporary appointment
expired. On September 19, 2011 he filed a claim for wage-loss compensation (Form CA-7) for
the period October 12, 2009 to September 10, 2011 and received disability compensation.
In February 2012, appellant began full-time private sector employment delivering auto
parts to various auto shops.
On May 20, 2013 appellant filed a claim for a schedule award (Form CA-7). In a statement
dated September 3, 2013, he indicated that he was submitting documentation in support of his
schedule award claim. Appellant also related that he was enclosing additional documentation to
include hypothyroidism as an accepted condition.
OWCP referred appellant, along with a statement of accepted facts (SOAF) and the medical
record, to Dr. Michael Silverman, a Board-certified internist specializing in infectious diseases,
for a second opinion evaluation to determine whether appellant had a ratable permanent
impairment pursuant to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (A.M.A., Guides)2 due to his accepted Lyme disease
condition.
In an August 29, 2013 second opinion report, Dr. Silverman provided an accurate history
of appellant’s injury and noted that appellant’s claim was accepted for tick bite and Lyme disease.
He related that appellant began to experience symptoms of extreme fatigue, headaches, and muscle
weakness and sought medical treatment on July 14, 2008. Dr. Silverman reviewed appellant’s
medical records and described the medical treatment appellant received. He noted that initial
testing for Lyme disease was negative. Dr. Silverman further noted that the initial enzyme-linked
immunosorbent response (ELISA) test from July 2008 was negative and the Western blot test
except for one band, were both positive. He pointed out that March 8, 2011 laboratory test results
were also negative for Lyme serology and Western blot. Upon physical examination,
Dr. Silverman reported normal head, ear, eyes, nose, and throat examination, normal extremity
examination with full range of motion, and normal neurological examination. He indicated that
laboratory test results were also within normal limits with respect to all types of Lyme and
associated tick-related organisms.
Dr. Silverman opined that appellant had a completely normal physical examination. He
recommended that appellant undergo a functional capacity evaluation (FCE) to determine his
clinical status. Dr. Silverman pointed out that appellant had multiple subjective complaints, which
were not supported by objective findings on both laboratory studies and physical examination.
2

A.M.A., Guides (6th ed. 2009).

2

Regarding whether appellant sustained an impairment rating pursuant to the A.M.A., Guides,
Dr. Silverman opined that there was no evidence that appellant had any permanent impairment
which could be rated for loss of function due to Lyme disease. He pointed out that appellant had
worked full time for AutoZone since February 2012 with physically heavy duties and appeared to
have no significant limitation or restriction to this type of work. Dr. Silverman reported that there
was no clear-cut evidence that appellant had any evidence of Lyme disease or chronic Lyme
disease. He concluded that appellant did not have any current medical condition or disability as a
result of the accepted employment injury.
On September 3, 2013 appellant underwent an FCE by Amanda Gallagher, a physical
therapist. Ms. Gallagher indicated that appellant’s symptoms of chronic fatigue due to his Lyme
disease illness may cause him to be unable to work full time. She explained that because of the
unpredictable nature of appellant’s Lyme disease illness, it was difficult to test during an FCE.
Ms. Gallagher concluded that appellant could seek work in a position which would not require
floor level lifting greater than 40 pounds, and no above waist lifting greater than 45 pounds. She
also noted that appellant should be allowed to sit briefly to rest after prolonged standing (greater
than two hours).
On November 2, 2013 Dr. Lawrence A. Manning, a Board-certified orthopedic surgeon
and OWCP medical adviser, reviewed the evidence of record, including the SOAF,
Dr. Silverman’s August 29, 2013 second opinion report, and the September 3, 2013 FCE. He
noted that appellant’s claim was accepted for Lyme disease. Dr. Manning pointed out that
Dr. Silverman’s August 29, 2013 examination showed no evidence of abnormal joint,
musculoskeletal, central nervous system, or other abnormalities and was an essentially normal
physical examination. He opined that based on the medical records he reviewed there was no
objective evidence of permanent impairment of the bilateral upper or lower extremities.
OWCP denied appellant’s schedule award claim in a decision dated December 16, 2013.
It found that the medical evidence of record did not establish that appellant sustained any
permanent impairment to a scheduled member or function of the body that was causally related to
his accepted employment injury. OWCP found that the reports of Dr. Silverman, the second
opinion examiner, and Dr. Manning, OWCP’s medical adviser, demonstrated that appellant did
not have any ratable permanent impairment pursuant to the A.M.A., Guides and was not entitled
to a schedule award.
On January 13, 2014 appellant requested reconsideration and submitted a position
description for a biological science technician.
By decision dated January 15, 2014, OWCP denied appellant’s reconsideration request. It
found that appellant had not submitted evidence to warrant further merit review under 5 U.S.C.
§ 8128(a). OWCP explained that the evidence appellant submitted was irrelevant or immaterial to
the issue of appellant’s schedule award claim.
On May 9, 2014 appellant again requested reconsideration. In statements dated January 6
and March 1, 2014, he requested a second FCE that would measure the impairment of his physical
abilities with respect to his former employment duties. Appellant noted that the FCE conducted
on September 3, 2013 did not consider the level of delayed fatigue and muscle weakness after the

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examination was finished. He alleged that permanent impairment of his thyroid gland, as a result
of Lyme disease, should be a basis for a schedule award. Appellant further inquired about when
he could expect a decision on adding hypothyroidism as an accepted condition.
Dr. Silverman provided an addendum report dated April 23, 2014. He related that, upon
review of appellant’s medical records, he found no indication that appellant had hypothyroidism.
Dr. Silverman noted that appellant had normal thyroid tests. He also explained that there was no
clear-cut evidence that hypothyroidism was the result of or secondary to a history of Lyme disease.
Dr. Silverman concluded that there was no additional condition that should be added to appellant’s
claim.
Appellant provided another statement dated July 6, 2014. He alleged that he had not yet
received a formal decision on adding hypothyroidism as an accepted condition. Appellant also
asserted that Dr. Silverman was not qualified to make any conclusions regarding his thyroid issues
because he was not an endocrinologist. He pointed out that in January and February 2009 he tested
positive for many laboratory test and diagnostic examination results, which were indicative of
thyroiditis or thyroid disease. Appellant alleged that his Lyme disease, which went undiagnosed
and untreated for seven months, caused him to develop thyroiditis and an overactive hyperthyroid.
He asserted that his thyroid had remained in a hypothyroid state, for which he took medication to
control.
Along with his statements, appellant also provided medical reports dated from 2008 and
2009. He submitted various laboratory test results and diagnostic scan reports from 2008 to 2009,
which were indicative of thyroid disease. Appellant also provided several reports from Dr. Levin
dated March 11 to July 16, 2009. In a March 11, 2009 statement, Dr. Levin reported that appellant
had shown a strongly positive Lyme Dot Antigen test. He related that it was conceivable that
appellant’s thyroiditis was a manifestation of Lyme disease.
By decision dated July 18, 2014, OWCP denied appellant’s request to expand the
acceptance of his claim to include hypothyroidism or thyroiditis. It found that the medical
evidence of record did not establish that appellant’s diagnosed thyroid condition resulted from his
employment injury. OWCP noted that the medical reports from appellant failed to establish a
causal relationship between appellant’s accepted Lyme disease injury and his thyroid condition.
On December 16, 2014 appellant requested reconsideration of the December 16, 2013
decision. In support of his request, appellant submitted various diagnostic examination and
laboratory test results dated August 10, 2003 to April 9, 2014. He resubmitted a position
description for biological science technician and Mr. McCauley’s December 10, 2012 statement
regarding appellant’s employment duties. Appellant also provided an August 6, 2008 medical
report from Shawna Biowc, a nurse practitioner regarding treatment for his complaints of body
aches, joint stiffness, or sleep problems. He resubmitted Dr. Levin’s July 16, 2009 report and
Dr. Armenti-Kapros’ April 1, 2009 report.
Dr. Anastasia Cleary, a family practitioner, treated appellant and provided an attending
physician’s report (Form CA-20) dated December 2, 2014. She related appellant’s complaints of
fatigue and joint pain and noted a diagnosis of chronic Lyme disease. Dr. Cleary checked a box
marked “yes” indicating that appellant’s condition was caused or aggravated by factors of his

4

federal employment. She described the treatment appellant received and opined that he was totally
disabled. In a December 4, 2014 work capacity evaluation form, Dr. Cleary noted that appellant’s
claim was accepted for tick-borne fever and Lyme disease. She indicated that appellant was unable
to perform his job.
By decision dated March 12, 2015, OWCP denied modification of its December 16, 2013
decision. It found that the medical evidence submitted with appellant’s reconsideration request
failed to support a measurable impairment of a scheduled member or function of the body pursuant
to the A.M.A., Guides.
On February 16, 2016 appellant again requested reconsideration. In a July 25, 2015
statement, he indicated that he was requesting reconsideration based upon a May 24, 2015
impairment evaluation performed by Dr. Christopher R. Brigham, Board-certified in family and
occupational medicine. Appellant explained that he was also submitting unbiased information
concerning Lyme disease, which he believed supported his previous complaints of residual
symptoms from Lyme disease. He reported that approximately 10 to 20 percent of patients with
Lyme disease have symptoms that last months to years after treatment. Appellant noted that these
symptoms could include muscle and joint pains, cognitive difficulties, sleep disturbances, or
fatigue. He reported that this condition is referred to as post-treatment Lyme disease syndrome
(PTLDS) and that the exact cause of PTLDS was not yet known. Appellant indicated that most
individuals with Lyme disease respond well to antibiotics and had a full recovery, but a small
percentage of individuals may continue to experience recurring symptoms.
In a May 24, 2015 report, Dr. Brigham related that appellant worked for the employing
establishment and noticed two tick bites around his waist in June 2008. He reported that appellant
complained of overall muscle pains, episodic pain upper back pain, base of neck, and upper arm
posterior shoulder pain. Dr. Brigham also noted that appellant complained of sensation
“weakness,” particularly in the legs. He reported normal range of motion of appellant’s cervical
spine, shoulders, elbows, wrists, lumbar spine, hips, knees, and ankles. Dr. Brigham indicated that
appellant complained of weakness and pain in his thighs after completing the progressive inertia
lifting test.
In a May 24, 2015 impairment rating assessment report, Dr. Brigham related appellant’s
complaints of multiple systems and functional difficulties, which he attributed to Lyme disease.
He indicated that subjective complaints were more marked than objective. Dr. Brigham reported
an MMI date of April 27, 2015. He explained that under the A.M.A., Guides there was no ratable
impairment for Lyme disease, but there may be impairment for organ system dysfunction
secondary to the disease. Dr. Brigham related that, although appellant had musculoskeletal
symptoms, he did not have ratable impairment per the musculoskeletal chapters. He opined that
appellant may have impairment based on the subjective report of pain according to Chapter 3 and
outlined the steps for assessment. Dr. Brigham related that, based on appellant’s Pain Disability
Questionnaire (PDQ) score of 87, he would be classified as “moderate.” He explained that
according to Table 3-1 Pain-Related impairment and whole person impairment based on PDQ
appellant had one percent whole person impairment. Dr. Brigham noted that, if appellant was
rated for thyroid abnormalities under Table 10-6, it was “probable” that appellant would be
assigned class 1 for one percent impairment rating. He also indicated that there could be a ratable
impairment for psychiatric symptoms, including depression, but there was inadequate information

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to assess this rating. Dr. Brigham calculated that the one percent whole person impairment for
pain and the additional one percent whole person impairment, if rated for thyroid disease, would
total two percent whole person impairment. He reported that a conservative approach, “including
raising questions about the appropriateness of rating pain and questioning the relationship between
his Lyme disease and thyroid disease, would result in the conclusion there is no ratable
impairment.” Dr. Brigham concluded that, if provided with “the benefit of the doubt,” there was
two percent whole person permanent impairment.
By decision dated May 12, 2016, OWCP denied modification of its March 12, 2015
decision. It found that the medical evidence of record was insufficient to support a permanent
impairment of a scheduled member or function of the body under the A.M.A., Guides. OWCP
determined that Dr. Brigham did not provide a definitive conclusion that appellant sustained a
permanent impairment of a scheduled member of his body due to his accepted Lyme disease
condition.
LEGAL PRECEDENT
A claimant seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim.3 With respect to a schedule award, it is the claimant’s burden
of proof to establish a permanent impairment of the scheduled member as a result of his or her
employment injury.4 A claimant may seek an increased schedule award if the evidence establishes
that he or she sustained an increased impairment causally related to an employment injury.5 The
medical evidence must include a detailed description of the permanent impairment.6
The schedule award provisions of FECA7 and its implementing regulations8 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has

3

John W. Montoya, 54 ECAB 306 (2003).

4

Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

5

See Rose V. Ford, 55 ECAB 449 (2004).

6

See Vanessa Young, 55 ECAB 575 (2004).

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

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concurred in such adoption.9 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2009.10
No schedule award is payable for a member, function, or organ of the body that is not
specified in FECA or the implementing regulations.11 The list of scheduled members includes the
eye, arm, hand, fingers, leg, foot, and toes.12 Additionally, FECA specifically provides for
compensation for loss of hearing and loss of vision.13 By authority granted under FECA, the
Secretary of Labor expanded the list of scheduled members to include the breast, kidney, larynx,
lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina, and skin.14
In 1966, amendments to FECA modified the schedule award provision to provide for an
award for permanent impairment of a member of the body covered by the schedule regardless of
whether the cause of the impairment originated in a scheduled or nonscheduled member.15
ANALYSIS
OWCP accepted appellant’s claim for tick bite and Lyme disease. On May 20, 2013
appellant filed a claim for a schedule award. OWCP denied his schedule award claim, finding that
the medical evidence of record failed to establish that he sustained any permanent impairment to
a scheduled member of the body causally related to the accepted injury. The Board finds that
appellant has not established entitlement to a schedule award because the medical evidence of
record does not support any permanent impairment of a scheduled member or function of the body
due to his accepted Lyme disease condition.
In support of his schedule award claim, appellant submitted a May 24, 2015 impairment
rating report by Dr. Brigham. He provided examination findings of normal range of motion of
appellant’s cervical spine, shoulders, elbows, wrists, lumbar spine, hips, knees, and ankles.
Dr. Brigham reviewed appellant’s history and reported an MMI date of April 27, 2015. He
explained that under the A.M.A., Guides there was no ratable impairment for Lyme disease, but
there may be impairment for organ system dysfunction secondary to the disease. Dr. Brigham
indicated that according to the A.M.A., Guides, Table 3-1, Pain-Related impairment, appellant
would be rated as one percent whole person impairment. Although he found a one percent whole
person impairment due to pain, FECA, as noted, does not allow schedule awards for impairment
9

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.806.6.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
11

W.C., 59 ECAB 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

12

5 U.S.C. § 8107(c).

13

Id.

14

20 C.F.R. § 10.404(b).

15
See T.O., Docket No. 16-1328 (issued March 13, 2017); O.H., Docket No. 15-1692 (issued January 4, 2016); see
also George E. Williams, 44 ECAB 530 (1993).

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of the body as a whole.16 Accordingly, Dr. Brigham’s whole person impairment rating based on
pain-related impairment does not comport with OWCP’s procedures and is insufficient to establish
any ratable impairment.17
Dr. Brigham also noted that under Table 10-6, it was “probable” that appellant would be
assigned class 1, resulting in one percent whole person impairment rating, if appellant was rated
for thyroid abnormalities, as previously noted schedule awards are not allowed for impairment of
the body as a whole.18 The Board also notes that as OWCP has not accepted appellant’s condition
for a thyroid condition, he is not entitled to a schedule award for this condition.19
OWCP referred appellant to Dr. Silverman, a Board-certified internist, to determine the
nature and extent of any employment-related impairment. OWCP’s medical adviser, Dr. Manning,
reviewed the August 29, 2013 second opinion report of Dr. Silverman, who found normal head,
ear, eyes, nose, and throat examination, normal extremity examination with full range of motion,
and normal neurological examination. He further reported that laboratory test results were within
normal limits with respect to all types of Lyme and associated tick-related organisms.
Dr. Silverman also pointed out that March 8, 2011 laboratory test results were also negative for
Lyme serology and Western blot. He related that appellant had multiple subjective complaints,
which were not supported by objective findings on both laboratory studies and physical
examination. Regarding whether appellant sustained an impairment rating pursuant to the sixth
edition of the A.M.A., Guides, Dr. Silverman opined that there was no evidence that appellant had
any need for impairment calculated for Lyme disease or any loss of function due to Lyme disease.
He concluded that appellant did not have any current impairment or disability as a result of the
employment injury.
In a November 2, 2013 report, Dr. Manning, an OWCP medical adviser, reviewed
appellant’s case, including the SOAF and Dr. Silverman’s August 29, 2013 second opinion report.
He noted that appellant’s claim was accepted for Lyme disease. Dr. Manning pointed out that
Dr. Silverman’s August 29, 2013 examination showed no evidence of abnormal joint,
musculoskeletal, central nervous system, or other abnormalities and was an essentially normal
physical examination. He also pointed out that a September 3, 2013 FCE showed that appellant
had high physical effort over liability. Dr. Manning opined that the medical records showed no
objective evidence of permanent impairment of the bilateral upper or lower extremities. The Board
finds that OWCP’s medical adviser, Dr. Manning, properly reviewed the medical record and found
no basis for rating impairment to a scheduled member of the body.20 He noted that there was no
objective medical evidence of impairment of the bilateral upper or lower extremities resulting from
16

J.G., Docket No. 12-0995 (issued October 22, 2012).

17

See H.L., Docket No. 12-0510 (issued August 15, 2012).

18

Supra note 14.

19

Id.; see also T.M., Docket No. 15-1477 (issued October 22, 2015).

20

The Board notes that it is appropriate for an OWCP medical adviser to review the clinical findings of the
examining physician to determine the permanent impairment. Federal (FECA) Procedure Manual, Part 3 -- Medical,
OWCP Directed Medical Examinations, Chapter 3.200.4 (October 1990); Tommy R. Martin, 56 ECAB 273 (2005).

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appellant’s accepted Lyme disease condition and that, therefore, there was no ratable impairment
of a scheduled member under the sixth edition of the A.M.A., Guides.
The additional medical reports, diagnostic scan reports, and laboratory test results are also
insufficient to establish appellant’s entitlement to a schedule award for impairment of a scheduled
body member as none of the physicians reached any conclusion with regard to permanent
impairment.21 Appellant has submitted no other current medical evidence in conformance with
the sixth edition of the A.M.A., Guides addressing how he has a ratable impairment of a scheduled
body member. Accordingly, the weight of the medical opinion evidence is accorded to
Dr. Manning’s November 2, 2013 report in which he interpreted the clinical findings of and
Dr. Silverman’s August 29, 2013 second opinion report.
On appeal appellant asserts that he continues to suffer from permanent effects of Lyme
disease. He contends that Dr. Brigham determined that he was entitled to a schedule award for a
two percent whole person impairment. As explained above, however, Dr. Brigham’s report does
not comport with the A.M.A., Guides and OWCP’s procedures and is, therefore, insufficient to
establish the extent of any ratable permanent impairment as a result of appellant’s accepted Lyme
disease condition.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing a progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish entitlement to
permanent impairment of a scheduled member or function of the body causally related to his
accepted Lyme disease condition.

21

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the May 12, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 1, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
MEDICAL CENTER, San Diego, CA, Employer
__________________________________________

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

Docket No. 12-169
Issued: May 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 7, 2011 appellant filed a timely appeal from an October 25, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration without further merit review. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this decision.
Because more than 180 days elapsed from July 6, 2001, the date of the most recent OWCP merit
decision, to the filing of this appeal, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the basis that it was untimely filed and did not establish clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 7, 2001 appellant, then a 47-year-old accounts payable clerk, filed a Form CA-1
for traumatic injury, alleging that she sustained right carpal tunnel syndrome on May 2, 2001.
She did not incur any lost time from work.2 The employing establishment controverted the claim
on the grounds that appellant complained of symptoms intermittently for two years.
OWCP informed appellant in a May 30, 2001 letter that additional evidence was needed
to establish her claim. It gave her 30 days to submit a factual statement detailing the May 2,
2001 work event and a medical report from a qualified physician explaining how this purported
incident caused or contributed to a diagnosed condition. OWCP did not receive a response.
By decision dated July 6, 2001, OWCP denied appellant’s claim, finding that she failed
to submit evidence demonstrating that she experienced an employment incident on May 2, 2001
as alleged.
Appellant requested reconsideration on September 14, 2011 and argued that her
physicians both diagnosed bilateral carpal tunnel syndrome and opined that the condition
resulted from repetitive typing on the job. She was scheduled for surgery in November 2011.
By decision dated October 25, 2011, OWCP denied appellant’s request for
reconsideration, finding that it was not filed within one year of the July 6, 2001 decision and did
not establish clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.3 This discretionary authority, however, is subject to certain restrictions.
Section 10.607(a) provides that a request for reconsideration must be filed within one year of the
date of OWCP’s decision for which review is sought.4 The Board has found that the imposition
of this one-year filing limitation does not constitute an abuse of discretion.5
OWCP may not deny a reconsideration request solely on the grounds that it was not
timely filed. When a claimant’s application for review is not timely filed, it must nevertheless
undertake a limited review to determine whether it establishes clear evidence of error. If an
application demonstrates clear evidence of error, OWCP will reopen the case for merit review.6

2

Appellant retired effective October 1, 2006.

3

See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

4

D.O., Docket No. 08-1057 (issued June 23, 2009); W.G., Docket No. 08-2340 (issued June 22, 2009).

5

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (“The term ‘clear evidence of
error’ is intended to represent a difficult standard.”).

2

To establish clear evidence of error, a claimant must submit evidence that is relevant to
the issue that was decided by OWCP,7 is positive, precise, and explicit, and manifests on its face
that OWCP committed an error.8 The evidence must be of sufficient probative value to shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to establish clear evidence of error. It is not enough merely to
show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has established clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.9
ANALYSIS
The Board finds that appellant filed an untimely request for reconsideration.
merit decision in this case was issued on July 6, 2001. On September 14, 2011 over
later appellant filed an application to reopen this decision for further merit review.
more than one year passed from July 6, 2001 to September 14, 2011, OWCP
determined that her reconsideration request was not timely filed.

The last
10 years
Because
properly

The Board also finds that appellant’s untimely request failed to demonstrate clear
evidence of error. By decision dated July 6, 2001, OWCP denied her traumatic injury claim,
citing that the case record did not contain any evidence showing that she experienced an
employment incident on May 2, 2001 as alleged. Appellant thereafter requested reconsideration
and asserted that she sustained bilateral carpal tunnel syndrome due to repetitive typing on the
job. As noted, the question of whether a claimant has established clear evidence of error entails
a limited review of how the evidence submitted with the reconsideration request bears on the
evidence previously of record. Here, while appellant specifically addressed mechanism of
injury,10 the underlying issue of OWCP’s July 6, 2001 merit decision, her statement did not
manifest on its face that OWCP erred with regard to the earlier case record. As noted, it is not
enough merely to show that the evidence could be construed so as to produce a contrary
conclusion. Since no substantial question was raised as to the correctness of the July 6, 2001
decision, OWCP properly determined that she failed to establish clear evidence of error.
Appellant raises several contentions on appeal implicating the merits of her case. The
Board, however, only has jurisdiction to consider whether her untimely request for

7

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

8

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

9

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

10

The Board points out that appellant’s recent account specified that her condition developed over a period of
time rather than during a single workday or shift, which was more consistent with a claim for occupational disease.
See 20 C.F.R. § 10.5(q) (ee).

3

reconsideration established clear evidence of error. As discussed, the evidence accompanying
appellant’s application did not manifest on its face that OWCP committed an error.11
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the basis that it was untimely filed and did not establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the October 25, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: May 2, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

The Board notes that appellant furnished additional evidence following issuance of the October 25, 2011
decision and on appeal. However, the Board lacks jurisdiction to review evidence for the first time on appeal. 20
C.F.R. § 501.2(c).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, ROCKAWAY PARK
POST OFFICE, Rockaway Park, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1282
Issued: April 2, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 12, 2018 appellant, through counsel, filed a timely appeal from a May 7, 2018
merit decision 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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish total
disability from work commencing October 28, 2016, causally related to her accepted
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.

September 12, 2016 employment injury; and (2) whether appellant has met her burden of proof to
establish that the acceptance of her claim should be expanded to include additional bilateral knee
conditions causally related to her accepted September 12, 2016 employment injury.
FACTUAL HISTORY
On September 12, 2016 appellant, then a 53-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on that day she bruised both of her knees when she slipped,
tripped, and fell while in the performance of duty. She stopped work on the date of injury and has
not returned to work.
In an accompanying narrative statement, appellant reported that on September 12, 2016
she was carrying a tray of mail in her arms and walking with a mail cart to her route when she fell
on both knees onto the floor. She was unable to break her fall with the tray of mail in her arms.
Appellant submitted a September 12, 2016 attending physician’s report (Form CA-20)
from Dr. Sadhana S. Gupta, a Board-certified family medicine physician, who diagnosed bilateral
knee contusion as a result of the employment incident on that day. In a disability certificate dated
September 12, 2016, Dr. Gupta advised that appellant could return to light-duty work on
September 19, 2016 due to her injury.
Also, on September 12, 2016 Dr. Robert Wilkins, an internist, reported that an x-ray of the
left knee revealed mild degenerative change and no acute fracture.
In a September 20, 2016 Form CA-20 report, Dr. Bruce R. Ross, an attending orthopedic
surgeon, reported a September 12, 2016 date of injury when appellant tripped over a wheel of a
pushcart and fell injuring both knees. He diagnosed derangement of the right and left knee and
checked a box marked “yes” indicating that the condition was caused or aggravated by an
employment activity. Dr. Ross opined that appellant was totally disabled from September 13,
2016 to an unknown date.
On September 30, 2016 OWCP accepted appellant’s claim for contusion of the right and
left knee.
OWCP received a September 12, 2016 form progress report from Dr. Ross who diagnosed:
pain in unspecified knee; unspecified fall, initial encounter; contusion of unspecified knee, initial
encounter; and bradycardia unspecified.
In a narrative report dated September 20, 2016, Dr. Ross noted appellant’s history of injury
and provided findings on physical and x-ray examination. He also noted that she had preexisting
osteoarthritis of the left greater than right knee, which had been aggravated by her fall. Dr. Ross
could not ascertain whether appellant had a meniscal tear or ligamentous injury which he indicated
would be seen on a magnetic resonance imaging (MRI) scan.
Dr. Ross, in medical notes dated October 11 and November 1, 2016, diagnosed posttraumatic bilateral knee chondromalacia patella. He opined that appellant was totally
unemployable.

2

In duty status reports (Form CA-17) dated October 11 and November 1, 2016, Dr. Ross
again diagnosed derangement of the left and right knee due to appellant’s September 12, 2016
employment injury. He noted that she was unable to perform her regular work duties.
Appellant filed claims for compensation (Form CA-7) for leave without pay (LWOP) for
total disability for the period October 28 through December 23, 2016. The employing
establishment indicated that she had received continuation of pay from September 13 to
October 27, 2016.
OWCP received a December 6, 2016 medical note in which Dr. Ross diagnosed bilateral
knee internal derangement with osteoarthritis. Dr. Ross noted that appellant reported that she was
currently working, but was in pain. He found that she was employable.
OWCP, by development letter dated January 5, 2017, advised appellant of the deficiencies
in her claim. It requested that she submit additional factual and medical information to support
her claim for compensation commencing October 28, 2016. OWCP noted that the evidence of
record indicated that appellant stopped work on September 12, 2016 and had not returned. It
requested that she verify this information.
OWCP received a January 5, 2017 medical note from Dr. Ross. Dr. Ross continued to
diagnose bilateral knee internal derangement with degenerative changes and opined that appellant
was unemployable.
Appellant filed additional claims for compensation for LWOP for the period December 24,
2016 through February 3, 2017.
In a January 19, 2017 right knee MRI scan report, Dr. Sheldon P. Felt, a Board-certified
radiologist, provided an impression of an area of meniscal degeneration within the posterior horn
of the medial and lateral menisci, tearing of the posteromedial meniscal root, joint effusion, and
degenerative changes.
In a work capacity evaluation (Form OWCP-5c) dated January 24, 2017, Dr. Ross advised
that appellant was unable to perform her usual job without restrictions, but she could work eight
hours a day with certain restrictions for an unknown period.
In a medical note dated January 24, 2017, Dr. Ross reviewed the results of a right knee
MRI scan and diagnosed a meniscus tear. He opined that this condition could have developed
during appellant’s slip and fall at work. Dr. Ross again indicated that she was unemployable.
By decision dated February 17, 2017, OWCP denied appellant’s claim for total disability
compensation for the period commencing October 28, 2016 and continuing. It found that the
medical evidence of record was insufficient to establish that she sustained additional medical
conditions and was totally disabled as a result of her accepted September 12, 2016 employment
injury.
On March 9, 2017 the employing establishment informed OWCP that it had offered
appellant a job based on her medical restrictions and that she responded by submitting new medical
documentation.
3

In medical notes dated February 2 through July 27, 2017, Dr. Ross reiterated his diagnosis
of right knee torn meniscus and diagnosed post-traumatic bilateral knee osteoarthritis. He
continued to maintain that appellant remained disabled and unemployable. Dr. Ross noted that
she could not return to work as a letter carrier because the position required excessive ambulation.
He recommended a job that allowed appellant to stand and sit for short periods of time. Dr. Ross
determined that she had reached maximum medical improvement (MMI) as of April 20, 2017, the
date of his examination.
Dr. Felt reported on February 15, 2017 that a left knee MRI scan revealed areas of meniscal
degeneration within the posterior horn of the medial meniscus and anterior and posterior horns of
the lateral meniscus, joint effusion, and degenerative changes. He also reported heterogeneous
marrow appearance within the medial and lateral femoral condyles without evidence of edema,
which may be secondary to prior trauma and was otherwise chronic in nature.
By letter dated October 6, 2017, OWCP referred appellant, together with a statement of
accepted facts (SOAF), the medical record, and a set of questions, to Dr. Leon Sultan, an
orthopedic surgeon, for a second opinion to determine her work capacity and whether she had
residuals of her work-related conditions.
OWCP received medical notes dated September 7 and October 12, 2017 from Dr. Ross in
which he continued to diagnose post-traumatic bilateral knee osteoarthritis and find that appellant
remained disabled and unemployable.
In an October 23, 2017 report, Dr. Sultan reviewed the SOAF and medical record. He
reported findings on physical examination of the bilateral knees. There was no localized swelling,
deformity, or discoloration. The bilateral patellae was mobile. Stress testing revealed intact
collateral and cruciate ligaments bilaterally. Distal circumference was measured at 17-1/2 inches
in both thighs. The circumference of both knees measured at 16 inches. There were no complaints
on palpation over either the medial or lateral joint line. Range of motion testing of each knee
revealed full extension at 0 degrees, (normal was 0 degrees), and flexion to 30 degrees (normal
was 145 degrees) with limitation of flexion secondary to voluntary resistance. While in the supine
position, provocative testing of both knees revealed negative spring and McMurray tests
bilaterally. In the sitting position, both knees had full extension at 0 degrees, (normal was 0
degrees), and ﬂexion to 120 degrees (normal was 145 degrees) with limitation of ﬂexion secondary
to the end of the examination table. There was no patellofemoral crepitus with motion testing and
a patellofemoral compression test was negative on both sides. Appellant was observed ambulating
without external support. Her walking pattern was steady without visible signs of antalgia.
Appellant was able to semi-squat without impairment.
Dr. Sultan responded to OWCP’s questions by indicating that appellant’s accepted bilateral
knee contusion had clinically resolved except for voluntary resistance to motion testing as noted
above while in the supine position. He further indicated that her claim should not be expanded to
include additional medical conditions. Dr. Sultan noted that appellant required no further medical
treatment. He related that she had reached MMI regarding her accepted bilateral knee condition.
Appellant had no nonwork-related conditions that rendered her disabled or partially disabled.
Dr. Sultan concluded that no work capacity evaluation or work hardening program was warranted
and she could work eight hours a day without permanent restrictions.

4

In Form CA-17 reports dated October 12 and November 14, 2017, Dr. Ross again
diagnosed bilateral knee derangement due to appellant’s September 12, 2016 employment injury
and opined that she was unable to perform her regular work duties.
In a November 14, 2017 medical note, Dr. Ross reiterated his diagnosis of post-traumatic
bilateral knee osteoarthritis.
By development letter dated January 10, 2018, OWCP notified appellant that Dr. Ross had
failed to provide a rationalized medical opinion explaining how her diagnosed knee condition had
been caused or aggravated by the accepted September 12, 2016 employment injury. It requested
that she obtain and submit a rationalized medical report regarding causal relationship. OWCP
afforded appellant 30 days to respond.
OWCP received a December 21, 2017 medical note from Dr. Ross. Dr. Ross continued to
diagnosis post-traumatic bilateral knee osteoarthritis with degenerative tear of the medial meniscus
and opined that appellant was unable to perform her required work duties and remained
unemployable.
On February 6, 2018 appellant, through counsel, requested reconsideration of the
February 17, 2017 decision. Counsel contended that the medical evidence of record demonstrated
that she had sustained additional injuries and conditions causally related to her accepted
September 12, 2017 employment injury. He further contended that the medical evidence
established that appellant was disabled commencing October 28, 2016 and continuing due to the
accepted employment injury.
Dr. Ross, in medical notes dated January 30 and March 1, 2018, again diagnosed posttraumatic bilateral knee osteoarthritis with degenerative tear of the medial meniscus and indicated
that appellant was unable to perform her required work duties and remained unemployable.
By decision dated May 7, 2018, OWCP reviewed the merits of appellant’s claim, but
denied modification of the February 17, 2017 decision finding that there was no rationalized
medical opinion evidence to establish the claim for total disability compensation or to expand the
acceptance of the claim to include additional conditions.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.4
Whether a particular injury causes an employee to be disabled from employment and the
duration of that disability are medical issues which must be proved by a preponderance of the

3

Id.

4

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

reliable, probative, and substantial medical evidence.5 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work.
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.6 Furthermore, whether a particular injury
causes an employee to be disabled from employment and the duration of that disability are medical
issues which must be proven by a preponderance of the reliable, probative, and substantial medical
evidence.7 The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish total disability
commencing October 28, 2016 causally related to her accepted September 12, 2016 employment
injury.
In a September 20, 2016 Form CA-20 report, Dr. Ross, appellant’s attending physician,
diagnosed derangement of the right and left knee and checked a box marked “yes” indicating that
the condition was caused or aggravated by the accepted September 12, 2016 employment injury.
He found that she was totally disabled commencing September 13, 2016 to an unknown date. The
Board has held that when a physician’s opinion on causal relationship consists only of a checkmark
on a form, without more by way of medical rationale, the opinion is of diminished probative value.9
Dr. Ross has not provided the necessary medical rationale explaining how falling on a route on
September 12, 2016 caused or aggravated appellant’s diagnosed condition and resulted in her total
disability from work. Therefore, the Board finds that his September 20, 2016 report is insufficient
to establish her burden of proof.
Similarly, Dr. Ross’ October 11 and November 1, 2016 and October 12 and November 14,
2017 Form CA-17 duty status reports are insufficient to establish appellant’s burden of proof. He
diagnosed derangement of the left and right knee due to the accepted September 12, 2016
employment injury. Dr. Ross opined that appellant was unable to perform her regular work duties.
5

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

6

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

7

T.O., Docket No. 17-1177 (issued November 2, 2018); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

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

9
See J.L., Docket No. 18-0698 (issued November 5, 2018); R.A., Docket No. 17-1472 (issued December 6, 2017);
Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

6

The Board notes, however, that derangement of the left and right knee had not been accepted as
causally related to the September 12, 2016 employment injury. As Dr. Ross failed to offer the
necessary rationale for his opinion that appellant was disabled as of October 11, 2016 due to her
accepted bilateral knee contusion, his opinion is of limited probative value.10
In medical notes dated October 11, 2016 to March 1, 2018, Dr. Ross diagnosed posttraumatic bilateral knee chondromalacia patella, bilateral knee internal derangement with
osteoarthritis, and right knee meniscus tear. He opined that appellant was totally disabled from
work. However, Dr. Ross failed to offer a medical opinion addressing whether the diagnosed
conditions and resultant disability during the claimed period were causally related to the accepted
September 12, 2016 employment injury. Medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.11
Dr. Ross’ December 6, 2016 medical note diagnosed bilateral knee internal derangement
with osteoarthritis and found that appellant could work. He further found, in a January 24, 2017
work capacity evaluation, that while she could not perform her usual job without restriction, she
could work eight hours a day with restrictions. The Board finds that Dr. Ross’ medical note and
work capacity evaluation are insufficient to establish appellant’s burden of proof as he did not
opine that she was totally disabled from work due to the accepted employment injuries.
OWCP referred appellant to Dr. Sultan for a second opinion evaluation. In an October 23,
2017 report, Dr. Sultan opined that she had no residuals of the accepted employment-related
condition, and no additional employment-related conditions and disability. He found that
appellant could work eight hours a day without restrictions. Dr. Sultan reviewed the factual and
medical history, and provided essentially normal findings on physical examination with the
exception of limited range of motion of the knees in a sitting position.12 His report is based on a
proper factual and medical background and establishes that appellant had no employment-related
residuals, additional conditions, or total disability during the claimed period.
As appellant did not submit sufficiently rationalized medical opinion evidence to establish
that she was disabled from work for the period commencing October 28, 2016 due to the accepted
bilateral knee contusion, she has not met her burden of proof to establish that the claimed disability
was employment related. She was thus not entitled to wage-loss compensation for the period
claimed.13
On appeal counsel contends that the medical evidence of record is sufficient to establish
that appellant was totally disabled commencing October 28, 2016 due to the accepted
September 12, 2016 employment injury. As noted above, the medical evidence of record does not

10

E.G., Docket No. 17-1955 (issued September 10, 2018).

11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

12

See R.V., Docket No. 18-0552 (issued November 5, 2018).

13

Supra note 11.

7

establish that appellant was totally disabled from work during the claimed period. She has,
therefore, not met her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.14 To establish causal relationship between the condition as well
as any attendant disability claimed and the employment injury, an employee must submit
rationalized medical evidence based on a complete medical and factual background supporting
causal relationship.15
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.16 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.17
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.18
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expand to include additional bilateral knee conditions causally
related to the accepted September 12, 2016 employment injury.
Dr. Ross’ September 20, 2016 Form CA-20 report diagnosed derangement of the right and
left knee and he checked a box marked “yes” indicating that the condition was caused or
aggravated by the accepted September 12, 2016 employment incident. However, he did not
explain how the September 12, 2016 incident caused or aggravated appellant’s bilateral knee
condition. Reports which support causal relationship with a checkmark are insufficient to establish
the claim, as the Board has held that without further explanation or rationale, a checked box is not
sufficient to establish causation.19 Thus, the Board finds that Dr. Ross’ report is insufficient to
establish appellant’s claim.

14

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

15

M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

16

D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004).

17

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (2005).

18

V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000).

19

See supra note 8.

8

In a September 20, 2016 narrative report, Dr. Ross attributed an aggravation of appellant’s
preexisting bilateral knee osteoarthritis to her employment-related fall on September 12, 2016. In
Form CA-17 reports dated October 11 and November 1, 2016 and October 12 and November 14,
2017, he diagnosed bilateral knee derangement due to the accepted work injury and opined that
she was totally disabled from work. The Board has found that rationalized medical opinion
evidence must relate specific employment factors identified by the claimant to the claimant’s
condition, with medical rationale explaining how the employment factors physiologically caused
the diagnosed condition.20 The Board has also found that a mere conclusion without the necessary
rationale is insufficient to meet a claimant’s burden of proof.21 Dr. Ross did not explain how
appellant’s accepted condition of bilateral knee contusion aggravated her preexisting bilateral knee
osteoarthritis, and caused her bilateral knee derangement, and disability.22 Thus, his reports are
insufficient to establish her burden of proof.
Dr. Ross’ January 24, 2017 medical note which found that appellant’s right knee meniscus
tear “could have” resulted from her employment-related fall is speculative in nature and, thus, of
no probative value and does not provide the rationale needed to establish causal relation.23 His
remaining reports addressed her bilateral knee conditions and disability from work, but did not
offer a medical opinion finding that the diagnosed conditions were causally related to the accepted
work injury.24 The Board finds, therefore, that Dr. Ross’ reports are insufficient to establish
appellant’s burden of proof.
While Dr. Wilkins’ September 12, 2016 x-ray report did offer diagnoses of bilateral knee
conditions, the Board has held that diagnostic studies lack probative value as they do not address
whether the employment injury caused any of the diagnosed conditions.25
Dr. Felt’s February 15, 2017 left knee MRI scan report which diagnosed, among other
things, heterogeneous marrow appearance within the medial and lateral femoral condyles without
evidence of edema that may be secondary to prior trauma and was otherwise chronic in nature is
speculative and, thus, of no probative value and does not provide the rationale needed to establish
causal relation.26 Further, while he provided right knee diagnoses in his January 19, 2017 MRI
scan report, he did not offer an opinion addressing whether the accepted employment injury caused
any of the additional diagnosed conditions.27 The Board finds that Dr. Felt’s reports are
insufficient to establish appellant’s burden of proof.
20

See P.J., Docket No. 17-0570 (issued October 26, 2017).

21

Id.

22

Id.

23

A.L., Docket No. 14-1285 (issued November 4, 2014).

24

See C.N., Docket No. 17-1321 (issued January 16, 2018).

25

See J.S., Docket No. 17-1039 (issued October 6, 2017).

26

See supra note 24.

27

See supra note 26.

9

Dr. Sultan, OWCP’s referral physician, submitted an October 23, 2017 report. He
reviewed the SOAF and medical record, and discussed examination findings. Dr. Sultan found no
residuals of the accepted employment-related condition, no additional employment-related
conditions, and no disability. He opined that appellant could work eight hours a day with no
restrictions. Dr. Sultan related that his physical examination revealed essentially normal findings
with the exception of limited range of motion of the knees in a sitting position. The Board finds
that as his opinion was based on a proper factual and medical history, and was supported by
medical rationale, it is sufficient to establish that appellant sustained no residuals, additional
condition, or disability due to the accepted September 12, 2016 employment injury.28
On appeal counsel contends that the medical evidence of record is sufficient to establish
that appellant sustained additional bilateral knee conditions due to the accepted September 12,
2016 employment injury. As noted above, none of the medical evidence of record contains a
sufficiently rationalized medical opinion to establish that she sustained additional bilateral knee
conditions that were caused, aggravated, or a consequence of the accepted September 12, 2016
employment injury. Appellant has, therefore, not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
from work commencing October 28, 2016 causally related to her accepted employment injury.
The Board also finds that she has not met her burden of proof to establish that the acceptance of
her claim should be expanded to include additional bilateral knee conditions causally related to
her accepted September 12, 2016 employment injury.

28

See L.B., Docket No. 18-0560 (issued August 20, 2018).

10

ORDER
IT IS HEREBY ORDERED THAT the May 7, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 2, 2019
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0303
Issued: May 1, 2017

Case Submitted on the Record

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

JURISDICTION
On November 28, 2016 appellant, through counsel, filed a timely appeal from a
November 1, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from the last merit decision dated January 27, 2016 to
the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction 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 appellant abandoned her request for a hearing before an OWCP
hearing representative.
On appeal counsel contends that neither he nor appellant were provided with a hearing
notice.
FACTUAL HISTORY
OWCP accepted that on September 8, 2004 appellant, then a 42-year-old carrier
technician, sustained a lumbosacral strain and herniated lumbar disc at L4-L5 and L5-S1 while
delivering mail on her route at work. Appellant returned to full-time modified-duty work on
May 18, 2007.
Appellant stopped work on December 1, 2010 because the employing establishment had
withdrawn her modified-duty positon on that date due to the National Reassessment Process.
OWCP paid compensation for total disability commencing on that date.3
Appellant returned to work in a modified position, following a period of total disability,
effective December 1, 2011.
On January 20, 2015 OWCP accepted appellant’s claim for a recurrence of total disability
effective November 12, 2014. It paid disability compensation for lost hours of work from
November 12 to 20, 2014.
On December 10, 2015 appellant claimed 120 hours of wage-loss compensation from
November 16 to December 4, 2015.
In a January 27, 2016 decision, OWCP denied appellant’s claim for a recurrence of total
disability from November 16 to December 4, 2015.
In a February 1, 2016 letter, appellant, through counsel, requested a telephone hearing
with an OWCP hearing representative.
By letter dated September 8, 2016, OWCP notified appellant that a hearing would be held
on October 12, 2016 at 2:00 p.m. Eastern Standard Time (EST). It instructed her to call the
provided toll-free number shortly before the scheduled hearing time and enter in a pass code
when prompted. A copy of the letter was mailed to appellant at her address of record and to
counsel at his address of record.
On October 12, 2016 appellant and counsel failed to participate in the telephone hearing.

3

In a June 21, 2012 decision, OWCP found that appellant received an overpayment of compensation in the
amount of $7,442.36 because she returned to work on December 1, 2011, but received compensation through
February 11, 2012. It found that she was at fault in creating the overpayment.

2

By decision dated November 1, 2016, an OWCP hearing representative found that
appellant had abandoned her request for an oral hearing. She found that appellant received
written notification of the hearing 30 days in advance, but failed to appear. The hearing
representative further determined that nothing in the record established that appellant contacted,
or attempted to contact OWCP before or after the scheduled hearing to explain her failure to
appear. She concluded that appellant had abandoned her hearing request. A copy of the
November 1, 2016 decision was mailed to appellant’s address of record and to counsel at his
address of record.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.4 Unless
otherwise directed in writing by the claims examiner, an OWCP hearing representative will mail
a notice of the time and place of the hearing to the claimant and any representative at least 30
days before the scheduled date.5 OWCP has the burden of proving that it mailed notice of a
scheduled hearing to a claimant.6
A hearing before OWCP’s Branch of Hearings and Review can be considered abandoned
only under very limited circumstances.7 With respect to abandonment of hearing requests,
Chapter 2.1601.6(g) of OWCP’s procedures provides in relevant part that failure of the claimant
to appear at the scheduled hearing, failure to request a postponement, and failure to request in
writing within 10 days after the date set for the hearing that another hearing be scheduled shall
constitute abandonment of the request for a hearing. Under these circumstances, the Branch of
Hearings and Review will issue a formal decision finding that the claimant has abandoned his or
her request for a hearing and return the case to the district office.8
ANALYSIS
The Board finds that OWCP properly determined that appellant had abandoned her
request for a telephonic hearing.
On appeal counsel contends that neither he nor appellant were made aware of the hearing.
The record establishes that on September 8, 2016, in response to appellant’s timely
request for an oral hearing, OWCP mailed to appellant and counsel, at their addresses of record,
4

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

5

20 C.F.R. § 10.617(b).

6

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

7

Claudia J. Whitten, 52 ECAB 483 (2001).

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter
2.1601.6(g) (October 2011); see also 20 C.F.R. § 10.622(f).

3

a notice of the telephonic hearing. The notice provided that the requested hearing was scheduled
to be held on October 12, 2016 at 2:00 p.m. EST. The Board has held, in the absence of
evidence to the contrary, a letter properly addressed and mailed in the due course of business is
presumed to have arrived at the mailing address in due course. This is known as the mailbox
rule.9 The Board finds that the properly addressed notice was mailed more than 30 days prior to
the scheduled hearing date. It provided a toll-free number and a pass code to use at the time of
the hearing. Appellant did not request a postponement, failed to call in at the scheduled hearing,
and failed to provide any notification for such failure to OWCP within 10 days of the scheduled
date of the hearing. As she did not appear and did not comply with OWCP’s requirements
regarding requesting postponement and/or rescheduling within the allotted time, the Board finds
that OWCP properly determined that she had abandoned her hearing request.
CONCLUSION
The Board finds that appellant abandoned her request for a telephonic hearing before an
OWCP hearing representative.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2017
Washington, DC

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

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

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

9

See R.M., Docket No. 14-1512 (issued October 15, 2014).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF THE AIR FORCE, SHAW
AIR FORCE BASE, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1024
Issued: March 12, 2020

Case Submitted on the Record

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

JURISDICTION
On April 23, 2018 appellant, through counsel, filed a timely appeal from a December 13,
2017 merit decision 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.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the December 13, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s request for
authorization of implant neuroelectrodes, a spine generator, and a neurostimulator.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 26, 2012 appellant, then a 47-year-old high voltage electrician, filed a traumatic
injury claim (Form CA-1) alleging that on July 25, 2012 he slipped and fell on a bucket cover
injuring his tail bone while in the performance of duty. He stopped work on July 25, 2012 and
returned to full-time limited-duty employment on August 1, 2012. OWCP accepted the claim for
a contusion and sprain of the sacrum, and a contusion and sprain of the coccyx. It subsequently
expanded acceptance of the claim to include a back contusion, a buttock contusion, an aggravation
of degeneration of a lumbar intervertebral disc, other specified disorder of the coccyx, an
aggravation of lumbosacral radiculitis, and an aggravation of lumbosacral spondylosis without
myelopathy.
An electromyogram (EMG) dated December 9, 2015 revealed active chronic right S1
radiculopathy.
On January 19, 2016 Dr. Michael T. Warrick, a Board-certified anesthesiologist, evaluated
appellant for continued lower back pain and numbness radiating down the right leg. He noted that
the EMG had confirmed S1 radiculopathy. Dr. Warrick diagnosed lumbar radiculopathy, lumbar
spondylosis, and chronic pain syndrome. He opined that appellant had chronic lumbar and leg
pain without a surgically correctable lesion. Dr. Warrick recommended neurostimulation for longterm pain relief and functional restoration.
In a medical authorization record dated January 27, 2016, Dr. Warrick requested
authorization for neuroelectrodes and neurostimulation implantation.
On January 27, 2016 OWCP notified Dr. Warrick that his request for authorization of the
neuroelectrodes and neurostimulation implantation could not be approved at that time. It indicated
that the evidence then of record was insufficient to authorize the proposed surgery because the
requested treatment did not appear to be medically necessary for and/or causally related to the
accepted conditions.
OWCP requested that a district medical adviser (DMA) address whether the requested
surgical authorization for neuroelectrodes and neurostimulation implantation was warranted and
necessitated by the accepted conditions.
In a February 3, 2016 report, Dr. Nizar Souayah, a Board-certified neurologist serving as
a DMA, reviewed the medical evidence of record and opined that neuroelectrodes and
4

Docket No. 13-0164 (issued March 28, 2013) (the Board affirmed the denial of the claim, which was ultimately
accepted).

2

neurostimulation implantation was not medically necessary. He referenced the “Medical
Treatment Utilization Schedule” which recommended spinal cord stimulators for patients where
less invasive procedures had failed or were contraindicated for conditions. Dr. Souayah also
referenced state workers’ compensation guidelines which recommended a spinal cord stimulator
(SCS) for those with failed back syndrome or persistent severe disabling back pain despite
conventional nonsurgical treatments. He noted that a thorough psychological evaluation must be
performed prior to such a procedure. Dr. Souayah opined that there was no documentation that
appellant had any of the above indications for a SCS. He related that, “There is no evidence of
failed previous surgery, radiculopathy, or true neuropathic pain. There is no documentation of the
outcome of the lumbar facet injection performed on December 2, 2016. There is no clear evidence
of failure of more conservative therapies, including physical therapy and pain medications with
good compliance.”
On February 16, 2016 OWCP notified Dr. Warrick that his request for authorization of the
neuroelectrodes and neurostimulation implantation could not be approved at that time. It indicated
that the evidence was insufficient to authorize the proposed surgery because the requested
treatment did not appear to be medically necessary for and/or causally related to the accepted
conditions. OWCP provided Dr. Warrick with a copy of the DMA’s report and requested that he
review and submit additional medical documentation.
In a report dated March 2, 2016, Dr. Warrick provided additional information in support
of his request for authorization for a SCS trial. He noted that appellant had sustained a work injury
on July 25, 2012 when he fell five feet down onto metal. Since that time appellant had chronic
back pain and progressive right leg pain. His condition was conservatively managed for over two
years using oral medications and injections which provided marginal relief. Dr. Warrick
diagnosed lumbar radiculopathy and chronic pain syndrome. He indicated that neurodiagnostic
tests had confirmed chronic irreversible S1 nerve damage in his back affecting his right leg.
Dr. Warrick advised that a SCS trial was an effective treatment for chronic nerve pain from
radiculopathy. He opined that this treatment modality would provide substantial relief of pain
beyond current treatment and restore appellant’s ability to work with reduced restrictions.
On March 17, 2016 OWCP requested that a DMA address whether the requested surgery
authorization for neuroelectrodes and neurostimulation implantation was warranted and
necessitated by the accepted conditions. It provided Dr. Warrick’s report dated March 2, 2016 for
review.
In an April 22, 2016 report, DMA Dr. Souayah noted that there was no clear documentation
that appellant had exhausted all conservative therapies, including a trial of pain medication,
without improvement. Additionally, he advised that there was no evidence that a successful
temporary trial of a SCS had been attempted, noting that an indication for approval of stimulator
implantation was a temporary trial demonstrating relief from pain by 50 percent, functional
improvement, and reduced use of medication. Dr. Souayah further noted that there was no
documentation that appellant had received psychological clearance for the SCS implantation.
On May 9, 2016 Dr. Warrick performed the SCS trial. He diagnosed lumbar radiculitis,
disorder of the coccyx, lumbosacral spondylosis without myelopathy, lumbago, chronic pain
syndrome, lumbar radiculopathy, and degenerative joint disease of the spine. Dr. Warrick noted
findings of back pain, difficulty walking, numbness, and tingling.

3

In a May 16, 2016 report, Dr. Warrick indicated that appellant had received the SCS trial
on May 9, 2016 with an improvement in back pain. He noted appellant took Hydrocodone which
provided good relief and he was in full compliance. Dr. Warrick diagnosed lumbar radiculitis,
disorder of the coccyx, lumbosacral spondylosis without myelopathy, lumbago, chronic pain
syndrome, lumbar radiculopathy, and degenerative joint disease of the spine. He advised that
appellant had over 75 percent relief with the SCS trial and recommended a permanent SCS implant.
On June 8, 2016 OWCP notified appellant that his request for authorization of the
neuroelectrodes and neurostimulation implantation could not be approved at that time. It indicated
that the evidence was insufficient to authorize the proposed surgery because the requested
treatment did not appear to be medically necessary for and/or causally related to the accepted
conditions. OWCP noted that, on April 22, 2016, the DMA had reviewed the claim and found that
he had not shown a successful SCS trial, an adequate trial with pain management, or psychological
clearance. It indicated that no further action would be taken on his request.
In a medical authorization record dated June 8, 2016, Dr. Warrick requested authorization
for neuroelectrodes and neurostimulator implantation.
On June 16, 2016 Dr. Warrick noted that he had treated appellant since 2012. He indicated
that a SCS trial in May 2016 was successful, but that he was unable to permanently implant a SCS
because of a lack of authorization.
A July 18, 20135 memorandum from Dr. Bryan J. Funke, a flight surgeon Board-certified
in occupational medicine, discussed appellant’s history of a fall at work from a bucket lift truck
on July 25, 2012 and subsequent treatment for sacrococcygeal contusions, chronic low back,
tailbone pain, radicular pain, and paresthesia. He noted that a neurosurgeon had found that
appellant was not a surgical candidate and had referred him for pain management. Dr. Funke
opined that Dr. Warrick had exhausted all conservative measures by performing 10 lumbar
interventions including epidural and facet injections, medial branch blocks, and radio frequency
rhizotomies without lasting relief. He noted that the trial SCS implantation had provided good
relief and functional improvement. Dr. Funke advised that appellant continued to experience low
back and coccyx pain, numbness, and tingling radiating from his buttocks to his right leg in a S1
distribution, and was taking one to three tablets of Hydrocodone daily for pain. He opined that his
physicians had exhausted all conservative treatment and recommended that OWCP approve the
requested surgery.
On July 27, 2016 Dr. Warrick evaluated appellant for recurrent bilateral lumbosacral pain
with radiation and numbness down both legs and into both feet. He noted that appellant had
undergone over 10 lumbar interventions, including epidurals, facet injections, medial branch
blocks, and rhizotomies without long-term relief. Dr. Warrick advised that appellant had engaged
in physical therapy and home exercises, modified his work duties, and received chronic opioid
therapy that had not improved his function sufficiently even with compliance. He again indicated
that appellant was a good candidate for a SCS, noting that he had reported improvement of over
60 percent in pain relief and improved function with a trial of spinal cord stimulation.
By decision dated October 28, 2016, OWCP denied appellant’s request for authorization
for implant neuroelectrodes, a spine generator, and a neurostimulator as the evidence of record did
5

The date of the report appears to be a typographical error and should be July 18, 2016.

4

not support that this procedure was medically necessary to address the effects of the work-related
injury.
On November 7, 2016 appellant requested an oral hearing before an OWCP hearing
representative which was held on June 15, 2017.
In a report dated January 31, 2017, Dr. Warrick noted that appellant had received bilateral
L3-S1 facet injections on October 5, 2016 with more than 50 percent relief in symptoms. He
diagnosed spondylosis of lumbosacral region without myelopathy or radiculopathy and performed
lumbar fact injections at L3-4, L4-5, and L5-S1.
In a July 18, 2017 report, Dr. Warrick disagreed with Dr. Souayah’s opinion regarding the
medical necessity of implantation of a SCS for appellant’s chronic pain. He asserted that the DMA
had contradicted himself when he found that there was no evidence of lumbar radiculopathy in
appellant’s medical records, but noted that appellant had been diagnosed with chronic S1
radiculopathy by EMG performed December 9, 2015. Dr. Warrick further asserted that
Dr. Souayah had found that there was no documentation showing that conservative treatment had
failed as appellant had been complaint with medication and had undergone lumbar facet injections
with only modest relief. He noted that Dr. Souayah had not treated appellant, who he found to be
someone who “pushes himself to perform even with pain.” Dr. Warrick opined that appellant was
a good candidate for SCS implantation, noting that the SCS trial had been effective in reducing
pain and improving function. He asserted that he had “no other option to improve pain and
functionality” and that he was trying to stay productive despite “what would for many people be
debilitating pain.”
By decision dated August 21, 2017, OWCP’s hearing representative affirmed the
October 28, 2016 denial of appellant’s request for authorization of implant electrodes, a spine
generator, and a neurostimulator.
On August 30, 2017 appellant, through counsel, requested reconsideration of the
August 21, 2017 decision and submitted reports from Dr. Warrick dated April 20, 2016 and
July 18, 2017, which were previously of record.
By decision dated December 13, 2017, OWCP denied modification of the August 21, 2017
decision.
LEGAL PRECEDENT
Section 8103(a) of FECA6 provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.7 In interpreting section 8103(a), the Board

6

Supra note 2.

7

5 U.S.C. § 8103(a); see N.G., Docket No. 18-1340 (issued March 6, 2019).

5

has recognized that OWCP has broad discretion in approving services provided under section
8103, with the only limitation on OWCP’s authority is that of reasonableness.8
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.9 Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence.10 In order to prove that the procedure is
warranted, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted. Both of these criteria must
be met in order for OWCP to authorize payment.11
OWCP’s procedures provide that, in cases of spinal surgery, it should refer the request to
the DMA for review. Its procedures further provide:
“If the DMA’s opinion on the need for surgery is equivocal or negative, or if it
indicates the need for clinical data not present in the file, the CE [claims examiner]
may choose to prepare the file for a second opinion examination. The CE may
alternatively choose to ask the AP [attending physician] to submit a report which
includes the required clinical data so that the DMA may formulate an opinion on
the medical necessity for surgery. Upon receipt of the AP’s report, the CE should
resubmit the case record to the DMA for comment.”12
ANALYSIS
The Board finds that the case is not in posture for a decision.
On March 2, 2016 Dr. Warrick, appellant’s treating physician, discussed appellant’s
history of a July 25, 2012 employment injury and his subsequent progressive right lower extremity
and back pain. He noted that diagnostic testing had demonstrated irreversible nerve damage at S1
affecting the right leg and recommended an SCS trial to relive his pain and improve his ability to
work.
In reports dated February 3 and April 22, 2016, Dr. Souayah, the DMA, opined that the
evidence of record did not support that the implant neuroelectrodes, spine generator, and
neurostimulator procedure was medically necessary to address the effects of the work-related
injury. He found no clear documentation that Dr. Warrick had exhausted all conservative

8

D.W., Docket No. 19-0402 (issued November 13, 2019); see also Daniel J. Perea, 42 ECAB 214, 221 (1990)
(holding that abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or administrative actions which are contrary to both logic, and probable deductions from
established facts).
9

See R.M., Docket No. 19-1319 (issued December 10, 2019); Debra S. King, 44 ECAB 203, 209 (1992).

10

Id.; see also K.W., Docket No. 18-1523 (issued May 22, 2019); Bertha L. Arnold, 38 ECAB 282 (1986).

11

See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.10(d)(3) (September 2010).

6

therapies, demonstrated that pain medication had failed to improve appellant’s symptoms, or
shown that a trial of a SCS had provided pain relief of over 50 percent.
On May 9, 2016 Dr. Warrick performed a spinal cord stimulation trial. In a report dated
May 16, 2016, he noted that appellant had experienced an improvement in back pain of over 75
percent relief.
On July 27, 2016 Dr. Warrick opined that the SCS implantation was medically necessary
and that there were no other options to improve appellant’s pain and functionality. He indicated
that he had satisfied the criteria for the implantation of a SCS as he had undergone more than 10
lumbar interventions including epidurals, facet injections, medial branch blocks, and rhizotomies
which had failed to provide long-term relief. Dr. Warrick advised that appellant had participated
in physical therapy and home exercises programs, and complied with extended opioid therapy that
had failed to provide functional improvement. He opined that he was a good candidate for a SCS,
noting that he had achieved 60 percent relief from a trial SCS. In a report dated July 18, 2017,
Dr. Warrick reiterated that appellant had tried conservative treatment with medication and
undergone lumbar facet injections with only moderate relief. He again noted that the trial SCS
had reduced his pain and improved his level of function.
OWCP procedures provide that, regarding requests for spinal surgery, the DMA should
evaluate the request and, if his opinion on the need for surgery is negative or equivocal, OWCP
should ask the attending physician to submit a report with the required data or refer appellant for
a second opinion physician.13 Upon receipt of the attending physician’s report, it should again
submit the case record to the DMA for review. Dr. Warrick provided additional clinical data
regarding the need for surgery in his May 16 and June 27, 2016 reports, submitted after he
performed a SCS trial. OWCP’s, however, did not refer the case back to the DMA for an additional
opinion in accordance with its procedures.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done.14 Once
it undertakes development of the record, it must do a complete job in procuring medical evidence
that will resolve the relevant issues in the case.15
On remand OWCP should request a supplemental report from the DMA regarding whether
appellant’s request for authorization of neuroelectrodes, a spinal generator, and a neurostimulator
implant is medically necessary and causally related to the accepted employment injury.
Following this and other such further development as deemed necessary, OWCP shall issue
a de novo decision.

13

Id.; see also W.H., Docket No. 17-1244 (issued November 7, 2017).

14

See L.B., Docket No. 19-0432 (issued July 23, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

15

Id.

7

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 13, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
action consistent with this decision of the Board.
Issued: March 12, 2020
Washington, DC

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

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

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

8