United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF THE ARMY, PINE BLUFF
ARSENAL, Pine Bluff, AR, Employer
__________________________________________

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

Docket No. 12-1463
Issued: January 7, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On June 27, 2012 appellant filed a timely appeal from a February 21, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Board also has jurisdiction
over an April 27, 2012 nonmerit OWCP decision denying appellant’s reconsideration request.
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.
ISSUES
The issues are: (1) whether OWCP properly reduced appellant’s compensation effective
July 3, 2011 based on his capacity to earn wages in the constructed position of shipping and
receiving supervisor effective August 28, 2011; and (2) whether OWCP properly refused to
reopen appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal to the Board. In the first appeal,2 the Board
affirmed OWCP’s denial of his hearing request and the suspension of benefits on the grounds
that he failed to attend a scheduled medical examination.3 The Board, however, found that
OWCP had abused its discretion in denying his request for reconsideration regarding his failure
to attend the scheduled medical examination as he raised new contentions not previously
considered by OWCP. In the second appeal, the Board affirmed the March 2, 2001 decision
which denied appellant’s request for modification of the suspension of his compensation benefits
effective September 13, 1998 on the grounds that he failed to attend a scheduled medical
examination.4 The Board, in the third appeal, set aside a June 19, 2003 decision5 as the decision
contained no findings of fact regarding his request for retroactive compensation and remanded
the case for further action on his request.6 On July 19, 2006 the Board in the fourth appeal
affirmed an OWCP hearing representative’s January 19, 2006 decision.7 The hearing
representative affirmed the suspension of appellant’s benefits for the period September 3, 1998
to July 10, 2002 on the grounds that he failed to attend a scheduled medical examination. He
found appellant’s arguments that the suspension of his benefits would not have occurred had he
been given a merit review at the time to be without merit and, thus, found appellant was not
entitled to retroactive compensation for this period in question. On December 29, 2006 the
Board granted the Director’s petition for reconsideration and modified the prior decision to
reflect that appellant was entitled to the resumption of his compensation on May 22, 2002 as this
was the date that appellant indicated his willingness to attend the scheduled examination. The
Board also denied appellant’s petition for reconsideration as he had not shown any error of law

2

Docket No. 99-1694 (issued January 22, 2001). OWCP accepted that appellant, then a 29-year-old protective
and safety equipment repairer, sustained a tear of the medial meniscus of the right knee, lumbar sprain,
intervertebral disc disorder with myelopathy of the lumbar region and adhesive capsulitis of the left shoulder on
March 3, 1986 when he tripped and fell while removing railroad iron in the performance of duty. Appellant stopped
work on March 20, 1986. The employing establishment terminated his employment on October 14, 1986.
3

In the June 23, 1998 letter referring appellant to Dr. Joe Schooler, who specialized in physical rehabilitation and
orthopedic surgery, for an impartial examination, OWCP informed appellant of the consequences of his refusal to
submit to the examination under 5 U.S.C. § 8123(d). Appellant did not attend the initial appointment or the
rescheduled appointment. OWCP advised him by a July 9, 1998 letter of the consequences of his refusal to submit
and provided him 15 days to provide reasons for his failure to attend the initial scheduled appointment. By decision
dated September 1, 1998, it suspended compensation for refusing to submit to an examination with Dr. Schooler.
OWCP denied appellant’s request for modification of the September 1, 1998 decision on February 2, 1999.
4

Docket No. 01-1366 (issued May 2, 2002). In a letter dated May 22, 2002, appellant indicated his willingness to
attend the scheduled examination with Dr. Schooler. Subsequent to the Board’s decision, OWCP scheduled
appellant for an examination on July 10, 2002, which appellant attended. In a letter dated August 28, 2002,
appellant’s representative requested benefits to resume including past compensation benefits. By letter dated
January 9, 2003, OWCP placed appellant on the periodic rolls for temporary total disability effective
December 29, 2002.
5

In this decision, OWCP attached the findings from the March 2, 2001 decision, without addressing appellant’s
request for retroactive compensation benefits.
6

Docket No. 04-1157 (issued August 23, 2004).

7

Docket No. 06-713 (issued July 19, 2006).

2

or fact with regard to his request for retroactive pay for the period in question.8 In the fifth
appeal on April 21, 2009, the Board affirmed a May 23, 2008 OWCP decision denying his
application for reconsideration as it was untimely filed and failed to establish clear evidence of
error. The facts as set forth in the Board’s decision and order are incorporated by reference.
In an October 15, 2009 report, Dr. Robert E. Holladay, IV, a second opinion Boardcertified orthopedic surgeon, conducted a physical examination and reviewed medical reports
and the statement of accepted facts. Diagnoses included postoperative left shoulder surgery, low
back pain and postoperative right knee surgery, arthroscopy and partial meniscectomy.
Dr. Holladay opined that appellant continued to have residuals due to his accepted shoulder and
right knee employment injuries but that the lumbar condition had resolved. He concluded that
appellant was capable of working a sedentary position. In an attached work capacity form,
Dr. Holladay indicated that appellant was capable of working four hours per day initially, which
would increase to eight hours per day within six months. Restrictions for four hours of work
included no pushing, pulling or lifting more than 10 pounds; up to one hour of walking and
standing; no squatting, kneeling, climbing, operating a motor vehicle at work and no reaching
above the left shoulder.
On November 10, 2009 Dr. Harold E. Chakales, a treating Board-certified orthopedic
surgeon, reviewed Dr. Holladay’s report and responded to the questions posed by OWCP. He
disagreed with Dr. Holladay’s opinion that appellant’s lumbar contusion had resolved with no
residuals and his recommendations for further treatment. In a November 10, 2009 work capactiy
evaluation form, Dr. Chakales indicated that appellant was permanently totally disabled from
working.
On January 26, 2010 OWCP referred appellant to Dr. Apurva R. Dalal, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion evidence between
Dr. Chakales, appellant’s treating physician, and Dr. Holladay, an OWCP referral physician, on
the issue of appellant’s work capability. In a February 22, 2010 report, Dr. Dalal, based upon a
review of the medical records, statement of accepted facts and physical examination, diagnosed
lumbosacral strain with radiculopathy, status post left shoulder surgery with residual motion loss
and status post right knee surgery with residuals. A phyiscal examination revealed evidence of
malingering and exaggertion during the left shoulder examination. Range of motion for left
shoulder included 100 degrees forward flexion, 100 degrees abduction, 60 degrees internal and
external rotation and 50 degrees extenion. Physical findings for the right knee revealed moderate
effusion, no evidence of instability and 120 degrees flexions. An examination of the lumbosacral
spine showed positive right side straight leg raising, a normal motor and sensory examination
and signs of exaggeration. Dr. Dalal reviewed x-ray interpretations which revealed degenerative
changes in the lumbar spine, right knee and left shoulder. In concluding, Dr. Dalal stated that he
concurred with Dr. Chakales’ opinion that appellant was totally disabled from performing any
type of meaningful employment.

8

The original period in question was September 3, 1998 to July 10, 2002. In view of the Board’s granting the
Director’s petition for reconsideration the period in question has been modified to September 3, 1998 to
May 22, 2002. The record contains evidence that appellant was paid wage-loss compensation for the period May 22
to July 9, 2002 on October 12, 2006.

3

On April 21, 2010 OWCP requested that Dr. Dalal review additional medical evidence
and provide a supplemental report. Dr. Dalal did not respond to OWCP’s request.
Hearing no response from Dr. Dalal, on September 29, 2010, OWCP referred appellant to
a second impartial medical examination with Dr. Bret R. Sokoloff, a Board-certified orthopedic
surgeon, to resolve the outstanding conflict in the medical evidence.
In an October 20, 2010 report, Dr. Sokoloff diagnosed moderate right knee arthritis,
lumbar spine mild arthritis and degenerative disc disease and left shoulder moderate arthritis and
rotator cuff disease. A physical examination of the left shoulder revealed no tenderness in the
acromioclavicular joint, no atrophy swelling, no laceration/abrasion or malalignment. Physical
findings for the right knee included no swelling, increased warmth, no deformity, ligamentous
instability, no varus laxity, negative anterior drawer sign and patellar subluxation. Dr. Sokoloff
reported that an examination of the thoracic lumbar spine revealed no tenderness, no swelling, no
muscle atropy and normal alignment. He related that his findings on examination were
inconsistent with the objective tests, that appellant appeared to give poor effort, resisted passive
examination and that the motor examination was inconsistent with appellant’s gait and mobility
as seen during the visit. A review of the records showed a normal physical examination
proximal to the initial injury and that as early as 1986 appellant’s treating physician found
appellant capable of performing light-duty work. Dr. Sokoloff related that a review of the
medical records suggested symptom-magnification or malingering based on the few anatomic or
objective findings. He opined that appellant’s subjective complaints were the only thing
preventing him from working. Dr. Sokoloff reported that appellant’s left shoulder range of
motion was self-limited. He noted limited range range of motion in thoracic lumbar spine both
knees. In concluding, Dr. Sokoloff found no ojective findings supporting a work-related
pathology and attributed poor physical efforts on examination to malingering or symptommagnification. In an attached work capacity evaluation form, he provided permanent work
restrictions for working eight hours per day. The restrictions included up to four hours of
walking and standing, up to two hours of twisting and bending/stooping; up to four hours of
lighting up to 30 pounds, up to one hour of squatting and climbing and up to two hours of
kneeling.
On December 1, 2010 OWCP referred appellant for vocational rehabilitation services.
On March 15, 2011 the vocational rehabilitation specialist identified the position of
receptionist with a weekly salary of $320.96 and shipping and receiving supervisor with a
weekly salary of $507.20 as within appellant’s work restrictions and reasonably available in
sufficient numbers in appellant’s commuting area. The physical requirements listed in the
Department of Labor’s Dictionary of Occupational Titles (DOT) for shipping and receiving
supervisor with DOT No. 222.137-030 included light strength; frequent reaching, handling and
finger; light strength; no climbing, balancing, crouching, or crawling; and occasional stooping
and kneeling.
In a July 14, 2011 status report, the vocational rehabilitation specialist noted that
vocational rehabilitation services were unsuccessful. The rehabilitation specialist indicated that
the following positions were suitable for appellant: receptionist with a weekly salary of $320.98
and shipping and receiving supervisor with a weekly salary of $507.20. Both positions were

4

within appellant’s physical, educational and vocational abilities. These positions were also
reasonably available in his commuting area.
On July 19, 2011 OWCP proposed to reduce appellant’s compensation for wage loss,
noting that the medical and factual evidence established that he was no longer totally disabled
but had the capacity to earn wages as a shipping and receiving supervisor with a weekly salary of
$507.20.
In an August 3, 2011 letter, appellant disagreed with the proposal to reduce his wages in
the constructed position of a shipping and receiving supervisor.
By decision dated August 22, 2011, OWCP adjusted appellant’s compensation benefits
effective August 28, 2011 based upon its determination that the position of a shipping and
receiving supervisor represented his wage-earning capacity. It noted that his weekly pay rate
when injured was $274.52 and that the current pay rate for job and step when injured was
$536.20. OWCP found appellant was capable of earning $507.20 per week, that the adjusted
wage-earning capacity per week was $260.79, that the percentage of new wage-earning capacity
was 95 percent, that the loss in wage-earning capacity amount per week was $13.73, leaving
appellant with a compensation rate of $10.30. It calculated that this resulted in a new
compensation rate every four weeks of $80.00 beginning on August 28, 2011.
On August 26, 2011 appellant requested an oral hearing before an OWCP hearing
representative and a telephonic hearing was held on December 2, 2011. At the hearing and in an
August 3, 2011 letter, he contended that OWCP erred in referring him for a second impartial
evaluation and should have accepted Dr. Dalal’s opinion that he was unable to work. Appellant
argued that the report of Dr. Sokoloff should not have been used by OWCP in finding that he
was capable of working.
By decision dated February 21, 2012, OWCP’s hearing representative affirmed the
August 22, 2011 decision reducing appellant’s wage-loss compensation.
In a letter dated March 21, 2012, appellant requested reconsideration. He argued that
Dr. Dalal’s opinion was sufficient to resolve the conflict in the medical opinion evidence and that
OWCP erred in referring him for a second impartial medical examination with Dr. Sokoloff.
Appellant also argued that the constructed position was unsuitable. In support of his request, he
submitted copy of a November 29, 2011 Certificate of Attendance from a Coping With Chronic
Pain Group, a page from Dr. Holladay’s October 15, 2009 report and an October 20, 2010 x-ray
service request form.
In an April 27, 2012 decision, OWCP denied appellant’s request for reconsideration on
the grounds that he did not show that OWCP erroneously applied or interpreted a point of law,
did not advance a point of law not previously considered and did not submit pertinent new and
relevant evidence.9 The cover sheet of the decision provided him with his appeal options
including informing him that he had 180 days to appeal the decision to the Board.

9

The Board notes that, following the April 27, 2012 nonmerit decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.

5

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.10 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.11
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee, if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent the employee’s
wage-earning capacity or if the employee has no actual wages, the wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, the
employee’s usual employment, age, qualifications for other employment, the availability of
suitable employment and other factors and circumstances which may affect his or her wageearning capacity in his or her disabled condition.12
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, Dictionary of Occupational Titles
(DOT) or otherwise available in the open market, that fit the employee’s capabilities with regard
to his or her physical limitations, education, age and prior experience. Once this selection is
made, a determination of wage rate and availability in the labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick13 and codified by regulations at 20 C.F.R. § 10.40314
should be applied. Subsection(d) of the regulations provide that the employee’s wage-earning
capacity in terms of percentage is obtained by dividing the employee’s actual earnings or the pay
rate of the position selected by OWCP, by the current pay rate for the job held at the time of the
injury.15
In determining an employee’s wage-earning capacity based on a position deemed suitable
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
10

H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB
197 (2005).
11

20 C.F.R. §§ 10.402, 10.403.

12

5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB
584 (1996).
13

5 ECAB 376 (1953).

14

20 C.F.R. § 10.403.

15

Id. at § 10.403(d).

6

resulting from postinjury or subsequently acquired conditions.16 Any incapacity to perform the
duties of the selected position resulting from subsequently acquired conditions is immaterial to
the loss of wage-earning capacity that can be attributed to the accepted employment injury and
for which appellant may receive compensation. Additionally, the job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.17
Section 8123(a) of FECA18 provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.19 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.20
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim and, by letter dated January 9, 2003, placed him on the
periodic rolls for temporary total disability.
OWCP properly found a conflict of the medical evidence regarding appellant’s disability
for work. Appellant was referred to an impartial medical examiner, Dr. Dalal, a Board-certified
orthopedic surgeon, who found on February 22, 2010 that appellant was disabled from
performing any type of meaningful employment. Dr. Dalal also found evidence of malingering
and exaggeration during appellant’s physical examination. On April 21, 2010 OWCP properly
requested that he supplement his previous report based upon review of additional evidence and
with an opinion about appellant’s ability to return based no his findings of malingering and
exaggeration. Dr. Dalal did not respond.
Because the first impartial medical examiner, Dr. Dalal, did not respond to OWCP’s
request for a supplemental report, the Board finds that OWCP properly referred appellant to
another impartial specialist to resolve the conflict between Dr. Chakales and Dr. Holladay.21 On
October 20, 2010 Dr. Solokoff, a Board-certified orthopedic surgeon, conducted a thorough
physical examination of appellant and made a review of his medical history. He reported that the
physical examination revealed poor effort and inconsistencies. Dr. Sokoloff concluded that there
was symptom-magnification or malingering on the part of appellant based on the few anatomic
or objective findings found in his examination and review of the medical records. He also noted
16

James Henderson, Jr., 51 ECAB 268 (2000).

17

Id.

18

5 U.S.C. §§ 8101-8193.

19

5 U.S.C. § 8123(a); see J.J., Docket No. 09-27 (issued February 10, 2009); Geraldine Foster, 54 ECAB
435 (2003).
20

B.P., Docket No. 08-1457 (issued February 2, 2009); J.M., 58 ECAB 478 (2007); Barry Neutuch, 54 ECAB
313 (2003); David W. Pickett, 54 ECAB 272 (2002).
21

See Guiseppe Aversa, 55 ECAB 164 (2003).

7

appellant’s passive resistance on examination, inconsistent motor examination based on his
observation of appellant’s gait and mobility during the visit, findings inconsistent with objective
testing and poor effort on the part of appellant. The Board finds that the opinion of Dr. Sokoloff
is entitled to the special weight of the medical evidence because it is well rationalized and based
on a thorough physical examination and review of the medical history.
On July 14, 2011 the vocational rehabilitation counselor stated that she had identified two
jobs that appellant would be capable of performing and which were available in the area. One of
them was as a shipping and receiving supervisor, DOT No. 222.137-030, with an average weekly
salary of $320.98 per week. This position was identified as sedentary and was reasonably
available in appellant’s commuting area on a full-time basis.
The evidence establishes that appellant was capable of performing the duties required for
the selected position of shipping and receiving supervisor. As noted, Dr. Sokoloff advised that
appellant was capable of doing work sedentary and indicated that appellant could perform up to
four hours of walking and standing. The vocational rehabilitation counselor determined that
appellant was able to perform the position of shipping and receiving supervisor. She provided a
job description which was comprised of sedentary requirements related to the receiving and
answering requests for information and determined that the position fell within appellant’s
medical restrictions. The counselor noted that the position was available on a full-time basis
within his commuting area and that the wage of the position was $320.98 per week.
The Board finds that OWCP considered the proper factors, such as availability of suitable
employment and appellant’s physical limitations, usual employment and age and employment
qualifications, in determining that the position of shipping and receiving supervisor represented
his wage-earning capacity.22 The evidence of record establishes that appellant had the requisite
physical ability, skill and experience to perform the duties and that the position was reasonably
available within the general labor market of his commuting area. The wage information as set
forth by the vocational counselor indicated that the wages for the position of shipping and
receiving supervisor was $320.98 per week. Applying the Shadrick23 principles, the current pay
rate for the date-of-injury position is compared with the wage-earning capacity of $320.98 per
week and a percentage of loss of wage-earning capacity is determined. OWCP determined that
appellant had a 95 percent loss of wage-earning capacity and his compensation was reduced to a
net compensation of $80.00 every four weeks. The Board finds that OWCP met its burden of
proof to reduce his compensation in this case.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
On appeal appellant contends that OWCP erred in relying on the opinion of Dr. Sokoloff
as he performed an incomplete examination. Contrary to appellant’s contention, Dr. Sokoloff
performed a complete examination and provided physical findings from his examination as well
as his opinion on reviewing the medical record OWCP provided him.

22

See N.J., 59 ECAB 171 (2007); James M. Frasher, 53 ECAB 794 (2002).

23

See supra note 14.

8

LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,24
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.25 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.26 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.27
ANALYSIS -- ISSUE 2
OWCP issued an August 22, 2011 decision finding that the selected position of shipping
and receiving supervisor properly represented his wage-earning capacity, which was affirmed by
an OWCP hearing representative on February 21, 2012. Appellant requested reconsideration on
March 21, 2012, asserting that Dr. Dalal had resolved the conflict in the medical opinion
evidence, that OWCP erred in referring him for a second impartial medical examination with
Dr. Sokoloff and that the constructed position was unsuitable. He submitted a certificate of
attendance from an attending pain group, a page from Dr. Holladay’s October 15, 2009 report
and an October 20, 2010 x-ray request form. In an April 27, 2012 decision, OWCP denied
reconsideration as the evidence submitted was insufficient to warrant merit review.
In his March 21, 2012 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not identify a specific point of
law or show that it was erroneously applied or interpreted. Appellant did not advance a new and
relevant legal argument not previously considered. His argument was that OWCP erred in
referring him for a second impartial evaluation with Dr. Sokoloff when Dr. Dalal, the original
impartial medical specialist, had resolved the conflict in the medical opinion evidence.
Appellant also asserted that the selected position was not suitable work. However, the Board
finds that his arguments were repetitive of the arguments made before OWCP’s hearing
representative and OWCP. In addition, the certificate for attendance from a pain group and the
October 20, 2010 x-ray request are not relevant to the issue of appellant’s work capability and
are insufficient to require reopening the record for a merit review.28 Dr. Holladay’s report was
previously considered by OWCP. Evidence or argument which is duplicative or cumulative in
24

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
25

20 C.F.R. § 10.606(b)(2). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
26

20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB
657 (2006).
27

20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
28

D.I., 59 ECAB 158 (2007); Betty A. Butler, 56 ECAB 545 (2005).

9

nature is insufficient to warrant reopening a claim for merit review.29 The duplicative nature of
the evidence and argument does not require reopening the record for further merit review.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
Appellant contended that he was not provided any appeal rights with the April 27, 2012
decision. However, a review of the record shows that OWCP provided him with what his appeal
options were on the cover sheet of the decision. Appellant was given the necessary information
regarding his appeal options with the April 27, 2012 decision.
CONCLUSION
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
benefits based on his capacity to earn wages in the constructed position of shipping and receiving
supervisor. The Board further finds that it properly denied his request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 27 and February 21, 2012 are affirmed.
Issued: January 7, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

29

Candace A. Karkoff, 56 ECAB 622 (2005); Denis M. Dupor, 51 ECAB 482 (2000).

10


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Forest Park, IL, Employer
__________________________________________

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

Docket No. 08-2078
Issued: April 8, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 21, 2008 appellant filed a timely appeal from a June 16, 2008 merit decision of
the Office of Workers’ Compensation Programs denying her claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the case.
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty causally related to factors of her federal employment.
FACTUAL HISTORY
On April 24, 2008 appellant, then a 34-year-old forklift driver, filed an occupational
disease claim (Form CA-2) alleging that she experienced back pain and stiffness after driving a
forklift and that her back became tight. She first became aware of her condition on September 9,
1995 but did not realize it was related to her employment until April 2, 2008. The employing
establishment noted that appellant did not miss work.

In a May 8, 2008 letter, the Office notified appellant about the deficiencies in her claim
and requested that she provide additional medical and factual evidence, including a
comprehensive medical report from her treating physician discussing the cause of the condition
and containing a firm diagnosis. Appellant did not provide any additional evidence.
By decision dated June 16, 2008, the Office denied appellant’s claim. It found that she
established that the work activities occurred as alleged; however, she did not provide any
medical evidence containing a diagnosis which could be connected to the activity of driving a
forklift.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence,2 including that she is an “employee” within the meaning of
the Act3 and that she filed her claim within the applicable time limitation.4 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
A person who claims benefits for a work-related condition has the burden of establishing
by the weight of the medical evidence a firm diagnosis of the condition claimed and a causal
relationship between that condition and factors of federal employment.7

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See Roy L. Humphrey, supra note 6; see Naomi A. Lilly, 10 ECAB 560, 574 (1959).

2

ANALYSIS
The issue is whether appellant established that she sustained a back injury due to driving
a forklift at work. The Office accepted that her work activities occurred as alleged; however, it
denied the claim on the grounds that appellant did not establish that her employment factors
caused an injury.
Appellant failed to submit any medical evidence providing a firm diagnosis or addressing
whether her injury was related to her employment factors. The Office advised her of the
deficiencies in her medical evidence, by way of a May 8, 2008 letter, however, she failed to
provide any additional evidence in support of her claim. Therefore, the Board finds that
appellant failed to meet her burden of proof in establishing a prima facie claim for
compensation.8
CONCLUSION
The Board finds that appellant did not establish that she sustained an injury in the
performance of duty causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 8, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
8

Donald W. Wenzel, 56 ECAB 390 (2005).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Royers Ford, PA, Employer
__________________________________________

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

Docket No. 12-1757
Issued: April 2, 2013

Case Submitted on the Record

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

JURISDICTION
On August 20, 2012 appellant filed a timely appeal from the May 21, 2012 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 sustained a recurrence of partial disability commencing
July 17, 2010.
FACTUAL HISTORY
On May 10, 2001 appellant, then a 48-year-old letter carrier, filed an occupational disease
claim alleging cervical and thoracic spondylosis due to performing repetitive work duties over
time. He asserted that on May 25, 2000 he first became aware of his claimed condition and its
1

5 U.S.C. §§ 8101-8193.

relationship to his employment. OWCP accepted an aggravation of cervical spondylosis and
degeneration of a cervical intervertebral disc. After a period of total disability, appellant
returned to light-duty work in November 2005 for eight hours a day, five days a week.
On July 8, 2010 the employing establishment advised appellant that it was withdrawing
his light-duty position under the National Reassessment Program (NRP). Appellant was offered
a light-duty position for two hours per day, five days per week, which he accepted.
On August 4, 2010 appellant filed a claim for compensation, Form CA-7, alleging that
partial disability from July 17 to 30, 2010.2 He later filed additional CA-7 forms claiming partial
disability after July 30, 2010 and indicated that he lost six hours a day under NRP action.
In an August 4, 2010 decision, OWCP advised appellant that his “recurrence of July 17,
2010 has been accepted;” however, it did not begin paying appellant disability compensation at
that time.
Appellant submitted medical evidence in support of his claim for a recurrence of partial
disability. In an October 19, 2010 report, Dr. Yasser Gouda, an attending Board-certified
orthopedic surgeon, stated that appellant continued to have flare-ups of cervical pain which
limited his functioning. In a December 6, 2010 report, he indicated that appellant continued to
be partially disabled due to his work injury.
In decisions dated between October 2010 and May 2011, OWCP denied appellant’s claim
for a recurrence of disability beginning July 17, 2010. The April 14, 2011 decision of an OWCP
hearing representative discussed NRP and the directives of FECA Bulletin No. 09-05. The
hearing representative listed the bulletin’s three criteria for paying compensation when there is
no wage-earning compensation determination in an NRP case (including the existence of current
medical evidence showing continuing work residuals) and the requirement that an OWCP claims
examiner should request current medical evidence from both the U.S. Postal Service and the
claimant if the medical evidence is insufficient.3 The hearing representative did not address
whether the requirements of FECA Bulletin No. 09-05 had been carried out.
In a May 31, 2011 report, Dr. Randall N. Smith, an attending Board-certified orthopedic
surgeon, discussed appellant’s medical history, including physical examination findings. He
detailed appellant’s accepted work injury and stated:
“In my opinion it is a substantial contributing factor. His carrying the mail for
that period of time has accelerated his disc degeneration leading to the present
findings on the [magnetic resonance imaging] and his present complaints
including neck pain and numbness in the arms. This does not allow him to return
to carrying mail. The light duty is tolerated and fine. He should continue to do
light duty and he can do that on a full-time basis.... The question arises again,
whether his present condition is substantially as a result of his carrying mail for a
2

On July 20, 2010 appellant also filed a notice of recurrence, Form CA-2a.

3

See infra note 7.

2

period of time. In my mind, it is and that carrying the mail has accelerated the
degeneration in his discs leading to the present condition and thus not allowing
him to return to the work force as a letter carrier.”
In September 6 and 29, 2011 decisions, OWCP denied appellant’s recurrence of disability
claim without discussing FECA Bulletin No. 09-05.
Appellant submitted a March 6, 2012 report in which Dr. Smith reported his findings on
examination and stated:
“In summary, [appellant] did sustain an injury on May 25, 2000 while performing
his regular job which put him out of work, at least as a regular letter carrier.
Whatever happened on that date did aggravate the underlying spondylosis and
make it impossible for him to continue doing his job. In the particular period
from July 10 through December 31, 2010 [appellant] could not perform his job as
a regular letter carrier as a result of the aggravation of the cervical condition and
that occurred on May 25, 2000. He had the spondylosis to a certain degree before
that was cumulatively progressing as he performed his job and then the lifting of
that date was enough to say the straw that broke the camel’s back that put him
over the top, making it impossible for him to continue performing the job as a
letter carrier.”
In a March 16, 2012 report, Dr. Robert A. Smith, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, stated that appellant still had evidence of degeneration of
the cervical discs, which was an accepted condition and he recommended various work
restrictions.
In a May 21, 2012 decision, OWCP affirmed its September 29, 2011 decision denying
appellant’s recurrence of disability claim. It did not mention the requirements of FECA Bulletin
No. 09-05.
LEGAL PRECEDENT
Recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.4
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
4

20 C.F.R. § 10.5(x).

3

disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.5 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history, and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.6
FECA Bulletin No. 09-05 outlines procedures for light-duty positions withdrawn
pursuant to NRP. Regarding claims for total disability when a loss of wage-earning capacity
decision has not been issued, the bulletin provides:
“1. If the claimant has been on light duty due to an injury[-]related condition
without an LWEC [loss of wage-earning capacity] rating (or the CE [claims
examiner] has set aside the LWEC rating as discussed above), payment for total
wage loss should be made based on the CA-7 as long as the following criteria are
met:
The current medical evidence in the file (within the last 6 months)
establishes that the injury[-]related residuals continue;
The evidence of file supports that light duty is no longer available;
and
There is no indication that a retroactive LWEC determination
should be made. (Note -- Retroactive LWEC determinations should
not be made in these NRP cases without approval from the District
Director.)
“2. If the medical evidence is not sufficient, the CE should request current
medical evidence from both the [employing establishment] and the claimant. As
with the previous circumstances, the claimant should be requested to provide a
narrative medical report that addresses the nature and extent of any employmentrelated residuals of the original injury.”7
ANALYSIS
Appellant filed a claim for recurrence of partial disability commencing July 17, 2010 and
continuing.8 The record indicates that his limited-duty job was withdrawn effective July 8, 2010
5

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
6

Maurissa Mack, 50 ECAB 498 (1999).

7

FECA Bulletin No. 09-05 (issued August 18, 2009).

8

OWCP accepted that appellant sustained aggravation of cervical spondylosis and degeneration of cervical
intervertebral disc.

4

pursuant to NRP and that he accepted work for two hours a day.9 The Board notes that no wageearning compensation determination has been made in the present case.
It is well established that a withdrawal of a light-duty position is considered a recurrence
of disability under OWCP regulations. The guidance from FECA Bulletin No. 09-05 notes that
OWCP should consider whether the current medical evidence establishes that the claimant has
continuing employment-related residuals after the withdrawal of the light-duty position. The
bulletin describes specific standards that should be followed when, as in the present case, no
wage-earning capacity determination has been made. If the medical evidence is not sufficient,
OWCP should request additional evidence.
The Board finds that OWCP failed to apply the standards of FECA Bulletin No. 09-05,
particularly with regard to the request for additional medical evidence from both the U.S. Postal
Service and appellant. It did not adequately review the medical evidence from the physicians of
record in light of the standards of the FECA Bulletin No. 09-05. For example, appellant
submitted the May 31, 2011 and March 6, 2012 reports from Dr. Smith, an attending Boardcertified orthopedic surgeon, who found that he continued to be partially disabled due to his
work injury. OWCP did not discuss this evidence in the context of FECA Bulletin No. 09-05 or
explain whether such evidence established partial disability after July 17, 2010 under the
standards of the bulletin.
The case will be remanded to OWCP for further consideration. After such further
development as OWCP deems necessary, it should issue an appropriate decision with proper
findings on the issue presented.
CONCLUSION
The Board finds the case is not in posture for decision regarding whether appellant
sustained a recurrence of partial disability beginning July 17, 2010 and continuing. The case
must be remanded to OWCP for proper findings on this issue.

9

Appellant’s hours were reduced from eight hours per day, five days per week to two hours per day, five days per
week.

5

ORDER
IT IS HEREBY ORDERED THAT the May 21, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: April 2, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Blaire, WA, Employer
__________________________________________

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

Docket No. 17-0727
Issued: August 4, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 13, 2017 appellant, through counsel, filed a timely appeal from a
December 22, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2
Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

The record also contains a November 22, 2016 OWCP decision with respect to permanent impairment. Counsel
did not request review of this decision, and the record indicates that counsel is pursuing appeal rights with OWCP.
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established a recurrence of medical condition
commencing June 10, 2010, causally related to his accepted March 9, 2003 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts of the case as presented in the
Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
On July 15, 2003 appellant, then a 36-year-old customs inspector, filed a traumatic injury
claim (Form CA-1) alleging that he sustained an injury on March 9, 2003. He indicated that he
was participating in a physical techniques drill, when a student tried to pick him up from the
floor. The claim was accepted for a medial meniscus tear of the left knee. On August 8, 2003
appellant underwent a left knee meniscectomy performed by Dr. Michael Gannon, a Boardcertified orthopedic surgeon. He received compensation for total disability from December 19,
2003 through June 11, 2005, when he returned to work in the private sector.5
In a report dated May 2, 2006, Dr. Ralph Belle, a Board-certified orthopedic surgeon,
indicated that an April 6, 2006 magnetic resonance imaging (MRI) scan showed a horizontal tear
of the medial meniscus posterior horn, as well as moderate degenerative changes in the medial
compartment. He diagnosed left knee osteoarthritis, and wrote that appellant had returned to
work after the knee surgery and as a result has knee “flared again” and had never really
recovered.
On June 21, 2010 appellant filed a claim for a recurrence of disability (Form CA-2a) and
indicated that he was claiming medical treatment only. He identified the date of recurrence as
June 10, 2010. Appellant wrote that repetitive work activities had exacerbated his original
injury.
In a June 15, 2010 report, Dr. Gidon Frame, a family practitioner, wrote that appellant
had worsening disability and pain from the left knee injury.
By decision dated August 9, 2010, OWCP denied appellant’s recurrence claim. It found
that the medical evidence of record was insufficient to show that appellant’s current medical
condition was due to the accepted work injury.
On August 25, 2010 appellant requested review of the written record by an OWCP
hearing representative. In a report dated August 5, 2010, Dr. Frame opined that appellant’s
March 9, 2003 workplace injury was the direct cause of the left knee medial meniscus tear and
the degenerative damage. He wrote that there was no evidence of any other cause, and the left
knee condition would persist indefinitely.
4

Docket No. 11-0666 (issued November 4, 2011); Docket No. 06-1565 (issued February 20, 2007).

5

Docket No. 06-1565 (issued February 20, 2007). The Board set aside a December 5, 2005 OWCP decision
finding that appellant’s prerecoupment hearing request was untimely.

2

By decision dated December 7, 2010, an OWCP hearing representative affirmed the
August 5, 2010 decision. He found the evidence submitted failed to establish that appellant’s left
knee condition after June 10, 2010 was causally related to the accepted March 2003 work injury.
On January 25, 2011 appellant filed a timely appeal with the Board. The Board affirmed
the August 9 and December 7, 2010 OWCP decisions,6 finding that the evidence of record was
insufficient to establish that appellant’s current condition was causally related to the employment
injury.
On May 1, 2012 appellant, through counsel, submitted an April 26, 2012 letter requesting
a “reopening” of the claim. The medical evidence submitted included a report dated March 14,
2012 from Dr. Eric Smith, Board-certified in occupational medicine. Dr. Smith opined that
appellant’s tear and subsequent repair of the torn meniscus was the reason for the findings on a
March 28, 2011 MRI scan, which showed the meniscus was dysmorphic in shape and diminutive
in size. He noted that the five-year follow-up study showed that, despite good functional
outcomes, the meniscectomies resulted in cartilage wear and degenerative changes. Dr. Smith
wrote that the middle portion of the medial meniscus was often a weight bearing portion of the
cartilage and surgery can cause faster degenerative changes. He opined that the 2003 complex
meniscal tear was a significant precipitating event that left appellant with severe left knee
arthritis.
OWCP did not respond to the April 26, 2012 letter requesting to reopen the case. On
April 24, 2015 appellant submitted an April 19, 2015 letter noting that a request to reopen the
claim had been submitted. By letter dated May 4, 2015, OWCP acknowledged receiving the
April 26, 2012 letter. It requested that appellant submit evidence that counsel at that time was
authorized to represent appellant. On May 27, 2015 OWCP received appellant’s authorization
for counsel.
By decision dated June 9, 2015, OWCP reviewed the merits and denied modification. It
found the medical evidence submitted was insufficient to establish a recurrence of an
employment-related medical condition.
On October 6, 2015 appellant submitted a claim for compensation (Form CA-7) and
indicated he was claiming a schedule award.
On May 16, 2016 appellant, through counsel requested reconsideration of the June 9,
2015 OWCP decision. He submitted a May 9, 2016 report from Dr. Smith, who diagnosed left
knee arthritis. Dr. Smith opined that it was medically logical that the initial injury could
ultimately show increasing arthritis, and to say that the arthritis arose otherwise would be
illogical. He further opined that the osteoarthritis was traumatic in nature and can directly be
attributed to his March 9, 2003 employment injury. Dr. Smith wrote that, while the left knee
condition may have been preexisting, it was clearly and substantially aggravated by the
employment injury.

6

Docket No. 11-0666 (issued November 4, 2011).

3

With respect to claim for a schedule award, by decision dated June 8, 2016, an OWCP
hearing representative remanded the case to OWCP for further development of the medical
evidence. As part of the development of the evidence, OWCP referred the case to an OWCP
district medical adviser (DMA). The DMA was asked to review the reports from Dr. Smith
dated March 14, 2012 and May 9, 2016.
In a report dated August 4, 2016, the DMA, Dr. Michael Katz, a Board-certified
orthopedic surgeon, wrote that there was no permanent impairment report. He further opined:
“Dr. Smith presents a well-reasoned narrative in favor of upgrading this claim to include the
diagnosis of osteoarthritis, knee, permanent aggravation. Based on the findings documented in
the operative report of [August 7, 2003], I would agree with him that the osteoarthritis may have
predated the injury; however, the necessity for the microfracture and the performance of the
partial meniscectomy are clearly linked with the progression of arthritis in a knee, and for that
reason it is my opinion that there is sufficient evidence to support upgrading this claim to include
osteoarthritis, left knee, permanent aggravation.”
By decision dated December 22, 2016, OWCP reviewed the merits of the claim, but
denied modification. It found that the medical evidence from Dr. Smith dated May 9, 2016 was
insufficient to establish an employment-related osteoarthritis. OWCP did not mention the
August 4, 2016 report from Dr. Katz.
LEGAL PRECEDENT
When a claim for a recurrence of medical condition is made more than 90 days after
release from medical care, a claimant is responsible for submitting a medical report that contains
a description of objective findings and supports causal relationship between the claimant’s
current condition and the previous work injury.7
ANALYSIS
In the present case, the accepted injury was a left knee medial meniscus tear resulting
from a March 9, 2003 employment injury. Appellant filed a claim for a recurrence of a medical
condition on or after June 10, 2010. In the prior appeal, the Board found the medical evidence at
that time failed to establish left knee arthritis or any other condition as causally related to the
March 9, 2003 employment injury.
The December 22, 2016 OWCP decision finds that appellant failed to establish a
recurrence of a medical condition, but it fails to address the relevant evidence of record. In an
August 4, 2016 report, Dr. Katz reviewed the reports of Dr. Smith dated March 14, 2012 and
May 9, 2016. He opined that a permanent aggravation left knee osteoarthritis was established by
the medical evidence. OWCP gave no indication in the December 22, 2016 decision that it
reviewed the evidence of record from Dr. Katz.
The August 4, 2016 report was clearly relevant to the issue presented, as the medical
condition claimed as a recurrence was osteoarthritis. It is well established that OWCP must
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013).

4

properly consider all relevant evidence of record before issuing a decision.8 As the Board’s
decisions are final as to the subject matter appealed, it is crucial that all evidence relevant to that
subject matter which was properly submitted to OWCP prior to the time of issuance of its final
decision be addressed by OWCP.9
This case will be remanded for a proper decision on the issue of a recurrence of a medical
condition on or after June 10, 2010. OWCP should review all of the relevant evidence with
respect to the issue presented and issue a de novo decision on the merits following any necessary
further development.
CONCLUSION
The Board finds the case is not in posture for decision and is remanded to OWCP.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 22, 2016 is set aside and the case is remanded to
OWCP for further action consistent with this decision of the Board.
Issued: August 4, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

See N.L., Docket No. 17-0454 (issued April 6, 2017); S.D., Docket No. 16-1866 (issued January 17, 2017);
William A. Couch, 41 ECAB 548, 553 (1990).
9

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.U., Appellant
and
U.S. POSTAL SERVICE, NEW YORK
PERFORMANCE CLUSTER, New York, NY,
Employer
__________________________________________

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

Docket No. 14-94
Issued: April 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 22, 2013 appellant, through his attorney, filed a timely appeal from the
August 12, 2013 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 met his burden of proof to establish that he sustained a
medical condition in the performance of duty.
FACTUAL HISTORY
On October 12, 2011 appellant, then a 51-year-old city carrier, filed a claim for
recurrence of disability (Form CA-2a) alleging that he sustained a recurrence of disability on
1

5 U.S.C. §§ 8101-8193.

October 8, 2011 due to a January 28, 2011 work injury. Appellant stated that he experienced
pain due to casing mail and moving his arms, head and shoulders to the left and right and up and
down. He stated that he sat and stood for extended periods and experienced pain which extended
from the back of his head to his back. Appellant stopped work on October 8, 2011.2 He
submitted medical evidence, including a disability slip from an attending physician.
On December 27, 2011 OWCP advised appellant that his case would be converted into a
traumatic injury as the description provided by him on the Form CA-2a constituted a new injury.
It requested that he submit additional factual and medical evidence. Appellant submitted
medical evidence, including a work restriction form of an attending physician.
In a January 27, 2012 decision, OWCP denied appellant’s claim that he sustained a
medical condition in the performance of duty. Regarding the reason for the denial, it stated that
appellant had not established the factual component of his claim. OWCP stated, “Specifically
your case is denied because the evidence is not sufficient to establish that the event(s) occurred
as you described. The reason for this finding is that you did not submit a statement describing in
detail how your injury occurred. It is unclear what workplace incident caused your claimed
condition.”
Appellant submitted a February 20, 2012 statement, received on March 2, 2012, in which
he stated that he returned to limited-duty work in September 2011. He noted that, due to the
damaged disc in his lower back, the sitting and standing required by this job was causing the disc
in his back to rub against the spine. Reaching up and down to sort and case mail made his neck
hurt and sent sharp pains to his head. He stated that his medical treatment was still ongoing with
surgery scheduled in the next month or so. Appellant submitted additional medical evidence
including a January 16, 2012 report of Dr. Sebastian Lattuga, an attending Board-certified
orthopedic surgeon.
In a May 31, 2012 decision, OWCP affirmed its May 31, 2012 decision noting, “Your
statement does not support that you suffered a head, back or neck condition due to a specific
work incident on October 8, 2011…. While you did provide a new statement, you still have not
described a specific work incident on October 8, 2011. Nor does the medical evidence of file
diagnose a condition in connection with the claimed incident. As such, it cannot be established
that an incident occurred at the time, place and in the manner alleged.”
In a December 6, 2012 statement, appellant indicated that his job required him to sort and
case the mail before delivery. These tasks required him to stand, sit, reach up, bend down, reach
up from side to side and look up and down constantly. Because of the damaged disc in
appellant’s lower back and neck, performing these activities caused the discs in his back and
neck to rub against the spinal cord. Appellant stated that reaching up and down to sort and case
the mail was making his neck hurt and sending sharp pains to his head. He noted that on
October 8, 2011 he decided that he could not continue to perform such work and his attending

2

At the time of his work stoppage, appellant was working four hours per day in a limited-duty job after he
sustained back, neck and extremity injuries at work on January 28, 2011 when snow fell on him and knocked him to
the ground.

2

physician indicated that he should stop work. Appellant submitted medical evidence in support
of his claim, including an April 30, 2013 report of Dr. Lattuga.
In an August 12, 2013 decision, OWCP affirmed its May 31, 2012 decision denying
appellant’s claim for a work-related injury. Regarding the reasons for the denial, it provided
Board precedent stating that an employee has not met his burden of proof to establish a workrelated condition where there are such inconsistencies in the evidence as to cast serious doubt
upon the validity of the claim. OWCP stated, “The evidence is not sufficient to modify the
decision dated May 31, 2012 because your statement of December 6, 2012 differs from the
original statement surrounding the circumstances of your claim dated February 20, 2012
therefore there is doubt surrounding the circumstances surrounding your claim.”
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.3 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
With respect to the requirement of establishing the occurrence of an injury at the time,
place, and in the manner alleged, it is noted that an injury does not have to be confirmed by
eyewitnesses in order to establish the fact that an employee sustained an injury in the
performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his or her subsequent course of action.5 An employee has not met
his or her burden of proof to establish the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.6 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury and failure to obtain medical treatment
may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in determining
whether a prima facie case has been established.7 However, an employee’s statement alleging

3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990). A traumatic
injury refers to injury caused by a specific event or incident or series of incidents occurring within a single workday or
work shift whereas an occupational disease refers to an injury produced by employment factors which occur or are
present over a period longer than a single workday or work shift. 20 C.F.R. § 10.5(q), (ee); Brady L. Fowler, 44 ECAB
343, 351 (1992).
5

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

6

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

7

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

3

that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.8
OWCP procedures provide that a case which is created may nonetheless lack appropriate
forms. Submission of an incorrect form is a technical error and it is improper to deny a case on
the basis that the claimant failed to submit the correct form.9
ANALYSIS
The Board finds that the case is not in posture for decision regarding whether appellant
sustained a medical condition in the performance of duty.
The Board finds that OWCP improperly denied appellant’s claim on the grounds that he
did not establish the factual component of his claim for a work-related condition. OWCP
suggested that there were such inconsistencies in his claim as to cast doubt on the validity of his
claim. It indicated that appellant initially claimed an October 8, 2011 traumatic injury but later
changed his claim to an occupational disease claim.
Although appellant initially filed his claim on an inappropriate claim form (recurrence of
disability claim form), this cannot serve as the basis for the denial of his claim.10 Contrary to
OWCP’s assertions, he consistently submitted statements in which he claimed that he sustained
an occupational disease due to the duties he performed over an extended period after returning to
limited-duty work in September 2011. Appellant described the duties of his job which required
sorting and casing mail. He noted that he was required to move his head, shoulders, arm and
back and that these movements caused injury to these body parts. Appellant also indicated that
the extended sitting and standing required by his job caused injury to his back.
The Board finds that appellant established the above-described work factors in
connection with a claim for a work-related occupational disease. As OWCP denied appellant’s
claim on a factual basis, it failed to adequately evaluate the medical evidence in light of these
established work factors. Therefore, the case shall be remanded to OWCP to properly consider
the medical evidence. After such development as it deems necessary, OWCP shall issue an
appropriate decision regarding whether appellant submitted sufficient medical evidence to
establish that a medical condition was sustained due to the accepted work factors.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
sustained a medical condition in the performance of duty. The case is remanded to OWCP for
additional development.

8

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, 2.800.3(c)(2) (June 2011).

10

See supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the August 12, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: April 18, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1592
Issued: May 3, 2021

Case Submitted on the Record

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

JURISDICTION
On September 9, 2020 appellant, through counsel, filed a timely appeal from a May 13,
2020 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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 13, 2020 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that a traumatic
incident occurred in the performance of duty on April 3, 2018, as alleged.
FACTUAL HISTORY
On March 20, 2020 appellant, then a 53-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on April 3, 2018 she suffered right arm paresthesia, right-sided neck
pain, headache, right shoulder pain, and right-sided head numbness and tingling while in the
performance of duty. On the reverse side of the claim form the employing establishment
acknowledged that appellant was injured in the performance of duty. Appellant did not stop work.
In a development letter dated April 9, 2020, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit the necessary evidence. No additional evidence was received.4
By decision dated May 13, 2020, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that an incident occurred on April 3, 2018, as
alleged. It noted that the mechanism of injury was unclear in appellant’s claim form and that she
had not responded to its April 9, 2020 development questionnaire. OWCP concluded, therefore,
that the requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
4

By decision dated April 9, 2020, OWCP denied appellant continuation of pay (COP) as she had not reported her
alleged April 3, 2018 injury on an OWCP-approved form within 30 days of the date of injury.
5

Supra note 2.

6

S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
7

M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
8
S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C.
Ellyett, 41 ECAB 992 (1990).

2

consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.9 The second component is whether the employment incident caused a personal injury.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that a traumatic
incident occurred in the performance of duty on April 3, 2018, as alleged.
In her Form CA-1, appellant reported that on April 3, 2018 she experienced right arm
paresthesia, right-sided neck pain, headache, right shoulder pain, and right-sided head numbness
and tingling due to advice and work restrictions from the employing establishment. She did not
submit a detailed account of the alleged injury or any additional corroborating factual evidence
describing how she sustained an injury on April 3, 2018. The Board has found that such a vague
recitation of facts does not support a claimant’s allegation that a specific event occurred to cause
a work-related injury.11
In a development letter dated April 9, 2020, OWCP informed appellant that the factual
evidence of record was insufficient to establish that the April 3, 2018 employment incident
occurred as alleged. It requested that appellant complete an attached questionnaire and provide a
detailed factual description of the alleged employment incident. Appellant, however, did not
respond to OWCP’s development letter. She neither presented evidence regarding the specific
mechanism of injury, as required in a claim for traumatic injury, nor did she allege that she
experienced a specific event, incident, or exposure at a definite time and place, and in a definite
manner.12 As appellant has not provided a detailed factual statement describing the April 3, 2018
employment incident alleged to have caused the claimed conditions, the Board finds that she has
not met her burden of proof to establish that she experienced the employment incident at the time,
place, and in the manner alleged, or that it caused an injury.13
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that a traumatic
incident occurred in the performance of duty on April 3, 2018, as alleged.

9

R.K., Docket No. 19-0904 (issued April 10, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

10

Y.D., Docket No. 19-1200 (issued April 6, 2020); John J. Carlone, 41 ECAB 354 (1989).

11

R.R., Docket No. 20-1057 (issued December 21, 2020); M.C., Docket No. 18-1278 (issued March 7, 2019);
M.B., Docket No. 11-1785 (issued February 15, 2012).
12

Id.; see also E.R., Docket No. 18-1235 (issued April 2, 2019); Tracey P. Spillane, 54 ECAB 608 (2003); Betty J.
Smith, 54 ECAB 174 (2002).
13

R.R., supra note 11; S.J., Docket No. 17-1798 (issued February 23, 2018).

3

ORDER
IT IS HEREBY ORDERED THAT the May 13, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 3, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4