United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS BARRACKS, Barstow, CA, Employer
__________________________________________

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Appearances:
William H. Brawner, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0893
Issued: November 1, 2016

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 March 25, 2016 appellant, through counsel, filed a timely appeal from a January 27,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision of March 3, 2015 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 claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP abused its discretion by denying reconsideration of the
merits of appellant’s case pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are set forth below.
On April 11, 2011 appellant, then a 41-year-old sandblaster, filed an occupational disease
claim (Form CA-2) alleging that he developed carpal tunnel syndrome as a result of performing
his repetitive work duties. He first became aware of his condition and realized that it resulted
from his federal employment on August 15, 2010. OWCP accepted appellant’s claim for
bilateral carpal tunnel syndrome and bilateral wrist tenosynovitis and paid compensation. On
October 13, 2011 appellant underwent authorized right carpal tunnel release surgery and stopped
work. He underwent left carpal tunnel release surgery on February 9, 2012. On June 6, 2012
appellant returned to part-time, light-duty work. On September 8, 2012 he returned to full-duty
work.
On September 11, 2012 appellant filed a traumatic injury claim (Form CA-1) alleging
that on February 23, 2012 he sustained whiplash and neck and back pain as a result of a motor
vehicle accident. He indicated that he was leaving an authorized physical therapy appointment
to treat his accepted bilateral carpal tunnel syndrome when he was struck from behind by another
vehicle.
A September 20, 2012 magnetic resonance imaging (MRI) scan examination report by
Dr. Benjamin Eyer, a Board-certified diagnostic radiologist, revealed minimal anterolisthesis and
one to two millimeter (mm) disc osteophyte complex, asymmetric to the right foraminal region at
C3-4. Dr. Eyer noted moderate foraminal narrowing on the right and minimal foraminal
narrowing on the left. He also observed a two mm diffuse disc bulge/osteophyte complex,
asymmetric to the left foraminal region, and facet arthropathy and uncovertebral hypertrophy,
particularly on the left of C6-7. Dr. Eyer reported no significant central canal or right-sided
foraminal narrowing.
Appellant was treated by Dr. Sarah Buenviaje-Smith, a Board-certified anesthesiologist
specializing in pain medicine, who related in an October 5, 2012 report that on February 23,
2012 appellant was leaving physical therapy when he was rear-ended by a car. Dr. BuenviajeSmith noted that he complained of upper and lower back pain since the accident and had filed a
workers’ compensation claim. She indicated that an MRI scan of the cervical spine revealed
three bulging discs. Upon examination of appellant’s back, Dr. Buenviaje-Smith observed
positive tenderness to deep palpation to bilateral L3-S1 paravertebral muscles and decreased
flexion and extension. Examination of appellant’s extremities revealed pain on flexion and
3

Docket No. 14-2043 (issued March 3, 2015).

2

extension maneuver of the bilateral wrists. Dr. Buenviaje-Smith diagnosed bilateral wrist pain
and cervical radiculopathy.
Dr. Rama T. Pathi, a Board-certified orthopedic surgeon, also treated appellant and
indicated in a January 2, 2013 note that appellant complained of neck pain and stiffness with
radiating numbness and back pain, stiffness, and spasm. He reported increased cervical lordosis
and increased cervical kyphosis. Range of motion was painful with flexion in the cervical spine.
Dr. Pathi diagnosed back and neck sprain, cervical disc degeneration, lumbosacral spondylolysis,
disc degeneration, and lumbago.
In a January 10, 2013 letter, Dr. Pathi related appellant’s February 23, 2012 history of
injury and concluded that “[appellant] sustained a brand new consequential injury to the neck
and back due to the accident.”
OWCP referred appellant to Dr. David T. Easley, a Board-certified orthopedic surgeon,
for a second opinion examination to determine whether appellant still suffered residuals of
bilateral carpal tunnel syndrome and bilateral wrist tenosynovitis and to determine the extent of
his disability.
In a January 22, 2013 decision, OWCP denied appellant’s consequential injury claim. It
accepted that the February 23, 2012 incident occurred as alleged, but found that the medical
evidence of record was insufficient to establish that he sustained additional diagnosed conditions
as a result of his accepted injury.4
On January 28, 2013 OWCP provided additional questions for the second-opinion
examiner. It requested that he provide an opinion on whether appellant suffered residuals of the
February 23, 2012 cervical and thoracic strains and to describe any nonindustrial or preexisting
disability of the neck and back.
In a January 29, 2013 report, Dr. Easley described appellant’s August 2010 occupational
disease injury as a result of his duties as a sandblaster for the employing establishment and the
February 23, 2012 employment-related motor vehicle accident. He noted appellant’s complaints
of constant pain on the tops of both hands and in both wrists and neck pain radiating to the
trapezius area bilaterally. Dr. Easley reviewed appellant’s history and discussed his medical
records. Upon physical examination, he observed decreased sensation of the wrist and full range
of motion. Dr. Easley provided range of motion findings for appellant’s cervical spine. He
diagnosed status post bilateral carpal tunnel release, bilateral carpal tunnel syndrome, and
tenosynovitis of the hands, resolved. Dr. Easley reported that appellant continued to suffer
residuals of bilateral carpal tunnel syndrome as evidenced by positive Phalen’s test and
diagnostic studies, but no longer suffered from bilateral wrist tenosynovitis. He indicated that
appellant had not reached maximum medical improvement for his bilateral carpal tunnel
syndrome. Regarding whether appellant continued to suffer residuals of the February 23, 2012
cervical and thoracic strains, Dr. Easley responded “No.”
4

On January 31, 2013 OWCP received appellant’s request, through counsel, for a telephone hearing before an
OWCP hearing representative. In a decision dated March 15, 2013, an OWCP hearing representative dismissed
appellant’s request for a hearing because OWCP had since accepted his consequential injury claim.

3

By decision dated February 26, 2013, OWCP expanded appellant’s claim to include the
conditions of cervical and thoracic sprains, resolved as of January 29, 2013. It explained that the
decision was based on Dr. Easley’s January 29, 2013 second-opinion report.
Appellant disagreed with the February 26, 2013 decision. In letters received by OWCP
on January 14, February 18, May 7, and June 6, 2014, he asserted that he sustained more severe
injuries, specifically bulging discs in his cervical, thoracic, and lumbar spines, as a result of the
February 23, 2012 incident and requested reconsideration.
Appellant continued to seek treatment from Dr. Buenviaje-Smith. In reports dated
March 20, 2013 to May 13, 2014, Dr. Buenviaje-Smith noted his complaints of continued left
elbow pain, neck pain, and low back pain radiating to his left lower extremity. She provided
physical examination findings and diagnosed bilateral carpal tunnel syndrome, cervicalgia,
cervical facet joint disease, and lumbar radiculopathy. Dr. Buenviaje-Smith requested
authorization for additional medical treatment.
Dr. Pathi also continued to treat appellant. In reports dated March 11, 2013 to March 10,
2014, he related appellant’s complaints of pain, numbness, tingling, and swelling of the bilateral
wrists. Dr. Pathi reviewed appellant’s diagnostic reports and provided physical examination
findings. He diagnosed bilateral carpal tunnel syndrome, cervical disc degeneration, cervicalgia,
neck sprain, and lumbago. Dr. Pathi reported that appellant’s bilateral wrist injury was the direct
result of the August 15, 2010 work-related injury.
In narrative reports dated July 2, 2013 to May 20, 2014, Dr. Pathi mentioned the
February 23, 2012 motor vehicle accident and related appellant’s current complaints of pain to
his entire spine radiating to his left lower extremity. He noted that appellant did not have any
lumbar spine issues prior to the February 23, 2012 accident. Dr. Pathi discussed that an MRI
scan examination of appellant’s lumbar spine revealed disc height losses, stenosis, and disc
osteophyte complexes on several levels. He also noted that a September 20, 2012 MRI scan
examination of appellant’s cervical spine demonstrated disc osteophyte complexes, facet
arthropathy, stenosis, and foraminal narrowing on various levels. Dr. Pathi disagreed with
Dr. Easley’s diagnoses of resolved lumbar and cervical sprains and indicated that he would
diagnose appellant with multiple lumbar and cervical disc herniations and bulges concurrent with
radiculopathy to the upper and lower extremities. He reported that appellant’s injuries to his
lumbar, thoracic, and cervical spine were the direct result of the February 23, 2012 automobile
accident.
On April 7, 2014 OWCP received appellant’s request for a hearing before an OWCP
hearing representative. By decision dated April 23, 2014, an OWCP hearing representative
denied appellant’s request for hearing as untimely filed.5

5

OWCP informed appellant that he was not entitled to an oral hearing as a matter of right because his request for
a hearing was not received within 30 days. The hearing representative exercised his discretion and determined that
appellant’s claim could equally well be addressed by requesting reconsideration and submitting new medical
evidence.

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In a letter dated April 30, 2014, appellant alleged that he had submitted four letters from
Dr. Pathi where he opined that MRI scan examinations had revealed bulging and herniated discs
to appellant’s lumbar, thoracic, and cervical spines as a result of the February 23, 2012 motor
vehicle accident. He included reports by Dr. Pathi and Dr. Buenviaje-Smith, which were
previously submitted.
By decision dated June 17, 2014, OWCP denied modification of its prior decision,
finding that the medical evidence of record failed to establish that appellant sustained ongoing
cervical and thoracic injuries due to the February 23, 2012 employment incident.
Appellant appealed to the Board on September 25, 2014.
On March 3, 2015 the Board issued a decision which affirmed OWCP’s June 17, 2014
denial decision.6 The Board found that appellant did not meet his burden of proof to establish
that he sustained additional conditions, specifically bulging discs in his cervical, thoracic, and
lumbar spines, causally related to his February 23, 2012 work-related accident. The Board
determined that Dr. Buenviaje-Smith and Dr. Pathi’s reports were of limited probative value to
establish causal relationship.
On November 10, 2015 OWCP received appellant’s November 2, 2015 request, through
counsel, for reconsideration. Counsel discussed the history of appellant’s claim and asserted that
OWCP failed to obtain a referee examination in order to resolve a conflict in medical opinion
evidence. He also alleged that Dr. Easley’s January 29, 2013 second-opinion report should no
longer carry the weight of medical evidence because new medical testing provided a full medical
history and listed the new medical reports that Dr. Easley had not reviewed. Counsel further
asserted that Dr. Easley’s report lacked medical rationale because Dr. Easley provided one-word
responses to OWCP’s questions without any medical explanation to support his responses. He
further objected to OWCP’s determination that Dr. Pathi’s medical opinion was contradictory
and speculative. Counsel reported that because Dr. Pathi did not begin to treat appellant until
roughly seven months after the date of the February 23, 2012 automobile accident, he could not
lawfully report on those injuries pursuant to state ethics rules. Lastly, he alleged that the new
medical reports established that appellant continued to suffer residuals of his February 23, 2012
automobile accident and counsel noted that three Board-certified specialists in orthopedic
medicine agreed that appellant continued to suffer residuals of his February 23, 2012 automobile
accident.
Appellant was examined on February 18, 2015 by Dr. Vikram Parmar, a Board-certified
orthopedic surgeon, for complaints of severe cervical and lumbar axial pain radiating down all
four extremities with severe numbness in both hands. Dr. Parmar indicated that appellant’s
problem began following “no apparent cause.” Upon examination, he observed severe pain on
palpation of appellant’s cervical spine and decreased range of motion with severe pain.
Examination of the lumbar spine also revealed decreased range of motion with severe pain and
severe palpable trigger points in the muscles of the low back. Dr. Parmar diagnosed cervical
stenosis of the spine, lumbar stenosis, and bilateral carpal tunnel syndrome. He explained that he
6

Supra note 3.

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needed to get the results of the electromyogram testing in order to determine the severity of
appellant’s cervical radiculopathy.
Dr. Buenviaje-Smith continued to treat appellant and related in progress reports dated
February 26 to December 8, 2015 that he complained of neck pain and tenderness, low back pain
with occasional bilateral lower extremity numbness, and bilateral hand pain and weakness.
Upon examination, appellant observed moderate tenderness to the paravertebral muscles at C3-7
and pain in the cervical and upper trapezius area. Dr. Buenviaje-Smith diagnosed carpal tunnel
syndrome, cervical spondylosis, cervicalgia, and lumbar degenerative disc disease.
In a March 30, 2015 narrative report, Dr. Pathi conducted an examination of appellant’s
bilateral wrists. He observed tenderness over the radial styloid, scapholunate joint and thenar
eminence and tenderness over the median nerve. Dr. Pathi also noted mild tenderness over the
volar aspect upon palpation. Sensation was diminished. Upon examination of the left wrist,
Dr. Pathi observed tenderness over the triangular fibrocartilage, scapholunate ligament, ulnar
styloid, radial styloid, and thenar eminence and numbness and tingling. He provided range of
motion examination findings and muscle strength measurements. Dr. Pathi diagnosed bilateral
carpal tunnel syndrome and recommended that appellant work light duty. He opined that
appellant’s injury to his right and left wrists were the direct result of a work-related injury that
occurred on August 15, 2010.
Dr. Pathi provided a letter dated April 9, 2015. He verified that he had treated appellant
for his August 15, 2010 bilateral wrist injury and for diagnoses of back sprain, degenerative disc
disease, loose body forearm, cervical lumbago, cervicalgia, neck sprain, lumbosacral
spondylolysis, trauma arthropath forearm, carpal tunnel syndrome, cervical disc degeneration,
and joint contracture forearm. Dr. Pathi reported that appellant’s accepted bilateral wrist injury
remained medically present and had not resolved. He noted that appellant was currently working
light duty.
In an April 21, 2015 MRI scan examination report, Dr. Eyer reported degenerative disc
disease within the lumbar spine, a two mm disc bulge with a small annular fissure at L2-3,
diffuse disc bulge and mild facet arthropathy at L4-5, and diffuse disc bulge measuring up to
five to six mm and moderate-to-severe foraminal narrowing on the right and moderate foraminal
narrowing on the left.
Appellant was examined by Dr. G.B. Ha’Eri, a Board-certified orthopedic surgeon, who
described appellant’s occupational disease injury to his wrists and hands in reports dated May 26
and August 30, 2015. Dr. Ha’Eri related that on February 23, 2012 appellant was involved in a
motor vehicle accident and subsequently experienced severe neck and back pain, which required
pain management treatment. Upon examination of appellant’s cervical spine, he observed
tenderness upon palpation of appellant’s neck and normal cervical lordosis. Examination of
appellant’s lumbar spine revealed decreased normal lordosis and tenderness upon palpation
along the paravertebral muscle spasm. Dr. Ha’Eri diagnosed bilateral carpal tunnel syndrome,
cervical strain and aggravation of a preexisting cervical degenerative disc disease, lumbosacral
strain and aggravation of a preexisting two-level lumbar disc displacement. He reported that
“the treating physicians considered the injury to appellant’s neck and lower back to be
consequential to the original injury of the bilateral carpal tunnel syndrome (he was involved in

6

accident when still was under care for carpal tunnel syndrome).” Dr. Ha’Eri disagreed with
Dr. Easley’s opinion that appellant’s neck and back condition had resolved and pointed out that
appellant was seeing a pain management specialist. He opined that appellant would “require
provisions for future medical care for residuals of his bilateral carpal tunnel syndrome and if
accepted for the conditions of his neck and particularly lower back.”
Dr. Pathi continued to treat appellant. In a July 9, 2015 narrative report, he noted that
appellant was involved in a motor vehicle accident on February 23, 2012 after attending a
physician’s appointment. Dr. Pathi explained that he was unable to address the injuries to
appellant’s cervical spine, lumbar spine, and thoracic spine due to the fact that he was not
authorized to treat the injuries that occurred on February 23, 2012. He reported that appellant’s
injuries were cervical, lumbar, and thoracic disc bulges, not sprains. In office notes dated
May 20 to November 23, 2015, Dr. Pathi related appellant’s symptoms of decreased joint range
of motion and weakness and pain to the low back, buttocks, and hamstring. He noted that
appellant injured his back on April 16, 2015 when he lifted a crate of files at work. Dr. Pathi
reported objective findings on examination and reviewed appellant’s records. He diagnosed
degenerative disc disease, back sprain, lumbago, and lumbosacral spondylosis. Dr. Pathi opined
that appellant’s back injury was a direct result of a work-related injury that occurred on
April 16, 2015.
Appellant provided a September 15, 2015 statement, wherein he explained that the
emergency room physician initially diagnosed his injuries as sprains, but warned him that his
conclusions were based on limited medical evidence and could be incomplete. He was advised
to see a chiropractor for the pain, but when the treatment was unsuccessful he sought treatment
from Dr. Pathi. Appellant reported that he also had just attended a union steward class and
realized that he could file a workers’ compensation claim. He noted that OWCP strongly
resisted his efforts change his treating physician to Dr. Pathi and that the delay caused
considerable disruption in his medical care.
In an October 14, 2015 narrative report, Dr. Buenviaje-Smith related that she had treated
appellant since May 31, 2012 for pain in his bilateral hands and wrist due to a work-related
injury. She reported that he discussed his neck and low back complaints on October 5, 2012 and
related that he was involved in a motor vehicle accident on February 23, 2012 when he was
leaving a physical therapy session for his carpal tunnel syndrome. Dr. Buenviaje-Smith
indicated that appellant’s cervical and bilateral carpal tunnel syndromes were accepted by
OWCP, but it was still under dispute whether his lumbar condition was work related. She
explained that she had treated both his neck and bilateral hand pain since they were both
included in his workers’ compensation claim.
Appellant resubmitted Dr. Easley’s January 29, 2013 second-opinion report, Dr. Simon
Robert’s June 24, 2013 diagnostic examination report, Dr. Pathi’s July 2 and August 12, 2013
reports, Dr. Thakran’s January 14, 2014 neurophysiological report, Dr. Tauber’s August 10,
2014 report, Dr. Pathi’s January 29, 2015 progress report, and an August 13, 2014 diagnostic
examination report. He also submitted OWCP’s January 22, 2013 and November 10, 2015
decisions, which denied appellant’s consequential injury claim.

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In a decision dated January 27, 2016, OWCP denied appellant’s reconsideration request
case. It determined that the medical reports from Dr. Pathi and Dr. Buenviaje-Smith were of
limited probative value and did not warrant merit review of the prior decision.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award
for or against payment of compensation at any time on his or her own motion or on application.7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.8
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.9 If the request is timely, but fails to meet at
least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.10
ANALYSIS
By decision dated January 27, 2016, OWCP denied appellant’s reconsideration request
finding that the evidence submitted was insufficient to warrant merit review.
In his reconsideration request received on November 10, 2015, counsel alleged that
Dr. Easley’s January 29, 2013 second-opinion report lacked medical rationale to demonstrate
that appellant suffered any ongoing residuals of his February 23, 2012 employment injury and
that new medical reports supported his claim of a consequential injury. OWCP determined in its
January 27, 2016 decision that medical reports by Dr. Pathi and Dr. Buenviaje-Smith did not
warrant further merit review of its March 3, 2015 denial decision. It explained that the medical
reports were of limited probative value because they lacked medical rationale to establish a
causal relationship between the February 23, 2012 automobile accident and any ongoing cervical
and lumbar conditions. On current appeal before the Board, counsel alleges that OWCP
improperly refused to reopen the case for reconsideration based on the probative value of the
new medical reports and not on whether appellant submitted relevant and pertinent new
evidence. He also asserts that the reconsideration request contained three new legal arguments
that OWCP failed to address.
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
9

Id. at § 10.607(a).

10

Id. at § 10.608(b)(3); E.R., Docket No. 09-1655 (issued March 18, 2010).

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The Board has reviewed the case record and finds that appellant submitted relevant and
pertinent new evidence not previously considered by OWCP sufficient to warrant further merit
review. Along with his reconsideration request, appellant submitted a February 18, 2015 report
by Dr. Parmar, an April 21, 2015 diagnostic report by Dr. Eyer, and May 26 and August 30,
2015 reports by Dr. Ha’Eri, not previously reviewed by OWCP. Although these reports were
received by OWCP on November 10, 2015, OWCP makes no mention of them in its January 27,
2016 decision.11 The Board has found that because its jurisdiction of a case is limited to
reviewing the evidence that was before OWCP at the time of its final decision, it is critical that
OWCP review all evidence relevant to that subject matter and received by OWCP prior to the
issuance of its final decision.12 In its January 27, 2016 reconsideration decision, OWCP merely
noted that the reports by Drs. Pathi and Buenviaje-Smith were insufficient to warrant merit
review. It failed to address the new medical reports by Drs. Parmar, Eyer, and Ha’Eri. In light
of OWCP’s failure to address all relevant evidence before it at the time, the case shall be
remanded for a proper review of the evidence and issuance of an appropriate final decision.13
CONCLUSION
The Board finds that the case is not in posture for decision.

11

See R.M., Docket No. 14-1083 (issued July 2, 2015).

12

See William A. Couch, 41 ECAB 548 (1990); E.Z., Docket No. 14-274 (issued March 16, 2015).

13

T.N., Docket No. 15-0440 (issued April 14, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the January 27, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further proceedings consistent
with this opinion.
Issued: November 1, 2016
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
__________________________________________
R.J., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Vicksburg, MS, Employer
__________________________________________

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Appearances:
James R. Clary, Jr., Esq., for the appellant
No appearance, for the Director

Docket No. 08-2151
Issued: June 19, 2009

Oral Argument May 7, 2009

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

JURISDICTION
On July 31, 2008 appellant, through his attorney, filed a timely appeal from an April 25,
2008 merit decision of the Office of Workers’ Compensation Programs, denying modification of
its termination of his compensation and authorization for medical treatment. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
effective November 14, 2003 on the grounds that he had no further disability causally related to
his August 19, 2001 employment injury; (2) whether the Office properly terminated his
authorization for medical treatment; and (3) whether appellant has established that he had any
continuing employment-related disability after November 14, 2003.

FACTUAL HISTORY
On August 19, 2001 appellant, then a 40-year-old revetment worker, filed a traumatic
injury claim alleging that on that date he injured his lower back and neck when he fell backwards
onto rocks after he was struck below the abdomen by a swaying spring line. He stopped work on
that date.1 The Office accepted appellant’s claim for cervical strain.
Appellant was in a nonwork-related motor vehicle accident in November 2001.2 A
magnetic resonance imaging (MRI) scan study of the cervical spine, obtained on November 1,
2002, revealed degenerative changes and a slight diffuse disc bulge at C3-4.3 An MRI scan
study of the lumbar spine dated November 2, 2001 showed degenerative changes and a disc
bulge at L1-2 contracting the ventral surface of the conus medullaris and diffuse disc bulges at
L2-3, L3-4, L4-5 and L5-S1. In a report dated February 12, 2002, Dr. Joseph Bourcree, a Boardcertified orthopedic surgeon, evaluated appellant for neck, arm, back and leg pain. He stated:
“[Appellant] reports on August 19, 2001, he sustained a work[-]related accident
as he was hit by a cable in the groin area and knocked down. In November 2001,
[he] was involved in a motor vehicle accident as a passenger, restrained with lap
seat belt only in which the vehicle turned over several times. [Appellant] reports
that his neck, arm, back and leg pain has been worse following the motor vehicle
accident.”
Dr. Bourcree diagnosed cervical, thoracic and lumbar spondylosis and degenerative disc
disease with radiculitis.
In a treatment note dated November 7, 2002, Dr. Warren Williams, Sr., a Board-certified
neurosurgeon, diagnosed failed back syndrome and found that appellant was disabled from work.
On January 9, 2003 he diagnosed lumbar pain/strain and indicated that his work status was
unknown.4
On April 2, 2003 the Office referred appellant to Dr. Alonzo Diodene, Jr., a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated May 1, 2003,
Dr. Diodene found that appellant had symptoms of chronic cervical and lumbar strain
unsupported by objective findings. He diagnosed chronic pain syndrome of the cervical and
lumbar spine which might have a psychological component. Dr. Diodene opined that appellant
did not have residuals of the August 19, 2001 work injury and noted that his symptoms “could
1

In a statement accompanying the claim, appellant’s supervisor indicated that he asked the physician at the
emergency room whether he could perform light-duty work. The physician said yes but appellant responded that he
wanted 14 days off as stated on the report. Appellant further related that he was not going to return to work.
2

Although the Office requested that appellant provide a copy of the motor vehicle accident report, none was in
the record.
3

The record contains only the first page of the cervical MRI scan study.

4

On May 1, 2003 Dr. Williams diagnosed cervical and lumbar pain/strain of the right leg and opined that his
work status was unknown. On May 30, 2003 he diagnosed cervical and lumbar strain/sprain and found that
appellant was disabled.

2

easily be related to the motor vehicle accident in which he was involved in November 2001.” He
found that appellant could work full time with restrictions. In a May 21, 2003 addendum,
Dr. Diodene checked “yes” that appellant’s cervical strain due to his August 19, 2001
employment injury had resolved.
The Office determined that a conflict in medical opinion existed between Dr. Williams
and Dr. Diodene on the issue of appellant’s disability for employment. On August 1, 2003 it
referred him to Dr. Donald C. Faust, a Board-certified orthopedic surgeon, for an impartial
medical examination. On August 19, 2003 Dr. Faust reviewed the history of injury and the
medical evidence of record. He listed findings on examination of pain with neck motion with
absent two-point discrimination in the left hand and absent bilateral pinpoint discrimination.
Dr. Faust noted that an MRI scan study of the cervical spine dated November 2, 2001 showed
degenerative changes and a noncomforming disc herniation at C5-6 slightly contacting the cord.
He stated:
“[Appellant] appears to have been struck by a cable in August 2001. He was
involved in a motor vehicle accident in November 2001, also. [Appellant] has
numerous subjective complaints without any objective signs of permanent injury.
His physical examination does not point to any orthopedic condition involving the
bones and joints or neurologic dysfunction. The radiographic and MRI [scan]
studies to date do not point to a pathology caused by the event in August 2001.
The abnormal changes are more consistent with degenerative changes appropriate
for his age and level of activity.”
Dr. Faust found that appellant did not require any further treatment or restrictions on
activities. In an accompanying work restriction evaluation, he advised that appellant could
perform his usual employment without any limitations.
On October 10, 2003 the Office notified appellant of its proposal to terminate his
compensation and authorization for medical treatment on the grounds that he had no further
residuals of his work injury. By decision dated November 14, 2003, it finalized its termination
of appellant’s compensation and medical benefits effective that date.
In progress reports dated October 10 and November 7, 2003, Dr. Williams diagnosed
cervical and lumbar pain/strain and indicated that appellant’s work status was unknown. On
December 5, 2003 he diagnosed lumbar pain and again found work status unknown.
On June 15, 2004 the Office received appellant’s request for an oral hearing. By decision
dated July 8, 2004, it denied his request for an oral hearing as untimely.
On November 11, 2004 appellant, through his attorney, requested reconsideration. He
submitted progress reports from Dr. Williams dated September 17, 2001 through July 13, 2004
and a report dated April 11, 2003 from Dr. James E. Hines, III, an internist, who noted that
appellant sustained injuries on October 3, 2001 while working for the employing establishment.
Dr. Hines diagnosed cervical sprain, low back sprain, arthritis. He concluded that appellant
sustained work injuries on August 15, 2001.

3

By decision dated December 7, 2004, the Office denied his request for reconsideration as
the evidence was insufficient to warrant reopening his case for further merit review.
Appellant submitted additional progress reports from Dr. Williams.
By decision dated February 3, 2006, the Board affirmed the Office’s July 8, 2004
decision, denying appellant’s request for an oral hearing as untimely.5
In a decision dated April 12, 2006, the Office denied appellant’s request for
reconsideration as it was untimely and the evidence submitted was insufficient to warrant
reopening the case for merit review.
Appellant appealed to the Board. In an order dated November 9, 2006, the Board granted
the Director’s motion to remand the case and cancel oral argument.6 The Director noted that the
Office had not retained the envelope containing appellant’s reconsideration request and thus
erred in denying his request as untimely. The Director advised that, on remand, the Office would
conduct a “merit reconsideration decision pursuant to 20 C.F.R. § 10.606.”
By decision dated February 8, 2007, the Office denied modification of its prior decisions.
On February 7, 2008 appellant, through his attorney, requested reconsideration. He
submitted a September 2, 2002 report from Dr. Hines, who opined that appellant was under his
care and unable to work. In a report dated February 7, 2008, Dr. Hines discussed his treatment
of appellant from August 29, 2001 to the present and the results of the November 2, 2001 MRI
scan studies of the cervical and lumbar spine. He stated:
“I have continued to treat [appellant] continuously following both the workrelated accident and resultant injury and also subsequent to the intervening
accident that it alleged to be the factor causing his current permanent disability. It
is my professional opinion that the injuries evidenced by the MRI [scan studies]
dated November 2, 2001 of [appellant’s] cervical and lumbar spine were the
direct result of the work-related injury. I referred him to Dr. Bourcree for further
evaluation and following limited remedial treatment, [appellant] was subsequently
involved in an automobile accident. However, while his injuries may have been
exacerbated by this intervening accident, it is clear to me that the work[-]related
accident started a chain of events that have led to his permanent disability.
“I would once again defer to the opinion of an orthopedic surgeon to determine
the extent to which each of the two accidents contributed to his current medical
condition. However, his initial injuries, all as evidenced by the November 2001

5

In an order dated December 8, 2004, the Board dismissed appellant’s appeal of the July 8, 2004 decision,
docketed as No. 05-860, for lack of attorney authorization. Order Dismissing Appeal, Docket No. 05-76 (issued
December 8, 2004). The Board subsequently reinstated the appeal but dismissed the appeal again in an order dated
February 10, 2005. Order Dismissing Appeal, Docket No. 05-76 (issued February 10, 2005).
6

Docket No. 06-1280 (issued November 9, 2005).

4

MRI [scan studies] were caused by the work-related accident which occurred on
August 19, 2001.”
By decision dated April 25, 2008, the Office denied modification of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.7
The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.8
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.9 The implementing regulations states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.10 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.11
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained cervical strain on August 19, 2001.
Appellant stopped work on that date and did not return. The Office determined that a conflict
existed between Dr. Williams, his attending physician, and Dr. Diodene, an Office referral
physician, on the extent of his disability for employment. It referred appellant to Dr. Faust for an
impartial medical examination.
Where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.12 The Board finds that the opinion of Dr. Faust, a
7

Kathryn E. Demarsh, 56 ECAB 677 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

8

Jaja K. Asaramo, 56 ECAB 200 (2004); Gewin C. Hawkins, 52 ECAB 242 (2001).

9

5 U.S.C. § 8123(a).

10

20 C.F.R. § 10.321.

11

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

12

Id.

5

Board-certified orthopedic surgeon, selected to resolve the conflict in opinion, is well
rationalized and based on a proper factual and medical history. Dr. Faust accurately summarized
the relevant medical evidence, provided detailed findings on examination and reached
conclusions about appellant’s condition which comported with his findings.13 On August 1,
2003 he reviewed the medical evidence of record, including the results of diagnostic studies.
Dr. Faust found subjective complaints on examination without any objective findings of an
orthopedic condition. He provided rationale for his opinion by noting that the MRI scan studies
showed changes “consistent with degenerative changes appropriate for [appellant’s] age and
level of activity” rather than anything caused by the August 2003 work injury. As Dr. Faust’s
report is detailed, well rationalized and based on a proper factual background, his opinion is
entitled to the special weight accorded an impartial medical examiner.14 The Office met its
burden of proof to terminate appellant’s compensation benefits.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.15 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.16
ANALYSIS -- ISSUE 2
The Office met its burden of proof to terminate authorization for medical benefits
through the opinion of Dr. Faust, the impartial medical examiner, who found that appellant had
no need for further medical treatment due to his accepted condition of cervical strain. Dr. Faust
explained that, based on his physical examination and the diagnostic studies, he required no
further treatment. He reported that there were no objective findings of an orthopedic condition
supportive of appellant’s subjective complaints, noting that the MRI scan results revealed
degenerative changes consistent with appellant’s age and level of activity. As Dr. Faust’s
opinion is detailed and well rationalized, it is entitled to the special weight accorded an impartial
medical examiner and establishes that appellant has no further residuals of his accepted
employment injury.
LEGAL PRECEDENT -- ISSUE 3
Once the Office properly terminates appellant’s compensation benefits, the burden shifts
to him to establish that he has continuing disability after that date related to his accepted injury.17
To establish a causal relationship between the condition as well as any attendant disability
13

Manuel Gill, 52 ECAB 282 (2001).

14

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

15

Katheryn E. Demarsh, supra note 7; Pamela K. Guesford, 53 ECAB 727 (2002).

16

Id.

17

Manual Gill, supra note 13.

6

claimed and the employment injury, an employee must submit rationalized medical evidence
based on a complete medical and factual background, supporting such a causal relationship.18
Causal relationship is a medical issue and the medical evidence required to establish a causal
relationship is rationalized medical evidence.19
ANALYSIS -- ISSUE 3
Subsequent to the Office’s termination of compensation, appellant submitted progress
reports from Dr. Williams dated October 2003 to July 2005. As Dr. Williams was on one side of
the conflict in medical opinion resolved by the impartial medical examiner and his progress
reports contain no new rationale, his reports are insufficient to overcome the special weight
accorded the impartial medical examiner or to create a new conflict.20
In a report dated April 11, 2003, Dr. Hines diagnosed cervical sprain, low back sprain
and arthritis. He found that appellant had sustained an injury in August 2001. Dr. Hines,
however, did not address the relevant issue of whether he was disabled subsequent to
November 14, 2003 and thus his report is of little probative value.
On February 7, 2008 Dr. Hines reviewed his treatment of appellant and the results of
diagnostic studies. He attributed the findings on the MRI scan studies of November 2, 2001 to
the accepted employment injury. Dr. Hines opined that the motor vehicle accident may have
aggravated appellant’s condition but that the employment injury began the “chain of events that
have led to his permanent disability.” He deferred to a specialist to determine the percentage that
the work injury and the motor vehicle accident contributed to appellant’s disability. Dr. Hines
did not directly address the pertinent issue of whether appellant remained disabled after
November 14, 2003 due to his August 19, 2001 work injury. Instead, he recommended that a
specialist evaluate him and determine the extent of his employment-related disability. Dr. Hines
report is insufficient to overcome the weight accorded Dr. Faust, the impartial medical examiner.
Consequently, appellant has not met his burden of proof to establish that he had any continuing
disability after November 14, 2003.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation and
authorization for medical treatment effective November 14, 2003 on the grounds that he had no
further disability causally related to his August 19, 2001 employment injury. The Board further
finds that he has not established that he had any continuing employment-related disability after
November 14, 2003.

18

Id.

19

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

20

Barbara J. Warren, 51 ECAB 413 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 25, 2008 is affirmed.
Issued: June 19, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
GENERAL SERVICES ADMINISTRATION,
PUBLIC BUILDINGS SERVICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 17-1946
Issued: August 23, 2018

Case Submitted on the Record

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

JURISDICTION
On September 18, 2017 appellant filed a timely appeal from a September 6, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated June 2, 2016, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 20, 1999 appellant, a 31-year-old federal law enforcement officer, filed a
traumatic injury claim (Form CA-1) alleging that she sustained a minor concussion and abrasions
to her body after a fall due to heavy crosswinds on the parkway, which caused her to lose control
of her bike. OWCP accepted the claim for contusion to head and body and closed head concussion.
On March 29, 2016 appellant filed a claim for a schedule award (Form CA-7).
In a January 17, 2014 report, Dr. Wendy Ann J. Hutcheson, a Board-certified family
practitioner, diagnosed diabetes, joint pain, gastroesophageal reflux disease (GERD), hiatal hernia,
arthropathy of left shoulder, bilateral hip joint pain, right toe pain, and chronic maxillary sinusitis.
On January 24, 2014 Dr. Hutcheson diagnosed bursitis of the left shoulder.
In a May 28, 2014 report, Dr. Hutcheson diagnosed bilateral knee joint pain and low back
pain.
On December 31, 2014 Dr. Hutcheson diagnosed right lateral epicondylitis, screening for
colon cancer, lumbar muscle strain, migraine, and headache.
In a September 8, 2015 report, Dr. Audrey K. Tsao, a Board-certified orthopedic surgeon,
diagnosed bilateral trochanteric bursitis.
On September 16, 2015 Dr. Tsao diagnosed left trochanteric bursitis and bursitis of the
bilateral hips.
Appellant further submitted physical therapy reports dated February 12, 2014 and
September 10, 2015.
In an April 28, 2016 development letter, OWCP notified appellant of the deficiencies of
her claim and requested a medical report from a physician assessing her permanent impairment
based on the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) and establishing that she had reached maximum medical
improvement. No additional evidence was received.
By decision dated June 2, 2016, OWCP denied appellant’s schedule award claim, finding
no medical evidence of record to establish permanent impairment of a scheduled member or
function of the body. A memorandum in the case record indicates that on June 9, 2016 appellant
telephoned OWCP to request a copy of its June 2, 2016 decision, which she claimed she never
received. Appellant requested that her address of record be changed to a new address. On June 9,
2016 OWCP mailed another copy of the June 2, 2016 decision to the new address provided by
appellant.
On June 8, 2017 appellant requested reconsideration by appeal request form dated
June 5, 2017. In support thereof, she submitted a June 5, 2017 narrative statement contending that
her reconsideration request was timely filed since she did not receive the June 2, 2016 OWCP
decision until after it was resent to her on June 9, 2016.

2

Appellant submitted a November 9, 2016 report from Dr. Heather Devick, a Boardcertified internist, who noted that “[p]ermanent impairment ratings have been deferred to physical
therapy for a functional capacity evaluation” and a functional capacity evaluation dated March 8,
2017 that advised her not to return to her date-of-injury position.
A December 6, 2016 computerized tomography (CT) scan of the bilateral hips revealed
degenerative changes of the hips with subchondral cystic changes greater on the right than the left.
In a June 12, 2017 letter, OWCP acknowledged receipt of appellant’s change of address
request and advised that action had been taken to change her address for the purposes of case
management.
By decision dated September 6, 2017, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).3 One such limitation provides that an application
for reconsideration must be received 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 time limitation does
not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).5
Section 10.607(b) provides that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.6
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.7 The evidence must be positive, precise, and explicit and
must be manifest on its face that OWCP committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
2

See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

3

See Annette Louise, 54 ECAB 783, 789-90 (2003).

4

20 C.F.R. § 10.607(a).

5

See Jesus D. Sanchez, supra note 2; F.R., Docket No. 09-0575 (issued January 4, 2010).

6

20 C.F.R. § 10.607(b).

7

See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

8

See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., Docket No. 09-0956 (issued April 15, 2010).

9

See Richard L. Rhodes, 50 ECAB 259, 264 (1999).

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as to produce a contrary conclusion.10 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP.11
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.12
The Board makes an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit
review in the face of such evidence.13
In schedule award cases, a distinction is made between an application for a schedule award
and a request for reconsideration of the denial of a schedule award. When a claimant is asserting
that the original award was erroneous based on his or her medical condition at that time, this is a
request for reconsideration. A claim for a schedule award or increased schedule award may be
based on new exposure to employment factors or on the progression of an employment-related
condition, without new exposure, resulting in greater permanent impairment.14 Even if the term
reconsideration is used, when a claimant is not attempting to show error in the prior schedule award
decision and submits medical evidence regarding a permanent impairment at a date subsequent to
the prior schedule award decision, it should be considered a claim for an increased schedule award.
A request for a schedule award or increased schedule award is not subject to time limitations.
OWCP should issue a merit decision on the schedule award claim, rather than adjudicate an
application for reconsideration.
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. OWCP’s regulations and procedures establish a one-year time
limit for requesting reconsideration, which begins on the date of the original OWCP decision.15
The Board has held that for OWCP decisions issued on or after August 29, 2011, the date of the
application for reconsideration is the “received date” as recorded in Integrated Federal Employees’

10

See Leona N. Travis, 43 ECAB 227, 241 (1991).

11

See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

12

See Veletta C. Coleman, 48 ECAB 367, 370 (1997).

13

See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

14
See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994); C.M., Docket No. 17-0310
(issued February 15, 2017); see also B.K., 59 ECAB 228 (2007) (where it was evident that the claimant was seeking
a schedule award based on new and current medical evidence, OWCP should have issued a merit decision on the
schedule award claim rather than adjudicate an application for reconsideration); see also J.F., Docket No. 13-0112
(issued November 6, 2013); R.B., Docket No. 16-1863 (issued April 3, 2017).
15

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

4

Compensation System (iFECS).16 The most recent merit decision was OWCP’s June 2, 2016
schedule award decision. Appellant had one year from the date of this decision to make a timely
request for reconsideration. Since appellant’s request was not received by OWCP until June 8,
2017, it was filed outside the one-year time period.17 As appellant’s June 8, 2017 request for
reconsideration was received more than one year after the June 2, 2016 merit decision, it was
untimely filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in
the denial of her claim.18 Appellant requested reconsideration on June 8, 2017. When the
underlying compensation issue is a schedule award, an initial question is whether the claimant has
submitted an application for reconsideration or has requested an increased schedule award. Even
if appellant has requested reconsideration, if there is new and relevant evidence with respect to an
increased permanent impairment, then a claimant may be entitled to a merit decision on the issue,19
but when a claimant does not submit any relevant evidence with respect to an increased schedule
award, then OWCP may properly determine that she has filed an application for reconsideration
of a schedule award decision.20 The Board finds that appellant did not submit relevant evidence
with respect to the extent of her permanent impairment and, thus OWCP properly considered her
submission as an application for reconsideration.
The record indicates that OWCP mailed a copy of the June 2, 2016 merit decision to
appellant’s correct address of record. It is presumed, in the absence of evidence to the contrary,
that a notice mailed to an individual in the ordinary course of business was received by the
individual.21 This presumption known as the mailbox rule arises when it appears from the record
that the notice was properly addressed and duly mailed.22 The appearance of a properly addressed
copy in the case record, together with the mailing custom or practice of OWCP itself, will raise
the presumption that the original was received by the addressee.23

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see
Veletta C. Coleman, supra note 12.
17

OWCP’s procedures were changed, effective August 29, 2011. Section 10.607 of the new regulations provides
that the date of the reconsideration request for timeliness purposes was changed from the date the request was mailed
to the date the request was received by OWCP. See 20 C.F.R. § 10.607 (2011); see also C.B., Docket No. 13-1732
(issued January 28, 2014) (where the Board held that for OWCP decisions issued on or after August 29, 2011, the date
of the application for reconsideration is the “received date” as recorded in iFECS). Therefore, OWCP utilized the
new regulations and found that as OWCP received appellant’s request for reconsideration on September 23, 2016, or
over one year after the September 22, 2015 decision, appellant’s request was untimely filed.
18

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

19

Supra note 15.

20

See W.J., Docket No. 12-1746 (issued February 5, 2013).

21

See George F. Gidicsin, 36 ECAB 175 (1984) (the Board held that when OWCP sends a letter of notice to a
claimant, it must be presumed, absent any other evidence, that the claimant received the notice). See also D.L. Solano,
Docket No. 04-0702 (issued July 2, 2004).
22

See Michelle Lagana, 52 ECAB 187 (2000).

23

See Larry L. Hill, 42 ECAB 596 (1991).

5

In its June 2, 2016 decision, OWCP denied appellant’s schedule award claim, finding that
no medical evidence was submitted to establish permanent impairment of a scheduled member or
function of the body. In support of her untimely request for reconsideration, appellant submitted
a November 9, 2016 report from Dr. Devick. Dr. Devick failed to provide an impairment rating
based on the sixth edition of the A.M.A., Guides. Thus, the Board finds that this evidence does
not demonstrate clear evidence of error because it does not show that OWCP committed an error
in denying appellant’s schedule award claim, nor raise a substantial question as to the correctness
of OWCP’s decision.
Similarly, December 6, 2016 CT scan and March 8, 2017 functional capacity evaluation
fail to provide an impairment rating from a physician based on the sixth edition of the A.M.A.,
Guides. Therefore, the Board finds that this documentation does not demonstrate clear evidence
of error because it does not show that OWCP committed an error in denying appellant’s schedule
award claim, nor raise a substantial question as to the correctness of OWCP’s decision.
To demonstrate clear evidence of error, it is insufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is
intended to represent a difficult standard.24 None of the evidence or argument submitted on
reconsideration manifests on its face that OWCP committed an error in denying appellant’s claim
for a schedule award. Appellant has not otherwise submitted evidence of sufficient probative value
to raise a substantial question as to the correctness of OWCP’s decision. Thus, appellant’s
untimely request for reconsideration is insufficient to demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

24

Supra note 16 at Chapter 2.1602.5.a (February 2016); see Dean D. Beets, supra note 7.

6

ORDER
IT IS HEREBY ORDERED THAT the September 6, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 23, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.F., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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Appearances:
John Eiler Goodwin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0908
Issued: July 5, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 26, 2018 appellant, through counsel, filed a timely appeal from a September 27,
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
3

5 U.S.C. § 8101 et seq.

Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). After exercising its discretion, by order dated July 5, 2018, the Board denied the request as appellant’s
arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the
record. Order Denying Request for Oral Argument, Docket No. 18-0908 (issued July 5, 2018).

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits commencing December 29, 2016 because he had no residuals
of his accepted April 16, 1996 employment injury after that date.
FACTUAL HISTORY
OWCP accepted that on April 16, 1996 appellant, then a 40-year-old maintenance
mechanic, sustained a low back strain, cervical strain, bilateral shoulder strains, and temporary
aggravation of ankylosing spondylitis when he attempted to hold an unstable oil barrel upright
while in the performance of duty. Appellant stopped work on April 16, 1996 and OWCP paid
wage-loss compensation under OWCP File No. xxxxxx253.4
Appellant received treatment for his medical condition, since 2003, from Dr. John F.
Hillyer, a Board-certified anesthesiologist. In a June 14, 2006 report, Dr. Hillyer reported his
findings of the physical examination he conducted on that date. He diagnosed ankylosing
spondylitis, polyarthralgias, and chronic neck, shoulder, and back pain. For the following decade,
the record contains no report of a substantive physical examination conducted by a physician.
In a January 25, 2016 report, Douglas Stamp, an attending physician assistant, provided a
diagnosis of back sprain/strain.
Due to the paucity of medical evidence in the case record, in October 2016 OWCP referred
appellant for a second examination with Dr. Vicki Kalen, a Board-certified orthopedic surgeon. It
provided Dr. Kalen with a statement of accepted facts (SOAF) which listed the accepted conditions
due to the April 16, 1996 employment injury as low back strain, cervical strain, bilateral shoulder
strains, and temporary aggravation of ankylosing spondylitis. OWCP requested that Dr. Kalen
provide an opinion regarding whether appellant continued to have residuals or disability from the
April 16, 1996 employment injury.
In an October 27, 2016 report, Dr. Kalen detailed appellant’s factual and medical history
and reported the findings of the physical examination she conducted on that date. She indicated
that the examination revealed that appellant had 5/5 strength in all motor groups of his upper and
lower extremities and that he did not have any sensory deficits. There was reduced range of motion
of the neck, shoulders, and back. Dr. Kalen noted that appellant’s gait was slow and mildly wide,
but that it was otherwise normal and was not antalgic. She indicated that the employment-related
conditions of low back strain, cervical strain, bilateral shoulder strains, and temporary aggravation
of ankylosing spondylitis had long since resolved. Dr. Kalen opined that appellant’s reduced range
of motion of the neck, shoulders, and back was due to the natural progression of his preexisting
ankylosing spondylitis. She maintained that this opinion was supported by the fact that the
4

Under a separate file (OWCP File No. xxxxxx233), OWCP had previously accepted that appellant sustained a
traumatic lumbosacral strain on July 10, 1995. Appellant was off work for the period July 10 to 30, 1995 due to the
July 10, 1995 employment injury. The Board notes that the July 10, 1995 employment injury is not the subject of the
present appeal. OWCP administratively combined OWCP File No. xxxxxx253 with OWCP File No. xxxxxx233 and
designated OWCP File No. xxxxxx253 as the master file.

2

decreased range of motion was symmetric and that appellant was neurologically fully intact.
Dr. Kalen concluded that appellant had no disability or other residuals from his April 16, 1996
employment injury. She attached an October 27, 2016 work capacity evaluation form (Form
OWCP-5c) which contained work restrictions, but she specifically indicated that the restrictions
were for the nonwork-related conditions of psoriatic arthritis, Reiter’s disease, and ankylosing
spondylitis.5
In a November 9, 2016 letter, OWCP advised appellant that it proposed to terminate his
wage-loss compensation and medical benefits based on the well-rationalized October 27, 2016
report of Dr. Kalen, OWCP’s referral physician. It afforded him 30 days to submit evidence or
argument challenging the proposed termination action.
Appellant submitted a November 22, 2016 report in which Dr. Hillyer indicated that
appellant’s “chronic lumbar strain[-]related injury exacerbated his [ankylosing] spondylitis which
is not likely to improve.” Dr. Hillyer reported that appellant continued to need medication to
manage his pain symptoms.
By decision dated December 29, 2016, OWCP terminated appellant’s wage-loss
compensation and medical benefits commencing that same date based on the October 27, 2016
report of Dr. Kalen, finding that there were no employment-related disability or residuals.
Appellant, through counsel, requested a hearing with a representative of OWCP’s Branch
of Hearings and Review. During the hearing held on July 20, 2017, counsel argued that Dr. Kalen
failed to adequately address all of appellant’s accepted work-related conditions because OWCP
actually accepted his claim for permanent aggravation of ankylosing spondylitis, rather than only
temporary aggravation of ankylosing spondylitis. Counsel asserted that this position was
supported by the fact that the case record contained several informational letters which listed
“ankylosing spondylitis” as an accepted employment condition related to the April 16, 1996
employment injury, including an April 15, 2008 letter through which OWCP requested additional
medical evidence.
By decision dated September 27, 2017, OWCP’s hearing representative affirmed OWCP’s
December 29, 2016 decision finding that the weight of the medical evidence with respect to
residuals of appellant’s April 16, 1996 employment injury continued to rest with the opinion of
Dr. Kalen.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying termination
or modification of compensation benefits.6 OWCP may not terminate compensation without

5

Dr. Kalen indicated that the nonwork-related ankylosing spondylitis was the most prominent cause for the work
restrictions.
6
C.C., Docket No. 17-1158 (issued November 20, 2018); I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB
541 (1986).

3

establishing that the disability ceased or that it was no longer related to the employment.7 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.8
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits commencing December 29, 2016 because he had no residuals
of his accepted April 16, 1996 employment injury after that date.
In an October 27, 2016 report, Dr. Kalen indicated that the physical examination she
conducted on that date revealed that appellant had 5/5 strength in all motor groups of his upper
and lower extremities and that he did not have any sensory deficits. She indicated that the
employment-related conditions of low back strain, cervical strain, bilateral shoulder strains, and
temporary aggravation of ankylosing spondylitis had long since resolved. Dr. Kalen opined that
appellant’s reduced range of motion of the neck, shoulders, and back was due to the natural
progression of his preexisting ankylosing spondylitis. She maintained that this opinion was
supported by the fact that the decreased range of motion was symmetric and that appellant was
neurologically fully intact. Dr. Kalen concluded that appellant had no disability or other residuals
of his April 16, 1996 employment injury.9
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Kalen, OWCP’s referral physician. The October 27, 2016 report
of Dr. Kalen establishes that appellant had no residuals of his April 16, 1996 employment injury
after December 29, 2016.
The Board has carefully reviewed the opinion of Dr. Kalen and notes that it has reliability,
probative value, and convincing quality with respect to its conclusions regarding the relevant issue
of the present case. Dr. Kalen provided a thorough factual and medical history and accurately
summarized the relevant medical evidence. She provided medical rationale for her opinion by
explaining that appellant ceased to exhibit objective findings of the medical conditions accepted
in connection with his April 16, 1996 employment injury. Dr. Kalen further indicated that
appellant’s continuing problems could be explained by nonwork-related conditions, including

7

A.D., Docket No. 18-0497 (issued July 25, 2018). In general the term disability under FECA means incapacity
because of injury in employment to earn the wages which the employee was receiving at the time of such injury. See
20 C.F.R. § 10.5(f).
8

See C.C., supra note 6.

9

Dr. Kalen attached an October 27, 2016 work capacity evaluation form which contained work restrictions, but she
specifically indicated that the restrictions were for the nonwork-related conditions of psoriatic arthritis, Reiter’s
disease, and ankylosing spondylitis.

4

psoriatic arthritis, Reiter’s disease, and the natural progression of his preexisting ankylosing
spondylitis.10
On appeal counsel argues that Dr. Kalen failed to adequately address all of appellant’s
accepted work conditions because OWCP actually accepted his claim for permanent aggravation
of ankylosing spondylitis, rather than only temporary aggravation of ankylosing spondylitis. He
asserts that this position is supported by the fact that the case record contains several informational
letters which list “ankylosing spondylitis” as an accepted employment condition related to the
April 16, 1996 employment injury. The Board notes, however, that counsel has not provided
adequate support for this argument. Counsel has not sufficiently explained why OWCP’s
inadvertent use of the phrase “ankylosing spondylitis” without any qualifying phrase would lead
to the conclusion that OWCP expanded appellant’s accepted conditions to include permanent
aggravation of ankylosing spondylitis. He has not identified any document which would
unequivocally show that OWCP has accepted appellant’s claim for permanent aggravation of
ankylosing spondylitis.
Prior to OWCP’s termination action, appellant submitted a November 22, 2016 report in
which Dr. Hillyer indicated that appellant’s “chronic lumbar strain-related injury exacerbated his
[ankylosing] spondylitis which is not likely to improve.” Although Dr. Hillyer suggested that
appellant continued to have residuals of an employment injury, his report is of limited probative
value because he did not provide any medical rationale in support of this conclusory opinion. The
Board has held that a medical report is of limited probative value on the issue of causal relationship
if it contains a conclusion regarding causal relationship which is unsupported by medical rationale.11
The Board, therefore, finds that OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective December 29, 2016.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits commencing December 29, 2016 because he had no residuals
of his accepted April 16, 1996 employment injury after that date.

10

See W.C., Docket No. 18-1386 (issued January 22, 2019); Melvina Jackson, 38 ECAB 443 (1987) (regarding the
importance, when assessing medical evidence, of such factors as a physician’s knowledge of the facts and medical
history, and the care of analysis manifested and the medical rationale expressed in support of the physician’s opinion).
11

C.M., Docket No. 14-0088 (issued April 18, 2014).

5

ORDER
IT IS HEREBY ORDERED THAT the September 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 5, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 10-737
Issued: October 13, 2010

Case Submitted on the Record

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

JURISDICTION
On January 25, 2010 appellant, through her representative, filed a timely appeal from the
December 22, 2009 merit decision of the Office of Workers’ Compensation Programs, which
denied wage-loss compensation for particular dates. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant was disabled for work on February 7 or 8 or from
March 13 to 22, 2009 as a result of her accepted employment injury.
FACTUAL HISTORY
On September 24, 2007 appellant, then a 51-year-old mail processor, filed a claim
alleging that her bilateral foot condition was a result of prolonged standing on concrete floor in
the performance of her duties. The Office accepted her claim for bilateral planar fasciitis.
Appellant accepted a modified assignment offer on May 22, 2008.

On March 24, 2009 appellant claimed wage-loss compensation for particular dates: 0.5
hours on February 7, 2009 (“unable to perform duties”); 8.0 hours on February 8, 2009 (“Dr.
visit/unable to perform duties”); 7.62 hours on March 13, 2009 (“Dr. visit/unable to perform
duties”); and 8.0 hours each on March 14 and 15 and March 18 through March 22, 2009 (“Dr.
visit/unable to perform duties”).
On January 26, 2009 Dr. John S. Anderson, the treating podiatrist, stated that he had
treated appellant for nearly two years. Appellant was diagnosed with calcaneal exostosis and
associated plantar fasciitis, and “she [ha]s not really gotten a significant amount better.”
Dr. Anderson found that she had reached maximum medical improvement. He added: “I believe
the patient’s subjective pain is just that, subjective in findings. I believe the objective aspect
could be argued to an extent but I believe the patient is true in as far as her pain scale and the
amount of pain due to the condition she suffers from.”
In a February 11, 2009 disability slip, Dr. Anderson stated: “Seen today for bilateral food
condition plantar fasciitis. Please excuse from being late February 7, 2009 and from not coming
to work February 8, 2009. Incapacitated unable to perform duties.”
A statement of account from Dr. Anderson’s office showed the history of appellant’s
appointments. She was seen on January 31, February 11 and March 12, 2009. On March 12,
2009 Dr. Anderson noted that appellant was still having continued problems. Examination
showed no change in neurovascular status. There was still some tenderness in the medial
enthesis and at the insertion of the plantar fascia. Dr. Anderson noted mild swelling, pain on the
lateral aspect in the area of the lateral column and limited range of motion. He diagnosed plantar
fasciitis, lateral column equinus and diabetes. Dr. Anderson recommended continuing all
conservative methods.
On March 24, 2009 Dr. Anderson’s examination showed similar findings. He diagnosed
radiculopathy, plantar fasciitis and diabetes. Dr. Anderson stated: “[Appellant] is going to be
given notes for work, continue her protocol. She has no restrictions on her at work. [Appellant]
will continue all this, and we will follow her back up after she acquires the orthotics and wears
them for a month.” On that day he wrote the following disability slip: “Patient unable to
perform her duties from March 13, 2009 thru March 24, 2009 due to plantar fasciitis.”
On June 23, 2009 the Office denied wage-loss compensation for particular dates. It
found that none of the records on or prior to the claimed disability dates documented any
disability for work.
At an October 26, 2009 telephonic hearing before an Office hearing representative,
appellant testified that she was 30 minutes late for work on February 7, 2009 because she did not
have time to finish her home therapy and ice her feet down, so “I decided to just get to work as
soon as I could and ice my feet down when I got to work.” She testified that she did not work at
all on February 8, 2009 because her feet were bothering her. Appellant explained that her doctor
was too booked to see her that day. She stated that on March 13, 2009 she was instructed to
clock out and ice her feet in her car. Appellant called her doctor’s office, but he was on vacation
and would not be able to see her until March 24, 2009. She testified that she was then off work
from March 14 through 22, 2009.

2

In a decision dated December 22, 2009, the Office hearing representative affirmed the
denial of wage-loss compensation. She found that Dr. Anderson provided no objective findings
or medical rationale to support that appellant was unable to perform her modified duties. The
Office hearing representative added that appellant failed to explain why she did not simply wake
up earlier on February 7, 2009 to give herself time to complete her home therapy before having
to leave for work.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of her duty.1
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.2
When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position, or the medical evidence of
record establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the limited-duty job requirements.3
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work.4 Pain due to an employment-related condition can be the basis
for the payment of compensation,5 but the Board has held that, when a physician’s statements
regarding an employee’s ability to work consist only of a repetition of the employee’s complaints
that she hurt too much to work, without objective signs of disability being shown, the physician
has not presented a medical opinion on the issue of disability or a basis for payment of
compensation.6
A claimant who has returned to work following an accepted injury or illness may need to
undergo examination, testing or treatment. Such a claimant may be paid compensation for wage
loss while obtaining the medical services and for a reasonable time spent traveling to and from

1

5 U.S.C. § 8102(a).

2

20 C.F.R. § 10.5(f).

3

Terry R. Hedman, 38 ECAB 222, 227 (1986).

4

See Dean E. Pierce, 40 ECAB 1249 (1989); Paul D. Weiss, 36 ECAB 720 (1985).

5

Barry C. Peterson, 52 ECAB 120 (2000) (affirming the denial of wage-loss compensation on particular dates).

6

John L. Clark, 32 ECAB 1618 (1981).

3

the provider’s location. Absence from work for the purpose of medical evaluation or treatment
does not constitute a recurrence of disability.7
ANALYSIS
Appellant gave two reasons for missing work on the dates claimed: she had doctor’s
visits, and she was unable to perform her duties, but there is no evidence that she visited a doctor
or obtained medical services on any of the dates at issue. She testified before the Office hearing
representative that she was simply late for work on February 7, 2009 because she did not have
enough time to finish her home therapy that morning. Appellant also testified that the doctor
was too booked to see her on February 8, 2009. When she called for an appointment on
March 13, 2009, she learned that her doctor was on vacation and would not be able to see her
until March 24, 2009. So the record establishes that none of the disability claimed was for wage
loss incurred while obtaining medical services for the accepted medical condition.
It appears that appellant’s disability was instead the result of her own assessment that she
was unable to perform her duties. The Office cannot allow employees to self-certify their
disability for work and entitlement to compensation. An employee has the burden to establish by
probative evidence that the accepted employment injury incapacitated her for work, and when, as
here, the employee claims that she cannot perform her modified assignment, she must show a
change in the nature and extent of the injury-related condition or a change in the nature and
extent of the limited-duty job requirements.
There is no evidence that the employer changed appellant’s modified assignment such
that she could no longer perform her duties. Dr. Anderson, the treating podiatrist, completed a
pair of disability slips asking the employer to excuse appellant’s absence from work on the
particular dates claimed, but neither his disability slips nor his narrative reports on March 12 or
24, 2009 documented a disabling change in the nature and extent of appellant’s bilateral plantar
fasciitis. He reported on January 26, 2009 that appellant’s subjective pain was just that,
subjective in findings. So it appears that Dr. Anderson provided disability slips shortly thereafter
based on appellant’s complaint that she hurt too much to work.
Without an explanation from Dr. Anderson that appellant had objective signs of disability
for the dates at issue, the Board finds that his reports are insufficient to establish her claim. The
Board will therefore affirm the Office’s December 22, 2009 decision denying wage-loss
compensation for particular dates.
CONCLUSION
The Board finds that appellant has not met her burden to establish that she was disabled
for work on February 7 or 8 or from March 13 to 22, 2009 as a result of her accepted
employment injury.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16
(October 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the December 22, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 13, 2010
Washington, DC

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

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

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

5