United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Scranton, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1296
Issued: October 21, 2015

Case Submitted on the Record

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

JURISDICTION
On May 20, 2015 appellant, through counsel, filed a timely appeal from a May 7, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits as of June 20, 2014 for the accepted condition of
lumbosacral strain; and (2) whether appellant has established that he had disability or residuals of

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to the record following OWCP’s May 7, 2015
decision. The Board’s jurisdiction is limited to a review of evidence which was before OWCP at the time of its final
decision. 20 C.F.R. § 501(c)(1).

his accepted lower back condition following the termination of compensation benefits on
June 20, 2014.
FACTUAL HISTORY
On March 8, 2011 appellant, a 43-year-old environmental maintenance technician,
injured his lower back when the chair on which he was sitting slipped from beneath him and he
struck the floor. He filed a claim for compensation benefits, which OWCP accepted for
lumbosacral sprain. OWCP subsequently accepted the condition of adjustment reaction with
physical symptoms. Appellant stopped working on March 11, 2011 and OWCP commenced
payment for wage-loss compensation on the supplemental roll.
In a March 17, 2011 report, Dr. Ben Mobo, Board-certified in internal medicine and
occupational medicine, stated that appellant had experienced severe lower back pain since the
March 8, 2011 employment injury. He advised that he previously sustained a back injury in
2007 that was treated conservatively.
Dr. Mobo asserted that appellant likely had
musculoskeletal lower back pain, with mild spasm, which constituted an aggravation of his
preexisting 2007 injury. He diagnosed lumbosacral strain/sprain. Dr. Mobo advised that
appellant was totally impaired and unlikely to attain gainful employment.
In an April 26, 2012 report, Dr. Mobo stated that appellant underwent a magnetic
resonance imaging (MRI) scan, the results of which showed a mild L4-5 disc herniation on the
left, without significant compromise of the central canal or neural foramina, and mild L5-S1
degenerative disc disease without significant central canal stenosis or neural foraminal stenosis.
He opined that appellant was totally impaired and disabled from gainful employment at that
time.
In a November 1, 2013 report, Dr. Mobo stated that appellant continued to have
complaints of low back pain. He advised that his pain had increased by 30 percent since his
previous visit. Appellant described the pain as aching, dull, pulsating, burning, cramping,
spasming, and continuous, radiating to the right and left of midline across the lumbar spine; he
rated the pain as a seven on a scale of one to ten on average a ten out of ten at worst. Dr. Mobo
advised that appellant had increased low back pain with physical activity, especially when
standing for long periods of time. He stated that he was currently not working and remained on
disability.
Dr. Mobo diagnosed chronic lumbosacral sprain, lumbar intervertebral disc disorder and
L5-S1 discogenic pain. He asserted that appellant had a history of L5-S1 disc herniation.
Dr. Mobo noted that he had been treating appellant for a significant amount of time and advised
that it was readily apparent that he was in constant pain, which affected his daily life activities.
He advised that his recent increased, significant bilateral L5-S1 low back pain was consistent
with L5-S1 recurrent disc herniation. Dr. Mobo recommended decreased physical activity to
reduce appellant’s back pain, at which time he would consider a course of physical therapy and a
possible referral to a neurologist to consider if he would benefit from a spinal cord stimulator
trial. He opined that appellant’s current medical condition was directly and causally related to
his March 8, 2011 work injury. Dr. Mobo stated that his prognosis was poor and that his
impairment/disability was chronic and permanent. He concluded that, within a reasonable

2

degree of medical certainty, appellant was permanently and totally disabled from any type of
gainful employment.
To determine appellant’s current condition and ascertain whether he still suffered
residuals from his accepted conditions, OWCP referred appellant for a second opinion
examination with Dr. Robert J. Smith, Board-certified in orthopedic surgery. In a December 9,
2013 report, Dr. Smith reviewed the medical history and the statement of accepted facts, stated
findings on examination and concluded that appellant had no residuals from the March 8, 2011
employment injury. He advised that his clinical examination was benign and that his ongoing
symptoms of disabling back pain were difficult to explain given the lack of objective pathology.
Dr. Smith stated that appellant’s gait and station were normal, with no requirement for aides to
ambulation or bracing; his back had no findings of any spasm, atrophy, trigger points or
deformity. He advised that his active spinal range of motion was satisfactory and functional
without any spasm or rigidity. Dr. Smith asserted that his neurologic examination was
completely normal from an objective standpoint, that he was fully recovered from the March 8,
2011 work injury and at maximum medical improvement with no need for additional treatment
or testing. He opined that the only accepted condition in this case was a lumbar sprain, which,
based on the current clinical examination, had completely recovered without discernable
objective residuals. Dr. Smith concluded that there was no identifiable, ongoing pathology from
the March 8, 2011 work incident which would prevent him from returning to regular, full-time
duty.
On January 30 and February 6, 2014 OWCP issued notices of proposed termination of
compensation to appellant. It found that the weight of the medical evidence, as represented by
the opinion of Dr. Smith, the second opinion physician, established that his accepted,
lumbosacral sprain/strain had resolved and that he had no residuals from the March 8, 2011 work
injury. OWCP allowed appellant 30 days to submit additional evidence or legal argument in
opposition to the proposed termination.
In a February 27, 2014 report, Dr. Mobo essentially reiterated his previous findings and
conclusions. In an April 16, 2014 report, Dr. Mobo advised that appellant’s condition was
stable, had “plateaued,” and that it was no longer necessary to treat him on a regular basis.
By decision dated June 20, 2014, OWCP terminated appellant’s wage-loss and medical
benefits, pertaining to the accepted lumbosacral strain, finding that Dr. Smith’s referral opinion
represented the weight of the medical evidence. It also related in this decision that it had
accepted the condition of adjustment reaction with physical symptoms. Appellant continued to
receive wage-loss and medical benefits for this condition.
By letter dated June 23, 2014, appellant, through counsel, requested an oral hearing,
which was held before an OWCP hearing representative on February 12, 2015.3
3

Appellant submitted a number of progress notes and narrative reports from Dr. Harry A. Doyle, a Boardcertified forensic psychiatrist, dating from June 2014. Dr. Doyle reviewed the medical evidence of record and his
own mental status examination findings. He related that appellant had moderate anxiety and depression, as well as
somatic preoccupation. Dr. Doyle diagnosed chronic pain disorder, chronic adjustment disorder, and lumbosacral
joint/ligament sprain, right sciatica. He concluded that appellant remained totally disabled from his employment due
to a combination of residual physical and psychiatric impairments.

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By decision dated May 7, 2015, an OWCP hearing representative affirmed the June 20,
2014 termination decision. She noted that counsel had confirmed during the hearing that
appellant continued to receive wage-loss and medical benefits for his accepted psychiatric
condition.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s benefits.4 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
The burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.6 The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability compensation.7 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.8
ANALYSIS -- ISSUE 1
In this case, OWCP accepted that appellant sustained lumbosacral strain when he fell
from a chair at work on March 8, 2011 and that this injury caused disability. It based its decision
to terminate appellant’s wage-loss and medical benefits, for the accepted condition of
lumbosacral strain, on the opinion of Dr. Smith, the referral physician. The Board finds that
OWCP met its burden of proof to terminate wage-loss compensation and medical benefits as the
weight of the medical evidence establishes that appellant no longer has residuals of the accepted
lumbosacral strain.
OWCP in its June 20, 2014 decision relied on the December 9, 2013 report of Dr. Smith,
the referral examiner, to find that appellant’s accepted lumbar strain condition had ceased and
that he no longer had any residuals from this condition. Dr. Smith asserted that his neurologic
examination was completely normal from an objective standpoint and that he had fully recovered
from the March 8, 2011 work injury, with no need for additional treatment or testing. He opined
that the only accepted lower back condition in this case was a lumbar sprain, which, based on the
current clinical examination, had completely recovered without discernable objective residuals;
he advised that his ongoing symptoms of disabling back pain were difficult to explain given the
lack of objective pathology.
Appellant’s treating physician, Dr. Mobo, diagnosed chronic lumbosacral sprain and
lumbar intervertebral disc disorder. He stated in his November 1, 2013 report and focused on the
4

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989).

5

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

A.P., Docket No. 08-1822 (issued August 5, 2009); James F. Weikel, 54 ECAB 660 (2003); Pamela K.
Guesford, 53 ECAB 727 (2002).
8

See A.O., Docket No. 15-995 (issued September 11, 2015).

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fact that appellant had a history of L5-S1 disc herniation and that his recent increased, significant
L5-S1 low back pain was consistent with L5-S1 recurrent disc herniation, which was directly and
causally related to his March 8, 2011 work injury; as a result appellant was permanently and
totally disabled from any type of gainful employment. OWCP, however, has never accepted any
condition other than lumbosacral sprain/strain.
The Board finds that Dr. Smith’s referral opinion, which focused on whether appellant
continued to have residuals from his accepted lumbar sprain/strain condition, the only accepted
lower back condition in this case, established that appellant was no longer disabled and had no
residuals from his accepted lumbar sprain/strain condition. OWCP met its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits, which were paid based upon
the accepted condition. Dr. Smith’s opinion is based upon current examination findings and
sufficiently probative, rationalized, and based upon a proper factual background. Therefore,
OWCP properly found that Dr. Smith’s referral opinion established that appellant no longer had
residuals of the accepted lumbosacral sprain.
LEGAL PRECEDENT -- ISSUE 2
Following a proper termination of compensation benefits, the burden of proof shifts back
to the claimant to establish continuing employment-related disability.9
ANALYSIS -- ISSUE 2
Appellant must establish that he is still entitled to compensation for continuing disability
due to the accepted employment injury based on the medical evidence of record. To meet his
burden of proof, appellant submitted reports from Dr. Mobo to establish that he had a herniated
disc condition causally related to the accepted injury, which caused disability.
Dr. Mobo’s opinion that appellant had a lumbar disc herniation caused by the March 8,
2011 work injury, is not sufficiently rationalized for expansion of the claim. His initial report of
March 17, 2011 only diagnosed lumbosacral strain/sprain. Dr. Mobo has never offered a fully
rationalized opinion explaining how appellant would have sustained a herniated disc from falling
off his chair on March 8, 2011. This explanation is especially important given that appellant had
a previous back injury in 2007. A claimant has the burden of establishing by the weight of the
reliable, probative, and substantial evidence that a claimed medical condition was caused by the
employment incident. The opinion of the physician must be based on a complete factual and
medical background, must be one of reasonable medical certainty and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific compensable employment incident.10
On appeal, counsel contends that OWCP erred by crediting the opinion of Dr. Smith, the
referral physician. He asserts that Dr. Mobo’s opinion was entitled to greater weight than that of
Dr. Smith because he provided a more accurate description of the mechanism of injury, in
addition to physical findings based on his examination of appellant and findings consistent with
9

John F. Glynn, 53 ECAB 562 (2002).

10

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

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MRI scan results; counsel also asserts that Dr. Smith did not actually physically examine
appellant. Counsel further contends that Dr. Smith’s December 9, 2013 report was lacking in
rationale and that Dr. Mobo provided a more detailed and comprehensive opinion regarding
appellant’s current condition. The Board does not accept counsel’s argument. Contrary to
counsel’s contention, Dr. Smith performed a thorough physical examination of appellant and
provided findings based on his examination. As noted above, Dr. Smith’s opinion was probative
and well rationalized.
Appellant did not provide a probative medical opinion as to whether he was disabled or
currently required medical treatment due to an alleged employment-related herniated lumbar disc
condition. For the reasons discussed above, appellant did not meet his burden of proof. Thus the
Board will affirm the hearing representative’s May 7, 2015 decision.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits, for the accepted lumbosacral strain as of June 20, 2014. The Board
further finds that appellant has not met his burden to establish continuing employment-related
disability.
ORDER
IT IS HEREBY ORDERED THAT the May 7, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 21, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Paterson, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0175
Issued: September 5, 2018

Case Submitted on the Record

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

JURISDICTION
On October 30, 2017 appellant, through counsel, filed a timely appeal from a May 23, 2017
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days elapsed from the last merit decision, dated October 3, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of the 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 properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 9, 2015 appellant, then a 61-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on February 12, 2015, while in the performance of duty, she injured her chin,
left knee, and right hand when she fell onto her left knee and hit her chin on a guard rail, while
grasping the guard rail with her right hand to try to stop the fall. She did not stop work. A
supervisor checked a box stating that appellant was not injured in the performance of duty,
commenting “employee was in the building when she fell.”
In an undated statement, appellant explained that at about 6:05 a.m., she was coming
through the back door and fell, hitting her chin on a guard rail on the left side. She fell on her left
knee and hurt her right shoulder.
In an undated witness statement, a coworker reported that on February 12, 2015 she was
dealing with mail when she heard another coworker call her. She went to see what was wrong,
and when she approached, she saw her coworker helping appellant off the floor at 6:05 a.m.
In a medical report dated February 16, 2015, Dr. Brian Rapp, Board-certified in emergency
medicine, noted that appellant had a sprain, “which is a stretched or torn ligament.” He noted that
the injured area should remain immobilized and that an orthopedic evaluation was necessary.
Dr. Rapp instructed appellant on the use of tramadol and the treatment of sprains.
In a diagnostic report dated March 23, 2015, Dr. Steven Festa, a Board-certified diagnostic
radiologist, examined the results of an x-ray of appellant’s right shoulder. He noted no displaced
fracture or dislocation, with an intact acromioclavicular joint and no abnormal calcification.
In a report dated July 28, 2015, Dr. Vincent McInerney examined appellant and diagnosed
impingement syndrome of the right shoulder. He performed an injection to her right shoulder.
On September 8, 2015 Dr. McInerney examined appellant and diagnosed a right shoulder
rotator cuff tear and adhesive capsulitis. He referred appellant for a magnetic resonance imaging
(MRI) scan.
By development letter dated September 29, 2015, OWCP informed appellant of the
evidence necessary to establish her claim and requested that she submit additional factual and
medical evidence. It noted that she had not established that she was within the performance of
duty at the time of the claimed injury and that she had not submitted a physician’s opinion on the
causal relationship between her diagnosed conditions and the incident of February 12, 2015.
OWCP afforded appellant 30 days to submit additional evidence and to respond to its inquiries.
In a report dated September 22, 2015, Dr. McInerney reported that appellant’s MRI scan
revealed tendinitis of the bicep and a large distal rim tear of the supraspinatus which he noted was
due to a fall in February at the employing establishment. He recommended that due to the level
of pain that appellant proceed with an arthroscopy.
2

On October 21, 2015 appellant responded to OWCP’s inquiries. She stated that on the date
of injury she entered the first door to her building safely, but when she entered the second door,
her foot got tangled in a rug. Appellant began to stumble and attempted to prevent her fall by
grabbing a guard rail with her right hand. Her chin hit the guard rail and she fell on her left knee.
Appellant laid there calling for help until two coworkers assisted her with getting to her feet. She
remained in pain and continued working. Appellant reported no symptoms or injuries before the
incident occurred. She noted that she was on premises about to report to work at her start time of
6:15 a.m., and that the fall occurred at 6:05a.m. Appellant stated that she had no history of fainting,
heart conditions, or seizures.
In a witness statement dated October 17, 2015, a coworker noted that on the date of injury
he helped appellant off the floor where she had fallen.
By decision dated November 6, 2015, OWCP denied appellant’s claim, finding that she
had not submitted sufficient medical evidence to establish a causal relationship between her
diagnosed conditions and the accepted employment incident of February 12, 2015. It noted that
she had not submitted a medical report from a physician containing a well-reasoned opinion on
causal relationship.
In a diagnostic report dated September 18, 2015, Dr. Rajendra Achaibar, a Board-certified
diagnostic radiologist, examined the results of a right shoulder MRI scan. He observed a fairly
large rim-rent tear of the distal anterior aspect of the supraspinatus tendon, a large high-grade
partial thickness articular surface tear of the supraspinatus and conjoint tendon, acromiale along
with osteophytes at the acromioclavicular junction indenting the distal supraspinatus muscle, and
tendinosis of the long head of the biceps tendon.
On July 6, 2016 appellant, through counsel, requested reconsideration of OWCP’s
November 6, 2015 decision.
On reconsideration appellant submitted an emergency department report, dated
February 16, 2015, in which Dr. Rapp diagnosed shoulder strain and a knee contusion. Dr. Rapp
noted that appellant told him that she was injured four days prior when she tripped on her lunch
box and fell on her left knee. He noted that appellant believed that she strained her right shoulder
when she went to break her fall by holding onto a guard railing.
In a diagnostic report dated February 17, 2015, Dr. Ralph Wheeler, a Board-certified
diagnostic radiologist, examined an x-ray of appellant’s right shoulder. He observed no bone
pathology. In another diagnostic report of the same date, Dr. Wheeler examined an x-ray of
appellant’s left knee. He observed a questionable small joint effusion, moderately advanced
changes of degenerative arthritis, severe narrowing of the medial joint space, and degenerative
osteophyte formation.
By decision dated October 3, 2016, OWCP reviewed the merits of appellant’s claim and
declined to modify its prior decision. It noted that appellant had not yet submitted a medical report
from a physician containing a well-reasoned opinion on causal relationship.

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By letter dated March 1, 2017, counsel noted that this case was pending reconsideration
with OWCP and submitted medical records to the case file.3
Appellant, through counsel, resubmitted the diagnostic reports of Dr. Wheeler dated
February 17, 2015 and the report of Dr. Rapp dated February 16, 2015 and his treatment
instructions of the same date.
By decision dated May 23, 2017, OWCP denied appellant’s request for reconsideration of
the merits of her claim. It noted that the evidence submitted on reconsideration was repetitious of
evidence previously submitted or irrelevant to the underlying issue in this case.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.6
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In his March 1, 2017 correspondence, counsel submitted various hospital records in
support of reconsideration of the case. He did not show that OWCP erroneously applied or
interpreted a specific point of law or advance a relevant legal argument not previously considered
3

The record of evidence before the Board does not evince that counsel filed a request for reconsideration following
the October 3, 2016 OWCP decision.
4
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.607.

6

Id. § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of the OWCP decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

20 C.F.R. § 10.606(b)(3).

8

Id. § 10.608(a), (b).

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by OWCP. Thus, appellant is not entitled to a review of the merits based on the first and second
requirements under section 10.606(b)(3).9
Counsel also failed to submit any relevant and pertinent new evidence in support of
appellant’s request for reconsideration. On reconsideration he resubmitted treatment instructions
dated February 16, 2015 from Dr. Rapp and the diagnostic reports of Dr. Wheeler dated
February 17, 2015. This medical evidence was already before OWCP at the time of its October 3,
2016 merit decision. Providing additional evidence that either repeats or duplicates information
already in the record does not constitute a basis for reopening a claim.10 Because counsel did not
provide relevant and pertinent new evidence, appellant is not entitled to a review of the merits
based on the third requirement under section 10.606(b)(3).11 Accordingly, OWCP properly
declined to reopen appellant’s case for a merit review under 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

9

Id. § 10.606(b)(3)(i) and (ii).

10

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

11

20 C.F.R. § 10.606(b)(3)(iii).

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ORDER
IT IS HEREBY ORDERED THAT the May 23, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 5, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Salinas, CA, Employer
__________________________________________

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

Docket No. 14-1057
Issued: September 3, 2014

Case Submitted on the Record

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

JURISDICTION
On April 4, 2014 appellant filed a timely appeal from a March 3, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant established an employment-related disability from
September 23 to 24, 2010 or December 22, 2010 to February 8, 2011, based on the accepted
right wrist condition.
FACTUAL HISTORY
On September 27, 2010 appellant, then a 46-year-old claims representative, filed an
occupational claim (Form CA-2) alleging that she sustained right carpal tunnel syndrome as a
1

5 U.S.C. § 8101 et seq.

result of repetitive activity in her federal employment. She noted that her duties included typing,
writing and answering telephone calls.2
In a duty status report (Form CA-17) dated September 22, 2010, Dr. Karen Winn, a
Board-certified internist, diagnosed pain in the right hand, thumb and wrists, with questionable
tendinitis. The injury occurred by writing and typing. Dr. Winn stated that appellant developed
pain on September 21, 2010 while doing her usual work. She indicated that appellant could
return to work on September 27, 2010. Dr. Winn also submitted a brief note stating that
appellant should be off work through September 26, 2010.
On October 8, 2010 OWCP accepted appellant’s claim for right wrist tendinitis.3 The
record indicates that she returned to a modified-duty position but stopped work on
December 22, 2010.
In a report dated December 21, 2010, Dr. Steven Schumann, an
occupational medicine specialist, diagnosed wrist tendinitis and wrist strain. He stated that
appellant was unable to work from December 22, 2010 to January 11, 2011. In a treatment note
dated January 11, 2011, Dr. Schumann advised that she was unable to work through
January 25, 2011. In a report dated January 25, 2011, he diagnosed carpal tunnel syndrome and
indicated that appellant remained unable to work through February 22, 2011.
In a report dated January 24, 2011, Dr. Jeffrey Pratt, a Board-certified orthopedic
surgeon, provided a history and results on examination. He diagnosed bilateral carpal tunnel
syndrome, right greater than left.
On March 24, 2011 appellant submitted a Form CA-7 claim for compensation due to
leave buyback for the period September 22, 2010 to February 18, 2011. The accompanying
leave analysis noted that she was off work on September 23 and 24, 2010 and then
December 22, 2010 to February 18, 2011.
By letter dated May 11, 2011, OWCP advised appellant that compensation for
appropriately claimed medical appointments would be paid, but that wage-loss compensation for
the claimed dates of disability had to be supported by probative medical evidence. It advised her
to submit additional evidence within 30 days. OWCP was noted that, if appellant was claiming
compensation due to left carpal tunnel syndrome, she should pursue that issue under the claim
filed on January 20, 2011.
In a report dated May 24, 2011, Dr. Schumann stated that appellant had been totally
disabled since December 22, 2010 “due to injury to her right hand.” He stated that even light
work exacerbated the pain and swelling of her right hand. In a report dated May 26, 2011,
Dr. Schumann referred to both OWCP claim numbers (the current case file and the claim filed on
January 20, 2011) and stated that appellant was temporarily totally disabled from
December 22, 2010 to June 10, 2011 due to injuries to her right and left wrists. He stated that
2

On January 20, 2011 appellant filed a claim identifying these same duties as contributing to left carpal tunnel
syndrome. Although these case files are administratively linked, OWCP developed two separate case files and
issued separate decisions on the two claims. The decision on the current appeal is limited to the right wrist.
3

The identified International Classification of Diseases Code was 726.4, which is defined as enthesopathy of the
wrist.

2

appellant was seen on September 28, 2010 for bilateral wrist pain and even light work
exacerbated the pain and swelling of her hands and wrists. Dr. Schumann stated that the
disability “applies equally to both wrists and both cases.”
By decision dated March 3, 2014, OWCP denied the claim for leave buyback from
September 22, 2010 to February 18, 2011. It found that the medical evidence was insufficient to
establish the claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.6
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.7 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she hurt too much to work, without objective findings of
disability being shown, the physician has not presented a medical opinion on the issue of
disability or a basis for payment of compensation.8
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that light duty can be performed, the employee has the burden to establish by the weight of
reliable, probative and substantial evidence a recurrence of total disability. As part of this
burden of proof, 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.9
To establish a causal relationship between the disability claimed and the employment
injury, an employee must submit rationalized medical evidence, based on a complete factual and

4

5 U.S.C. §§ 8101-8193.

5

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

6

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
7

See Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Id.

9

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

3

medical background, supporting such a causal relationship.10 The opinion of the physician must
be one of reasonable medical certainty and must be supported by medical rationale explaining
the nature of the relationship.11
ANALYSIS
Appellant filed a claim with respect to her right wrist condition causally related to
repetitive activity in her federal employment. The accepted condition under the current claim is
the right wrist enthesopathy. The decision on appeal dated March 3, 2014 is limited to a claim
for disability related to that condition.
As to appellant’s claim for wage loss she claimed two days of disability on
September 23 and 24, 2010. She returned to light duty and then claimed disability commencing
December 22, 2010 to February 8, 2011. It is appellant’s burden of proof to establish the dates
of disability claimed.
With respect to September 23 and 24, 2010, Dr. Winn listed in the September 22, 2010
Form CA-17 and a note that appellant should be off work through September 27, 2010. He
provided little relevant detail with respect to the stated conclusion. There is only a brief history,
little discussion of examination findings and no medical reasoning with respect to the inability to
perform appellant’s job duties. The Board has held an opinion on a form medical report, without
additional explanation or rational is of dismissed probative value.12 The Board finds the
evidence from Dr. Winn is not sufficient to establish an employment-related disability for the
dates claimed.
Appellant returned to a light-duty job and then stopped work on December 22, 2010.
Again the evidence from Dr. Schumann is of limited probative value. Dr. Schumann reported
that she was unable to work, without providing a complete medical background, results on
examination or supporting explanation. In a May 24, 2011 report, he briefly stated that appellant
was disabled from December 22, 2010 due to a right hand injury, but stated on May 26, 2011
that she was disabled due to a bilateral condition. To the extent that he related an aggravation of
appellant’s condition due to the light-duty job duties, this would be a basis for a new injury
claim.13 For these reasons, the Board finds that appellant did not establish her disability for the
period claimed due to the accepted right wrist enthesopathy.
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.

10

Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

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

12

See Deborah L. Beatty, 54 ECAB 340 (2003).

13

See Linda Beale, Docket No. 97-1606 (issued May 6, 1999) (an injury resulting from light-duty job activities is
a claim for a new injury).

4

On appeal, appellant refers to the medical evidence and noted that she has two case files,
which caused confusion. The decision on appeal is limited to the accepted right wrist condition.
For the reasons discussed, appellant has not established an employment-related disability for the
periods claimed. She may, as noted, pursue a claim for disability resulting from a bilateral wrist
condition under the claim filed on January 20, 2011.
CONCLUSION
The Board finds that appellant has not established an employment-related disability from
September 23 to 24, 2010 or December 22, 2010 to February 8, 2011.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 3, 2014 is affirmed.
Issued: September 3, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Highland, IN, Employer
__________________________________________

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Appearances:
Joseph E. Allman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1175
Issued: September 28, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 29, 2015 appellant, through counsel, filed a timely appeal from a November 3,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the filing of this appeal and the last merit decision issued on
August 2, 2013, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this claim.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On February 15, 2013 appellant, then a 55-year-old mail carrier, filed a recurrence claim
(Form CA-2a) alleging that he sustained a recurrence of disability on January 30, 2013.3 He
stated that he experienced a right knee condition due to walking, twisting, and repetitive stair
climbing. Appellant stopped work on January 30, 2013.
In a March 14, 2013 letter, OWCP advised appellant that his claim was being developed
as a new occupational disease claim. It further informed him to provide a medical report
containing a physician’s opinion supported by a medical explanation as to how work factors
caused or aggravated a diagnosed condition.
A diagnostic report reflects that x-rays were performed on appellant’s right knee and
oblique on February 26, 2011. Dr. Shodhan Patel, a Board-certified radiologist, related that
appellant presented with pain along the lateral aspect of his right knee. X-rays revealed mild loss
of joint space involving the right knee joint and patellofemoral joint. Associated small joint
effusion was observed. On January 11, 2013 Dr. Donald Anderson, Board-certified in nuclear
medicine and diagnostic radiology, recorded moderate degenerate changes at the medial
compartment joint space. He observed no fracture, dislocation, or bone destruction.
In a May 11, 2011 medical report, Dr. Judson Wood Jr., a Board-certified orthopedic
surgeon, reported that appellant presented post arthroscopy. He noted that appellant continued to
suffer recurrent effusions and advised him of the risk of future effusions. Dr. Wood, in a
December 21, 2011 attending physician’s report (Form CA-20), noted that appellant suffered
degenerative joint disease and checked a box “yes” to indicate that the condition was caused or
aggravated by employment.
In a February 20, 2013 report, Dr. Shailesh Bhatt, a Board-certified diagnostic
radiologist, advised that x-rays of appellant’s knees revealed osteoarthritic changes of both knees
with significant narrowing in the medial joint compartment of the right knee.
In an April 5, 2013 attending physician’s report (Form CA-20), Dr. Wood related that
appellant suffered right knee pain and swelling and referenced the right knee arthroscopy. He
diagnosed degenerative joint disease and checked a box “yes” to indicate that the condition was
caused or aggravated by his employment.
By decision dated April 18, 2013, OWCP denied appellant’s claim finding that the
evidence was insufficient to establish that the events occurred as alleged.
Appellant requested reconsideration on May 13, 2013. In June 27, 2012 progress notes,
Dr. Wood advised that appellant was status post arthroscopic partial medial meniscectomy on his
right knee. Examination revealed moderate size effusion and joint line tenderness. Dr. Wood
diagnosed right knee pain, chronic effusion, and early degenerative changes. He cleared
appellant for duty.
3

Appellant claimed that the original injury had occurred on February 18, 2011. The Board does not have access
to the prior claim.

2

Progress notes from February 20, 2013 indicated that Dr. Wood had discussed total knee
replacement surgery with appellant. Upon examination, he observed mild varus deformity joint
line tenderness, especially medial to the patellofemoral crepitus. X-rays revealed significant
degenerative joint disease. Dr. Wood indicated his concern that appellant would have difficulty
returning to work postsurgery.
Appellant, in an April 21, 2013 statement, described his duties as ascending and
descending stairs and various terrains, standing, kneeling, twisting, and carrying mail. He
alleged that performing these duties 40 hours per week for 20 years placed “constant wear [and]
tear and pressure” on his knees and joints.
In a May 3, 2013 report, Dr. Wood noted treating appellant’s right knee since
March 2011. He advised that appellant had arthroscopic surgery with a partial medial
meniscectomy on his right knee. Dr. Wood related that appellant returned to work but developed
significant pain and discomfort in the knee. He opined that the walking, twisting, and standing
associated with appellant’s work contributed to his degenerative joint disease. Dr. Wood
diagnosed severe degenerative joint disease and indicated that this would necessitate a total knee
replacement in the near future. He attributed appellant’s “line of work” to his diagnosis.
In a July 10, 2013 statement, appellant declared that he had stopped working on
May 28, 2013. He further indicated frustration that his claim was not developed as a recurrence.
By decision dated August 2, 2013, OWCP reviewed the merits of appellant’s claim. It
modified its prior decision to find that the factual component of fact of injury had been
established. However, OWCP denied appellant’s claim finding that the medical evidence was
insufficient to establish causal relationship.
In a February 19, 2013 duty status report, Dr. Wood diagnosed right knee degenerative
joint disease and provided that appellant could return to light-duty work on the same date.4
On July 31, 2014 appellant, through counsel, filed a request for reconsideration.
Appellant’s counsel contended that Dr. Wood “clearly explained his unequivocal opinion that
[appellant’s] accepted conditions and total knee replacement surgery were necessitated by his
work as a mail carrier.”
In a November 3, 2014 decision, OWCP denied appellant’s request finding that appellant
did not present pertinent new evidence warranting further merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP 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
4

The Board notes that OWCP also received copies of documents that were originally submitted prior to the
August 2, 2013 merit decision. This included a resubmission of Dr. Wood’s April 5 and May 3, 2013 reports.

3

considered by OWCP.5 Where the request for reconsideration fails to meet at least one of these
standards, OWCP will deny the application for reconsideration without reopening the case for
review of the merits.6
ANALYSIS
On August 2, 2013 OWCP denied appellant’s claim, finding that he had failed to
establish that his claimed right knee condition was causally related to his accepted work duties.
Appellant’s counsel timely requested reconsideration and submitted evidence and argument.
OWCP denied the request on November 3, 2014, finding that appellant did not present pertinent
new evidence warranting further merit review.
The Board finds that OWCP correctly denied appellant’s reconsideration request. The
issue on appeal is whether appellant established that his work duties caused or contributed to his
claimed condition and this is a medical question. After the merit decision of August 2, 2013,
appellant submitted a February 19, 2013 duty status report by Dr. Wood which diagnosed
degenerative joint disease. This document was not previously considered by OWCP but it does
Other medical evidence submitted by appellant on
not address causal relationship.7
reconsideration was previously of record.8 Accordingly, the Board finds that this evidence is
insufficient to require OWCP to reopen the claim for merit review.
The Board further finds that appellant’s request for reconsideration did not advance a
relevant legal argument, or demonstrate that OWCP erroneously applied a specific point of law.
In a statement accompanying the reconsideration request, appellant’s counsel maintained that
various medical reports from Dr. Wood established causal relationship. While appellant’s
counsel’s statement does not appear previously in the record and is, by definition, new, it is not a
legal argument. Rather, he contends that OWCP had not properly weighed the medical evidence.
The Board notes, however, that OWCP had previously considered Dr. Wood’s reports and found
this evidence to be insufficient to establish causal relationship.9
On appeal, appellant’s counsel contends that OWCP erred because it did not previously
have his legal arguments. He also contends that OWCP in fact erroneously applied or interpreted
a point of law because in its final merit decision it disregarded Dr. Woods’ opinion. For
counsel’s arguments to trigger a merit review, they must show that OWCP erroneously applied
5

20 C.F.R. § 10.606(b)(3); see J.M., Docket No. 09-218 (issued July 24, 2009).

6

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

7

See Johnnie B. Causey, 57 ECAB 359 (2006) (the submission of evidence which does not address the particular
issue involved in a case does not constitute a basis for reopening the claim).
8

J.P., 58 ECAB 289 (2007) (evidence or argument that repeats or duplicates evidence already in the case record
has no evidentiary value and does not constitute a basis for reopening a case).
9

See id. See also Y.S., Docket No. 08-440 (issued March 16, 2009) (on reconsideration, appellant asserted that
the medical evidence was sufficient to require reopening of the claim but the Board found that these assertions were
not relevant to the underlying medical issue which could only be resolved through the submission of new relevant
medical evidence).

4

or interpreted a specific point of law or advance a relevant legal argument not previously
considered by OWCP. The Board finds that appellant’s assertions in his reconsideration request
reargues previously considered evidence. Counsel’s mere allegation that OWCP did not
properly weigh the evidence from Dr. Woods does not establish that appellant is entitled to a
merit review.10
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a) without further merit review.
ORDER
IT IS HEREBY ORDERED THAT the November 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 28, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10

See id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lexington, KY, Employer
__________________________________________

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

Docket No. 12-845
Issued: March 5, 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 March 6, 2012 appellant timely appealed the February 1, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP) which found that his accepted condition
had resolved.1 Pursuant to the Federal Employees’ Compensation Act2 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.

1

The application for review was dated February 28, 2012 and postmarked February 29, 2012. The Board
received the appeal on March 6, 2012. After appellant mailed his appeal, but prior to the Board’s receipt, OWCP
issued a March 5, 2012 decision denying a schedule award. He has not appealed OWCP’s March 5, 2012 decision.
See 20 C.F.R. § 501.3(c)(4).
2

5 U.S.C. §§ 8101-8193.

ISSUE
The issue is whether OWCP properly determined that appellant’s accepted left knee
condition resolved as of August 2, 2011.
FACTUAL HISTORY
This case was previously before the Board.3 Appellant, a 67-year-old retired city carrier,
has an accepted claim for aggravation of left medial meniscus tear which occurred on
February 6, 2010 when he was stooping to pick up flat mail off the floor. His left knee
reportedly clicked and popped and he felt a slight, sharp pain. Appellant noted prior clicking in
his left knee for six months but mostly with stairs. Prior medical history included a left knee
injury in December 1975, which required surgery.4 Following the February 6, 2010 employment
incident, appellant was diagnosed with a left knee strain along with a differential diagnosis of
medial meniscus tear. A subsequent magnetic resonance imaging (MRI) scan of the left knee
revealed advanced osteoarthritis and a macerated tear of the posterior horn and body of the
medial meniscus. On July 9, 2010 appellant underwent a left partial medial meniscectomy and
chondroplasty. He voluntarily retired effective January 28, 2011.
In a June 14, 2011 order, the Board remanded the case for further medical development.
The Board found there was sufficient medical evidence to warrant further development of the
claim. Accordingly, the Board directed OWCP to refer appellant to an appropriate orthopedic
specialist to determine whether his left knee condition was due to his federal employment.5
Dr. Stanley W. Collis, a Board-certified orthopedic surgeon and OWCP referral
physician, examined appellant on August 2, 2011. He noted that appellant had a very good result
from the left knee arthroscopy and the current physical examination was entirely negative. The
only clinical findings were the surgical incision and recent x-ray evidence of some narrowing of
the left knee medial compartment. Dr. Collis described the joint space narrowing as a
developmental-type condition due to age. He further explained that it was possible that the
February 6, 2010 work incident might have aggravated appellant’s surgically-repaired left knee,
but such aggravation was only temporary. Dr. Collis found that appellant’s left knee sprain and
medial meniscus injury had resolved. Also, he noted that appellant had reached maximum
medical improvement (MMI) about four months after the July 2010 arthroscopic surgery.
Appellant’s surgeon, Dr. John E. Balthrop, conducted a follow-up examination on
August 30, 2011.6 Appellant reported some anterior knee pain and mild medial joint line
symptoms primarily when descending stairs, but on level ground and while seated, he was
reportedly pain free. Dr. Balthrop stated that appellant was doing fairly well. He recommended
a nonsteroidal anti-inflammatory drug (NSAID) for treatment of mild crepitation and anterior
3

Docket No. 10-1541 (issued June 14, 2011).

4

Appellant was employed in the private sector at the time of his December 1975 left knee injury.

5

The Board’s June 14, 2011 order remanding case is incorporated herein by reference.

6

Dr. Balthrop is a Board-certified orthopedic surgeon.

2

knee pain. Dr. Balthrop advised appellant to return as needed. He also noted that appellant
would continue rehabilitating the knee with physical therapy. On September 20, 2011 appellant
resumed physical therapy for his left knee, which OWCP authorized.
On January 18, 2012 appellant filed a claim for a schedule award. He submitted a
January 5, 2012 impairment rating from Dr. Frank A. Burke, a Board-certified orthopedic
surgeon, who found left lower extremity impairment due to residuals of the July 2010
meniscectomy, which included left knee joint space narrowing. Dr. Burke opined that the
February 6, 2010 employment incident caused the meniscal tear and aggravated appellant’s
preexisting osteoarthritis. He noted that appellant required further medical treatment, which
included analgesic and anti-inflammatory medications and possible future total knee
arthroplasty.
Based on Dr. Collis’ opinion, OWCP accepted the claim for aggravation of left medial
meniscus tear -- resolved. It retroactively authorized appellant’s July 9, 2010 left knee
arthroscopy. OWCP paid wage-loss compensation for the period April 10, 2010 through
January 28, 2011, the date appellant voluntarily retired from federal civilian service. In its
February 1, 2012 acceptance of the claim, OWCP advised appellant that, based on Dr. Collis’
opinion, the employment-related aggravation of his left knee condition had resolved; therefore,
he was not entitled to medical benefits after August 1, 2011.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.7 Having determined that an employee has a disability
causally related to his federal employment, OWCP may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.8
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.9 To terminate authorization for medical treatment, OWCP must
establish that the employee no longer has residuals of an employment-related condition that
require further medical treatment.10
ANALYSIS
OWCP accepted aggravation of left knee medial meniscus tear based on Dr. Collis’
August 2, 2011 examination. Dr. Collis advised that the results of appellant’s July 9, 2010
OWCP-approved left knee arthroscopy were very good. He also indicated that appellant’s
current physical examination was entirely negative. The only clinical findings were appellant’s
left knee surgical incision and x-ray evidence of some narrowing of the medial compartment,
which Dr. Collis characterized as a developmental-type condition due to age. He surmised that it
7

Curtis Hall, 45 ECAB 316 (1994).

8

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

9

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

10

Calvin S. Mays, 39 ECAB 993 (1988).

3

was possible that the February 6, 2010 work incident might have aggravated appellant’s
surgically-repaired left knee, but such aggravation was only temporary. Dr. Collis concluded
that the left knee sprain and medial meniscus injury had resolved, and appellant reached MMI
within four months of his July 2010 surgery. Based on his opinion, OWCP terminated medical
benefits effective August 1, 2011.
Dr. Balthrop saw appellant on August 30, 2011 and reported continuing left knee
symptoms. Although appellant was noted to be doing fairly well, Dr. Balthrop prescribed
medication, NSAID, and indicated that appellant would continue rehabilitating his left knee with
physical therapy.
When Dr. Burke evaluated appellant on January 5, 2012, he similarly noted that the left
knee remained symptomatic. He stated that appellant was unable to return to work as a full-time,
regular letter carrier. Dr. Burke stated that appellant could not squat, walk distances, use stairs
unrestricted or carry weight. He further noted that appellant’s x-rays revealed joint space
narrowing to one millimeter. Dr. Burke found that the February 6, 2010 employment incident
was not only responsible for the meniscal tear, but it also aggravated appellant’s preexisting left
knee osteoarthritis. According to him, appellant’s current left knee symptoms were not age
related, but instead were the result of his February 6, 2010 employment injury.
FECA provides that, if there is disagreement between an OWCP-designated physician
and an employee’s physician, OWCP shall appoint a third physician who shall make an
examination.11 For a conflict to arise, the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”12
The Board finds an unresolved conflict and medical opinion regarding whether appellant
has continuing residuals of his February 6, 2010 employment injury. Dr. Collis, an OWCP
referral physician, stated that appellant’s left medial meniscus injury had resolved and that the
noted joint space narrowing was age related. Both of appellant’s physicians reported ongoing
left knee symptoms subsequent to Dr. Collis’ August 2, 2011 examination. Dr. Burke disagreed
that the left knee joint space narrowing was age related. He attributed this condition to the
February 6, 2010 meniscal injury and subsequent surgery. Dr. Burke also explained that, while
appellant had preexisting osteoarthritis, it had been dormant prior to the February 6, 2010
employment injury. Because of this unresolved conflict in medical opinion, OWCP failed to
meet its burden of proof to terminate appellant’s entitlement to medical benefits. Accordingly,
its termination of medical benefits effective August 1, 2011 shall be reversed. OWCP’s
February 1, 2012 acceptance of the claim is otherwise affirmed.
CONCLUSION
The Board finds that OWCP improperly terminated medical benefits as of
August 1, 2011.

11

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

12

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the February 1, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part.
Issued: March 5, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, 30th STREET MAIN
POST OFFICE, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 14-313
Issued: July 10, 2014

Case Submitted on the Record

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

JURISDICTION
On November 20, 2013 appellant, through counsel, timely appealed the September 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 the claim.2
ISSUE
The issue is whether appellant’s claimed cervical condition and left carpal tunnel
syndrome are causally related to either her October 5, 1998 or March 9, 2006 employment
injuries.

1
2

5 U.S.C. §§ 8101-8193 (2006).

The record on appeal contains evidence received after OWCP issued its September 12, 2013 decision. The
Board is precluded from considering evidence that was not in the case record at the time OWCP rendered its final
decision. 20 C.F.R. § 501.2(c)(1) (2012).

FACTUAL HISTORY
Appellant, a 63-year-old former equal employment opportunity (EEO) counselor/
investigator, has an accepted claim for right carpal tunnel syndrome (CTS) and right synovial
cyst, which arose on or about October 5, 1998. She retired effective January 3, 2006.3 Under a
separate claim (xxxxxx109) with a March 9, 2006 date of injury, OWCP also accepted right
CTS, along with right ganglion cyst and brachial neuritis/radiculitis. Appellant also claimed to
have sustained injury to her cervical spine, as well as left CTS. However, OWCP did not accept
these additional conditions under claim number xxxxxx109. Appellant’s October 1998 and
March 2006 upper extremity claims have been combined under claim number xxxxxx440.
OWCP has awarded 11 percent permanent impairment of the right upper extremity, through
three schedule awards.
While initially declining to expand her claim(s) to include left CTS and a cervical
condition, in a May 5, 2010 decision, the hearing representative found a conflict between
appellant’s treating physician, Dr. Scott M. Fried, a Board-certified orthopedic surgeon, and
Dr. Andrew J. Collier Jr., a Board-certified orthopedic surgeon and OWCP referral physician.
Dr. Fried first treated appellant in February 2010. He diagnosed, inter alia, employment-related
bilateral CTS and disc space narrowing at C3-4, C4-5 and C5-6, with radiculopathy. Dr. Collier
previously examined appellant on August 6, 2008, and found that her left CTS and cervical
spondylosis with bilateral radiculopathy were not work related.
The latest statement of accepted facts (SOAF) is dated January 7, 2011. The SOAF
described appellant’s various positions during her 37-year tenure with the employing
establishment, including work as a clerk, letter sorting machine operator, data entry duties, work
as an EEO counselor/investigator, and her latest position as an HR specialist, which appellant
held from October 2000 until she retired in January 2006.
OWCP referred appellant to Dr. Walter W. Dearolf III, a Board-certified orthopedic
surgeon, who examined her on January 17, 2013. Dr. Dearolf reviewed appellant’s history of
injury, employment history, various medical records and conducted his own physical
examination. In a January 21, 2013 report, he found no evidence of a work-related injury
causing either left CTS or cervical radiculopathy of the left upper extremity. Dr. Dearolf further
stated that there was no evidence that appellant’s employment directly caused or aggravated left
CTS and/or a cervical strain. He also noted that appellant’s latest electromyography (EMG)
from April 6, 2010 showed no evidence of median nerve neuropathy CTS. Dr. Dearolf reiterated
that appellant did not presently have left CTS. He further found that appellant’s accepted right
CTS and ganglion cyst had resolved.
In a February 4, 2013 decision, OWCP declined to expand appellant’s claim to include
left CTS or a cervical-related condition affecting the left upper extremity. It based its finding on
the IME’s January 21, 2013 report.
Appellant’s counsel timely requested an oral hearing, which was held on June 26, 2013.

3

Appellant was last employed as a human resources (HR) specialist.

2

In reports dated February 21 and May 15, 2013, appellant’s physician, Dr. Fried,
continued to diagnose, inter alia, employment-related bilateral CTS and disc space narrowing at
C3-4, C4-5 and C5-6, with radiculopathy. During the most recent examination, appellant’s neck
and upper back continued to bother her, but her hands remained the major issue.4
By decision dated September 12, 2013, the Branch of Hearings and Review affirmed
OWCP’s February 4, 2013 decision.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury.5
If there is disagreement between an OWCP designated physician and the employee’s
physician, OWCP shall appoint a third physician who shall make an examination.6 For a conflict
to arise the opposing physicians’ viewpoints must be of “virtually equal weight and rationale.”7
Where OWCP has referred the case to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such a specialist, if sufficiently well reasoned and based upon a
proper factual background, must be given special weight.8
ANALYSIS
OWCP properly found a conflict in medical opinion based on the reports of Dr. Fried and
Dr. Collier. Accordingly, it referred appellant to Dr. Dearolf for an impartial medical evaluation.
Counsel suggested that Dr. Dearolf was not properly selected as impartial medical examiner
(IME) because of the absence of a screen shot image. The current record includes both a screen
shot and an ME023 -- Appointment Schedule Notification, which together confirm Dr. Dearolf’s
proper selection as IME pursuant to OWCP’s Medical Management application. See Federal
(FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.5i (May 2013). The ME023 report indicated that no physicians were bypassed prior to
Dr. Dearolf’s selection as IME.

4

Dr. Fried also administered a neuromusculosketal ultrasound on May 15, 2013.

5

Jaja K. Asaramo, 55 ECAB 200, 204 (2004). Causal relationship is a medical question, which generally
requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factors. Id.
6

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321 (2012); Shirley L. Steib, 46 ECAB 309, 317 (1994).

7

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

8

Gary R. Sieber, 46 ECAB 215, 225 (1994).

3

Dr. Dearolf reviewed appellant’s history of injury, as well as her prior employment
history. He also reviewed various medical records, including recent diagnostic studies. Based
on this information and the results of his January 17, 2013 physical examination, Dr. Dearolf
found no evidence of a work-related injury causing either left CTS or cervical radiculopathy of
the left upper extremity. He specifically found no evidence of a causal relationship, either
directly or by aggravation, between appellant’s accepted employment exposure and left CTS
and/or a cervical strain. Dr. Dearolf noted that appellant’s latest EMG dated April 6, 2010,
showed no evidence of carpal tunnel syndrome.
When a case is referred to an IME to resolve a conflict, the resulting medical opinion, if
sufficiently well reasoned and based upon a proper factual background, must be given special
weight.9 The Board finds that OWCP properly gave the appropriate weight to Dr. Dearolf’s
January 21, 2013 findings. Dr. Dearolf provided a well-reasoned report based on a proper
factual and medical history. He also accurately summarized the relevant medical evidence.
Additionally, Dr. Dearolf provided a thorough physical examination. His January 21, 2013
report included detailed findings and medical rationale supporting his opinion. As the IME,
Dr. Dearolf’s opinion is entitled to determinative weight.10 Accordingly, the Board finds that
OWCP properly relied on the IME’s findings in declining to accept left CTS and any cervicalrelated condition.
Subsequent reports from a physician who was on one side of a medical conflict that has
since been resolved would generally be insufficient to overcome the weight accorded the IME’s
report and/or insufficient to create a new medical conflict.11 In his February 21 and May 15,
2013 follow-up reports, Dr. Fried merely reiterated his prior diagnoses. Moreover, he did not
specifically attribute appellant’s disc space narrowing at C3-4, C4-5 and C5-6, and associated
radiculopathy to her prior employment. Consequently, Dr. Fried’s latest reports are insufficient
to overcome the weight properly accorded Dr. Dearolf’s January 21, 2013 opinion, and they are
similarly insufficient to create a new conflict in medical opinion.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.12
CONCLUSION
Appellant failed to establish that her claimed cervical condition and left carpal tunnel
syndrome were causally related to either her October 5, 1998 or March 9, 2006 employment
injuries.

9

Id.

10

Id.

11

I.J., 59 ECAB 408, 414 (2008).

12

See 5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605-10.607.

4

ORDER
IT IS HEREBY ORDERED THAT the September 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 10, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting 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
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 10-964
Issued: February 10, 2011

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 February 23, 2010 appellant filed a timely appeal of a January 8, 2010 merit decision
of the Office of Workers’ Compensation Programs which denied disability for the period
February 20 to 21, 2009. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was disabled
from February 20 to 21, 2009 as a result of her employment-related conditions.
FACTUAL HISTORY
This case has previously been before the Board.1 In an April 26, 2010 decision, the
Board affirmed the Office’s April 21, 2009 decision. The Board found that appellant failed to
1

Docket No. 09-1480 (issued April 26, 2010). Appellant’s occupational disease claim was accepted for right
trigger thumb. She was advised to claim time lost from work by filing a CA-7 claim form.

establish that she was disabled for the period May 20 to July 2 and July 17 to August 21, 2008 as
a result of her accepted employment-related injuries. The facts and history contained in the prior
appeal are incorporated by reference.
On May 12, 2009 appellant submitted a Form CA-7 requesting wage-loss compensation
for disability for the period February 19 to 21, 2009.
In a February 19, 2009 report, Dr. Gary W. Farley, a Board-certified orthopedic surgeon
and osteopath, advised that appellant was unable to work from February 19 to 26, 2009. In a
separate report of February 19, 2009, he noted that appellant returned for a recurrence of
problems with her right thumb. Dr. Farley found a positive grind test and administered a steroid
injection. He indicated that he would allow her to return to work next week. Dr. Farley noted
that appellant received a cortisone injection on February 19, 2009 and that she was advised not to
work due to “possible side effects of the injection.”
By letter dated May 15, 2009, the Office informed appellant of the evidence needed to
support her claim for the dates of February 20 and 21, 2009 and requested that she submit such
evidence within 30 days. It noted that it was processing payment for February 19, 2009 due to a
steroid injection that was administered that date.
In a letter dated May 24, 2009, appellant advised the Office that she was including a
December 2, 2008 report from Dr. Farley. She alleged that the injury, diagnosis and treatment
were the same and the recovery time took five weeks after she received injections in
October 2008.
In a December 2, 2008 report, Dr. Farley advised that appellant was last seen on
November 13, 2008. He indicated that appellant had not recovered from her original injury or
returned to regular employment. Dr. Farley noted that appellant continued to have lingering
symptoms of synovitis with degenerative changes at the carpometacarpal (CMC) joint of her
thumbs. He indicated that, due to the repetitive nature of her position, she was prone to
recurrence due to inflammation and the degenerative changes. On July 2, 2009 the Office
received a letter from Dr. Farley’s secretary. The secretary noted that appellant was able to
return to work on February 26, 2009 with her prior restrictions.
By decision dated July 9, 2009, the Office denied appellant’s claim for compensation for
the period February 20 to 21, 2009. It paid compensation for February 19, 2009 because she had
an injection on that date. The Office advised appellant that the medical evidence did not
establish disability for February 20 or 21, 2009.
On July 27, 2009 appellant’s representative requested a telephonic hearing, which was
held on November 5, 2009.
In a September 29, 2009 report, Dr. Randall Roush, a Board-certified orthopedic surgeon
and treating physician noted that appellant came in for bilateral thumb pain. He provided an
injection to the CMC joints in both thumbs and provided an off work prescription for two days.
Dr. Roush also saw appellant on November 17, 2009 and placed her off work from September 29
through 30, 2009 due to swelling, inflammation and the need to rest the hands after cortisone
injections in her right and left thumb. Additionally, in reports dated November 24, 2009, he
2

noted that appellant was treated in the past for CMC joint arthritis with occasional injections.
Dr. Roush advised that appellant received an injection of the first extensor tendon sheath and
placed her off work for a week because she had involvement of both hands and difficulty at
work.
In a January 8, 2010 decision, an Office hearing representative affirmed the July 9, 2009
decision.
LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act2 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.3 Whether a particular injury caused an employee disability for employment
is a medical issue which must be resolved by competent medical evidence.4 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.5 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.6
ANALYSIS
In support of her claim for disability on February 20 and 21, 2009, appellant provided
reports from her treating physician, Dr. Farley; however, he did not support appellant’s claim for
total disability with sufficient medical rationale.
On February 19, 2009 Dr. Farley advised generally that appellant was unable to work
from February 19 to 26, 2009. Appellant returned for a recurrence of problems with her right
thumb and he administered a steroid injection. Dr. Farley stated that he would “allow her to
return to work next week. He noted that appellant received a cortisone injection on February 19,
2009 and that she was advised not to work due to “possible side effects of the injection.”
Dr. Farley did not address why administration of the injection would disable appellant for any
period of time. Further, his report is speculative as to “possible” side effects that were not
otherwise described or discussed. Medical evidence which does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal

2

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

3

Paul E. Thams, 56 ECAB 503 (2005).

4

W.D., 61 ECAB ___ (Docket No. 09-658, issued October 22, 2009); Paul E. Thams, supra note 3.

5

Id.

6

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

3

relationship.7 Dr. Farley provided a steroid injection on February 19, 2009 to treat appellant’s
accepted trigger thumb and the Office paid her compensation for that date. The record also
contains Dr. Farley’s December 2, 2008 report but this report predates the period in question and
does not offer any opinion regarding appellant’s inability to work on February 20 and 21, 2009.
The letter from Dr. Farley’s secretary is not competent medical opinion evidence as such
evidence can only be provided by a qualified physician.8
The reports from Dr. Roush do not address whether appellant’s accepted condition
caused disability on February 20 and 21, 2009. Medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.9
Appellant alleged that she was disabled on February 20 and 21, 2009, due to her accepted
employment injury. The medical evidence of record does not establish her claimed disability
was due to the cortisone injection of February 19, 2009. The Board finds that appellant has
failed to submit rationalized medical evidence to establish disability from February 20 to 21,
2009 was causally related to her accepted employment injury.
CONCLUSION
The Board finds that appellant failed to establish that she was disabled on February 20
and 21, 2009 as a result of her employment-related injuries.

7

Michael E. Smith, 50 ECAB 313 (1999).

8

See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also Charley V.B. Harley, 2 ECAB
208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).
9

K.W., 59 ECAB 271 (2007).

4

ORDER
IT IS HEREBY ORDERED THAT the January 8, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 10, 2011
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, SODDY DAISY MAIN
POST OFFICE, Soddy Daisy, TN, Employer
__________________________________________

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

Docket No. 11-12
Issued: August 17, 2011

Case Submitted on the Record

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

JURISDICTION
On October 1, 2010 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ (OWCP) July 19, 2010 merit decision and an August 16, 2010
nonmerit decision. 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 appellant established that she sustained a back injury in the
performance of duty on May 27, 2010, as alleged; and (2) whether OWCP properly denied her
request for reconsideration under 5 U.S.C. § 8128(a).
On appeal, appellant contends that she sustained an employment-related back injury on
May 27, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 2, 2010 appellant, then a 63-year-old carrier, filed a traumatic injury claim
alleging that on May 27, 2010 she pulled a muscle in her left hip while lifting at work.
In a June 2, 2010 narrative statement, Kevin Rice, an officer-in-charge, related that on
June 2, 2010 appellant informed him that she pulled a muscle in her hip. Appellant thought the
injury occurred on her route on May 27, 2010. Mr. Rice stated that she could not tell him where
or when the injury occurred. He indicated that appellant worked on May 28, 2010 and did not
notify management about her claimed injury. In a June 3, 2010 letter, the employing
establishment controverted appellant’s claim, contending that she did not establish fact of injury
based on Mr. Rice’s June 2, 2010 letter.
By letter dated June 11, 2010, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested that she submit factual and medical evidence,
including a rationalized medical opinion from an attending physician which described a history
of injury and provided dates of examination and treatment, findings, test results, a diagnosis
together with medical reasons on why the diagnosed condition was caused or aggravated by the
May 27, 2010 incident.
In a June 17, 2010 letter, appellant described the May 27, 2010 incident, stating that her
injury occurred between 8:30 a.m. and 9:15 a.m. After loading mail and parcels weighing at
least 1 to 20 pounds into her car and delivering them on her route, she experienced a dull pain in
her lower left back. Appellant’s pain worsened over the next four days. A physician advised her
that she had pulled a muscle in her lower back. Appellant then reported her claimed back injury
to Mr. Rice.
In a June 4, 2010 medical report, Dr. Daniel T. Black, an attending Board-certified family
practitioner, obtained a history that on May 27, 2010 appellant hurt her lower back while lifting
and twisting. He diagnosed low back pain. Dr. Black advised that appellant could not return to
her regular work duties, but she could work with restrictions as of June 8, 2010. In another
report dated June 4, 2010, he advised that her low back pain was caused by loading mail which
involved lifting and twisting. In a June 29, 2010 report, Dr. Black listed appellant’s physical
restrictions.
A June 4, 2010 report from a physician’s assistant whose signature is illegible stated that
appellant had low back pain and listed her physical restrictions.
In a July 19, 2010 decision, OWCP denied appellant’s claim. It found the evidence
sufficient to establish that the May 27, 2010 incident occurred at the time, place and in the
manner alleged, but the medical evidence was insufficient to establish an injury causally related
to the accepted employment incident.
On July 27, 2010 appellant requested reconsideration. A July 27, 2010 bill and August 3,
2010 report from Dr. Black reiterated his prior diagnosis of low back pain. In the August 3,
2010 report, he advised that appellant could return to her regular work duties with no restrictions
on August 4, 2010.

2

In an August 16, 2010 decision, OWCP denied appellant’s request for reconsideration. It
found that the evidence submitted was repetitious and cumulative in nature and, thus, insufficient
to warrant further merit review of appellant’s claim.2
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within applicable time limitation;
that an injury was sustained while 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.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury of an occupational disease.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.6
In order to meet her burden of proof to establish the fact that she sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that she actually
experienced the employment injury or exposure at the time, place and in the manner alleged.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.10
2

On appeal, appellant has submitted new evidence. However, the Board cannot consider evidence that was not
before OWCP at the time of the final decision. See 20 C.F.R. § 501(c)(1); 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).
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, id.

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

7

Linda S. Jackson, 49 ECAB 486 (1998).

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
9

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

Charles E. Evans, 48 ECAB 692 (1997).

3

ANALYSIS -- ISSUE 1
OWCP accepted that appellant loaded mail and parcels into her car and delivered them on
her route on May 27, 2010 while working as a carrier. The Board finds that the medical
evidence of record is insufficient to establish that her back condition was caused or aggravated
by the May 27, 2010 employment incident.
Dr. Black’s June 4, 2010 reports found that appellant had low back pain caused by the
May 27, 2010 employment incident and addressed her work capability. The Board has
consistently held that pain is a symptom, not a compensable medical diagnosis11 and 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.12 Dr. Black did not
explain how loading mail and parcels into a car and delivering them would cause or contribute to
the claimed low back condition. Lacking this medical explanation, the Board finds that
Dr. Black’s reports are insufficient to establish appellant’s claim.13
Dr. Black’s June 29, 2010 report listed appellant’s physical restrictions. He did not
provide any medical opinion addressing whether she sustained a medical condition causally
related to the accepted employment incident14 or whether the physical restrictions resulted
therefrom. The Board finds, therefore, that Dr. Black’s report is insufficient to establish
appellant’s claim.
The June 4, 2010 report signed by a physician’s assistant does not constitute competent
medical evidence as a physician’s assistant is not a “physician” as defined under FECA.15
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a back injury causally related to the accepted May 27, 2010
employment incident. Appellant did not meet her burden of proof.
On appeal, appellant contended that she sustained a back injury causally related to the
May 27, 2010 employment incident. For the reasons stated, the Board finds that she did not
submit sufficiently rationalized medical evidence to establish her claim.

11

Robert Broome, 55 ECAB 339 (2004); C.F., Docket No. 08-1102 (issued October 10, 2008).

12

T.M., Docket No. 08-0975 (issued February 6, 2009).

13

S.S., 59 ECAB 315, 322 (2008); George Randolph Taylor, 6 ECAB 986, 988 (1954).

14

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

15

See also Allen C. Hundley, 53 ECAB 551 (2002); see S.A., Docket No. 10-1894 (issued June 6, 2011).

4

LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128 of FECA,16
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.17 To be entitled to a merit review of OWCP’s 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.18 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
ANALYSIS -- ISSUE 2
Appellant’s July 27, 2010 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, she did not
advance a relevant legal argument not previously considered by OWCP. The Board finds that
appellant is not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(2).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP. Dr. Black’s July 27, 2010 bill and August 3, 2010 report reiterated his
prior diagnosis. He stated that she had low back pain. Dr. Black’s diagnosis was cumulative and
repetitive of that stated in his prior reports which OWCP considered in its previous decision.
The submission of evidence which repeats or duplicates evidence that is already in the case
record does not constitute a basis for reopening a case for merit review.19
Dr. Black’s August 3, 2010 report stated that appellant could return to her regular work
duties with no restrictions on August 4, 2010. However, this evidence is not relevant to the
underlying issue of whether appellant sustained a back injury causally related to the May 27,
2010 employment incident. Dr. Black did not provide an opinion addressing whether her
claimed back injury was due to the accepted employment incident. The Board has held that the
submission of evidence which does not address the particular issue involved in the case does not
constitute a basis for reopening the claim.20

16

5 U.S.C. §§ 8101-8193. Under section 8128 of the FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
17

20 C.F.R. § 10.606(b)(1)-(2).

18

Id. at § 10.607(a).

19

See L.H., 59 ECAB 253 (2007); James E. Norris, 52 ECAB 93 (2000).

20

D. Wayne Avila, 57 ECAB 642 (2006).

5

The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her July 27, 2010 request for reconsideration.21
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. § 8182(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a back injury in
the performance of duty on May 27, 2010, as alleged. The Board further finds that OWCP
properly denied appellant’s request for reconsideration under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 16 and July 19, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 17, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

21

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits).

6