United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sarasota, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1303
Issued: February 6, 2020

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 May 24, 2019 appellant filed a timely appeal from a May 3, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the May 3, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include the additional condition of failed back syndrome as
causally related to her accepted April 16, 2015 employment injury.
FACTUAL HISTORY
On May 18, 2015 appellant, then a 64-year-old custodian, filed a traumatic injury claim
(Form CA-1) alleging that, on April 16, 2015, she injured her lower back when performing her
work duties of pushing and pulling while in the performance of duty. On the reverse side of the
claim form, the employing establishment indicated that she stopped work on May 5, 2015. On
June 30, 2015 OWCP accepted appellant’s claim for sprain of back, left thoracic region.
In an operative report dated October 20, 2015, Dr. Tan Ly, an osteopath, performed a T12L1 minimally invasive spinal stenosis decompression, partial laminectomy, partial facetectomy,
partial foraminotomy, and partial discectomy with compression of cauda equine nerve roots. He
diagnosed thoracolumbar spinal stenosis, thoracolumbar disc displacement, thoracolumbar
radiculopathy, T12-L1 bilateral lateral recess spinal stenosis secondary to ligamentum flavum
hypertrophy, facet capsular hypertrophy, and neural foraminal narrowing secondary to disc space
height and collapse and bulging.
On November 4, 2015 OWCP expanded appellant’s accepted conditions to include
intervertebral disc disorders with radiculopathy, thoracic region, right.
On June 2, 2016 appellant, through counsel, appellant requested that the accepted
conditions in her claim be expanded to include the additional conditions of spinal stenosis of the
lumbar region, disc herniation at T12-L1, muscle spasms, sciatica, other intervertebral
thoracolumbar disc displacement, and thoracolumbar radiculopathy.
In a development letter dated June 27, 2016, OWCP informed appellant of the deficiencies
of her claim and advised her of the evidence needed to establish additional diagnosed conditions
as work related. It afforded appellant 30 days to submit the necessary evidence.
On March 8, 2017 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and her medical record, to Dr. William Dinenberg, a Board-certified orthopedic surgeon,
for a second opinion examination. In a report dated March 29, 2017, Dr. Dinenberg reviewed
appellant’s history of injury and performed a physical examination. He noted that she continued
to complain of muscle spasms, cramping in her lumbar spine, and lower extremity pain.
Dr. Dinenberg further indicated that appellant was placed on modified-duty postoperation, which
she reported caused significant pain in her lower back. After review of her medical history,
diagnostic tests, and physical examination, he related impressions of administratively accepted
thoracic sprain, herniated nucleus pulposus at T12-L1, status post partial laminectomy,
facetectomy, foraminotomy, and discectomy, and failed back syndrome of lumbar spine.
Dr. Dinenberg noted that the original thoracic sprain had resolved. He further indicated that the
most recent magnetic resonance imaging (MRI) scan on February 8, 2017 did not reveal a
thoracolumbar intervertebral disc herniation at T12-L1. Dr. Dinenberg noted that the condition
appeared to have resolved postsurgical intervention, and that the only diagnosis that remained was
the failed back syndrome of the lumbar spine with persistent low back pain, diminished range of
2

motion of the lumbar spine, and radicular symptoms. He noted that the disabling residuals
included tenderness of the lumbosacral spine, diminished range of motion of the lumbosacral
spine, and subjective complaints of radiculopathy all of which were secondary to the failed back
syndrome of the lumbar spine. Dr. Dinenberg indicated that appellant reached maximum medical
improvement (MMI) on March 29, 2017, and that she could return to light-duty work.
On July 17, 2017 appellant, through counsel, requested that OWCP expand her accepted
conditions to also include failed back syndrome of the lumbar spine based on Dr. Dinenberg’s
March 29, 2017 second opinion examination report.
In a development letter dated August 3, 2017, OWCP advised appellant of the deficiencies
in her claim and instructed her to provide additional evidence necessary to support expansion to
include additional conditions as work related. It afforded her 30 days to submit the necessary
evidence. No additional evidence was received.
By decision dated September 27, 2017, OWCP denied expansion of the acceptance of
appellant’s claim to include additional diagnoses of lumbar spinal stenosis, muscle spasms,
sciatica, and failed back syndrome. It found that the evidence of record failed to establish that the
additional conditions were related to the accepted employment injury. OWCP noted that appellant
remained entitled to receive medical treatment for thoracolumbar radiculopathy at T12-L1.
On October 3, 2017 appellant, through counsel, requested a telephonic hearing. The
hearing was held on March 15, 2018. Appellant described her employment history and duties as
a custodian, described the April 16, 2015 injury and the conditions sustained as a result of that
incident, she noted the medical care she received, as well as her continued symptoms and
treatment.
Subsequent to the hearing, OWCP received medical reports, treatment notes, and
diagnostic test results from Dr. Stuart Krost, a Board-certified orthopedic surgeon, dated between
December 5, 2016 and April 30, 2018. In his April 30, 2018 report, Dr. Krost diagnosed other
intervertebral thoracolumbar disc displacement, radiculopathy, and thoracic sprain.
By decision dated May 31, 2018, the hearing representative affirmed, in part, the
September 27, 2018 decision with regard to appellant’s request to expand her accepted conditions
to include spinal stenosis, muscle spasms, and sciatica. However, she remanded the case for
further development of her request to expand the accepted conditions in the claim to include her
diagnosed failed back syndrome. On remand the hearing representative requested that Dr. Krost
review the opinion of Dr. Dinenberg who had opined that appellant’s failed back syndrome was
due to the original work injury.
In a letter dated June 6, 2018, OWCP requested that Dr. Krost review Dr. Dinenberg’s
March 29, 2017 report and explain whether he agreed that appellant sustained a failed back
syndrome due to the accepted April 15, 2016 employment injury or subsequently authorized
surgery or treatment.
In reports dated May 14 and June 11, 2018, Dr. Krost indicated that he reviewed
appellant’s history of injury and performed a physical examination. He noted that she underwent
an electromyography (EMG) on May 14, 2018 of her bilateral lower extremities which revealed
paravertebral muscle spasm. Dr. Krost diagnosed other intervertebral thoracolumbar disc
displacement, thoracolumbar radiculopathy, and thoracic spine sprain.
3

By decision dated July 17, 2018, OWCP denied appellant’s claim to expand her accepted
conditions to include the additional condition of failed back syndrome finding that the evidence of
record failed to establish that the medical condition was related to the accepted April 16, 2015
employment injury.
On July 26, 2018 appellant, through counsel, requested a telephonic hearing.
In a report dated August 6, 2018, Dr. Krost examined appellant in a follow-up examination.
He reviewed her history of injury, diagnostic studies, and confirmed his prior diagnoses. Dr. Krost
noted that he reviewed Dr. Dinenberg’s March 29, 2017 second opinion examination report, and
indicated that he concurred with his conclusion that appellant sustained failed back syndrome
causally related to the April 16, 2015 accepted employment injury.
In a letter dated September 6, 2018, appellant notified OWCP that Dr. Krost was no longer
her treating physician. She indicated that she was in the process of finding another doctor to
provide additional evidence for her case, and requested approval for the change in physicians.
In reports dated October 18 and November 26, 2018, Dr. Mark Seldes, a Board-certified
orthopedic surgeon, reviewed appellant’s medical records and performed a physical examination.
He diagnosed thoracolumbar spinal stenosis, other intervertebral thoracolumbar disc displacement,
thoracolumbar radiculopathy, and thoracolumbar surgery at T12-L1 on October 20, 2015 to
include facetectomy, foraminotomy, and discectomy with laminectomy. On November 28, 2018
a telephonic hearing was held before an OWCP hearing representative. Appellant stated that she
was no longer being treated by Dr. Krost, and that her new treating physician was Dr. Seldes. The
hearing representative advised appellant that after the hearing she was permitted to submit a report
by Dr. Seldes in which he addressed the issue of causal relationship of the condition of failed back
syndrome. The record was held open for 30 days to submit additional evidence.
In a report dated December 31, 2018, Dr. Seldes performed a follow-up examination. He
confirmed prior diagnoses which did not include failed back syndrome.
By decision dated January 17, 2019, the hearing representative affirmed the July 17, 2018
decision finding that the evidence of record was insufficient to establish that appellant’s diagnosed
failed back syndrome was causally related to the accepted April 16, 2015 employment injury.
In a report dated March 4, 2019, Dr. Seldes reviewed appellant’s medical records and
performed a physical examination. He defined “failed back syndrome” as a condition
characterized by chronic pain following back surgeries, and that many factors could contribute to
the onset or development of this condition including residual recurrent spinal disc herniation,
persistent postoperative pressure on a spinal nerve, altered joint mobility, joint hypermobility with
instability scar tissue, depression, anxiety, sleeplessness, and spinal muscular deconditioning.
Dr. Seldes further noted that an individual may be predisposed to the development of failed back
syndrome due to systemic disorders, but appellant had no such precipitating disorders. He
explained that “what was certain is that [appellant] did have surgery that included partial
laminectomy with the partial facetectomy and partial foraminotomy on October 25, 2015 at T12L1” which had resulted in the disabling pain and numbness which caused her to retire. Dr. Seldes
explained that Dr. Dinenberg had informed OWCP that appellant had failed back syndrome and
thus it did not make sense for it to deny the condition. He concurred with Dr. Dinenberg that
appellant had failed back syndrome due to her October 25, 2015 surgery, which was causally
4

related to the accepted April 16, 2015 employment incident, noting that he had already explained
appellant’s physical findings on which the diagnosis was based. Dr. Seldes requested that OWCP
expand appellant’s accepted conditions to include the additional condition of failed back syndrome
as diagnosed by Dr. Dinenberg.
On March 15, 2019 appellant, through counsel, requested reconsideration of the
January 17, 2019 decision.
By decision dated May 3, 2019, OWCP denied modification of the January 17, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.8
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.9 Rationalized medical opinion evidence is evidence which includes a
physician’s rationalized opinion on the issue of whether there is causal relationship between the
claimant’s diagnosed condition and the established employment injury. The opinion of the
physician must be based on a complete factual and medical background of the claimant, 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 accepted employment injury.10
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
4

Supra note 2.

5
L.C., Docket No. 19-0724 (issued September 5, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6

D.W., Docket No. 18-1139 (issued May 21, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59
ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
7

D.W., id.; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7,
2014); Delores C. Ellyett, 41 ECAB 992 (1990).
8

L.C. supra note 5; F.L., Docket No. 17-1613 (issued August 15, 2018).

9

L.C., id.; M.B., Docket No. 17-1999 (issued November 13, 2018).

10

M.L., Docket No. 18-1605 (issued February 26, 2019).

5

intervening cause attributable to the claimant’s own conduct.11 Thus, a subsequent injury, be it an
aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and
natural result of a compensable primary injury.12 A claimant bears the burden of proof to establish
a claim for a consequential injury. As part of this burden, the claimant must present rationalized
medical opinion evidence.13
ANALYSIS
The Board finds that appellant has met her burden of proof to establish that her claim should
be expanded to include acceptance of the additional condition of failed back syndrome as causally
related to her accepted April 16, 2015 employment injury.
Appellant sustained an injury at work on April 16, 2015 which resulted in diagnosed
medical conditions of her spine for which she required treatment, including thoracolumbar surgery
at T12-L1 on October 25, 2015. She requested that the acceptance of her claim be expanded to
include additional conditions and OWCP undertook development of this issue by referring
appellant to a second opinion examination with Dr. Dinenberg. In his second opinion report of
March 4, 2019, Dr. Dinenberg noted his physical examination findings and indicated that appellant
had been placed on modified duty following her surgery because of a complaint of significant pain
in her lower back. He concluded that the original thoracic sprain had resolved based upon MRI
scan findings. However, Dr. Dinenberg opined that appellant’s accepted conditions had resulted
in failed back syndrome of the lumbar spine based upon documented persistent low back pain,
diminished range of motion of the lumbar spine, and radicular symptoms he had found on
examination. He noted that the residuals of appellant’s employment injury caused failed back
syndrome. This diagnosed condition caused tenderness of the lumbosacral spine, diminished range
of motion of the lumbosacral spine, and subjective complaints of radiculopathy all of which were
secondary to the failed back syndrome of the lumbar spine. The Board finds that the report of
Dr. Dinenberg is based on a complete factual and medical background of the claimant as set forth
in the SOAF, is based upon reasonable medical certainty, and is supported by medical rationale
explaining how the failed back syndrome is related to the progression of the accepted medical
conditions and resulting treatment.14 Thus Dr. Dinenberg’s report is found to carry the weight of
the medical evidence on the issue of causal relationship.
Following receipt of Dr. Dinenberg’s March 4, 2019 report, in a report dated August 16,
2018, Dr. Krost, appellant’s treating physician, noted that he had reviewed Dr. Dinenberg’s
March 29, 2017 second opinion examination report. Dr. Krost indicated that he concurred with
his conclusion that appellant had developed failed back syndrome causally related to the accepted
employment injury and resulting treatment. Although Dr. Krost failed to provide his own medical
rationale as to causal relationship, he noted his consideration of the rationalized opinion of
11

D.W., supra note 6; A.M., Docket No. 18-0685 (issued October 26, 2018); Mary Poller, 55 ECAB 483, 487
(2004); Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation 10-1 (2006).
12

F.L., supra note 8; Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

13

See D.W., supra note 6; J.B., Docket No. 18-0522 (issued January 16, 2019); Charles W. Downey, 54 ECAB
421 (2003).
14

M.S., Docket No. 19-1096 (issued November 12, 2019); M.V., Docket No. 18-0884 (issued December 28, 2018);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

Dr. Dinenberg and concurred with that opinion. Therefore Dr. Krost’s report is supportive of a
finding of causal relationship.
In support of her claim appellant also submitted a March 4, 2019 report by Dr. Seldes who
reviewed Dr. Dinenberg’s report and defined failed back syndrome, within his own understanding,
as a condition characterized by chronic pain following back surgeries, and that many factors could
contribute to the onset or development of this condition including residual recurrent spinal disc
herniation persistent postoperative pressure on a spinal nerve altered joint mobility, joint
hypermobility with instability scar tissue, depression, anxiety, sleeplessness, and spinal muscular
deconditioning. Dr. Seldes noted Dr. Dinenberg’s status as a second opinion physician and
explained that he agreed with the rationale provided as to why the additional condition of failed
back syndrome should be accepted as work related. Thus the March 4, 2019 report by Dr. Seldes
is supportive evidence for a finding of causal relationship.
As the record includes a well rationalized, supportive medical opinion by an OWCP
referral physician on the issue of causal relationship, and as there is no evidence of record
containing an opposing opinion, the Board finds that appellant has met her burden of proof to
establish that the diagnosed condition of failed back syndrome must be accepted as work related
and that the case shall therefore be remanded for consideration of appellant’s wage-loss
compensation and medical benefits, if any, attributable to this additional condition.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include the additional condition of failed back syndrome as
causally related to her accepted April 16, 2015 employment injury.

7

ORDER
IT IS HEREBY ORDERED THAT the May 3, 2019 decision of the Office of Workers’
Compensation Programs is reversed and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: February 6, 2020
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.R., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, Hill, UT, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
David J. Holdsworth, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0536
Issued: February 22, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January11, 2019 appellant filed a timely appeal from an October 9, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).2 As more than 180 days
elapsed from the last merit decision dated August 30, 2017 to the filing of this appeal, pursuant to

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

Appellant also filed a timely request for oral argument in this case. By order dated July 15, 2020, the Board
denied appellant’s request for oral argument, finding that appellant’s contentions could be adequately addressed in a
decision based on a review of the case record and, therefore, oral argument would further delay issuance of a Board
decision and not serve a useful purpose. Order Denying Request for Oral Argument, Docket No. 19-0536 (issued
July 15, 2020).

the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s September 3, 2018 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 9, 2017 appellant, then a 45-year-old sheet metal mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on December 7, 2016 he sustained a lower back injury
while in the performance of duty. He explained that he began to slip on a ladder, and when he
stepped up to the top platform to move to an aircraft wing, he collapsed due to severe lower back
pain. On the reverse side of the form, appellant’s supervisor controverted the claim stating that
appellant did not notify the employing establishment within 30 days of the injury.
By decision dated March 23, 2017, OWCP denied the claim, finding that the evidence of
record was insufficient to establish that his diagnosed medical condition was causally related to
the accepted December 7, 2016 employment incident.
On June 2, 2017 appellant, through counsel, requested reconsideration of OWCP’s
March 23, 2017 decision and submitted additional medical evidence in support of his claim. In an
accompanying brief, counsel argued that the newly submitted medical evidence established
appellant’s traumatic injury claim.
By decision dated August 30, 2017, OWCP denied modification of the March 23, 2017
decision.
On September 3, 2018 appellant, through counsel, requested reconsideration of the
August 30, 2017 decision. Counsel submitted a copy of the August 30, 2018 reconsideration
request form, a brief dated August 30, 2018 asserting that causal relationship had been established
in the claim based on newly submitted medical evidence, a statement from appellant describing a
history of injury and his employment, and medical reports dated April 1, 2016 through
October 2, 2017.
By decision dated October 9, 2018, OWCP denied appellant’s request for reconsideration
of the merits of his claim, finding that the request was untimely filed and failed to demonstrate
clear evidence of error.

3

5 U.S.C. § 8101 et seq.

2

LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.5 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).6
Imposition of this one-year filing limitation does not constitute an abuse of discretion.7
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error.8 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.9 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record.10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.11 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.12
4

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
5

20 C.F.R. § 10.607(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

7

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
8

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).
9
L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 2.1602.5 (February 2016).
10

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

11

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

12

C.M., Docket No. 19-1211 (issued August 5, 2020).

3

OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.13 The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP.14
ANALYSIS
The Board finds that OWCP properly determined that appellant’s September 3, 2018
request for reconsideration was untimely filed.
OWCP’s regulations15 and procedures16 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.17
The most recent merit decision was OWCP’s August 30, 2017 decision. As appellant’s request
for reconsideration was received on September 3, 2018, more than one year after the August 30,
2017 merit decision, the Board finds that it was untimely filed. Consequently, appellant must
demonstrate clear evidence of error on the part of OWCP in its August 30, 2017 decision.18
The Board further finds, however, that the case is not in posture for decision as to whether
appellant’s September 3, 2018 reconsideration request demonstrated clear evidence of error.
OWCP summarily denied appellant’s request for reconsideration without complying with
the review requirements of FECA and its implementing regulations.19 Section 8124(a) of FECA
provides that OWCP shall determine and make a finding of fact and make an award for or against
payment of compensation.20 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the
Director of OWCP shall contain findings of fact and a statement of reasons.21 As well, OWCP’s
procedures provide that the reasoning behind OWCP’s evaluation should be clear enough for the
13

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

14

D.S., Docket No. 17-0407 (issued May 24, 2017).

15
20 C.F.R. § 10.607(a); see J.W., Docket No. 18-0703 (issued November 14, 2018); Alberta Dukes, 56 ECAB
247 (2005).
16

Supra note 6 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

17

20 C.F.R. § 10.607(b); see A.M., Docket No. 20-0143 (issued October 28, 2020); Debra McDavid, 57 ECAB
149 (2005).
18
Id. at § 10.607(b); see M.W., Docket No. 17-0892 (issued May 21, 2018); see S.M., Docket No. 16-0270 (issued
April 26, 2016).
19

T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607.

20

5 U.S.C. § 8124(a).

21

20 C.F.R. § 10.126.

4

reader to understand the precise defect of the claim and the kind of evidence which would
overcome it.22
In denying appellant’s September 3, 2018 reconsideration request, OWCP failed to analyze
the evidence or argument as to whether it was sufficient to demonstrate clear evidence of error.23
The October 9, 2018 decision simply noted: “[w]e did consider your request under 20 C.F.R.
§ 10.607.” However, OWCP did not address the arguments made by appellant in his narrative
statement or counsel in his August 30, 2018 brief, and provided no discussion relative to the new
medical evidence submitted by appellant.24 The Board will therefore set aside OWCP’s October 9,
2018 decision and remand the case for an appropriate decision on appellant’s untimely
reconsideration request, which describes the evidence submitted on reconsideration and provides
detailed reasons for accepting or rejecting the reconsideration request.25
CONCLUSION
The Board finds that OWCP properly determined that appellant’s September 3, 2018
request for reconsideration was untimely filed. However, the Board further finds that the case is
not in posture for decision with regard to whether the untimely reconsideration request
demonstrates clear evidence of error.

22

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

23

See Order Remanding Case, J.K., Docket No. 20-0556 (issued August 13, 2020).

24

See Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.C., Docket No. 16-0563 (issued
May 4, 2016).
25

See Order Remanding Case, C.D., Docket No. 20-0450 (issued August 13, 2020).

5

ORDER
IT IS HEREBY ORDERED THAT the October 9, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: February 22, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 16-1583
Issued: February 21, 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 August 1, 2016 appellant, through counsel, filed a timely appeal from a June 10, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days have elapsed since the last merit decision dated September 5, 2014, 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(e), the Board lacks jurisdiction to review the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On August 8, 2013 appellant, then a 57-year-old mail handler/equipment operator, filed a
notice of recurrence of disability (Form CA-2a) for an injury he sustained under OWCP File No.
xxxxxx058.3 He indicated that he had a seizure on July 27, 2013 and fell from his powered
industrial vehicle (PIV). Because of the nature of the July 27, 2013 employment incident,
OWCP considered the claim as a new traumatic injury.
On October 3, 2013 OWCP advised appellant that it required additional factual and
medical evidence, including a comprehensive medical report, to support his claim that he
sustained an injury on July 27, 2013. Appellant was afforded 30 days to submit the additional
evidence.
In an attending physician’s report (Form CA-20) dated August 1, 2013, received by
OWCP on December 5, 2013, Dr. Denise Taylor, an osteopath, advised that she had treated
appellant for seizures caused by intractable epilepsy, triggered by exposure to certain chemicals,
on June 12 and July 27, 2013. She reported that he was currently undergoing medical trials and
further testing. Dr. Taylor noted that appellant sustained an epileptic seizure in 1995 after
exposure to cleaning products and chemicals at work. She diagnosed focal epilepsy.
By decision dated November 7, 2013, OWCP denied appellant’s claim, finding that he
failed to provide medical evidence sufficient to establish that he sustained an injury causally
related to the accepted July 27, 2013 work incident. It found that Dr. Taylor’s report was
insufficient to establish that the diagnosed condition of focal epilepsy resulted from the July 27,
2013 employment incident. OWCP found that, while Dr. Taylor advised that appellant’s
seizures were triggered by his exposure to certain chemicals, there was no evidence that he was
exposed to any specific chemicals at the employing establishment on July 27, 2013. It further
found that Dr. Taylor noted that his first seizure occurred in 1995, after he was exposed to
cleaning products and chemicals at work.
In a February 17, 1997 report, received by OWCP on December 5, 2013, Dr. Roberto
Mixco, Board-certified in neurology, advised that appellant had experienced a seizure the prior
day. He reported that appellant was feeling shaky and confused.
In a September 24, 1998 report, received by OWCP on December 5, 2013,
Dr. Stephen H. McDonald, an osteopath, advised that appellant had complaints of seizure
disorder which he believed was related to a work injury which occurred between 1994 and 1996.
He reported that his initial complaints began in approximately early 1994. Appellant had been
working around mail bins, which were lubricated with silicone spray material containing
3
The Board notes that OWCP File No. xxxxxx058, pertaining to appellant’s previous claim, is not before the
Board on this appeal.

2

acetone, xylene, and petroleum distillates. Dr. McDonald believed that his exposure to fumes
produced by these chemical agents produced significant symptoms such as severe headaches,
nausea, shaking sensations, and dizziness, in addition to flushing of the skin and redness of his
hands, lack of coordination, slight memory loss, and eye and throat irritation.
Appellant related that in early 1995 he was evaluated for complaints of seizures and
underwent an electroencephalogram (EEG), which was abnormal and showed evidence of
epilepsy. Dr. McDonald noted that appellant had seizures which he was unable to control and
that his physician believed his seizure activity may have been related to the environmental
exposures at his workplace. He noted that after being removed from that work environment his
seizures had become relatively controlled and less frequent. Dr. McDonald opined that, because
appellant was no longer performing these workplace activities and had not been doing so since
1996, his previous medical complaints should have resolved. He advised that he could have
been predisposed to seizure disorder and that his exposure to chemical agents in his workplace
may have lowered his seizure threshold potential, causing his seizures to occur while working in
these work environments. Dr. McDonald advised that this might explain the fact that his seizure
activity appeared to be markedly improved with removal from any additional exposure to these
chemical agents.
On November 20, 2013 appellant requested an oral hearing, which was held before an
OWCP hearing representative on June 12, 2014. At the hearing, he stated that he was driving a
PIV at work on July 27, 2013 when he experienced a seizure, during which he struck his head,
left shoulder, and left hip. Appellant related that his physician told him that he began to
experience soreness in his hip and shoulder from the brunt trauma he sustained during the
July 27, 2013 employment incident. He was represented by counsel, who stated that he was
supposed to be restricted from working in an environment where he was exposed to any
chemicals or operating a PIV. Appellant asserted that management had violated these
restrictions in 2009 and essentially attributed appellant’s seizure to exceeding his work
restrictions.
In a December 12, 2013 report, received by OWCP on July 17, 2014, Dr. Gary M. Weiss,
a Board-certified neurologist, noted that he was treating appellant for toxic encephalopathy with
memory loss, seizures, headaches, other cognitive loss, depression, visual symptoms, fatigue,
and insomnia. He advised that appellant underwent a magnetic resonance imaging (MRI) scan
of the brain on November 19, 2013, which was abnormal, and a brain MRI scan on December 8,
2013, the results of which were normal. Dr. Weiss reported that appellant also underwent EEG
tests on November 19 and 25, 2013, the results of which were normal.
In an April 1, 2014 report, Dr. Weiss advised that he continued to treat appellant for his
diagnosed conditions and essentially reiterated his previous findings and conclusions. He noted
that he also had complaints of spinal pain, left hip pain, and left shoulder pain. Dr. Weiss
reported that appellant had fallen a lot lately due to his symptoms and that he seemed to fall
mainly on his left side.
In a May 2, 2014 report, Dr. Weiss essentially reiterated his previous findings and
conclusions and advised that appellant had bone spurs on his left hip and left shoulder due to the
constant falls caused by his seizures. Appellant also reported intermittent cervical pain radiating

3

to the left upper extremity, with numbness and tingling in his fingers, intermittent thoracic pain
with no radiation, and constant lumbar pain with radiation to the bilateral hips, buttocks, and
lower extremities. Dr. Weiss indicated that appellant had numbness and tingling in his feet and
toes.
In a July 8, 2014 report, Dr. Weiss advised that appellant had a history of seizure disorder
due to encephalopathy. He noted that an employing establishment physician had informed
appellant that his seizures were due to blunt trauma. Appellant reported that his seizures were
currently under control with medication. Dr. Weiss advised that appellant underwent a left hip
MRI scan on May 28, 2014, which showed mild degeneration and changes of the bilateral hips.
He also underwent a left shoulder MRI scan on June 20, 2014, which showed mild
acromioclavicular osteoarthritis. Dr. Weiss noted neck pain with herniated nucleus pulposus at
C5-6 and C6-7, thoracic spine pain at T6-7 and lumbar pain with herniated nucleus pulposus at
L3-5.
In a statement dated July 8, 2014, appellant’s immediate supervisor, J.B., advised that he
never mentioned having any work limitations during the two years he worked for him, although
he did speak to him regarding a previous workers’ compensation case related to seizures caused
by exposure to chemicals. J.B related that appellant stated that he was still having seizures, but
that they were manageable through medication. He asserted that appellant told him many times
that he could file a recurrence claim if he felt that there was something in the building that was
causing him to have seizures again. Appellant, however, told J.B. that he was having them at
home so he did not know how the work environment could have caused them.
J.B. further advised that, if appellant had produced documentation indicating that he
could not drive or be near chemicals, then he would not have driven or been near chemicals. He
stated, however, that appellant had never produced such documentation. J.B. noted that when
appellant fell off a tow motor on July 27, 2013 he went to the emergency room, but was not
injured in the fall.
By decision dated September 5, 2014, an OWCP hearing representative affirmed the
November 7, 2013 decision. He found that appellant failed to submit medical evidence sufficient
to support a causal relationship between any diagnosed medical condition and the July 27, 2013
work incident.
On February 10, 2016 appellant, through counsel, requested reconsideration. Counsel
asserted that neither he nor appellant had received the employing establishment’s July 8, 2014
statement responding to the June 12, 2014 hearing transcript. He argued that this prevented
appellant from being able to submit a rebuttal to the employing establishment’s statement.
Counsel argued that OWCP’s hearing representative erred by failing to address this omission and
by failing to address the issue. He further argued that he did not have a copy of the September 5,
2014 decision or any other document in appellant’s file because “a representative” of DOL’s
Office of the Inspector General and the Postal Inspection Service took every file from “the
representative’s” office on October 2, 2014. Lastly, counsel contended that Dr. Weiss’
October 8, 2015 report was sufficient to establish that appellant’s left shoulder and bilateral hip
injuries were causally related to his fall from a PIV on July 27, 2013.

4

In an October 8, 2015 report, received by OWCP on February 10, 2016, Dr. Weiss
advised that the MRI scans appellant underwent on June 20 and May 28, 2014, in addition to xrays, showed that pain and soreness to the hips and shoulder resulted from blunt trauma, which
occurred during the July 27, 2013 fall at work due to a seizure. He reiterated his diagnoses of
toxic encephalopathy with memory loss, seizures, headaches, other cognitive loss, depression,
visual symptoms, fatigue, and seizure disorder due to encephalopathy.
By decision dated June 10, 2016, OWCP denied appellant’s request for reconsideration
without a merit review, finding the request as or untimely filed and failed to demonstrate clear
evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the application for
reconsideration must be received by OWCP within one year of the date of the decision for which
review is sought.6 When a request for reconsideration is untimely, OWCP will undertake a
limited review to determine whether the application demonstrates clear evidence of error on the
part of OWCP in its most recent merit decision.7
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit
and must manifest on its face that OWCP committed an error. Evidence that does not
raise a substantial question concerning the correctness of OWCP’s decision is insufficient
to demonstrate clear evidence of error. It is not enough to merely show that the evidence could
be construed so as to produce a contrary conclusion. This entails a limited review by
OWCP of how the evidence submitted with the reconsideration request bears on the evidence
previously of record and whether the new evidence demonstrates clear error on the part of
OWCP. To demonstrate clear evidence of error, the evidence submitted must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and
raise a substantial question as to the correctness of OWCP’s decision.8

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 own motion or on application.” 5 U.S.C. § 8128(a).
4

5

20 C.F.R. § 10.607 (2012).

6

Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for
merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011). 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

Id. at § 10.607(b).

8

Robert G. Burns, 57 ECAB 657 (2006).

5

OWCP procedures note that the term “clear evidence of error” is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.9 The Board makes an independent determination of whether a claimant has
demonstrated clear evidence of error on the part of OWCP.10
ANALYSIS
OWCP received appellant’s request for reconsideration on February 10, 2016, which was
more than one year after the September 5, 2014 merit decision. Counsel claimed that he had not
received the employing establishment’s July 8, 2014 statement responding to the June 12, 2014
hearing transcript.11 He also asserted, as he did in his appeal to the Board, that neither he nor
appellant received a copy of the September 5, 2014 decision. The record indicates that OWCP
mailed the decision to his last known address, which has remained unchanged since he filed his
claim in August 2013. In the absence of evidence to the contrary, it is presumed that a notice
mailed in the ordinary course of business was received in due course by the intended recipient.12
This presumption is commonly referred to as the “mailbox rule.”13 It arises when the record
reflects that the notice was properly addressed and duly mailed.14 It is, therefore, presumed that
appellant received the employing establishment’s July 8, 2014 statement and the September 5,
2014 decision in due course. As such, the Board finds that the request for reconsideration
OWCP received on February 10, 2016 was untimely filed.15

9

J.S., Docket No. 16-1240 (issued December 1, 2016); Federal (FECA) Procedure Manual, supra note 6 at
Chapter 2.1602.5(a) (February 2016).
10

See D.S., Docket No. 17-0407 (issued May 24, 2017).

11

R.W., Docket No. 06-2000 (issued February 22, 2007) (appellant alleged that he was denied due process when
he was not served with a copy of the employing establishment’s comments following the hearing. While correct that
OWCP is required to furnish a copy of any comments made by the employing establishment to the employee and
allot him an additional 20 days to comment under 20 CFR § 10.617(e), the Board notes that this is harmless error.
In addressing violations of procedural due process under FECA, the Board has held that the opportunity for a
hearing or reconsideration by OWCP, together with the Board’s review on appeal, constitutes meaningful post
deprivation processes whereby the government can address procedural errors. See Lan Thi Do, 46 ECAB
366 (1994).
12

Kenneth E. Harris, 54 ECAB 502, 505 (2003).

13

Id.

14

Id.

15

The Board further finds that counsel’s argument that he lacked a copy of the September 5, 2014 decision or any
other document in appellant’s file because “a representative” of DOL’s Office of the Inspector General and the
Postal Inspection Service took his files on October 2, 2014, does not excuse the failure to timely request
reconsideration. Counsel had ample time to request a copy of the September 5, 2014 decision of OWCP’s hearing
representative and one year in which to file a timely request for reconsideration.

6

Because appellant’s request for reconsideration was untimely filed, he must demonstrate
“clear evidence of error” on the part of OWCP in denying his traumatic injury claim.16 As noted,
OWCP denied the claim because he failed to submit medical evidence sufficient to establish that
he sustained an injury causally related to the accepted July 27, 2013 work incident. With his
request for reconsideration, appellant submitted the October 8, 2015 report from Dr. Weiss, who
reiterated his previously reported diagnoses and opined that the MRI scans appellant underwent
on June 20 and May 28, 2014 and x-rays of record showed that pain and soreness to the hips and
shoulder resulted from blunt trauma which occurred during the July 27, 2013 fall at work due to
a seizure. This report did not present medical evidence which explained how appellant’s
diagnosed conditions were caused or aggravated by the July 27, 2013 work incident. It is of
limited probative value as it did not provide a reasoned medical opinion on the relevant issue;
i.e., whether appellant met his burden to establish an injury causally related to the accepted
July 27, 2013 employment incident.
The term clear evidence of error is intended to represent a difficult standard.17 Even a
detailed, well-rationalized medical report, which would have created a conflict in medical
opinion requiring further development if submitted prior to issuance of the denial decision, is
insufficient to demonstrate clear evidence of error.18 It is not enough to show that evidence
could be construed so as to produce a contrary conclusion.19 Instead, the evidence must shift the
weight in appellant’s favor.20
Appellant did not submit medical evidence sufficient to prima facie shift the weight of
the evidence in favor of the claimant and raise a substantial question as to the correctness of
OWCP’s decision. Consequently, the Board finds that he has failed to demonstrate clear
evidence of error on the part of OWCP such that it abused its discretion in denying merit review.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

16

20 C.F.R. § 10.607(b); see Leona N. Travis, 43 ECAB 227 (1991). It is not enough to merely show that the
evidence could be construed to produce a contrary conclusion. Id. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear evidence of error. See
Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence submitted must not only be of sufficient probative value to
create a conflict in medical opinion or establish a clear procedural error, but must be of sufficient probative value to
prima facie shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision. Thankamma Mathews, 44 ECAB 765, 770 (1993).
17

D.B., Docket No. 16-1405 (issued January 9, 2017).

18

Id.

19

Leona N. Travis, supra note 16.

20

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the June 10, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 21, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
U.S. POSTAL SERVICE, NORTHVIEW
CARRIER ANNEX, Lincoln, NE, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-543
Issued: October 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On December 22, 2008 appellant filed a timely appeal from the June 2 and November 5,
2008 merit decisions of the Office of Workers’ Compensation Programs, which denied his claim
of an occupational left shoulder injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant sustained a left shoulder injury in the performance of duty.
FACTUAL HISTORY
On March 3, 2008 appellant, then a 58-year-old letter carrier, filed a claim alleging that
he sustained a left shoulder injury in the performance of duty: “While carrying DPS [delivery
point sequence] mail in my left hand and cradling letters and flats in my left arm, put a strain on
my shoulder for quite some time.” He indicated that he first became aware of this injury on
January 7, 2008. Appellant thought something might be torn. He did not stop work. The
employer provided a position description and the physical requirements of the job.

On February 12, 2008 Dr. Patrick T. Hurlbut, a Board-certified orthopedic surgeon,
examined appellant and found left shoulder impingement signs. He found scapular winging and
pain with elevation of his arm overhead and with abduction. X-rays showed a normal left
shoulder with no fractures, dislocations or acute changes. Dr. Hurlbut diagnosed left shoulder
rotator cuff tear versus tendinitis. He recommended physical therapy. If there was no
improvement in four to six weeks, Dr. Hurlbut would recommend a magnetic resonance imaging
(MRI) scan to evaluate for rotator cuff pathology.
In a decision dated June 2, 2008, the Office denied appellant’s claim for compensation on
the grounds that the medical evidence did not establish that the claimed medical condition
resulted from the accepted events. It stated: “None of the supporting medical evidence, that you
submitted, addressed the issue as to what caused the pain in your left shoulder. We did not
receive any medical evidence, based upon objective findings, that supported that you have a
medical condition caused or aggravated by your [f]ederal employment activities.”
On July 23, 2008 Dr. Hurlbut reported that appellant complained of increased left
shoulder pain when working with his arms overhead, which was a common position for him to
work in. On examination he noted weakness in the periscapular muscles, suggesting muscular
deconditioning as a cause of impingement syndrome. Dr. Hurlbut stated, “[Appellant] may have
predisposing condition, which can lead to the impingement problems versus a rotator cuff tear.”
He then addressed causal relationship:
“[Appellant’s] work involves overhead work as a [letter] carrier could exacerbate
or cause problems with his shoulder. It should be noted that he may have an
underlying predisposition to the problem because of the periscapular weakness,
which was noted. It should also be noted that if [appellant] develops a rotator cuff
tear or rotator cuff tendinitis that periscapular control could be lost as a response
to the injury.
“It is in my opinion that [appellant] is more likely than not to have had an injury
to the shoulder which was caused or exacerbated by his work while employed as a
[letter] carrier. The above is stated within [a] reasonable degree of medical
certainty.”
In a decision dated November 5, 2008, the Office reviewed the merits of appellant’s
claim and denied modification of its prior decision. It found that Dr. Hurlbut speculated what
condition appellant might have in his left shoulder and could develop. However, he did not
provide a firm diagnosis causally related to appellant’s work activities.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of his duty.1 An
employee seeking benefits under the Act has the burden of proof to establish the essential
elements of his claim. When an employee claims that he sustained an injury in the performance
1

5 U.S.C. § 8102(a).

2

of duty, he must submit sufficient evidence to establish that he experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He must also
establish that such event, incident or exposure caused an injury.2 It is the employee’s burden to
establish a firm diagnosis of the medical condition claimed.3
Causal relationship is a medical issue4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,5 must be one of reasonable medical certainty6
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.7
Medical conclusions unsupported by rationale are of little probative value.8 It is not
necessary that the opinion be so conclusive as to suggest causal connection beyond all possible
doubt. The evidence required is only that necessary to convince the adjudicator that the conclusion
drawn is rational, sound and logical.9 The mere fact that a condition manifests itself or worsens
during a period of federal employment raises no inference of causal relationship between the
two.10
ANALYSIS
The Office does not dispute the duties appellant performed as a letter carrier. The
employer provided a position description and the physical requirements of the job. So appellant
has met his burden to establish that he experienced a specific event, incident or exposure
occurring at the time, place and in the manner alleged. The question that remains is whether his
duties as a letter carrier caused a left shoulder injury.
There is only one medical report that addresses this issue. On July 23, 2008 Dr. Hurlbut
stated with a reasonable degree of medical certainty that appellant was more likely than not to
2

Abe E. Scott, 45 ECAB 164 (1993); John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (“injury”
defined); 20 C.F.R. § 10.5(ee), .5(q) (1999) (“traumatic injury” and “occupational disease or illness” defined).
3

Patricia Bolleter, 40 ECAB 373 (1988).

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

8

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

9

Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.

10

Steven R. Piper, 39 ECAB 312 (1987).

3

have had left shoulder injury caused or exacerbated by his work as a letter carrier. He noted that
it was common for appellant to work with his arms overhead and that appellant complained of
left shoulder pain when doing so. Dr. Hurlbut, however, did not firmly diagnose appellant’s left
shoulder condition. X-rays on February 12, 2008 showed a normal left shoulder. Dr. Hurlbut’s
diagnosis that day was left shoulder rotator cuff tear “versus” tendinitis. He was uncertain
which, so he recommended a course of physical therapy in the hope that appellant’s pain would
resolve without further intervention, but if not, he would recommend an MRI scan to evaluate for
rotator cuff pathology. Dr. Hurlbut was no more specific on July 23, 2008. He noted that
appellant might have a predisposing weakness in the periscapular muscles “which can lead to the
impingement problems versus a rotator cuff tear.” So the specific nature of appellant’s left
shoulder pathology remains unclear.
Moreover, Dr. Hurlbut did not offer a sound orthopedic explanation of how working with
arms overhead caused appellant’s particular left shoulder pathology. It is difficult to offer such
an explanation without a firm diagnosis of the pathology one is discussing. All Dr. Hurlbut
noted that appellant experienced increased pain when working in that position, but this does not
establish that such symptoms were anything more than revelatory of an underlying condition.11
It does not establish that the work activity caused or even materially aggravated the underlying
condition.
Although Dr. Hurlbut expressed his opinion with a reasonable degree of medical
certainty, the lack of a firmly diagnosed left shoulder condition diminishes the probative value of
his opinion, as does the lack of a sound orthopedic explanation of how working with arms in an
overhead position at work caused or materially aggravated that particular condition. For this
reason, the Board finds that appellant has not met his burden of proof to establish the element of
causal relationship. The Board will affirm the denial of his claim that he sustained a left
shoulder injury in the performance of duty.
Appellant argues on appeal that his physician did not have to provide that much of a
statement for the Office to approve his claim for a right shoulder injury. He argues that he has
given written documentation of the wear and tear of his shoulder from his work. But this is for
Dr. Hurlbut to discuss. He is the one who must explain how the particular duties appellant
performed biomechanically or physiologically caused or materially aggravated a firmly
diagnosed medical condition in the left shoulder. It is certainly true, as appellant points out, that
other letter carriers have sustained shoulder injuries in the performance of duty, but each of those
letter carriers had a burden of proof to submit a well-reasoned medical narrative explaining how
those injuries occurred. He shares the same burden. Appellant’s reference to a January 11, 2008
hearing before an Office hearing representative, the filing of Equal Employment Opportunity
claim and the changing of his route appears to relate to a different claim and is not particularly
relevant to the issue presently before the Board.

11

Phillips G. Putnam, 10 ECAB 631 (1959).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a left shoulder injury in the performance of duty. The medical opinion evidence is
insufficient to establish causal relationship.
ORDER
IT IS HEREBY ORDERED THAT the November 5 and June 2, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: October 1, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alpharetta, GA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 11-1285
Issued: May 23, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On May 2, 2011 appellant filed an application for review of an Office of Workers’
Compensation Programs’ (OWCP) decision dated February 9, 2011 which affirmed a decision
denying appellant’s request to expand her claim to include a right thumb condition.1
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,2 the Board held that,
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued. Following OWCP’s
June 16, 2010 decision, appellant requested an oral hearing on July 13, 2010. She also submitted
additional evidence. This included a January 27, 2011 report and a visit status form from
Dr. Snehal C. Dalal, appellant’s treating physician, who addressed the cause of appellant’s
thumb condition. These documents were received by OWCP on January 31, 2011. In its
February 9, 2011 decision, an OWCP hearing representative affirmed the June 16, 2010 decision.
She did not note receipt or consideration of the January 27, 2011 reports. Instead, the hearing
1

Appellant has an accepted claim for bilateral carpal tunnel syndrome. She requested that her claim be expanded
to include a right thumb condition and OWCP’s February 9, 2011 decision affirmed a June 16, 2010 decision
denying appellant’s claim.
2

41 ECAB 548 (1990).

representative advised that the record was held open to allow for the submission of additional
evidence but only indicated that nonmedical evidence and a duplicate medical report were
submitted.
The Board finds that the hearing representative, in her February 9, 2011 decision, did not
review the January 27, 2011 reports from Dr. Dalal that were received by OWCP on
January 31, 2011. For this reason, the case will be remanded to OWCP to enable it to properly
consider all the evidence submitted at the time of the February 9, 2011 decision. Following this
and such further development as OWCP deems necessary, it shall issue an appropriate merit
decision on the claim.
IT IS HEREBY ORDERED THAT the February 9, 2011 decision of the Office of
Workers’ Compensation Programs set aside. The case recorded is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: May 23, 2012
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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Lonnie Boylan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-446
Issued: April 27, 2015

Case Submitted on the Record

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

JURISDICTION
On December 19, 2014 appellant, through counsel, filed a timely appeal from a July 17,
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 OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective July 27, 2014 as he no longer had any residuals or disability causally
related to his accepted employment-related injury.
FACTUAL HISTORY
On February 1, 1995 appellant, then a 43-year-old maintenance mechanic, filed an
occupational disease claim for a chronic back strain and lumbar disc disease. He first became
1

5 U.S.C. § 8101 et seq.

aware of his condition on September 21, 1994. On September 26, 1995 OWCP accepted the
claim for temporary aggravation of preexisting lumbar sprain. The record reflects appellant has
preexisting nonwork-related conditions of arthritis and degenerative joint/disc disease, which
was a service-connected disability, and underwent an L5-S1 discectorny in July 1989. Appellant
stopped work on January 30, 1995 and has not returned. OWCP retained him on the periodic
compensation rolls.
The record does not have any additional medical evidence until 2003. In an August 11,
2003 report, Dr. Wendell D. Daniels, a Board-certified internist, found that appellant had reached
maximum medical improvement (MMI) and could work eight hours a day with restrictions. On
September 24, 2003 appellant rejected a September 22, 2003 limited-duty job offer. OWCP took
no further action.
In a May 9, 2011 report, Dr. Charles D. Mitchell, a Board-certified orthopedic surgeon
and OWCP referral physician, diagnosed appellant with residuals of lumbar disc disease, which
had been aggravated in 1995. He did not find any further need for treatment but that appellant
could not return to his work as a mechanic. On a Form OWCP-5c, work capacity evaluation,
Dr. Mitchell found appellant capable of working six hours a day with permanent restrictions. A
comprehensive reconditioning program was recommended.
In an October 24, 2012 letter, OWCP requested a comprehensive medical report
concerning appellant’s accepted work-related condition. This request, however, was returned to
OWCP as undeliverable.
On February 15, 2013 OWCP referred appellant, along with a statement of accepted
facts, the medical record, and a list of questions, to Dr. John A. Sklar, a Board-certified
physiatrist. In an April 4, 2013 report, Dr. Sklar noted the history of injury and appellant’s prior
back surgery along with a review of the records. He also presented findings on examination.
Dr. Sklar opined that the accepted work injury did not affect appellant’s preexisting back
problem. He diagnosed lumbar sprain/strain, which resolved within two to three months from
the date of injury without disabling residuals. Dr. Sklar opined that appellant could work
without any restrictions due to his work injury and filled out a work capacity evaluation
accordingly. He recommended appellant start part-time work for one month and then full duty as
he has not worked in over 15 years.
OWCP determined there was a conflict in medical evidence with regard to appellant’s
work capabilities and referred appellant, along with a statement of accepted facts, the medical
record and a list of questions, to Dr. David D. Sanderson, a Board-certified orthopedic surgeon,
to resolve the conflict. In a June 19, 2013 report, Dr. Sanderson noted the history of injury, his
review of the medical records, which were noted as being sparse, and findings on examination.
He found appellant had absent Achilles’ reflex on the left with three centimeter atrophy of his
left calf and a two centimeter atrophy of his left thigh compared to the right, which was most
likely related to the S1 compressed nerve that he had in the military. Dr. Sanderson opined that
there is no injury-related disability or residuals from the accepted work-related condition of
September 21, 1994. He explained that the lumbosacral strain had temporarily aggravated
appellant’s preexisting condition and should have resolved in three to six months. Dr. Sanderson
noted that appellant had not worked for 20 years and had comorbid medical problems, but found

2

that he could gradually be worked into a full-time position. Appellant had a functional capacity
evaluation on July 30, 2013 and Dr. Sanderson opined, in an August 2, 2013 work capacity
evaluation, that appellant had reached maximum medical improvement and, while he was not
able to perform his usual job, he could gradually be worked into a full-time position with
restrictions. The restrictions, including the gradual increase in work hours, were due only to
appellant’s nonwork-related conditions.
By notice dated June 10, 2014, OWCP proposed to terminate medical benefits and
compensation for wage loss based on the weight of medical evidence of Dr. Sanderson, who
found no residuals or disability causally related to the September 21, 1994 work injury.
Appellant was provided 30 days to submit additional evidence or argument. No additional
evidence was received from him.
By decision dated July 17, 2014, OWCP terminated appellant’s claim for medical and
wage-loss benefits effective July 27, 2014 as the weight of the medical evidence continued to
rest with Dr. Sanderson’s report.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his or her employment, it may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.2 OWCP’s burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.3 Furthermore, the right to medical benefits for an accepted
condition is not limited to the period of entitlement for disability. To terminate authorization for
medical treatment, OWCP must establish that a claimant no longer has residuals of an
employment-related condition that requires further medical treatment.4
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.5 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.6 In situations where there exist opposing medical reports of virtually
equal weight and rationale and the case is referred to an impartial medical specialist for the

2

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

3

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

5

5 U.S.C. § 8123(a).

6

20 C.F.R. § 10.321.

3

purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.7
ANALYSIS
OWCP accepted that on September 21, 1994 appellant sustained temporary aggravation
of preexisting lumbar sprain. Appellant stopped work on January 30, 1995 and received
compensation benefits.
OWCP determined that a conflict in medical opinion existed on work capacity related to
the September 21, 1994 temporary aggravation of preexisting lumbar sprain. The last medical
report from appellant’s treating physician, Dr. Daniels, dated August 11, 2003; however, found
that appellant could work eight hours a day with restrictions. On March 27, 2013 Dr. Sklar, an
OWCP referral physician, opined that appellant’s lumbar sprain/strain, had resolved within two
to three months from the date of injury without disabling residuals and that he could work
without any restrictions due to his work injury. His recommendation that appellant start parttime work for one month and then full duty was due to the fact that appellant had not worked in
more than 15 years. This medical evidence does not represent a conflict in medical opinion, but
an agreement that appellant’s work condition had resolved with no disabling residuals and he
was capable of working full time without restrictions.8 Thus, as no conflict in medical opinion
existed, OWCP’s referral to Dr. Sanderson was that of a second opinion examiner as opposed to
an impartial medical specialist.
Dr. Sanderson reviewed the complete medical record, including a July 30, 2013
functional capacity evaluation, the statement of accepted facts, and performed a comprehensive
examination of appellant on June 19, 2013. He opined that there was no disability nor residuals
from the accepted work-related condition of September 21, 1994 as the lumbosacral strain had
temporarily aggravated appellant’s preexisting condition and should have resolved in three to six
months. Dr. Sanderson noted that appellant had not worked for 20 years and had comorbid
medical problems, but opined that he could gradually be returned to a full-time position with
restrictions due to his nonwork-related conditions. OWCP issued a preliminary notice of
termination on June 10, 2014 and then finalized the termination of appellant’s wage-loss and
medical benefits effective July 27, 2014 based on Dr. Sanderson’s June 19, 2013 report.
The Board finds that Dr. Sanderson’s opinion is sufficient to establish that the accepted
temporary aggravation of preexisting lumbar sprain had resolved without residuals or disability
as of July 27, 2014. Dr. Sanderson’s report was based on the complete medical record and a
statement of accepted facts. He also performed a thorough clinical examination. Dr. Sanderson
presented detailed rationale explaining why any work restrictions would be related to appellant’s
nonwork-related conditions. The Board finds that his report is sufficiently rationalized to
represent the weight of the medical evidence in this case.9 The Board notes there is no
7

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

8

See W.C., Docket No. 13-705 (issued September 4, 2013).

9

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

4

contemporaneous medical evidence from an attending physician that discussed a continuing
employment-related disability. Prior to the termination, the last report from an attending
physician, Dr. Daniels, was dated August 11, 2003 and noted that appellant had reached
maximum medical improvement and could work eight hours a day with restrictions.
On appeal, counsel asserts several arguments pertaining to Dr. Sanderson’s status as
impartial examiner and that his report should not be given special weight as an impartial medical
specialist. As no conflict in medical opinion existed at the time of OWCP’s referral to
Dr. Sanderson, his status is considered that of a second opinion physician.10 Counsel’s
remaining arguments pertained to appellant’s preexisting medical conditions and
Dr. Sanderson’s answers to OWCP’s questions were insufficient.
The Board found
Dr. Sanderson’s report to be based on the complete medical record and a statement of accepted
facts, and provided sound rationale for his findings.
The Board finds that OWCP met its burden of proof to terminate compensation for
wage-loss and medical benefits effective July 27, 2014.
Appellant may submit evidence or argument with a written request for reconsideration
within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective July 27, 2014 as he no longer had any residuals or disability
causally related to his accepted September 21, 1994 employment-related injury.

10

See Pierre W. Peterson, 39 ECAB 955 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the July 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: April 27, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Redding, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 14-1985
Issued: June 26, 2015

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On September 15, 2014 appellant filed a timely application for review of a June 24, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP) reducing appellant’s
compensation on the basis that he had the capacity to earn wages as an information clerk,
according to the Department of Labor, Dictionary of Occupational Titles (DOT) No. 237.367022, at the rate of $320.00 per week. The Board docketed the appeal as No. 14-1985. On appeal
appellant contends, inter alia, that OWCP completely ignored the reports of his treating
physician.
Having reviewed the case record submitted by OWCP, the Board finds that this case is
not in posture for decision.
On February 3, 2011 OWCP accepted that appellant sustained patellar tendinitis, left after
kneeling in the performance of duty as a mail processing clerk on October 7, 2010.1 It paid
compensation benefits. By decision dated June 24, 2014, OWCP reduced appellant’s

1

OWCP accepted appellant’s prior claim for left knee internal derangement, localized primary arthritis in the left
leg, and left knee medial meniscus tear resulting from slipping in a puddle of water on December 25, 2003 while in
the performance of duty as a mail processing clerk. OWCP File No. xxxxxx623.

compensation to reflect that he had the capacity to earn wages as an information clerk at the rate
of $320.00 per week.
The Board finds that, in reducing appellant’s compensation, OWCP did not consider all
of the relevant medical evidence. OWCP indicated that it based its decision on the April 1, 2013
report of the second opinion physician, Dr. Charles F. Xeller, a Board-certified orthopedic
surgeon, who opined that appellant could return to work in a strictly sedentary position.
However, OWCP never considered the reports of Dr. Paul Schwartz, appellant’s treating Boardcertified orthopedic surgeon.
The Board notes that in a May 14, 2013 progress report, Dr. Schwartz listed appellant’s
diagnoses as knee joint replacement, left knee joint arthrofibrosis and generalized left anterior
knee pain. Dr. Schwartz noted that while he would agree with Dr. Xeller’s assessment regarding
history and current ambulatory status and knee function, he would dispute his contention that
appellant could return to a strictly sedentary job. He noted that, while walking and moving is
painful for appellant, prolonged sitting, such as would be required by a sedentary job, would also
cause him significant discomfort. Dr. Schwartz opined that, at present, he did not feel that
appellant would be able to return to a regular line of work, including sedentary work, even with
vocational rehabilitation. He explained that appellant had a primary knee replacement on the
right, but that the majority of problems seem to be related to his left knee, which has had a
primary arthroplasty and three revision surgeries, and that this would be the primary cause of
appellant’s lasting disability. He also was concerned that returning appellant to a work
environment would expose him to a risk of reinjury of his knees, even from the most innocuous
of events.
Because Board decisions are final with regard to the subject matter appealed,2 it is crucial
that OWCP address all relevant evidence received prior to the issuance of its final decision.3 As
OWCP did not review Dr. Schwartz’s report, accordingly, the Board finds that this case is not in
posture for decision as OWCP did not review all the relevant evidence before issuing its
decision. On remand, OWCP shall review all evidence of record and, following any further
development of the medical evidence deemed necessary, it shall issue a de novo decision on
appellant’s claim.4

2

20 C.F.R. § 501.6(d).

3

See William A. Couch, 41 ECAB 548, 553 (1990).

4

Appellant submitted new evidence on appeal. However, the Board lacks jurisdiction to review evidence for the
first time on appeal. See 20 C.F.R. § 501.2(c). Appellant may submit this evidence to OWCP on remand.

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 24, 2014 is set aside, and the case is remanded for further
consideration consistent with this order.
Issued: June 26, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dayton, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1450
Issued: January 28, 2010

Case Submitted on the Record

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

JURISDICTION
On May 20, 2009 appellant timely appealed the April 3, 2009 merit decision of the Office
of Workers’ Compensation Programs, which affirmed the termination of her wage-loss
compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has
jurisdiction over the merits of the claim.1
ISSUE
The issue is whether the Office properly terminated appellant’s compensation and
medical benefits effective September 9, 2008.

1

The Branch of Hearings and Review issued a May 22, 2009 decision after the Board assumed jurisdiction over
the April 3, 2009 decision. See 20 C.F.R. § 10.626 (2009). An Office decision issued while the Board has
jurisdiction over the matter is null and void. See Lawrence Sherman, 55 ECAB 359, 360 n.4 (2004).

FACTUAL HISTORY
Appellant, a 63-year-old retired nursing assistant, has an accepted claim for lumbar strain
and left sciatica, which arose on July 17, 1997.2 Dr. Steven R. Gamm, appellant’s treating
physician, last reported on her condition in December 2003.3 At that time, he diagnosed
lumbosacral sprain with radiculopathy, lumbar disc displacement and L2-3 disc herniation.
Dr. Gamm advised appellant to limit strenuous activity. Finding that appellant was able to work,
he imposed a 10-pound lifting restriction and precluded her from climbing stairs or ladders.
Appellant was also limited to less than two hours of bending, squatting, crouching and kneeling.
After several years of inactivity, the Office received a March 25, 2008 letter from the
employing establishment requesting a status update. The employing establishment advised that
appellant had been in light-duty positions for several years and was currently detailed as a
program support assistant performing light clerical work. The employing establishment noted
there had been no medical activity since December 2003 to establish the extent of appellant’s
continuing residuals from her July 17, 1997 injury.
In a note dated April 22, 2008, Dr. Jodi L. Van Jura, a Board-certified family practitioner,
advised that appellant was under her care for low back pain and needed to be on a lifting
restriction of no more than 15 pounds, indefinitely.4
Dr. E. Gregory Fisher, a Board-certified orthopedic surgeon and Office referral
physician, examined appellant on July 14, 2008. He reviewed a history of the July 17, 1997
injury while appellant was assisting a patient off a commode. Appellant advised Dr. Fisher that
for the past three years she had been under the care of her family physician who saw her
approximately every four to six months. She explained that her treatment for her back consisted
of over-the-counter Tylenol. Dr. Fisher noted that for the past several years there had been no
physical therapy, no chiropractic treatment or any injections. Appellant stated that her condition
had improved somewhat and that it was tolerable. Her pain was not present on a daily basis.
Appellant told Dr. Fisher that it “comes and goes.”
On physical examination, Dr. Fisher noted that, while appellant did not appear to be in
any distress or discomfort, she stated that her pain in the low back area was three to four on a
scale of one to ten. He stated that his findings on clinical examination did not show evidence of
a lumbar sprain or evidence of a left sciatic condition. Dr. Fisher explained that a lumbar sprain
was a soft tissue injury that would have healed anywhere from two weeks to two months after
the original injury. There was no evidence of motor or sensory deficits over the L4-5 and S1
dermatomes, which would otherwise signify a left sciatic condition.5 Dr. Fisher stated that
appellant did not show evidence of active residuals of her work-related conditions. He found
that both conditions were no longer present on clinical examination and had “healed and resolved
2

Appellant was injured while assisting a patient off the commode.

3

Dr. Gamm is Board-certified in emergency medicine.

4

Dr. Van Jura reported the same lifting restriction in a January 2, 2008 certificate of medical examination
(Standard Form No. 78).
5

Dr. Fisher noted a “very slight” decrease in sensation over the anterior lateral aspect of the left thigh, which he
attributed to irritation of the left femoral cutaneuous nerve and not due to the sciatic nerve.

2

themselves.” Dr. Fisher advised that appellant did not require any further medical treatment and
she was capable of returning to her date-of-injury job as a nursing assistant with regard to those
accepted conditions.
On August 6, 2008 the Office issued a notice of proposed termination of compensation
and medical benefits based on Dr. Fisher’s July 16, 2008 report. It afforded appellant 30 days to
submit additional evidence or argument to the extent she disagreed with the proposed
termination of benefits. Appellant did not respond. The employing establishment later advised
the Office that she retired effective September 3, 2008.
In a September 9, 2008 decision, the Office terminated appellant’s wage-loss and medical
benefits effective that day.
Appellant requested a hearing, which was held on January 14, 2009. She testified at the
hearing, but did not submit any additional medical evidence.
By decision dated April 3, 2009, an Office hearing representative affirmed the
September 9, 2008 decision terminating benefits.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has either ceased or that it is no longer related to the
employment.7 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.8 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.9
ANALYSIS
The Board finds that the Office properly terminated appellant’s benefits based on
Dr. Fisher’s July 16, 2008 report. Dr. Fisher concluded that appellant’s accepted lumbar sprain
and left sciatic condition had healed and resolved without residual. Consequently, appellant’s
accepted conditions did not require further medical treatment. Dr. Fisher found that she was
capable of returning to her date-of-injury position. Appellant was injured some 11 years prior to
Dr. Fisher’s July 14, 2008 examination. The record was essentially devoid of a comprehensive
medical opinion for the four-year period preceding Dr. Fisher’s examination. The only treatment
appellant reportedly received during the last few years was examination by her family
practitioner and over-the-counter Tylenol. Dr. Fisher explained that appellant’s lumbar strain
soft tissue injury that would have resolved within two months of the original injury. He found no
6

Curtis Hall, 45 ECAB 316 (1994).

7

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

8

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

9

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

3

evidence of motor or sensory deficits over the L4-5 and S1 dermatomes, thus reflecting the
absence of the accepted left sciatic condition. Dr. Fisher provided a thorough report with
findings on examination and a review of the accepted conditions. His opinion constitutes the
weight of medical evidence.
Dr. Van Jura’s April 22, 2008 note imposed a 15-pound lifting restriction. However, she
did not provide a medical narrative setting forth findings on examination or addressing causal
relation. Dr. Van Jura did not diagnose a specific medical condition nor did she relate her
restrictions to appellant’s July 17, 1997 employment injury. She merely noted that appellant was
under her care for low back pain and needed to be on a lifting restriction indefinitely. In
contrast, Dr. Fisher provided a well-rationalized medical opinion regarding appellant’s current
medical condition. The Office properly relied upon his findings as a basis for terminating wageloss compensation and medical benefits.
CONCLUSION
The Office met its burden to terminate compensation and medical benefits effective
September 9, 2008.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2009 decision of the Office of
Workers’ Compensation Program is affirmed.
Issued: January 28, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4