United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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)
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and
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DEPARTMENT OF THE ARMY, ARMY FIELD )
ARTILLARY CENTER, Fort Sill, OK, Employer )
__________________________________________ )
R.C., Appellant

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

Docket No. 15-1373
Issued: December 22, 2015

Case Submitted on the Record

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

JURISDICTION
On June 5, 2015 appellant filed a timely appeal of a May 18, 2015 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for an
attendant allowance.
FACTUAL HISTORY
This case has previously been before the Board. On March 11, 1994 appellant, then a 35year-old engineering equipment operator, filed a traumatic injury claim (Form CA-1) alleging
that he injured his neck on March 10, 1994 when he was involved in a motor vehicle accident.
1

5 U.S.C. § 8101 et seq.

On February 9, 1995 OWCP accepted the claim for cervical and thoracic strains, aggravation of
preexisting spondylitic spondylolisthesis and authorized L4-5 fusion surgery. It subsequently
expanded appellant’s claim to include temporary aggravation of major depressive disorder and
chronic urinary retention. Appellant stopped work on March 10, 1994 and OWCP subsequently
placed him on the periodic rolls for total disability, effective September 18, 1994.
By decision dated July 6, 2005, the Board affirmed a November 10, 2004 OWCP
decision reducing appellant’s compensation based on its determination that the constructed
position of hotel clerk represented his wage-earning capacity.2 The facts and circumstances
surrounding the prior appeals are incorporated by reference.
In a February 28, 2013 memorandum of call appellant inquired as to whether his wife
could serve as his attendant and be compensated for that service. The memorandum revealed
that appellant was experiencing difficulty due to a bladder condition resulting from his recent
back surgery. OWCP noted that it was developing the issue of whether his bladder condition
was causally related to the March 10, 1994 employment injury.
In a letter dated March 15, 2013, OWCP advised appellant that prior to issuing a decision
on whether payment for attendant services could be authorized, additional information was
required from both him and his treating physician.
In a March 15, 2013 memorandum of call, appellant asked what was required for his wife
to be considered and compensated for attendant services.
In a November 26, 2013 OWCP received appellant’s July 2, 2013 response to questions
regarding his request for services of an attendant. Appellant stated that he needed help with his
range of motion, personal grooming, and transportation to medical appointments. In addition, he
related that someone was needed to carry his catheter supplies. The attendant’s services would
be for eight hours per day barring any medical appointments. The attendant would be his wife
and her qualification was that she has taken care of him since March 10, 1994. In concluding,
appellant stated that his wife was his attendant and a fair and reasonable payment would be
$720.00 per week or $2,880.00 per month.
On November 26, 2013 form report, Dr. John W. Ellis, a treating Board-certified family
practitioner, indicated that appellant was examined that day. Examination findings showed that
his back condition had worsened, he struggled with daily chores/activities, and was seen for a
consequential depression injury. Dr. Ellis opined that the services of an attendant would be
required for the rest of appellant’s life and that he is currently living at home. At present,
appellant has the attendant services of his wife. Dr. Ellis checked that appellant needs assistance
with travel, walking bathing himself, dressing himself, getting out of bed, taking exercise, and
getting out of doors.
On March 11, 2014 OWCP advised appellant of an April 1, 2014 appointment it had
scheduled on his behalf with Dr. Sameer Abdullah Mohammed, a second opinion Board-certified
psychiatrist. In an April 1, 2014 report, Dr. Mohammed diagnosed recurrence major depressive
2

Docket No. 05-0370 (issued July 6, 2005).

2

disorder, generalized anxiety, chronic back pain, bilateral L4-S1 spinal nerve root impairment,
spondylolisthesis, left hand carpal tunnel, spondylitis, left shoulder traumatic arthritis, migraine
headaches, diabetes mellitus, neurological bladder dysfunction, and sexual dysfunction. He
opined that appellant was totally disabled due to the psychological disorder, but “should be able
to return to work with appropriate treatment” in two to three years.
On April 24, 2014 OWCP expanded appellant’s accepted conditions to include temporary
aggravation of major depressive disorder and retention of urine.
On April 20, 2015 appellant submitted a March 5, 2015 emergency room report from
Duncan Regional Hospital stating that appellant was seen for back pain. Under mode of
discharge, the report noted “ambulated” and accompanied by family member. In a functional
assessment, it stated that appellant was independent for daily living activities.
In a May 12, 2015 report, an OWCP medical adviser reviewed the medical evidence of
record, including the questionnaire completed by Dr. Ellis requesting attendant services, a
March 5, 2015 emergency room report, and an April 1, 2014 report by Dr. Mohammed. The
medical adviser opined that the medical evidence did not show that appellant qualified for
attendant services under FECA.
In a May 18, 2015 decision, OWCP denied appellant’s request for attendant allowance as
the medical evidence “lacks documentation which supports that the claimant requires constant
care and attendance within the meaning of FECA.”
LEGAL PRECEDENT
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances and supplies prescribed
or recommended by a qualified physician that the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.3 OWCP has broad discretionary authority in determining whether the
particular service, appliance or supply is likely to affect the purposes specified in FECA.4 The
only limitation on OWCP’s discretionary authority is that of reasonableness.5 Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken that are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.6

3

5 U.S.C. § 8103(a).

4

L.D., 59 ECAB 648 (2008); Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad discretionary authority
in the administration of FECA and must exercise that discretion to achieve the objectives of section 8103).
5

Daniel J. Perea, 42 ECAB 214 (1990).

6

Joseph P. Hofmann, 57 ECAB 456 (2006).

3

Section 8111 of FECA provides that the Secretary of Labor may pay an employee who
has been awarded compensation an additional sum of not more than $1,500.00 a month, as the
Secretary considers necessary, when the Secretary finds that the service of an attendant is
necessary constantly because the employee is totally blind or has lost the use of both hands or
both feet or is paralyzed and unable to walk or because of other disability resulting from the
injury making him so helpless as to require constant attendance.7
OWCP will pay for the services of an attendant up to a maximum of $1,500.00 a month
when the need for such services has been medically documented. In the exercise of the
discretion afforded by 5 U.S.C. § 8111(a), the Director has determined that, except where
payments were being made prior to January 4, 1999, direct payments to the claimant to cover
such services will no longer be made. Rather, the cost of providing attendant services will be
paid under section 8103 of FECA and medical bills for these services will be considered under
20 C.F.R. § 10.801. The Director has based this decision on the following factors:
“(a) The additional payments authorized under section 8111(a) should not be
necessary since OWCP will authorize payment for personal care services under 5
U.S.C. § 8103, whether or not such care includes medical services, so long as the
personal care services have been determined to be medically necessary and are
provided by a home health aide, licensed practical nurse or similarly trained
individual.
“(b) A home health aide, licensed practical nurse or similarly trained individual is
better able to provide quality personal care services, including assistance in
feeding, bathing and using the toilet. In the past, provision of supplemental
compensation directly to injured employees may have encouraged family
members to take on these responsibilities even though they may not have been
trained to provide such services. By paying for the services under section 8103,
OWCP can better determine whether the services provided are necessary and
adequate to meet the needs of the injured employee. In addition, a system
requiring the personal care provider to submit a bill to OWCP, where the amount
billed will be subject to OWCP’s fee schedule, will result in greater fiscal
accountability.”8
A claimant bears the burden of proof to establish by competent medical evidence that he
or she requires attendant care within the meaning of FECA. The claimant is not required to need
around-the-clock care, but need demonstrate only a continually recurring need for assistance in
personal matters. The attendant allowance is not intended to pay for the performance of
domestic and housekeeping chores such as cooking, cleaning, doing the laundry, or providing
transportation services. It is intended to pay an attendant for assisting the claimant in personal
needs such as dressing, bathing, or using the toilet. An attendant allowance is not granted simply

7

5 U.S.C. § 8111(a).

8

20 C.F.R. § 10.314; see Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability
Cases, Chapter 2.812.6(d) (May 2012).

4

on the request of a claimant or physician. The need for attendant care must be established by
rationalized medical opinion evidence.9
ANALYSIS
FECA provides that OWCP may pay for the service of an attendant when based on
probative medical evidence. OWCP has broad discretion in the matter and the Board will not
disturb its decision in the absence of proof that OWCP abused its discretion.
Dr. Ellis, an attending Board-certified family practitioner, submitted a form report in
which he concluded that the services of an attendant required for the rest of appellant’s life and
that he is currently living at home. He checked that appellant needs assistance with travel,
walking, bathing himself, dressing himself, getting out of bed, taking exercise, and getting out of
doors. However, Dr. Ellis failed to explain why appellant needed help in personal needs such as
dressing, walking, getting out of bed, exercising, going outdoors, or bathing on a constant
basis.10
The second opinion referral physician, Dr. Mohammed, a Board-certified psychiatrist,
concluded that appellant was disabled due to an employment-related temporary aggravation of
major depressive disorder and retention of urine. He did not address whether appellant required
an attendant.
An OWCP medical adviser reviewed the questionnaire completed by Dr. Ellis, a
March 5, 2015 Duncan Regional Hospital Emergency Room report and an April 1, 2014 report
by Dr. Mohammed, a second opinion Board-certified psychiatrist, and opined that the medical
adviser did not establish that the services of an attendant was necessary. Based on the probative
medical evidence, the Board finds that it was reasonable for OWCP to deny authorization of
attendant’s allowance.
Section 8111(a) pertains to the issue of an attendant allowance. If a claimant is totally
blind or has lost the use of both hands or both feet or is paralyzed and unable to walk or because
of other disability resulting from the injury making him so helpless as to require constant
assistant attendance, OWCP has discretion to pay an allowance. Dr. Ellis did not adequately
explain how appellant’s cervical and thoracic strains, aggravation of preexisting spondylitic
spondylolisthesis, temporary aggravation of major depressive disorder, and chronic urinary
retention left him so helpless as to require constant attendance for his personal needs.11
9

M.C., Docket No. 09-2314 (issued August 20, 2010); L.D., supra note 6; Thomas Lee Cox, 54 ECAB
509 (2003).
10

Nowling D. Ward, 50 ECAB 496 (1999).

11

See E.L., Docket No. 12-791 (issued August 29, 2012) (although the attending physician indicated that the
claimant would have need for attendant services two to four weeks after surgery, he did not discuss the claimant’s
condition or explain how the claimant needed recurring help with personal needs such as dressing or bathing). Cf.
K.H., Docket No. 06-832 (issued November 30, 2006) (reversing the denial of an attendant allowance where the
opinions of an OWCP medical adviser and treating physician were well rationalized and uncontradicted by other
evidence).

5

Moreover, OWCP’s medical adviser concluded that, based on an emergency room report which
stated that appellant was ambulatory at the time of discharge and independent for daily life
services and Dr. Mohammad’s April 1, 2014 second opinion report, the medical evidence of
record does not support that appellant qualifies for an attendant.
It is not enough that a claimant faces difficulty with some activities of daily living.12 The
claimant must demonstrate a sufficient level of helplessness with his personal care. In the case,
of M.C.,13 the Board found that the claimant had submitted competent rationalized medical
evidence to establish her need for attendant care. She would have only limited use of her right
upper extremity following surgery and her left upper extremity was totally paralyzed due to Erbs
Palsy, a condition with which she was born. The Board affirmed the denial of an attendant
allowance on other grounds -- services must be provided by a home health aide, licensed
practical nurse or similarly trained individual -- but the need for attendant services was
established because the claimant’s injury-related surgery had effectively left her without the use
of both hands.
The medical opinion evidence in this case does not establish such helplessness. When
asked to explain his need for an attendant, appellant stated that he needed help with his range of
motion, personal grooming, and transportation to medical appointments as well as requiring
someone to carry his catheter supplies. The evidence of record does not demonstrate that he was
so helpless that he required constant care.
In the absence of a well-rationalized medical opinion, the Board finds that OWCP
properly exercised its discretion in denying appellant’s request for an attendant allowance.
Accordingly, the Board will affirm OWCP’s May 18, 2015 decision.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying appellant’s request
for attendant allowance.

12

M.T., Docket No. 11-1121 (issued November 17, 2011) (a referral physician indicated that, while the claimant
did have difficulty with some activities of daily living, she was capable of performing her basic personal needs of
hygiene, independent eating and personal care).
13

Docket No. 09-2314 (issued August 20, 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 18, 2015 is affirmed.
Issued: December 22, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 08-1533
Issued: February 17, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 6, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 11, 2008 merit decision denying his recurrence of total
disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of total disability between November 2 and December 1, 2007 due to his June 8, 2004
employment injury.
FACTUAL HISTORY
The Office accepted that on June 8, 2004 appellant, then a 41-year-old mail carrier,
sustained a concussion, cervical sprain/strain and degeneration of his C7 disc when the left side
of his head collided with a turn stall bar that suddenly stopped. Appellant stopped work on
June 8, 2004 and returned to light-duty work for the employing establishment on

November 15, 2004. He received appropriate compensation from the Office for periods of
disability. On March 15, 2006 appellant underwent anterior cervical discectomy and fusion
surgery at C5-7 which was authorized by the Office. He returned to limited-duty work for the
employing establishment on November 24, 2006 and regular-duty work on January 20, 2007.
In a January 22, 2007 report, Dr. Teig Port, an attending Board-certified orthopedic
surgeon, stated that appellant had no pain radiating down his arms and had relatively good range
of motion. On March 13, 2007 he stated that appellant reported periodic pain flare-ups after
lifting which kept him off work for short periods, but he indicated that his condition remained
relatively stable.
On November 2, 2007 appellant stopped work and on November 30, 2007 he filed a
claim alleging that he sustained a recurrence of total disability on November 2, 2007 due to his
June 8, 2004 employment injury. He later indicated that his claimed period of disability was
from November 2 to December 1, 2007.1
On November 20, 2007 Dr. Port indicated that appellant reported that he had a flare-up of
the neck pain over the last couple of weeks without a new injury. He indicated that on
examination appellant exhibited a mild loss of rotation range of motion and stated that most of
his pain appeared to be in the central neck where there was some tightness in the lower
paracervical muscles. Appellant reported occasional numbness in his arms, but did not have any
on examination. Dr. Port diagnosed “flare-up of the neck symptoms,” made note of appellant’s
fusion surgery and stated:
“I have told [appellant] he is going to have some flare-up from time to time
having had this sort of major surgery and major metal implant in the neck. I have
not given him Vicodin Extra Strength prescription in many months. I did give
him prescription for 40 today to take just about one a day at home [as needed] for
more severe pain. [Appellant] can take over-the-counter analgesics at work. I
think [he] just has temporary flare-up of symptoms and I have given him approval
to go back to regular[-]duty work at this time. Since he still takes occasional
prescription medication for the work injury to the neck, he should follow up with
[me] in three months.”
In a November 20, 2007 note, Dr. Port stated that appellant was out of work from
November 8 to 23, 2007 “due to neck pain.” In a November 22, 2007 form report, he indicated
that appellant could perform his regular work. On November 27, 2007 Dr. Port noted that
appellant could not work from November 26 to December 2, 2007 because he was “incapacitated
due to neck injury.” On November 29, 2007 he stated that appellant was out of work from
November 2 to 23, 2007 “due to flare-up of cervical spine condition.”
In a November 29, 2007 note, Dr. Port stated that appellant reported he had some flare-up
of neck pain recently after moving some containers at work about five days ago. He indicated
1

It appears that appellant might have returned to work on November 24 or 25, 2007 and stopped work again after
a day or two. He was not scheduled to work on December 2, 2007 and returned to his regular work on
December 3, 2007.

2

that he exhibited some tenderness about the paracervical muscles and that range of motion was
relatively good. Dr. Port diagnosed “cervical strain in the patient with a prior II level cervical
fusion surgery from the June 8, 2004 work injury” and recommended that he be given an out of
work note for about the prior week. He indicated that appellant should be able to return to
light/medium-duty work in a couple of days. In another November 29, 2007 note, Dr. Port
provided a similar account of appellant’s reported activities and symptoms and findings on
examination. He stated that he had given appellant a temporary out of work note and indicated
that he should be able to return to work the next week.
On December 13, 2007 the Office requested that appellant submit additional factual and
medical evidence in support of his claim. Appellant submitted a March 3, 2008 form report in
which Dr. Port listed the date of injury as June 8, 2004 and indicated that he had discectomy and
fusion surgery in March 2006. Dr. Port checked a “yes” box indicating that appellant’s condition
was caused or aggravated by the reported employment incident and stated that he was totally
disabled from November 2 to December 2, 2007. He noted that he had “occasional episodes of
incapacitation due to neck pain.” Appellant also submitted a November 20, 2007 form report in
which Dr. Port indicated that appellant could perform his regular work.
In a March 11, 2008 decision, the Office denied appellant’s claim on the grounds that he
did not submit sufficient medical evidence to establish that he sustained a recurrence of total
disability between November 2 and December 1, 2007 due to his June 8, 2004 employment
injury. It indicated that appellant did not submit a report which contained a rationalized medical
opinion relating his disability to his June 8, 2004 employment injury.2
LEGAL PRECEDENT
An individual who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the disability for which compensation is claimed is causally related to the accepted
injury.3 This burden includes the necessity of furnishing medical evidence from a physician who,
on the basis of a complete and accurate factual and medical history, concludes that the disabling
condition is causally related to the employment injury and supports that conclusion with sound
medical rationale.4 Where no such rationale is present, medical evidence is of diminished
probative value.5
ANALYSIS
The Office accepted that on June 8, 2004 appellant sustained a concussion, cervical
sprain/strain and degeneration of his C7 disc when the left side of his head collided with a turn
2

Appellant submitted additional evidence after the Office’s March 11, 2008 decision, but the Board cannot consider
such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).
3

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988); Dominic M. DeScala, 37 ECAB 369, 372 (1986).

4

Mary S. Brock, 40 ECAB 461, 471-72 (1989); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

3

stall bar that suddenly stopped. On March 15, 2006 appellant underwent anterior cervical
discectomy and fusion surgery at C5-7 which was authorized by the Office. He returned to
regular-duty work for the employing establishment on January 20, 2007. Appellant stopped
work between November 2 and December 1, 2007 and claimed that he sustained a recurrence of
total disability during this period due to his June 8, 2004 employment injury.6 The Board finds
that appellant did not submit sufficient medical evidence to establish that he sustained a
recurrence of total disability between November 2 and December 1, 2007 due to his June 8, 2004
employment injury.
Appellant submitted a March 3, 2008 form report in which Dr. Port, an attending Boardcertified orthopedic surgeon, listed the date of injury as June 8, 2004 and indicated that he had
discectomy and fusion surgery in March 2006. Dr. Port checked a “yes” box indicating that
appellant’s condition was caused or aggravated by the reported employment incident and stated
that he was totally disabled from November 2 to December 2, 2007. He noted that he had
“occasional episodes of incapacitation due to neck pain.” The Board has held, however, that
when a physician’s opinion on causal relationship consists only of checking “yes” to a form
question, that opinion has little probative value and is insufficient to establish causal relationship.7
Appellant’s burden includes the necessity of furnishing an affirmative opinion from a physician
who supports his conclusion with sound medical reasoning. Dr. Port did not describe appellant’s
employment injury in any detail or explain how it could have caused total disability more than nine
months after he returned to regular work. He did not report objective examination findings which
showed a notable worsening of appellant’s employment-related condition and did not explain why
his condition prevented him from performing any work.8 As Dr. Port did no more than check
“yes” to a form question, his opinion on causal relationship is of little probative value and is
insufficient to discharge appellant’s burden of proof.
In a November 20, 2007 report, Dr. Port indicated that appellant reported that he had a
flare-up of the neck pain over the last couple of weeks without a new injury. He indicated that
on examination appellant exhibited a mild loss of rotation range of motion and stated that he had
a temporary flare-up of symptoms. Dr. Port noted that he had given appellant approval to go
back to regular-duty work at this time. In November 20 and 22, 2007 form reports, he indicated
that appellant could perform his regular work. Therefore, these reports do not contain an opinion
that appellant sustained an employment-related recurrence of total disability.9
In notes dated November 20, 27 and 29, 2007, Dr. Port stated that appellant was totally
disabled for periods between November 2 and December 2, 2007. He variously indicated that
6

It appears that appellant might have returned to work on November 24 or 25, 2007 and stopped work again after
a day or two.
7

Lillian M. Jones, 34 ECAB 379, 381 (1982).

8

Dr. Port appeared to base his disability opinion on appellant’s self-reporting of increased pain.

9

The Board notes that these reports contain a disability opinion that conflicts with that contained in Dr. Port’s
March 3, 2008 report. The Board has found that an opinion which is equivocal is of limited probative value regarding
the issue of causal relationship. See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193,
195 (1956).

4

this disability was due to a neck injury, neck pain or “flare-up of cervical spine condition.”
Dr. Port did not provide any opinion that this disability was due to appellant’s June 8, 2004
employment injury. In November 29, 2007 notes, he stated that appellant reported he had some
flare-up of neck pain recently after moving some containers at work about five days ago.
Dr. Port recommended that appellant be given an out of work note for about the prior week and
indicated that he should be able to return to light/medium-duty work in a couple of days. He did
not, however, indicate that appellant had sustained an employment-related recurrence of total
disability.10
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.11 Appellant failed to submit rationalized medical evidence
establishing that his claimed recurrence of disability is causally related to the accepted
employment injury and, therefore, the Office properly denied his claim for compensation.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of total disability between November 2 and December 1, 2007 due to his
June 8, 2004 employment injury.

10

It does not appear that appellant filed a claim for a new injury and the record does not contain a final decision
of the Office regarding such a matter.
11

See Walter D. Morehead, 31 ECAB 188, 194-95 (1986).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
March 11, 2008 merit decision is affirmed.
Issued: February 17, 2009
Washington, DC

David S. Gerson, 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
__________________________________________
E.J., Appellant
and
DEPARTMENT OF THE ARMY, MAINE
ARMY NATIONAL GUARD, CAMP KEYES,
Augusta, ME, Employer
__________________________________________

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

Docket No. 08-1350
Issued: September 8, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 7, 2008 appellant, through counsel, timely appealed the March 27, 2008 merit
decision of the Office of Workers’ Compensation Programs, which terminated his benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective April 13, 2008.
FACTUAL HISTORY
On January 28, 1999 appellant, then a 41-year-old support services supervisor, struck his
right thigh against a glass tabletop and twisted his lower back. The Office accepted his claim for

right-side sciatica.1 Following his injury, appellant returned to work with limitations on
carrying, sitting, standing and bending. Over the next 21 months, he continued to work as a
support services supervisor with some modification to his regular duties. Appellant was an
Army reservist and he eventually lost his membership in the National Guard due to medical
reasons. Because he lost his military membership, the employing establishment terminated his
services effective September 6, 2000. At that time there was no medical evidence indicating that
appellant was totally disabled from performing his duties as a support services supervisor.
However, maintaining military membership in the National Guard was a prerequisite for
appellant’s continued civilian employment. Once appellant was medically discharged from the
National Guard, the employing establishment was required to relieve him of his civilian duties as
well.
The Office paid appellant wage-loss compensation for total disability beginning
September 6, 2000. Effective December 3, 2000, the Office placed him on the periodic
compensation rolls and he continued to receive wage-loss compensation for more than seven
years.
Dr. Michael J. Totta, a Board-certified physiatrist, had treated appellant for his back
condition since January 2000. Appellant saw Dr. Totta for a follow-up examination on
February 12, 2007.2 Dr. Totta diagnosed chronic backache (ICD-9 Code 724.5). He also
submitted a work capacity evaluation (OWCP-5c) indicating that, while appellant was unable to
perform his regular duties, he was capable of performing full-time, sedentary or light-duty work
with restrictions. Dr. Totta also noted that appellant had reached maximum medical
improvement and that his impairment was permanent.
Appellant next saw him on
September 21, 2007. Dr. Totta diagnosed work-related chronic backache and indicated that
appellant could perform modified-duty work.
Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon and Office referral physician,
examined appellant on January 23, 2008. He noted that appellant had preexisting radiculopathy
that was treated with surgery in July 1998.3 Dr. Hanley explained that following the January 28,
1999 employment injury there was an increase in symptomatology, but no evidence of any
significant anatomical changes in appellant’s spine. He further indicated that diagnostic and
imaging studies obtained soon after the January 1999 injury failed to disclose any evidence of
nerve root compression. Dr. Hanley opined that appellant sustained a “self-limited soft tissue
type of injury.” He diagnosed “[h]istory of musculoligamentous straining injury to the lumbar
spine without significant objective residuals.”

1

Appellant had a preexisting lumbar condition at L4-5 that required surgical intervention in July 1998.

2

A February 9, 2007 magnetic resonance imaging (MRI) scan revealed a focal disc protrusion at L3-4 and a
broad-based eccentric disc protrusion at the L4-5 level. The scan also showed evidence of a prior laminectomy at
the left L4-5 level.
3

Dr. Hanley also noted that the statement of accepted facts incorrectly listed the date of surgery as “July 28,
1999,” which gave the mistaken impression that the January 28, 1999 employment injury lead to the need for
surgical intervention.

2

Dr. Hanley further noted that after the January 28, 1999 injury appellant continued to
perform work activities and was only discharged from work because he was not “deployable,”
meaning he could not be sent to an area where the demands of his job would be significantly
different. He believed appellant was fit to do any kind of work activity that did not include very
heavy lifting and repeated bending, stooping and twisting. However, these limitations were the
result of appellant’s preexisting problem, which had required surgery in the past. Dr. Hanley
found no evidence of residuals that would be reasonably attributed to appellant’s January 28,
1999 employment incident. In contrast, he attributed appellant’s current back problems to
deconditioning and a degenerative spine, as evidenced by the February 9, 2007 MRI scan.
Dr. Hanley explained that the latest MRI scan showed disease at the L3-4 level that was not
evident on various studies obtained at the time of the January 28, 1999 injury. He further
explained that this was a developmental problem that should be considered a naturally occurring
disease of life.
On February 26, 2008 the Office advised appellant of its intention to terminate his
benefits. The Office provided appellant a copy of Dr. Hanley’s January 23, 2008 report and
further advised that if appellant disagreed with the proposed termination, he should submit any
evidence or argument within 30 days of the date of the notice.
Appellant obtained legal counsel on or about March 11, 2008. Under cover letter dated
March 12, 2008, appellant’s counsel advised the Office of his representation and provided proof
of authorization to act on appellant’s behalf. Counsel also noted there was a February 26, 2008
proposed termination of benefits pending in the case. He requested that the Office provide him a
copy of appellant’s case file as soon as possible. In the event that the Office could not
accommodate his Privacy Act request prior to the expiration of the 30-day pretermination
response period, counsel apparently presumed the Office would postpone issuing a final decision
until two weeks after he received appellant’s case file.
On March 17, 2008 the Office received a copy of Dr. Totta’s March 10, 2008 treatment
records. He noted subjective complaints of low back pain radiating into the left buttock, down
the left leg and into appellant’s great toe. Appellant also complained of anterior right thigh pain.
Dr. Totta diagnosed work-related backache “by patient.”4 He also recommended obtaining
additional imaging studies to rule out L5 nerve root compression secondary to degeneration and
stenosis. The treatment records further indicated that Dr. Totta spoke with appellant regarding
his deconditioning and use of medication. Appellant also received prescription refills for
Vicodin and Valium.
Beginning March 17, 2008, appellant’s counsel made a series of calls to the Office. He
contacted the claims examiner and several high-ranking Office personnel and insisted that the
Office either expedite his request for a copy of appellant’s record or grant an extension of time to
respond to the February 26, 2008 pretermination notice. Counsel’s repeated requests for at least
a two-week extension were uniformly denied. The Office advised him to timely submit
whatever evidence or argument he had to refute the proposed termination. It further indicated
4

The March 10, 2008 treatment notes were accompanied by a State of Maine “Practitioner’s Report.” This form
report included a box for designating whether a condition was “work related.” Dr. Totta checked the “work-related”
box.

3

that efforts were being made to process the file request as quickly as possible, but at a minimum
the request would be addressed within the program time frame (30 days).
On March 25, 2008 counsel wrote to the Office reiterating his request to suspend the
proposed termination until the Office “deigns to provide ... the file.” Appellant’s counsel also
noted that Dr. Hanley had not mentioned in his report the “actual accepted condition.” Counsel
questioned how a medical report that did not even mention the accepted condition could be relied
upon as a basis for determining that the accepted condition no longer existed. Counsel also
pointed out that Dr. Hanley had not mentioned the results of a previous second opinion
evaluation.5
By decision dated March 27, 2008, the Office terminated appellant’s wage-loss
compensation and medical benefits.6 It provided appellant’s counsel a copy of the case file five
days later on April 1, 2008.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.7 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.8 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.9 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition that require further medical treatment.10
ANALYSIS
On appeal, counsel argues that the Office committed reversible error by issuing a final
decision without first providing him a copy of appellant’s case record. The Office issued its
pretermination notice on February 26, 2008. Appellant secured legal representation exactly two
weeks later. His newly-designated counsel wrote to the Office the following day, March 12,
5

Appellant’s counsel referenced a 2000 directed examination, but no such record exists. Dr. Victor M. Parisien, a
Board-certified orthopedic surgeon and Office referral physician, examined appellant on February 28, 2001. He
diagnosed nonspecific low back pain with elements of chronic pain syndrome. At that time, Dr. Parisien believed
that appellant still suffered from residuals of the January 28, 1999 employment injury. He also noted that
appellant’s pain considerably limited his activities. However, appellant was able to work four to eight hours with
limitations.
6

The termination was effective April 13, 2008.

7

Curtis Hall, 45 ECAB 316 (1994).

8

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

9

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

10

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

4

2008, requesting both a copy of appellant’s case record and at least a two-week extension to
respond to the February 26, 2008 pretermination notice. Pursuant to the Privacy Act, 5 U.S.C.
§ 552a, the Office granted counsel’s record request on April 1, 2008, which was well within the
30-day time frame for responding to such requests.11 However, the Office issued its final
decision terminating benefits five days prior to releasing the requested records.
Where the evidence establishes that compensation should be either reduced or terminated,
the Office will provide the beneficiary with written notice of the proposed action and give him or
her 30 days to submit relevant evidence or argument to support entitlement to continued payment
of compensation.12 If the beneficiary submits evidence or argument prior to the issuance of the
decision, the Office will evaluate it in light of the proposed action and undertake such further
development as it may deem appropriate, if any.13 If the beneficiary does not respond within 30
days of the written notice, the Office will issue a decision consistent with its prior notice.14
Appellant waited two weeks before taking any action in response to the Office’s
February 26, 2008 proposed termination of benefits. After being retained on March 11, 2008,
counsel’s first act was to request a copy of the case record and attempt to postpone the issuance
of a final decision. The Office timely responded to counsel’s Privacy Act request, albeit after
issuing its final decision. Appellant’s counsel provided no relevant authority to support his
argument that issuing the decision before providing a copy of the record constituted reversible
error. The February 26, 2008 pretermination notice afforded appellant 30 days to submit a
written response in the form of evidence and/or argument, which is consistent with the applicable
regulations.15 The regulations further provide that the Office “will not grant any request for an
extension of this 30-day period.”16
During the 30-day time frame provided appellant, the Office received Dr. Totta’s
March 10, 2008 treatment records as well as counsel’s March 25, 2008 challenge to Dr. Hanley’s
report. The additional evidence and counsel’s argument were both addressed in the March 27,
2008 final decision terminating benefits. Having a copy of the case record might have provided
some benefit to appellant’s counsel in preparing a response. However, counsel’s eleventh-hour
enlistment in the adjudication process did not justify suspending or postponing further action on
an otherwise properly issued pretermination notification. The Board finds that the Office did not
commit reversible error by issuing its March 27, 2008 decision prior to providing counsel a copy
of appellant’s case record.
The Board further finds that the Office met its burden of proof in terminating appellant’s
wage-loss compensation and medical benefits. The latest reports from appellant’s treating
11

20 C.F.R. §§ 71.1 and 71.4(a); 20 C.F.R. §§ 10.11 and 10.12 (2008).

12

20 C.F.R. § 10.540(a).

13

20 C.F.R. § 10.541(a).

14

Id.

15

20 C.F.R. § 10.540(a).

16

20 C.F.R. § 10.541(a).

5

physician, Dr. Totta, provided a diagnosis of unspecified backache (ICD-9 Code 724.5). The
March 10, 2008 treatment records included the notation “by patient,” indicating that Dr. Totta’s
diagnosis was based on appellant’s subjective complaints. And while Dr. Totta noted that
appellant’s condition was work related, his form report did not otherwise include an explanation
of how the current diagnosis was causally related to the January 28, 1999 employment injury.
In contrast, Dr. Hanley provided a documented and reasoned opinion attributing
appellant’s current back condition to a degenerative spine as well as deconditioning.17 He
reviewed various diagnostic and imaging studies and conducted his own physical examination on
January 23, 2008. Based on the available information, Dr. Hanley concluded there was no
evidence of “any residual findings that would be reasonably attributed to the January 28, 1999
incident.” He also submitted a work capacity evaluation (Form OWCP-5c), which noted that the
claim had been accepted for “right side sciatica.”18 Although appellant was unable to perform
his usual job, Dr. Hanley indicated that appellant was capable of working an eight-hour day with
restrictions.19 He further indicated that appellant’s permanent restrictions were “unrelated to
work injury.” According to Dr. Hanley, these limitations were the result of appellant’s
“preexisting problem [that] … required surgery in the past.”
The Board finds that Dr. Hanley’s January 23, 2008 report established that appellant no
longer had residuals of his accepted condition of right side sciatica, which arose on
January 28, 1999.
Accordingly, the Office properly terminated appellant’s wage-loss
compensation and medical benefits based on Dr. Hanley’s opinion.
CONCLUSION
The Office met its burden of proof to terminate appellant’s compensation and medical
benefits effective April 13, 2008.

17

It is noteworthy that Dr. Totta similarly mentioned appellant’s deconditioning when he conducted his
March 10, 2008 follow-up examination.
18

Contrary to counsel’s argument, Dr. Hanley was aware of appellant’s “actual accepted condition.” Dr. Hanley
also referenced Dr. Parisien’s February 28, 2001 examination on behalf of the Office.
19

Dr. Hanley imposed a four-hour limitation on twisting and bending. He also noted that appellant could perform
eight hours of pushing, pulling and lifting, with a 50-pound weight restriction.

6

ORDER
IT IS HEREBY ORDERED THAT the March 27, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 8, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Pikeville, KY,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-1662
Issued: June 28, 2011

Case Submitted on the Record

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

On June 8, 2010 appellant filed an application for review of a December 21, 2009
decision of the Office of Workers’ Compensation Programs. The appeal was docketed as
10-1662.
The Board has duly considered the matter. Although the Office concluded in its
December 21, 2009 decision that the newly submitted evidence and argument was insufficient to
warrant a merit review, in the decision the Office in fact exercised its discretionary authority
under 5 U.S.C. § 8128(a) and reopened appellants’ claim by weighing the probative value of the
newly submitted evidence and arguments. It responded to appellant’s argument regarding the
existence of a conflict between Dr. John M. McNamara, Board-certified in occupational
medicine, and Dr. Kevin T. Kavanaugh, a Board-certified otolaryngologist and second opinion
physician. With particularity, the decision compared the opinions of the physicians and found
that Dr. Kavanaugh, by virtue of the fact that he based his opinion on a review of the medical
evidence as well as a complete physical examination, would be given determinative weight;
therefore a conflict of medical opinions was not evident. By exercising its discretionary
authority reviewing the probative value of the evidence and argument, the Office in fact
conducted a merit review of appellant’s claim.

In determining whether a claimant has discharged his burden of proof and is entitled to
compensation benefits, the Office is required by statute and regulations to make findings of fact.1
Office procedure further specifies that a final decision must include findings of fact and provide
clear reasoning which allows the claimant to “understand the precise defect of the claim and the
kind of evidence which would tend to overcome it.”2 These requirements are supported by
Board precedent.3
The Board finds that the December 21, 2009 decision of the Office does not contain
adequate findings of fact and reasoning regarding the newly submitted evidence. The Office
merely indicated that weight would be accorded to Dr. Kavanaugh without providing an
explanation for this conclusion. In the absence of such findings and reasoning, appellant would not
be able to understand the precise defect of his claim and the kind of evidence which would tend
to overcome it.
The case must therefore be remanded to the Office for a proper decision which includes
findings of fact, a clear precise statement regarding the basis for the decision and a copy of
appellant’s appeal rights. After such development it deems necessary the Office should issue an
appropriate decision.

1

5 U.S.C. § 8124(a) provides: “The [Office] shall determine and make a finding of facts and make an award for
or against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of the
Office “shall contain findings of fact and a statement of reasons.”
2

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997).

3

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

2

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
December 21, 2009 decision be set aside and the case remanded for further action in conformance
with this order of the Board to be followed by an appropriate decision.
Issued: June 28, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, MADIGAN ARMY
MEDICAL CENTER, JOINT BASE
LEWIS-McCHORD, WA, Employer
__________________________________________

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Appearances:
Howard L Graham, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0555
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On February 24, 2021 appellant, through counsel, filed a timely appeal from a
November 16, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).

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.

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
ISSUE
The issue is whether appellant has established that the acceptance of her claim should be
expanded to include additional or consequential conditions of major depression and anxiety, or a
cognitive disorder as a result of her accepted November 21, 2013 employment injury.
FACTUAL HISTORY
On December 13, 2013 appellant, then a 62-year-old social services assistant, filed a
traumatic injury claim (Form CA-1) alleging that on November 21, 2013 she sustained a right
shoulder strain with rotator cuff tearing when moving a large cabinet to retrieve documents which
had fallen from the printer while in the performance of duty. She did not initially stop work.
OWCP accepted the claim for right shoulder and upper arm acromioclavicular sprain, right
shoulder and arm rotator cuff sprain, right rotator cuff tear, and subsequently expanded acceptance
of the claim to include consequential conditions of right shoulder stress fracture and right shoulder
rotator cuff tear or rupture.4
OWCP paid appellant wage-loss compensation on the supplemental rolls as of
February 5, 2014. On June 28, 2016 it granted her a schedule award for 12 percent permanent
impairment of the right upper extremity for 37.44 weeks from April 12 through
December 30, 2016. OWCP paid appellant wage-loss compensation on the periodic rolls as of
October 15, 2017.
OWCP authorized a right shoulder arthroscopic rotator cuff repair, and biceps tendon repair
surgery, which occurred on February 7, 2014, a right shoulder rotator cuff repair and removal of
foreign body from humeral head, which occurred on January 23, 2015, and a right total shoulder
arthroplasty, which occurred on April 17, 2017. On October 4, 2018 appellant underwent an
OWCP authorized surgery for removal of right support implant.
In a letter dated November 20, 2018 appellant, through counsel, requested that the
acceptance of appellant claim be expanded to include additional conditions of major depression
and anxiety. In support of her request, appellant submitted a neuropsychological evaluation dated
March 9, 2016 from Philip Tate, Ph.D. and licensed clinical psychologist, which noted her mild
neurocognitive disorder and moderate-to-severe major depression. Dr. Tate related that she had
moderate-to-severe symptoms of depression that worsened during the holidays due to her
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the November 16, 2020 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.
4

Appellant retired from the employing establishment effective April 30, 2015.

2

daughter’s death four years prior. He also related that it was possible that depression and chronic
pain from appellant’s industrial injury adversely affected her auditory working memory somewhat,
but would not account for her deficits in visual and spatial memory. OWCP also received a work
capacity evaluation psychiatric/psychological conditions form (Form OWCP-5a) dated
November 15, 2018 from Vanessa J. Honn, Ph.D. and clinical psychologist, who noted severe
depression and anxiety, with chronic stress related to physical disability as a significant factor
contributing to depression and anxiety. In a work capacity evaluation musculoskeletal conditions
form (Form OWCP-5c) dated November 14, 2018 Dr. Matthew Jenkins, a Board-certified
orthopedic surgeon, related appellant’s permanent restrictions due to her accepted right shoulder
condition.
On January 3, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions, to Dr. Michael Friedman, an osteopath and Board-certified
psychiatrist, for a second opinion examination. It requested that he address whether she suffered
from an emotional condition that was a direct and natural result of her accepted work conditions.
OWCP also requested that Dr. Friedman evaluate whether any diagnosed cognitive disorder was
an aggravation of a preexisting condition, and if so whether the aggravation was temporarily or
permanently aggravated by appellant’s employment-related conditions. In a report dated
February 12, 2019, Dr. Friedman reviewed her history of injury and medical reports of record. He
diagnosed mild neurocognitive disorder due to multiple factors, generalized anxiety disorder,
recurrent-moderate major depressive disorder, and predominant somatic symptoms disorder, pain
persistent. Dr. Friedman opined that appellant did not suffer from an employment-related
emotional condition. He also opined that her mild neurocognitive disorder was unrelated to her
employment injury and had not been aggravated by her accepted employment injury.
By decision dated March 8, 2019, denied appellant’s request to expand the acceptance of
her claim to include major depression and anxiety, or a cognitive disorder as causally related to
her November 21, 2013 work injury.
In a report dated March 20, 2019, John A. Ernst, Ph.D. and clinical neuropsychologist,
detailed treatment provided and attributed appellant’s neurocognitive functioning to medical and
psychosocial factors.
On April 6, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on August 16, 2019.
In a report dated September 27, 2019, Dr. Honn agreed with Dr. Friedman’s diagnoses of
mild neurocognitive disorder due to multiple factors, generalized anxiety diso rder, somatic
symptoms disorder, recurrent major depressive disorder-of-moderate severity, and persistent
predominant pain. She opined that appellant “suffers from the consequences shoulder injury in
2013 and subsequent surgical treatment of this injury as well as limited use of [appellant’s] right
arm as a result of the injury have contributed substantially to the diagnosed conditions mentioned
above.” While appellant’s depression and anxiety were preexisting conditions, Dr. Honn
explained that the severity of these conditions had dramatically increased due to appellant’s pain,
loss of self-esteem after appellant stopped working, and financial worries. She noted that at the
time of appellant’s injury her depression was not disabling. Dr. Honn disagreed with
Dr. Friedman’s opinion that appellant’s diagnosed cognitive disorder had not been aggravated by

3

appellant’s employment injury. In support of her opinion, she explained that appellant’s pain and
distress due to the shoulder injury appeared very distracting for appellant, decreased her capacity
for functional cognitive capacity, and reduced her capacity to be gainfully employed.
By decision dated October 31, 2019, OWCP’s hearing representative found an unresolved
conflict in the medical opinion evidence between Dr. Honn and Dr. Friedman on the issue of
whether appellant’s preexisting depression and anxiety, or cognitive impairment had been
aggravated by the November 21, 2013 work injury. She vacated the March 8, 2019 decision and
remanded the case to OWCP for referral to an impartial medical examiner (IME).
On November 1, 2019 OWCP referred appellant along with the medical record, a SOAF,
and series of questions to Dr. Douglas Robinson, a Board-certified psychiatrist, to resolve the
conflict in the medical opinion evidence between Drs. Honn and Friedman . Dr. Robinson was
asked by OWCP to address whether appellant had sustained any emotional condition that was a
natural and direct result of her accepted employment injury. OWCP also asked him to address
whether her cognitive disorder was an aggravation of a preexisting condition and if so whether this
condition was temporary or permanent.
In a report dated October 13, 2020, Dr. Robinson noted appellant’s complaints of
depression and worsening cognitive loss. Appellant related that she first became aware of her
emotional problems before she retired. According to her she had cognitive problems at the time
of her injury, which she described as lapses of memory such as being unable to recall personal data
or her PIN number. Dr. Robinson diagnosed bereavement, possible history of major depressive
disorder currently resolved, and history of panic disorder, currently in remission. He noted a
history of depression beginning in 1981 when appellant’s brother died. At the date of the
examination, Dr. Robinson found no symptoms of depression, but noted that it was clear that her
bereavement over her daughter’s death, who died in 2011 from breast cancer, was substantial. He
reported appellant’s cognitive functioning appeared normal during his examination and there was
no evidence of any symptoms of depression. Based on his review of the records, Dr. Robinson
noted that her cognitive problems began in 2014 and were aggravated by her anxiety and panic
attacks. He opined that appellant’s panic attacks were unrelated to any pain from her accepted
work injuries because they tend to occur intermittently over the course of an individual’s life.
Thus, Dr. Robinson concluded that her panic attacks were unrelated to her work injury with an
unknown cause, which he opined that was most likely biological.
By decision dated November 16, 2020, OWCP denied appellant’s request to expand the
acceptance of her claim to include consequential conditions of major depression and anxiety, or a
cognitive disorder.

4

LEGAL PRECEDENT
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.5
To establish causal relationship between a condition and the employment event or incident,
the employee must submit rationalized medical opinion evidence based on a complete factual and
medical background, supporting such a causal relationship.6 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 specific employment factors identified by
the claimant.7
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The basic rule is that
a subsequent injury, whether 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. 8
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional or consequential conditions of
major depression and anxiety, or a cognitive disorder as causally related to the accepted
November 2, 2013 employment injury.
OWCP found a conflict in the medical opinion evidence between appellant’s treating
physician, Dr. Honn, who opined that appellant’s preexisting emotional and cognitive disorders
had been aggravated by the November 21, 2013 employment injury, and its second opinion
5

See D.E., Docket No. 20-0936 (issued June 24, 2021); S.L., Docket No. 19-0603 (issued January 28, 2020); T.E.,
Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo,
55 ECAB 200 (2004).
6

See D.E., id.; S.L., id.; T.E., id.; S.A., Docket No. 18-0399 (issued October 16, 2018).

7

See D.E., id.; S.L., id.; M.M., Docket No. 19-0061 (issued November 21, 2019); P.M., Docket No. 18-0287 (issued
October 11, 2018).
8

B.P., Docket No. 19-1376 (issued January 4, 2021); K.S., Docket No. 17-1583 (issued May 10, 2018).

9

M.O., Docket No. 18-0229 (issued September 23, 2019); J.F., Docket No. 19-0456 (issued July 12, 2019); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

5

physician, Dr. Friedman, who opined that appellant’s preexisting major depression and anxiety,
and cognitive disorder were unrelated to her accepted November 21, 2013 employment injury. It
properly referred appellant to Dr. Robinson, serving as the IME, to resolve the conflict, pursuant
to 5 U.S.C. § 8123(a).
In his October 13, 2020 report, Dr. Robinson found that appellant’s major depression and
anxiety, and cognitive disorder were not causally related to the accepted November 21, 2013
employment injury. He noted that her major depressive disorder began at the time of her brother’s
death in 1981. Dr. Robinson reported no current symptoms of depression and normal cognitive
functioning. He reported appellant’s first mention of panic attacks was in 2014. Dr. Robinson
indicated that her cognitive problems began in 2014 and that they had been aggravated by her
anxiety and panic attacks. He opined that appellant’s anxiety and cognitive issues were unrelated
to any pain from her accepted work injuries. Dr. Robinson explained that panic attacks tend to
occur intermittently over the course of an individual’s life and, thus, they were unrelated to her
work injury. He opined that the panic attacks were due to an unknown cause which he opined was
most likely biological.
The Board finds that Dr. Robinson’s impartial medical examination report represents the
special weight of the medical opinion evidence as his opinion is based on a proper factual and
medical history, and his report contained a detailed summary of appellant’s complex medical and
psychiatric history. Dr. Robinson addressed the medical records and provided his examination
findings to reach a reasoned conclusion regarding her employment-related conditions. 10 The
Board, therefore, finds that his opinion is entitled to the special weight accorded to an IME with
regard to the issue of whether acceptance of appellant’s claim should be expanded to include
depression and anxiety, or a cognitive disorder due to her accepted employment injury. 11
Consequently, appellant has not met her burden of proof to expand the accepted conditions of her
claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional or consequential conditions of
major depression and anxiety, or a cognitive disorder as a result of her accepted November 21,
2013 employment injury.

10
F.A., Docket No. 20-1652 (issued May 21, 2021); K.V., Docket No. 18-0947 (issued March 4, 2019); Michael S.
Mina, 57 ECAB 379 (2006); Kathryn Haggerty, 45 ECAB 383 (1994) (the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care
of analysis manifested, and the medical rationale expressed in support of the physician’s opinion are facts, which
determine the weight to be given to each individual report).
11

F.A., id; W.C., Docket No. 19-1740 (issued June 4, 2020); M.M., Docket No. 16-1655 (issued April 4, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
U.S. POSTAL SERVICE, QUEENS VILLAGE
STATION, Jamaica, NY, Employer
__________________________________________

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

Docket No. 08-2553
Issued: June 10, 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 September 22, 2008 appellant, though his attorney, filed a timely appeal from a
June 30, 2008 merit decision of the Office of Workers’ Compensation Programs which affirmed
a denial of his recurrence claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3 the Board has
jurisdiction over the merits of appellant’s recurrence claim.
ISSUE
The issue is whether appellant established that he sustained a recurrence of disability on
January 22, 2007 causally related to his August 19, 2005 accepted employment injury.
FACTUAL HISTORY
On August 24, 2005 appellant, a 34-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) for back, left hand and left shoulder injuries. He attributed his injury to an
August 19, 2005 motor vehicle accident which occurred when an SUV ran a stop sign and struck
the driver’s side of the postal vehicle appellant was driving. Appellant submitted medical

evidence in support of his claim, and by decision dated October 20, 2005, the Office accepted his
claim for cervical sprain/strain and contusion of the left hand.
Appellant underwent medical treatment and received compensation. He returned to full
duty on November 21, 2006.
On January 25, 2007 appellant filed a notice of recurrence of disability (Form CA-2a)
alleging back pain, and numbness in his left leg from his hip to the bottom of his foot. He
asserted that the date of recurrence was January 22, 2007.
By letter dated January 30, 2007, the Office advised appellant that he needed to submit
evidence in support of his claimed recurrence.
In support of his recurrence claim, appellant submitted a New York state workers’
compensation claim form in which he alleged that he had sustained a recurrence of a herniated
lumbar disc. This form was signed by Dr. Reno Discala, Board-certified in family medicine, and
indicated that appellant was totally disabled from work.
A treatment note dated January 23, 2007 diagnosed appellant with sciatica. This note
was signed by a certified registered nurse practitioner. A February 26, 2007 medical treatment
note signed by Dr. Discala, also diagnosed appellant with sciatica.
In a February 12, 2007 report, Dr. Sebastian Lattuga, a Board-certified orthopedic
surgeon, reported that, upon inspection, while there was no sign of tenderness or spasms in the
cervical spine, the thoracolumbar spine exhibited tenderness and spasm in response to percussion
and palpation. A magnetic resonance imaging (MRI) scan of the spine dated September 15,
2005 revealed disc bulges at T3-4, T8-9 and T10-11 and disc herniations at T5-6, T6-7 and T7-8.
Dr. Lattuga also noted that x-rays taken that day revealed a disc collapse at L5-S1. He proffered
a diagnosis of lumbar discopathy and thoracic herniated nucleus pulposus (HNP).
In a February 26, 2007 note, Dr. Discala reported that, based on his examination of
appellant, on January 23, 2007 it was his belief that, given appellant’s history of back and lower
extremity pain, appellant had sustained lumbar disc herniation “probably” at the L5-S1 region.
He opined that appellant’s current prognosis was guarded and that he was totally disabled from
work. Dr. Discala also reported that appellant had no history of prior lumbar disc herniation and
that the prior disc pathology was related to the dorsal spine.
In a note dated March 12, 2007, Dr. Lattuga restated his diagnosis, lumbar discopathy
and thoracic herniated disc and reported that appellant had elected to proceed with conservative
treatments.
By separate note dated March 12, 2007, Dr. Lattuga stated that appellant was under his
care for the treatment of an acute lumbar disorder. He diagnosed acute lumbar sprain and severe
lumbar radiculopathy. Dr. Lattuga stated that appellant was disabled from his regular occupation
and was restricted from lifting, carrying, bending and sitting until further notice. In a March 28,
2007 treatment note, Dr. Discala diagnosed appellant with lumbar disc herniation and spinal
derangement. He opined that appellant was totally disabled from work.

2

By decision dated April 18, 2007, the Office denied appellant’s claim because the
evidence of record failed to establish the relationship between his current symptoms and the
August 19, 2005 accepted condition.
By report dated April 23, 2007, Dr. Lattuga diagnosed appellant with lumbar discopathy
and thoracic HNP. He noted that appellant presented with thoracic lumbar pain and chronic
lumbar back pain, radiating into the right lower extremity. Dr. Lattuga also reported that
examination of appellant’s back revealed tenderness to percussion and palpation in both the
cervical and the thoracic regions and both areas demonstrated restricted range of motion.
Appellant submitted a series of treatment notes concerning appointments on January 1,
March 7, April 18, May 22, June 21, July 28, August 28, September 26, October 26 and
November 17, 2006. He also submitted treatment notes concerning appointments on January 23,
February 26, March 28 and May 1, 2007.
Appellant also submitted a report dated May 21, 2007, signed by Dr. Lattuga, which
restated his diagnosis of lumbar discopathy and thoracic HNP. Dr. Lattuga reported that
examination of appellant’s back revealed tenderness to percussion and palpation in both the
cervical and the thoracic regions and both areas demonstrated restricted range of motion.
Appellant requested authorization for an MRI scan of his lumbar spine and chest. By
letter dated May 29, 2007, the Office denied authorization for an MRI scan of his lumbar spine
and chest. It noted that the only accepted conditions of record were cervical sprain/strain and
contusion of the left hand and advised appellant that if his physician believed that these newly
diagnosed conditions were causally related to the accepted injury of August 19, 2005 he should
submit substantive medical evidence establishing such relationship.
Appellant submitted a medical report dated July 2, 2007, signed by Dr. Lattuga, who
restated his diagnosis of lumbar discopathy and thoracic HNP.
Appellant also submitted a medical report dated August 6, 2007, signed by Dr. Lattuga,
who restated his diagnosis of lumbar discopathy and thoracic HNP.
Appellant disagreed with the Office’s April 18, 2007 decision and requested
reconsideration.
Appellant submitted duplicate copies of Dr. Discala’s February 26, 2007 letter and
Dr. Lattuga’s February 12, 2007 medical report.
By decision dated June 30, 2008, the Office denied modification of its April 18, 2007
decision.
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that

3

caused the illness.”1 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable, and probative evidence that the disability for which she claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.2 Where no such rationale is present,
medical evidence is of diminished probative value.3
ANALYSIS
The Office accepted appellant’s claim for cervical sprain/strain and contusion of the left
hand. Appellant received medical treatment and compensation and returned to full duty on
November 21, 2006. He alleged recurrence of disability on January 22, 2007. The issue is
whether the medical evidence of record establishes that appellant sustained a recurrence of
disability causally related to his August 19, 2005 accepted condition. The Board finds that the
evidence of record is insufficient to satisfy appellant’s burden of proof.
The earliest piece of medical evidence of record pertaining to appellant’s recurrence
claim is a January 23, 2007 report signed by a certified registered nurse practitioner. This report
is of no probative medical value because nurses, acupuncturists, physician’s assistants and
physical therapists are not physicians under the Act and their reports do not constitute competent
medical evidence.4 Because the opinions of laymen have no evidentiary medical value in regard
to a medical issue such as the one involved in this case, this report is of no probative medical
value and is insufficient to meet appellant’s burden.
The relevant medical evidence5 of record consists of reports and notes from Dr. Lattuga
and Dr. Discala. But this evidence is insufficient to establish that appellant sustained a
recurrence of disability on January 22, 2007 as neither physician proffered a rationalized medical
opinion concerning the causal relationship between appellant’s current diagnosed conditions of
the thoracic and lower lumbar spine and appellant’s August 19, 2005 accepted cervical and left
hand conditions. The Board has consistently held that medical reports lacking a rationale on

1

R.S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007); 20 C.F.R. § 10.5(x).

2

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

4

5 U.S.C. § 8101(2); see also Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649
(1989); Jan A. White, 34 ECAB 515 (1983).
5

The record contains medical treatment notes concerning appointments in 2006. As these medical notes predate
the alleged date of recurrence, January 22, 2007, they are of no probative value.

4

causal relationship are of diminished probative value.6 A rationalized medical opinion is based
on a complete factual and medical background and is supported by medical rationale.7
Moreover, a physician’s opinion on the causal relationship between a claimant’s
disability and an employment injury is not dispositive simply because it is rendered by a
physician.8 The opinion of a physician supporting causal relationship must be based on a
complete and accurate medical and factual background, supported with affirmative evidence and
explained by medical rationale.9
Dr. Lattuga diagnosed appellant with a variety of lumbar and lumbar disc conditions. But
his reports and notes are of diminished probative value because they do not proffer any
rationalized opinion explaining how appellant’s August 19, 2005 injury caused these conditions
for which he treated appellant in January 2007. While appellant initially sustained a cervical and
left hand injury in August 2005, Dr. Lattuga has not furnished a medical rationale causally
connecting appellant’s thoracic and lower lumbar conditions, for which appellant claimed the
recurrence of disability, and the accepted employment-related injury. Therefore, his reports and
notes are not sufficiently rationalized, are of diminished probative value and, therefore, are
insufficient to meet appellant’s burden of proof.
Dr. Discala’s reports are also of diminished probative value. He opined that appellant’s
history of back and lower extremity pain was due to lumbar disc herniation. Dr. Discala opined
that the lumbar disc condition is probably at the L5-S1 region. But this is an equivocal statement
because, as a matter of law, such terms as “suspected,” “could,” “may,” “might be” or
“probably” indicate that the report is equivocal, speculative or conjectural and, therefore, the
report is of diminished probative value.10 Moreover, Dr. Discala did not proffer a rationalized
medical opinion concerning the causal connection between appellant’s current lumbar conditions
and the accepted employment-related condition, sprain/strain and contusion of the left hand.
Equivocal in nature and lacking a rationalized medical opinion, his reports are of diminished
probative value and therefore are insufficient to meet appellant’s burden.
This is a medical issue. The Office advised appellant that it was his responsibility to
submit substantive competent medical evidence in support of his recurrence claim. As there is
no rationalized medical evidence of record establishing that appellant’s current thoracic and low
lumbar conditions were causally related to the August 19, 2005 accepted injury, the Board finds
that appellant has not established that he sustained a recurrence of disability on January 22, 2007
causally related to his August 19, 2005 employment injury.
6

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value).
7

Froilan Negron Marrero, 33 ECAB 796 (1982).

8

Jean Culliton, 47 ECAB 728, 735 (1996).

9

Robert Broom, 55 ECAB 339 (2004); Patricia J. Glenn, 53 ECAB (2001).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.3(g) (April 1993).

5

CONCLUSION
The Board finds appellant has not established that he sustained a recurrence of disability
on January 22, 2007 causally related to his August 19, 2005 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 30, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Miami, FL, Employer
__________________________________________

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

Docket No. 12-1772
Issued: September 20, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On August 14, 2012 appellant filed a timely appeal from a February 16, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation for wage-loss
and medical benefits effective November 10, 2010.

1

By order dated October 17, 2012, the Board dismissed the appeal as untimely. On July 22, 2013 the Board
issued an order granting appellant’s petition for reconsideration, finding that appellant had established the appeal
was timely mailed on August 14, 2012. Pursuant to 20 C.F.R. § 501.3(f)(1), the postmark date can be used to
establish timeliness when the date of receipt renders it untimely.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 9, 1997 appellant, then a 34-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that she sustained a stomach injury as a result of heavy lifting on April 30,
1997 while in the performance of duty. The reverse of the claim form indicated that appellant
was six months pregnant and did not stop work. OWCP accepted the claim for abdominal strain.
Appellant subsequently returned to work in a light-duty position.
By letter dated August 24, 2009, the employing establishment advised appellant that it no
longer had work available within appellant’s work restrictions.3 The employing establishment
stated that appellant would be placed in administrative leave status until September 11, 2009.
Appellant submitted a claim for a recurrence of disability as of September 12, 2009.
In a report dated October 15, 2009, Dr. Gary Kelman, a Board-certified orthopedic
surgeon, stated that appellant was seen for evaluation of her chronic low back pain and
abdominal strain “dating to her work injury of [April 30, 1997].” Dr. Kelman indicated that
appellant had been at maximum medical improvement since April 28, 1999 with permanent work
restrictions per a functional capacity evaluation (FCE). He provided results on examination and
indicated that appellant may work with permanent restrictions.
On February 12, 2010 OWCP accepted a recurrence of disability and appellant began
receiving compensation for wage loss, effective November 10, 2009. OWCP referred appellant
for a second opinion examination by Dr. Brad Cohen, a Board-certified orthopedic surgeon.
In a report dated June 14, 2010, Dr. Cohen provided a history and results on examination.
He noted that appellant had undergone an FCE on May 21, 2010. Dr. Cohen stated that based on
the history, physical examination, imaging studies and medical records, the abdominal strain had
most likely resolved. Dr. Cohen noted that it would be quite unlikely for an abdominal strain to
persist for this length of time. He indicated that a magnetic resonance imaging (MRI) scan had
been requested, and if this was negative, he would conclude that there was no evidence the
continuing complaints were related to the abdominal strain from the work injury. Dr. Cohen also
noted that appellant’s back complaints appeared to have started after the employment injury and
were therefore not likely related to the April 30, 1997 employment injury.
In a report dated September 20, 2010, Dr. Cohen indicated that he had reviewed a
September 10, 2010 MRI scan. Dr. Cohen opined that based on the MRI scan and other
available evidence, “there is no evidence for continued residuals from the abdominal strain
sustained as a result of the April 30, 1997 work-related injury. Her back pain, abdominal pain
and left groin pain are therefore also unrelated to the April 30, 1997 work-related injury.”
In a letter dated October 8, 2010, OWCP advised appellant that it proposed to terminate
compensation for wage-loss and medical benefits. It found that Dr. Cohen represented the
weight of the medical evidence, and if appellant disagreed she should submit evidence or
argument within 30 days.
3

The letter refers to a Reassessment Team, and the letter was apparently issued pursuant to the National
Reassessment Program (NRP).

2

By decision dated November 10, 2010, OWCP terminated compensation for wage-loss
and medical benefits. It found the weight of the medical evidence rested with Dr. Cohen.
In a letter dated December 10, 2010, appellant requested a hearing before an OWCP
hearing representative. She submitted a report dated October 28, 2010 from Dr. Kelman, who
again indicated that she was treated for low back pain and abdominal strain dating back to an
April 30, 1997 work injury. In an October 29, 2010 report, Dr. Kelman reiterated that appellant
should continue working with restrictions from the 1999 FCE. A hearing was held on
November 3, 2011.
By decision dated February 16, 2012, the hearing representative affirmed the
November 10, 2010 termination decision. The hearing representative found that Dr. Cohen
represented the weight of the medical evidence.
LEGAL PRECEDENT
Once OWCP has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 OWCP may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.5 The right
to medical benefits is not limited to the period of entitlement to disability. To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition that require further medical treatment.6
A medical report opinion must be rationalized in order to be of probative value.
Rationalized medical opinion evidence is medical evidence that is based on a complete factual
and medical background, of reasonable medical certainty and supported by medical rationale
explaining the opinion. The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.7
ANALYSIS
In the present case, OWCP accepted an abdominal strain on April 30, 1997. Appellant’s
light-duty position was withdrawn in August 2009 and OWCP accepted a recurrence of disability
and began paying compensation for wage loss. OWCP terminated compensation for wage-loss
and medical benefits as of November 10, 2010 on the grounds that appellant’s employmentrelated condition had resolved. It is its burden of proof to establish that appellant no longer has
residuals of an employment-related condition.

4

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

5

Mary A. Lowe, 52 ECAB 223, 224 (2001).

6

Frederick Justiniano, 45 ECAB 491 (1994).

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

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The second opinion physician, Dr. Cohen, was provided a complete factual and medical
background and opined, in his June 14 and September 20, 2010 reports, that appellant’s
employment-related condition had resolved. He noted that the time had elapsed since the work
injury, and reviewed the medical history, examination results and imaging studies. Dr. Cohen
provided a probative medical opinion, based on a complete background, that the accepted
abdominal strain had resolved. He also opined that appellant’s low back complaints were not
related to the April 30, 1997 work injury.
The Board finds that Dr. Cohen provided a rationalized medical opinion on the issue
presented. His opinion that appellant did not have a continuing employment-related condition
was based on a complete factual and medical background, of reasonable medical certainty and
supported by medical rationale.
The evidence from attending physician Dr. Kelman was of diminished probative value.
He stated that appellant was treated for back pain and abdominal strain “dating to” an April 30,
1997 injury. Dr. Kelman does not provide a complete background discussing the employment
incident and the medical history. He does not provide an opinion, with supporting medical
rationale, that appellant continued to have an employment-related condition or disability after
November 10, 2010.
Based on the evidence of record, the Board finds that Dr. Cohen represents the weight of
the medical evidence. It is OWCP’s burden of proof to terminate compensation, and OWCP met
its burden of proof in this case.
On appeal, appellant states that she does not believe that OWCP met its burden to
terminate compensation. She cited the case of Regina T. Pellecchia,8 where the Board found a
conflict in the medical evidence and held that OWCP did not meet its burden of proof to
terminate compensation. But in Pellecchia the attending physician had provide probative
medical reports based on a complete and accurate background. For the reasons noted above, the
attending physician’s reports in the present case are of diminished probative value.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds OWCP met its burden of proof to terminate compensation for wage-loss
and medical benefits effective November 10, 2010.

8

53 ECAB 155 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 16, 2012 is affirmed.
Issued: September 20, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


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

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

Docket No. 13-2026
Issued: January 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 3, 2013 appellant filed a timely appeal of an August 7, 2013 decision of
the Office of Workers’ Compensation Programs denying further merit review.1 Because more
than 180 days elapsed from the most recent merit decision of January 28, 2013 to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3 the Board lacks jurisdiction to review the merits of appellant’s case,.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).

1

On appeal appellant submitted new evidence not previously considered by OWCP. As OWCP did not review
this evidence in reaching a final decision, the Board may not consider it for the first time on appeal. See 20 C.F.R.
501.2(c)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 21, 2012 appellant, then a 38-year-old mail handler, filed a traumatic injury
claim alleging that she injured her lower back while working on an understaffed machine on
August 13, 2012. In reports dated August 15 and September 27, 2012, Dr. Gaurv Bhalia, an
internist, diagnosed severe low back pain after heavy lifting at work.
In a form report dated September 18, 2012, Dr. Manmeet Singh, a Board-certified
internist, diagnosed severe lumbosacral pain after lifting a heavy object at work.
By decision dated October 16, 2012, OWCP denied appellant’s claim. It accepted that
she worked on August 13, 2012, but found that she did not submit sufficient medical opinion to
establish a causal relationship between her low back condition and her employment incident.
Appellant requested reconsideration on November 6, 2012 and submitted additional
medical evidence. In a report dated November 6, 2012, Dr. Melanie Hanna-Johnson, a Boardcertified internist, stated that appellant reported severe low back pain on August 15, 2012. She
opined that appellant sustained injury while at work lifting heavy tubs of mail.
By decision dated January 28, 2013, OWCP denied appellant’s claim for traumatic
injury. It found that the medical evidence did establish a causal relationship between her low
back condition and the accepted employment incident.
Appellant requested reconsideration of the January 28, 2013 decision on July 6, 2013 by
a checkmark on an appeal form. She did not submit any additional evidence.
By decision dated August 7, 2013, OWCP declined to reopen appellant’s claim for
consideration of the merits. It found that she failed to include any information or evidence in
support of her July 6, 2013 request for reconsideration.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.3
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.4 Section
10.608 of OWCP’s regulations provide that when a request for reconsideration is timely, but
does meet at least one of these three requirements, OWCP will deny the application for review
without reopening the case for a review on the merits.5
3

5 U.S.C. §§ 8101-8193, 8128(a).

4

20 C.F.R. § 10.606.

5

Id. at § 10.608.

2

ANALYSIS
By decisions dated October 16, 2012 and January 28, 2013, OWCP denied appellant’s
claim for a low back condition on the grounds that she did not submit sufficient medical
evidence. Appellant requested reconsideration on July 6, 2013 by a checkmark on an appeal
form. The record does not reflect that she submitted any evidence in support of her July 6, 2013
request for reconsideration. As appellant did not comply with the requirements of section
10.606(b)(3), OWCP properly declined to reopen her claim for consideration of the merits.
CONCLUSION
The Board finds that OWCP properly declined to reopen appellant’s claim for
consideration of the merits.
ORDER
IT IS HEREBY ORDERED THAT the August 7, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 15, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

3