United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Avon Lake, OH, Employer
__________________________________________

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

Docket No. 19-1068
Issued: March 30, 2021

Case Submitted on the Record

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

JURISDICTION
On April 15, 2019 appellant, through counsel, filed a timely appeal from a March 20, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective July 30, 2018, as she no longer had
1

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

5 U.S.C. § 8101 et seq.

residuals or disability causally related to her accepted employment-related conditions; and
(2) whether appellant has met her burden of proof to establish continuing disability on or after
July 30, 2018 due to her accepted employment-related conditions.
FACTUAL HISTORY
On October 14, 2016 appellant, then a 51-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 12, 2016 she sustained injuries to her left arm and
back when her foot struck something on the ground causing her to fall while in the performance
of duty. She stopped work on October 14, 2016. OWCP accepted the claim for sprains of the left
shoulder joint, thorax, and lumbar spine. It paid appellant wage-loss compensation on the
supplemental rolls, effective November 29, 2016, and on the periodic rolls, effective April 2, 2017.
Appellant received care for her left shoulder, lumbar, and thorax sprains from Dr. Robert J.
Berkowitz, a Board-certified orthopedic surgeon, and Dr. Daniel J. Zanotti, a Board-certified
orthopedic surgeon and orthopedic sports medicine physician. She also received pain management
treatment from Dr. Bharat Shah, a Board-certified internist, for left shoulder, thoracic, and lumbar
pain.
On July 21, 2017 OWCP referred appellant for a second opinion evaluation with
Dr. William R. Bohl, a Board-certified orthopedic surgeon, to determine the status of her accepted
employment-related conditions.
In an August 9, 2017 report, Dr. Bohl noted appellant’s history of injury and treatment and
summarized her diagnostic test findings. Appellant’s physical examination revealed left shoulder
tenderness, some left upper trapezius area tenderness, no rotator muscles weakness, and lower
lumbar tenderness at the sciatic notches and sacroiliac joints. Dr. Bohl diagnosed left shoulder
acromioclavicular joint and rotator cuff tendons sprain, which he found aggravated appellant’s
preexisting left acromioclavicular joint arthritis, mild left shoulder impingement syndrome with
rotator cuff tendon tendinitis, and lower back sprain. He also diagnosed lower back mild
degenerative disc disease with lower facet joint arthritis and possible right sacroiliac sprain, which
he noted were not accepted conditions. Dr. Bohl opined that appellant’s left shoulder and lumbar
symptoms appeared to be due to an aggravation of preexisting conditions by the employment
injury. As to appellant’s work capacity, he concluded that she would have difficulty performing
the duties of a city carrier as she was unable to carry a heavy bag on her left shoulder and that
walking long distances aggravated her lower back symptoms.
A November 13, 2017 functional capacity evaluation (FCE) determined that appellant was
capable of work with restrictions.
In a December 4, 2017 report, Dr. Shah examined appellant and reviewed the
November 13, 2017 FCE. He reported diagnoses of lumbar spine ligaments sprain. Based on his
review of the FCE, Dr. Shah opined that appellant was capable of working and had permanent
restrictions of up to 7 pounds of frequent lifting, up to 15 pounds of occasional lifting, and
occasional sitting and walking.

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On December 29, 2017 appellant accepted a modified job offer working four hours per day
with restrictions and returned to part-time employment on December 3, 2017.
On April 2, 2018 OWCP again referred appellant for a second opinion evaluation with
Dr. Bohl. An attached statement of accepted facts (SOAF) noted appellant’s job description and
physical requirements, that the claim had been accepted for left shoulder, thorax, and lumber
sprains, that she had returned to four hours of work with restrictions on December 30, 2017, and
that she was currently working four to six hours per day. OWCP noted that Dr. Bohl had
mentioned in his August 9, 2017 report that appellant had other conditions, which were not
accepted. It asked him whether she currently had objective findings of other conditions related to
the work injury.
In his May 9, 2018 report, Dr. Bohl responded that appellant’s left shoulder capsulitis
might be due to the accepted employment injury, causing her to favor that shoulder, and, therefore,
allowing it to stiffen. He further explained that she had objective findings including limitation of
motion in the left shoulder which was consistent with adhesive capsulitis, which may be causally
related to her October 12, 2016 work injury. In response to the question of whether appellant had
residuals of the accepted work-related condition and/or any additional conditions related to the
employment injury, Dr. Bohl explained that appellant continued to have loss of motion in the left
shoulder from adhesive capsulitis, and while with normal treatment the prognosis for this condition
would be good, appellant had not received medical treatment to resolve this condition. He also
provided work restrictions as he determined that appellant was unable to return to her letter carrier
position.
On May 10, 2018 OWCP requested that Dr. Bohl address whether appellant’s adhesive
capsulitis was related to her employment injury. It also noted that he had related that she continued
to have restrictions due to nonwork-related preexisting degenerative disc disease and probable
bilateral sacroiliitis along with adhesive capsulitis. OWCP questioned Dr. Bohl as to whether
appellant needed work restrictions due to her accepted sprain conditions since they had resolved.
In a May 23, 20183 supplemental report, Dr. Bohl opined that he could not say with
certainty whether appellant’s left shoulder adhesive capsulitis was caused or aggravated by the
accepted October 12, 2016 employment injury. He indicated that the adhesive capsulitis could be
due to cervical radiculopathy, acromioclavicular joint arthritis or that it was possible the condition
had originated from the employment injury. Dr. Bohl opined that the accepted sprains had
resolved and no work restrictions were required for those conditions.
In a June 19, 2018 report, Dr. Shah detailed appellant’s subjective complaints and medical
history and performed a physical examination. Examination findings included bilateral facet
tenderness at L4-5 and L5-S1, pain with lumbar flexion and extension and bilateral flexion, upper
and lower extremity strength, sensation, and reflexes were with normal limit bilateral, and muscle
motor distribution was within normal limits. Dr. Shah diagnosed lumbar ligament sprain, lumbar
spondylosis without radiculopathy or myelopathy, and lumbosacral spondylosis without
radiculopathy or myelopathy. He noted that appellant was working four hours per day in straight
mail delivery. Dr. Shah agreed with Dr. Bohl that the accepted contusion and sprains had resolved
3

The date of the report was mistakenly noted as May 23, 2017 instead of May 23, 2018.

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and that her current symptoms were due to degenerative disc disease and shoulder adhesive
capsulitis.
On June 21, 2018 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits, as the evidence of record established that she no longer had employment-related
residuals or disability due to her accepted work-related conditions. It afforded her 30 days to
submit additional evidence or argument, in writing, if she disagreed with the proposed termination
of benefits.
In a July 24, 2018 report, Dr. Shah noted that appellant’s examination findings and
diagnoses were unchanged from his June 19, 2018 report. He noted that appellant was doing well
working four hours per day with restriction and that he would increase her hours to six per day.
By decision dated July 30, 2018, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective that same date. It found that the opinions of Dr. Bohl and Dr. Shah
established that appellant had no further residuals or disability due to her accepted left shoulder,
thoracic, and lumbar sprains.
In an August 7, 2018 report, Dr. Shah reiterated that appellant was capable of working six
hours per day with restrictions.
In a letter dated August 7, 2018, counsel requested a telephonic hearing before an OWCP
hearing representative. The hearing was held on January 8, 2019.
By decision dated March 20, 2019, OWCP’s hearing representative affirmed the July 30,
2018 decision, terminating appellant’s wage-loss compensation and medical benefits.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.4 After it has determined that an employee
has a disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must

4

R.S., Docket No. 19-0552 (issued September 6, 2019); M.M., Docket No .17-1264 (issued December 3, 2018).

5

G.T., Docket No. 18-01302 (issued October 22, 2019); E.B., Docket No. 18-1060 (issued November 1, 2018).

6

G.H., Docket No. 18-0414 (issued November 14, 2018); see R.P., Docket No. 17-1133 (issued January 18, 2018).

7

A.G., Docket No. 19-0220 (issued August 1, 2019); L.W., Docket No. 18-1372 (issued February 27, 2019).

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establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 6, 2017, as she no longer had
disability or residuals due to her accepted October 12, 2016 employment-related conditions.
OWCP accepted that appellant sustained left shoulder joint, thorax, and lumbar spine
sprains on October 12, 2016. It indicated that it was terminating her wage-loss compensation and
medical benefits as the May 9 and 23, 2018 reports from Dr. Bohl, an OWCP referral physician,
constituted the weight of the medical evidence and established that appellant had no further
disability or need for medical treatment due to her left shoulder joint, thorax, and lumbar sprains.
OWCP referred appellant to Dr. Bohl for a second opinion examination to determine the
status of her accepted employment-related conditions. In his initial August 9, 2017 report,
Dr. Bohl diagnosed left shoulder acromioclavicular joint and rotator cuff tendons sprain, which he
found aggravated appellant’s preexisting left acromioclavicular joint arthritis, mild left shoulder
impingement syndrome with rotator cuff tendon tendinitis, and lower back sprain. He opined that
appellant’s left shoulder and lumbar symptoms appeared to be due to an aggravation of preexisting
conditions by the employment injury. After receipt of Dr. Bohl’s August 9, 2017 report, OWCP
made no findings and did not further develop the record to determine whether acceptance of
appellant’s claim should be expanded to include the additional conditions, including aggravation
of appellant’s preexisting left acromioclavicular joint arthritis and left shoulder impingement
syndrome with rotator cuff tendon tendinitis noted by Dr. Bohl.
On April 2, 2018 OWCP again referred appellant to Dr. Bohl for another second opinion
evaluation. It noted that Dr. Bohl had mentioned in his August 9, 2017 report that she had other
conditions which were not accepted. OWCP asked Dr. Bohl whether appellant currently had
objective findings of other conditions related to the work injury. Dr. Bohl opined in his May 9,
2018 report that her left shoulder capsulitis might be due to the accepted employment injury,
causing her to favor that shoulder, and thereby allowing it to stiffen. He further explained that
appellant had objective findings including limitation of motion in the left shoulder which was
consistent with adhesive capsulitis which may be causally related to her October 12, 2016 work
injury. In response to the question of whether appellant had residuals of the accepted work-related
condition and/or any additional condition related to the employment injury, Dr. Bohl explained
that appellant continued to have loss of motion in the left shoulder from adhesive capsulitis, and
she had not received medical treatment to resolve this condition. On May 10, 2018 OWCP wrote
to Dr. Bohl and requested that he address again whether appellant’s adhesive capsulitis was related
to her employment injury. It also noted that Dr. Bohl had related that appellant continued to have
restrictions due to nonwork-related preexisting degenerative disc disease and probable bilateral
sacroiliitis along with adhesive capsulitis. OWCP questioned Dr. Bohl as to whether it was his
opinion that appellant needed no work restrictions due to her accepted sprain conditions since they
8

A.M., Docket No. 18-1243 (issued October 7, 2019); R.P., Docket No. 18-0900 (issued February 5, 2019).

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had resolved. In a May 23, 2018 supplemental report, Dr. Bohl opined that the diagnosed adhesive
capsulitis could be due to appellant’s cervical radiculopathy, acromioclavicular joint arthritis, and
it could also be possible that it originated from her original work injury. He noted that appellant’s
shoulder sprain would have normally resolved a long time ago, and that appellant’s capsulitis at
this point, in view of her other conditions, could not with certainty be attributed to her work injury
as its most likely cause.
The Board finds that OWCP did not properly terminate appellant’s wage-loss
compensation and medical benefits as it did not properly develop, make findings, and issue a final
decision regarding expansion of appellant’s claim. Dr. Bohl related, in his initial August 9, 2017
report, that appellant’s accepted left shoulder sprain aggravated her preexisting left
acromioclavicular joint arthritis, mild left shoulder impingement syndrome with rotator cuff
tendon tendinitis, and lower back sprain. While OWCP again referred appellant to Dr. Bohl, it did
not make any findings regarding expansion of the claim after he opined in his May 9, 2018 report
that appellant’s left shoulder capsulitis might be due to the accepted employment injury, and then
upon further inquiry from OWCP opined in his May 23, 2018 report that appellant’s diagnosed
adhesive capsulitis could be due to appellant’s cervical radiculopathy, or her acromioclavicular
joint arthritis, or it could also have possibly originated from her original work injury of shoulder
sprain.
Once OWCP undertakes development of the medical evidence, it has the responsibility to
do so in a manner that will resolve the relevant issues in the case.9 It failed to fully develop the
issue of claim expansion to determine whether it should expand acceptance of the claim to include
additional conditions diagnosed by Dr. Bohl, an OWCP referral physician, and whether, if
established these conditions resulted in continuing disability from employment or the need for
medical treatment.10
For the above-stated reasons, as OWCP has not resolved the issue of whether the
acceptance of appellant’s claim should be expanded to include additional conditions, it has not met
its burden of proof to terminate appellant’s wage-loss compensation and medical benefits.11
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective December 6, 2017.12

9

See B.W., Docket No. 20-1033 (issued November 30, 2020); R.B. Docket No. 20-0109 (issued June 25, 2020).

10

See B.W., id.; J.T., Docket No. 19-1723 (issued August 24, 2020).

11

See B.W., id.

12

In light of the Board’s disposition of issue 1, the Board finds that issue 2 is moot.

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ORDER
IT IS HEREBY ORDERED THAT the March 20, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 30, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 09-2054
Issued: August 3, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
On August 10, 2009 appellant, through her attorney, filed a timely appeal from a
February 24, 2009 merit decision of the Office of Workers’ Compensation Programs terminating
her compensation and medical benefits and a July 10, 2009 nonmerit decision denying her
request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
effective February 24, 2009 on the grounds that she had no further disability due to her
November 24, 2007 employment injury; (2) whether the Office properly terminated authorization
for medical benefits; and (3) whether the Office properly denied appellant’s request for further
review of the merits of her claim under section 8128.
FACTUAL HISTORY
The Office accepted that on November 24, 2007 appellant, then a 31-year-old modified
mail clerk, sustained a right shoulder contusion and sprain in the performance of duty. Appellant
stopped work on November 25, 2007 and did not return. The Office paid appellant wage-loss

compensation for total disability beginning January 9, 2008. The record establishes that
appellant previously sustained injuries at work, including a cervical intervertebral disc
displacement under file number xxxxxx770 and multiple left knee conditions under file number
xxxxxx586.
In a work restriction evaluation dated May 12, 2008, Dr. Jeffrey L. Tedder, a Boardcertified orthopedic surgeon, diagnosed a contusion and strain of the right arm and found that
appellant could work four hours a day with restrictions. On June 2, 2008 Dr. Tedder found that
she was unable to work pending further notice due to multiple work injuries.1
On June 13, 2008 the Office referred appellant to Dr. Jeffrey M. Oettinger, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a report dated July 1, 2008,
Dr. Oettinger diagnosed chronic right shoulder pain and a small bone spur. He found restricted
range of motion of the shoulder, possibly related to effort. Dr. Oettinger advised that the right
shoulder strain and contusion had resolved and found that appellant could work eight hours a day
in a modified position.
The Office determined that a conflict in medical opinion arose between Dr. Tedder and
Dr. Oettinger regarding appellant’s disability for work. It referred her to Dr. Robert Henderson,
a Board-certified orthopedic surgeon, for an impartial medical examination.
In a psychological evaluation dated September 15, 2008, Dr. Harold R. Linde, a licensed
clinical psychologist, noted that appellant had numerous complaints of pain as a result of her
work injury. He diagnosed an adjustment disorder with mixed anxiety and depression and
recommended that she resume part-time modified duty. On September 26, 2008 Dr. Anthony P.
Moreno, a Board-certified orthopedic surgeon, discussed appellant’s history of multiple work
injuries after an initial injury on April 21, 2006. He recommended an anterior cervical
discectomy.
In a report dated October 7, 2008, Dr. Henderson discussed appellant’s history of a right
shoulder injury on November 24, 2007 and a previous neck injury. He reviewed the medical
evidence of record, including the results of diagnostic studies. On examination, Dr. Henderson
found full range of motion of the shoulder. He diagnosed a resolved shoulder sprain, a cervical
disc protrusion with radiculopathy, status post anterior cruciate ligament reconstruction and
possible lumbar disc disease. Dr. Henderson found that the objective findings and appellant’s
subjective complaints supported a finding of a herniated disc. He opined that her right shoulder
contusion had resolved and that her shoulder and arm complaints arose from her cervical injury.
Dr. Henderson asserted that appellant probably required surgery for her cervical disc condition.
He concluded, “I believe her right shoulder condition has resolved. The pain she is having is
from the cervical disc which is a previous injury. I see no specific medical treatment to do for
the shoulder; however, she does need to have her cervical disc addressed.”

1

In a report dated August 4, 2008, Dr. Tedder diagnosed chronic post-traumatic cervical spine syndrome, upper
trapezius strain, right knee capsular strain and right shoulder impingement syndrome, bursitis and rotator cuff
tendinitis.

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On December 18, 2008 the Office notified appellant that it proposed to terminate her
compensation and authorization for medical benefits for her right shoulder injury.
In a report dated January 15, 2009, Dr. Moreno diagnosed a cervical disc herniation due
to a work injury and recommended surgery. In a disability certificate dated January 15, 2009,
Dr. Tedder opined that appellant was unable to work. He asserted that her cervical injury had
exacerbated her right shoulder condition.2
By decision dated February 24, 2009, the Office terminated appellant’s compensation and
entitlement to medical benefits effective that date. It found that Dr. Henderson’s opinion
constituted the weight of the medical evidence and established that she had no residuals of her
November 24, 2007 shoulder injury.
On March 4, 2009 appellant, through her attorney, requested a telephone hearing. In a
letter dated March 9, 2009, appellant related that her neck condition was aggravating her right
shoulder and hand. She contended that the Office had not considered all of her work injuries.
In progress reports dated March 16 and April 27, 2009, Dr. Tedder treated appellant for
radiating cervical and lumbar pain. He diagnosed cervical and lumbar radiculopathy, a right
upper trapezius strain and a right shoulder bone spur.
By letter dated May 1, 2009, the Office informed appellant that she was currently
receiving compensation for disability under file number xxxxxx770. It advised her that it had
terminated her compensation under file number xxxxxx655 because the evidence showed that
she had no residuals of the contusion and right shoulder strain sustained on November 24, 2007.
At the hearing, held on June 11, 2009, appellant attributed her current condition and
disability to the 2006 injury to her back and neck, under file number xxxxxx770. She asserted
that she sustained a psychological condition due to that injury. Counsel requested that the
hearing representative dismiss the request for a telephone hearing as appellant believed that her
shoulder strain had resolved and that her problems resulted from her 2006 cervical injury.
On June 11, 2009 the Office informed appellant that it had accepted her request for
withdrawal of the hearing. On June 22, 2009 appellant requested reconsideration. She related,
“My shoulder is still giving me problems. It is a result from my neck injury. My right hand also
is giving me problems. I need to know when my right hand and nerve damage of my right hand
is going to be accepted as part of my claim.”
By decision dated July 10, 2009, the Office denied appellant’s request for reconsideration
after finding that the evidence was insufficient to warrant reopening her case for further merit
review under section 8128.

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The record indicates that appellant received treatment at the emergency room on February 2, 2009 for back pain.

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LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.5 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.6
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a right shoulder contusion and sprain due to
a November 24, 2007 work injury. It paid compensation for total disability beginning
January 9, 2008. The Office determined that a conflict in medical opinion was created between
Dr. Tedder, appellant’s attending physician, and Dr. Oettinger, a referral physician, regarding the
nature and extent of residual disability due to the November 24, 2007 injury. It referred her to
Dr. Henderson for an impartial medical examination.
The Board finds that the opinion of Dr. Henderson, a Board-certified orthopedic surgeon
selected to resolve the conflict in opinion, is well rationalized and based on a proper factual and
medical history. Dr. Henderson accurately summarized the relevant medical evidence, provided
detailed findings on examination and reached conclusions about appellant’s condition which
comported with his findings.8 In a report dated October 7, 2008, he reviewed the medical
evidence of record, including the results of diagnostic studies. On examination, Dr. Henderson
3

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

4

Gewin C. Hawkins, 52 ECAB 242 (2001).

5

5 U.S.C. § 8123(a).

6

20 C.F.R. § 10.321.

7

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

8

Manuel Gill, 52 ECAB 282 (2001).

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found full range of motion of the shoulder. He opined that appellant had no further objective
findings of her right shoulder contusion and sprain. Dr. Henderson provided rationale for his
opinion by noting that her shoulder examination showed essentially normal findings and that her
subjective complaints supported a herniated disc. As his report is detailed, well rationalized and
based on a proper factual background, his opinion is entitled to the special weight accorded an
impartial medical examiner.9 The Office thus met its proof to terminate appellant’s
compensation benefits for the accepted conditions of a right shoulder contusion and sprain.
The remaining medical evidence submitted prior to the Office’s termination of
compensation is insufficient to establish that appellant had any further disability due to her
November 24, 2007 shoulder injury. Appellant submitted a September 15, 2008 psychological
evaluation from Dr. Linde, who found that she complained of pain due to work injuries.
Dr. Linde did not attribute any condition to appellant’s November 24, 2007 work injury. The
Office has not accepted an emotional condition as a result of her November 2007 employment
injury. Where appellant claims that a condition not accepted or approved by the Office was due
to her employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence.10
On January 15, 2009 Dr. Moreno diagnosed a cervical disc herniation and recommended
surgery. He did not address whether appellant was disabled due to her November 24, 2007 work
injury. Therefore, Dr. Moreno’s opinion is of diminished probative value. In a disability
certificate dated January 15, 2009, Dr. Tedder found that appellant could not work and that her
cervical condition aggravated her right shoulder condition. He did not, however, provide any
rationale for his opinion. Medical conclusions unsupported by rationale are of diminished
probative value.11 Accordingly, the Office met its burden of proof to terminate compensation
benefits based on the accepted right shoulder injury.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.12 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.13
ANALYSIS -- ISSUE 2
The Office met its burden of proof to terminate authorization for medical benefits
through the opinion of Dr. Henderson, the impartial medical examiner, who found that appellant
9

J.J., 60 ECAB ___ (Docket No. 09-27, issued February 10, 2009); M.S., 58 ECAB 328 (2007).

10

JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

11

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

12

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

13

Id.

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required no further medical treatment for her shoulder injury. Dr. Henderson explained that
based on his physical examination and her subjective complaints, she had no further right
shoulder condition but instead had pain from a cervical herniated disc. As his opinion is detailed
and well rationalized, it is entitled to the special weight accorded an impartial medical examiner
and establishes that appellant has no further residuals of her accepted employment injury.
LEGAL PRECEDENT -- ISSUE 3
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,14 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) submit relevant and
pertinent new evidence not previously considered by the Office.15 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.16 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.17
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.18 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.19 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.20
ANALYSIS -- ISSUE 3
The Office terminated appellant’s compensation and medical benefits based on its finding
that she had no further residuals of her November 24, 2007 employment injury. Appellant
requested a telephone hearing, which was held on June 11, 2009. At the hearing, she asserted
that she believed her current condition and disability resulted from her 2006 injury to her back
and neck. Appellant’s attorney requested that the hearing representative dismiss the hearing
request as appellant believed that her shoulder condition had resolved. On June 11, 2009 the
Office accepted appellant’s request to withdraw her hearing request.
14

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
15

20 C.F.R. § 10.606(b)(2).

16

Id. at § 10.607(a).

17

Id. at § 10.608(b).

18

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

19

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

20

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

6

On June 22, 2009 appellant requested reconsideration. She argued that her shoulder was
still problematic due to her neck injury. Appellant maintained that the Office should accept
nerve damage of the right hand. The relevant issue, however, is whether the medical evidence
establishes that she has any further disability or need for medical treatment due to her accepted
right shoulder contusion and strain. Appellant’s lay opinion is not relevant to the medical issue
in this case, which can only be resolved through the submission of probative medical evidence
from a physician.21
In progress reports dated March 16 and April 27, 2009, Dr. Tedder treated appellant for
radiating pain from her cervical and lumbar spine. He diagnosed lumbar and cervical
radiculopathy, a right upper trapezius strain and a bone spur on the right shoulder. Dr. Tedder
did not address the relevant issue of whether appellant has any further disability or condition due
to her November 2007 work injury. Evidence that does not address the particular issue involved
does not warrant reopening a case for merit review.22
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit new
and relevant evidence not previously considered. As she did not meet any of the necessary
regulatory requirements, she is not entitled to further merit review.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation and
authorization for medical benefits effective February 24, 2009 on the grounds that she had no
further residuals of her November 24, 2007 employment injury. The Board further finds that the
Office properly denied her request for further review of the merits of her claim under section
8128.

21

Gloria J. McPherson, 51 ECAB 441 (2000).

22

P.C., 58 ECAB 405 (2007); Freddie Mosley, 54 ECAB 255 (2002).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 10 and February 24, 2009 are affirmed.
Issued: August 3, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Providence, RI, Employer
__________________________________________

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

Docket No. 10-838
Issued: January 26, 2011

Case Submitted on the Record

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

JURISDICTION
On February 3, 2010 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ September 10 and November 19, 2009 nonmerit decisions, denying his
requests for reconsideration. Because more than one year has elapsed between the last merit
decision dated July 8, 2008 denying his recurrence of disability claim and the last termination
decision dated August 29, 2008 and the filing of this appeal, the Board lacks jurisdiction to
review the merits of the case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUES
The issues are: (1) whether the Office, in its September 10, 2009 decision, properly
denied appellant’s request for further merit review of his claim under 5 U.S.C. § 8128(a)
regarding the denial of his recurrence of disability claim; and (2) whether the Office, in its

1

For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to
the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

November 19, 2009 decision, properly denied his request for further merit review under section
8128(a) concerning the termination of his compensation benefits.
FACTUAL HISTORY
The Office accepted that on August 15, 2007 appellant, then a 50-year-old mechanic,
sustained temporary aggravation of loose bodies in his right knee while in the performance of
duty. He stopped work on the date of injury. Appellant returned to full-time regular-duty work
on August 22, 2007.
On April 9, 2008 appellant filed a claim alleging that he sustained a recurrence of
disability on October 15, 2007 causally related to his August 15, 2007 employment-related
injury. He could no longer work due to severe pain and instability in his right and left knee.
Appellant stopped work on January 24, 2008. He submitted medical records, including reports
from Dr. Glenn Nuttall, an attending Board-certified internist. In a March 28, 2008 report,
Dr. Nuttall found that appellant experienced continuing right knee problems. He further found
that his left knee symptoms may have been caused by his right knee medial meniscus tear.
Dr. Nuttall opined that appellant was totally and permanently disabled for work due to his
bilateral knee conditions. He explained that “the degree of damage and pain” in both of
appellant’s knees “precludes any gainful employment,” either sedentary or physical.
In a June 16, 2008 report, Dr. Stanley Hom, a Board-certified orthopedic surgeon and
Office referral physician, found that appellant had underlying post-traumatic degenerative joint
disease of the right and left knee and a degenerative tear of the medial meniscus of the left knee.
He opined that appellant no longer had any residuals of his August 15, 2007 employment injury.
Dr. Hom further opined that appellant was unable to perform his regular work duties due to his
underlying bilateral knee conditions, but he could work eight hours a day with physical
restrictions.
In a June 27, 2008 report, Dr. Cohen found that the August 15, 2007 employment injury
temporarily aggravated appellant’s preexisting extensive right knee degenerative arthritis. He
further found that his chronic preexisting left knee arthritis was not caused by the August 15,
2007 employment injury.
By decision dated July 8, 2008, the Office denied appellant’s claim for a recurrence of
disability on October 15, 2007. It found that the June 16 and 27, 2008 medical opinions of
Dr. Hom and Dr. George L. Cohen, an Office medical adviser, respectively, constituted the
weight of the medical opinion evidence.
In an August 29, 2008 decision, the Office terminated appellant’s compensation for
wage-loss and medical benefits with regard to his accepted August 15, 2007 employment-related
injury, effective August 31, 2008. It based its decision on Dr. Hom’s June 16, 2008 opinion.
By letter dated July 1, 2009 appellant, through his attorney, requested reconsideration of
the Office’s July 8, 2008 decision denying his recurrence claim. Counsel contended that the
Office improperly terminated appellant’s wage-loss compensation and medical benefits as he
sustained permanent rather than temporary aggravation of loose bodies in his right knee for

2

which his claim should have been accepted. He further contended that appellant sustained a left
knee condition as a consequence of his accepted August 15, 2007 employment injury. Counsel
resubmitted Dr. Nuttall’s March 28, 2008 report and contended that it established that appellant
sustained a consequential left knee injury due to his accepted employment-related right knee
injury. He stated that he would file a separate request for reconsideration of the Office’s
August 29, 2008 termination decision. Counsel requested that the Office consider his separate
requests for reconsideration.
On August 24, 2009 appellant, through counsel, requested reconsideration of the
August 29, 2008 termination decision. Counsel requested that the Office consider Dr. Nuttall’s
accompanying August 12, 2009 report in this reconsideration request, as well as the July 1, 2009
reconsideration request. In the August 12, 2009 report, Dr. Nuttall reiterated his opinion that
appellant had continuing right knee problems and total and permanent disability for work due to
his bilateral knee conditions. He noted the findings of a February 6, 2008 magnetic resonance
imaging (MRI) scan of appellant’s left knee and opined that his symptoms were directly due to
the added stress and change in gait caused by the August 15, 2007 employment-related right
knee injury.
In a September 10, 2009 decision, the Office denied appellant’s request for
reconsideration of the Office’s July 8, 2008 decision, finding that the evidence submitted was
duplicative and repetitious in nature and not relevant to the recurrence of disability issue and,
thus, insufficient to warrant further merit review of his claim.
In a November 19, 2009 decision, the Office denied appellant’s request for
reconsideration of its August 29, 2008 termination decision on the same grounds, that the
evidence submitted was duplicative and repetitious in nature and not relevant.
LEGAL PRECEDENT -- ISSUES 1 & 2
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,2 the Office’s regulation provide that a claimant must: (1) show
that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant
legal argument not previously considered by the Office; or (3) constitute relevant and pertinent
new evidence not previously considered by the Office.3 To be entitled to a merit review of an
Office decision denying or terminating a benefit, a claimant also must file his or her application
for review within one year of the date of that decision.4 When a claimant fails to meet one of the
above standards, the Office will deny the application for reconsideration without reopening the
case for review of the merits.

2

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(1)-(2).

4

Id. at § 10.607(a).

3

ANALYSIS -- ISSUES 1 & 2
In a July 1, 2009 request for reconsideration, appellant disagreed with the Office’s July 8,
2008 decision, which found that he did not sustain a recurrence of disability on October 15, 2007
due to his August 15, 2007 employment-related right knee injury. On September 10, 2009 the
Office found that the evidence submitted by appellant was duplicative and repetitive in nature
and not relevant to the recurrence issue in the case and, therefore, was insufficient to warrant
further merit review. On August 24, 2009 appellant requested reconsideration of the Office’s
August 29, 2008 decision terminating his wage-loss compensation and medical benefits effective
August 31, 2008 on the grounds that he no longer had any residuals or disability causally related
to his August 15, 2007 employment injury. On November 19, 2009 the Office found that the
evidence submitted by appellant was duplicative and repetitive in nature and not relevant to the
termination issue in the case and, therefore, was insufficient to warrant further merit review.
Appellant submitted Dr. Nuttall’s August 12, 2009 report. Although this evidence reiterated
Dr. Nuttall’s March 28, 2008 findings that appellant had continuing right and left knee problems
and total and permanent disability for work due to his bilateral knee conditions, he offered a new
opinion however finding that appellant’s left knee symptoms were directly related to his
accepted employment-related right knee injury. This medical evidence addresses whether
appellant has a continuing condition resulting from his accepted employment injury and is
relevant to the issues of whether the Office properly found that he did not sustain a recurrence of
disability and have any residuals or disability causally related to his employment-related right
knee condition. As such, Dr. Nuttall’s August 12, 2009 report constitutes relevant and pertinent
new evidence and is sufficient to require the Office to reopen appellant’s claims for
consideration of the merits. The Board finds, however, that the evidence submitted in support of
both requests for reconsideration constituted relevant and pertinent new evidence not previously
considered.5 Therefore, the Office improperly refused to reopen appellant’s cases for further
review of the merits.
To obtain merit review, appellant is not required to submit evidence sufficient to establish
his claim. He need only provide evidence that is relevant and pertinent and not previously
considered by the Office.6 Dr. Nuttall’s report meets these requirements. The case will,
therefore, be remanded for consideration of Dr. Nuttall’s August 12, 2009 report, together with
the previously submitted evidence of record, and a decision on the merits of both claims.
CONCLUSION
The Board finds that the Office improperly refused to reopen appellant’s claims for
further review of the merits under 5 U.S.C. § 8128(a) in its September 10 and November 19,
2009 decisions.

5

Id. at § 10.606(b)(2).

6

Billy B. Scoles, 57 ECAB 258 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the November 19 and September 10, 2009
decisions of the Office of Workers’ Compensation Programs are set aside. The case is remanded
for further action consistent with this decision of the Board.
Issued: January 26, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 11-2026
Issued: June 7, 2012

Case Submitted on the Record

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

JURISDICTION
On September 8, 2011 appellant filed a timely appeal from a May 5, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her claim for a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant is entitled to a schedule award for lower extremity
impairment related to an accepted lumbar injury.

1
2

20 C.F.R. § 8101 et seq.

The Board notes that, following the issuance of the May 5, 2011 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that the second opinion examination by Dr. Kala
Danushkodi, Board-certified in physical medicine and rehabilitation, was insufficient to establish
a zero percent impairment rating of her lower extremities.
FACTUAL HISTORY
OWCP accepted that on December 9, 2008 appellant, then a 35-year-old nursing
assistant, sustained lumbar radiculopathy and lumbar herniated disc at L4-5 and L5-S1 when she
slipped and fell on ice at work. It authorized lumbar epidural spinal injections, medial branch
blocks and a left sacroiliac (SI) joint injection.
On June 18, 2010 appellant filed a claim for a schedule award.
In a February 23, 2010 report, Dr. Gary A. Thompson, a Board-certified family medicine
physician, stated that he had been treating appellant since April 1, 2009 for a lower back injury
sustained on December 9, 2008 due to a slip and fall. He indicated that she exacerbated her back
on April 1, 2009 and had been under his care through January 15, 2010. Dr. Thompson opined
that appellant had reached the maximum recovery and was able to return back to full-time work
duties without limitations. He declined to provide an impairment rating.
In a June 25, 2010 letter, OWCP notified appellant of the deficiencies of her schedule
award claim and allotted 30 days for the submission of additional evidence.
By letter dated July 6, 2010, appellant requested a second opinion examination in order to
obtain an impairment rating in support of her claim.
On July 28, 2010 an OWCP district medical adviser determined that appellant was
eligible for consideration of an impairment rating due to her accepted conditions.
In a December 17, 2010 report, Dr. Thompson released appellant to return to work on
December 21, 2010. Appellant also submitted two reports dated December 15, 2009 from
Dr. Jennifer A. Elliott, a Board-certified anesthesiologist, who diagnosed lower back pain and
left SI and reported administration of a left SI joint injection.
OWCP referred appellant to Dr. Danushkodi for a second opinion evaluation. In a report
dated April 5, 2011, Dr. Danushkodi provided a lower extremity evaluation under the standards
of the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2009) (hereinafter, A.M.A., Guides). She noted that the impairment rating
for an axial skeletal condition is based solely on permanent radicular symptoms and signs
affecting the lower extremities. Based on the regional grid, nerve involvement, Dr. Danushkodi
assigned appellant to class 0 as there was no objective sensory or motor deficit. Appellant
indicated that the Functional History adjustment (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS) were not relevant to appellant’s rating. Dr. Danushkodi concluded that
appellant had a zero percent permanent impairment of the lower extremities under Table 16-12
(Peripheral Nerve Impairment -- Lower Extremity Impairments).3

3

A.M.A., Guides (6th ed. 2009), pp. 534-36.

2

On May 1, 2011 an OWCP medical adviser concurred with Dr. Danushkodi’s second
opinion report and concluded that appellant had zero percent impairment ratings of the right and
left lower extremity based on the sixth edition of the A.M.A., Guides. He noted that appellant
had no radicular pain, sensory changes or weakness due to the accepted lumbar spine conditions
and found the date of maximum medical improvement to be April 5, 2011.
By decision dated May 5, 2011, OWCP denied appellant’s schedule award claim on the
grounds that the medical evidence did not establish a ratable impairment of a scheduled member.
It relied upon Dr. Danushkodi’s April 5, 2011 report and OWCP’s medical adviser’s May 1,
2011 report in reaching this determination.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of her claim, including that she sustained an injury in the performance of duty
as alleged and that an employment injury contributed to the permanent impairment for which
schedule award compensation is alleged.4
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.8 It is well established that, in determining the amount of a
schedule award for a member of the body that sustained an employment-related permanent
impairment, preexisting impairments of the body are to be included.9 A schedule award is not
payable under section 8107 of FECA for an impairment of the whole person.10
4

See, e.g., Bobbie F. Cowart, 55 ECAB 476 (2004). In Cowart, the employee claimed entitlement to a schedule
award for permanent impairment of her left ear due to employment-related hearing loss. The Board determined that
appellant did not establish that an employment-related condition contributed to her hearing loss and, therefore, it
denied her claim for entitlement to a schedule award for the left ear.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id.

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3(a)(3) (September 1995). This portion of OWCP procedure provides that the impairment
rating of a given scheduled member should include any preexisting permanent impairment of the same member or
function.
10

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

3

A schedule award is not payable for a member, function or organ of the body not
specified in FECA or in the implementing regulations.11 As neither FECA nor the regulation
provide for the payment of a schedule award for the permanent loss of use of the back or spine,
no claimant is entitled to such an award.12 However, as FECA makes provision for the
extremities, a claimant may be entitled to a schedule award for permanent impairment to an
extremity even though the cause of the impairment originates in the spine, if the medical
evidence establishes impairment as a result of the employment injury.13
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. 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.14
ANALYSIS
The Board finds that the medical evidence fails to establish that appellant sustained any
permanent impairment to a scheduled member of the body. OWCP accepted her claim for
lumbar radiculopathy and lumbar herniated disc at L4-5 and L5-S1. Although appellant may not
receive a schedule award for permanent impairment to her back,15 she may be entitled to a
schedule award for any permanent impairment to her lower extremities, provided the medical
evidence establishes such impairment.16 However, the medical evidence of record does not
establish that she sustained permanent impairment to her legs due to the accepted back
conditions.
The Board finds that OWCP properly relied on a May 1, 2011 report from OWCP’s
medical adviser who concluded that appellant had no permanent impairment of a scheduled
member under the sixth edition of the A.M.A., Guides. OWCP’s medical adviser properly
reviewed the medical record and found no basis for rating impairment to a scheduled member of
the body.17 He reviewed an April 5, 2011 assessment of Dr. Danushkodi, a Board-certified
11

See Tania R. Keka, 55 ECAB 354 (2004).

12

See id. FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

13

See George E. Williams, 44 ECAB 530 (1993). In 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by the schedule
regardless of whether the cause of the impairment originated in a scheduled or nonscheduled member.
14

See Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

15

5 U.S.C. § 8101(19); James E. Mills, 43 ECAB 215 (1991).

16

See George E. Williams, supra note 13.

17

The Board notes that it is appropriate for an OWCP medical adviser to review the clinical findings of the
treating physician to determine the permanent impairment. See Federal (FECA) Procedure Manual, Part 3 -Medical, Medical Examinations, Chapter 3.500.5(c) (September 1995); Richard R. LeMay, 56 ECAB 341 (2006).

4

physical medicine and rehabilitation physician serving as an OWCP referral physician.18 The
medical adviser noted that Dr. Danushkodi found no radicular pain, sensory changes or weakness
due to the accepted lumbar spine conditions and concluded that appellant had a zero percent
impairment rating of the lower extremities. He properly concluded that there was no medical
evidence of impairment to either lower extremity resulting from the accepted conditions and that,
therefore, there was no ratable impairment of a scheduled member under the sixth edition of the
A.M.A., Guides.
Appellant did not submit sufficient medical evidence to establish that she sustained a
permanent impairment to a specified member, organ or function of the body listed in FECA or its
implementing regulations. The medical evidence of record supports that she has no lower
extremity impairment. The Board finds that appellant is not entitled to a schedule award as a
result of her employment-related accepted back conditions.
On appeal appellant contends that the second opinion examination by Dr. Danushkodi
was insufficient to establish a zero percent impairment rating of her lower extremities. The
record reflects that Dr. Danushkodi’s April 5, 2011 second opinion report was based on a review
of appellant’s medical records, medical history and a physical examination. As noted above, she
properly provided an evaluation of appellant’s permanent impairment under the sixth edition of
the A.M.A., Guides. Thus, the Board finds that appellant’s arguments are not substantiated.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established any ratable lower extremity
impairment related to the accepted lumbar injury. Thus, the Board further finds that OWCP
properly denied her claim for a schedule award.

18

In her April 5, 2011 report, Dr. Danushkodi evaluated appellant’s permanent impairment under Table 16-12
(Peripheral Nerve Impairment -- Lower Extremity Impairments) on pages 534 through 536 of the sixth edition of the
A.M.A., Guides. She noted that appellant had no objective sensory or motor deficit which fell under class 0 on this
table and concluded that appellant had a zero percent permanent impairment of the lower extremities under the sixth
edition of the A.M.A., Guides. The Board notes that the sixth edition of the A.M.A., Guides became effective on
May 1, 2009. See supra note 8.

5

ORDER
IT IS HEREBY ORDERED THAT the May 5, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 7, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 20-0968
Issued: August 17, 2021

Case Submitted on the Record

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

JURISDICTION
On March 30, 2020 appellant filed a timely appeal from a March 2, 2020 merit decision
and a March 17, 2020 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to expand the acceptance
of his claim to include a left hand condition as a consequence of his accepted June 6, 1978
employment injury; and (2) whether OWCP properly denied appellant’s request for
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 17, 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.

reconsideration of the merits of his claim for a consequential left hand condition pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as presented
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On June 6, 1978 appellant, then a 37-year-old carrier, filed a claim for traumatic injury
(Form CA-1) alleging that he sustained a left knee injury on that day when his knee struck a bolt
head that protruded from a dash panel in the performance of duty. OWCP accepted the claim for
left knee meniscus derangement and left leg traumatic arthropathy. On January 13, 1979 appellant
underwent OWCP authorized left knee surgery which included a total medial meniscectomy. He
retired from federal employment on November 2, 2002. OWCP subsequently expanded the
acceptance of the claim to include bilateral meniscus derangement, bilateral traumatic arthropathy
of the lower legs, and right knee internal derangement, open wound of scalp without complications,
left, and unspecified angina pectoris.4
With respect to the June 6, 1978 claim, the record reflects that by letters dated August 11
and September 4, 2019, appellant requested that a consequential left hand condition be accepted
as part of his claim. He indicated that on August 10, 2019, his left knee buckled while he was
using his table saw. This caused him to fall forward and lose grip on the wood board he was
cutting, which then caused the wood board to strike his left hand. Appellant stated that he had
pain in his index and middle fingers of his left hand, and four sutures placed in his left index finger.
In an August 11, 2019 emergency room report, Dr. Joseph A. Betcher, a Board-certified
emergency medicine physician, noted the history of the August 10, 2019 incident and that he had
sutured appellant’s left hand laceration. He provided impressions of laceration of left index finger
and fracture of phalanx of left index finger. An August 11, 2019 x-ray of appellant’s left hand
indicated a comminuted fracture through the base of the proximal phalanx of the second digit.
In an October 3, 2019 report, Dr. Ryan P. Ter Louw, a plastic and reconstructive surgery
specialist, noted the history of injury and that appellant sustained laceration to left index and
middle fingers. He also noted that the x-ray showed a phalanx fracture. Dr. Louw diagnosed
3

Docket No. 16-1477 (issued December 16, 2016); Order Dismissing Appeal, Docket No. 14-1647 (issued
September 18, 2014); Order Dismissing Appeal, Docket No. 14-0374 (issued May 28, 2014); Order Remanding Case,
Docket No. 13-2135 (issued April 3, 2014); Docket No. 13-0767 (issued July 8, 2013).
4
Appellant has a prior claim assigned OWCP File No. xxxxxx938, wherein appellant alleged that, on March 18,
1991, he slipped and fell and injured both shoulders while in the performance of duty. OWCP accepted that claim for
the conditions of bilateral shoulder strains, fractured left humerus, lumbar strain and C6-7 herniated disc. Appellant
also has a prior claim under OWCP File No. xxxxxx096concerning a November 21, 2000 traumatic injury claim (Form
CA-1). He alleged that he slipped on snow and ice while in the performance of duty. OWCP accepted that claim for
aggravation of right shoulder osteoarthritis, lumbar sprain and displacement of cervical intervertebral disc without
myelopathy. Appellant has a separate prior claim under OWCP File No. xxxxxx468 alleging carpal tunnel syndrome
and ulnar nerve damage due to factors of his federal employment as of December 22, 2015. His claims have been
administratively combined with xxxxxx096 serving as the master file.

2

de Quervains tenosynovitis, bilateral carpal tunnel syndrome, laceration of extensor muscle, fascia
and tendon of right index finger at forearm level, displaced fracture of proximal phalanx of
unspecified finger, left index and middle finger laceration from table saw injury and central slip
injury to the left index finger. He recommended repeat x-ray and hand therapy.
In a December 12, 2019 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of medical evidence necessary to establish this
consequential injury claim. A questionnaire was also provided for appellant’s completion.
Appellant was afforded 30 days to respond.
In a December 17, 2019 statement, appellant indicated that his knees occasionally buckled
and that he had fallen several times since 1978. He noted that ECAB has held and adopted a
standard under a “direct and natural consequence rule.” Appellant noted that if a member is
weakened by an employable injury and later contributes to a fall or other injury, the test of whether
it would be considered consequential was if the medical complications directly flow or are a natural
consequence of the injury. Photographic evidence was also enclosed of appellant’s left hand.
By decision dated March 2, 2020, OWCP denied appellant’s claim for expansion, finding
that he had not met his burden of proof to establish that he sustained a consequential injury due to
his accepted work-related conditions. It found that the factual and medical evidence of record was
insufficient to explain how the left hand injury was causally related to his accepted conditions.
On March 10, 2020 appellant requested reconsideration. In a statement dated March 5,
2020, he asserted that he was not claiming a recurrence of his knee conditions; rather, he was
claiming a consequential injury to his left hand when his left knee buckled on August 10, 2019,
which caused him to lose control of the plywood he was cutting. Appellant quoted the FECA
Procedural Manual for a definition of a consequential injury. In a March 9, 2020 addendum
statement, he explained that plywood he was holding kicked back and struck his left hand within
a fraction of a second of his left knee buckling. Appellant provided an explanation of a table saw
kick back and his calculation of the speed of the kick back. He stated that he had no time to react
and that he fell forward onto the surface of the table and running saw blade when his left knee
buckled. Appellant noted the resulting injury to his left hand and medical treatment. A DVD of
the table saw kickback was also submitted.
By decision dated March 17, 2020, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to the claimant’s own intentional misconduct.5 Thus, a subsequent

5

See I.S., Docket No. 19-1461 (issued April 30, 2020); see Charles W. Downey, 54 ECAB 421 (2003).

3

injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury.6
The claimant bears the burden of proof to establish a claim for a consequential injury.7 As
part of this burden, the claimant must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment injury.8 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.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a consequential
left hand condition due to his accepted work-related left knee conditions.
As noted, an employee claiming a consequential injury has the burden to provide
rationalized medical evidence showing how the subsequently-acquired medical condition is a
natural consequence of the prior employment injury.10
The record reflects that appellant has newly diagnosed conditions of laceration of left index
finger, fracture of phalanx of left index finger, de Quervains tenosynovitis, bilateral carpal tunnel
syndrome, laceration of extensor muscle, fascia and tendon of right index finger at forearm level,
displaced fracture of proximal phalanx of unspecified finger, left index and middle finger
laceration, which appellant alleged occurred due to a table saw injury following a buckling of his
left knee. However, there is no rationalized medical opinion evidence explaining how his left hand
conditions were a natural consequence of appellant’s accepted 1978 employment injury.
Dr. Betcher provided a history of the injury and treated appellant for a laceration and
fracture of the left index finger. Dr. Ter Louw also noted the history of injury and diagnosed
de Quervains tenosynovitis, bilateral carpal tunnel syndrome, laceration of extensor muscle, fascia
and tendon of right index finger at forearm level, displaced fracture of proximal phalanx of
unspecified finger, left index and middle finger laceration from table saw injury and central slip
injury to the left index finger. However, these reports are of no probative value regarding
appellant’s consequential claim as neither physician provided an opinion regarding the cause of
the left hand conditions. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
6

Id.; see also Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

7

See C.H., Docket No. 20-0228 (issued October 7, 2020); P.P., Docket No. 19-1359 (issued April 30, 2020).

8

K.W., Docket No. 18-0991 (issued December 11, 2018); P.M., Docket No. 18-0287 (issued October 11, 2018).

9

P.M., id.

10

C.H., supra note 7.

4

relationship.11 In a case such as this, a well rationalized medical opinion which explains how the
left hand conditions were causally related to the accepted employment conditions is required.12
OWCP also received an August 11, 2019 x-ray report noting the fracture of the second left
digit. The Board has held, however, that diagnostic studies, standing alone, lack probative value
as they do not provide an opinion on causal relationship between an employment injury and a
diagnosed condition.13
Photographic evidence was also enclosed of appellant’s left hand. As this is not medical
evidence provided by a physician, it is of no probative value.14
As the medical evidence of record does not include a rationalized opinion explaining how
appellant’s accepted June 6, 1978 employment conditions caused the left hand conditions on
August 10, 2019, the Board finds that he has not met his burden of proof.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.15
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument which: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.16

11

See L.D., Docket No. 20-0894 (issued January 26, 2021); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
12

See J.M., Docket No. 19-1926 (issued March 19, 2021); M.B., Docket No. 19-0882 (issued November 6, 2019).

13

M.E., Docket No. 18-0940 (issued June 11, 2019).

14

Supra note 11.

15

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).
16
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).

5

A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.17 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.18 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s request for reconsideration neither alleged nor demonstrated that OWCP
erroneously applied or interpreted a specific point of law. Additionally, the Board finds that it did
not advance a relevant legal argument not previously considered by OWCP. Rather, appellant
reiterated his argument that his knee buckled while using his table saw and thus his hand injury
was a consequential injury of his accepted conditions. His argument was substantially similar to
that which was previously considered and discussed in OWCP’s March 2, 2020 decision.
Consequently, appellant is not entitled to further review of the merits of his claim based on either
the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
In support of his reconsideration request, appellant submitted a DVD purporting to show a
table saw kickback. This evidence is irrelevant or immaterial on the issue of whether appellant’s
left hand conditions on August 10, 2019 were causally related to his accepted employment injury.
As noted above, the claimant must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. The Board has held
that the submission of evidence or argument which does not address the particular issue involved
does not constitute a basis for reopening a case.20 As appellant failed to provide relevant and
pertinent new evidence, he is not entitled to a merit review based on the third requirement under
20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

17

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
18

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

19

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).
20
A.J., Docket No. 20-0926 (issued January 26, 2021); Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew
Diekemper, 31 ECAB 224 (1979).

6

CONCLUSION
The Board finds that appellant has not met his burden of proof to expand the acceptance of
his claim to include a left hand condition as a consequence of his accepted employment injuries.
The Board further finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 2 and 17, 2020 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: August 17, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 11-1944
Issued: April 16, 2012

Case Submitted on the Record

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

JURISDICTION
On August 18, 2011 appellant filed a timely appeal from an April 19, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) and a June 20, 2011 nonmerit
decision. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that his right
knee condition was causally related to factors of his employment; and (2) whether OWCP
properly denied his May 31, 2011 request for reconsideration under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 22, 2011 appellant, then a 46-year-old distribution clerk, filed an
occupational disease claim alleging that he suffered a right knee condition as a result of his
1

5 U.S.C. § 8101 et seq.

employment because it involved the same knee for which he previously had surgery for a workrelated accident. He first became aware of his condition on February 12, 2011 and stopped work
on that day.
The employing establishment controverted appellant’s claim on the grounds that he failed
to establish that his knee condition was causally related to factors of his employment.
In a March 1, 2011 magnetic resonance imaging (MRI) scan report, Dr. Robert Pham, a
Board-certified diagnostic radiologist, noted appellant’s history of knee pain and swelling for
two weeks and his prior arthroscopic surgery in 2007. The MRI scan revealed abnormal
appearance of the posterior horn and body of the lateral meniscus, which may be in part due to
prior partial meniscectomy. Appellant’s medial meniscus, anterior cruciate ligament, posterior
cruciate ligament and lateral collateral ligament complexes appeared intact with no tear or
advanced degeneration. Dr. Pham observed significant lateral compartment osteoarthrosis with
high-grade cartilage loss along the flexion weight-bearing surface of lateral femoral condyle as
well as the lateral tibial plateau, small effusion and a trace of Baker’s cyst. He also noted
degenerative, reactive marrow edema throughout the lateral femoral condyle and lateral tibial
plateau. Dr. Pham diagnosed significant lateral compartment osteoarthrosis with cartilage loss
and subchondral cysts, degenerative/reactive marrow edema, bipartite patella, thickened fibrotic
methylcellulose compatible with old injury and trace of Baker’s cyst.
In a March 3, 2011 note, Dr. David A. Williams, a Board-certified family practitioner,
stated that appellant was treated in his medical clinic and was unable to work from February 14
to March 28, 2011.
In a March 7, 2011 health care certification, Dr. Williams indicated that appellant would
be incapacitated for three to six months. He stated that appellant suffered a torn cartilage of the
right knee and damaged cartilage of the left knee since February 14, 2011.
On March 18, 2011 OWCP advised appellant that the evidence submitted was
insufficient to establish his claim and requested additional factual and medical evidence.
In a March 29, 2011 excuse slip, Dr. Williams stated that appellant was unable to work
from February 14 to April 11, 2011.
By decision dated April 19, 2011, OWCP denied appellant’s occupational disease claim
finding insufficient medical evidence to establish that his right knee condition was causally
related to factors of his employment.
On May 31, 2011 appellant filed a request for reconsideration. He explained that he
experienced problems with his knees prior to February 12, 2011 and that his knee problems were
ongoing since his 2007 right knee arthroscopy. Appellant stated that every time he bent his knee
he heard a popping sound and that his knee was constantly giving out since his 2007 surgery. On
February 12, 2011 he was walking across the workroom floor when he suddenly fell down.
Appellant reported that he received medical treatment from Dr. Williams, but he was unable to
get a statement because Dr. Williams was unauthorized to do so.

2

In a decision dated June 20, 2011, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant further merit review under 5
U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative and substantial evidence2
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3 In an occupational disease claim, appellant’s burden requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
specified employment factors or incident.6 The opinion of the physician must be based on a
complete factual and medical background of the employee, 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
employee.7
The mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of an employment relation. Such a relationship must be
shown by rationalized medical evidence of a causal relation based upon a specific and accurate

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
4

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB
623 (2000).
5

I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658 (issued October 22, 2009); D.I.,
59 ECAB 158 (2007).
6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

7

D.S., Docket No. 09-860 (issued November 2, 2009); Solomon Polen, 51 ECAB 341 (2000); B.B., 59 ECAB
234 (2007).

3

history of employment conditions which are alleged to have caused or exacerbated a disabling
condition.8
ANALYSIS -- ISSUE 1
Appellant alleges that he suffered a right knee condition as a result of his employment as
a distribution clerk. OWCP accepted that he worked as a distribution clerk and that he has a
diagnosed right knee condition. It denied appellant’s occupational disease claim finding
insufficient medical evidence to establish causal relationship.
The Board finds that appellant did not submit sufficient medical evidence to demonstrate
that he sustained a right knee condition as a result of his employment duties.
While appellant stated that his employment duties and his previously accepted right knee
injury caused his current right knee condition, the Board notes that he has not described in detail
the actual duties to which he ascribes his knee condition. He has mentioned, without specificity,
a fall at work on February 12, 2011, but it is unclear as to whether this is a singular event or he
claims that daily activities as well as this fall, contributed to his current condition.
Appellant submitted medical reports from Dr. Williams, who stated that appellant
suffered a torn cartilage of the right knee and damaged cartilage of the left knee since
February 14, 2011. Dr. Williams excused appellant from work until April 11, 2011. He did not,
however, provide any opinion regarding the cause of appellant’s knee condition or explanation of
how his condition was causally related to his federal employment. The Board has found that
medical evidence which is not based upon an actual factual history and does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.9 Thus, Dr. Williams’ report is insufficient to establish appellant’s claim.
Similarly, Dr. Pham also failed to provide any opinion on the cause of appellant’s
condition or explain how his knee condition resulted from his federal employment. Since
appellant did not submit probative medical opinion discussing how his current right knee
condition was caused by factors of his employment, OWCP properly denied his claim.
On appeal, appellant explained that his doctor mistakenly sent in the required information
to his employing establishment, instead of OWCP. He stated that, if this evidence was
considered, it would clearly substantiate his work-related injury. The Board’s jurisdiction,
however, is limited to evidence that was before OWCP at the time it issued its final decision.10
The Board may not consider this evidence for the first time on appeal.11 As the medical evidence
of record does not contain probative medical evidence establishing that appellant’s right knee

8

Patricia J. Bolleter, 40 ECAB 373 (1988).

9

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
10

See 20 C.F.R. § 501.2(c).

11

Sandra D. Puitt, 57 ECAB 126 (2005).

4

condition was causally related to his employment, he did not meet his burden of proof to
establish his 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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.12 OWCP’s regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his right through a request to the district OWCP.13
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.14
A request for reconsideration must also be submitted within one year of the date of the
OWCP decision for which review is sought.15 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.16 If the request is timely but fails
to meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.17
ANALYSIS -- ISSUE 2
On May 31, 2011 appellant submitted a request for reconsideration along with a
handwritten statement. OWCP denied his reconsideration request finding that his statement did
not constitute new, relevant or pertinent evidence or argument to warrant further merit review of

12

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB
372 (2008).
13

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
14

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
15

Id. at § 10.607(a).

16

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

17

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

5

his case. The Board finds that it properly denied appellant’s request for reconsideration as he did
not meet any of the requirements sufficient to warrant merit review.
In his May 31, 2011 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not advance a relevant legal
argument not previously considered by OWCP. To support his request for reconsideration,
appellant submitted a handwritten statement regarding his knee problems. The underlying issue
on reconsideration was whether he submitted sufficient medical evidence to establish that his
knee condition resulted from his employment. The Board notes that the submission of evidence
that does not address the particular issue involved does not constitute a basis for reopening a
case.18 As the underlying issue was medical in nature, appellant’s statement did not constitute
relevant evidence and was immaterial to the case.
Because appellant’s request for reconsideration failed to show that OWCP erroneously
applied or interpreted a specific point of law, failed to advance a relevant legal argument not
previously considered by OWCP and failed to provide relevant and pertinent new evidence not
previously considered by OWCP, the Board finds that OWCP properly denied further merit
review of his case. The Board will affirm the June 20, 2011 decision.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not establish that his right knee condition was causally
related to factors of his employment. The Board also finds that OWCP properly denied
appellant’s request for reconsideration.

18

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

ORDER
IT IS HEREBY ORDERED THAT the June 20 and April 19, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 16, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7