United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Goleta, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-125
Issued: August 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 19, 2010 appellant filed a timely appeal from the September 24, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) suspending her
compensation for refusing to submit to a medical examination. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation effective
March 30, 2010 for refusing to submit to a necessary medical examination.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
In December 2007, OWCP accepted that appellant, then a 55-year-old transportation
security screener, sustained sprains of her back, thoracic region and ribs due to her repetitive
work duties. Appellant received compensation for periods of disability.
In October 2009, OWCP referred appellant to Dr. Harlan Bleecker, a Board-certified
orthopedic surgeon, for a medical evaluation regarding the extent of her work-related disability.
On November 27, 2009 Dr. Bleecker recommended that appellant undergo a magnetic resonance
imaging (MRI) scan test of her thoracic spine and electromyogram (EMG) and nerve conduction
velocity (NCV) studies of her upper extremities.
On December 7, 2009 appellant was referred for MRI scan testing at Pueblo Radiology
Medical Group, Inc. Dr. Bleecker indicated that the findings showed essentially normal results.
On December 21, 2009 appellant was referred for EMG and NCV studies at Grossman Imaging.
The test results were unsatisfactory due to her intolerance of needles.
OWCP asked for a supplemental report from Dr. Bleecker, who advised that a
computerized tomography (CT) scan of appellant’s thoracic spine was needed to evaluate her
condition. Appellant was referred for diagnostic testing on February 19, 2010 at the Cancer
Center of Santa Barbara. She did not attend the scheduled examination. Appellant was
rescheduled to appear for diagnostic testing on March 12, 2010 but also failed to attend the
rescheduled appointment.
By letter dated March 15, 2010, appellant was advised that OWCP proposed to suspend
her compensation because she failed to report for an evaluation as directed. OWCP found she
did not report for diagnostic testing on February 14, 2010 as directed. Appellant was given 14
days to cooperate with the examination or provide good cause for her refusal. She was informed
that if she did not show good cause for not attending or fully cooperating with an examination
her entitlement to compensation would be suspended under 5 U.S.C. § 8123(d) until after she
attended and fully cooperated with the examination. Appellant did not respond.
By decision dated March 30, 2010, OWCP suspended appellant’s benefits effective that
date for refusing to submit to a necessary medical examination.2
Subsequent to the denial, OWCP received factual statements from appellant dated
February 13 and April 9, 2010. Appellant asserted that she was justified in not attending the
scheduled examination due to her concern about cancer-causing radiation from diagnostic
testing. She indicated that her attending physician assured her that no further diagnostic tests
were required to evaluate her condition. Appellant claimed that she had already been exposed to
the yearly ceiling level for radiation exposure in that she had been exposed to radiation from
prior diagnostic testing and from a coal-powered energy plant and airport near her home.

2

Appellant retired from the employing establishment in March 2008.

2

In an April 5, 2010 report, Dr. Mark H. Musicant, an attending Board-certified
occupational medicine physician, stated that appellant had undergone a number of diagnostic
tests including MRI scans, a CT scan, x-rays and an EMG. He stated:
“It has come to my attention that a bone scan has been recommended to further
evaluate the persistent thoracic pain. [Appellant] is concerned about radiation and
about any benefit that could come from doing this procedure. She prefers not to
have any further procedures. I have asked [appellant] to talk to the physicians to
find out if there is any other way of further evaluating the back. If it is essential
to do this bone scan, a discussion with [her] about benefits and risks needs to be
done.”
Appellant requested a hearing before OWCP’s hearing representative. At the hearing
held on July 7, 2010, she reiterated that she had already undergone numerous diagnostic tests and
asserted that her chest tissue was very sensitive to radiation. Appellant stated that she was at
special risk because she was not a young woman and had already been exposed to the yearly
ceiling level for radiation. She advised that she did not refuse to take a bone scan but that she
had asked for an 18-month postponement in order to heal in between all the diagnostic testing
she had undergone. Appellant stated that she also wanted time to gather information about the
risks of radiation.
Appellant submitted medical records and treatment notes from the Spine and Orthopedic
Center in Santa Barbara dated in June and July 2010. In an August 13, 2010 letter, she asserted
that she did not refuse to undergo scheduled diagnostic testing.
In a September 24, 2010 decision, OWCP’s hearing representative affirmed the
March 30, 2010 decision.
LEGAL PRECEDENT
Section 8123(a) of FECA3 authorizes OWCP to require an employee who claims
compensation for an employment injury to undergo such physical examinations as it deems
necessary. The determination of the need for an examination, the type of examination, the
choice of local and the choice of medical examiners are matters within the province and
discretion of OWCP. The only limitation on this authority is that of reasonableness.4 Section
8123(d) of FECA provides that, “[i]f an employee refuses to submit to or obstructs an
examination, his right to compensation is suspended until refusal or obstruction stops.”5 If an
employee fails to appear for an examination, OWCP must ask the employee to provide in writing
an explanation for the failure within 14 days.6
3

5 U.S.C. § 8123(a).

4

See Dourine Jenkins, 32 ECAB 1502, 1505 (1981).

5

5 U.S.C. § 8123(d). See 20 C.F.R. § 10.323.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).

3

ANALYSIS
OWCP accepted that appellant sustained sprains of her back, thoracic region and ribs due
to her repetitive work duties. It scheduled her for an examination on November 24, 2009 with
Dr. Bleecker, a Board-certified orthopedic surgeon serving as OWCP referral physician. The
referral was designed to evaluate the extent of appellant’s work-related disability. Appellant
underwent MRI scan and EMG/NCV testing per Dr. Bleecker’s recommendation.
On
February 19, 2010 OWCP referred her to Santa Barbara Cancer Center for CT scan testing as
Dr. Bleecker indicated that such testing was necessary to further evaluate her condition. Appellant
failed to report for the examination. The examination was rescheduled for March 12, 2010 but she
also failed to keep that appointment.
By letter dated March 15, 2010, appellant was asked to provide good cause for her failure
to attend the appointment for diagnostic testing. She responded noting that she was fearful of
developing cancer from diagnostic testing radiation. Before OWCP and on appeal to the Board,
appellant asserted that she was at risk for cancer from radiation, but she did not provide medical
documentation supporting that she was unable to undergo the requested diagnostic testing because
of such risk. The April 5, 2010 medical report received from Dr. Musicant, an attending Boardcertified occupational medicine physician, did not state that appellant could not undergo a CT
scan for medical reasons but only advised that she preferred not to have any such procedures.
Given the medical recommendation for additional diagnostic testing, OWCP acted
reasonably in requiring such testing. Appellant did not present reasonable justification for her
failure to keep or fully cooperate with the scheduled medical appointment and OWCP acted
properly in suspending her compensation effective March 30, 2010.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation effective
March 30, 2010 for refusing to submit to a necessary medical examination.

4

ORDER
IT IS HEREBY ORDERED THAT the September 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 9, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 14-2075
Issued: March 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 30, 2014 appellant filed a timely appeal from a September 16, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an injury in the performance of duty.
FACTUAL HISTORY
On March 26, 2014 appellant, then a 40-year-old distribution clerk, filed a traumatic
injury claim alleging that on January 24, 2014 she injured her back. She alleged that while she

1

5 U.S.C. § 8101 et seq.

was “pushing a full APC of metered flats” she began to feel a burning pain sensation in her lower
back on the right side. Appellant was released to regular duty on March 27, 2014.
In a February 3, 2014 duty status report (Form CA-17), Dr. James Burtka, a family
medicine practitioner, advised that appellant was experiencing pain in the right sacroiliac (SI)
joint and diagnosed lumbago. He released appellant to light duty and advised that she was only
able to lift 5 to 10 pounds for an hour a day. Dr. Burtka also limited pushing and pulling to 5 to
10 pounds for a maximum of four hours per day. In a February 3, 2014 authorization for
treatment (Form CA-16), he gave a history of a “back injury on January 24, 2014.” Dr. Burtka
reiterated appellant’s work restrictions and diagnosis. He also checked the box marked “yes,”
indicating that appellant’s condition was caused or aggravated by employment activities.
Appellant also submitted a March 22, 2014 duty status report in which Dr. Burtka advised that
appellant was able to return to full eight-hour workdays on March 27, 2014.
The record indicates that appellant was involved in another work-related incident on
April 16, 2014.2 In an April 16, 2014 report, Dr. Burtka advised that appellant complained of
back pain associated with squatting, bending, and lifting. He also advised that appellant
sustained an injury as soon as she started pushing full equipment again. Dr. Burtka noted that
she had burning in the same spot as before in the right SI joint area. In an April 16, 2014 Form
CA-16, he advised that appellant related to him that while she was pushing equipment she felt a
sharp pain in the same spot as before. Dr. Burtka checked the box marked “yes” when asked if
employment activities caused or aggravated the injury.
In an April 21, 2014 report, Dr. Burtka advised that appellant went back to work, but was
unable to perform her regular duties because of her work restrictions. He assessed sciatic pain
and sacroiliitis. In an April 21, 2014 duty status report, Dr. Burtka reiterated appellant’s work
restrictions.
Appellant submitted a May 27 and 30, 2014 claim for compensation (Form CA-7)
requesting compensation for April 21 through May 30, 2014.
In a May 29, 2014 report, Dr. Burtka advised that appellant’s workers’ compensation
case was still under review and that she related that her appointment was a follow up from a
workers’ compensation injury. In a June 17, 2014 duty status report, he reiterated her work
restrictions. Also on June 17, 2014 Dr. Burtka’s treatment note advised that there still was no
workers’ compensation decision and assessed sacroiliitis. On July 8, 2014 he released appellant
to resume her regular duties.
By letter dated August 6, 2014, OWCP notified appellant that initially her claim was
administratively handled to allow medical payments, as it appeared to be a minor injury resulting
in minimal or no lost time from work. However, it advised that it was now considering the
merits of her claim because medical bills had exceeded $1,500.00. OWCP advised appellant of
the type of evidence needed to establish her claim.
2

The record indicates that appellant filed a recurrence claim (Form Ca-2) on April 16, 2014. An August 12, 2014
OWCP memorandum advised that the April 16, 2014 incident would be adjudicated as a new claim as opposed to a
recurrence because appellant alleged a new work incident. This other claim is not presently before the Board.

2

By decision dated September 16, 2014, OWCP denied appellant’s claim because medical
evidence was insufficient to establish that the work factors on January 24, 2014 caused an injury.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,3 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.4 The employee must also
establish that she sustained an injury in the performance of duty as alleged and that her disability
for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
There is no dispute that on January 24, 2014 appellant was pushing equipment. The
evidence supports that the claimed work incident occurred. Therefore, the Board finds that the
first component of fact of injury is established. However, the medical evidence is insufficient to
establish that the employment incident on January 24, 2014 caused appellant’s low back injury.
In the February 3, 2014 form report, Dr. Burtka gave a history of a “back injury on
January 24, 2014” and checked the box marked “yes” to indicate that employment activities
caused or aggravated appellant’s injury. The Board has held that an opinion on causal
relationship that consists only of a physician checking yes to a medical form question on whether
the claimant’s condition was related to the history given is of little probative value.8 As a result,
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

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

7

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

8

Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box yes in a form report, without additional
explanation or rationale, is insufficient to establish causal relationship).

3

it is insufficient to discharge appellant’s burden of proof. In his February 3, 2014 duty status
report (Form CA-17), Dr. Burtka advised that appellant was experiencing pain in the right SI
joint and diagnosed lumbago. This report is insufficient to discharge appellant’s burden of proof
because it does not contain an opinion on causal relationship. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.9
Other medical reports submitted pertain to the April 16, 2014 incident and do not address
whether the January 24, 2014 work incident caused or aggravated a back injury. Therefore, they
are not germane to the adjudication of the January 24, 2014 incident which is currently before
the Board.10
Appellant has submitted insufficient medical evidence to establish her claim. Causal
relationship is a medical question that must be established by probative medical opinion from a
physician.11 The physician must accurately describe appellant’s work duties and medically
explain the pathophysiological process by which these duties would have caused or aggravated
her condition.12 Because appellant has not provided such medical opinion evidence in this case,
she has failed to meet her burden of proof.
On appeal, appellant argues that OWCP paid her medical bill from January 24 to
March 27, 2014, which suggests that they accepted her claim. The Board has held that the mere
fact that OWCP authorized and paid for medical treatment does not establish that the condition
for which the employee received treatment was employment related.13 Furthermore, in a letter
dated August 6, 2014, OWCP informed appellant that a limited amount of expenses were
administratively approved; however, because her medical bills exceeded $1,500.00, OWCP
reopened the claim to consider the merits of the matter. Appellant also questions why she
received correspondence denying her claim and other correspondence assigning her a new case
number. The record presently before the Board solely pertains to a March 26, 2014 notice of
traumatic injury filed by appellant in which she alleged that the January 24, 2014 work incident
caused an injury. The record also indicates that appellant later filed a claim for a recurrence of
disability beginning April 16, 2014. OWCP determined that this represented a claim for a new
traumatic injury and created a separate case file with regard to the April 16, 2014 employment
incident. The September 16, 2014 OWCP decision pertains to the January 24, 2014 incident and
that is the only matter that is presently before the Board. The April 16, 2014 incident is being
adjudicated separately by OWCP and is not presently before the Board.14 Appellant further
9

S.E., Docket No. 08-2214 (issued May 6, 2009).

10

See id.

11

See supra note 7.

12

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).
13

See Gary L. Whitmore, 43 ECAB 441 (1992).

14

See supra note 2.

4

asserts that she submitted evidence within 30 days of OWCP’s August 6, 2014 request for
additional evidence. However, the record does not reflect that any evidence was received by
OWCP within the 30-day period in the claim presently before the Board.15
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a traumatic injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 16, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 2, 2015
Washington, DC

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

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

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

15

Appellant also submitted new evidence to the Board on appeal after issuance of OWCP’s September 16, 2014
decision. The Board also lacks jurisdiction to review new evidence for the first time on appeal. See 20 C.F.R.
§ 501.2(c).

5


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

)
)
)
)
)
)
)
)

Docket No. 22-0359
Issued: March 1, 2022

Case Submitted on the Record

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

On January 12, 2022 appellant filed a timely appeal from a December 13, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 22-0359.
In a letter dated February 15, 2022, appellant requested that the appeal be withdrawn.
The Board has duly considered the matter and concludes that appellant’s request for the
withdrawal of the appeal should be granted. Accordingly,

IT IS HEREBY ORDERED THAT appellant’s request for the withdrawal of the appeal
is granted. The appeal docketed as No. 22-0359 is dismissed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cherry Hill, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1330
Issued: February 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 15, 2013 appellant, through counsel, filed a timely appeal from a February 19,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss and medical
compensation benefits effective July 12, 2013 on the grounds that the accepted lumbar strain had
ceased without residuals.
On appeal, counsel asserts that Dr. Zohar Stark, a Board-certified orthopedic surgeon and
the impartial medical examiner in the case, should not be accorded the weight of medical opinion
as he did not explain why he found no evidence of bilateral carpal tunnel syndrome whereas
prior testing demonstrated the condition through September 4, 2009. He also asserts that
1

5 U.S.C. § 8101 et seq.

Dr. Stark failed to support his conclusions and did not recognize the accepted lumbar strain.
Additionally, counsel asserts that Dr. Stark supported continuing disability as he found appellant
unable to perform her date-of-injury position due to the accepted lumbosacral sprain.
FACTUAL HISTORY
This is appellant’s second appeal before the Board. By order issued January 12, 2012,2
the Board set aside OWCP’s December 13, 2010 decision terminating appellant’s wage-loss and
medical compensation benefits effective May 27, 2010. The Board found that Dr. George P.
Glenn, Jr., a Board-certified orthopedic surgeon, could not serve as impartial medical examiner
in the case as he was not properly selected using the Physicians Directory Service (PDS). The
Board remanded the case to OWCP for selection of another impartial medical specialist. The
law and the facts of the case as set forth in the Board’s prior order are incorporated by reference.
The relevant factual history is set forth below.
OWCP accepted that on or before July 19, 2005 appellant, then a 58-year-old distribution
clerk, sustained a lumbar sprain and left carpal tunnel syndrome. She stopped work on
October 5, 2005 and did not return. Appellant received wage-loss compensation benefits on the
periodic compensation rolls beginning on August 20, 2005.
From April to August 2006, the employing establishment investigated appellant’s
activities maintaining rental properties which she owned. It obtained surveillance video showing
appellant cutting wood with a circular saw, carrying wood up exterior steps, painting window
frames with a brush, pulling weeds and moving trash cans. In an October 5, 2006 administrative
interview, appellant admitted that she collected rents and inspected her rental properties. She
denied performing the carpentry, painting and gardening tasks as shown in the surveillance video
and photographs.3
In a December 21, 2006 report, Dr. Mark A. Filippone, an attending Board-certified
physiatrist, diagnosed bilateral repetitive stress injuries to the upper extremities and low back

2

Docket No. 11-1003 (issued January 12, 2012).

3

On April 17, 2006 OWCP obtained a second opinion from Dr. Irving Strouse, a Board-certified orthopedic
surgeon, who opined that appellant could perform full-time limited-duty work. On April 25, 2006 OWCP obtained
a second opinion from Dr. Bruce Monaghan, a Board-certified orthopedic surgeon, who diagnosed bilateral carpal
tunnel syndrome and C5-6 and C6-7 radiculopathy. On August 10, 2006 Dr. Scott M. Fried, an attending
osteopathic physician Board-certified in orthopedic surgery, found appellant able to perform full-time work with
restrictions, based on the activities she performed in the surveillance video. OWCP found a conflict of opinion
between Dr. Fried, for appellant, and Drs. Strouse and Mongahan, for the government, regarding the nature and
extent of any continuing disability. To resolve the conflict, OWCP selected Dr. Robert Bachman, a Board-certified
orthopedic surgeon, as impartial medical examiner. In an April 30, 2007 letter, OWCP disqualified Dr. Bachman as
he was not properly selected. On January 7, 2008 OWCP obtained an impartial opinion from Dr. Ronald Gerson, a
Board-certified orthopedic surgeon, who submitted January 7 and March 31, 2008 reports finding the accepted
conditions had resolved without residuals.

2

derangement due solely to her federal employment. He found appellant totally disabled for work
through September 2009.4
On July 16, 2009 OWCP obtained a second opinion from Dr. Kevin Hanley, a Boardcertified orthopedic surgeon, who diagnosed degenerative cervical and lumbar disc disease and
bilateral carpal tunnel syndrome. After viewing the 2006 surveillance video, Dr. Hanley
submitted a February 4, 2010 supplemental report opining that appellant could return to full-duty
work with no restrictions.
OWCP found a conflict of opinion between Dr. Filippone, for appellant, and Dr. Hanley,
for the government, regarding the extent of any continuing work-related disability. To resolve
the conflict, it selected Dr. George P. Glenn, Jr., a Board-certified orthopedic surgeon, to serve as
an impartial medical examiner. Dr. Glenn submitted a December 22, 2009 report finding that the
accepted conditions had resolved.
By notice dated April 20, 2010, finalized May 27, 2010 and affirmed on December 13,
2010, OWCP terminated appellant’s wage-loss and medical compensation benefits, based on
Dr. Glenn’s opinion. Counsel then appealed to the Board. On January 12, 2012 the Board
issued an order disqualifying Dr. Glenn as he was not properly selected and directed the selection
of a new impartial medical examiner.5
On March 1, 2012 OWCP selected Dr. Stark as impartial medical examiner. Dr. Stark
submitted an April 3, 2012 report, reviewing the medical record and statement of accepted facts.
On examination, he found a normal gait, no tenderness of the cervical paraspinals or spinous
process, normal cervical range of motion, no sensory or motor deficit in either upper extremity,
equal and present deep tendon reflexes of the upper extremities, full range of motion throughout
both hands and wrists, no thenar atrophy, negative Tinel’s and Phalen’s signs at the median and
ulnar nerves bilaterally, normal lumbar range of motion with no paraspinal tenderness, negative
straight leg raising tests bilaterally, and normal deep tendon reflexes throughout both legs. On
review of the medical record, Dr. Stark noted that EMG studies indicated carpal tunnel syndrome
on August 22 and September 23, 2005 and September 4, 2009. However, Dr. Stark opined that
the accepted carpal tunnel syndrome had resolved as there was no clinical evidence of reduced
sensation, atrophy or sensory deficits supporting the condition. He also found that the lumbar
strain had resolved as there was no clinical evidence to substantiate the condition. Dr. Stark
opined that appellant could perform full-time work with lifting limited to 20 pounds.

4

January 23, 2007 electromyography (EMG) and nerve conduction velocity (NCV) studies demonstrated left L5
radiculopathy. A March 12, 2007 lumbar magnetic resonance imaging (MRI) scan obtained for Dr. Filippone
showed a Grade 2 L5-S1 spondylolisthesis, L1-2 disc herniation, and bulging of the annulus fibrosis at L3-4.
June 4, 2008 and September 4, 2009 EMG and NCV studies demonstrated bilateral carpal tunnel syndrome, left
greater than right.
5

The Director filed a petition for reconsideration and requested oral argument on February 10, 2012, asserting
that Dr. Glenn was properly selected. Appellant, through counsel, joined in the request for oral argument on
February 24, 2012. By order issued May 3, 2012, the Board denied the Director’s request for oral argument. By
separate order issued May 3, 2012, the Board denied the petition for reconsideration on the grounds that the
Director’s petition did not establish an error of law or fact warranting further consideration.

3

In a July 6, 2012 letter, counsel asserted that Dr. Stark could not serve as impartial
medical examiner as his opinion was vague and poorly rationalized.
By decision dated July 12, 2012, OWCP terminated appellant’s wage-loss and medical
compensation benefits effective that day, based on Dr. Stark’s opinion as impartial medical
examiner.
In a July 17, 2012 letter, counsel requested a hearing, held by video conference on
November 29, 2012. At the hearing, counsel reiterated his contentions that Dr. Stark’s opinion
was insufficiently rationalized.
By decision dated and finalized February 19, 2013, an OWCP hearing representative
affirmed the July 12, 2012 decision terminating appellant’s compensation. The hearing
representative found that Dr. Stark’s opinion contained sufficient medical rationale to resolve the
conflict of medical opinion.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.7 The Board has long recognized that the evidence needed to sustain OWCP’s
burden in termination cases must be in the record prior to the action effecting termination. The
claimant must have notice and an opportunity to be heard.8
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.9 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.10
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.11 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical

6

Bernadine P. Taylor, 54 ECAB 342 (2003).

7

Id.

8

M.L., 57 ECAB 746 (2006).

9

Roger G. Payne, 55 ECAB 535 (2004).

10

Pamela K. Guesford, 53 ECAB 726 (2002).

11

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

4

evidence.12 In situations where there are 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 on a proper
factual background, must be given special weight.13
ANALYSIS
OWCP accepted that appellant sustained a lumbar sprain and left carpal tunnel syndrome.
She received wage-loss compensation on the periodic compensation rolls beginning on
August 20, 2005. Dr. Filippone, an attending Board-certified physiatrist, found appellant totally
disabled for work through September 2009. Dr. Hanley, a Board-certified orthopedic surgeon
and second opinion physician, found appellant able to perform full duty as of February 4, 2010.
OWCP found a conflict between Dr. Filippone and Dr. Hanley, and selected Dr. Glenn, a Boardcertified orthopedic surgeon, to resolve it. It terminated appellant’s compensation benefits
effective May 27, 2010, based on Dr. Glenn’s December 22, 2009 opinion that the accepted
conditions had resolved. Appellant sought an appeal with the Board. By order issued
January 12, 2012, the Board found that Dr. Glenn had not been properly selected and remanded
the case for selection of a new impartial medical examiner.
On remand of the case, OWCP selected Dr. Stark, a Board-certified orthopedic surgeon,
as impartial medical examiner. Dr. Stark submitted an April 3, 2012 report opining that the
accepted conditions had resolved without residuals. By decision dated July 12, 2012, OWCP
terminated appellant’s wage-loss and medical compensation benefits effective that day, based on
Dr. Stark’s opinion as the weight of the medical evidence. Following an oral hearing, it affirmed
the termination by decision issued February 19, 2013.
The Board finds that Dr. Stark’s opinion represents the weight of the medical evidence.
Dr. Stark’s report was based on a complete and accurate medical history as well as a thorough
clinical examination. He provided medical rationale to support his opinion that appellant could
return to full duty as the accepted conditions had resolved. Dr. Stark explained that he found no
objective sign of the accepted carpal tunnel syndrome previously indicated in 2005 and 2009
EMG studies. There were no sensory or motor deficits in either arm. Dr. Stark also explained
that the lumbar strain had resolved as appellant had a full range of lumbar motion, no paraspinal
tenderness and a normal neurologic examination throughout both lower extremities. Therefore,
OWCP’s February 19, 2013 decision affirming the prior termination decision was proper under
the law and facts of this case.14
On appeal, counsel asserts that Dr. Stark should not be accorded special weight because
he did not explain why he found no evidence of bilateral carpal tunnel syndrome or a lumbar
strain. However, Dr. Stark provided detailed clinical findings that these conditions had resolved.
He thoroughly explained that the accepted conditions had ceased without residuals.
12

Delphia Y. Jackson, 55 ECAB 373 (2004).

13

Anna M. Delaney, 53 ECAB 384 (2002).

14

Id.

5

Additionally, counsel asserts that Dr. Stark supported continuing disability. The Board notes,
however, that Dr. Stark found appellant able to perform full-time work.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss and medical
compensation benefits effective July 12, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 19, 2013 is affirmed.
Issued: February 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 08-316
Issued: August 11, 2008

Case Submitted on the Record

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

JURISDICTION
On November 14, 2007 appellant filed a timely appeal from October 30 and May 30,
2007 decisions of the Office of Workers’ Compensation Programs, denying his claim for an
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that his emotional
condition was causally related to a compensable employment factor.
FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated August 7, 2006, the Board
found that appellant established two compensable employment factors and remanded the case for
1

Docket No. 06-53 (issued August 7, 2006). On June 1, 2004 appellant filed a claim for an emotional condition.
By decisions dated April 1 and September 21, 2005, the Office denied his claim.

the Office to review the medical evidence. The law and the facts of the previous Board decision
are incorporated herein by reference.
Appellant alleged that on July 26, 2003 an unknown coworker placed four swastikas on
equipment that he shared with Tanya Clark, a coworker, who confirmed the allegation and
management did not dispute that this incident occurred. In its August 7, 2006 decision, the
Board found that appellant established a factual basis for his allegation of harassment and
discrimination with respect to the placement of swastikas at his workstation.
Appellant alleged that on January 24, 2004 Sherry Langham, a coworker, twice removed
a photograph of him that was located in the workstation of Cindy Chambers, a coworker. On
February 7, 2004 he was retrieving mail and heard a loud cry of “URGHH [d]amn [p]icture” and
saw Ms. Langham removing the picture again. Appellant was “shocked and scared” and
requested leave but it was denied. He informed management of Ms. Langham’s behavior but no
action was taken. Ms. Chambers stated that Ms. Langham told her that she could not bear to
look at appellant’s picture. In its August 7, 2006 decision, the Board found that the incident
involving Ms. Langham tampering with the photograph was established as factual and
constituted a compensable factor of employment.
On remand, the Office referred appellant, together with copies of the medical evidence, a
statement of accepted facts, which included the two allegations accepted as compensable by the
Board, and a list of questions, to Dr. John V. Custer, a Board-certified psychiatrist and
neurologist.
In a report dated April 19, 2007, Dr. Custer reviewed appellant’s family, social and
medical history and provided the results of a mental status examination. He indicated that he had
reviewed the medical records and statement of accepted facts. Dr. Custer diagnosed an
adjustment disorder with mixed anxiety and depression and possible paranoid personality traits.
He stated:
“[I]t is my professional opinion that the events listed in the statement of accepted
facts are not sufficient to have caused, precipitated or aggravated the diagnosed
mental condition. It is my opinion that this condition is primarily [appellant’s]
own personal issues with being gay and how others react to him being gay, that he
is responsible for said emotional condition.”
By decisions dated May 30 and October 30, 2007, the Office denied appellant’s claim on
the grounds that the medical evidence failed to establish that his emotional condition was
causally related to the two compensable employment factors.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to her regular or specially assigned work duties or to a requirement imposed by the

2

employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.3
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment, which may be considered by a physician
when providing an opinion on causal relationship, and which are not deemed compensable
factors of employment and may not be considered.4 When a claimant fails to implicate a
compensable factor of employment, the Office should make a specific finding in that regard. If a
claimant does implicate a factor of employment, the Office should then determine whether the
evidence of record substantiates that factor.5 As a rule, allegations alone by a claimant are
insufficient to establish a factual basis for an emotional condition claim but rather must be
corroborated by the evidence.6 Where the claimant alleges compensable factors of employment,
he must substantiate such allegations with probative and reliable evidence.7 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, then the Office must base its decision on an analysis of the medical
evidence.8
ANALYSIS
The Board finds that this case is not in posture for a decision.
The Board found that two of appellant’s allegations constituted compensable employment
factors. This is not enough, however, to entitle him to benefits. Appellant must further establish
a causal connection between these compensable factors of employment and his diagnosed
medical conditions. He must establish that he sustained an injury “arising out of the
employment.”9
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
2

5 U.S.C. §§ 8101-8193.

3

Lillian Cutler, 28 ECAB 125 (1976).

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

Margaret S. Krzycki, 43 ECAB 496 (1992).

6

See Charles E. McAndrews, 55 ECAB 711 (2004).

7

Joel Parker, Sr., 43 ECAB 220 (1991).

8

See Charles D. Edwards, 55 ECAB 258 (2004).

9

Beverly R. Jones, 55 ECAB 411 (2004).

3

implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific compensable employment factors identified by the claimant.10
In a report dated April 19, 2007, Dr. Custer diagnosed an adjustment disorder with mixed
anxiety and depression and possible paranoid personality traits. He stated that the events listed
in the statement of accepted facts were not sufficient to have caused, precipitated or aggravated
appellant’s diagnosed mental condition. However, Dr. Custer did not discuss the two specific
employment factors accepted as compensable. He provided no discussion of the two factors and
no medical rationale explaining how he determined that the two accepted employment factors
did not contribute to appellant’s emotional condition. Dr. Custer’s general statement that “the
events listed in the statement of accepted facts” did not contribute to appellant’s emotional
condition is not sufficient to establish that his opinion on causal relationship was based upon
careful consideration of the evidence. It is well established that proceedings under the Act are
not adversarial in nature and while the claimant has the burden to establish entitlement to
compensation, the Office shares responsibility in the development of the evidence.11 The Office
has an obligation to see that justice is done.12 Once it undertakes development of the record, it
has the responsibility to do so in a proper manner.13 On remand, the Office should further
develop the medical evidence by obtaining a medical report that includes a thorough discussion
of the two compensable employment factors in this case and a rationalized explanation as to
whether these factors contributed to appellant’s emotional condition.
CONCLUSION
The Board finds that this case is not in posture for a decision. Further development of the
medical evidence is required on the issue of whether appellant’s emotional condition was
causally related to the two compensable factors of employment. After such further development
as the Office deems necessary, it should issue an appropriate decision.

10

Gary J. Watling, 52 ECAB 278 (2001); Donna Faye Cardwell, 41 ECAB 730 (1990).

11

See Udella Billups, 41 ECAB 260 (1989).

12

John J. Carlone, 41 ECAB 354 (1989).

13

See Henry G. Flores, Jr., 43 ECAB 901 (1992).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 30 and May 30, 2007 are set aside and the case is
remanded for further action consistent with this decision of the Board.
Issued: August 11, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1590
Issued: December 18, 2012

Case Submitted on the Record

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

JURISDICTION
On July 18, 2012 appellant filed a timely appeal from a May 7, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP) denying her traumatic injury claim and a
July 9, 2012 nonmerit decision denying her request for reconsideration. 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 her burden of proof to establish that she
sustained a right knee injury in the performance of duty on January 9, 2012; and (2) whether
OWCP properly denied her request for further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 16, 2012 appellant, then a 29-year-old city letter carrier technician, filed a
traumatic injury claim (Form CA-1) alleging right knee pain on January 9, 2012 when she was
walking her route in eleven inches of snow. She first received medical care on February 9, 2012
and notified her supervisor on February 16, 2012. Appellant’s supervisor controverted the claim
stating that appellant never reported an injury.
By letter dated March 1, 2012, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and directed to submit it within 30 days.
In a February 22, 2012 narrative statement, appellant reported that she was delivering
mail on January 9, 2012 in eleven inches of snow when her right leg began to feel as if it were
being separated at the knee joint. She did not slip, trip or fall but experienced pain in her right
knee during her route and was notified to return to the employing establishment because of
unsafe weather conditions. Appellant began wearing a knee brace after January 9, 2012 but
continued to experience constant pain and “popping” in her right knee.
By letter dated February 21, 2012, Dr. Eugenio Castillo, a treating physician, reported
that appellant was treated for a right knee injury which occurred while she was working on
January 9, 2012. He noted that she previously had a partial right knee replacement and excused
her from work through March 9, 2012.
In a March 2, 2012 diagnostic report, Dr. Aemon Tacheira, a treating physician, reported
that an imaging scan of both knees showed a right knee patellofemoral arthroplasty, mild
osteoarthritic change of the right medial tibiofemoral joint and no acute osseous abnormality
involving the left knee.
In a March 2, 2012 report, Kristin McCool, a physician’s assistant, reported on January 9,
2012 that appellant was walking her postal route in eleven inches of snow and had to trudge in
and out of the snow by lifting her knee when she began to experience right knee pain. She
diagnosed right knee pain and recommended arthritis series x-rays. Ms. McCool noted that
appellant had a previous patellofemoral arthroplasty because of a grade 3 lateral compartment
defect which could have worsened or been irritated, potentially causing her knee pain. The
medical report was not signed by a physician.
In a March 5, 2012 duty status report (Form CA-17), Dr. John Harmston, a Boardcertified orthopedic surgeon, reported that appellant was walking through eleven inches of snow
and felt pain in her right knee area. He diagnosed pain, swelling and limited range of motion and
reported that she could return to work on March 19, 2012 with restrictions.
In a March 16, 2012 statement, appellant reported that she notified her supervisor of her
injury on January 9, 2012 because she initially filed a recurrence claim (Form CA-2a) on that
date. She believed that her injury qualified as a recurrence of a previous October 13, 2007 injury

2

but that her Form CA-2a was later returned to her, prompting her to file a Form CA-1 and allege
a new traumatic occurrence.2
By decision dated May 7, 2012, OWCP denied appellant’s claim on the grounds that the
medical evidence was insufficient to establish that she sustained an injury in connection with the
accepted January 9, 2012 employment incident. It noted that the medical evidence submitted
contained a diagnosis of “pain” which was generally a symptom and not a firm medical
diagnosis.
On May 24, 2012 appellant requested reconsideration of the May 7, 2012 decision. She
reported that she had obtained the proper documentation for her claim but that the initial delay
was because her medical appointments were rescheduled. Appellant submitted a February 23,
2012 letter from the postal service which noted that it had received a Form CA-2a claim for her
original October 13, 2007 injury. It was returned because it did not apply to the January 9, 2012
incident. Appellant also submitted a form documenting leave and holidays accrued in 2011 as
well as a leave analysis form.
In a February 9, 2012 prescription note, Dr. Castillo reported that appellant could not
return to work until she was cleared by Dr. Harmston at her February 17, 2012 appointment.
In a March 2, 2012 duty status report, Ms. McCool provided appellant with work
restrictions, stating that she could return to work on March 19, 2012.
In a May 17, 2012 report, Ms. McCool, on behalf of Dr. Harmston, reported that
appellant’s x-rays showed no abnormalities of her right knee in comparison to her left knee. The
right knee patellofemoral arthroplasty did not demonstrate any abnormalities on x-ray.
Ms. McCool diagnosed right knee status post patellofemoral arthroplasty with aggravation,
noting that she could not rule out any internal derangement given appellant’s current symptoms.
The medical report was not signed by Dr. Harmston.
By decision dated July 9, 2012, OWCP denied appellant’s request for reconsideration
finding that she neither raised substantive legal questions nor included new and relevant
evidence establishing fact of injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the

2

The Board notes that there is no other information pertaining to appellant’s October 13, 2007 injury and
appellant’s prior claim is not currently before the Board.

3

employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employing
establishment actually experienced the employment incident which is alleged to have occurred.5
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.
When an employee claims that he or she sustained an injury in the performance of duty
he or she must submit sufficient evidence to establish that he or she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He or she must also
establish that such event, incident or exposure caused an injury.6 Once an employee establishes
that he or she sustained an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, for which he or she claims
compensation is causally related to the accepted injury.7
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. In determining whether a case has
been established, such circumstances as late notification of injury, lack of confirmation of injury,
and failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on
the employee’s statements. The employee has not met his or her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.8
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.9 The opinion of the physician must be based on 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.
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

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

5

Elaine Pendleton, supra note 3.

6

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
7

Supra note 5.

8

Betty J. Smith, 54 ECAB 174 (2002).

9

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

4

This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. 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.10
ANALYSIS -- ISSUE 1
OWCP accepted that the January 9, 2012 incident occurred as alleged, appellant
delivered her walking route in eleven inches of snow. The issue is whether she submitted
sufficient medical evidence to establish that the employment incident caused a right knee injury.
The Board finds that appellant did not submit sufficient medical evidence to establish a right
knee injury causally related to the January 9, 2012 employment incident.11 The medical
evidence is deficient on two grounds: first, it fails to provide a firm diagnosis; and second, there
is no well-rationalized opinion on causal relationship from a physician.
By letter dated February 21, 2012, Dr. Castillo reported that appellant was treated for a
right knee injury which occurred while she was working on January 9, 2012. He noted a
preexisting history of a partial right knee replacement and excused her from work through
March 9, 2012. Dr. Castillo did not explain whether the incident aggravated appellant’s right
knee condition. In a March 5, 2012 duty status report, Dr. Harmston reported that appellant was
walking through eleven inches of snow and felt pain in her right knee area. He diagnosed pain
with swelling and limited range of motion. Dr. Harmston reported that appellant could return to
work on March 19, 2012 with restrictions. Neither Dr. Castillo nor Dr. Harmston provided a
firm medical diagnosis for her right knee condition. Pain is a general description of a symptom
rather than a firm diagnosis of a medical condition.12 The issue of causal relationship was not
addressed specifically by Dr. Castillo or Dr. Harmston.
In a March 2, 2012 diagnostic report, Dr. Tacheira reported that an imaging scan of both
knees showed right knee patellofemoral arthroplasty, mild osteoarthritic change of the right
medial tibiofemoral joint and no acute osseous abnormality involving the left knee. His medical
report did not address appellant’s preexisting history of injury, the incident accepted in this case
or offer any opinion regarding the cause of her condition. Identifying the previous right knee
patellofemoral arthroplasty procedure and mild osteoarthritic change of the right medial
tibiofemoral joint does not provide support for a traumatic injury from the January 9, 2012
employment incident. Dr. Tacheira did not discuss the work-related incident and his report is
insufficient to establish appellant’s claim.
The remaining medical evidence of record is also not sufficient to establish causal
relation to the January 9, 2012 employment incident. The March 2, 2012 report of Ms. McCool,
a physician’s assistant, is not probative. Registered nurses, licensed practical nurses and
10

James Mack, 43 ECAB 321 (1991).

11

See Robert Broome, 55 ECAB 339 (2004).

12

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. C.F.,
Docket No. 08-1102 (issued October 10, 2008).

5

physicians assistants are not physicians as defined under FECA and their opinions are of no
probative value.13 The report was not signed by Dr. Harmston. It is well established that a
physician’s signature is required on a report in order for it to be considered as medical
evidence.14
The Board finds that appellant did not submit rationalized medical evidence to establish
that the accepted January 9, 2012 employment incident, caused or aggravated her right knee
condition.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA, its
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.15 Section 10.608(b) of OWCP regulations
provide that, when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.16
ANALYSIS -- ISSUE 2
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
In a May 24, 2012 statement, appellant reported that she obtained the proper
documentation for her claim but that delay was due to medical appointments being rescheduled.
She also submitted a February 23, 2012 letter from the employing establishment which noted
that her Form CA-2a for her original October 13, 2007 injury was being returned because it did
not apply to the January 9, 2012 incident.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the
13

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law.
14

B.M., Docket No. 11-725 (issued February 17, 2012).

15

D.K., 59 ECAB 141 (2007).

16

K.H., 59 ECAB 495 (2008).

6

claim. In her May 24, 2012 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. She did not advance a new and
relevant legal argument. Appellant’s argument was that her injury was employment related and
she delayed filing her claim because she initially thought that this was a recurrence claim. The
underlying issue in this case is not a question of paperwork. Rather, the question is whether
appellant established an injury causally related to the accepted January 9, 2012 employment
incident. That is a medical issue which must be addressed by relevant medical evidence.17
While the February 23, 2012 letter from the employing establishment and leave analysis
forms are new evidence, they are not relevant to the issue for which OWCP denied appellant’s
claim. The evidence does not include a physician’s rationalized opinion on the issue of causal
relationship between appellants’ alleged injury and the January 9, 2012 incident. Ms. McCool’s
March 2, 2012 duty status report and May 17, 2012 report is not considered probative medical
evidence because physician’s assistants are not considered physicians under FECA.18 While
Dr. Castillo’s February 9, 2012 prescription note is new evidence from a qualified physician, it
does not provide a firm medical diagnosis. As the evidence submitted does not address the issue
on which OWCP’s decision was based, namely, medical evidence that establishes a diagnosis
causally related to the January 9, 2012 employment incident, it is not relevant. A claimant may
be entitled to a merit review by submitting new and relevant evidence, but appellant did not
submit any relevant medical evidence in this case.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a right knee injury on January 9, 2012 in the performance of duty. OWCP properly
denied her request for reconsideration without a merit review.

17

See Bobbie F. Cowart, 55 ECAB 746 (2004).

18

Supra note 13.

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated July 9 and May 7, 2012 are affirmed.
Issued: December 18, 2012
Washington, DC

Alec J. Koromilas, Alternate 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
__________________________________________
T.K., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Miami, FL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-2047
Issued: June 2, 2015

Case Submitted on the Record

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

JURISDICTION
On September 25, 2014 appellant filed a timely appeal from an April 9, 2014 merit
decision and a September 23, 2014 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

1
2

5 U.S.C. § 8101 et seq.

Appellant also filed a timely request for oral argument. By order dated February 26, 2015, the Board, after
exercising its discretion, denied his request explaining that the argument on appeal could be adequately addressed by
reviewing the evidence of record. Order Denying Request for Oral Argument, Docket No. 14-2047 (issued
February 26, 2015).

ISSUES
The issues are: (1) whether appellant established a recurrence of disability on and after
December 4, 2012; and (2) whether OWCP properly refused to reopen appellant’s case for
further review of the merits, pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant argues that his compensation is below acceptable levels due to the
denial of his restoration rights under federal law.
FACTUAL HISTORY
This case has previously been before the Board. On May 14, 2001 appellant, then a
40-year-old special agent, filed a traumatic injury claim alleging that on April 27, 2001 he
sustained injuries to his right knee, left wrist, right ankle, and lower back due to a work-related
automobile accident. OWCP accepted the claim for right knee open wound, lumbar
sprain/strain, right ankle strain/sprain, and left wrist strain/sprain, which was subsequently
expanded to include closed fracture of the right metatarsal, and right chondromalacia of the
patella. It authorized right knee arthroscopic surgery, which was performed on November 12,
2002, and right ankle arthroscopic surgery, which was performed on January 14, 2003. By letter
dated January 27, 2003, OWCP placed appellant on the periodic rolls for temporary total
disability. On June 4, 2003 appellant had metatarsophalangeal arthroscopy surgery.
In the first decision dated July 11, 2006, the Board reversed a January 11, 2005 OWCP
decision.3 In the January 11, 2005 decision, OWCP had found that appellant’s earnings as an
insurance investigator fairly and reasonably represented his wage-earning capacity and had
reduced his compensation accordingly. The Board found that OWCP improperly relied upon the
opinion Dr. Patrick J. Barry, an orthopedic surgeon, as he was not the physician selected to act as
the impartial specialist. Thus, the Board found that there was unresolved conflict in the medical
opinion evidence between Dr. Michael A. Abrahams, an attending Board-certified orthopedic
surgeon, and Dr. D. Barry Lotman, a second opinion Board-certified orthopedic surgeon, with
regard to appellant’s work restrictions and the extent of his remaining residuals.
In the second appeal, the Board issued an order dismissing appellant’s appeal on
July 25, 2007.4 The Board found it lacked jurisdiction as OWCP had not issued a final adverse
decision within a year of his November 26, 2006 appeal.
In the third appeal, the Board issued an order dated January 30, 2008, which dismissed
appellant’s appeal.5 The Board found that at the time of his appeal on April 9, 2007 OWCP had
not issued a final decision on reduction of his wage-loss compensation. On April 5, 2007 OWCP
had issued a notice of proposed reduction of wage-earning capacity. In a January 14, 2009
3

Docket No. 06-503 (issued July 11, 2006).

4

Order Dismissing Appeal, Docket No. 07-407 (issued July 25, 2007).

5

Order Dismissing Appeal, Docket No. 07-1734 (issued January 30, 2008).

2

decision the Board reversed a May 20, 2007 OWCP decision reducing his compensation based
upon a constructed loss of wage-earning capacity determination.
On March 12, 2012 OWCP accepted the conditions of right hip trochanteric bursitis, left
knee chondromalacia, left ankle synovitis, left foot plantar fasciitis, and left heel spur as
consequential injuries. On December 21, 2012 the Board reversed an April 23, 2012 OWCP loss
of wage-earning capacity decision.6 The Board found that OWCP failed to fully consider all the
criteria for making a retroactive wage-earning capacity decision when it found that appellant’s
actual earnings as an attorney represented his wage-earning capacity. In view of the Board’s
decision on the merits, the Board found the issue of whether OWCP properly denied his request
for a merit review under 5 U.S.C. § 8128(a) in its April 30, 2012 decision to be moot.
On August 13, 2013 the Board issued an order dismissing appellant’s appeal on the
grounds that there were no final adverse OWCP decisions issued under FECA.7 The Board
found that, while the case record contained documents from OWCP dated March 15 and 19,
2013, none of these documents constituted a final adverse OWCP decision. On March 10, 2014
the Board affirmed a July 29, 2013 OWCP decision concerning appellant’s pay rate.8 The Board
found that OWCP properly computed his pay rate beginning July 13, 2013 based on his
November 11, 2012 recurrence of disability. The facts of the cases as set forth in the Board’s
prior decisions are hereby incorporated by reference.
The relevant evidence considered appellant’s recurrence claim beginning December 4,
2012 is set forth below.
On April 25, 2012 OWCP received a copy of an April 18, 2012 settlement agreement
between appellant and the employing establishment. The agreement, provided that the
employing establishment would retroactively reinstate him to his position of special agent, which
included back pay, salary increases, cost-of-living increases, updating the payroll account for
retirement purposes, and any benefits due appellant back to 2004. Appellant would be placed in
an OWCP/leave without pay (LWOP) status upon the date of his reinstatement and would
continue in this status throughout the medical evaluation process period. It was stipulated in the
agreement that a form documenting his resignation was to be completed in case he failed his
fitness-for-duty examination, which would take place in Washington, DC.
On October 3, 2012 appellant elected to receive benefits under FECA effective
April 6, 2012 or any other data OWCP deems best to my benefit. He referenced an April 2012
settlement agreement with the employing establishment. Appellant submitted corrective SF-50’s
provided by employing establishment for the period May 15, 2005 through May 8, 2011.
In a letter dated October 25, 2012, appellant noted that he returned to federal service
effective September 9, 2012. In e-mail correspondence dated October 19, 2012 contained in the
6

Docket No. 12-1157 (issued December 21, 2012).

7

Order Dismissing Appeal, Docket No. 13-1014 (issued August 13, 2013).

8

Docket No. 13-1833 (issued March 10, 2014).

3

letter, the employing establishment informed him that he had been placed in an OWCP/LWOP
status.
On January 29, 2013 OWCP received a December 4, 2012 SF-50 showing that appellant
resigned from the employing establishment effective that day. It showed that his adjusted based
salary was $103,889.00.
By letter dated March 15, 2013, OWCP placed appellant on the periodic rolls for
temporary total disability effective September 9, 2012.
In a letter dated March 31, 2013, appellant contended that his resignation effective
December 4, 2012 should be considered as a recurrence of disability and, thus, his pay rate
should be based on the salary he was earning as of that date. In support of this argument he
noted that he had been restored to full-duty retroactively due to the 2004 settlement agreement.
Appellant argued that the employing establishment withdrew a light-duty position on or about
December 4, 2012 based on its determination that he could not perform the full duties of his
date-of-injury position.
On February 19, 2014 appellant filed a claim for a recurrence of disability beginning
December 4, 2012. He noted the date he returned to work as September 9, 2012. Under
description of how the recurrence occurred, appellant related that he had been retroactively
restored to duty as the result of a settlement agreement. Based on a fitness-for-duty examination,
the employing establisment “determined that it would not continue my limited-duty assignment.”
The employing establishment controverted appellant’s recurrence claim. Michael R.
Huff, unit chief, stated that the information appellant provided on the form is misleading as he
did not return to work on September 9, 2012. Mr. Huff related that the employing establishment
returned appellant to its rolls in a LWOP status for the period September 9 to December 4, 2012.
As a result of failing the employing establishment’s fitness-for-duty examination appellant
resigned and, thus, is not entitled to a recurrent pay rate as he never returned to work.
In a letter dated February 26, 2014, OWCP noted receipt of appellant’s claim for a
recurrence of disability beginning December 4, 2012. It informed him that a recurrence was
defined as either a spontaneous change in his condition or the withdrawal of a light-duty job
made to accommodate his condition due to the accepted employment injury.
In a March 5, 2014 letter, appellant argued that OWCP failed to act on his requests
regarding his restoration duty pursuant to 5 U.S.C. § 8151(b)(1) and 5 C.F.R. § 353.301. He
noted that OWCP had been provided with a copy of the settlement agreement, but offered no
comment or identified any problems with the agreement or the revocation period contained in the
agreement. Appellant indicated that, contrary to the employing establishment’s assertion, he
never agreed to resign and that the employing establishment failed to provide him with a
reasonable accommodation.
In a second letter dated March 5, 2014, appellant argued that he had never resigned from
the employing establishment and alleged that the employing establishment was violating 5
C.F.R. § 353.301 and the Rehabilitation Act of 1973 as his requests for restoration and
reasonable accommodation to his special agent position were refused.
4

In a March 11, 2014 letter, appellant reiterated his arguments regarding restoration rights
under 5 C.F.R. § 353.301 and his request to return to his position as a special agent with
reasonable accommodations. He related that he had performed a light-duty position for the
employing establishment from 2001 until November 2002 when he was removed from the
employing establishment’s rolls.
By correspondence dated March 12, 2014, appellant noted that his claim for a recurrence
of disability beginning December 4, 2012 was based on the employing establishment’s failure to
provide him with reasonable accommodations. He related that a copy of the settlement
agreement between the employing establishment and himself had been sent to OWCP to ensure
that it was consistent with OWCP policy and did not violate the law. Appellant argued that both
OWCP and the employing establishment were violating the Rehabilitation Act of 1973 as his
recurrence beginning December 4, 2012 was based on a withdrawal of a light-duty position made
to accommodate restrictions due to his accepted employment injuries.
In a letter dated March 24, 2014, OWCP informed appellant that the evidence of record
did not establish that he had returned to work on September 9, 2012. It noted that the employing
establishment placed him in LWOP status until December 4, 2012, the date of his resignation
from the employing establishment.
In an April 2, 2014 letter, appellant noted that he did sign a form permitting the
employing establishment to process his resignation as a part of the settlement agreement. He
noted that he had reported to the employing establishment headquarters as well as requesting
reasonable accommodation permitting him to return to work. Appellant noted that from
September 18 to 20, 2012 he was on official employing establishment business as he traveled to
headquarters as ordered by the employing establishment and considered in the settlement
agreement. He again argued that both the employing establishment and OWCP were in violation
of the Rehabilitation Act of 1973 by denying his request for restoration rights.
By correspondence dated April 7, 2014, appellant related that he discussed his return to
work and employing establishment restoration rights with an OWCP claims examiner. The
claims examiner informed him that his three-day reporting to employing establishment
headquarters was not considered a return to work and it was his “obligation to provide proof that
the days in question was (sic) ‘return to work.’” He stated that OWCP should have contacted the
employing establishment to determine whether the three-day period constituted a return to work,
which it failed to do.
By decision dated April 9, 2014, OWCP denied appellant’s claim for a recurrence of
disability beginning December 4, 2012.
On August 4, 2014 appellant requested reconsideration of the April 9, 2014 OWCP
decision without accompanying argument or submission of evidence.
By decision dated September 23, 2014, OWCP denied reconsideration.

5

LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which has resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.9 Recurrence of disability also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.10 Generally, a withdrawal of a light-duty assignment would constitute a recurrence
of disability where the evidence established continuing injury-related disability for regular
duty.11 A recurrence of disability does not apply when a light-duty assignment is withdrawn for
reasons of misconduct, nonperformance of job duties or other downsizing or where a loss of
wage-earning capacity determination is in place.12
Absent a change or withdrawal of a light-duty assignment, a recurrence of disability
following a return to light-duty may be established by showing a change in the nature and extent
of the injury-related condition such that the employee could no longer perform the light-duty
assignment.13
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of establishing that the recurrence is causally related to
the original injury.14 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes that the condition is causally related to the employment injury.15 The
physician’s opinion must be based on a complete and accurate factual and medical history and
supported by sound medical reasoning.16

9

20 C.F.R. § 10.5(x). See also A.M., Docket No. 09-1895 (issued April 23, 2010); Hubert Jones, Jr., 57 ECAB
467 (2006).
10

Id. at § 10.5(x). See also J.F., 58 ECAB 124 (2006); Hubert Jones, Jr., id.

11

Id. at § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6(a)(4)
(June 2013).
12

Id. at §§ 10.5(x), 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, id. at Chapter 2.1500.2(b)
(June 2013).
13

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

14

20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.1500.5 and 2.1500.6
(June 2013).
15

See S.S., 59 ECAB 315 (2008).

16

Id.

6

ANALYSIS -- ISSUE 1
On February 19, 2014 appellant filed a claim for a recurrence of disability beginning
December 4, 2012 based on the withdrawal of a light-duty position. He does not argue a
worsening of his condition. In support of his contention that a light-duty position had been
withdrawn, appellant stated that he had been restored to federal duty pursuant to the settlement
agreement and the employing establishment’s determination that he could not perform the full
duties of a special agent constituted a withdrawal of light-duty work. OWCP denied his
recurrence claim as there was no evidence supporting his claim that he returned to work and the
employing establishment withdrew a light-duty position.
The initial question presented is whether appellant actually returned to work with the
employing establishment. For a recurrence of disability to occur, the injured worker must have
returned to work. The record before the Board lacks any evidence that appellant returned to
work with the employing establishment on September 4, 2012. A review of the settlement
agreement indicated that he was paid back wages from 2004 and placed on the employing
establishment rolls effecting September 9, 2012 pending a determination of his ability to perform
the duties of his position. A fitness-for-duty examination found that appellant was unable to
perform the duties of the position of special agent and, thus, the form documenting his
resignation was finalized on December 4, 2012. In a March 15, 2013 letter, OWCP informed
him that he had been placed on the periodic rolls for temporary total disability beginning
September 4, 2012. There is no evidence that appellant returned to work at the employing
establishment or that a job had been withdrawn. He has failed to establish that he sustained a
recurrence of disability commencing December 4, 2012, the date of his resignation from the
employing establishment, as he did not return to work, a light-duty job was not offered, and there
was no withdrawal of a light-duty job.
On appeal, appellant argues retaliation by OWCP for his complaints that the employing
establishment violated the Rehabilitation Act of 1973 regarding his request for restoration. He
also argued collusion between OWCP and the employing establishment regarding the violation
of the settlement agreement signed by him and the employing establishment. Lastly, appellant
argues the correspondence between a senior claims examiner and Mr. Huff establishes OWCP’s
assistance in keeping his “compensation below acceptable levels” and denying his right to
restoration. The issue of his restoration rights is for the employing establishment or Office of
Personnel Management to address as OWCP lacks the authority to order restoration.17 As
neither OWCP nor the Board have jurisdiction over this issue,18 appellant’s contentions do not
establish that he sustained a recurrence of disability on December 4, 2012 due to a withdrawal of
a limited-duty assignment.

17

See Pedro Beltran, 44 ECAB 222 (1992); Charles J. McCuistion, 37 ECAB 193 (1985) (claims for job
restoration are not within the scope of FECA).
18

See Nathan Stelly, 46 ECAB 396, 401 (1995).

7

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
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,19
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.20 To be entitled to a merit review of an OWCP 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.21 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.22
ANALYSIS -- ISSUE 2
On September 5, 2014 OWCP received appellant’s August 4, 2014 reconsideration
request which was within one-calendar year of OWCP’s April 9, 2014 decision denying his
recurrence claim. Appellant’s request was therefore timely. The question for determination is
whether his request met at least one of the three standards for obtaining a merit review of his
case.
Appellant did not establish that OWCP erroneously applied or interpreted a specific point
of law. He did not advance a relevant legal argument not previously considered by OWCP, and
he did not submit relevant and pertinent new evidence not previously considered by OWCP.
Appellant submitted an appeal request form with a checkmark indicating that he was
requesting reconsideration. He made no argument and submitted no evidence to support his
request. Such a bare request for reconsideration is insufficient on its face to meet any of the
standards for obtaining reconsideration. The Board will therefore affirm OWCP’s September 23
2014 decision denying appellant’s request.

19

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that [t]he Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
20

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
21

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

22

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

8

CONCLUSION
The Board finds that appellant failed to establish that he sustained a recurrence of
disability on December 4, 2012. The Board also finds that OWCP properly denied his August 4,
2014 reconsideration request.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 23 and April 9, 2014 are affirmed.
Issued: June 2, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

9