United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, New Cumberland, PA, Employer
__________________________________________

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

Docket No. 14-1159
Issued: October 1, 2014

Case Submitted on the Record

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

JURISDICTION
On April 21, 2014 appellant, through his attorney, filed a timely appeal from a January 7,
2014 decision of the Office of Workers’ Compensation Programs (OWCP) that found an
overpayment of compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant was not entitled to a
prerecoupment hearing from a preliminary overpayment finding.
On appeal appellant’s attorney asserts that appellant timely requested a hearing from an
August 27, 2013 preliminary overpayment decision and, therefore, OWCP erred in issuing a final
overpayment decision on October 2, 2013 and denying appellant’s request for a prerecoupment
hearing on January 7, 2014.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In a September 18, 2002 decision, the
Board affirmed as modified a February 12, 2001 OWCP decision. The Board found that
appellant was not entitled to reimbursement for travel expenses incurred by his attendants while
he was on vacation or for reimbursement of repairs to his vehicle or for van rental or for travel
expenses.2 The facts of the previous Board decision are incorporated herein by reference.
On July 30, 2013 OWCP informed appellant that a bill for landscape maintenance for
2012, from Black Landscape Contracting, Inc., in the amount of $6,424.96, was paid in full to
him by its bill payment facility, ACS. It noted that it had no record that landscaping services
were authorized under the claim, and asked him to provide a copy of the authorization letter
within 21 days, if one had been sent.
In correspondence dated August 20, 2013, appellant’s attorney responded that appellant
did not receive prior authorization for landscape maintenance but that OWCP had previously
reimbursed him for landscape work. The record contains an invoice dated December 29, 2012
from Black Landscape Contracting, Inc., for 2012 landscape maintenance at appellant’s
residence, for the amount of $6,424.96 and an ACS notice that the invoice was paid.
By letter dated August 27, 2013, OWCP issued a preliminary determination that appellant
received an overpayment in compensation in the amount of $6,424.96 because he was
reimbursed in error for landscaping services for the year 2012. Appellant was found at fault in
the creation of the overpayment as he knew or should have known of the requirement of
requesting authorization prior to submission of a request for reimbursement. There was no
evidence to support that the landscaping services were related to the 1985 employment injury.
He was provided an overpayment action request form and an overpayment questionnaire and was
given 30 days to respond. The notice was sent to appellant’s address of record and to his
attorney of record. An overpayment memorandum indicates that appellant would not be entitled
to reimbursement for landscaping done on his property unless it was previously authorized.
On September 27, 2013 appellant’s present attorney provided an appointment of
representation form, signed by appellant on September 27, 2013 to OWCP. The attorney asked
for a copy of the case record.
2

Docket No. 01-1073 (issued September 18, 2002). On August 5, 1985 appellant, a heavy mobile equipment
mechanic foreman, sustained a work-related gunshot wound to the right cerebral hemisphere while on official travel.
The accepted conditions include brain laceration, paralytic syndrome and major depression. The injury resulted in
triplegia that necessitated wheelchair use. Following rehabilitation, appellant returned to modified duty on
August 23, 1988 and worked part time for a number of years. He retired on disability on July 10, 1993. On July 29,
1994 he was granted a schedule award for a total 1,087.3 weeks of compensation, to run from July 24, 1994 to
May 26, 2015. Appellant also receives disability retirement benefits from the Office of Personnel Management.
OWCP paid for modification to his home, including an indoor pool for therapy use, modified vans, and additional
durable medical equipment. It also pays for attendant care. The record indicates that appellant owns rental
properties and is a co-owner in several businesses. A 2004-05 Office of the Inspector General investigation
concluded that appellant was having his attendants perform nonhealth-related activities such as landscaping and
work on his rental properties, and that he ordered items in excess at government expense. In November 2005,
appellant had a multidisciplinary rehabilitation evaluation which concluded that he needed 24-hour care. His
attendant care is now furnished by a nursing service.

2

By letter dated September 30, 2013, OWCP forwarded appellant’s counsel a copy of the
letter of new representation and asked him to state, in writing, if his firm still represented
appellant in his FECA claim.
Appellant did not respond to the preliminary overpayment finding.3
By decision dated October 2, 2013, OWCP finalized the preliminary overpayment
decision. It found that appellant was at fault in the creation of the overpayment as he knew or
should have known that he was not entitled to the payment received.4 Appellant’s counsel was
provided a copy of the final overpayment decision.
On October 8, 2013 appellant’s original attorney informed OWCP that he no longer
represented appellant in connection with his FECA claim.
In correspondence dated September 27, 2013, received by the Branch of Hearings and
Review (BHR) on October 17, 2013 and scanned received on October 21, 2013, appellant’s
present attorney noted that appellant’s file would document that he requested a prerecoupment
hearing. Counsel also asked that his representation be acknowledged. He forwarded a copy of
an envelope from his office, addressed to the Branch of Hearings and Review, postmarked
September 28, 2013, and a copy of the appointment of representative, signed by appellant on
September 27, 2013. By letter dated October 10, 2013, received by the Branch of Hearings and
Review on October 17, 2013 and scanned on October 23, 2013, counsel asked that it respond to
his September 27, 2013 correspondence regarding the preliminary overpayment determination.
He had “received correspondence from the district office dated October 2, 2013 indicating that
no appeal had been made of that preliminary decision,” and stated that he was again enclosing a
copy of appellant’s appeal letter dated September 16, 2013. An overpayment action request was
attached, signed by appellant on September 16, 2013. A prerecoupment hearing was requested,
and appellant disagreed that an overpayment had occurred or he was at fault. An envelope,
addressed to the Branch of Hearings and Review, was attached with a postmark of
October 11, 2013.
On October 18, 2013 OWCP notified appellant that it had received his request for an oral
hearing. A copy was sent to his attorney. On December 27, 2013 counsel inquired about
scheduling the requested hearing.
By decision dated January 7, 2014, OWCP denied appellant’s request for a
prerecoupment hearing. It found that it had not received the request for a prerecoupment hearing
within 30 days of the August 27, 2013 preliminary overpayment determination. OWCP advised

3

The only evidence of record not mentioned above that was submitted subsequent to the August 27, 2013
preliminary overpayment letter and the final overpayment decision dated October 2, 2013, consists of telephone
memoranda and other information regarding appellant’s request for a new van, a copy of correspondence dated
July 9, 2013 from appellant’s physical therapist, and prescriptions from a physician’s assistant for a cushion and a
new power wheelchair.
4

The overpayment was repaid by withholding total compensation for two periods and deducting partial
compensation for the third period.

3

that appellant was issued a final decision on the overpayment of compensation and this decision
was not subject to the hearing provision found at 5 U.S.C. § 8124(b).
LEGAL PRECEDENT
OWCP regulations on the recovery of overpayments provide that before collecting the
overpayment, it must provide the claimant with written notice of the fact and amount of the
overpayment, the finding of fault, the right to submit evidence challenging the fact, amount or
finding of fault and the right to request waiver of the overpayment.5 The regulations further
provide that a claimant may request a prerecoupment hearing with respect to an overpayment.6
Failure to request the prerecoupment hearing within 30 days shall constitute a waiver of the right
to a hearing.7 The only right to a review of a final overpayment decision is to the Board.8 The
hearing provisions of 5 U.S.C. § 8124(b) of FECA do not apply to a final overpayment decision.9
It is presumed, in the absence of evidence to the contrary, that a notice mailed to an
individual in the ordinary course of business was received by that individual. This presumption
arises when it appears from the record that the notice was properly addressed and duly mailed.10
The mailbox rule provides that proper and timely mailing of a document raises a rebuttable
presumption of receipt by the addressee. The Board has applied the mailbox rule to claimants
under FECA and to OWCP when it is established that the mailing was in the ordinary course of
the sender’s business practices. It serves as a tool for determining in the face of inconclusive
evidence, whether or not receipt has actually been accomplished. It is to facilitate the fact finder
in determining whether receipt of a document has occurred. However, as a rebuttable
presumption, receipt will not be assumed when there is evidence of nondelivery.11
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely. OWCP notified him of its preliminary determination that he received an
overpayment of compensation in a letter dated August 27, 2013. It informed appellant that he
could request a telephone conference, a prerecoupment hearing or a final decision based on the
written evidence within 30 days of the date of the letter. Appellant did not respond to the
August 27, 2013 preliminary determination within 30 days. On October 2, 2013 OWCP
finalized the overpayment determination and notified him that his only appeal right was with the
Board. Although the record contains an overpayment action request signed by appellant and
5

20 C.F.R. § 10.431 (2011).

6

Id. at § 10.432.

7

Id.

8

20 C.F.R. § 10.440(b); see H.K., Docket No. 11-543 (issued November 25, 2011).

9

Id.

10

Cresenciano Martinez, 51 ECAB 322 (2000).

11

M.U., Docket No. 09-526 (issued September 14, 2009).

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dated September 16, 2013, this was not received by the Branch of Hearings and Review until
October 17, 2013. The overpayment action request is specific as to the 30-day time limitation
and the method for requesting a prerecoupment hearing. It was not received until October 17,
2013, more than 30 days after OWCP’s notification of overpayment on August 27, 2013. The
30th day following issuance of the August 27, 2013 preliminary overpayment determination was
September 26, 2013.
In regard to the argument on appeal that the mailbox rule is applicable, counsel did not
begin representing appellant until September 27, 2013, more than 30 days after the preliminary
overpayment determination on August 27, 2013. He forwarded a copy of correspondence from
his office dated September 27, 2013 in which he noted that a prerecoupment hearing had been
requested. This, too, was not received by the Branch of Hearings and Review until
October 21, 2013. Counsel also forwarded a copy of an envelope from his office with a
postmark of September 28, 2013. The request for a prerecoupment hearing dated September 27,
2013, postmarked September 28, 2013 and mailed within the ordinary course of business by the
attorney, was untimely.
As provided in OWCP regulations, the request for a prerecoupment hearing was untimely
and appellant waived his right to a prerecoupment hearing.12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely.

12

20 C.F.R. § 10.432. The Board also notes that appellant did not timely file an appeal with the Board of the
final overpayment decision. For final adverse OWCP decisions issued on or after November 19, 2008, a claimant
has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(3) (2009); R.C., Docket No. 10-2371 (issued
July 14, 2011).

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ORDER
IT IS HEREBY ORDERED THAT the January 7, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 1, 2014
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
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___________________________________________ )
J.A., Appellant

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

Docket No. 14-1880
Issued: April 8, 2015

Case Submitted on the Record

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

JURISDICTION
On August 26, 2014 appellant filed a timely appeal from a May 28, 2014 Office of
Workers’ Compensation Programs’ (OWCP) merit 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.
ISSUE
The issue on appeal is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective September 22, 2013.
FACTUAL HISTORY
On July 5, 2012 appellant, then a 44-year-old production controller, injured her back,
when she reached down to pick up a pen that she dropped while sitting at her work desk. She
1

5 U.S.C. § 8101 et seq.

indicated that she felt an excruciating pain in her back and she fell out of her chair onto the floor
injuring her left knee. Appellant stopped work on the date of injury. OWCP accepted the claim
for aggravation of preexisting displacement of lumbar intervertebral disc without myelopathy,
aggravation of preexisting thoracic or lumbosacral neuritis or radiculitis, lumbar sprain, and left
leg and knee sprain. Appellant received appropriate benefits.
In a July 13, 2012 report, Dr. Stephen Wilson, a physiatrist and orthopedic surgeon, noted
examining appellant for injuries sustained in a July 5, 2012 incident. Appellant reported
continued lumbar spine and left knee pain with shooting pain into both legs. Dr. Wilson advised
that she had a lumbar spine injury on May 19, 2012 and that a magnetic resonance imaging
(MRI) scan taken on June 8, 2012 showed degenerative disc disease and a broad-based bulge at
L4-5 with mild impression on the anterior thecal sac. He stated that pain from this injury was
ongoing at the time of the July 5, 2012 fall. X-rays showed degenerative disc disease most
prominent at L5-S1. Left knee x-rays showed mild medial joint space narrowing and decreased
spacing of the patellofemoral joint. Dr. Wilson diagnosed lumbar spine sprain, left knee sprain,
and aggravations of lumbar spine disc bulge and radiculopathy. He opined that appellant was
totally disabled.
On December 28, 2012 OWCP referred appellant for a second opinion evaluation to
Dr. Dennis Foster, a Board-certified orthopedic surgeon. In a January 16, 2013 report, Dr. Foster
noted appellant’s history, including her preexisting lower back condition and seizure disorder.
He noted that lumbar spine x-rays were normal. Dr. Foster examined appellant’s lower back and
found minimal complaints of discomfort on deep palpation at the lumbosacral region. His
findings included that he found no spasm of the musculature, good range of motion, negative
straight leg raise and no neurological deficits. Dr. Foster explained that appellant had no
evidence of neuropathy or neurological deficit, no significant lumbar spine pain, normal range of
motion, and no evidence of any disabling problem relative to her lower back. He advised that
she stopped work on July 5, 2012 and that the aggravations of her lumbar disc displacement had
resolved. Dr. Foster opined that the accepted conditions of aggravation of lumbar disc
displacement, aggravation of lumbar neuritis/radiculitis, and lumbar and left knee sprain had
resolved. He found appellant capable of performing her regular duties and released her to full
duty.
In a January 17, 2013 addendum, Dr. Foster advised that the period of aggravation of
appellant’s preexisting lumbar radiculitis caused by the work injury had resolved. He explained
that he could find no evidence of any lumbar radiculitis, and while he could not specify the exact
period when it ceased, “there was no evidence of any continuing lumbar radiculitis at this point
in time.”
In a letter dated January 23, 2013, OWCP requested that the treating physician,
Dr. J. Arden Blough, Board-certified in family medicine and an associate of Dr. Wilson, review
the report of Dr. Foster and provide an opinion with regard to whether he agreed with the
findings.
In a January 31, 2013 report, Dr. Blough responded that he did not agree with the
findings and advised that appellant’s condition had not resolved and she was unable to return to
full duty. He diagnosed: lumbar sprain, lumbar disc displacement, and lumbar radiculopathy.

2

Dr. Blough opined that a functional capacity evaluation was needed to determine appellant’s
work capabilities and work restrictions.
In a February 1, 2013 report, Dr. Scott C. Robertson, a Board-certified neurosurgeon to
whom appellant was referred by Dr. Blough, advised that her lumbar problems were preexisting
and they may have been aggravated by her work but were not caused by her work. He advised
that physical examination of the lumbar spine revealed no obvious deformities and no acute
distress. On February 4, 2013 Dr. Blough examined appellant, noted diagnoses, and opined that
she was totally disabled.
In a February 8, 2013 report, Dr. Blough responded to OWCP’s January 23, 2013 letter.
He disagreed with Dr. Foster regarding whether there were objective findings on examination.
Dr. Blough advised that his physical examination of the lumbar spine revealed tenderness to
palpation over the paravertebral musculature with palpable trigger points, decreased range of
motion in all planes, positive straight leg raising on both sides, loss of sensation to monofilament
testing in the bilateral legs, and weakness demonstrated with resisted bilateral hip, knee, and
ankle flexion and extension, left greater than right.
Dr. Blough provided findings for the left knee which revealed: decreased range of
motion with flexion and extension, tenderness to palpation over the joint with crepitus and mild
active joint effusion, and negative Drawer and McMurray’s tests. He also disagreed with
Dr. Foster’s finding that the period of aggravation of lumbar spine displacement had resolved.
Dr. Blough explained that appellant continued to suffer from low back pain and disability.
Regarding left knee sprain resolution, Dr. Blough advised that appellant continued to
improve and was approaching maximum medical improvement. However, additional treatment
was warranted. Dr. Blough found appellant capable of some form of light-duty work activities,
but it was difficult to determine her functional capacity. He continued to treat her and provide
progress reports which indicated that she was disabled.2
On April 10, 2013 OWCP referred appellant, along with a statement of accepted facts and
the medical record, to Dr. Sami R. Framjee, a Board-certified orthopedic surgeon, for an
impartial medical evaluation to resolve the conflict in opinion between Drs. Blough and Foster
regarding the resolution of her accepted condition and work restrictions.
In a May 17, 2013 report, Dr. Framjee noted appellant’s history of injury and treatment.
Appellant informed Dr. Framjee that in May 2012 she had low back pain with pain in both legs.
She sought treatment and received an epidural steroid injection. On examination of the lumbar
spine, findings included normal lumbar lordosis, no acute tenderness on palpitation, negative
straight leg raise, and no neurological deficits on sensory examination. Dr. Framjee found a
marked show of effort when requested to undergo range of motion. Examination of the left knee
2

On February 19, 2013 appellant had lumbar discogram performed by Dr. Darryl Robinson, a Board-certified
physiatrist. In a March 1, 2013 report, Dr. Robertson reviewed her MRI scan results and x-rays and found some
mild early lumbar spondylosis and disc degeneration with an annular tear at L4-5. No significant compromises of
the spinal canal or nerve root impingement was noted. Dr. Robertson recommended physical therapy and an L4-5
anterior lumbar interbody fusion. On April 4, 2013 Dr. Martin Lopez, a Board-certified anesthesiologist, performed
a left lumbar facet injection at L4-5 and L5-S1.

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was essentially normal. Appellant had a negative Apley’s and McMurray’s test as well as full
extension to 130 degrees flexion. Dr. Framjee reviewed diagnostic testing and explained that the
discogram revealed the presence of degenerative disc disease at L2-3, L3-4, L4-5, and L5-S1
levels. He determined that appellant had a chronic history of low back pain that predated the
July 5, 2012 incident and found no evidence of any anatomical injury to the lumbar spine
secondary to the accident of July 5, 2012. Dr. Framjee found that the knee was normal on
examination. He opined that appellant’s symptoms were nonspecific in nature and that there
were no radicular symptoms on examination. Dr. Framjee explained that his examination of the
lumbar spine revealed good range of motion, a negative straight leg raise, no neurological
deficits of the right or left lower extremity, and the MRI scan of the lumbar spine was normal
and age-appropriate. He determined that the accepted aggravation of the preexisting lumbar disc
displacement, the aggravation of the preexisting lumbar radiculitis, and the accepted conditions
of lumbar strain/sprain and left knee sprain had resolved. Dr. Framjee opined that the lumbar
sprain should have resolved within three weeks postaccident, with the aggravation resolving by
that time and that the left knee sprain should have resolved within one week postaccident. He
further explained that appellant’s ongoing symptoms and treatment postaccident were not
suggestive of any new injury, but rather were primarily symptoms in continuity. Dr. Framjee
found that her continuing medical management was due to her preexisting low back condition.
He advised that no further medical care was needed.
On June 24, 2013 OWCP proposed to terminate appellant’s compensation as the weight
of the medical evidence, as represented by the report of Dr. Framjee, established that the
residuals of the work injury had ceased.
In a July 15, 2013 report, Dr. Blough advised that he disagreed with Dr. Framjee. He
opined that appellant’s low back, bilateral lower extremity radicular symptoms, and lumbar spine
symptoms would not improve substantially with additional treatment or surgery. Dr. Blough
explained that he had referred her for an updated lumbar MRI scan on July 10, 2013 which
revealed not only the previous posterocentral disc bulge at L4-5, but also an annular tear present
at the same level in addition to a new disc bulge at L3-4 with early left foraminal narrowing. He
opined that these new physical findings confirmed his opinion that appellant’s lumbar spine
injury was worsened resulting in a permanent aggravation of her previous lumbar bulge at L4-5
as well as the presence of a new disc bulge at L3-4 after her fall on July 5, 2012. Dr. Blough
explained that she was on pain medications that would cause a significant impediment while
performing her work-related duties. He found appellant unable to perform any type of work
requiring her to lift more than five to 10 pounds on a repetitive basis. Dr. Blough explained that
she was able to tolerate only 40 minutes of sitting, 20 minutes of standing, or 30 minutes of
walking, before developing increasing pain in her low back with radicular symptoms requiring a
rest period. He opined that her condition would continue for the next 12 months and
recommended medical retirement.
On August 14, 2013 OWCP requested clarification from Dr. Framjee with regard to the
MRI scan of July 10, 2013.
In an August 26, 2013 addendum, Dr. Framjee explained that the findings from the
July 10, 2013 lumbar MRI scan were not indicative of any injury secondary to the accident of
July 5, 2012 but rather primarily indicative of nonspecific, minor degenerative changes. He

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explained that appellant’s history, physical examination, review of medical records, and MRI
scan report did not suggest any evidence of any anatomical injury to the lumbar spine secondary
to the accident of July 5, 2012. Dr. Framjee explained that the work incident did not produce the
MRI scan findings as described in the July 10, 2013 report. He advised that a discogram was an
extremely controversial test and the mere presence of a concordant test did not constitute an
injury process secondary to the July 5, 2012 accident. Dr. Framjee opined that, based upon
appellant’s history and his physical examination and review of studies, it was his opinion that,
based on the accepted employment conditions, she could return to her normal work.
In a September 17, 2013 decision, OWCP terminated appellant’s compensation benefits,
effective September 22, 2013, based on the opinion of Dr. Framjee, which established that she no
longer had residuals of the accepted conditions.
On September 25, 2013 appellant’s representative requested a telephonic hearing, which
was held on March 13, 2014. In a January 3, 2014 report, Dr. Blough repeated his opinion that
appellant remained temporarily totally disabled and unable to work.
By decision dated May 28, 2014, the hearing representative affirmed the September 17,
2013 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 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.4
Section 8123(a) of FECA provides in pertinent part: “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 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the 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.6
ANALYSIS
OWCP accepted that appellant’s claim for aggravation of preexisting displacement of
lumbar intervertebral disc without myelopathy, aggravation of preexisting thoracic or
3

Curtis Hall, 45 ECAB 316 (1994).

4

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

5

5 U.S.C. § 8123(a).

6

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

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lumbosacral neuritis or radiculitis, lumbar sprain, and left leg and knee sprain.
received appropriate benefits.

Appellant

OWCP determined that there was a conflict in the medical opinion between Dr. Foster, an
OWCP referral physician, and Dr. Blough, an attending physician, regarding whether appellant
continued to have residuals of her July 5, 2012 work injury.7 In order to resolve the conflict, it
properly referred her, pursuant to section 8123(a) of FECA, to Dr. Framjee for an impartial
medical examination.8
In his May 17, 2013 report, Dr. Framjee advised that the left knee examination was
essentially normal. He noted diagnostic testing, which revealed lumbar degenerative disc
disease, and opined that appellant had a chronic history of low back pain that predated the
incident of July 5, 2012. There was no evidence of any anatomical injury to the lumbar spine
secondary to the July 5, 2012 injury. Dr. Framjee advised that appellant’s symptoms were
nonspecific in nature as she had no radicular symptoms on examination. He found good range of
motion of the lumbar spine, a negative straight leg raise, no neurological deficits in either leg,
and that an MRI scan of the lumbar spine was normal and age-appropriate. Dr. Framjee opined
that the accepted aggravation of the preexisting lumbar disc displacement, the aggravation of the
preexisting lumbar radiculitis and the accepted conditions of lumbar strain/sprain and left knee
sprain had resolved. He explained that the lumbar sprain should have resolved within three
weeks postaccident and that the left knee sprain should have resolved within one week
postaccident. Dr. Framjee further explained that her ongoing symptoms and treatment
postaccident were not suggestive of any new injury but rather were primarily symptoms in
continuity of preexisting conditions. He advised that no further medical care was needed.
After OWCP proposed to terminate her benefits, appellant submitted a July 15, 2013
report from Dr. Blough, who repeated his opinion that she remained disabled due to her work
injury. Dr. Blough referenced a July 10, 2013 lumbar MRI scan on which he found a new
annular tear and a new disc bulge at L3-4 with early left foraminal narrowing. He opined that
these new physical findings confirmed his opinion that the work injury appellant’s lumbar spine
permanently aggravated condition.
On August 14, 2013 OWCP requested a supplemental report from Dr. Framjee with
regard to the MRI scan of July 10, 2013.9 On August 26, 2013 Dr. Framjee explained that the
findings from the July 10, 2013 MRI scan were not indicative of any injury secondary to the
accident of July 5, 2012. He advised that it was primarily indicative of nonspecific, minor
degenerative changes. Dr. Framjee explained that appellant’s history, physical examination,
7

On January 16 and 17, 2013 reports Dr. Foster indicated that appellant’s accepted conditions had resolved. In
contrast, Dr. Blough indicated in January 31 and February 8, 2013 reports that he did not agree with Dr. Foster’s
conclusions and that appellant’s accepted conditions had not resolved and remained disabling.
8

See supra note 5.

9

Roger W. Griffith, 51 ECAB 491(2000) (when OWCP secures an opinion from an impartial medical specialist
for the purpose of resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, OWCP has the responsibility to secure a supplemental report from the specialist for the
purpose of correcting a defect in the original report).

6

review of medical records and MRI scan report did not suggest any evidence of anatomical
injury to the lumbar spine secondary to the accident of July 5, 2012. He further advised that the
mere presence of a condition on a discogram did not show an injury process secondary to the
accident of July 5, 2012. Dr. Framjee opined that, based upon appellant’s history and his
examination and review of studies, it was his opinion that, based on the accepted work condition,
she could return to her normal work.
The Board finds that Dr. Framjee’s opinion is well rationalized and represents the weight
of the medical evidence regarding appellant’s accepted conditions. Dr. Framjee provided a
thorough factual and medical history and accurately summarized the relevant medical evidence.10
Because appellant no longer has residuals or disability related to her accepted employment
condition, OWCP properly terminated entitlement to wage-loss compensation and medical
benefits effective September 22, 2013. Accordingly, OWCP’s decision to terminate her
compensation and medical benefits shall be affirmed.
OWCP received a January 3, 2014 report from Dr. Blough, who merely reiterated
previously stated findings and conclusions regarding appellant’s condition. As Dr. Blough had
been on one side of the conflict in the medical opinion, this report is insufficient to overcome the
special weight accorded the impartial specialist or to create a new medical conflict.11
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 met its burden of proof to terminate appellant’s benefits
effective September 22, 2013.

10

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

11

See Jaja K. Asaramo, 55 ECAB 200 (2004).

7

ORDER
IT IS HEREBY ORDERED THAT the May 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 8, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ybor City, FL, Employer
__________________________________________

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

Docket No. 19-1528
Issued: January 17, 2020

Case Submitted on the Record

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

JURISDICTION
On July 10, 2019 appellant filed a timely appeal from a June 10, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted April 13, 2019 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

FACTUAL HISTORY
On April 13, 2019 appellant, then a 60-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on that date, he was involved in a motor vehicle accident while in the
performance of duty. He claimed that this resulted in neck and low back pain with radiculopathy,
headache, pain in the mid-back and left shoulder, sleep disturbance, anxiety, and abrasion of the
left leg.
The employing establishment issued an authorization for examination and medical
treatment (Form CA-16). In an April 16, 2019 attending physician’s report, Part B of the Form
CA-16, a chiropractor with an illegible signature noted a history of injury that appellant was
involved in a motor vehicle accident. The chiropractor provided examination findings and
diagnosed chronic periodontitis, other cervical disc displacement, acute post-traumatic headache,
sacroilitis not elsewhere classified, and pain in the thoracic spine. The chiropractor checked a box
marked “yes” indicating that the diagnosed conditions were caused or aggravated by the described
employment activity. He also indicated that appellant was totally disabled from work from
April 15 through 22, 2019 and could resume regular work on April 22, 2019.
In an April 16, 2019 duty status report (Form CA-17), a chiropractor with an illegible
signature reiterated appellant’s history of injury, the prior diagnoses, and opinion on causal
relationship. The chiropractor provided an additional diagnosis of low back pain and noted that
appellant was unable to perform his regular work duties.
OWCP, in a development letter dated May 1, 2019, advised appellant of the deficiencies
of his claim, informed him of the type of medical and factual evidence needed, and provided a
questionnaire for his completion. Appellant was afforded 30 days to submit the necessary
evidence.
In an April 13, 2019 report, Dr. Lindsay A. Freeman, an emergency medicine physician,
noted a history of injury that on that date appellant was a restrained driver of a postal truck that
was struck on the front passenger side by a sport utility vehicle. She discussed physical
examination findings and reviewed diagnostic test results. Dr. Freeman diagnosed neck pain, and
acute pain of the left shoulder.
In a statement dated May 12, 2019, appellant responded to OWCP’s development
questionnaire. He noted that he was headed to lunch in a postal van at approximately 12:15 p.m.
at the time of the motor vehicle accident. Appellant reiterated that he sustained neck, back, left
shoulder, left, left leg, and headache injuries as a result of the April 13, 2019 motor vehicle
accident. He also claimed that he experienced pain in both knees, and a burning sensation and
numbness in his legs, arms, hands, and feet resulting from the accident.
April 13, 2019 discharge instructions from Tampa General Hospital indicated that
appellant was seen by Dr. Freeman on that date and was diagnosed with neck pain, and acute pain
of the left shoulder, following a motor vehicle accident.
In an April 15, 2019 patient information form, appellant again attributed his neck, back,
shoulders, and legs to the April 13, 2019 motor vehicle accident.

2

On April 18, 2019 Dr. Cecilio Torres-Ruiz, an internist, reported a history of injury that on
April 13, 2019 appellant was a restrained driver of a vehicle that was struck on the front right side
by another vehicle. He noted appellant’s chief complaints of pain in the cervical and lower back
regions, left leg wound and pain, and recurrent headaches. Dr. Torres-Ruiz provided a review of
systems, and discussed findings on physical examination. He provided impressions of pain in the
cervical, thoracic, and lumbar regions, left leg healed wound, and muscle spasm. Dr. Torres-Ruiz
opined that, based on appellant’s history and physical examination, his symptomatology was
directly attributed to the aforementioned motor vehicle accident. He indicated that his subjective
complaints correlated well with both the mode of injury and objective clinical findings.
Diagnostic testing reports dated April 24, 2019 were received from Dr. Heather Kahan, a
Board-certified diagnostic radiologist. In an April 24, 2019 lumbar spine magnetic resonance
imaging (MRI) scan, Dr. Kahan provided impressions of grade 1 retrolisthesis of L4 on L5, and a
broad-based bulging annulus and dorsal osteophytic ridging related to the spondylolisthesis defect
with compression on the thecal sac, disc desiccation, and moderate bilateral facet hypertrophy at
the L4-5 level. She also provided an impression of a three-millimeter left posterolateral disc
herniation extending into the left neural foramen with severe left-sided neural foraminal stenosis
and compression on the exiting left L5 nerve root. Dr. Kahan indicated that the herniated disc
material also compressed the left S1 nerve root. There was diffuse disc desiccation and asymmetric
hypertrophy of the left facet joint. There was also a small right-sided facet effusion.
In an April 24, 2019 cervical spine MRI scan report, Dr. Kahan provided impressions of:
straightening and reversal of the normal cervical lordosis consistent with marked torticollis/
cervical strain; a two-millimeter (mm) posterior osteophyte/herniated disc complex with
compression of the thecal sac, intervertebral disc space narrowing, dessiccation, and moderately
severe left-sided neural foraminal stenosis at the C3-4 level; a one-to-two-mm broad-based diffuse
posterior disc herniation with compression of the thecal sac and mild intervertebral disc space
narrowing at the C4-5 level; less than one-mm focal right paracentral disc herniation with
compression of thecal sac and visualization with a small annular tear/fissure at the C5-6 level; and
a one-to-two-mm broad-based left posterolateral/foraminal disc herniation resulting in severe leftsided neural foraminal stenosis with intervertebral disc space narrowing and visualization of a
small paracentral annual tear/fissure at the C6-7 level.
An April 15, 2019 diagnostic imaging report indicated that a cervical spine imaging study
performed on that day revealed ligament laxity, grade 1 anterolisthesis upon flexion at C2-3, and
grade 1 retrolisthesis upon extension at C4-5. The report also indicated that a lumbar spine
imaging study performed on even date revealed a deficient high pelvis.
By decision dated June 10, 2019, OWCP accepted that the April 13, 2019 employment
incident occurred as alleged, but denied the claim finding that the medical evidence submitted was
insufficient to establish a diagnosed medical condition causally related to the accepted
employment incident. It concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 and that an injury was sustained in the performance of duty as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.7 There are two
components that must be considered in conjunction with one another. The first component is
whether the employee actually experienced the employment incident that allegedly occurred.8 The
second component is whether the employment incident caused a personal injury.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background.11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition, and
appellant’s specific employment incident.12

3

Supra note 1.

4

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6

T.E., Docket No. 18-1595 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

10

S.S., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

11

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

Id.

4

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted April 13, 2019 employment incident.
In an April 13, 2019 report, Dr. Freeman noted a history of the accepted April 13, 2019
employment incident. She addressed physical examination findings and reviewed diagnostic test
results. Dr. Freeman diagnosed motor vehicle collision, initial encounter, neck pain, and acute
pain of the left shoulder. However, these reports do not contain a specific opinion as to the cause
of the diagnosed 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 relationship.13 These reports therefore are insufficient to establish appellant’s claim.
In an April 18, 2019 report, Dr. Torres-Ruiz noted a history of the accepted April 13, 2019
employment incident. He discussed findings on physical examination and provided impressions
of pain in the cervical, thoracic, and lumbar regions, left leg healed wound, and muscle spasm.
Dr. Torres-Ruiz opined that, based on appellant’s history and physical examination, his
symptomatology was directly attributable to the accepted work incident. He noted that his
subjective complaints correlated well with the mechanism of injury and objective clinical findings.
The Board has held that “pain” and “spasm” are symptoms and not diagnoses.14 As Dr. TorresRuiz did not diagnose an actual medical condition causing appellant’s symptoms, his report lacks
probative value and is insufficient to establish appellant’s claim.
The April 16, 2019 reports from a chiropractor offered an opinion on causal relationship
between appellant’s diagnosed periodontal, cervical, thoracic, and lumbar spine, headache, and
pelvis conditions and the accepted April 13, 2019 employment incident. However, chiropractors
are only considered physicians under FECA, and their reports considered medical evidence, to the
extent that they treat spinal subluxations as demonstrated by x-ray to exist, 5 U.S.C. § 8101(2).15
The Board finds that these submitted reports are of no probative value because the chiropractor
did not treat spinal subluxations as demonstrated by x-ray to exist.
Appellant also submitted diagnostic testing reports dated April 15 and 24, 2019. The
Board has held that diagnostic studies lack probative value as they do not address whether the

13

A.L., Docket No. 18-1756 (issued April 15, 2019); K.E., Docket No. 18-1357 (issued March 26, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018).
14

J.S., Docket No. 19-0863 (issued November 4, 2019); V.B., Docket No. 19-0643 (issued September 6, 2019).

15

Section 8101(2) of FECA provides that medical opinion, in general, can only be given by a qualified physician.
This section defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2). Section
8101(3) of FECA, which defines services and supplies, limits reimbursable chiropractic services to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and subject
to regulation by the Secretary. 5 U.S.C. § 8101(3). See H.K., Docket No. 19-0429 (issued September 18, 2019); K.J.,
Docket No. 18-1520 (June 13, 2019); Thomas W. Stevens, 50 ECAB 288 (1999); George E. Williams, 44 ECAB
530 (1993).

5

employment incident caused any of the diagnosed conditions.16 Such reports are therefore
insufficient to establish appellant’s claim.
As there is no well-reasoned medical opinion establishing causal relationship, the Board
finds that appellant has not met his burden of proof.17
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 and 20 C.F.R.
§§ 10.605 through 10.607.18
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted April 13, 2019 employment incident.

16
See F.D., Docket No. 19-0932 (issued October 3, 2019); B.C., Docket No. 18-1735 (issued April 23, 2019); J.S.,
Docket No. 17-1039 (issued October 6, 2017).
17

See F.D., id.; D.N., Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued
December 31, 2018).
18

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the June 10, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 17, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Hooks, TX, Employer
__________________________________________

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Appearances:
Benjamin Dennis, for the appellant
Office of Solicitor, for the Director

Docket No. 06-1948
Issued: February 13, 2007

Case Submitted on the Record

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

JURISDICTION
On August 21, 2006 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ nonmerit decision dated September 16, 2005 which denied his request
for reconsideration on the grounds that it was not timely filed and failed to establish clear
evidence of error. Because more that one year has elapsed from the last merit decision issued on
July 21, 2000 and the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board on appeal. The facts and conclusions as
set forth in the previous decisions are hereby incorporated by reference. To summarize the
pertinent facts, appellant was in an employment-related motor vehicle accident on August 2,

1996 which resulted in a lower back strain and facial lacerations. The Office accepted his claim.
On December 16, 1996 appellant filed a claim for a recurrence of disability alleging that, while
sitting at his desk on September 9, 1996, he leaned over to retrieve a pen and his back locked up.
On July 21, 2000 this Board affirmed Office decisions dated March, September 15 and
November 19, 1998 finding that appellant had failed to establish a recurrence of disability on
September 9, 1996 causally related to the accepted August 2, 1996 employment injury.1
Appellant requested reconsideration on February 25, 2003. The request was denied by the Office
in a decision dated November 7, 2003 on the grounds that appellant’s request was not timely
filed within one year of the last merit decision and appellant did not establish clear evidence of
error. This decision was affirmed by this Board on March 16, 2005.2
By letter received by the Office on July 19, 2005, appellant requested review of an
April 2005 decision. Appellant contended that he was making sufficient money prior to his
accident of August 2, 1996 to pay his bills. He also indicated that he was enclosing a copy of a
doctor’s report with regard to his health. Appellant attached an attending physician’s report by
Dr. Roshan L. Sharma, a Board-certified physiatrist, who indicated that he had chronic pain and
restricted lumbar range of motion. Dr. Sharma diagnosed herniated disc L3-4 and lumbar
radiculopathy. She checked a box on the form indicating that this condition was caused or
aggravated by appellant’s employment.
By decision dated September 16, 2005, the Office denied appellant’s request for
reconsideration as it was untimely filed and failed to establish clear evidence of error.
LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.3
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.4 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.5 The Office procedures state
that the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review shows clear

1

Docket No. 99-1143.

2

Docket No. 04-1721.

3

5 U.S.C. §§ 8101-8193. The Board has found that the imposition of the one-year limitation does not constitute
an abuse of the discretionary authority granted the Office under section 8128(a) of the Act. See Adell Allen
(Melvin L. Allen), 55 ECAB 390 (2004).
4

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

5

Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41
ECAB 964 (1990).

2

evidence of error on the part of the Office.6 In this regard, the Office will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.8 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.12 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.13 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.14
ANALYSIS
Appellant’s request for reconsideration was filed on July 19, 2005. Since he filed his
reconsideration request more than one year after the Board’s July 21, 2000 merit decision, the
Office properly determined that the request was untimely.15
The Board finds that appellant did not establish clear evidence error. The only new
evidence appellant submitted in support of his claim was an April 22, 2005 attending physician’s
6

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: The Office will consider an untimely
application for reconsideration only if the application demonstrates clear evidence of error on the part of it in its
most recent merit decision. The application must establish, on its face, that such decision was erroneous. 20 C.F.R.
§ 10.607(b).
7

See Nelson T. Thompson, 43 ECAB 919 (1992).

8

See Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

9

See Pasquale C.D. Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

10

See Leon J. Modrowski, supra note 5; Jesus D. Sanchez, supra note 5.

11

Leona N. Travis, supra note 9.

12

See Nelson T. Thompson, supra note 7.

13

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

14

See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon.
denied, 41 ECAB 458 (1990).
15

The Board’s decision, dated March 16, 2005, was not a decision on the merits.

3

report by Dr. Sharma, who checked a box indicating that appellant’s herniated disc L3-4 and
lumbar radiculopathy was causally related to appellant’s employment. However, Dr. Sharma did
not specifically relate appellant’s condition to the accepted August 2, 1996 automobile accident.
Furthermore, she does not provide a complete history and explanation with regard to appellant’s
medical condition. Accordingly, this report is not of sufficient probative value to prima facie
shift the weight of evidence in favor of appellant and cannot establish clear evidence of error.
CONCLUSION
The Board finds that appellant filed an untimely application for reconsideration and that
his application did not establish clear evidence of error on the part of the Office.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 16, 2005 is affirmed.
Issued: February 13, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Ana, CA, Employer
__________________________________________

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Appearances:
Chester J. Shelton, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1470
Issued: January 14, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 27, 2012 appellant, through her representative, filed a timely appeal from a
January 10, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her occupational disease claim and an April 20, 2012 nonmerit decision denying
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 claim.2
ISSUES
The issues are: (1) whether appellant has established that she sustained an injury in the
performance of duty as alleged; and (2) whether OWCP properly denied her request for further
merit review of her claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence with her appeal. The Board has no jurisdiction to review evidence for the
first time on appeal which was not before OWCP at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On March 1, 2010 appellant, then a 45-year-old mail processing clerk, filed an
occupational disease claim alleging neck and shoulder conditions due to the repetitive use in her
job. She first became aware of her condition and that it was caused or aggravated by her
employment on December 9, 2009. Appellant stopped work on December 12, 2009. In a
December 9, 2009 statement, she stated that her injury was due to sorting distribution mail,
sweeping manual mail and machine loading of mail for the delivery bar code sorter (DBCS).
Prior to December 4, 2009, appellant worked in the label room and on nixie mail. On
December 4, 2009, due to an error in her previous occupational disease claim, the employer sent
her to sort and sweep mail for approximately three to four hours before reassigning her to the
DBCS 14 where she put labels into the trays. On December 7, 2009 appellant had to load the
DBCS 14 which required constant standing, twisting, bending, movement of shoulders and neck
over the eight-hour shift. She noted that she did not work from May 9 until November 23, 2009
and that her previous injury of bilateral shoulder strain did not bother her during that time.
The employing establishment indicated that from December 4 to 12, 2009 appellant
worked the following hours: December 4, 2009, 4.97 hours; December 5, 2009, 6.5 hours;
December 6, 2009, 8 hours; December 7, 2009, 8 hours; December 8, 2009, 5.01 hours and
December 9, 2009, 3.89 hours. It noted that, under the prior bilateral shoulder injury claim,
OWCP No. xxxxxx224, appellant had worked in a modified capacity since 2003 until May 9,
2009, when she was sent home due to no work available under the National Reassessment
Process. The employing establishment noted that OWCP terminated her compensation under file
number xxxxxx224 as a second opinion evaluation found that she had no residuals of her injury
and was able to perform the full duties of a mail processing clerk. It stated that appellant did not
request light-duty accommodation when she returned to work.3
In a March 9, 2010 letter, OWCP requested additional factual and medical evidence from
appellant, including a comprehensive medical report from her treating physician which described
her condition and provided an explanation as to how such exposure caused or contributed to her
claimed conditions.
In a February 10, 2010 report, Dr. Edward Mittleman, a family practitioner, described
appellant’s work over the prior 13 years and her work restrictions from the prior claims that were
in effect until December 4, 2009. He noted that appellant did not work from May 9 to
November 23, 2009. Dr. Mittleman presented findings and noted a review of December 10,
2009 diagnostic studies of the cervical region and both shoulders. He stated that there were no
other medical records to review. Dr. Mittleman diagnosed bilateral supraspinatus tendinosis,
permanent aggravation of cervical degenerative joint disease and multilevel cervical disc
protrusions. He noted that appellant’s work involved activities which required her to twist, bend
3

Appellant has several claims with OWCP, including numbers xxxxxx224 and xxxxxx764. Under file number
xxxxxx224, she had an accepted bilateral shoulder strain with a date of injury of January 4, 2003. Due to this injury,
appellant worked with restrictions until May 9, 2009, when the employer was no longer able to accommodate her
limitations. On November 17, 2009 OWCP terminated her compensation benefits as the medical evidence
established no objective residuals of the January 4, 2003 injury. On May 18, 2010 OWCP’s hearing representative
affirmed the November 17, 2009 decision. Appellant returned to work on or about November 23, 2009. These other
claims of appellant are not before the Board in the present appeal.

2

her neck and use her upper extremities. The constant and frequent movement caused the
supraspinatus in each of the shoulders to become frayed “tendinosis” which caused pain and
limitation of motion of the arms, especially when raising above shoulder level. A similar
condition occurred in the neck by the soft tissues rubbing the facets of the cervical vertebra,
which irritated the vertebra to the development of degenerative joint disease. The frequent and
varied motions of the cervical area caused the outer lining of the cervical discs to become
weakened and protrude beyond their physiologic position. Dr. Mittleman opined that appellant’s
pathology and symptomatology arose from her duties as a mail processing clerk throughout her
15-year work history. He recommended treatment and set forth work restrictions. A
February 10, 2010 duty status report noted work restrictions.
By decision dated June 2, 2010, OWCP denied the claim on the grounds that causal
relationship was not established.
On July 7, 2010 appellant requested reconsideration. In a June 11, 2010 report,
Dr. Mittleman noted that he had reviewed the September 25, 2009 report of Dr. Peirce Conatly,
the second opinion physician whom OWCP relied upon in terminating benefits in case number
xxxxxx224. He noted that appellant worked 13 years for the employer as a clerk. Appellant
worked on a machine that required constant lifting of heavy mail, constant raising of her arm
above the shoulder level and constant movement of her neck. Dr. Mittleman disagreed with
Dr. Conatly’s opinion on several points. He stated that appellant had returned to full duty and
subsequently developed significant shoulder symptomatology from repeated heavy lifting of mail
and constant elevation of her arm above the shoulder level. Dr. Mittleman opined that this
activity caused the bilateral supraspinatus tendinosis. He noted that the findings contained in his
February 10, 2010 report showed multiple disc protrusions and multiple levels of degenerative
changes. Dr. Mittleman explained how the frequent movement of appellant’s head required by
repetitive motion activities at work led to osteoarthritis and explained how the repetitive trauma
as well as other types of repetitive impulse loading would cause or accelerate the development of
joint degeneration, including repetitive lifting, repetitive movements and awkward working
postures. He noted that appellant had endured these activities for over 13 years. After
Dr. Conatly released appellant to full and unrestricted work activities, she returned to
Dr. Mittleman’s office with bilateral shoulder and neck symptomatology along with objective,
radiologic findings. He opined that appellant’s pathology caused by her work activities resulted
in her present symptomatology. Copies of the December 10, 2009 magnetic resonance imaging
(MRI) scans of the cervical spine and shoulders were included.
By decision dated October 5, 2010, OWCP denied modification of the June 2, 2010
decision. It found that the medical evidence lacked a complete factual background of appellant’s
employment in the current case as it related to the medical condition.
On February 9, 2011 appellant requested reconsideration. In a November 2, 2010 report,
Dr. Mittleman reiterated his opinion that appellant’s work activities resulted in multilevel
cervical disc protrusions and permanent aggravation of cervical degenerative joint disease. He
stated that working on the DBCS machine or stacker from 1999 to 2007 and on the small parcel
bundle sorter machines from June 2004 until February 2009 resulted in constant repetitive
trauma that caused biological changes in the facets of the cervical vertebra. The loading of
repetitive motions and constant nonphysiologic, backward motion, produced tremendous stresses
upon the intervertebral discs, causing them to extend beyond their normal physiologic position or
3

result in a bulge/protrusion/herniation. Dr. Mittleman reiterated the constant cervical motion
weakened the annulus fibrosis allowing the multiple herniations noted on MRI scan.
By decision dated May 2, 2011, OWCP denied modification of its previous decisions.
On October 27, 2011 appellant requested reconsideration. In an October 25, 2011 report,
Dr. Mittleman stated that, when appellant was examined by Dr. Brown on December 9, 2009, he
related that appellant did not work from May 9 until November 24, 2009 and that she resumed
work at that time and was currently working an eight-hour day. He acknowledged that appellant
returned to work on November 24, 2009 and was working when filing her claim on
December 9, 2009. Dr. Mittleman discussed the activities of a mail processing clerk, working on
the DBCS machine, the movement of the shoulders and the effects of such movements on the
rotator cuff. He opined that the supraspinatus tendon became inflamed (tendinitis) from the
repetitive motions required by the activities described and performed by appellant.
Dr. Mittleman further noted that the persistent and repetitive motions of the cervical spine
weakened the outer layer of the intervertebral disc (nucleus fibrosus) and, when the fibers start to
separate from this repetitive biomechanical impact loading, the intervertebral disc is no longer
able to be maintained within its physiologic position which allowed the disc to herniate as seen at
multiple levels on the cervical MRI scan.
By decision dated January 10, 2012, OWCP denied modification of its prior decision.
On January 18, 2012 appellant requested reconsideration. Duplicative copies of the
December 13, 2009 diagnostic reports were received along with a January 18, 2012 letter from
appellant and her representative. In the letter, appellant referenced the prior claim, file number
xxxxxx224, and noted that OWCP did not have all the pertinent information available when it
terminated appellant’s compensation benefits. She argued that the prior claim should be
combined into one claim and that the accepted conditions should be upgraded per the diagnostic
reports.
By decision dated April 20, 2012, OWCP denied appellant’s reconsideration request
without a merit review.
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 and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5

4

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

5

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

4

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
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.6 Neither the fact that appellant’s condition became apparent during a
period of employment nor, her belief that the condition was caused by her employment is
sufficient to establish a causal relationship.7
ANALYSIS -- ISSUE 1
Appellant alleged that her neck and bilateral shoulder conditions were caused and/or
aggravated by her federal employment beginning after her return to work around November 23,
2009 and for which she became aware on December 9, 2009. She stopped work completely on
December 9, 2009. The factual evidence, including appellant’s statement, supports that from
November 24 through December 4, 2009 appellant worked in the label room and on nixie mail.
Beginning December 4, 2009, she swept mail for three to four hours and was reassigned to a
DBCS for the remainder of her eight-hour work shift. From December 4 through 9, 2009,
appellant worked eight-hour work shifts only on December 6 and 7, 2009 and, as noted, worked
less than eight hours on other dates before stopping completely. The record indicates that
appellant worked for the employing establishment approximately 13 years and that she worked
modified duty with restrictions from 2003 until May 5, 2009 under file number xxxxxx224,
which was accepted for bilateral shoulder strain and formally terminated by OWCP in a
November 17, 2009 decision.8
OWCP denied the current claim on the grounds that the medical evidence failed to
demonstrate that the claimed medical condition was causally related to the established workrelated events.
6

Victor J. Woodhams, 41 ECAB 345 (1989).

7

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

8

This appeal pertains only to the new occupational injury claim appellant filed on March 1, 2010 for claimed
conditions beginning after her return to work on about November 23, 2009, of which she first became aware on
December 9, 2009. This is the claim that OWCP denied in the decisions noted infra and which appellant appealed
to the Board. See 20 C.F.R. § 501.2(c). If appellant wishes to pursue matters pertaining to her other claims, she
should contact OWCP regarding those other claims.

5

In support of her claim, appellant submitted several reports from Dr. Mittleman.
However, Dr. Mittleman’s reports fail to explain how the specific established work factors for
the period November 24 through December 9, 2009 caused a new occupational disease or
aggravated her preexisting conditions based on an accurate factual and medical history. He
submitted reports dated February 10, June 11 and November 2, 2010 and October 25, 2011.
Dr. Mittleman opined that appellant had bilateral supraspinatus tendinosis, permanent
aggravation of cervical degenerative joint disease and multilevel cervical disc protrusions as a
result of work activities. He discussed the effects of the movements on the body required by the
work activities as well as the physiologic changes of such movements with regard to appellant’s
conditions. However, Dr. Mittleman appeared to base his opinion that appellant’s conditions
were caused by her employment over her 13 years of employment and on the basis that she
performed the described activities on a persistent and repetitive basis. The present claim,
however, involves work activities and conditions arising on and after November 23, 2009, when,
as noted, appellant worked only a limited number of hours and days. The factual evidence does
not document the extensive type of duties noted by Dr. Mittleman from November 24 through
December 9, 2009. As noted, appellant did not work after May 5, 2009 until she returned to
work around November 23, 2009. Dr. Mittleman failed to explain how the specific work
activities appellant experienced from about November 23 through December 9, 2009 caused a
new condition or affected her preexisting conditions. Thus, his opinion is entitled to little
probative value. The Board notes that, while Dr. Mittleman took issue with a medical opinion in
file number xxxxxx224, file number xxxxxx224 is not presently before the Board.
Other medical reports and reports of diagnostic testing are insufficient as they either do
not pertain to the present claim or contain no opinion on causal relation in the current claim. 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
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a neck or shoulder condition causally related to work factors in
the present claim. Appellant did not meet her burden of proof.
On appeal, appellant contends that she submitted sufficient medical evidence to establish
her occupational disease claim. While the factual evidence is sufficient to establish her work
duties when she returned to work on or about November 23, 2009, the medical evidence is not
sufficiently rationalized to establish her claim. Appellant’s arguments appear to stem out of
disagreements with OWCP’s termination decision under file number xxxxxx224, over which the
Board has no jurisdiction.10
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.

9

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).
10

See supra note 8.

6

LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128 of FECA,11
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.12 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.13 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
ANALYSIS -- ISSUE 2
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 claim.
On January 18, 2012 appellant requested reconsideration. Duplicative copies of the
December 13, 2009 diagnostic reports were received along with a January 18, 2012 letter from
appellant and her representative. In the letter, appellant referenced the prior claim, file number
xxxxxx224, and noted that OWCP did not have all the pertinent information available when it
terminated her compensation benefits. She argued that the prior claim should be combined into
one claim and that the accepted conditions should be upgraded per the diagnostic reports.
In the January 18, 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 that the prior claim should be combined into one
claim and that the accepted conditions should be upgraded does not show that OWCP
erroneously applied or interpreted a specific point of law as these matters generally pertain to a
prior claim and are not relevant to the present claim. The underlying issue in this case was
whether appellant established a condition causally related to her work duties from the period
November 23 through December 9, 2009. That is a medical issue which must be addressed by
relevant medical evidence.14
Appellant did not submit any new and relevant medical evidence. Appellant submitted
duplicative copies of the December 13, 2009 diagnostic reports. Material which is duplicative of
that already contained in the case record does not constitute a basis for reopening a case.15 In
this case, appellant did not submit any new and relevant medical evidence supporting causal
relationship.
11

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
12

20 C.F.R. § 10.606(b)(1)-(2).

13

Id. at § 10.607(a).

14

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

15

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

7

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 neck and shoulder conditions in the performance of duty, as alleged. OWCP properly
denied her request for reconsideration without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the April 20 and January 10, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 14, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Vancouver, WA, Employer
__________________________________________
Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

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Docket No. 11-1132
Issued: March 12, 2012

Case Submitted on the Record

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

On April 6, 2011 appellant, through his representative, filed an application for review of
the Office of Workers’ Compensation Programs’ decision dated February 7, 2011. In the
February 7, 2011 decision, a hearing representative affirmed an OWCP decision dated June 7,
2010 which granted appellant a schedule award for 31 percent permanent impairment of the right
leg.1 The appeal was docketed as 11-1132.
On April 8, 2011 the Board served the Director of OWCP with a copy of the application
for review and requested the Director to transmit the case records in OWCP File No. xxxxxx441
to the Board in accordance with the Board’s Rules of Procedure.2 On May 25, 2011 the Director
forwarded the case record to the Board, which consisted of 248 imaged documents in File
No. xxxxxx441 along with subsidiary claim files.

1

Appellant has prior work-related knee injuries including a motor vehicle injury which occurred on May 27, 1966
and was accepted for tenderness in the neck, left shoulder, left elbow and right knee, File No. xxxxxx251; on
August 15, 1966, appellant sustained a right knee injury when he fell down steps which was accepted for tear of the
medial meniscus of the right knee and underwent authorized arthrotomy and medial meniscectomy of the right knee
on April 17, 1967 and November 24, 1967, File No. xxxxxx200; and on August 13, 1967, appellant injured his right
knee when exiting a mail truck which was accepted for sore right knee, File No. xxxxxx392. These claims were
consolidated with the current claim before the Board.
2

20 C.F.R. § 501.4.

The Board has duly considered the matter and notes that the Director has not forwarded the
complete contents of appellant’s case record for review by the Board. OWCP accepted appellant’s
claim for arthritis of the right knee and authorized a total right knee replacement which was
performed by Dr. David A. Cortese on February 6, 2009. On February 16, 2010 appellant filed a
claim for schedule award. He submitted April 19 and April 26, 2010 reports from Dr. Donald
Tilson who reviewed Dr. Cortese’s February 6, 2009 surgical report and opined that appellant had
59 percent left leg impairment. In a May 11, 2010 report, an OWCP medical adviser opined that
appellant had 31 percent permanent impairment of the right leg. The medical adviser noted that
appellant underwent a total knee replacement on February 6, 2009 and classified appellant’s
impairment based on a total knee replacement. On June 7, 2010 OWCP found that appellant had
31 percent impairment of the right leg. As appellant previously received a schedule award for 16
percent impairment of that leg, he was entitled to an additional schedule award for 15 percent
impairment based on the February 6, 2009 total right knee replacement. On February 7, 2011 a
hearing representative affirmed OWCP’s decision. The hearing representative noted the
February 6, 2009 total knee replacement and noted that appellant was granted a schedule award
based on the knee replacement and poor results from the surgery. However, the record transmitted
to the Board does not include, inter alia, Dr. Cortese’s February 6, 2009 operative report which is
one of the bases of OWCP’s impairment determination. The Board, therefore, finds that the appeal
docketed as No. 11-1132 is not in posture for a decision as the Board is unable to render an
informed adjudication of the case. The case must be remanded to OWCP for reconstruction and
proper assemblage of the case record and an appropriate merit decision issued on appellant’s
claim in order to preserve his appeal rights.
IT IS HEREBY ORDERED THAT the February 7, 2011 Office of Workers’
Compensation Programs’ decision in appeal No. 11-1132 be set aside and the case remanded for
further action consistent with this order of the Board.
Issued: March 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2