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

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Appearances:
Joanne Wright, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0873
Issued: January 27, 2020

Case Submitted on the Record

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

JURISDICTION
On March 19, 2019 appellant, through counsel, filed a timely appeal from an October 10,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated March 15, 2018, to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the October 10, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 11, 1997 appellant, then a 31-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she hurt her lower back when she lifted a bucket out
of the back of her mail truck while in the performance of duty. She worked limited duty with
restrictions. OWCP accepted appellant’s claim for lumbar sprain, herniated nucleus pulposus
(HNP) at L5-S1, and displacement of lumbar intervertebral disc without myelopathy. On July 21,
1999 appellant underwent a microsurgical discectomy at L5-S1 with a hemilaminotomy. She
stopped work and OWCP paid wage-loss compensation for total disability on the daily rolls
beginning July 19, 1999. On September 24, 2010 appellant returned to work in a full-time,
limited-duty capacity.4
Appellant continued to receive medical treatment. In a May 15, 2014 report, Dr. Lichtblau
indicated that appellant was evaluated for complaints of continued flare-ups of chronic low back
pain. Upon examination of appellant’s lumbar spine, he observed tenderness to light palpation
along her lumbar paraspinal muscles. Dr. Lichtblau listed diagnoses of HNP at L5-S1, secondary
to injuries sustained in a work-related September 19, 1997 accident, history of recurrent HNP at
L5-S1, status post microdiscectomy at L5-S1, status post anterior cervical discectomy and fusion
at L5-S1 on July 21, 1999, history of L5-S1 radiculopathy, history of lumbar myofascial pain
syndrome, history of postoperative changes at her L5-S1 spinal level bilaterally with neural
foraminal narrowing and an annual tear, history of chronic left L4 and L5 radiculopathy, history
of bulging disc at L3-4, history of broad-based disc protrusion at L4-5, and history of mild grade
1 retrolisthesis with spondylolytic bulge and central canal stenosis at L5-S1. He indicated that
appellant was able to continue to work with restrictions.
On August 12, 2014 appellant was treated in a hospital emergency department and
submitted hospital records by Dr. Steven Bradley Keehn, an osteopathic physician specializing in
emergency medicine. Dr. Keehn recounted that on that day appellant was bending over doing
dishes when she hurt her lower back. He noted appellant’s history of chronic back pain and
reported examination findings of decreased range of motion, midline tenderness, and muscle
spasm of the lumbar spine. Dr. Keehn indicated impressions of status post anterior fusion of the
L5-S1 space, and grade 1 retrolisthesis L5 and S1.
An August 12, 2014 lumbar spine computerized tomography (CT) scan report revealed
status post anterior fusion at L5-S1 disc space and grade 1 retrolisthesis unchanged from prior
study.
In an August 19, 2014 report, Dr. Lichtblau recounted that approximately one week ago,
appellant bent over to get something from the dishwasher when she felt a severe, sharp pain in her
4
In a March 30, 2000 functional capacity evaluation report, Dr. Craig H. Lichtblau, Board-certified in physical
medicine and rehabilitation, indicated that appellant could work full time with restrictions of lifting up to 50 pounds
infrequently and 25 pounds frequently, no kneeling, squatting, running, or jumping, and ability to take breaks in order
to change positions as needed.

2

lower lumbar region. He conducted an examination and indicated that appellant was excused from
work for the next two weeks. Dr. Lichtblau also completed an attending physician’s report (Form
CA-20) and duty status report (Form CA-17), which noted the September 11, 1997 work-related
injury and diagnoses of HNP at L5-S1, status post lumbar fusion at L5-S1, and status post dorsal
column stimulator.
On August 27, 2014 appellant began physical therapy treatment and submitted several
physical therapy treatment notes.
In an October 1, 2014 report, Dr. Jason Billinghurst, a Board-certified orthopedic surgeon,
related appellant’s complaints of back pain. He reviewed appellant’s history and noted lumbar
examination findings of decreased ROM.
Dr. Billinghurst diagnosed lumbago and
thoracic/lumbar radiculitis. He indicated that appellant continue working light duty.
In reports dated October 14, 2014 to January 29, 2015, Dr. Lichtblau indicated that
appellant was working four hours a day secondary to her “exacerbated low back pain.” He
conducted an examination and listed his diagnostic impressions similar to his May 15, 2014 report.
Dr. Lichtblau recommended that appellant continue working with restrictions. In January 22 and
29, 2015 reports, he noted that appellant had been able to work five hours per day. Dr. Lichtblau
indicated that appellant could continue working with restrictions up to five hours per day.
In a January 26, 2015 progress note and state workers’ compensation form, Dr. David R.
Campbell, a Board-certified orthopedic surgeon, discussed appellant’s history of injury and noted
lumbar examination findings of tenderness to palpation and restricted extension and flexion. He
diagnosed lumbago, spasm of muscle, thoracic or lumbosacral radiculitis, degeneration of
lumbosacral intervertebral disc, and lumbosacral spondylosis without myelopathy. Dr. Campbell
reported that appellant could continue working with restrictions.
In reports dated February 16 to March 4, 2015, Dr. Lichtblau related appellant’s complaints
of continued lower back pain and recommended that appellant remain out of work until
February 26, 2015 due to an exacerbation. In a March 4, 2015 progress note, he related that
appellant had been out of work secondary to an “acute exacerbation of pain.”
Appellant underwent additional diagnostic testing, including a March 31, 2015 lumbar
spine magnetic resonance imaging scan, which showed interbody hardware at L5-S1 and L4-5 mid
disc bulge with annular tear and no significant canal stenosis and an April 2, 2015 lumbar spine xray scan, which revealed postsurgical changes at L5-S1.
In progress notes dated April 3 and 7, 2015, Dr. Campbell conducted an examination and
diagnosed thoracic or lumbosacral neuritis, lumbago, muscle spasms, and displacement of lumbar
intervertebral disc without myelopathy.
In reports dated May 5 to July 17, 2015, Dr. Lichtblau reviewed appellant’s recent
diagnostic testing and related her complaints of continued chronic low back pain. He noted that
appellant had been out of work since February 2015 due to chronic low back pain.
On August 19, 2015 appellant underwent lumbar fusion and decompression surgery by
Dr. Campbell.

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On October 12, 2015 appellant filed a claim for compensation (Form CA-7) for total
disability for the period August 13 through September 26, 2014. On the subsequent time analysis
form (Form CA-7a), she reported that she used eight hours of leave without pay (LWOP) from
August 13 to September 6, 2014 and from September 9 to 18, 2014. Appellant noted that she
worked for approximately four hours and used LWOP for approximately three hours on
September 8, 22, 23, 24, and 25, 2014. She indicated that she was “out because of back.”
Appellant submitted an emergency department certificate of treatment signed by an
unknown provider, which indicated that appellant was treated in the emergency room on
August 12, 2014 and was advised to return to light-duty work.
In an August 19, 2014 handwritten prescription note, Dr. Lichtblau recommended that
appellant be excused from work for two weeks due to a “severe exacerbation of lumbar pain.”
Appellant filed additional CA-7 forms for continuing disability from September 27, 2014
to February 10, 2015. In the CA-7a form dated October 21, 2015, she noted that she worked for
approximately four to five hours and claimed LWOP for the remaining hours. Appellant indicated
that her reason for using leave was “limited duty.” She reported that she used eight hours of LWOP
on October 28 and 29, 2014, from November 5 to 8, 2014, on December 2, 18, 19, and 29, 2014,
and on January 26 and 27, 2015. In the November 3, 2015 CA-7a form, appellant claimed eight
hours of LWOP for total disability beginning February 11, 2015. She noted her reason for leave
use was “out due to back waiting on surgery.”
In a November 13, 2015 development letter, OWCP informed appellant that it had received
her claims for a recurrence of disability beginning August 13, 2014. It informed her that the
evidence of record was insufficient to establish that she was unable to work full-time, limited duty
during the claimed period and advised her of the type of medical and factual evidence needed to
establish her recurrence of disability claim. OWCP afforded appellant 30 days to submit the
requested information.
In a November 23, 2015 examination report, Dr. Lichtblau noted that appellant was out of
work since her surgery.
In a December 15, 2015 report, Dr. Campbell conducted an examination and indicated that
appellant could work part time beginning January 2016.
On January 5, 2016 appellant accepted a part-time, limited-duty job offer as a modified
city letter carrier working four hours per day.
In a January 7, 2016 report, Dr. Lichtblau reviewed appellant’s history and conducted an
examination. He indicated that appellant could continue working four hours per day.
In a January 15, 2016 report, Dr. Campbell noted appellant’s complaints of continued low
back pain and left lower leg discomfort. He indicated that appellant was tolerating work for four
hours per day.
On January 19, 2016 OWCP received appellant’s completed questionnaire form.
Appellant explained that on August 12, 2014 her back went out when she was putting a spoon in
the dishwasher. She noted that she was told a few days later that her back went out because the
4

fusion surgery that she had in the 1990s had failed. Appellant related that she stayed home for one
month before returning to part-time, limited-duty work for four hours per day.
By decision dated January 26, 2016, OWCP denied appellant’s recurrence claim
commencing August 12, 2014. It found that the medical evidence submitted was insufficient to
establish that she was disabled due to a material change/worsening of her employment-related
conditions as a result of her accepted September 11, 1997 employment injury.
On February 23, 2016 appellant requested a hearing before an OWCP hearing
representative. A telephonic hearing was held on October 6, 2016.
Appellant submitted additional reports from Dr. Lichtblau dated January 28 to
November 7, 2016. Dr. Lichtblau related appellant’s complaints of continued, intermittent lower
back pain and noted that appellant was working light duty for four hours per day.
On April 14 and 18, 2016 appellant filed CA-7 forms for wage-loss compensation for the
period September 1, 2015 to January 29, 2016. In the Form CA-7a, she claimed eight hours of
LWOP until January 4, 2016 and noted that she was recovering from back surgery. Appellant
indicated that on January 5, 2016 she returned to work part time for four hours per day and claimed
wage-loss compensation for the remaining hours.
In an October 18, 2016 letter, Dr. Lichtblau reviewed the history of injury and noted that
appellant underwent L5-S1 spinal fusion surgery on July 21, 1999. He explained that, after
returning to limited-duty work, appellant experienced “recurrent, acute intermittent exacerbations”
of pain and discomfort and would miss work. Dr. Lichtblau recounted that in August 2014
appellant had an “episode of exacerbated, increased pain” after bending over. He indicated that a
lumbar spine CT scan showed a failed fusion lumbar surgery at L4-S1. Dr. Lichtblau opined that
appellant’s intermittent episodes of “chronic pain and discomfort” over the years was secondary
to her failed fusion. He concluded that appellant’s complaints of pain and duress were a direct
result of the September 19, 1997.
In a December 8, 2016 decision, an OWCP hearing representative affirmed the January 26,
2016 decision.
OWCP received medical reports and forms from Dr. Lichtblau dated December 12, 2016
to September 19, 2017, regarding his treatment of appellant for continued complaints of achiness
and pain along her lower back. Dr. Lichtblau indicated that appellant was currently working parttime limited duty for five hours per day.
In a May 25, 2017 addendum letter, Dr. Lichtblau reported that appellant had developed
adjacent segment disease over time after her initial September 19, 1997 surgery. He explained
that Dr. Billinghurst had noted that appellant had a “nonunion of her fusion.” Dr. Lichtblau
clarified that on August 12, 2014 appellant sustained an exacerbation of her preexisting lumbar
myofascial pain when she bent over in the kitchen, but the bending over did not cause the nonunion
or the adjacent segment disease. He further explained that adjacent segment disease is a condition
in which a patient showed relief of symptoms for a period of time and then developed new
symptoms over time. Dr. Lichtblau reported that appellant had temporary total disability and other
related symptoms, such as increased pain and nerve root irritation, as a result of the development

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of her adjacent segment disease. He included medical literature regarding the development of
adjacent segment degeneration of the lumbar spine.
In an October 11, 2017 decision, OWCP denied modification of the December 8, 2016
hearing representative’s decision.
Appellant submitted additional medical reports from Dr. Lichtblau dated October 17 to
December 19, 2017. In an October 17, 2017 report, Dr. Lichtblau related that appellant had
informed him that she had missed the past few days of work due to an acute spasms and
exacerbation of low back pain. In a November 16, 2017 report, he noted that appellant had
increased her work week to six hours per day. Appellant also resubmitted Dr. Lichtblau’s
March 10 and May 25, 2017 letters.
In a January 8, 2018 letter appellant, through her union representative, requested that the
acceptance of appellant’s claim be expanded to include adjacent segment disease. By decision
dated March 15, 2018, OWCP denied expansion of appellant’s claim to include adjacent segment
disease as causally related to her accepted September 11, 1997 employment injury.
OWCP received additional medical reports, CA-17 forms, and CA-20 forms from
Dr. Lichtblau dated January 16 to August 14, 2018. He indicated that appellant continued to have
good and bad days, depending on her level of activity. Dr. Lichtblau noted his examination
findings and listed his diagnostic impressions similar to his previous reports. In a May 21, 2018
CA-17 and CA-20 forms, he indicated that appellant could work limited duty. In a July 17, 2018
report, Dr. Lichtblau opined that appellant could not have sustained adjacent segment disease from
bending over in her kitchen in August 2014.
On September 21, 2018 appellant, through her representative, requested reconsideration of
the October 11, 2017 decision denying appellant’s recurrence claim.
Appellant submitted a September 13, 2018 report by Dr. Lichtblau. Dr. Lichtblau noted
no overall significant change in appellant’s condition and recounted her complaints of intermittent
low back pain. He indicated that appellant was working six hours per day on average, and up to
eight hours per day depending on her level of low back pain. Dr. Lichtblau noted lumbar
examination findings and listed his diagnostic impressions.
In an October 10, 2018 decision, OWCP denied appellant’s request for reconsideration of
the merits of the claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.5

5
5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

6

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.8 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant disagreed with the October 11, 2017 decision and timely requested
reconsideration on September 21, 2018. The underlying issue is whether appellant has met her
burden of proof to establish a recurrence of total disability commencing August 12, 2014. This is
a medical question. Thus, the Board must determine if appellant presented sufficient evidence or
argument regarding causal relationship to warrant a merit review pursuant to 5 U.S.C. § 8128(a).10
In her September 21, 2018 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, nor did she advanced a new and relevant
legal argument not previously considered. Consequently, she was not entitled to a review of the
merits based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).11
Along with her reconsideration request, appellant submitted medical evidence not
previously considered by OWCP. In reports dated October 17, 2017 to September 13, 2018,
Dr. Lichtblau noted appellant’s ongoing lumbar back symptoms and recounted that she had good
and bad days, depending on her level of activity. He noted his examination findings and listed his

6

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
7

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the integrated Federal Employees’ Compensation System. Chapter 2.1602.4b.
8

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

9

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

10

S.W., Docket No. 18-1261 (issued February 22, 2019); S.V., Docket No. 17-2012 (issued October 18, 2018).

11

20 C.F.R. § 10.606(b)(3)(i), (ii); T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583
(issued December 9, 2008).

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diagnostic impressions. In a July 17, 2018 report, Dr. Lichtblau opined that appellant could not
have sustained adjacent segment disease from bending over in her kitchen in August 2014.
The Board finds that Dr. Lichtblau’s reports did not include any discussion regarding
whether appellant sustained a recurrence of disability beginning August 12, 2014 due to her
accepted September 11, 1997 employment injury. Dr. Lichtblau did not otherwise address
appellant’s inability to work during the claimed period of disability. The Board notes that the
submission of evidence that does not address the particular issue involved does not constitute a
basis for reopening a case. As appellant did not submit any medical evidence to establish that she
sustained a recurrence of disability on August 12, 2014 causally related to her accepted
September 11, 1997 employment injury, she is not entitled to further merit review under the third
requirement of 20 C.F.R. § 10.606(b)(3).
On appeal counsel asserted that Dr. Lichtblau provided a rationalized medical opinion that
appellant sustained a recurrence of disability causally related to the September 11, 1997
employment injury. As explained above, however, the Board lacks jurisdiction to review the
merits of the claim. The only decision properly before the Board on this appeal is the October 10,
2018 nonmerit decision, which denied appellant’s request for further merit review.
As appellant’s request for reconsideration did not meet any of the three requirements
enumerated under 20 C.F.R. § 10.606(b)(3), the Board finds that OWCP properly denied her
request for reconsideration without reopening the case for review on the merits.12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).

12

R.C., Docket No. 17-0595 (issued September 7, 2017); M.E., 58 ECAB 694 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the October 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 27, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
U.S. POSTAL SERVICE, MOUNT OLIVER
POST OFFICE, Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 19-0053
Issued: April 4, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 9, 2018 appellant filed a timely appeal from a September 13, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from the last merit decision, dated October 25, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 11, 2017 appellant, then a 46-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his mid back when his vehicle was struck
from the rear while he was in the performance of duty. He did not stop work.
In support of his claim, appellant submitted a physician work activity report dated
September 11, 2017 by Rebecca A. Fillipin, a physician assistant, who diagnosed a sprain of
unspecified ligament of the right ankle, headache, and strain of muscle and tendon of unspecified
wall of thorax.
Ms. Fillipin released appellant to return to work regular duty on
September 12, 2017.
In a development letter dated September 20, 2017, OWCP notified appellant of the
deficiencies in his claim and requested that he submit additional evidence. It advised him of the
type of factual and medical evidence needed and provided a questionnaire for his completion.
OWCP afforded appellant 30 days to respond.
In a report dated September 11, 2017, Dr. John Stuart, a Board-certified internist, evaluated
appellant for neck pain and stiffness subsequent to a motor vehicle accident. He diagnosed cervical
strain, thoracic strain, headache, and right ankle sprain.
On September 13, 2017 Dr. Alexia Zgurzynski, an osteopath, discussed appellant’s
complaints of back pain and noted that he was currently performing his usual employment duties.
She diagnosed resolved cervical strain, thoracic strain, headache, and right ankle sprain.
Dr. Stuart, on September 18, 2017, advised that appellant’s headache, right ankle sprain,
and thoracic strain had resolved as of that date. By decision dated October 25, 2017, OWCP denied
his traumatic injury claim. It accepted that appellant was involved in an employment-related motor
vehicle accident on September 11, 2017, as alleged; however, it found that the medical evidence
submitted was insufficient to establish causal relationship.
Appellant subsequently resubmitted the September 11 and 18, 2017 reports from Dr. Stuart
and the September 13, 2017 report from Dr. Zgurzynski.
On June 18, 2018 appellant requested reconsideration. In a June 12, 2018 statement, he
related that he was involved in a “hit [and] run vehicle crash” on September 11, 2017 while driving
his work vehicle. Appellant questioned why his medical bills had not been covered and noted that
he had provided paperwork regarding the accident to his manager. He submitted September 13,
15, and 18, 2017 reports from a physical therapist. Appellant also submitted x-ray reports of his
cervical spine, thoracic spine, and right ankle obtained on September 11, 2017.
By decision dated September 13, 2018, OWCP denied appellant’s request for
reconsideration as he had not raised substantive legal arguments or submitted new and relevant
evidence sufficient to warrant reopening his case for further merit review pursuant to 5 U.S.C.
§ 8128(a).

2

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.2
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.3
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.4 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.5 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, it will deny the request for reconsideration without
reopening the case for review on the merits.6
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
The Board finds that appellant has not alleged or demonstrated that OWCP erroneously
applied or interpreted a specific point of law. On reconsideration appellant described the
circumstances surrounding his motor vehicle accident on September 11, 2017 and noted that he
had provided the appropriate paperwork to his manager. The Board finds that his contentions do
not require reopening of his case for merit review because, in its October 25, 2017 merit decision,
OWCP had found that the medical evidence was insufficient to establish causal relationship.
Appellant’s submission of his narrative statement fails to constitute a new argument regarding the
underlying issue of whether he has established a causal relationship between a diagnosed condition
and the accepted September 11, 2017 employment incident.7 Thus, the Board finds that he has not
advanced a relevant legal argument not previously considered by OWCP. Consequently, appellant

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

4

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
5

Id. at § 10.608(a); see also M.S., Docket No. 18-1041 (issued October 25, 2018).

6

Id. at § 10.608(b); A.C., Docket No. 17-1616 (issued November 27, 2018).

7

T.T., Docket No .18-1682 (issued February 22, 2019).

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is not entitled to a review of the merits of his claim based on the first and second above-noted
requirements under section 10.606(b)(3).8
The Board further finds that appellant has not provided relevant and pertinent new evidence
not previously considered. With his reconsideration request, appellant resubmitted the
September 11 and 18, 2017 reports from Dr. Stuart and the September 13, 2017 report from
Dr. Zgurzynski. The Board has held, however, that evidence that is duplicative of evidence
previously of record does not warrant further merit review.9
Appellant further submitted physical therapy reports and x-rays reports of his cervical
spine, thoracic spine, and right ankle dated September 2017. The physical therapy and x-ray
reports, however, fail to address the underlying issue of causation. The submission of evidence
that does not address the particular issue involved does not constitute a basis for reopening a case.10
Consequently, as appellant did not provide relevant and pertinent new evidence, he is not entitled
to a merit review based on the third requirement under section 10.606(b)(3).11
The Board, accordingly, finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.12
On appeal appellant asserts that his manager advised him that his medical expenses would
be paid by the owner of the vehicle who caused the collision. As discussed, however, the evidence
he submitted on reconsideration has not met the requirements to reopen his case for a review of
the merits of the claim.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

8

C.B., Docket No. 18-1108 (issued January 22, 2019).

9

See supra note 7.

10

K.F., Docket No. 18-1279 (issued February 22, 2019).

11

R.L., Docket No. 18-0175 (issued September 5, 2018).

12

See L.A., Docket No. 18-1226 (issue December 28, 2018).

13

See J.V., Docket No. 18-1534 (issued February 25, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the September 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HOUSTON VETERANS AFFAIRS MEDICAL
CENTER, Houston, TX, Employer
__________________________________________

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

Docket No. 07-1391
Issued: October 16, 2007

Case Submitted on the Record

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

JURISDICTION
On April 26, 2007 appellant filed a timely appeal from December 20, 2006 and April 12,
2007 decisions of the Office of Workers’ Compensation Programs that denied her request for
reconsideration and a September 7, 2006 decision that affirmed the denial of her occupational
disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merit and nonmerit decisions.
ISSUES
The issues are: (1) whether appellant met her burden of proof in establishing that she
developed an occupational disease in the performance of duty; and (2) whether the Office
properly denied appellant’s requests for reconsideration without conducting a merit review.
FACTUAL HISTORY
On December 15, 2005 appellant, then a 47-year-old food service worker, filed an
occupational disease claim alleging that she developed left and right shoulder pain in the

performance of duty. She stated that she was assigned to the task of bagging bread and sealing it
in plastic bags on December 4, 2005. Appellant first realized her injury on December 4, 2005
and first related it to her employment on December 10, 2005. She stopped work on
December 15, 2005.
On December 22, 2005 the Office requested additional information concerning
appellant’s claim.
By decision dated January 24, 2006, the Office denied appellant’s occupational disease
claim on the grounds that there was no medical evidence of record providing a diagnosis that
could be connected to her work activities.
The Office subsequently received an undated statement from appellant noting that she
called in sick to work on December 17, 2005 due to a shoulder injury, which she characterized as
“a recurrent pain based on the weather.” In a December 16, 2005 statement, she explained that
she experienced shoulder pain while bagging bread and asserted: “When I work on the bread
machine for a long time my shoulders get worse.”
In a December 16, 2005 treatment note, Dr. J. Ortiz-Toro, an employing establishment
physician specializing in occupational health, diagnosed shoulder pain and overexertion.
Regarding causal relationship, he stated: “No apparent traumatic event, may be secondary to
adiposity and morbid obesity.” In a December 16, 2005 form report, Clayton Enders, a
physician’s assistant, indicated by check marks on the report that appellant had a work-related
condition that had not resolved. He diagnosed bilateral shoulder pain and advised that appellant
could work eight hours daily within restrictions. Mr. Enders also provided a treatment slip dated
December 16, 2005 noting that appellant could return to duty.
In a December 28, 2005 note, Dr. Ryan Buffington, a family practitioner, indicated that
appellant could return to work with restrictions on December 29, 2005.
On December 28, 2005 the employing establishment offered appellant a limited-duty
assignment, which she accepted.
On August 26, 2006 appellant requested reconsideration and provided an August 2, 2006
magnetic resonance imaging (MRI) scan report from Dr. Son Luke Huynh, a Board-certified
radiologist, detailing diagnostic testing results for her right shoulder. Dr. Huynh diagnosed a tear
of the supraspinatus tendon near its insertion point without significant proximal retraction and
without muscle atrophy, abnormal high signal at the infraspinatus tendon without complete
disruption consistent with sprain or partial tear, and degenerative hypertrophy of
acromioclavicular joint with impression upon supraspinatus muscle and tendon.
By decision dated September 7, 2006, the Office denied modification of its January 24,
2006 decision.
Appellant requested reconsideration on September 27, 2006. She indicated that she had
new medical evidence in support of her claim. However, the record does not reflect that the
Office received an additional submission.

2

By decision dated December 20, 2006, the Office denied appellant’s reconsideration
request without conducting a merit review of the claim.
On January 24, 2007 appellant again requested reconsideration.
By decision dated March 19, 2007, the Office denied appellant’s reconsideration request
without conducting a merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.2
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.3
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.4 The test for determining whether
appellant sustained a compensable occupational disease or injury is three-pronged. To establish
the factual elements of the claim, appellant must submit: “(1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the 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 factors identified by the claimant.”5
The medical evidence required to establish causal relationship generally 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.6 The
opinion of the physician must be based on a complete factual and medical background of the

1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

5

Michael R. Shaffer, 55 ECAB 386, 389 (2004), citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, supra note 3.
6

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

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claimant7 and must be one of reasonable medical certainty8 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.9
ANALYSIS -- ISSUE 1
The Office accepted that the claimed work events occurred as alleged, that appellant
bagged bread from a machine. However, it found that appellant did not provide medical
evidence supporting that the work activities caused a specific diagnosed condition. The Board
finds that appellant has not met her burden of proof, as she has not submitted medical evidence
supporting that the employment incidents caused a specific injury.
In support of her claim, appellant submitted a December 16, 2005 treatment note from
Dr. Ortiz-Toro who diagnosed shoulder pain and overexertion. In addressing the cause of
appellant’s condition, Dr. Ortiz-Toro stated, “No apparent traumatic event, may be secondary to
adiposity and morbid obesity.” This report is not sufficient to establish her claim as the
physician did not address or explain how a particular diagnosed medical condition was caused or
aggravated by the accepted employment factors. Instead, Dr. Ortiz-Toro advised that appellant’s
condition might be secondary to adiposity and morbid obesity.
Appellant also provided a December 28, 2005 return-to-work certificate from
Dr. Buffington and an August 2, 2006 MRI scan report from Dr. Huynh. The Board finds that
neither report is sufficient to establish that appellant sustained a shoulder condition causally
related to her employment, as neither addresses the question of causal relationship. The Board
has held that medical evidence which does not offer an opinion on causal relationship is of little
probative value on that issue.10
Appellant also submitted reports from Mr. Enders, a physician’s assistant. However, his
opinion is not probative as it was not rendered by a physician.11 Mr. Enders is a physician’s
assistant, therefore, his reports are not competent medical evidence pursuant to the Act.12
Accordingly, Mr. Enders’ reports are not probative to establish that appellant’s shoulder
condition was causally related to her employment.

7

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

8

John W. Montoya, 54 ECAB 306 (2003).

9

Judy C. Rogers, 54 ECAB 693 (2003).

10

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).

11

See Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in general, can
only be given by a qualified physician).
12

George H. Clark, 56 ECAB ___ (Docket No. 04-1572, issued November 30, 2004).

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LEGAL PRECEDENT -- ISSUE 2
Under section 8128 of the Act, the Office has discretion to grant a claimant’s request for
reconsideration and reopen a case for merit review. Section 10.606(b)(2) of the implementing
federal regulation provides guidance for the Office in using this discretion.13 The regulations
provide that the Office should grant a claimant merit review when the claimant’s request for
reconsideration and all documents in support thereof:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”14
Section 10.608(b) provides that when an application for review of the merits of a claim
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.15 When reviewing an Office decision denying a merit review, the function of the
Board is to determine whether the Office properly applied the standards set forth at section
10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in
support thereof.16
ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s reconsideration requests
without conducting a merit review in its December 20, 2006 and April 12, 2007 decisions. As
noted, to warrant a review on the merits a request for reconsideration must clearly state the
grounds on which it is based and must assert that the Office misinterpreted or misapplied a point
of law, articulate a new legal argument not previously advanced, or present new and relevant
evidence not previously considered by the Office. Neither appellant’s September 27, 2006
reconsideration request, which the Office denied on December 20, 2006, nor her January 24,
2007 request, which the Office denied on April 12, 2007, met the above-listed criteria. In both
requests, appellant simply stated that she requested reconsideration but did not articulate the
basis for her request which meets one of the three above-noted criteria. She did not assert that
the Office misapplied or misinterpreted a point of law, she did not raise a new legal argument
and she did not submit relevant and pertinent new evidence. In her September 27, 2006 request,
appellant stated that she had new evidence in support of her claim. However, the record reflects
13

20 C.F.R. § 10.606(b)(2) (1999).

14

Id.

15

20 C.F.R. § 10.608(b) (1999).

16

Annette Louise, 54 ECAB 783 (2003).

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that the Office did not receive any additional medical evidence. In her January 24, 2007 request,
appellant neither made reference to new medical evidence nor indicated that she intended to
submit any. Accordingly, the Board finds that appellant did not meet the above-listed criteria
warranting a merit review and thus the Office properly denied both reconsideration requests
without reaching the merits.17
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
developed an occupational disease in the performance of duty, and that the Office properly
denied her reconsideration requests without conducting a merit review.
ORDER
IT IS HEREBY ORDERED THAT the April 12, 2007, December 20 and September 7,
2006 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 16, 2007
Washington, DC

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

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

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

17

On appeal before the Board, appellant submitted additional medical evidence. The Board, however, notes that
it cannot consider this evidence for the first time on appeal because the Office did not consider this evidence in
reaching its final decision. The Board’s review is limited to the evidence in the case record at the time the Office
made its final decision. 20 C.F.R. § 501.2(c).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.J., Appellant
and
DEPARTMENT OF THE NAVY,
LONG BEACH NAVAL SHIPYARD,
Long Beach, CA, Employer
__________________________________________

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

Docket No. 16-0939
Issued: August 10, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 4, 2016 appellant filed a timely appeal from a March 18, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than one year
elapsed from the last merit decision, dated April 17, 2015, and the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the
Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for a review of the
written record as untimely filed pursuant to 5 U.S.C. § 8124.
On appeal, appellant contends that his physician’s January 18, 2015 medical report
establishes that his consequential lower back, right hip, and sciatica nerve injuries are causally
related to his original injury.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board with respect to the denial of appellant’s
claim for an increased schedule award. In a March 16, 2011 decision,2 the Board affirmed
OWCP’s December 17, 2009 and April 14, 2010 decisions, finding that appellant had no more
than 59 percent permanent impairment of the left leg. The Board, however, set aside these
decisions and remanded the case to OWCP to select an impartial medical examiner to resolve a
conflict in medical opinion regarding whether appellant had more than five percent impairment
of the right leg. In an order dated September 28, 2011, the Board denied appellant’s petition for
reconsideration of the March 16, 2011 decision, finding that he did not establish any error of fact
or law warranting further consideration.3 The facts and circumstances outlined in the prior
Board decision are incorporated herein by reference. The facts relevant to the present appeal are
set forth below.
On July 6, 1981 appellant, then a 27-year-old sheet metal worker, injured his left knee
when he fell off a step ladder at the base of a large metal antenna in the performance of duty.
OWCP accepted his claim for contusion, traumatic patellar tendinitis, torn medial meniscus,
consequential right knee aggravation of osteoarthritis and gait alteration affecting the left ankle,
and consequential adjustment disorder with mixed anxiety and depression. Appellant underwent
a total left knee replacement on October 4, 2004.
Appellant received schedule awards reflecting 35 percent permanent impairment of his
left leg. In a March 24, 2006 decision, OWCP found an additional 15 percent permanent
impairment of the left lower extremity. On December 17, 2009 it later found an additional 9
percent permanent impairment to the left leg, totaling 59 percent permanent impairment of the
left lower extremity impairment.
Following issuance of the Board’s September 28, 2011 order denying petition for
reconsideration and further development of the medical evidence OWCP, in a March 28, 2013
decision, denied appellant’s claim for an additional schedule award for both lower extremities.
In an appeal request form dated April 21, 2013, received by OWCP on April 25, 2013,
appellant requested reconsideration of the March 28, 2013 decision of OWCP.
In an appeal request form dated December 9, 2013 and received by OWCP’s Branch of
Hearings and Review on December 16, 2013, appellant also requested a review of the written
record by an OWCP hearing representative regarding the same decision.
By decision dated April 25, 2014, OWCP’s Branch of Hearings and Review denied
appellant’s request for a review of the written record as it was untimely filed. It found that the
request was not made within 30 days of the issuance of the March 28, 2013 OWCP merit
decision. After exercising its discretion, the Branch of Hearings and Review further found that
the issue in the case could equally well be addressed through the reconsideration process.
2

Docket No. 10-1427 (issued March 16, 2011).

3

Order Denying Petition for Reconsideration, Docket No. 10-1427 (issued September 28, 2011).

2

In a June 3, 2014 decision, OWCP granted appellant a schedule award for an additional
four percent for loss of use of his right lower extremity, for a total of nine percent permanent
impairment based on the medical opinions of Dr. William H. Warden, an attending Boardcertified orthopedic surgeon, Dr. Leonard A. Simpson, a Board-certified orthopedic surgeon and
an OWCP medical adviser, and Dr. Christopher A. Wills, a Board-certified orthopedic surgeon
and an impartial medical specialist.
In an undated letter received by OWCP on June 27, 2014, appellant requested
reconsideration of the June 3, 2014 decision. On June 30, 2014 he also requested an oral hearing
before an OWCP hearing representative regarding the same decision.
By decision dated April 17, 2015, the OWCP hearing representative affirmed the June 3,
2014 schedule award decision.
In an appeal request form and letter dated and postmarked January 5, 2016, and received
by OWCP’s Branch of Hearings and Review on January 12, 2016, appellant requested a review
of the written record by an OWCP hearing representative regarding the “March 24, 2006”
schedule award decision.
Appellant submitted a January 19, 2015 report in which Dr. Warden advised that
appellant had developed lumbar disc disease as a result of his industrial lower extremity
pathology.
In a March 18, 2016 decision, OWCP’s Branch of Hearings and Review denied
appellant’s request for a review of the written record as it was untimely filed. It found that the
request was not postmarked within 30 days of the issuance of the March 24, 2006 OWCP merit
decision. After exercising its discretion, the Branch of Hearings and Review further found that
the issue in the case could equally well be addressed through the reconsideration process.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his or her claim before a representative of the
Secretary.4 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.5 A claimant is entitled to a hearing or review
of the written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.6 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. §§ 10.616, 10.617.

6

Id. at § 10.616(a).

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deny appellant’s request and must exercise its discretion.7 OWCP procedures require that it
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).8
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for a review of
the written record was untimely filed as it was made more than 30 days after the issuance of
OWCP’s March 24, 2006 decision. The January 5, 2016 form, on which appellant requested the
review, was postmarked on the same date. This was more than 30 days after the March 24, 2006
decision. Section 8124(b)(1) sets an unequivocal time limitation for requesting a review of the
written record.9 Because the request was not timely filed, appellant was not entitled to a review
of the written record as a matter of right under section 8124(b)(1) of FECA.
Although appellant’s request for a review of the written record was untimely, OWCP has
the discretionary authority to grant the request and it must exercise such discretion. In its
March 18, 2016 decision, it properly exercised its discretion by notifying appellant that it had
considered the matter in relation to the issue involved and that additional argument and evidence
could be submitted with a request for reconsideration. The Board has held that the only
limitation on OWCP’s authority is reasonableness. An abuse of discretion is generally shown
through proof of manifest error, a clearly unreasonable exercise of judgment, or actions taken
which are contrary to both logic and probable deductions from established facts.10 In this case,
there is no evidence of record that OWCP abused its discretion by denying appellant’s request
for a review of the written record. Accordingly, the Board finds that OWCP properly denied
appellant’s January 5, 2016 request for a review of the written record.
On appeal, appellant argues the merits of his claim. The Board lacks jurisdiction over the
March 24, 2006 schedule award decision.11 The only decision presented in this appeal before the
Board is the March 18, 2016 nonmerit decision which denied appellant’s request for a review of
the written record as untimely filed.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a review of the
written record as untimely filed pursuant to 5 U.S.C. § 8124.

7

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

8

See R.T., Docket No. 08-408 (issued December 16, 2008).

9

See William F. Osborne, 46 ECAB 198 (1994).

10

Samuel R. Johnson, 51 ECAB 612 (2000).

11

Supra note 1.

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ORDER
IT IS HEREBY ORDERED THAT the March 18, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 10, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Ronkonkoma, NY,
Employer
__________________________________________

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

Docket No. 12-1734
Issued: February 7, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 9, 2012 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated February 23, 2012 denying his request
to expand his claim. 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 met his burden of proof to establish various physical
conditions diagnosed by his treating physicians as causally related to his accepted July 31, 2004
employment injury.
On appeal, counsel contends that the medical evidence of record is sufficient to establish
his claim.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case is has previously been before the Board. Appellant appealed from OWCP’s
April 5, 2006 decision, which accepted his claim for cervical strain with radiculopathy, left
shoulder strain and temporary aggravation of herniated discs, but denied his request to include
additional conditions. In a February 6, 2007 decision, the Board affirmed OWCP’s decision, in
part and set aside the decision as to its refusal to accept additional conditions, due to a conflict in
medical opinion evidence.2 In a February 11, 2008 order, the Board remanded the case to
OWCP for proper issuance of its June 20, 2007 decision denying expansion of his claim.3 In a
decision dated March 16, 2009, the Board set aside the April 22, 2008 decision denying
appellant’s request to expand his claim. The Board found that there existed an unresolved
conflict in medical opinion due to the insufficiency of the referee physician’s report.4 In an
October 19, 2011 decision, the Board set aside OWCP’s September 10, 2010 merit decision
denying appellant’s request to expand his claim, finding that the referee’s opinion was
insufficiently rationalized to resolve the conflict in medical opinion.5 The case was remanded
for a supplemental report from the impartial medical examiner, Dr. Warwick Green, a Boardcertified orthopedic surgeon. The facts and the circumstances of the prior decisions are hereby
incorporated by reference.
Pursuant to the Board’s instructions, OWCP asked Dr. Green for a detailed supplemental
report explaining how his examination findings supported his opinion that no conditions other
than cervical disc disease, cervical radiculopathy and impingement syndrome of the left shoulder
were causally related to appellant’s July 31, 2004 incident. Dr. Green was asked specifically
whether cervical muscle spasms or left shoulder effusion resulted from the accepted injury. He
was asked to state whether he agreed or disagreed with the findings provided by appellant’s
treating physician and OWCP physicians and why. Dr. Green was instructed to address the
opinion of Dr. Arnold M. Illman, a prior referee physician, that appellant’s impingement
syndrome had developed over time into adhesive capsulitis and to discuss the mechanics of the
July 31, 2004 incident in relation to the conditions diagnosed by appellant’s treating physician.
In a supplemental report dated November 17, 2011, Dr. Green opined that the mechanics
of the accepted injury, which involved lifting heavy baggage, were consistent with cervical
herniated discs and left shoulder impingement syndrome. He further opined, however, that
hypertrophic changes of the acromioclavicular (AC) joint, lateral down sloping acromion
abutting the supraspinatus and inferiorly extending acromial spur evidenced on magnetic
resonance imaging (MRI) scan, were longstanding conditions, which preceded the accepted
injury. Dr. Green stated that cervical muscle spasm and effusion are clinical signs, not diagnoses
and therefore should be deleted. Internal derangement of the left shoulder was a catch-all phrase,
which indicated that the diagnosis was not easily known. Based on the results of a November 4,
2007 scan of the left shoulder, which showed evidence of AC joint arthritis and impingement
2

Docket No. 06-1328 (issued February 6, 2007).

3

Docket No. 07-2305 (issued February 11, 2008).

4

Docket No. 08-2016 (issued March 16, 2009).

5

Docket No. 11-851 (issued October 19, 2011).

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syndrome of the left shoulder, but no evidence of a partial thickness tear of the left shoulder
rotator cuff, Dr. Green determined that a diagnosis of left rotator cuff tear was not causally
related to the accepted incident.
After reviewing Dr. Illman’s April 23, 2007 report, Dr. Green stated his belief that
appellant did not suffer from adhesive capsulitis. He noted that Dr. Illman’s findings, which
reflected slight loss of internal rotation but full external rotation, were more consistent with
impingement syndrome than adhesive capsulitis, in which both internal and external rotation are
always diminished.
In a decision dated February 23, 2012, OWCP denied appellant’s request to expand his
claim to include internal derangement of the left shoulder, cervical muscle spasm, adhesive
capsulitis, left shoulder effusion and partial thickness tear of the left shoulder based upon
Dr. Green’s referee opinion.
LEGAL PRECEDENT
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 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 that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion 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
established incident or factor of employment.7
Section 8123 of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.8 When there exist opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if

6

Katherine Friday, 47 ECAB 591 (1996).

7

John W Montoya, 54 ECAB 306 (2003).

8

5 U.S.C. § 8123.

3

sufficiently well rationalized and based upon a proper factual background, must be given special
weight.9
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
his original report.10 However, when the impartial specialist is unable to clarify or elaborate on
his original report or if his supplemental report is also vague, speculative or lacking in rationale,
OWCP must submit the case record and a detailed statement of accepted facts to a second
impartial specialist for the purpose of obtaining his rationalized medical opinion on the issue.11
ANALYSIS
In accordance with the Board’s directive, OWCP asked Dr. Green to provide a
supplemental report explaining how his examination findings supported his opinion that no
conditions other than cervical disc disease, cervical radiculopathy and impingement syndrome of
the left shoulder were causally related to appellant’s July 31, 2004 incident. The Board finds,
however, that Dr. Green’s reports are insufficiently rationalized to resolve the conflict in medical
opinion. Therefore, this case is not in posture for a decision and must be remanded to OWCP for
further development of the medical evidence.
OWCP asked Dr. Green specifically whether cervical muscle spasms or left shoulder
effusion resulted from the accepted injury. Dr. Green stated that cervical muscle spasm and
effusion were clinical signs, not diagnoses and therefore should be “deleted.” He did not,
however, respond to the question as to whether appellant experienced muscle spasms or effusion,
nor did he explain whether these clinical signs were indicative of a diagnosable condition.
Instead, Dr. Green merely repeated his previously-stated, unsupported opinion.
OWCP asked Dr. Green to state whether he agreed or disagreed with the findings
provided by appellant’s treating physician and OWCP physicians and why. Dr. Green stated that
internal derangement of the left shoulder was a catch-all phrase, which implied that the diagnosis
was not easily known and should be deleted. He did not, however, address the examination
findings related to the derangement diagnosis or indicate what tests would be necessary to
ascertain a correct diagnosis. Therefore, Dr. Green’s report is of limited probative value in this
regard.

9

James F. Weikel, 54 ECAB 660 (2003); Beverly Grimes, 54 ECAB 543 (2003); Sharyn D. Bannick, 54 ECAB
537 (2003); Daniel F. O’Donnell. Jr., 54 ECAB 456 (2003); Phyllis Weinstein (Elliot H. Weinstein), 54 ECAB 360
(2003); Bernadine P. Taylor, 54 ECAB 342 (2003); Karen L. Yeager, 54 ECAB 317 (2003); Barry Neutuch, 54
ECAB 313 (2003); David W Picken, 54 ECAB 272 (2002).
10

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
11

Nancy Keenan, 56 ECAB 687 (2005); Roger W. Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB
673 (1996).

4

Dr. Green was instructed to address Dr. Illman’s opinion that appellant’s impingement
syndrome had developed over time into adhesive capsulitis. After reviewing Dr. Illman’s
April 23, 2007 report, Dr. Green stated his belief that appellant did not suffer from adhesive
capsulitis. He noted that Dr. Illman’s findings, which reflected slight loss of internal rotation but
full external rotation, were more consistent with impingement syndrome than adhesive capsulitis,
in which both internal and external rotation are always diminished. Dr. Green did not discuss his
own examination findings as they related to Dr. Illman’s diagnosis, but rather speculated based
on Dr. Illman’s four-year-old report. Without further explanation, his opinion is of diminished
probative value.
Dr. Green determined that a diagnosis of left rotator cuff tear was not causally related to
the accepted incident based on the results of a November 4, 2007 MRI scan of the left shoulder,
which showed evidence of AC joint arthritis and impingement syndrome of the left shoulder, but
no evidence of a partial thickness tear of the left shoulder rotator cuff. He did not address
Dr. Harshad C. Bhatt’s August 4, 2005 diagnosis of partial tear of the supraspinatus left
shoulder. Dr. Green’s opinion is therefore of diminished probative value.
Dr. Green’s November 17, 2011 supplemental report did not cure the deficiencies of his
August 13 and 30, 2011 reports. He did not fully respond to OWCP’s questions or fully explain
the basis for his opinions. As Dr. Green’s report is not sufficiently rationalized, it is of limited
probative value.
OWCP referred appellant to Dr. Green for the specific purpose of resolving the conflict
in medical evidence. For reasons stated above, the Board finds that his reports are insufficient to
resolve the conflict. Therefore, the case will be remanded to OWCP for referral to another
appropriate impartial medical specialist. After such further development as OWCP deems
necessary, an appropriate decision should be issued.
CONCLUSION
The Board finds that this case is not in posture for a decision, as there exists an
unresolved conflict in the medical opinion evidence as to whether appellant’s current conditions
of cervical muscle spasm, internal derangement of the left shoulder, partial thickness tear of the
left shoulder and effusion of the left shoulder are causally related to the accepted July 31, 2004
injury.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 23, 2012 is set aside and remanded for action consistent
with the terms of this decision.
Issued: February 7, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Denver, CO,
Employer
__________________________________________

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Appearances:
Gregory Hall, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1925
Issued: February 10, 2017

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 24, 2015 appellant, through counsel, filed a timely appeal from an April 8,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has more than two percent permanent impairment of his
right arm.
FACTUAL HISTORY
On May 13, 2010 appellant, then a 62-year-old tractor/trailer operator, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a neck injury while backing into the loading
dock on May 7, 2010. He reported a pop in his neck when he turned his head. Appellant
stopped work on May 7, 2010 and was to return on May 15, 2010. On July 15, 2010 he filed a
claim for occupational disease (Form CA-2), noting that on May 7, 2010 he felt a pop in his neck
while backing into a dock. Appellant also alleged that his physician had reported degenerative
disc disease as a result of 25 years of federal employment. The claims have been combined
under OWCP File No. xxxxxx773.
On August 3, 2010 OWCP accepted neck sprain and right shoulder impingement as a
result of the May 7, 2010 incident. Appellant submitted a claim for a schedule award (Form
CA-7) on September 12, 2013.
In a report dated November 14, 2013, Dr. Bennett Machanic, a neurologist, provided a
history of a work injury on May 7, 2010 when appellant struck a loading dock while operating a
tractor-trailer. He utilized the range of motion (ROM) method to find 12 percent permanent
impairment of the right shoulder under the American Medical Association, Guides to the
Evaluation of Permanent Impairment (sixth edition). Dr. Bennett also reported that appellant
had an ulnar nerve problem and found an additional right arm permanent impairment of four
percent based on sensory and motor deficit.
OWCP referred the case to OWCP medical adviser Dr. Morley Slutsky, Board-certified
in occupational medicine. In a report dated April 15, 2014, Dr. Slutsky recommended that
appellant be referred for a second opinion examination.
Appellant was referred to Dr. John Douthit, a Board-certified orthopedic surgeon for a
second opinion. In a report dated May 19, 2014, Dr. Douthit provided a history and results on
examination. With respect to the right shoulder, using the ROM method, he reported 20 degrees
external rotation, 70 degrees internal rotation, 160 degrees flexion and abduction, 20 degrees
adduction, and 50 degrees extension. Dr. Douthit indicated that three measurements were taken
in accord with the A.M.A., Guides. He opined that appellant had a right shoulder permanent
impairment of 12 percent due to loss of range of motion under the A.M.A., Guides at Table
15-34.
Dr. Douthit’s report was referred to Dr. Slutsky for review. In a report dated May 29,
2014, he opined that, under the preferred diagnosis-based impairment (DBI) method, appellant
had two percent right arm permanent impairment. Dr. Douthit applied Table 15-5 for the
diagnosis of shoulder tendinitis, and a class 1, grade B impairment. He also found no diagnostic
studies provided support for the significant loss of shoulder motion which Dr. Douthit had found.

2

On May 29, 2014 OWCP advised appellant that the accepted conditions had been
updated and now included: neck sprain, right shoulder impingement, cervical intervertebral disc
degeneration, and right shoulder calcifying tendinitis.
OWCP requested an additional report from Dr. Douthit based on the preferred DBI
method.
In a report dated June 5, 2014, Dr. Douthit noted that the A.M.A., Guides provides that
some diagnosis-based grids refer to the ROM section, and indicate that this section is to be used
as a stand-alone rating when other grids refer to the ROM section or when no other diagnosisbased sections are applicable. He opined that this was confusing. Using the DBI method, under
Table 15-5, Dr. Douthit opined that appellant had five percent right arm permanent impairment.
OWCP’s medical adviser, Dr. Slutsky, reviewed Dr. Douthit’s updated report and, by
report dated June 13, 2014, found two percent permanent impairment of the right arm under
Table 15-5.
By decision dated July 8, 2014, OWCP issued a schedule award for two percent right arm
permanent impairment. The period of the award was 6.24 weeks commencing from
May 19, 2014.
On July 23, 2014 appellant requested a hearing before an OWCP hearing representative,
which was held on February 11, 2015. By decision dated April 8, 2015, the hearing
representative affirmed the July 8, 2014 decision, finding that the weight of the medical evidence
was represented by OWCP’s medical adviser.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.3 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.4 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.5
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the American Medical Association issued a 52-page document entitled
3

See 20 C.F.R. §§ 1.1-1.4.

4

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
5

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

3

5 U.S.C.

“Clarifications and Corrections, Sixth Edition, Guides to the Evaluation of Permanent
Impairment.” The document included various changes to the original text, intended to serve as
an erratum/supplement to the first printing of the A.M.A., Guides. In April 2009, these changes
were formally incorporated into the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).6 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.7
ANALYSIS
The issue on appeal is whether appellant has more than two percent permanent
impairment of his right arm.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.8
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.9 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.10
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the April 8, 2015 decision.
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
7

Isidoro Rivera, 12 ECAB 348 (1961).

8

T.H., Docket No. 14-0943 (issued November 25, 2016).

9

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

10

Supra note 8.

4

Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: February 10, 2017
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 10-2162
Issued: July 1, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 16, 2010 appellant, through her representative, filed a timely appeal of a
July 27, 2010 merit decision of the Office of Workers’ Compensation Programs which denied
her claim for disability compensation. Pursuant to the Federal Employees’ Compensation Act1
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 was disabled from September 16 to November 1, 2009 due
to her September 14, 2009 employment injury and therefore entitled to continuation of pay or
wage-loss compensation benefits.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 25, 2009 appellant, then a 59-year-old patient services assistant, filed a
traumatic injury claim alleging that on September 14, 2009 she sustained injuries to her chest,
lower back and knees when a file cabinet fell on her at work. The employing establishment
controverted her claim alleging that she was personally reacting to a prior claim that was denied
and to a new temporary worker that was hired to relieve her of her telephone and e-mail duties.
It also stated that a coworker observed appellant standing on a stool to access the cabinet and
advised her that it was unsafe.
In a letter dated October 7, 2009, the Office advised appellant that the evidence received
was insufficient to support her claim and requested additional information. It requested that she
describe how the injury occurred and its immediate effects, provide statements from any
witnesses and explain why she delayed seeking medical attention. The Office also requested
appellant to submit a narrative medical report which included a history of injury, firm diagnosis,
findings, test results, treatment provided, prognosis, period and extent of disability and a
physician’s opinion, based on medical rationale, explaining why the diagnosed condition was
believed to have been caused or aggravated by her claimed injury.
In a September 14, 2009 employee health record, an unknown provider stated that a file
cabinet fell onto appellant’s chest, torso and legs pinning her to the desk at work. In an
emergency room report, Denise R. Ulizio, a physician’s assistant, noted appellant complaints of
a work injury that caused musculoskeletal chest, back, hip pain and knee pain. Appellant stated
that she was looking for a chart in the top drawer of a file cabinet when the file cabinet toppled
forward and trapped her on her desk until several men were able to lift her free. X-rays revealed
mild bilateral hyperinflated lungs and senescent changes of the spine but no active infiltrate,
pleural effusion or pulmonary edema.
Appellant submitted medical reports dated October 20, 2009 from Dr. Brent Clark, a
Board-certified family practitioner. In a work capacity evaluation form, Dr. Clark noted that she
was not capable of performing her usual job until November 1, 2009. In an attending physician’s
report, he reported that he first examined appellant on October 5, 2009. Dr. Clark stated that on
September 14, 2009 a cabinet fell on her and he diagnosed her with a lumbar strain and chest
contusion. He also checked a box marked “yes” that appellant’s medical condition was caused
or aggravated by the work event. Dr. Clark noted that she was disabled from September 14 to
November 1, 2009 and authorized her to resume light duty on November 1, 2009.
Appellant also submitted several hospital records. In a September 14, 2009 report,
Dr. Kevin Semelrath, an emergency medicine physician, reported that a file cabinet fell on her
and pinned her to her desk. Appellant complained of chest pain, especially with deep inspiration
and bilateral knee pain. Dr. Semelrath reviewed her medical and social history, conducted an
examination and diagnosed appellant with a chest wall injury.
In a September 15, 2009 hospital report, Dr. Jason Chang, Board-certified in emergency
medicine, provided a history of injury that appellant was crushed in between a desk and file
cabinet that fell on her at work and noted her complaints of diffuse pain throughout her chest and
neck. Upon examination, he noted that her head and neck showed no evidence of any gross

2

traumatic injuries and her airway was intact with good air entry bilaterally. Dr. Chang also did
not observe any palpitations, shortness of breath, nausea, vomiting or neurological deficits. An
x-ray also did not reveal any significant traumatic injuries. Dr. Chang recommended
computerized tomography (CT) scans, but opined that it was unlikely that appellant sustained
any significant injuries. In an addendum, he stated that appellant underwent multiple CT scans
and tested negative for any significant injuries and acute traumatic injuries. Dr. Chang
diagnosed her with multiple contusions and stated that she could most likely be discharged
tomorrow.
In a September 16, 2009 hospital discharge report, Dr. Gary T. Marshall, a Boardcertified surgeon, stated that appellant was admitted on September 14, 2009 after a file cabinet
fell on her and pinned her to her desk at work. He noted that her complaints of chest pain,
especially with deep inspiration and bilateral knee pain. Upon examination, Dr. Marshall noted
slight tenderness to her chest, but no crepitus. Appellant’s focused assessment with sonography
for trauma examination and x-rays were both negative. Dr. Marshall also reviewed her various
CT scans and reported that her chest, abdomen, pelvis, thoracic and lumbar spine scans were also
negative. Appellant’s head CT scan revealed possible punched out lytic bone lesions of her
temporal bones consistent with possible myeloma and her C-spine CT scan showed degenerative
joint disease but no signs of trauma. She was admitted for evaluation and discharged on
September 15, 2009.
Appellant also provided the diagnostic CT scan results dated
September 14, 2009.
In a September 15, 2009 progress note, Dr. David J. McAdams, a Board-certified
internist, examined appellant and diagnosed her with a bone neoplasm of her skull. In another
September 24, 2009 consultation report, he provided a history of injury that a file cabinet fell on
her at work, which caused her significant chest pain. Dr. McAdams reviewed appellant’s
medical and social background, conducted an examination and recommended that she undergo a
full skeletal survey to check for other lytic lesions. On September 15, 2009 appellant underwent
a complete bone survey by Dr. Saraswathi K. Golla, a Board-certified diagnostic radiologist,
which revealed a lytic lesion in her right posterior parietal bone.
On November 13, 2009 the Office accepted appellant’s claim for contusion of chest wall
but denied continuation of pay for the period September 16 to November 1, 2009. It noted that
she returned to work on November 2, 2009 but determined that the medical evidence was
insufficient to establish that she was disabled due to her accepted employment injury for the
period September 16 to November 1, 2009.
On November 24, 2009 appellant filed a Form CA-7 claim for compensation for the
period September 16 to November 1, 2009.
On November 26, 2009 appellant requested an oral hearing before the Branch of
Hearings and Review and resubmitted her emergency room hospital records. On December 3,
2009 appellant, through her representative, requested an oral hearing before the Branch of
Hearings and Review.
In a letter dated December 7, 2009, the Office advised appellant that the medical
evidence was insufficient to support that she was disabled for the period September 16 to

3

November 1, 2009 due to her accepted work injury. Appellant resubmitted her hospital records,
medical reports and diagnostic results dated September 14 to 16, 2009.
In a February 2, 2010 decision, the Office denied appellant’s claim for compensation for
the period September 16 to November 1, 2009 on the grounds of insufficient medical evidence
demonstrating that she was disabled from work during the claimed time period.
On February 16, 2010 appellant, through her representative, appealed the February 2,
2010 decision and requested a telephone hearing which was held on April 19, 2010. She was
represented by Attorney Alan J. Shapiro. Appellant stated that on the morning of September 14,
2009 she was collecting employee files from the file cabinet and when she pulled out the second
cabinet, it opened up so fast that it tilted on her. She explained that the cabinet pinned her
against her desk and she had to call out for help. Appellant complained of chest pains and was
eventually diagnosed with chest contusions. She also stated that she was off work for no more
than 45 days. Appellant further reported that she went to see a private doctor who reevaluated
her and advised her to remain off work a little longer because she complained about back and
chest pain, which made it difficult to breathe. She noted that her physician, Dr. Clark, authorized
her to remain off work and told her that he would take care of the coverage. The hearing
representative informed appellant that the OWCP-5 form from Dr. Clark was insufficient to
establish her claim because it did not explain why she needed to remain off work. Appellant
requested 30 days to submit additional medical evidence.
Appellant resubmitted her hospital records, medical reports and diagnostic results dated
September 14 to 16, 2009.
By decision dated July 27, 2010, the Office hearing representative denied appellant’s
claim for disability compensation for the period September 16 to November 1, 2009 because the
record did not contain any evidence establishing that appellant was disabled from work during
the claimed period of time as a result of her accepted employment injury.
LEGAL PRECEDENT
Section 8118 of the Act provides for the continuation of pay for an employee who has
properly filed a claim for a period of wage loss due to traumatic injury.2 Office regulations
implementing the Act state that an employee who sustains a disabling, job-related traumatic
injury is entitled to the continuation of his or her regular pay for a period not to exceed 45 days.3
The regulations also provide that an employee applying for continuation of pay must provide
medical evidence supporting disability resulting from the claimed traumatic injury. The
employee must also ensure that the treating physician specifies work limitations and provides
them to the employer and/or the Office.4

2

5 U.S.C. § 8118.

3

20 C.F.R. § 10.200(a).

4

Id. at § 10.210(b)-(d).

4

The term disability means incapacity, because of an employment injury, to earn the
wages that the employee was receiving at the time of the injury.5
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.6
ANALYSIS
The Office accepted that appellant sustained a contusion of her chest wall in the
performance of duty on September 14, 2009. Appellant filed a claim for continuation of pay
from September 16 to November 1, 2009 and in the alternative filed a claim for disability
compensation benefits. The Office denied her claim on the grounds of insufficient medical
evidence demonstrating that she was disabled for the claimed period of disability.
Appellant provided hospital records and diagnostic results dated September 14 to 16,
2009 from Drs. Semelrath, Chang, Marshall, Saraswathi and McAdams. These reports
accurately described her history of injury and noted her chest wall injury. None of the reports,
however, indicate whether appellant was disabled as a result of her September 14, 2009
employment injury or mention any specific dates or period of disability. These doctors do not
offer any opinion on appellant’s ability to work and whether she was disabled for the claimed
period. These reports, therefore, fail to demonstrate that she was disabled for the claimed period
due to her September 14, 2009 work injury.7
The only medical reports addressing appellant’s period of disability are the reports from
Dr. Clark dated October 20, 2009. In a work capacity evaluation form, Dr. Clark stated that
appellant was not capable of performing her usual job until November 1, 2009. While this form
indicated that light duty was available for appellant and required that specific limitations be
noted for activities including sitting, walking, standing, reaching, driving, etc., he did not note
appellant’s specific limitations, but rather indicated that she could perform work for zero hours a
day. Dr. Clark also stated in an attending physician’s report that appellant was disabled from
September 14 to November 1, 2009 and could resume light duty on November 1, 2009. He,
however, did not provide any medical explanation as to why appellant had limitations on all
activities and was totally disabled. In addition, the Office hearing representative advised
appellant during her telephone hearing that Dr. Clark’s reports were insufficient to establish her
claim because he failed to explain why she was disabled from work. As Dr. Clark’s reports fail
to address whether appellant’s disability from September 14 to November 1, 2009 was causally
related to her accepted employment injuries, these reports are insufficient to establish her claim.

5

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conrad Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
6

Alfredo Rodriguez, 47 ECAB 437 (1996).

7

See K.S., Docket No. 10-1445 (issued March 23, 2011); J.H., Docket No. 10-1165 (issued February 1, 2011).

5

Appellant also submitted a hospital record by a physician’s assistant. A physician’s
assistant, however, is not considered a “physician” as defined under the Act.8 Accordingly, this
report is of no probative value and does not constitute competitive medical evidence sufficient to
establish appellant’s claim.
As previously stated, it is appellant’s burden to establish that any disability is causally
related to the accepted employment injury.9 The Board finds that there is insufficient medical
opinion to establish that appellant was disabled from September 16 to November 1, 2009 as a
result of her accepted chest wall contusion. Thus, appellant did not meet her burden of proof to
establish her claim for disability compensation.10
CONCLUSION
The Board finds that appellant did not establish that she was totally disabled from
September 16 to November 1, 2009 due to her accepted September 14, 2009 employment injury.

8

E.H., Docket No. 08-1862 (issued July 8, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009); 5 U.S.C.
§ 8101(2) of the Act 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.”
9

S.S., 59 ECAB 315 (2008); M.B., Docket No. 10-1401 (issued March 17, 2011).

10

The Board notes that appellant submitted additional evidence following the July 27, 2010 decision. Since the
Board’s jurisdiction is limited to evidence that was before the Office at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the July 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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