United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LOUIS STOKES CLEVELAND MEDICAL
CENTER, Brecksville, OH, Employer
__________________________________________

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

Docket No. 10-472
Issued: October 8, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 4, 2009 appellant timely appealed the June 8, 2009 merit decision of the
Office of Workers’ Compensation Programs, which terminated her compensation and medical
benefits. She also timely appealed the Office’s November 10, 2009 nonmerit decision, which
denied reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the claim.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage-loss
compensation and medical benefits effective June 8, 2009; and (2) whether the Office properly
denied appellant’s October 14, 2009 request for reconsideration under 5 U.S.C. § 8128(a).

FACTUAL HISTORY
This case was previously before the Board.1 Appellant, a 64-year-old former nursing
assistant, injured her back in the performance of duty on January 8, 1974.2 Her claim was
accepted for low back contusion, aggravation of discogenic pathology at L4-5, acute lumbosacral
sprain, lumbar radiculitis and psychogenic overlay. The Office also approved a November 20,
1992 decompression laminectomy and removal of herniated disc at L4-5.3 It terminated
appellant’s compensation and medical benefits effective July 13, 2006. By decision dated
September 7, 2007, the Board affirmed the termination of medical benefits with respect to the
accepted condition of psychogenic overlay.4 However, the Board reversed the termination of
wage-loss compensation and medical benefits with respect to appellant’s orthopedic condition.
The Board found that the Office failed to meet its burden to terminate benefits with respect to
appellant’s accepted orthopedic condition and approved surgery. The September 7, 2007
decision is incorporated herein by reference.
The Office paid appellant wage-loss compensation retroactive to July 14, 2006 and
reinstated her on the periodic compensation rolls. On March 21, 2008 it requested that appellant
provide updated medical information from her treating physician.5 When appellant did not
respond, the Office referred her for a second opinion evaluation with Dr. Manhal A. Ghanma, a
Board-certified orthopedic surgeon.
In a report dated February 3, 2009, Dr. Ghanma found that there was no current evidence
of low back contusion, no evidence of acute lumbosacral strain with radiculitis and no current
evidence of aggravation of discogenic pathology at L4-5 subsequent to decompression
laminectomy. He noted that appellant had not recently received treatment for her back. On
physical examination, there was no lumbar spasm or any focal, motor or sensory deficits.
Dr. Ghanma found no evidence of any significant thigh or calf atrophy present. He noted that
appellant had four positive Waddell’s signs, which was indicative of abnormal illness behavior
and symptom magnification.
With the exception of low back contusion, Dr. Ghanma believed it was unlikely that the
other accepted conditions were connected to the work injury by direct cause, aggravation,
precipitation or acceleration. He explained that the surgical intervention in 1992 occurred some
1

Docket No. 07-1021 (issued September 7, 2007).

2

She last worked in 1976.

3

Appellant had a recurrent L4-5 disc herniation following her Office-approved surgery. She was reportedly
dropped from an ambulance stretcher on November 30, 1992. Despite evidence of a recurrent disc herniation,
appellant was not considered a suitable candidate for further surgery.
4

Dr. Michael A. Kachmer, a Board-certified psychiatrist and Office referral physician, evaluated appellant on
September 17, 1999 and found that she was not suffering from any significant psychiatric disorder at that time.
5

Dr. Steven A. Cremer, a Board-certified physiatrist, authored the latest narrative report from a physician not
otherwise associated with the Office. His January 14, 2004 findings were discussed in detail in the Board’s
September 7, 2007 decision. At the time, Dr. Cremer believed that appellant had ongoing residuals from her prior
surgery.

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18 years after the work injury, thereby making any direct connection by causation or aggravation
highly unlikely. Dr. Ghanma stated that there was insufficient objective medical evidence to
support that any of appellant’s conditions were aggravated by the work injury despite the claim
allowance.
As to the question of whether there were any residuals associated with the Officeapproved surgery, Dr. Ghanma found there were none. While there was evidence of recurrent
disc herniation at L4-5, he explained that it was unrelated to the November 20, 1992 surgery, but
likely related to the degenerative disc disease that predated appellant’s work injury. Dr. Ghanma
also stated that there was insufficient evidence to support any degree of disability due to either
preexisting or work-related conditions. He advised that appellant was capable of returning to
work, but was unlikely to do so because of nonorganic factors. Dr. Ghanma stated that there was
no need for physical restrictions if appellant were to return to work as a nursing assistant. He did
not recommend any continued care for the allowed conditions because those conditions had
resolved.
On May 4, 2009 the Office issued a notice of proposed termination of compensation and
medical benefits based on Dr. Ghanma’s February 3, 2009 report. It afforded her 30 days to
submit additional evidence or argument. Appellant did not respond. In a June 8, 2009 decision,
the Office terminated her monetary compensation and medical benefits that day.
On October 14, 2009 appellant’s counsel requested reconsideration. He argued that the
June 8, 2009 decision did not take into account all of appellant’s allowed conditions. Counsel
noted that, while Dr. Ghanma was an orthopedic surgeon, appellant’s claim had also been
accepted for a psychiatric condition -- psychogenic overlay. He contended that appellant should
have been examined by an appropriate mental health specialist. Counsel requested that the
June 8, 2009 decision be vacated, and that appellant be referred for further evaluation.
Appellant’s October 14, 2009 request for reconsideration was not accompanied by any additional
medical evidence.
By decision dated November 10, 2009, the Office denied appellant’s request for
reconsideration. It found that appellant had already been referred to a psychiatric specialist on
September 17, 1999 who determined that her work-related psychogenic overlay had resolved.
Therefore, the argument raised was not relevant to the issue on which the termination decision
was based.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to her federal employment, the Office may not terminate compensation without
establishing that the disability has either ceased or that it is no longer related to the employment.7
The right to medical benefits for an accepted condition is not limited to the period of entitlement
6

Curtis Hall, 45 ECAB 316 (1994).

7

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

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to compensation for disability.8 To terminate authorization for medical treatment, the Office
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.9
ANALYSIS -- ISSUE 1
On July 13, 2006 the Office terminated appellant’s medical benefits with respect to her
accepted condition of psychogenic overlay, which the Board affirmed by decision dated
September 7, 2007. The Board’s decision reversed the Office as to appellant’s accepted
orthopedic condition. When requested in March 2008, she did not submit any current medical
evidence as to her employment-related orthopedic condition. The Office properly referred
appellant for a second opinion evaluation.10
Dr. Ghanma examined appellant on February 3, 2009 and found that all of her accepted
orthopedic conditions had resolved. He also found that there were no residuals from the
November 20, 1992 Office-approved surgery. Dr. Ghanma explained that on examination
appellant’s only positive findings were Waddell’s signs, which were in fact indicative of
symptom magnification. According to him, appellant did not recommend any further medical
treatment for her accepted orthopedic conditions and found that she was able to resume her
previous nursing assistant duties without restriction. Dr. Ghanma noted that she had not received
any recent treatment for her back. The Board notes that the last narrative report submitted by an
attending physician was more than five years prior to the time Dr. Ghanma examined her in
February 2009.
The Board finds that Dr. Ghanma’s opinion is well rationalized and represents the weight
of the medical evidence regarding appellant’s orthopedic condition. Because appellant no longer
has residuals or disability related to her accepted January 8, 1974 orthopedic injury and
subsequent surgery, the Office properly terminated entitlement to wage-loss compensation and
medical benefits effective June 8, 2009. Accordingly, the Office’s decision to terminate
appellant’s compensation and medical benefits shall be affirmed.
LEGAL PRECEDENT -- ISSUE 2
The Office has the discretion to reopen a case for review on the merits.11 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (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.12
8

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

9

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

10

See 20 C.F.R. § 10.320.

11

5 U.S.C. § 8128(a) (2006).

12

20 C.F.R. § 10.606(b)(2) (2009).

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When an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application without reopening
the case for a review on the merits.13
ANALYSIS -- ISSUE 2
On reconsideration, appellant’s counsel argued that the June 8, 2009 decision terminating
benefits did not take into account appellant’s accepted condition of psychogenic overlay.
Because Dr. Ghanma was an orthopedist and not a psychiatrist, counsel argued that the Office
should have referred appellant to a mental health specialist. As noted, the Office had previously
terminated appellant’s entitlement to benefits with respect to the accepted condition of
psychogenic overlay. The Board affirmed aspect of appellant’s claim in the September 7, 2007
decision. Since then appellant did not submit any additional evidence of an ongoing
employment-related psychiatric condition. The October 14, 2009 request for reconsideration
neither alleged nor demonstrated that the Office erroneously applied or interpreted a specific
point of law. Additionally, appellant did not advance a relevant legal argument not previously
considered by the Office. Therefore, she is not entitled to a review of the merits of her claim
based on the first and second above-noted requirements under section 10.606(b)(2).14 Appellant
also failed to satisfy the third requirement under section 10.606(b)(2).15 She did not submit any
relevant and pertinent new evidence with her October 14, 2009 request for reconsideration.
Consequently, appellant is not entitled to a review of the merits of her claim.16
CONCLUSION
The Office properly terminated appellant’s wage-loss compensation and medical benefits
effective June 8, 2009. The Board further finds that the Office properly denied appellant’s
October 14, 2009 request for reconsideration.

13

Id. at § 10.608(b).

14

Id. at § 10.606(b)(2)(i) and (ii).

15

Id. at § 10.608(b).

16

Id. at § 10.608(b).

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ORDER
IT IS HEREBY ORDERED THAT the November 10 and June 8, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: October 8, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.F., Appellant
and
U.S. POSTAL SERVICE, VOORHEES POST
OFFICE, Voorhees, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-2005
Issued: June 15, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 27, 2017 appellant, through counsel, filed a timely appeal from an
August 11, 2017 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 to consider 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 met his burden of proof to establish a left elbow or
lumbar injury causally related to the accepted April 7, 2016 employment incident.
FACTUAL HISTORY
On April 28, 2016 appellant, then a 44-year-old postal clerk, filed a traumatic injury claim
(Form CA-1) alleging that he injured his left elbow and lower back on April 7, 2016 while pushing
a wire container through the employing establishment building. The wire container slowed due to
faulty wheels and his body struck the wire container, injuring his left elbow and back. Appellant
returned to light-duty work on May 11, 2016.
In a development letter dated May 16, 2016, OWCP requested that appellant provide
additional factual and medical evidence in support of his traumatic injury claim. It afforded him
30 days to respond.
On May 22, 2016 appellant provided a narrative statement further explaining his claim. He
repeated that he injured his back and left elbow on April 7, 2016 when the wire cage he was
pushing suddenly slowed due to faulty wheels. Appellant hit the cage and his body lurched
forward resulting in sharp pains in his elbow and back. The pain subsided for a few minutes, but
recurred when he lifted a priority medium flat-rate box from a mail container. Appellant reported
that his back pain continued to increase, but that he worked on April 8, 9, and 11, 2016. He sought
medical treatment on April 12, 2016.
Dr. Vedat Obuz, an internist, examined appellant on April 12, 2016 and diagnosed back
pain. He ordered diagnostic testing and indicated that appellant was totally disabled from work.
On May 23, 2016 appellant submitted a magnetic resonance imaging (MRI) scan of his lumbar
spine dated April 19, 2016. This test demonstrated bilateral spondylolysis at L3 and broad-based
posterior disc protrusion at L3-4. Appellant also provided a May 3, 2016 duty status report (Form
CA-17) from Dr. Obuz diagnosing herniated disc, mechanical low back pain, and elbow
tenderness. Dr. Obuz noted that appellant injured his back on April 7, 2016 pushing a container
of mail and provided work restrictions. He referred appellant to a neurosurgeon. On May 29,
2016 Dr. Obuz completed an additional form report, but diagnosed chronic lumbar sprain. He
provided an undated note which indicated that appellant injured his low back at work and
diagnosed lumbar radiculopathy with spasm and tenderness.
On June 7, 2016 Dr. Laura E. Ross, an osteopath, and a Board-certified orthopedic
surgeon, completed a Form CA-17 duty status report, which listed appellant’s history of injury
while pushing a mail container on April 7, 2016 and diagnosed L3-4 herniated disc.
By decision dated June 22, 2016, OWCP denied appellant’s traumatic injury claim, finding
that he failed to submit medical evidence demonstrating causal relationship between his diagnosed
conditions and his accepted April 7, 2016 employment incident.
In a narrative report dated June 7, 2016, Dr. Ross described appellant’s history of pushing
a wire cage at the employing establishment on April 7, 2016 and falling against the cage when it

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suddenly stopped. Appellant experienced low back and left elbow pain. The back pain returned
again on April 7, 2016 when he lifted a medium flat-rate box from a mail container. Dr. Ross
noted that appellant had no history of similar complaints. On physical examination she found
swelling in the left elbow with limited range of motion. She also found decreased sensation along
the ulnar nerve distribution in the left hand and positive Tinel’s sign and Phalen’s tests in the left
elbow. Appellant’s back examination demonstrated paravertebral muscle spasms and tenderness
with decreased sensation in the L5 and S1 distributions of the left leg. Dr. Ross found that
appellant’s MRI scan demonstrated a large disc herniation at the L4-5 level with stenosis.
Appellant underwent nerve conduction velocity and electromyogram testing on June 14,
2016 which demonstrated electrical evidence of ongoing right and left L3-4 radiculopathy.
Dr. Brad Tinkelman, a Board-certified neurologist, opined that this condition was “likely related
to the patient’s work injury of April, 2016.”
In a report dated June 22, 2016, Dr. R. Todd Rinnier, an osteopath, related appellant’s
history of injury on April 7, 2016 pushing a mail container which suddenly stopped and appellant
fell towards the container. Appellant reported lower back and left elbow pain as a result of the
April 7, 2016 incident. He denied a motor vehicle accident, work-related injury, or any type of
injury previously. On physical examination, Dr. Rinnier found that appellant’s left elbow range
of motion was limited due to pain. He also found loss of range of motion in appellant’s lumbar
spine with tenderness in the lumbosacral paraspinal muscles with trigger points and muscle spasm.
Dr. Rinnier reported reduced reflexes in the right lower extremity with reduced motor strength in
appellant’s quadriceps, plantar flexion, toe extension, and dorsiflexion. He reviewed appellant’s
April 19, 2016 MRI scan and found L3-4 disc protrusion, spondylolysis, and facet arthropathy.
Dr. Rinnier diagnosed post-traumatic lumbago, lumbar facet syndrome, disc herniation at L3-4,
lumbar radiculopathy, muscle spasm, myofascial pain syndrome, and left elbow pain.
On June 24, 2016 appellant underwent a lumbar computerized tomography (CT) scan
which demonstrated disc bulging at L2 through L5. He underwent a lumbar MRI scan on June 25,
2016 which demonstrated bilateral spondylolysis at L3, broad disc herniation at L3-4 encroaching
the L3 nerve roots, and disc bulging or protrusion at L4-5. On June 27, 2016 appellant underwent
a L3-4 laminectomy and facetectomy.3
The employing establishment provided appellant with a Form CA-16 authorization for
examination or treatment on July 26, 2016.
On August 11, 2016 appellant underwent a left elbow MRI scan which demonstrated
partial thickness interstitial tear of the common extensor tendon at its humeral attachment. This
study also demonstrated thickening of the proximal lateral ulnar collateral ligament and thickening
and hyperintensity of the ulnar nerve. Dr. Ross completed a report on September 8, 2016 and
found tenderness to palpation of over the lateral aspect of the left elbow. She reviewed appellant’s

3

On June 30, 2016 appellant filed an additional traumatic injury claim (Form CA-1) alleging that, on June 24, 2016,
he was hospitalized due to an April 24, 2016 employment injury. Appellant’s supervisor noted on the claim form that
appellant related that he was experiencing back pain, as well as numbness and weakness in his legs from the April 7,
2016 incident.

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elbow MRI scan and noted that he injured his left elbow in the work-related injury that occurred
on April 7, 2016.
In a note dated September 12, 2016, Dr. Robert M. Greenleaf, an orthopedic surgeon,
described appellant’s history as mild intermittent low back pain until April … when he suffered
an acute exacerbation at work….” He diagnosed low back pain, lumbosacral disc disease, and
lumbar stenosis.
On November 21, 2016 appellant, through counsel, requested reconsideration of the
June 22, 2016 decision. Counsel submitted a November 10, 2016 report from Dr. Greenleaf
describing appellant’s employment incident of April 7, 2016 as pushing a wire cage of mail when
the cart stopped suddenly due to faulty wheels. Appellant collided with the cart and fell over the
top of the cart with a violent lurch forward. He experienced pain in his elbow and lower back.
Appellant sought medical treatment on April 12, 2016. Dr. Greenleaf first examined appellant on
June 24, 2016 and on June 27, 2016 performed lumbar spine surgery. He reviewed appellant’s CT
scan and found grade 1 isthmic spondylolisthesis at the L3-4 level with bilateral fractures of the
pars elements of L3. Dr. Greenleaf explained:
“[Appellant] has a condition in his spine with the L3-4 isthmic spondylolisthesis
which has most likely been present for the majority of his adult life. These fractures
usually occur during childhood and adolescent age periods. Less than 10 percent
of patients with this injury experience significant amounts of pain until there is
progression of instability with these injuries…. However, the incident on April 7,
2016 caused an exacerbation of [appellant’s] problem and caused an injury to disc
level which compromised the stability at the L3-4 level. This caused his herniation
as well as the stenosis impinging of the bilateral nerve roots…. Therefore, with a
reasonable degree of medical certainty [appellant’s] injury of April 7, 2016 caused
an exacerbation of his problem and left him with the associated low back pain as
well as radiating pain and paresthesia’s into his legs.”
By decision dated March 24, 2017, OWCP denied modification of its June 22, 2016
decision, finding that appellant had not submitted sufficient medical evidence explaining how his
April 7, 2016 employment incident caused or aggravated his diagnosed elbow and lumbar
conditions.4
On May 15, 2017 appellant, through counsel, requested reconsideration of the March 24,
2017 decision. Counsel submitted an additional report from Dr. Greenleaf. On May 2, 2017
Dr. Greenleaf explained how appellant’s employment incident resulted in his diagnosed back
conditions. He reported that, a deceleration injury while walking, as appellant described his
April 7, 2016 employment injury, “causes a sudden flexion injury across the disc space. The
body’s core musculature does not have time to fire and stabilize across the discs. This leads to
excess micromotion and stretching/tearing/weakening of fibers in the annulus. The nucleus
pulposus then pushes into this weakened structure causing a worsening disc bulge and collapse
4

Counsel appealed the March 24, 2017 decision to the Board on May 3, 2017. He withdrew this appeal request on
May 4, 2017. The Board issued an Order Dismissing Appeal on May 24, 2017. Docket No. 17-1148 (issued
May 24, 2017).

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vertically of the disc. This collapse causes more loading of the facet joints and narrowing of the
neural foramen which contributes to back pain and nerve impingement.” Dr. Greenleaf attributed
appellant’s condition to pushing the wire cage which stopped suddenly on April 7, 2016.
By decision dated August 11, 2017, OWCP denied modification finding that appellant had
not established causal relationship between the diagnosed conditions and the accepted employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.6
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific event
or incident, or series of events or incidents, within a single workday or shift. Such condition must
be caused by external force, including stress or strain which is identifiable as to time, place of
occurrence, and member or function of the body affected.”7 In order to determine whether an
employee actually sustained an injury in the performance of duty, OWCP begins with an analysis
of whether fact of injury has been established. Generally, fact of injury consists of two components
which must be considered in conjunction with one another. The first component to be established
is that the employee actually experienced the employment incident which is alleged to have
occurred.8 The second component is whether the employment incident caused a personal injury.9
An employee may establish that an injury occurred in the performance of duty as alleged, but fail
to establish that the disability or specific condition for which compensation is being claimed is
causally related to the injury.10
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.11 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
5

Supra note 2.

6

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

7

20 C.F.R. § 10.5(ee).

8

Elaine Pendleton, 40 ECAB 1143 (1989).

9

Id.; M.P., Docket No. 17-1221 (issued August 21, 2017).

10

Shirley A. Temple, 48 ECAB 404, 407 (1997); M.P., id.

11

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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relationship between the diagnosed condition and the specific employment factors identified by
the employee.12 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.13
ANALYSIS
The Board finds that appellant has not established a left elbow condition causally related
to the accepted employment injury. The Board also finds that this case is not in posture for a
decision regarding appellant’s alleged lumbar condition.
Appellant alleged that he sustained left elbow and lower back conditions as a result of the
accepted April 7, 2016 work incident. OWCP denied his claim finding that he had not established
an injury causally related to the accepted April 7, 2016 employment incident.
Regarding appellant’s left elbow condition, in a report dated June 7, 2016 Dr. Ross noted
his history of injury, and physical examination findings. She noted that he had swelling in the
elbow, limited range of motion, decreased sensation along the ulnar nerve distribution, and positive
Tinel’s and Phalen’s signs. This report is of limited probative value with respect to establishing
causal relationship between appellant’s left elbow condition and the April 7, 2017 employment
incident because Dr. Ross did not provide a diagnosis or discuss the cause of the condition.14 The
Board has held that medical evidence which does not offer a clear opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.15
In her September 8, 2016 report, Dr. Ross noted that appellant had tenderness over the
lateral aspect of the left elbow. She reviewed his left elbow MRI scan dated August 11, 2016,
which demonstrated partial thickness interstitial tear of the common extensor tendon at the humeral
attachment, thickening of the proximal lateral ulnar collateral ligament and thickening and
hyperintensity of the ulnar nerve and concluded that he injured his left elbow during the April 7,
2016 employment incident. The diagnostic testing of record, including the left elbow MRI scan,
is not probative to the issue of causal relationship as it does not offer any opinion regarding the
cause of an employee’s condition.16 Regarding the conclusion drawn by Dr. Ross that appellant’s
April 7, 2016 employment incident caused the left elbow conditions seen on MRI scan, the Board
has held that a medical report is of limited probative value on the issue of causal relationship if it
contains a conclusion regarding causal relationship which is unsupported by medical rationale.17
She did not explain the medical process through which the employment incident would have

12

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

13

Dennis M. Mascarenas, 49 ECAB 215 (1997).

14

See C.H., Docket No. 17-1568 (issued October 26, 2012).

15

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

16

S.S., Docket No. 16-1760 (issued January 23, 2018).

17

C.M., Docket No. 14-0088 (issued April 18, 2014).

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caused his left elbow condition. Dr. Ross did not explain how specific objective findings on
physical examination and diagnostic testing supported her opinion on causal relationship.18
Dr. Rainer in his June 22, 2016 report related appellant’s history of injury, left elbow pain
complaints, and physical examination findings. He diagnosed left elbow pain. The Board has
consistently held that pain is a symptom, rather than a compensable medical diagnosis.19
Consequently, the Board finds that appellant has not met his burden of proof to establish
with a rationalized medical opinion that his left elbow condition was causally related to the
accepted April 7, 2016 employment incident.
Regarding appellant’s alleged lumbar condition, appellant submitted reports from
Dr. Greenleaf dated November 10, 2016 and May 2, 2017 which included opinions that appellant’s
diagnosed back conditions and resulting surgeries were the result of the April 7, 2016 pushing
incident. Dr. Greenleaf diagnosed lumbosacral disc disease and lumbar stenosis. He provided a
clear description of the April 7, 2016 pushing incident. Dr. Greenleaf explained how appellant’s
preexisting condition of L3-4 isthmic spondylolisthesis which has most likely been present for the
majority of his adult life, and that the incident on April 7, 2016 caused an exacerbation of this
condition through injury to disc level which compromised the stability at the L3-4 level. He
concluded that this compromised stability caused appellant’s disc herniation as well as the stenosis
impinging the bilateral nerve roots. In his May 2, 2017 report, Dr. Greenleaf provided
biomechanical explanations of how appellant’s deceleration injury weakened the annulus and
caused a disc bugle and vertical collapse of the disc further causing loading of the facet joints and
narrowing of the neural foramen which resulted in back pain and nerve impingement.
The Board finds that, although Dr. Greenleaf’s opinion is not completely rationalized to
meet appellant’s burden of proof on causal relationship, it is of sufficient probative value to warrant
additional development.20 Dr. Greenleaf provided a biomechanical explanation as to how
appellant’s deceleration incident caused his lumbar condition. However, OWCP did not undertake
further development of the medical record, such as referring appellant for a second opinion
examination.21
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done.22 This case is remanded to OWCP for preparation of a statement of accepted facts
18

See M.M., Docket No. 17-1071 (issued November 1, 2017).

19

See P.S., Docket No. 12-1601 (issued January 2, 2013).

20

R.M., Docket No. 17-1652 (issued January 5, 2018); M.K., Docket No. 17-1140 (issued October 18, 2017);
John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 280 (1978); see also E.J., Docket No. 09-1481
(issued February 19, 2010).
21

Id.

22
D.G., Docket No. 15-0702 (issued August 27, 2015); Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).

7

and further development of the medical evidence. Following this and any other development
deemed necessary, OWCP shall issue a de novo decision in the case.23
CONCLUSION
The Board finds that appellant has not established that his left elbow condition was causally
related to the accepted employment incident. The Board also finds that this case is not in posture
for decision as to whether his diagnosed lumbar condition is causally related to the accepted
April 7, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 11, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further development consistent with this opinion.
Issued: June 15, 2018
Washington, DC

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

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

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

23

The Board notes that the employing establishment issued a Form CA-16 Authorization for Medical Treatment
on July 7, 2016. A properly completed CA-16 form authorization may constitute a contract for payment of medical
expenses to a medical facility or physician, when properly executed. The form creates a contractual obligation, which
does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the action
taken on the claim. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003). On return of the case, OWCP
shall also determine whether the CA-16 form of record in this case properly authorized any medical treatment.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
U.S. POSTAL SERVICE, MOUNT HOOD
DELIVERY DISTRIBUTION CENTER,
Portland, OR, Employer
__________________________________________

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

Docket No. 17-1591
Issued: November 16, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 30, 2017 appellant filed a timely appeal from a May 15, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $1,152.59 for the period May 29 to June 25,
2016; and (2) whether OWCP properly denied waiver of recovery of the overpayment.
On appeal appellant disagrees with OWCP’s overpayment determination, contending that
he did not receive all the money owed to him.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 15, 2015 appellant, then a 52-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that he sustained left shoulder, left elbow, and left hand injuries on
that day at work. He claimed that he was moving a full general purpose mail container (rom a
loading area when he was hit in the left arm by two general purpose mail containers. Appellant
stopped work on the date of injury. On December 7, 2015 OWCP accepted the claim for
unspecified sprain of the left shoulder joint, initial encounter and paid temporary total disability
compensation as of December 5, 2015.
Appellant returned to part-time, limited-duty work on January 28, 2016. He received
supplemental rolls payments for partial disability from January 23 to April 30, 2016. Appellant’s
physician placed appellant off of work from May 1 through 31, 2016. OWCP began paying him
compensation for total disability on the supplemental rolls.
On June 20, 2016 OWCP placed appellant on the periodic rolls and paid him
retroactively temporary total disability compensation in the amount of $3,019.26 for the period
May 29 to June 25, 2016 as the employing establishment had verified that no work hours were
available.
The employing establishment, on June 24, 2016, informed OWCP that appellant had
returned to full-time, limited-duty work (including overtime) on June 16, 2016.
On July 13, 2016 OWCP accepted appellant’s claim for unspecified sprain of the left
shoulder joint, subsequent encounter; injury of the brachial plexus, subsequent encounter; and
impingement of the left shoulder.
By letter dated April 10, 2017, OWCP advised appellant of its preliminary determination
that he received a $1,152.59 overpayment of compensation for the period May 29 to June 25,
2016 because he continued to receive total disability compensation after his return to full-time
limited-duty work on June 16 through 25, 2016.2 It also made a preliminary finding that he was
not at fault in creating the overpayment because he was not aware nor could he have been
reasonably expected to know that it had incorrectly paid compensation. OWCP advised
appellant that he could submit evidence challenging the fact, amount, or finding of fault and
request waiver of recovery of the overpayment. Additionally, it informed him that, within 30
days, he could request a telephone conference, a final decision based on the written evidence, or
a prerecoupment hearing. OWCP requested that appellant complete the enclosed overpayment
recovery questionnaire (Form OWCP-20) and submit supporting financial documents. Appellant
did not respond.3
2

OWCP explained that appellant received a net compensation payment of $3,019.26 from May 29 to June 25,
2016, but should have only received a net payment of $1,866.67. The difference between the two amounts was
$1,152.59, the amount of the overpayment. The record also contains an OWCP worksheet and payment records
documenting the payment at issue.
3

On April 4, 2017 OWCP denied appellant’s claim for disability compensation beginning December 29, 2016.
Appellant appealed this decision to the Board on April 13, 2017. This issue was addressed by the Board under
Docket No. 17-1048 (issued October 27, 2017).

2

In a May 15, 2017 decision, OWCP finalized its preliminary determination that an
overpayment of compensation was created in the amount of $1,152.59 for the period May 29
through June 25, 2016. It also denied waiver of recovery of the overpayment, noting that
appellant did not submit the requested financial information.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.4 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.5 A claimant is only entitled to receive wage-loss compensation due to
disability for those periods during which his or her work-related medical condition prevents him
or her from earning the wages earned before the work-related injury.6 OWCP procedures
provide that an overpayment of compensation is created when a claimant returns to work, but
continues to receive wage-loss compensation.7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $1,152.59 for the period May 29 through June 25, 2016.
In the present case, appellant began receiving wage-loss compensation for total disability
as of December 5, 2015. Following his return to part-time, limited-duty work, OWCP paid him
wage-loss benefits for partial disability on the supplemental payment rolls from January 23 to
April 30, 2016. After appellant’s physician took him off work, it paid him wage-loss
compensation for total disability. OWCP subsequently placed him on the periodic compensation
rolls and paid retroactive wage-loss compensation payment for the period May 29 to
June 25, 2016. The record indicates, however, that appellant had returned to full-time, limitedduty work including overtime on June 16, 2016. Appellant does not contest that he returned to
full-time work on that date.
As noted above, a claimant is not entitled to receive compensation for total disability
during a period in which he or she had actual earnings.8 Therefore, an overpayment of
compensation was created in this case.

4

5 U.S.C. § 8102.

5

Id. at § 8116(a).

6

20 C.F.R. § 10.500.

7

Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Action, Chapter 6.200.2(a) (May 2004).
8

Supra note 6.

3

The amount of the overpayment was calculated to be $1,152.59. OWCP explained that
appellant received net compensation of $3,019.26 from May 29 to June 25, 2016, but should
have only received a net payment of $1,866.67 due to his return to full-time work on
June 16, 2016. The difference between the two net amounts was $1,152.59, the amount of the
overpayment. No contrary evidence was submitted. The Board accordingly finds that OWCP
properly found an overpayment of compensation in the amount of $1,152.59 was created during
the period May 29 to June 25, 2016.
On appeal appellant disagrees with OWCP’s overpayment decision, contending that he
did not receive all the money owed to him. However, he has not submitted any evidence to
establish his contention that he received less than the amount to which he claims he was entitled
during the period at issue.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.9 These statutory guidelines
are found in section 8129(b) of FECA which provides: “Adjustment or recovery of an
overpayment by the United States may not be made when incorrect payment has been made to an
individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”10 If OWCP finds a claimant to
be without fault in the matter of an overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
or her income (including compensation benefits) to meet current ordinary and necessary living
expenses and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.11 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his or her position for
the worse.12 To establish that a valuable right has been relinquished it must be shown that the

9

See Robert Atchison, 41 ECAB 83, 87 (1989).

10

5 U.S.C. § 8129(b).

11

20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio
Martinez, 55 ECAB 245 (2004). OWCP procedures provide that assets must not exceed a resource base of
$4,800.00 for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent. Supra note 7 at Chapter 6.200.6(a) (June 2009).
12

Id. at § 10.437(a), (b).

4

right was in fact valuable, that it cannot be regained, and that the action was based chiefly or
solely in reliance on the payments or on the notice of payment.13
Section 10.438 of OWCP regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. This
information will also be used to determine the repayment schedule, if necessary. Failure to
submit the requested information within 30 days of the request shall result in denial of waiver,
and no further request for waiver shall be considered until the requested information is
furnished.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation.15
As appellant was found to be without fault in the creation of the overpayment in
compensation, waiver must therefore be considered. Repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against
equity and good conscience.
In its preliminary notice of overpayment dated April 10, 2017, OWCP requested that
appellant provide a completed OWCP-20 form overpayment recovery questionnaire and
supporting financial information. Appellant failed to submit the completed overpayment
recovery questionnaire with supporting financial information. Further, he made no argument that
he gave up a valuable right or changed his position for the worse in reliance on the overpaid
compensation prior to the issuance of OWCP’s May 15, 2017 decision. Thus, the evidence
before OWCP was insufficient to determine whether recovery of the overpayment would defeat
the purpose of FECA or would be against equity or good conscience.16 Accordingly, as required
by section 10.438 of its regulations, appellant was not entitled to a waiver.17 The Board finds
therefore that OWCP properly denied waiver of recovery of the $1,152.59 overpayment of
compensation.18

13

Id. at § 10.437(b)(1).

14

Id. at § 10.438.

15

R.H., Docket No. 15-0392 (issued February 3, 2016).

16

20 C.F.R. § 10.438(a) (in requesting waiver, the overpaid individual has the responsibility for providing
financial information).
17

J.V., Docket No. 15-0140 (issued November 25, 2015).

18

B.T., Docket No. 14-1669 (issued December 28, 2015); M.S., Docket No. 11-0096 (issued August 17, 2011).

5

CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $1,152.59 for the period May 29 to June 25, 2016. The Board
further finds that OWCP properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the May 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
U.S. POSTAL SERVICE, RUGBY STATION,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 14-531
Issued: June 12, 2014

Case Submitted on the Record

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

JURISDICTION
On January 6, 2014 appellant filed a timely appeal from a July 12, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Because more than 180 days elapsed from the most recent merit decision dated
June 1, 2012 to the filing of this appeal, the Board lacks jurisdiction to review the merits of this
case pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

2

See 20 C.F.R. § 501.3(e).

On appeal, appellant contends that the medical evidence is sufficient to establish her
continuing employment-related residuals and disability.
FACTUAL HISTORY
This case has previously been before the Board.3 In an April 24, 2012 decision, the
Board set aside the April 8, 2011 decision, finding that it improperly denied appellant’s request
for reconsideration of the merits of its termination of her wage-loss compensation and medical
benefits under 5 U.S.C. § 8128. The Board remanded the case to OWCP for a merit review of
her claim. The relevant facts are set forth below.
OWCP accepted that on December 3, 1998 appellant, then a 72-year-old letter carrier,
sustained a lumbosacral and left knee sprain when she tripped on steps at work. In a
September 22, 2008 decision, it terminated her wage-loss compensation and medical benefits
effective September 28, 2008 based on an April 2, 2008 medical report of Dr. Michael P. Rafiy,
a Board-certified orthopedic surgeon and OWCP referral physician. OWCP found that Dr. Rafiy
represented the weight of the medical evidence and established that appellant no longer had any
residuals or disability causally related to her accepted December 3, 1998 employment injuries.
Following remand, OWCP issued a June 1, 2012 decision. It denied modification of its
prior termination decision. OWCP found that the medical evidence submitted did not provide a
rationalized medical opinion establishing that appellant had any continuing residuals or disability
causally related to her December 3, 1998 employment injuries.
By letter dated May 25, 2013, appellant requested reconsideration. She contended that
the accompanying medical evidence outweighed the weight accorded to Dr. Rafiy’s medical
opinion. A copy of appellant’s prescription record from January 1, 2007 to April 16, 2012
indicated that she paid $113.81 for medication during the stated period. A May 1, 2012 letter
from the Office of Personnel Management (OPM) advised appellant that her application for
disability retirement had been approved.
In a July 12, 2013 decision, OWCP denied appellant’s request for reconsideration without
a merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,4
OWCP’s regulations provide that a claimant must: (1) establish that OWCP erroneously applied
or interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.5 To be entitled to a merit review of an OWCP decision denying or
3

Docket No. 12-18 (issued April 24, 2012).

4

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

20 C.F.R. § 10.606(b)(1)-(3).

2

terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.6 Section 10.608(b) of the implementing regulations state that any
application for review that does not meet at least one of the requirements listed in 20 C.F.R.
§ 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.7
ANALYSIS
On May 25, 2013 appellant disagreed with OWCP’s June 1, 2012 decision, denying
modification of its decision to terminate her wage-loss compensation and medical benefits on the
grounds that the medical opinion of Dr. Rafiy, an OWCP referral physician, constituted the
weight of the medical evidence and established that she no longer had any residuals or disability
causally related to the accepted December 3, 1998 employment injuries. She requested
reconsideration.
The Board finds that appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. Appellant did not advance a relevant legal argument or
submit relevant and pertinent new evidence not previously considered. In a May 25, 2013
request for reconsideration, she contended that the medical evidence of record and with her
request was sufficient to outweigh Dr. Rafiy’s opinion. As the underlying issue in this case,
termination of benefits based on appellant’s accepted lumbosacral and left knee sprains, is
medical in nature, it can only be resolved through the submission of medical evidence.8
Appellant’s lay opinion regarding the weight of the medical opinion evidence is not relevant.
The Board has held that lay individuals are not competent to render a medical opinion.9 The
Board finds, therefore, that appellant’s contention is insufficient to warrant further merit review
of appellant’s claim.
Appellant submitted a copy of her prescription record from January 1, 2007 to
April 16, 2012 which showed the amount she paid for medication during the period. Although
the prescription record is new, it is not relevant because it does not contain a physician’s opinion
addressing whether she continued to have residuals or disability causally related to the
December 3, 1998 employment injuries. The Board has held that the submission of evidence
which does not address the particular issue involved in the case does not constitute a basis for
reopening the claim.10
The May 1, 2012 letter from OPM advised that appellant’s application for disability
retirement had been approved. Since, as noted, the underlying issue is medical in nature, this
evidence is not relevant to whether appellant has residuals or disability of the accepted

6

Id. at § 10.607(a).

7

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

8

See George C. Vernon, 54 ECAB 319 (2003).

9

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

10

D’Wayne Avila, 57 ECAB 642 (2006).

3

employment injuries. Appellant did not otherwise submit any pertinent new and relevant
medical evidence following OWCP’s June 1, 2012 merit decision.
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of her claim pursuant to the requirements under section 10.606(b)(3).
OWCP properly denied appellant’s May 25, 2013 request for reconsideration.
On appeal, appellant contended that the medical evidence she submitted was sufficient to
establish her continuing employment-related residuals and disability. As noted, the Board does
not have jurisdiction over the merits of her claim, only whether she submitted sufficient evidence
to warrant reopening of her claim for a merit review under 20 C.F.R. § 10.606(b)(3). The
evidence submitted in support of appellant’s request for reconsideration is insufficient to warrant
reopening her claim for merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2014
Washington, DC

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

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

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

4


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

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

Docket No. 17-0565
Issued: July 2, 2018

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 January 17, 2017 appellant filed a timely appeal from an August 18, 2016 merit
decision and a December 19, 2016 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she was
totally disabled for the period April 21 to 24, 2015 causally related to her employment injury; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant, a 55-year-old transportation supervisor, sustained a right
shoulder and upper arm sprain on August 18, 2014 as a result of being physically assaulted by an
employee at work when he grabbed her shoulder in an attempt to stop her from using a telephone.
Appellant stopped work on the date of injury and then returned to full-time, regular duty on
November 28, 2014.2
Appellant filed a claim for compensation (Form CA-7) for the period April 21 to 24, 2015.
In reports dated February 4 and April 21, 2015, Dr. Craig E. Whitmore, a Board-certified
physiatrist, diagnosed right rotator cuff tear and shoulder pain and checked a box marked “yes”
indicating that appellant was unable to work. He advised that appellant would be able to work
with restrictions as of April 27, 2015.
In a May 8, 2015 letter, OWCP advised appellant that it had received her claim and noted
that she had returned to work on November 28, 2014 in a full-time, full-duty capacity and then
stopped working on April 21, 2015. It requested additional medical evidence establishing
appellant’s disability for work during the period claimed and afforded her 30 days to respond to
its inquiries.
In response, appellant submitted a May 20, 2015 narrative statement indicating that on
April 21, 2015 she woke up and could not move her right arm without the assistance of her left
arm. Prior to going to sleep, she had not experienced anything out of the normal. Appellant stated
that she always experienced right shoulder pain since the work injury, so it was normal for her to
go to bed in pain, but the April 21, 2015 event was spontaneous and occurred without warning.
She reported that she called her supervisor and informed her that she was attempting to make a
doctor’s appointment. Appellant was able to get an emergency appointment on April 21, 2015
where she was given an ultrasound of the right shoulder. She noted that she received an injection
directly in the tear of her right shoulder in the rotator cuff.
On February 4, 2015 Dr. Whitmore noted that appellant’s chief complaint was low back
pain radiating down the right leg and right shoulder pain status post trauma. He diagnosed
degenerative joint and disc disease of the cervical and lumbar spine, nerve root impingement on
the right L5 and S1 nerve roots in the lateral recesses, bilateral sacroiliitis, chronic low back pain,
and mild right rotator cuff tendon pathology.
In an April 21, 2015 report, Dr. Whitmore indicated that appellant was in telephone contact
with his office stating that she wanted to receive more injections, including a cervical injection
because she could not move around. Prior to any further injections, he requested an evaluation.
Appellant indicated that the right shoulder had been bothering her for a couple of days and
reiterated that she could not move it. She stated that she could not go to work that day because of
the discomfort. Dr. Whitmore diagnosed acute right shoulder pain, right supraspinatus tear,
possibly chronic, biceps tenosynovitis, ruled out labral tear and superior labral tear from anterior
to posterior (SLAP) tear, chronic degenerative joint and disc disease of the lumbar spine resulting
2

The record establishes that appellant has an open claim for a back condition under File No. xxxxxx037.

2

in bilateral L5-S1 radiculitis, and bilateral sacroiliitis. He found that an ultrasound of the right
shoulder demonstrated tenosynovitis of the right biceps without evidence of tendinitis or rupture.
Appellant had an eight millimeter supraspinatus tear with slight retraction of the distal tendon.
There was a slight swelling of the bursa and mild tendinosis of the supraspinatus. The infraspinatus
was normal and there was no appreciable joint effusion. Dr. Whitmore administered a right
supraspinatus tendon sheath injection and took appellant off of work until April 27, 2015.
On May 26, 2015 Dr. Whitmore reported that he had been treating appellant since
November 2011 for work-related pain and diagnosed mild right rotator cuff tendon pathology. He
noted that appellant experienced a work-related right shoulder injury on August 18, 2014 when
she had an altercation with a fellow employee. Appellant underwent a right shoulder magnetic
resonance imaging (MRI) scan on September 8, 2014, which reported inflammatory arthritic
changes of the acromioclavicular joint, tendinosis, and partial thickness rotator cuff tear of the
subscapularis.
By decision dated June 26, 2015, OWCP denied appellant’s claim for disability for the
period April 21 to 24, 2015 because the medical evidence of record was insufficient to support
disability due to the employment injury.
On July 7, 2015 appellant requested an oral hearing by a representative of the Branch of
Hearings and Review and submitted a July 13, 2015 narrative statement reiterating the factual
history of her claim. She also submitted Family and Medical Leave Act (FMLA) forms dated
April 27, 2015 signed by Dr. Whitmore who opined that she was incapacitated due to chronic
work-related pain for the period April 21 to 27, 2015.
In a February 12, 2016 report, Dr. Whitmore noted that appellant experienced a workrelated injury to her right shoulder on August 18, 2014 when she had an altercation with a fellow
employee. He indicated that she continued to work through her pain with medication and
restrictions, but the medications were not helping. Appellant returned to Dr. Whitmore’s office
on April 21, 2015 with continued severe right shoulder pain related to the original August 18, 2014
injury. Dr. Whitmore administered an injection to treat the right shoulder on April 21, 2015 and
she followed his advice to rest for three days. He explained that appellant took three days off of
work due to her work-related right shoulder condition and his recommendations.
A telephonic hearing was held before an OWCP hearing representative on
February 8, 2016. Appellant provided testimony and the hearing representative held the case
record open for 30 days for the submission of additional evidence.
Subsequently, appellant submitted a February 25, 2016 report from Dr. Whitmore who
reiterated his February 12, 2016 report, but edited it to state that appellant had been “physically
assaulted by a fellow employee” and had been advised to take four days off of work.
By decision dated March 15, 2016, OWCP’s hearing representative affirmed the prior
decision, finding that the medical evidence submitted was insufficient to establish appellant’s
disability due to the April 21, 2015 injection was causally related to the accepted condition of right
shoulder sprain.

3

On March 22, 2016 appellant requested reconsideration and submitted a duty status report
(Form CA-17) dated June 20, 2016.
In a June 7, 2016 report, Dr. Whitmore noted that appellant had several medical problems
which disallowed her from working more than five days per week. On July 26, 2016 he opined
that appellant was totally disabled for work for the period July 12 to August 22, 2016 due to a disc
herniation.
By decision dated August 18, 2016, OWCP denied modification of its prior decision.
On September 9, 2016 appellant requested reconsideration and submitted narrative
statements reiterating the factual history of her claim and arguing that OWCP failed to consider
previously submitted medical evidence from her doctor, Dr. Todd Frush, a Board-certified
orthopedic surgeon. She also submitted a police report dated August 18, 2014 documenting her
assault.
Appellant resubmitted medical evidence dated October 1, November 13, and
December 11, 2014 from Dr. Frush diagnosing right partial tear of rotator cuff, right biceps
tenosynovitis, and right rotator cuff syndrome and providing the following work restrictions: no
overhead reaching; no lifting/carrying over 20 pounds; and no pushing/pulling over 20 pounds.
She further resubmitted an August 18, 2014 emergency room discharge report and a work excuse
note dated December 3, 2015. Appellant also resubmitted reports dated May 26, 2015 and
February 25, 2016 from Dr. Whitmore.
By decision dated December 19, 2016, OWCP denied appellant’s request for
reconsideration without a merit review because she failed to advance a relevant legal argument or
submit any relevant and pertinent new evidence.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA3 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”4 This meaning, for brevity, is expressed as disability for work.5
For each period of disability claimed, an employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.6 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical

3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f); see also William H. Kong, 53 ECAB 394 (2002).

5

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

6

See William A. Archer, 55 ECAB 674 (2004).

4

issues, which must be proved by the preponderance of the reliable, probative, and substantial
medical evidence.7
Disability is not synonymous with physical impairment, which may or may not result in an
incapacity to earn wages. An employee who has a physical impairment causally related to his or
her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA, and is not entitled
to compensation for loss of wage-earning capacity. The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that she was
totally disabled for the period April 21 to 24, 2015 causally related to her employment injuries.
While OWCP accepted that appellant sustained a right shoulder and upper arm sprain, she bears
the burden to establish through the submission of medical evidence that she was disabled during
the claimed time period and that her disability was causally related to the accepted injury.9 The
Board finds that she did not submit rationalized medical evidence explaining how the employment
injuries materially worsened or aggravated her right shoulder and upper arm conditions and caused
her to be disabled for work for the period April 21 to 24, 2015.
In his reports, Dr. Whitmore diagnosed right rotator cuff tear, degenerative joint and disc
disease of the cervical and lumbar spine, nerve root impingement on the right L5 and S1 nerve
roots in the lateral recesses, bilateral sacroiliitis, chronic low back pain, and mild right rotator cuff
tendon pathology. He reported that he had seen appellant since November 2011 for work-related
pain and indicated that more recently he had been treating her for an August 18, 2014 work-related
right shoulder injury. In his February 12, 2016 report, Dr. Whitmore noted that appellant returned
to his office on April 21, 2015 with continued severe right shoulder pain related to the original
August 18, 2014 employment injury, he administered an injection, and then advised her to rest for
three days. Subsequently, in a February 25, 2016 report, he reiterated his February 12, 2016 report,
but edited it to note that appellant had been “physically assaulted by a fellow employee” and had
been advised to take four days off of work. Although Dr. Whitmore opined that appellant was
totally disabled for work, his opinion is conclusory in nature, and fails to explain in detail how the
accepted medical conditions were responsible for appellant’s disability and why she could not
perform her federal employment during the period claimed.10 Consequently, the Board finds that
Dr. Whitmore’s reports are insufficient to establish appellant’s claim that she was totally disabled
for the period April 21 to 24, 2015 causally related to her employment injuries.

7

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

8

Id.

9

See supra notes 7 and 8. See also V.P., Docket No. 09-0337 (issued August 4, 2009).

10

See J.J., Docket No. 15-1329 (issued December 18, 2015).

5

The Board notes that the previously submitted medical evidence of record fails to address
the period claimed and, therefore, lacks probative value to establish appellant’s claim.
The Board finds appellant’s doctor has not provided sufficiently rationalized medical
opinion evidence establishing that she was disabled during the period April 21 to 24, 2015 causally
related to the employment injuries. Thus, appellant has not met her burden of proof to establish
that she is entitled to compensation for total disability.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.11 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.12 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.13
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.14 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.15
ANALYSIS -- ISSUE 2
Appellant’s September 9, 2016 request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that she did not advance a relevant legal argument not previously considered by
OWCP. Appellant argued that OWCP had failed to consider all the evidence she properly
submitted. The Board, however, finds that OWCP properly considered all of the evidence of
record before denying appellant’s claims for disability in its August 18, 2016 decision.
11
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
12

20 C.F.R. § 10.607.

13

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.
14

20 C.F.R. § 10.606(b)(3).

15

Id. at § 10.608(a), (b).

6

Consequently, appellant is not entitled to further review of the merits of her claim based on the
first and second above-noted requirements under section 10.606(b)(3).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP. Along with her reconsideration request, appellant submitted a police report
dated August 18, 2014 documenting her assault. The Board finds that submission of this document
did not require reopening appellant’s case for merit review. As OWCP denied appellant’s claim
based on the lack of supportive medical evidence establishing disability for the period April 21
to 24, 2015 and this document does not constitute medical evidence, it is irrelevant and fails to
constitute relevant and pertinent new evidence. Thus, this evidence is insufficient to require
OWCP to reopen appellant’s claim for consideration of the merits.16
In support of her request for reconsideration, appellant resubmitted medical evidence dated
October 1, November 13, and December 11, 2014 from Dr. Frush diagnosing right partial tear of
rotator cuff, right biceps tenosynovitis, and right rotator cuff syndrome and providing work
restrictions. She further resubmitted an August 18, 2014 emergency room discharge report and a
work excuse note dated December 3, 2015. The Board finds that the submission of this evidence
did not require reopening appellant’s case for merit review because appellant had submitted the
same evidence, which was previously reviewed by OWCP in its prior decisions. Moreover, the
Board finds that this medical evidence fails to address the period claimed and is, therefore,
irrelevant to the issue that was before OWCP. Thus, appellant has not established a basis for
reopening her case.17
Appellant also resubmitted reports dated May 26, 2015 and February 25, 2016 from
Dr. Whitmore. The Board finds that the submission of these reports did not require reopening
appellant’s case for merit review because appellant had submitted the same evidence, which was
previously reviewed by OWCP in its August 18, 2016 decision. As the reports repeat evidence
already in the case record, they are duplicative and fail to constitute relevant and pertinent new
evidence.18
The Board finds that OWCP properly determined that appellant was not entitled to further
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(3) and, thus, properly denied her request for reconsideration.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
totally disabled for the period April 21 to 24, 2015 causally related to her employment injury. The
Board further finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

16

See L.H., 59 ECAB 253 (2007).

17

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

18

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the December 19 and August 18, 2016 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: July 2, 2018
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Joplin, MO, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-1867
Issued: January 26, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 9, 2019 appellant filed a timely appeal from an August 20, 2019 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 19-1867.1
On October 10, 2017 appellant, then a 51-year-old rural carrier associate, filed a traumatic
injury form (Form CA-1) alleging that on October 2, 2017 she sustained left elbow, lumbar, and
cervical strains in a motor vehicle accident in the performance of duty. OWCP accepted the claim
for sprain of the ligaments of the cervical spine, a contusion of the right elbow, a sacroiliac joint
sprain, a right eye choroidal rupture, and a right eye retinal neovascularization. It paid appellant
wage-loss compensation on the supplemental rolls commencing November 18, 2017.
In a report dated May 13, 2019, Katherine M. Baker, a nurse practitioner, noted
assessments of spondylosis without myelopathy or radiculopathy, cervical region; neck pain; low
back pain; and sacroiliitis, not elsewhere classified. She opined that appellant could return to work
1

The Board notes that following the August 20, 2019 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 evidence for
the first time on appeal. Id.

with restrictions of lifting no more than 10 pounds, no pushing or pulling over 20 pounds, no
carrying over 10 pounds, no computer work, no commercial driving, or binnocular vision work.
Standing was allowed with rest breaks for 15 minutes every hour.
The employing establishment subsequently offered appellant a modified assignment for
limited-duty work, effective June 3, 2019. The offer noted appellant’s date of injury as October 2,
2017 and provided work hours of 2 hours and 50 minutes daily, Monday to Saturday. Appellant
accepted the job offer on June 7, 2019.
On June 7, 2019 appellant filed a claim for compensation (Form CA-7) for intermittent
disability during the period May 25 through June 7, 2019. In an attached time analysis form (Form
CA-7a), appellant listed the specific dates and hours for which she was claiming compensation,
most days claiming either 4 or 5 hours of leave without pay (LWOP), but 2.17 hours of LWOP for
June 7, 2019. She indicated that on June 7, 2019 she worked 2.88 hours, and stated “short hours”
as the reason for her use of LWOP. The employing establishment certified that it paid $50.32 in
wages to appellant for her work during the period May 31 to June 7, 2019.
On June 10, 2019 OWCP received a copy of the employing establishment’s offer of a
modified assignment for limited-duty work, effective June 3, 2019.
In a development letter dated June 20, 2019, OWCP requested that the employing
establishment provide additional information concerning appellant’s Form CA-7 claim for
compensation for the period May 25 through June 7, 2019, including verification of appellant’s
pay status, the number of days/hours of leave without pay being claimed, and appellant’s pay rate
for her date-of-injury job effective May 25, 2019. It afforded the employing establishment 15 days
to respond.
On June 26, 2019 the employing establishment submitted a handwritten response to
OWCP’s June 20, 2019 development letter, indicating that appellant was off work due to a nonjobrelated injury from May 25 through 30, 2019 and that it “[m]ade job offer May 31, 2019.” The
employing establishment also noted that appellant was “[e]ntitled to compensation” for the period
May 31 through June 7, 2019 and her pay rate for her date of injury job effective May 25, 2019
was Level 05, Step W ($17.78/hr).
By decision dated August 20, 2019, OWCP denied appellant’s claim for compensation,
finding that the evidence of record was insufficient to establish that appellant was intermittently
disabled from work for the period May 25 through June 7, 2019. In its decision OWCP noted that
it had not received any evidence to support appellant’s claim.
The Board has duly considered the matter and finds that the case is not in posture for
decision and must be remanded to OWCP. In the case of William A. Couch,2 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued.

2

J.S., Docket No. 19-1073 (issued January 6, 2020).

2

The Board finds that OWCP failed to consider the June 3, 2019 modified job offer received
by OWCP on June 10, 2019. Whether OWCP receives relevant evidence on the date of the
decision or days before, such evidence must be considered.3 As the Board’s decisions are final as
to the subject matter appealed, it is crucial that all evidence relevant to the subject matter of the
claim properly submitted to OWCP be reviewed and addressed.4 The case will therefore be
remanded to OWCP to enable a proper consideration of the evidence that was of record at the time
of its August 20, 2019 decision to be followed by a de novo decision regarding appellant’s claim
for compensation.
IT IS HEREBY ORDERED THAT the August 20, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: January 26, 2021
Washington, DC

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

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

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

3

T.J., Docket No. 14-1854 (issued February 3, 2015); J.J., Docket No. 12-1062 (issued December 12, 2012);
William McKennon, 51 ECAB 145 (1999).
4

T.J., id.; see Yvette N. Davis, 55 ECAB 475 (2004).

3