United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
U.S. POSTAL SERVICE, NEW JERSEY
PROCESSING & DISTRIBUTION CENTER,
Kearny, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0168
Issued: May 10, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 31, 2018 appellant, through counsel, filed a timely appeal from an October 10,
2018 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.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 a September 25, 2018 schedule award decision is also within the Board’s jurisdiction.
However, appellant, through counsel, has only sought appeal from the October 10, 2018 merit decision relating to
appellant’s recurrence of disability claim. Thus, the Board will not review the September 25, 2018 schedule award
decision. See 20 C.F.R. § 501.3.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability commencing July 14, 2017 causally related to her accepted December 10, 2008
employment injury.
FACTUAL HISTORY
On December 10, 2008 appellant, then a 47-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on December 10, 2008 she sustained an injury when a postal
container moved and pinned her between the container and a safety rail while in the performance
of duty. She stopped work on that same date.4 OWCP accepted appellant’s claim for contusions
of her right elbow, left hip, and right hip, as well as spasm of her right shoulder muscle. It paid
her disability compensation on the daily rolls commencing January 26, 2009.
On June 24, 2014 appellant accepted a light-duty job with the employing establishment as
a modified mail handler. The duties of the mail handler position included engaging in surface
visibility scanning for three hours per day, sorting nonmachineable mail weighing under five
pounds for three hours per day, and engaging in empty equipment cleanup of mail weighing under
five pounds for two hours per day. The physical requirements of the mail handler position included
standing for seven hours per day, lifting limited to under five pounds, reaching above the shoulders
for eight hours with the left arm and four hours with the right arm, and simple grasping for eight
hours.
In a July 14, 2017 note Dr. Robert M. Palacios, an attending Board-certified orthopedic
surgeon, indicated that he reevaluated appellant on that date and found that she was able to return
to work as outlined in the offer of the modified mail handler assignment dated June 26, 2014.
On August 30, 2017 appellant filed a notice of recurrence (Form CA-2a) alleging that she
sustained a recurrence of disability on July 14, 2017 due to her accepted employment conditions.
She indicated on the recurrence claim form that she had been out of work for personal reasons and
noted that she had been released to return to modified-duty or light-duty work when she was out
on personal leave. On the portion of the recurrence claim form to be completed by the employing
establishment, a human resources management specialist indicated that a new job offer would be
drafted based on appellant’s medical restrictions in her prior job offer. She advised that appellant
had been performing light-duty work from June 4, 2009 through April 10, 2016 when she stopped
work on April 11, 2016 due to personal reasons. Appellant had attempted to return to work on
June 26, 2017.
Appellant submitted a duty status report (Form CA-17) dated July 14, 2017 in which
Dr. Palacios listed various work restrictions, including lifting up to four pounds for four hours per
day.
In a development letter dated September 11, 2017, OWCP requested that appellant submit
additional factual and medical evidence in support of her recurrence of disability claim. It provided
4
Appellant’s date-of-injury job required lifting up to 75 pounds and intermittently reaching above shoulder level
for up to eight hours per day.

2

a questionnaire and asked her to submit a narrative statement from her attending physician. OWCP
afforded appellant 30 days to respond.
In response, appellant submitted a statement in which she noted that she had stopped work
on April 11, 2016 due to aneurysms on her brain. She asserted that the employing establishment
was not allowing her to bid on her prior modified mail handler position.
Appellant submitted a June 22, 2017 report from Dr. Lillian Oyola, an attending Boardcertified neurologist. Dr. Oyola indicated that appellant could return to work as of June 26, 2017
and could perform all duties as tolerated.
In a July 14, 2017 narrative report, Dr. Palacios indicated that appellant had been doing
well in her modified mail handler assignment until about a year and a half ago when she needed
to take a 15-month leave of absence due to multiple cerebral aneurysms. He reported the findings
of the physical examination he conducted on that date, noting that “status post crush injury in 2008
resulted in residual pain pattern” and there still was some right “shoulder impingement/ residue”
exhibited during the examination. Dr. Palacios diagnosed low back pain with left radiation,
chronic left hip pain, and impingement syndrome of the right shoulder.
By decision dated November 30, 2017, OWCP denied appellant’s claim for an
employment-related recurrence of disability commencing July 14, 2017. It found that the medical
evidence submitted was insufficient to establish that she was disabled from work on or after
July 14, 2017 due to her accepted December 10, 2008 employment injury. OWCP determined that
appellant’s modified-duty assignment was not withdrawn by the employing establishment and
noted that appellant had stopped work on April 11, 2016 due to a nonwork-related aneurysm
condition.
On December 11, 2017 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on May 22,
2018, appellant testified that she underwent four surgeries between June 2016 and June 2017 for
her brain aneurysms. She asserted that, when she was released to return to work in June 2017, the
employing establishment told her that she had to be cleared for regular work to be allowed to return
to work.
By decision dated August 6, 2018, OWCP’s hearing representative affirmed OWCP’s
November 30, 2017 decision. He found that appellant had not shown that she was unable to work
on or after July 14, 2017 due to her December 10, 2008 employment injury, nor had she shown
that her modified-duty assignment had been withdrawn by the employing establishment.
On September 28, 2018 appellant, through counsel, requested reconsideration of the
August 6, 2018 decision. In a September 28, 2018 letter, counsel argued that appellant sustained
a recurrence of disability on July 14, 2017 because the employing establishment withdrew her
modified-duty assignment. He asserted that a September 28, 2015 report of Dr. Arthur Becan, an
attending Board-certified orthopedic surgeon, supported appellant’s recurrence of disability claim.
The report, which was already of record, indicated that appellant had permanent impairment of her
left upper extremity and right lower extremity.
By decision dated October 10, 2018, OWCP denied modification of the August 6, 2018
decision finding that appellant had not established that she was disabled from work on or after
3

July 14, 2017 due to her December 10, 2008 employment injury or that her modified-duty
assignment had been withdrawn.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.5 This term also means an inability to work because a modified-duty or light-duty
assignment made specifically to accommodate an employee’s physical limitations, and which is
necessary because of a work-related injury or illness, is withdrawn or altered so that the assignment
exceeds the employee’s physical limitations. A recurrence does not occur when such withdrawal
occurs for reasons of misconduct, nonperformance of job duties, or a reduction-in-force.6
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.7
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.8 Where no such rationale is present,
the medical evidence is of diminished probative value.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability commencing July 14, 2017 causally related to the accepted December 10, 2008
employment injury.

5

20 C.F.R. § 10.5(x); see J.D., Docket No. 18-1533 (issued February 27, 2019).

6

Id.

7
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket
No. 18-0533 (issued August 27, 2018).
8

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

9

H.T., Docket No. 17-0209 (issued February 8, 2018).

4

The Board notes that appellant has not shown that she was unable to work on or after
July 14, 2017 due to her December 10, 2008 employment injury, which was accepted for
contusions of her right elbow, left hip, and right hip, as well as spasm of her right shoulder muscle.
Much of the evidence submitted by appellant suggests that in mid-2017 she was able to
perform the type of light-duty work she had been performing prior to her April 10, 2016 work
stoppage due to her nonwork-related brain aneurysms. For example, in a June 22, 2017 report,
Dr. Oyola noted that appellant could return to work as of June 26, 2017 and could perform all
duties as tolerated. In a July 14, 2017 note, Dr. Palacios indicated that he reevaluated appellant on
that date and found that she was able to return to work as outlined in the offer of modified mail
handler position dated June 26, 2014.
In a duty status report dated July 14, 2017, Dr. Palacios listed various work restrictions,
including lifting up to four pounds for four hours per day. However, he did not provide a
rationalized medical opinion that these restrictions were necessitated by the accepted
December 10, 2008 employment injury. As noted above, a claimant must submit rationalized
medical evidence in support of a claim for recurrence of disability.10
In a July 14, 2017 narrative report, Dr. Palacios indicated that appellant had been doing
well in her modified mail handler assignment until about a year and a half ago when she needed
to take a 15-month leave of absence due to multiple cerebral aneurysms. He noted that “status
post crush injury in 2008 resulted in residual pain pattern” and there still was some right “shoulder
impingement/residue” exhibited during the examination. Dr. Palacios diagnosed low back pain
with left radiation, chronic left hip pain, and impingement syndrome of the right shoulder. The
submission of this report would not establish appellant’s claim for a recurrence of disability
because Dr. Palacios has not provided an opinion on disability or otherwise provided medical
rationale relating an employment condition to a period of disability commencing on or after
July 14, 2017.11 Although Dr. Palacios suggested that appellant had limitations due to a diagnosed
right shoulder condition, OWCP has not accepted a right shoulder condition in connection with
the December 10, 2008 employment injury. Dr. Palacios also mentioned pain stemming from the
December 10, 2008 employment injury, but the Board has held that pain alone is a symptom, not
a medical diagnosis.12
On appeal counsel asserts that appellant sustained a recurrence of disability on July 14,
2017 because the employing establishment withdrew her modified-duty assignment. However,
appellant has not met her burden of proof to establish that the employing establishment withdrew
a modified-duty assignment. Rather, she had been working as a modified mail handler since
June 4, 2009 when she stopped work due to a nonwork-related condition, i.e., aneurysms on her
brain.

10

See supra notes 8 and 9.

11

See D.R., Docket No. 16-0528 (issued August 24, 2016).

12

See F.U., Docket No. 18-0078 (issued June 6, 2018). Counsel asserted that a September 28, 2015 report of
Dr. Becan supported appellant’s recurrence of disability claim. The report indicated that appellant had permanent
impairment of her left upper extremity and right lower extremity, but it does not contain any opinion on disability and
is of no probative value with respect to the underlying issue of this claim. See supra notes 8 and 9.

5

As appellant has not presented any rationalized medical evidence establishing a recurrence
of disability commencing July 14, 2017 causally related to her accepted December 10, 2008
employment injury, she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability commencing July 14, 2017 causally related to the accepted December 10, 2008
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the October 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Philadelphia, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 07-1802
Issued: February 11, 2008

Case Submitted on the Record

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

JURISDICTION
On June 27, 2007 appellant filed a timely appeal from the July 19, 2006 and January 26,
2007 merit decisions of the Office of Workers’ Compensation Programs which terminated his
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation.
FACTUAL HISTORY
On August 18, 2004 appellant, then a 40-year-old transportation security screener,
sustained an injury in the performance of duty: “While working entry position I helped an
elderly wom[a]n lift her baggage from the table to the x-ray machine and pulled my back.” A
September 10, 2004 magnetic resonance imaging (MRI) scan of the lumbar spine revealed
degenerative disc disease at L4-5 with an annular bulge narrowing the right recess. A

September 17, 2004 MRI scan of the cervical spine revealed “C6-7 paramedian to the right disc
protrusion, C4-5 paramedian to the right disc protrusion with uncinate process hypertrophy, right
neural foraminal encroachment at C4-5 and mild anterior-posterior (AP) spinal canal narrowing
at C6-7. There was a focal posterior disc bulge at C5-6 without associated AP spinal canal
narrowing. The Office accepted appellant’s claim for acute cervical sprain, acute lumbosacral
sprain and left shoulder sprain. Appellant received compensation for temporary total disability
on the periodic rolls.
A conflict arose between Dr. D. Greg Anderson, the treating orthopedic surgeon, and
Dr. E. Michael Okin, an Office referral orthopedic surgeon, on whether appellant had objective
findings on examination to support continued residuals of the work injury. The Office referred
appellant, together with the case record and a statement of accepted facts, to Dr. John T.
Williams, Sr., a Board-certified orthopedic surgeon, to resolve the conflict.
On March 21, 2006 Dr. Williams reviewed appellant’s history and described his findings
on physical examination. He reviewed imaging studies that appellant brought to the
examination. It was Dr. Williams’ medical opinion that, at the time of injury, appellant incurred:
1. An acute cervical sprain/strain, by history, which resolved. 2. Rule out degenerative joint
disease and degenerative disc disease of the cervical spine, with stenosis. 3. An acute
lumbosacral sprain/strain, by history, which resolved. 4. Rule out degenerative joint disease and
degenerative disc disease of the lumbar spine. Dr. Williams commented:
“[Appellant], by history, incurred what were considered to be soft tissue injuries.
I.e., there is no history of any fractures, dislocations or subluxation. Soft tissue
injuries self-resolve anywhere from a few days to a couple of months. By history,
[appellant] would be expected to have cervical pathology involving the nerve
roots; that is, nerve root irritation versus nerve root compression of these right and
left nerve roots at different levels.
“My review of [appellant’s] MRI scan of the cervical spine confirms this. This
pathology obviously preexisted the August 14, 2004 incident and the August 14,
2004 incident may have aggravated this preexisting pathology, but my opinion
would be that the aggravation would be of a temporary and transitory nature,
resolving and leaving [appellant] with his preexisting pathology.”
Dr. Williams reviewed appellant’s medical records. He noted that the January 14, 2005
electromyogram was an abnormal study reported to be compatible with a mild chronic C5-6
nerve root irritation (cervical radiculopathy). He explained:
“Now, if it’s chronic four [read five] months afterwards, this means that this has
been there for some time. It preexisted the incident. Now, this one done eight
months later on September 30, 2005 says it is a chronic C5-6 and C6-7
radiculopathy. I do not see that as anything being ‘new.’
“My opinion is that this preexisted [appellant] accident of August 14, 2004 and
does not correlate with reference to the incident of August 14, 2004.”
***
2

“After reviewing these documents, I really do not see anything here to alter my
opinion as stated in the body of my report. The basis for my opinion is that when
arriving at a diagnosis of medicine, the most important contributing factor is the
history. This history contributes 75 percent towards arriving at the diagnosis; the
physical examination contributes 15 percent. So, on the basis of a thorough
history and physical examination, 90 percent of the time, one should be able to
arrive at a primary and/or differential diagnosis. The remaining 10 percent, the,
i.e., so-called diagnostic studies and tests, should be used to confirm the
information gathered from the thorough history and physical and never be used to
make a primary and/or differential diagnosis.
“To summarize my opinion based upon [appellant’s] history and description of
his injury (turning and twisting) is that of soft tissue injuries and sprains and
strains which were the initial diagnoses. Because of [his] symptomatology, as I
stated earlier, would lead me to believe that [appellant] had some cervical
pathology, i.e., cervical disc and cervical joint disease, possibly developing and
contributing to stenosis. [T]hese preexisted the accident. I reviewed the studies
that [appellant] brought with him and this confirmed what I stated. [Appellant]
had preexisting pathology which may have been aggravated by the incident[,]
[b]ut that aggravation, as I stated previously, would be of a temporary and
transitory nature, resolving and leaving [appellant] with his pathology. I think it
is evident that [appellant] as the documents have shown has previously been
treated with epidurals in his neck for ‘symptomatology.’ Dr. Noone states that the
last time he saw [appellant] [for a cervical epidural injection] was in 2000.
[Appellant] has been having headaches and symptomatology prior to the
August 14, 2004 incident. His degenerative joint disease and degenerative disc
disease changes at L4-5 were not caused by the August 14, 2004 incident. Again,
that preexisted. Once again, the mechanism of injury twisting and turning caused
[appellant] to have some aggravation of this preexisting but that aggravation
would be of a temporary and transitory nature. With reference to his neck, with
reference to [appellant’s] symptomatology, with reference to returning to work …
again, I could concur with Dr. Draper and Dr. Okin[,] [n]ot on the basis of the
August 14, 2004 incident, but on the basis of [appellant’s] preexisting pathology
which is significant.”
Responding to questions posed by the Office, Dr. Williams reported that the accepted
sprain/strains were resolved and that appellant had recovered from his August 14, 2004
employment injury. Appellant had problems due to preexisting degenerative disease not caused
by the August 14, 2004 injury.
In a decision dated July 19, 2006, the Office terminated appellant’s compensation. It
found that Dr. Williams’ opinion represented the weight of the medical evidence and established
that appellant had fully recovered from the effects of his August 14, 2004 work injury. In a
decision dated January 19, 2007, an Office hearing representative affirmed the termination of
appellant’s compensation.

3

LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of his duty.1 Once the Office accepts a
claim, it has the burden of proof to justify termination or modification of compensation benefits.2
After it has determined that an employee has disability causally related to his federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.3
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.4 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.5
ANALYSIS
The Office accepted appellant’s claim for acute cervical sprain, acute lumbosacral sprain
and left shoulder sprain. To justify terminating compensation benefits, the Office must establish
by the weight of the medical evidence that appellant no longer suffers from these soft-tissue
injuries. The Board finds that the Office has met that burden.
There was disagreement between appellant’s physician and the Office referral physician
on whether appellant had objective findings on examination to support continued residuals of the
work injury. The Office properly selected an impartial medical specialist to resolve this conflict.
The Office provided Dr. Williams, a Board-certified orthopedic surgeon, with appellant’s entire
case record and a statement of accepted facts so he could base his opinion on a complete and
accurate factual and medical background. After reporting a thorough history and physical
examination, which he explained were most significant when arriving at a diagnosis of medicine,
Dr. Williams explained that appellant’s turning and twisting injury of August 18, 2004 was that
of soft-tissue injuries, sprains and strains. He explained that it was the nature of such injuries to
self-resolve anywhere from a few days to a couple of months. Dr. Williams also noted that
appellant’s history and symptomatology would lead one to believe that he had some cervical
pathology. The studies that appellant brought to the examination confirmed this. The
January 14, 2005 electromyogram, in particular, was reported to be compatible with a mild
“chronic” C5-6 nerve root irritation, meaning the condition had been there for some time and
1

5 U.S.C. § 8102(a).

2

Harold S. McGough, 36 ECAB 332 (1984).

3

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
4

5 U.S.C. § 8123(a).

5

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

4

preexisted the August 18, 2004 incident. Further supporting the preexistence of this cervical
pathology, Dr. Williams noted that appellant was experiencing headaches and symptomatology
prior to August 14, 2004 and previously received treatment for his symptomatology, including
epidurals in his neck in 2000.
The Board finds that Dr. Williams’ opinion is well reasoned. Dr. Williams started with
appellant’s history, considered his findings on physical examination and proceeded to a
diagnosis that imaging studies confirmed. He supported his opinion with evidence and reason.
The Board finds that Dr. Williams’ opinion is based on a proper history and is sufficiently well
reasoned that it is entitled to special weight in resolving the outstanding conflict. Dr. Williams’
opinion establishes that the accepted sprain/strains are resolved.6 The Office has therefore met
its burden of proof to justify the termination of compensation for those conditions.7
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation. The
opinion of the impartial medical specialist represents the weight of the medical evidence and
establishes that the accepted sprains have resolved.

6

Dr. Williams allowed that the August 14, 2004 incident may have aggravated appellant’s preexisting cervical
pathology, but it was his opinion that any such aggravation would be of a temporary and transitory nature, resolving
and leaving appellant with his preexisting pathology, which was significant. Although this is couched in speculative
language and not well supported, the Office did not accept appellant’s claim for aggravation of his preexisting
cervical pathology. So Dr. Williams’ remarks on the matter are not material to whether the Office properly
terminated compensation for the accepted sprains.
7

On appeal, appellant argues that substantial medical evidence establishes that he suffered disc herniations at the
time of his injury. As Dr. Williams reported: “I would question where the diagnosis of ‘multiple herniated cervical
discs’ comes from when if you use the MRI scan of the cervical spine, dated September 17, 2004, I see no mention
at all here of a herniated disc. It states that there are disc protrusions, focal posterior bulges, but I do not see
herniated cervical disc.”

5

ORDER
IT IS HEREBY ORDERED THAT the January 26, 2007 and July 19, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
TANK -- AUTOMOTIVE ARMAMENTS
COMMAND, RED RIVER ARMY DEPOT,
Texarkana, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 13-1270
Issued: September 9, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 29, 2013 appellant filed a timely appeal of merit decisions of the Office of
Workers’ Compensation Programs (OWCP) dated November 29, 2012 and January 7, 2013
denying his claim for an employment-related injury. His appeal is also timely filed from an
April 8, 2013 decision denying his request for an oral hearing. 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 the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he suffered
an injury causally related to his federal employment; and (2) whether OWCP properly denied
appellant’s request for an oral hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 10, 2012 appellant, then a 60-year-old heavy mobile equipment mechanic,
filed an occupational disease claim alleging that he was assigned the job of installing RPG nets
on MRAP vehicles since June 7, 2012, and that he began to notice onset of joint pain in hands
and shoulder around July 7, 2012. He listed the location where he was injured as Kanhahar,
Afghanistan. The employing establishment controverted appellant’s claim.
In response to a request for further development from OWCP, appellant indicated in a
document signed on October 3, 2012 that he performed RPG nets installation, that this required a
lot of grasping and pulling with his hands and arms and lifting heavy frames that also affected
his back. He noted that he had performed this position for about 10 weeks, but that his usual job
was heavy mobile equipment mechanic. Appellant alleged that he was assigned the new job in
retaliation for protesting smoking in areas where it was prohibited by regulation.
By decision dated November 29, 2012, OWCP denied appellant’s claim. It determined
that although he submitted evidence sufficient to establish that he filed a timely claim and that
the events occurred as alleged, his claim was denied because he had not submitted medical
evidence in support of his claim.
On December 18, 2012 appellant requested reconsideration. In support of his claim, he
submitted a July 7, 2012 report by Jason Cossey indicating that he saw appellant on July 7, 2012
for joint pain; that the pain started two weeks ago and was getting worse; and that appellant
described long days of lifting nets at work. Mr. Cossey noted that appellant had upper extremity
hand and joint stiffness and pain, that this was very likely arthritis that was exacerbated by his
work schedule and repetitive motion with the hands and elbows. Appellant also submitted a
December 18, 2012 certificate of medical examination which indicated that on that date appellant
was examined and that appellant had a medical disorder or physical impairment that would
interfere with the full performance of his duties.
By decision dated January 7, 2013, OWCP denied modification of its November 29, 2013
decision.
On February 28, 2013 appellant requested an oral hearing before an OWCP hearing
representative.
By decision dated April 8, 2013, OWCP denied appellant’s request as he had previously
requested reconsideration. It also denied his request under its discretion and further denied it as
the case could equally well be addressed if he requested reconsideration.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the

2

employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue5 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 of the physician must be based on a complete
factual and medical background of the claimant,6 must be one of reasonable medical certainty,7
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.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant experienced the employment factors as alleged. However,
it denied his claim as it found that he failed to establish a causal relationship between these
accepted employment factors and a diagnosed medical condition.
The Board finds that there is no rationalized medical evidence establishing that appellant
sustained a diagnosed medical condition in the performance of his federal duties. The Board
notes that there is no medical evidence signed by a physician in the record. There is a July 2,
2012 report signed by Mr. Cossey, but there is no indication in this report that he is a physician.
The Board also is unable to determine that Mr. Cossey is a physician. The Board notes that
reports of physician’s assistants and nurses are not competent to render a medical opinion under
FECA.9 The record also contains a December 18, 2012 certificate of medical examination,
2

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

3

S.P., 59 ECAB 184 (2007); Victor J. Woodham, 41 ECAB 345 (1989).

4

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

9

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law).

3

however this report is insufficient as it is vague and does not contain a diagnosis or any medical
rationale; the author of the report merely checked a box indicating that appellant had a physical
impairment that would interfere with the full performance of his duties. There is no indication as
to what the medical disorder or impairment is or how appellant acquired this impairment.
Furthermore, the signature is illegible. As the Board cannot determine who signed this report, it
lacks probative medical value as the author(s) cannot be identified as a physician.10
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was caused by his employment is sufficient to
establish causal relationship.11 As appellant did not submit a rationalized medical opinion
establishing a causal relationship between his accepted employment activities and a diagnosed
medical condition, OWCP properly denied his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation who is 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 and before review under section 8128(a), to a hearing on his
claim before a representative of the Secretary.12 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.13 Although the claimant is no longer entitled
to an oral hearing or review of the written record as a matter of right if the request is filed past
the 30-day period or he previously requested reconsideration pursuant to section 8128(a), OWCP
may within its discretionary powers grant or deny a claimant’s request and must exercise that
discretion.14
ANALYSIS -- ISSUE 2
On February 28, 2013 appellant requested a hearing pursuant to OWCP’s January 7, 2013
decision denying modification of the November 29, 2012 decision denying his claim. However
he previously requested reconsideration on December 18, 2012. In fact, the January 7, 2013
decision was issued in response to appellant’s request for reconsideration, and denied his request
for modification of OWCP’s November 29, 2012 decision denying his claim. Accordingly, as
10

See W.C., Docket No. 13-675 (issued June 26, 2013).

11

Walter D. Morehead, 31 ECAB 188 (1986).

12

5 U.S.C. § 8124(b)(1); Peggy R. Lee, 46 ECAB 527 (1995).

13

20 C.F.R. § 10.615.

14

See Eddie Franklin, 51 ECAB 223 (1999); see also C.H., Docket No. 11-1801 (issued September 17, 2012).

4

appellant previously requested reconsideration, the Board finds that he was not entitled to
reconsideration as a matter of right.
OWCP then exercised its discretion and determined that appellant’s request could equally
well be addressed by requesting reconsideration and submitting additional evidence. The Board
finds that there is no evidence of record that OWCP abused its discretion in denying his hearing
request. Thus, the Board finds that OWCP’s decision denying appellant’s request for an oral
hearing was proper under the facts and law of this case.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
suffered an injury causally related to his federal employment. The Board further finds that
OWCP properly denied his request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 8 and January 7, 2013 and November 29, 2012 are
affirmed.
Issued: September 9, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Raleigh, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1692
Issued: July 1, 2013

Case Submitted on the Record

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

JURISDICTION
On August 6, 2012 appellant, through her attorney, filed a timely appeal from the
June 26, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss and medical
benefits effective December 1, 2011.
FACTUAL HISTORY
On July 27, 2005 appellant, a 37-year-old clerk, filed a traumatic injury claim alleging
that on that date she sustained an injury to her lower back while picking up a mail tub. She
stopped work on July 28, 2005. OWCP accepted the claim for sprain/strain of the lumbar region.
Appellant returned to light duty on October 23, 2006. On June 14, 2007 OWCP accepted
1

5 U.S.C. § 8101 et seq.

aggravation of lumbar degenerative disc disease at L4-5.2 It also accepted the aggravation of
lumbar disc disease at L4-5 based upon the May 29, 2007 report of Dr. William A. Somers, a
Board-certified orthopedic surgeon and OWCP referral physician. Appellant stopped work on
September 29, 2010 due to the light-duty assignment being withdrawn under the National
Reassessment Program (NRP). She filed a recurrence claim which was accepted by decision
dated November 3, 2010. Appellant was paid wage loss and medical benefits.
On July 27, 2011 OWCP referred appellant for a second opinion medical examination
with Dr. Edward Mulcahy, a Board-certified orthopedic surgeon. In a July 21, 2011, report,
Dr. Mulcahy noted the statement of accepted facts and referenced appellant’s history of injury
and treatment. Low back examination showed no palpable paravertebral muscle spasm.
Forward flexion was to 50 degrees with some decrease in the reversal of the lumbar lordosis.
Lateral bending was full to the right side and slightly restricted to the left producing some right
low back and upper buttock pain. Straight leg raising was positive bilaterally in the sitting
position and deep tendon reflexes (DTR) were equal bilaterally. Appellant had good motor
strength in the lower extremities, she was able to step forward on her heels and toes without
difficulty, there was no sensory loss and no atrophy. The cervical spine showed some mild
decrease in right lateral cervical rotation but was otherwise normal. Regarding objective
findings, Dr. Mulcahy explained that they were limited to some mild decrease in forward flexion
and left lateral bending of the lumbar spine. He indicated that the lumbar sprain and aggravation
of the degenerative L4-5 disc disease had resolved. Dr. Mulcahy advised that they would “likely
have resolved within a few months after the work injury.” He noted that the records of early
medical treatment within the first year of the work injury were not provided but that the first
results from an orthopedic surgeon in October 2006 showed no positive physical findings and
straight leg raising and neurological examinations were negative. Dr. Mulcahy opined that there
was no clinical evidence to indicate that the injury of July 27, 2005 caused a material worsening
of the underlying degenerative L4-5 disc. He indicated that the MRI scan from September 26,
2005 showed disc desiccation with bulging but did not indicate any acute injury to that disc.
Dr. Mulcahy opined that appellant’s mild decrease in range of motion of her lumbar spine on
examination would be attributed to the natural progression of her underlying condition. He
further noted that the injury was a temporary aggravation of the underlying degenerative disc
disease and she would have been expected to return to her previous physical status within a few
months after the aggravation. Dr. Mulcahy opined that appellant had fully recovered from her
work injuries and that she had no restrictions from her regular work based on the temporary
aggravation caused by the July 27, 2005 injury although she would have some restrictions based
on her underlying degenerative disc condition.

2

OWCP accepted the aggravation of lumbar disc disease at L4-5 based on the May 29, 2007 report of
Dr. William A. Somers, a Board-certified orthopedic surgeon and OWCP referral physician. In noting the
acceptance of degenerative disc disease, OWCP inadvertently noted the diagnosis code ICD-9 722.10, which is for
displacement of lumbar intervertebral disc without myelopathy. Thereafter, certain OWCP documents referred to
displacement of lumbar intervertebral disc without myelopathy as an accepted condition. However, the context of
the record clearly indicates that aggravation of lumbar disc disease at L4-5 is the accepted condition and that
references to displacement of lumbar intervertebral disc without myelopathy are a ministerial and harmless error.

2

On October 27, 2011 OWCP proposed to terminate appellant’s benefits based on the
report of Dr. Mulcahy, which established that the residuals of the work injury of July 27, 2005
had ceased. Appellant was given 30 days to submit additional evidence or argument.
OWCP received a duplicate copy of a previously submitted report dated April 10, 2009
from Dr. Nzingha J. White, a Board-certified family practitioner. In a May 3, 2010 report,
Dr. White noted that appellant continued with physical therapy and was working sedentary light
duty. He recommended continued physical therapy. In a previously submitted September 3,
2010 report, Dr. Kimberly Burrows, a Board-certified pediatrician, diagnosed back pain which
was likely degenerative disc disease. In an October 22, 2010 report, she noted that appellant
continued with chronic back pain and degenerative disc disease. In a March 14, 2011 report,
Dr. Burrows repeated her diagnosis.
Dr. Elizabeth Gersuk, a physiatrist, noted that, in a February 17, 2011 report, appellant
had chronic low back pain due to degenerative disc disease. She advised that appellant reached
maximum medical improvement. Dr. Gersuk indicated that, based upon functional capacity
evaluation (FCE) results, appellant would not be able to return to her prior position.
In an October 12, 2011 report, Dr. Michael Lee, a physiatrist, noted that appellant was
seen for chronic low back pain. He examined appellant and noted that she was scheduled for a
SI joint injection to relieve her SI pain and also scheduled for right trochanteric bursitis injection
due to examination findings consistent with trochanteric bursitis.
In a November 3, 2011 report, Dr. Lee provided a bilateral SI joint injection. In a
November 16, 2011 report, he noted that appellant was seen for chronic low back pain. Dr. Lee
examined her and diagnosed chronic low back pain, degenerative disc disease, most notable at
L4-5 and SI joint dysfunction. He opined that the condition had not resolved and was still
present and disabling. Dr. Lee advised that appellant was unable to carry out her previous fullwork duties but would be able to work at a lighter duty. He explained that it was difficult to
determine the permanency of her injuries. Dr. Lee noted it might “simply be a temporary
sequelae of the natural history of her acute back pain. However, it is most likely partially
permanent.” He advised that appellant continued to have significant disability disabling her from
working at her previous level and she was not at her preinjury level. However, Dr. Lee
explained that appellant was able to perform some type of job with restrictions to include no
heavy lifting. He recommended continued medical management, injection management, weight
reduction and exercise.
By decision dated December 1, 2011, OWCP terminated appellant’s compensation
benefits effective that date on the grounds that she had no continuing residuals of her
employment injury. It relied on Dr. Mulcahy’s report as the weight of the medical evidence.
OWCP found the medical reports submitted by appellant to be insufficient to outweigh the report
of Dr. Mulcahy.
Appellant requested a hearing, which was held on April 4, 2012. She argued that the
report of the second opinion physician was based on an incomplete statement of accepted facts
(SOAF).

3

In a letter dated April 4, 2012, appellant’s attorney argued that OWCP erred relying upon
Dr. Mulcahy’s report to terminate benefits. He referred to L.P.3 Counsel argued that the Board
reversed OWCP’s decision terminating benefits because the physician failed to explain when the
claimant’s condition had resolved, did not refer to contemporaneous medical records indicating
that the accepted injury had resolved and did not explain how he differentiated between
progressive degenerative disc disease and the effects of the accepted injury.
By decision dated June 26, 2012, an OWCP hearing representative affirmed the
December 1, 2011 decision. It also noted appellant’s attorney’s arguments pertaining to the
SOAF and noted that his argument was without merit as the second opinion physician’s report
was based upon a consistent SOAF.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.6 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.7
In assessing medical evidence, the weight of such evidence is determined by its
reliability, its probative value and its convincing quality. The opportunity for and thoroughness
of examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of the analysis manifested and the medical rationale expressed in
support of the physician’s opinion are facts which determine the weight to be given each
individual report.8
OWCP’s procedure manual provides as follows: When the district medical adviser,
second opinion specialist or referee physician renders a medical opinion based on a SOAF which
is incomplete or inaccurate or does not use the SOAF as the framework in forming his or her
opinion, the probative value of the opinion is seriously diminished or negated altogether.9
3

Docket No. 08-1648 (issued August 28, 2009).

4

Curtis Hall, 45 ECAB 316 (1994).

5

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

6

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

7

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

8

See Connie Johns, 44 ECAB 560 (1993).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); Willa M. Frazier, 55 ECAB 379 (2004).

4

ANALYSIS
OWCP accepted that appellant sustained a lumbar sprain and aggravation of lumbar
degenerative disc disease at L4-5. It paid medical benefits and subsequently referred her to
Dr. Mulcahy for a second opinion. Relying on his report as the weight of medical evidence,
OWCP terminated appellant’s wage loss and medical benefits effective December 1, 2011.
The Board finds however that the report of the second opinion physician, Dr. Mulcahy, is
insufficient to meet OWCP’s burden of proof. The Board finds that, contrary to appellant’s
contention, the SOAF is accurate. The Board properly notes the accepted conditions of lumbar
strain and aggravation of degenerative disc disease at L4-5. Dr. Mulcahy’s report fails where he
noted that the medical records of any treatment or evaluation in the first year after the work
injury were not in the record. Whether they were in the record or whether he simply did not
review them is not clear. What is clear is he did not consider them. There are numerous medical
records contemporaneous with the injury in the record dating from July 27, 2005, the date of
injury, to October 4, 2006. It is well established that medical reports must be based on a
complete and accurate factual and medical background, and medical opinions based on an
incomplete or inaccurate history are of little probative value.10
The Board also finds that Dr. Mulcahy’s conclusion that lumbar sprain and aggravation
of the degenerative L4-5 disc disease would “likely have resolved within a few months after the
work injury,” is inconsistent with the facts. On November 3, 2010 OWCP accepted a recurrence
of total disability due to continued residuals from her work injury which prevented her from
performing her date-of-injury position. Thus, Dr. Mulcahy’s report is again inconsistent with the
factual record. The Board finds that his report is insufficient to meet OWCP’s burden of proof to
terminate compensation and medical benefits effective December 1, 2011.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
benefits effective December 1, 2011.

10

Douglas M. McQuaid, 52 ECAB 382 (2001).

5

ORDER
IT IS HEREBY ORDERED THAT the June 26, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 1, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT, Drakesboro, KY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-641
Issued: June 4, 2015

Case Submitted on the Record

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

JURISDICTION
On January 29, 2015 appellant filed a timely appeal from an October 28, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision of March 11, 2014 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 claim and only has jurisdiction over the nonmerit
decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated July 22, 2014, the
Board found that appellant had not established that he has more than 26 percent impairment of
his lung and that OWCP properly refused to reopen his claim for further review under 5 U.S.C.
§ 8128(a).2 The law and facts of the previous Board decision is incorporated herein by reference.
On January 14, 2014 appellant filed a Form CA-7 claiming compensation for the period
April 11, 2011 through December 31, 2013 noting that his check stopped. In a January 10, 2014
statement, he indicated that he was claiming wage loss as his check stopped and his black lung
condition had worsened. Appellant alleged that he was no longer able to work.
In a January 22, 2014 developmental letter, OWCP advised appellant that there was no
evidence that he became disabled due to his work-related lung condition at the time he chose to
retire in 1989. It noted that medical evidence dated October 19, 2012 indicated that his
pneumoconiosis was only accountable for a small portion of his symptoms, with a major part of
his disability being due to chronic obstructive pulmonary disease (COPD) and chronic bronchitis
due to a history of smoking and the aging process. OWCP requested that appellant submit
medical evidence that he became disabled on April 11, 2011 onward due to the accepted
pneumoconiosis condition. Appellant was afforded 30 days to submit the requested information.
In response OWCP received a duplicate copy of appellant’s January 10, 2014 statement
indicating his black lung condition had worsened.
In a January 27, 2014 letter, Dr. Bernard J. Buchanan, a Board-certified internist,
indicated that appellant’s black lung contributed to more than 60 percent of his disability. He
indicated that his past correspondence in September 2009 detailed the confirmation of the
diagnosis. Dr. Buchanan also noted appellant’s medical regime and symptoms. A nebulizer
letter of medical necessity was provided for the diagnosis of bronchitis with COPD emphysema
along with a request for medical authorization of medical equipment and medicine.
By decision dated March 11, 2014, OWCP denied appellant’s claim for compensation for
the period April 11, 2011 through December 31, 2013, finding that the medical evidence
submitted was insufficient to explain why she was unable to work during the period claimed.
On October 21, 2014 OWCP received appellant’s request for reconsideration. Appellant
stated that he was sending in evidence which documented he was under care of a black lung
clinic. Evidence received included a duplicate copy of Dr. Buchanan’s January 27, 2014 report.
Also received was a March 28, 2014 x-ray, interpreted by Dr. Wayne Myers, a Board-certified
radiologist, who concluded that the x-ray showed moderate-to-severe pulmonary emphysema,
chronic interstitial lung disease, and a questionable nodule of the left upper lobe. In addition,
2

Docket No. 13-657 (issued July 22, 2014). On June 21, 200 appellant, a retired 55-year-old machinist, filed an
occupational disease claim alleging that factors of his employment caused or aggravated his pulmonary
pneumoconiosis and asbestosis conditions. OWCP accepted pneumoconiosis as a work-related injury and paid
benefits. Appellant stopped working in 1989. He has two other accepted work injuries: (1) a lumbar strain from
December 13, 1988, resolved; (2) and a hearing loss claim for which he received 54 percent bilateral noise-induced
hearing loss.

2

appellant submitted pulmonary function reports dated January 27 and March 28, 2014, prepared
by a technician.
By decision dated October 28, 2014, OWCP denied reconsideration without reviewing
the merits of the case.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by 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.4 When a claimant fails to meet one
of the above standards, OWCP will deny the application for reconsideration without reopening
the case for review on the merits.5
ANALYSIS
The underlying issue on reconsideration is whether appellant has submitted sufficient
evidence relevant to the issue of whether he is entitled to wage-loss compensation for the
claimed period April 11, 2011 through December 31, 2013. His request for reconsideration
neither alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point
of law. Consequently, appellant 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)(2).
The Board also finds that he did not provide any relevant or pertinent new evidence
warranting the reopening of the case on the merits. Dr. Buchanan’s January 27, 2014 medical
report was previously reviewed in OWCP’s March 11, 2014 decision. A duplicative medical
report does not require that OWCP reopen appellant’s claim for further merit review.6 The form
report regarding his hearing loss pertained to a different claim.
While the March 28, 2014 chest x-ray, as well as the January 27 and March 28, 2014
pulmonary function reports were new to this claim, they were not relevant to the issue of
disability from work for the period April 11, 2011 through December 31, 2013. Thus, this
information is insufficient to reopen appellant’s claim for further merit review.
The Board finds that appellant did not establish that OWCP erroneously interpreted a
specific point of law, advance a relevant legal argument not previously considered, or submit
relevant and pertinent new evidence not previously considered by OWCP. Appellant did not
3

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).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b).

6

M.W., Docket No. 15-499 (issued April 10, 2015).

3

meet any of the regulatory requirements and OWCP properly declined to reopen his claim for
further merit review.7
On appeal appellant contends that his black lung condition has worsened and that he
should be compensated. He bears the burden of proof to establish entitlement to wage-loss
compensation.
Appellant may submit additional evidence to OWCP with a formal, written request for
reconsideration under 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.8
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.
The Board notes that appellant has received schedule awards for hearing loss and
impairment of both lungs.9 To the extent appellant is claiming an increase in his permanent
impairments due to his accepted pneumoconiosis condition and work-related hearing loss, he
may request an increased schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for merit review under
5 U.S.C. § 8128(a).

7

M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); A.K., Docket No. 09-2032 (issued
August 3, 2010) (when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the
case for a review on the merits).
8

See A.L., Docket No. 08-1730 (issued March 16, 2009).

9

See supra note 2.

4

ORDER
IT IS HEREBY ORDERED THAT the October 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 4, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

R.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Atlanta, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1696
Issued: April 7, 2016

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 August 6, 2015 appellant, through counsel, timely appealed the July 1, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant is entitled to wage-loss compensation for the period
June 28 through July 25, 2014.

1
2

5 U.S.C. § 8101 et seq.

The case record provided to the Board includes evidence received after OWCP issued its July 1, 2015 decision.
The Board is precluded from considering evidence that was not in the case record at the time OWCP rendered its
final decision. 20 C.F.R. § 501.2(c)(1) (2014).

FACTUAL HISTORY
On June 9, 2013 appellant, then a 46-year-old tractor-trailer operator, injured his low
back pulling a fifth wheel pin from beneath his tractor-trailer. By letter dated July 11, 2013,
OWCP initially accepted the claim for lumbar sprain/strain (ICD-9 847.2). A July 8, 2013
lumbar magnetic resonance imaging (MRI) scan revealed a disc bulge with desiccation at L4-5
and superimposed right asymmetric mild extrusion. On August 2013 Dr. Radhakrishnan V.
Nair, a Board-certified orthopedic surgeon, recommended L4-5 laminectomy, discectomy, and
possible interbody fusion.3 OWCP initially declined the request for surgery as lumbar fusion
was not an appropriate treatment for a sprain. Appellant received wage-loss compensation
beginning October 29, 2013, and OWCP placed him on the periodic rolls. The employing
establishment had been unable to accommodate his work restrictions.
By letter dated February 25, 2014, OWCP referred appellant along with a statement of
accepted facts (SOAF), for a second opinion examination with Dr. Raju M. Vanapalli, a Boardcertified orthopedic surgeon and OWCP referral physician.
In an undated report received on March 4, 2014, Dr. Stephen A. Dawkins, Board-certified
in occupational medicine, requested that appellant’s claim be expanded to include “lumbar
extruded disc.” He and Dr. Nair are noted as colleagues at Caduceus Occupational Medicine
where appellant had been a patient since June 9, 2013. Dr. Dawkins noted that appellant injured
his lower back after reaching beneath his trailer to pull a pin away from the fifth wheel. It was
stuck and appellant had to forcefully remove the pin. Dr. Dawkins noted that appellant was
initially diagnosed with a lumbar sprain/strain, which OWCP accepted. However, a subsequent
MRI scan revealed an extruded lumbar disc. As such, Dr. Dawkins formally requested that
lumbar extruded disc be added to appellant’s accepted conditions.
Dr. Howard P. Hogshead, a Board-certified orthopedic surgeon and district medical
adviser (DMA), was asked to review the medical record and the report from Dr. Dawkins to
determine if any other conditions should be accepted. He recommended expansion of the claim
to include degenerative disc disease. On March 6, 2014 OWCP informed appellant that his
claim had been expanded to include lumbar degenerative disc disease (ICD-9 722.52).4
Dr. Vanapalli examined appellant on March 24, 2014. He diagnosed right side L5
radiculitis, L4-5 right herniated nucleus pulposus, and lumbar sprain/strain. Dr. Vanapalli found
that appellant’s lumbar sprain had resolved. His report preceded the expansion of the claim.5
According to Dr. Vanapalli, appellant was unable to resume his regular duties as a tractor-trailer
operator. However, appellant could perform full-time, sedentary work with restrictions that
3

In his August 16, 2013 report, Dr. Nair noted that appellant’s lumbar disc “herniation appears secondary to the
job[-]related injury….” He further noted that appellant’s lumbar degenerative disc disease was unrelated to his
workers’ compensation injury.
4

In a report dated March 5, 2014, Dr. Hogshead, the DMA, advised OWCP that the accepted condition could be
expanded to include lumbar degenerative disc disease.
5

The February 25, 2014 SOAF OWCP that was provided to Dr. Vanapalli identified lumbar sprain/strain as the
only accepted condition.

2

included intermittent walking, a two-hour limitation on standing, and a three-hour, 10-pound
weight restriction with respect to pushing, pulling, and lifting.
In an April 4, 2014 report, Dr. Nair diagnosed lumbar herniated disc (L5) with right
radiculopathy and superimposed degenerative disc disease. He recommended a lumbar
laminectomy with discectomy, and possible lumbar fusion with instrumentation. Dr. Nair also
advised that appellant had a 20-pound lifting restriction and could perform “Sit down work
only.”
In two separate decisions dated April 4, 2014, OWCP declined to authorize lumbar disc
surgery and lumbar spine fusion. Both decisions correctly noted that appellant’s accepted
conditions included lumbar sprain and degenerative disc disease. Although appellant’s claim
had since been expanded, OWCP continued to rely on an October 11, 2013 report from Dr. Nair,
who advised that a surgical fusion was not appropriate for lumbar sprain.
On April 21, 2014 appellant advised OWCP that Drs. Dawkins and Nair had released him
from their care following OWCP’s most recent refusal to authorize lumbar surgery. Appellant’s
physicians reportedly believed that, absent surgical intervention, there was nothing else they
could do for him.
Appellant’s counsel requested a hearing regarding OWCP’s refusal to authorize surgery.
Dr. Lee A. Kelley, a Board-certified orthopedic surgeon, examined appellant on
May 15, 2014. OWCP would later recognize him as appellant’s new treating physician.
Dr. Kelley noted a June 9, 2013 history of injury when appellant reached underneath his truck to
pull out the fifth wheel pin and began experiencing lower back pain. After the initial injury,
appellant continued to work. Approximately, one week later, he experienced significant lower
back pain after pulling up a dock plate to unload his truck. Dr. Kelley reported that appellant had
since undergone epidural steroid injections, physical therapy, and was considered a candidate for
lumbar surgery. He also reviewed appellant’s July 8, 2013 lumbar MRI scan, which
demonstrated a moderately-sized central right disc herniation at L4-5, with right L5 nerve root
compression. Based on his physical examination and review of appellant’s medical records,
Dr. Kelley diagnosed L4-5 disc herniation, which he attributed to the June 9, 2013 on-the-job
injury. He further indicated that appellant had not responded to appropriate conservative
treatment, and thus, was a candidate for surgical treatment. Appellant’s surgical options
included laminectomy and disc excision, with or without lumbar fusion. Dr. Kelley expressed a
preference for anterior lumbar interbody fusion with complete discectomy. He further advised
that appellant remain off work given his diagnosis of symptomatic disc herniation, and current
physical findings of significant pain and limitation of motion.
On June 6, 2014 the employing establishment offered appellant a full-time limited-duty
assignment as a tool and parts assistant. Appellant was responsible for managing an inventory of
parts, tools, and supplies required for motor vehicle maintenance. The physical requirements of
the modified assignment included sitting and standing as needed, simple grasping,
pushing/pulling, and basic computer skills, including use of a mouse. There was a 10-pound
restriction with respect to lifting tools and parts, and there was to be no overhead activity.

3

Appellant was also permitted to use a step stool if needed. The June 6, 2014 limited-duty
assignment was patterned after Dr. Vanapalli’s March 24, 2014 findings.
Appellant accepted the limited-duty assignment and returned to work on June 17, 2014.
OWCP removed him from the periodic compensation rolls effective that date. However, on
June 28, 2014 appellant stopped work again due to his low back condition. He reportedly went
to an urgent care center after leaving work early on June 28, 2014. Appellant alleged that some
of the automotive parts he was required to handle exceeded the job’s 10-pound weight
restriction. He also reported difficulty performing other assigned duties, such as opening file
cabinet drawers and sweeping.
On June 30, 2014 appellant advised OWCP that the employing establishment told him
not to return to work until he could provide medical documentation. He later filed a claim (Form
CA-7) for wage-loss compensation for the period June 28 through July 25, 2014.
On July 14, 2014 appellant returned to Dr. Kelley for a follow-up examination. He
diagnosed lumbar intervertebral disc displacement without myelopathy (ICD-9 722.10).
Dr. Kelley noted that appellant’s condition was work related and that he was currently unable to
work. Since his last visit on May 15, 2014, appellant reportedly had ongoing center-right
lumbosacral pain radiating down his right posterior lower extremity and continuing into the
plantar right foot. Dr. Kelley also noted that, although appellant had been advised to remain off
work, the employing establishment provided him light-duty work, which appellant attempted for
one week. He explained that when appellant returned to work his pain increased. Dr. Kelley
noted that appellant continued to complain of severe back and leg pain, primarily in the right leg.
Appellant’s physician again recommended L4-5 anterior lumbar interbody fusion with hardware
and requested authorization from OWCP.
In follow-up treatment notes dated September 4, 2014, Dr. Kelley indicated that appellant
remained symptomatic from a central disc herniation at L4-5. He diagnosed work-related lumbar
intervertebral disc displacement without myelopathy and continued to recommend surgery.
Dr. Kelley also advised that appellant was currently unable to return to work.
By decision dated September 25, 2014, OWCP’s Branch of Hearings & Review vacated
the April 4, 2014 decisions denying lumbar surgery. The hearing representative determined that
further development was necessary to properly address appellant’s request for surgery. She
noted that the requested surgery was for treatment of L4-5 disc herniation/extrusion, a condition
OWCP had not formally accepted. The hearing representative questioned why the DMA had
advised OWCP to accept lumbar degenerative disc disease when Dr. Dawkins had requested
acceptance of “lumbar extruded disc.” She also noted that Dr. Nair had found the lumbar
degenerative disc disease was not work related. Under the circumstances, it was unclear why
OWCP had accepted lumbar degenerative disc disease rather than lumbar disc
herniation/extrusion.6

6

With respect to Dr. Vanapalli’s March 24, 2014 second opinion report, the hearing representative noted that he
was unaware that lumbar degenerative disc disease was an accepted condition. She also noted that OWCP had not
specifically asked him to comment on the recommended surgery.

4

The hearing representative remanded the case to OWCP with instructions to refer
appellant’s medical records back to the DMA, along with Dr. Kelley’s May 15, 2014 surgery
request. On remand, the DMA was instructed to provide medical rationale for his
recommendation to include lumbar degenerative disc disease as an accepted condition.
Additionally, the DMA was to address whether appellant’s L4-5 lumbar disc bulge, as
demonstrated on the July 8, 2013 MRI scan, was causally related to the June 9, 2013 work
injury. Lastly, the DMA was instructed to address whether Dr. Kelley’s proposed surgery was
medically warranted to treat appellant’s work injury.
On September 30, 2014 OWCP wrote to Dr. Kelley requesting additional information
regarding appellant’s injury-related condition(s) and whether he was able to resume his regular
duties as a driver or any other type of gainful employment in a limited-duty capacity. The claims
examiner also prepared a September 30, 2014 memorandum for the DMA in accordance with the
hearing representative’s September 25, 2014 decision. She specifically asked the DMA to
address whether appellant’s L4-5 disc bulge was causally related to the June 9, 2013 work injury.
OWCP also issued a September 30, 2014 decision denying compensation for the period
June 28 through July 25, 2014.
The claims examiner reviewed Dr. Kelley’s July and
September 2014 reports, including his request for surgery, and noted that the diagnosed
condition -- lumbar intervertebral disc displacement -- had not been accepted by OWCP. She
also indicated that appellant’s limited-duty assignment as a tool and parts assistant was
“suitable” based on Dr. Vanapalli’s March 24, 2014 report, which represented the weight of the
medical evidence. Lastly, the claims examiner noted that appellant had not provided sufficient
evidence that his limited-duty assignment was not suitable. She explained that the limited-duty
assignment “was deemed suitable and [appellant] stopped work on [June 28, 2014] without
providing sufficient medical evidence or a work excuse for [his] continued absence….”
Consequently, OWCP found that appellant was not entitled to wage-loss compensation pursuant
to 20 C.F.R. § 10.500(a).7 Appellant’s counsel timely requested a hearing.
On October 1, 2014 DMA Dr. Hogshead responded to the claims examiner’s
September 30, 2014 request for clarification. As to his rationale for recommending acceptance
of lumbar degenerative disc disease, the DMA referenced Dr. Dawkins’ March 4, 2014 report,
noting that appellant’s physician “explain[ed] the injury, the symptoms and subsequent MRI
scan findings.” Regarding the relationship between appellant’s L4-5 disc bulge and the June 9,
2013 employment incident/injury, the DMA indicated that one could not state with certainty
whether a bulging disc was directly related to a specific circumstance or injury. He explained
that it was unlikely one would have MRI scan studies immediately before and immediately after
a specific activity or injury. The DMA further explained that under the circumstances, the best
one could do was to gather the facts and make an “assumption.” Lastly, he indicated that
Dr. Kelley’s May 15, 2014 request for surgery was reasonable and should be approved.
7

Compensation for wage loss due to disability is available for periods during which an employee’s work-related
medical condition prevents him from earning the wages earned before the work-related injury. 20 C.F.R.
§ 10.500(a). An employee is not entitled to compensation for any wage-loss claimed on a Form CA-7 to the
extent: (1) evidence contemporaneous with the claimed period establishes that an employee had medical work
restrictions in place; (2) light duty within those work restrictions was available; and (3) the employee was previously
notified in writing that such duty was available. Id.

5

Dr. Kelley provided follow-up treatment notes dated October 9 and November 13, 2014.
He indicated that appellant remained symptomatic from an L4-5 disc herniation and was still
awaiting approval for surgery. Dr. Kelley diagnosed lumbar intervertebral disc displacement
without myelopathy (ICD-9 722.10) and lumbar intervertebral disc degeneration (ICD-9 722.52).
He advised appellant to continue with his current medications and to remain off work.
On January 8, 2015 the claims examiner informed appellant that the DMA had approved
Dr. Kelley’s request for surgery. On February 2, 2015 OWCP formally authorized lumbar spinal
fusion with hardware implementation.8
Dr. Kelley saw appellant again on January 22, 2015. He continued to diagnose lumbar
intervertebral disc displacement without myelopathy (ICD-9 722.10) and lumbar intervertebral
disc degeneration (ICD-9 722.52). Dr. Kelley noted that, since his last examination on
November 13, 2014, appellant continued to complain of significant lower back pain, which
radiated into the right leg. Appellant also reported significant problems with daily activities, and
difficulty bending, twisting, lifting, and any type of prolonged standing. Dr. Kelley indicated
that surgery had been approved and he tentatively scheduled the procedure for mid-March 2015.
He further indicated that appellant was currently unable to work.
On June 15, 2015 appellant underwent laser disc (L4-5) surgery.
In a July 1, 2015 decision, the hearing representative noted that appellant’s June 9, 2013
traumatic injury claim had not been accepted for disc herniation, and therefore, any related
disability could not be considered with respect to the claimed recurrence of disability beginning
June 28, 2014. Consequently, she affirmed OWCP’s September 30, 2014 decision denying
wage-loss compensation.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.9 Recurrence of disability also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.10 Generally, a withdrawal of a light-duty assignment would constitute a recurrence
of disability where the evidence established continuing injury-related disability for regular
duty.11 A recurrence of disability does not apply when a light-duty assignment is withdrawn for
8

Appellant later requested alternative laser surgery (percutaneous discectomy) at L4-5, which OWCP denied
based on the advice of its DMA. Although laser surgery was not authorized, the option of traditional lumbar spinal
fusion remained available.
9

20 C.F.R. § 10.5(x).

10

Id.

11

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

6

reasons of misconduct, nonperformance of job duties, or other downsizing or where a loss of
wage-earning capacity determination is in place.12
Absent a change or withdrawal of a light-duty assignment, a recurrence of disability
following a return to light duty may be established by showing a change in the nature and extent
of the injury-related condition such that the employee could no longer perform the light-duty
assignment.13
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of establishing that the recurrence is causally related to
the original injury.14 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes that the condition is causally related to the employment injury.15 The
physician’s opinion must be based on a complete and accurate factual and medical history and
supported by sound medical reasoning.16
ANALYSIS
The issue currently before the Board is whether appellant is entitled to disability
compensation beginning June 28, 2014. He sustained a work-related lumbar injury on June 9,
2013, which OWCP initially accepted for lumbar sprain/strain. A July 8, 2013 lumbar MRI scan
revealed an L4-5 disc bulge with desiccation, and superimposed right asymmetric mild extrusion.
As early as August 2013, surgery was recommended to address appellant’s L4-5 disc bulge.
However, OWCP initially declined to authorize surgery because his claim had only been
accepted for lumbar sprain/strain.
In March 2014, appellant’s then-treating physician, Dr. Dawkins, requested that the claim
be expanded to include “lumbar extruded disc.” On March 6, 2014 based on the advice of its
DMA, OWCP expanded appellant’s claim to include lumbar degenerative disc disease (ICD-9
722.52), but despite its recent acceptance of this new condition, OWCP continued to deny the
requested L4-5 surgery.17 Appellant returned to work in a limited-duty capacity on June 17,
2014, but stopped work again on June 28, 2014 due to his lumbar condition. He then filed a
claim for wage-loss compensation.
When Dr. Kelley initially examined appellant on May 15, 2014 he diagnosed L4-5 disc
herniation attributable to appellant’s June 9, 2013 on-the-job injury. He also recommended
surgery and advised that appellant remain off work given his symptomatic disc herniation. On
12

20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; see id., Chapter 2.1500.2b.

13

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

14

20 C.F.R. § 10.104(b); see supra note 11 at, Chapter 2.1500.5 and 2.1500.6.

15

See S.S., 59 ECAB 315, 318-19 (2008).

16

Id. at 319.

17

Following remand for further medical development, OWCP ultimately approved the requested L4-5 spinal
fusion with hardware.

7

July 14, 2014 appellant returned for follow up. At that time, Dr. Kelley diagnosed work-related
lumbar intervertebral disc displacement and he continued to recommend L4-5 surgery.
Additionally, he reported that although appellant was advised to remain off work, the employing
establishment provided him light-duty work, which appellant attempted for one week.
Dr. Kelley further noted that, when appellant returned to work, his pain increased. He advised
that appellant was currently unable to work. Thus, Dr. Kelley examined appellant both before
and after his 12 days as a limited-duty tool and parts assistant. His opinion regarding appellant’s
ability to work differs from Dr. Vanapalli’s March 24, 2014 second opinion. However,
Dr. Vanapalli had not been fully apprised of appellant’s accepted lumbar conditions.
In a September 30, 2014 decision, OWCP denied compensation for the 4-week period
ending July 25, 2014 because the L4-5 disc herniation was not an accepted condition. It issued
its decision while appellant’s case was still under development regarding the central issue of
whether his lumbar disc herniation was employment related. As noted, in early 2015, OWCP
approved L4-5 disc surgery, but it has continued to deny wage-loss compensation on the basis
that his claim has not been accepted for lumbar disc herniation. To date, it is unclear why
OWCP accepted lumbar degenerative disc disease rather than L4-5 disc herniation/extrusion.
Consequently, the Board finds that the case is not in posture for decision.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden to establish entitlement to compensation; however, OWCP
shares responsibility in the development of the evidence to see that justice is done.18
OWCP accepted lumbar degenerative disc disease based on the DMA’s March 5, 2014
recommendation. However, it is unclear why Dr. Hogshead, the DMA, recommended accepting
lumbar degenerative disc disease rather than lumbar extruded disc, as requested by appellant’s
then-treating physician, Dr. Dawkins. The DMA’s choice of lumbar degenerative disc disease
also conflicts with Dr. Nair’s August 16, 2013 finding. According to Dr. Nair, appellant’s
lumbar disc herniation appeared to be secondary to his job-related injury, whereas the lumbar
degenerative disc disease was unrelated to appellant’s workers’ compensation injury. OWCP
previously sought clarification from Dr. Hogshead, but he had not adequately responded to the
underlying issue. Although Dr. Hogshead recommended approving the requested L4-5 surgery,
the DMA was equivocal as to whether appellant’s L4-5 disc bulge was employment related, and
whether it should be accepted as such. Once OWCP undertakes development of the record, it
must do a complete job in procuring medical evidence that will resolve the relevant issues in the
case.19
The Board finds that this case must be remanded to refer the case along with a copy of
the complete medical record and updated SOAF, to a new second opinion as to whether the L4-5
disc bulge was employment related. After OWCP has developed the medical record it shall issue
a de novo decision regarding appellant’s entitlement to wage-loss compensation for temporary
total disability beginning June 28, 2014 due to any accepted conditions.

18

William J. Cantrell, 34 ECAB 1223 (1983).

19

Richard F. Williams, 55 ECAB 343, 346 (2004).

8

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 1, 2015 decision of the Office of Workers’
Compensation is set aside, and the case is remanded for further action consistent with this
decision.
Issued: April 7, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

9