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

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1086
Issued: December 8, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 26, 2016 appellant, through counsel, filed a timely appeal from a March 30,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has a ratable impairment of the left lower extremity and
more than one percent permanent impairment of the right lower extremity, for which he
previously received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board.3 In a decision dated December 24, 2013,
the Board determined that the April 2, 2012 and January 14, 2013 reports from appellant’s
treating physician, Dr. Charles Xeller, a Board-certified orthopedic surgeon, and the July 19,
2012 report from OWCP’s medical adviser Dr. Arthur S. Harris, a Board-certified orthopedic
surgeon, lacked probative value as they did not properly apply the specific methodology for
rating spinal nerve impairments affecting the lower extremities in accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), June 2009 Guides Newsletter. The Board set aside OWCP’s
February 5 and June 4, 2013 decisions and remanded the case for OWCP to request a medical
opinion that properly evaluated appellant’s permanent impairment of the lower extremities
pursuant to the sixth edition of the A.M.A., Guides.
The facts and circumstances of the case as set forth in the Board’s prior decision are
incorporated herein by reference. The relevant facts are set forth below.
On September 30, 2008 appellant, then a 59-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained herniated lumbar discs and lumbar
radiculitis as a result of the repetitive duties of his employment. He stopped work on July 21,
2008 and returned to work on September 30, 2008.
OWCP accepted this claim for multiple lumbosacral disc bulges, L5-S1 nerve root
impingement with radiculopathy, and lumbosacral spondylolisthesis. Medical benefits were
authorized. Wage-loss benefits were paid on the supplemental rolls from November 17 until
December 2, 2008 and from January 23 until March 30, 2012.
Appellant retired from federal service on June 1, 2012.
Upon remand from the Board’s December 24, 2013 decision, OWCP requested a
supplemental opinion from Dr. Harris. In an August 25, 2014 report, Dr. Harris reviewed
appellant’s case file and noted his accepted conditions of lumbosacral multilevel disc bulging,
L5-S1 nerve root impingement with radiculopathy, and lumbosacral spondylolisthesis. He
described the medical treatment that appellant received and reported that, for purposes of
calculating a schedule award according to the A.M.A., Guides, appellant had zero percent
impairment of the right and left lower extremities. Dr. Harris explained that, although appellant
had continued problems with lumbar radiculopathy, there was no objective evidence of
neurologic deficit in the right or left lower extremities in Dr. Xeller’s April 2, 2012 and
January 14, 2013 reports. He noted a date of maximum medical improvement (MMI) of
3

Docket No. 13-1649 (issued December 24, 2013).

2

November 23, 2011, as indicated in Dr. Xeller’s April 2, 2012 report. Dr. Harris related that he
disagreed with Dr. Xeller’s use of Table 17-4 of the A.M.A., Guides, which provided impairment
based on mechanical low back pain, radiculopathy, and documented spinal pathology, because
OWCP did not grant schedule awards based on spinal pain.
In a letter dated September 26, 2014, OWCP requested that Dr. Harris provide further
rationale for the change in his prior opinion, set forth in his July 19, 2012 report, that appellant
had one percent permanent impairment of his right lower extremity. It also asked for Dr. Harris
to confirm whether he utilized the July/August 2009 Guides Newsletter from the A.M.A., Guides
as the basis for his impairment assessment.
Dr. Harris responded to OWCP’s letter and in a report dated October 5, 2014 he related
that his July 19, 2012 impairment rating of one percent permanent right lower extremity
impairment was based on the lack of neurologic deficit found in Dr. Xeller’s April 2, 2012
report, appellant’s continued complaints of right lumbar radiculopathy, and a September 21,
2010 positive electrodiagnostic examination. He confirmed his opinion that appellant now had
zero percent impairment of the right and left lower extremities because Dr. Xeller’s January 14,
2013 report contained no evidence of ongoing problems with right lumbar radiculopathy or
evidence of neurologic deficit in either lower extremity. Dr. Harris explained that, even though
appellant had a history of positive electrodiagnostic studies, the lack of ongoing problems with
right lumbar radiculopathy established that appellant had zero percent lower extremity
impairment. He indicated that his calculation was based on the July/August 2009 Guides
Newsletter.
Appellant also submitted various progress reports. In a May 5, 2014 progress report,
Dr. Edward Mittleman, a family practitioner, examined appellant for complaints of low back
pain. He conducted an examination and recommended that appellant continue his home
exercises and return in six months for reevaluation. In a November 4, 2014 report, Dr. Hosea
Brown, III, a Board-certified internist, related that appellant presented for follow-up examination
of low back pain. He noted that appellant had reached the point of MMI status as of
November 23, 2011. Dr. Brown provided physical examination findings and diagnosed
lumbosacral multiple disc bulges, L5-S1 nerve impingement with radiculopathy, and
lumbosacral spondylolisthesis.
In a decision dated May 18, 2015, OWCP found that the medical evidence failed to
establish that appellant had a ratable impairment of the left lower extremity or more than one
percent permanent impairment of the right lower extremity, for which he previously received a
schedule award.
On May 27, 2015 OWCP received appellant’s request, through counsel, for a hearing. A
hearing was held on January 12, 2016. Appellant was represented by counsel at the hearing and
he noted that his last electrodiagnostic testing was two or three years ago because OWCP denied
him any more medical testing. He explained that he only had his physical checkup with his
primary physician every six months. Appellant related that he continued to experience
numbness, tingling, and loss of sensation in his right leg.

3

In a November 10, 2015 progress report, Dr. Brown indicated that appellant had reached
MMI as of November 23, 2011. Upon examination, he observed mild-to-moderate discomfort
upon range of motion examination with mild-to-moderate spasm of the paraspinal lumbosacral
musculature.
Dr. Brown diagnosed lumbosacral multiple disc bulging, L5-S1 nerve
impingement with radiculopathy, and lumbosacral spondylolisthesis.
By decision dated March 30, 2016, an OWCP hearing representative affirmed the
May 18, 2015 decision. She determined that the medical evidence failed to establish that
appellant had a ratable impairment of the left lower extremity and no more than one percent
permanent impairment of the right lower extremity in accordance with the July/August 2009
Guides Newsletter.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as the appropriate standards for evaluating schedule
losses.5
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.6 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.7
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.8 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
4

Supra note 2.

5

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

6

W.D., Docket No. 10-274 (issued September 3, 2010); Richard R. LeMay, 56 ECAB 341 (2005); Pamela J.
Darling, 49 ECAB 286 (1998).
7

K.H., Docket No. 09-341 (issued December 30, 2009); Thomas J. Engelhart, 50 ECAB 319 (1999).

8

Rozella L. Skinner, 37 ECAB 398 (1986).

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section 3.700 of its procedures, which memorializes proposed tables as outlined in The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment (July/August 2009 edition) of the sixth
edition.9
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage in accordance with the A.M.A., Guides with the medical adviser providing rationale
for the percentage of impairment specified.10
ANALYSIS
OWCP accepted appellant’s claim for multiple lumbosacral disc bulges, L5-S1 nerve root
impingement with radiculopathy, and lumbosacral spondylolisthesis as a result of his federal
employment. Appellant submitted a claim for a schedule award on June 18, 2012. OWCP
granted a schedule award for one percent permanent impairment of the right lower extremity and
denied any ratable impairment of the left lower extremity as a result of his accepted lumbar
conditions. The Board finds that the medical evidence of record does not establish that appellant
sustained more than one percent permanent impairment of the right lower extremity and any
ratable impairment of the left lower extremity due to his accepted lumbar conditions.
In support of his claim appellant submitted reports dated April 2, 2012 and January 14,
2013 by Dr. Xeller, who determined that appellant had seven percent whole person impairment
as a result of his accepted lumbar conditions. Dr. Xeller provided examination findings and
indicated that appellant reached MMI on November 23, 2011. He explained that, according to
Table 17-4, page 570, of the A.M.A., Guides, appellant had seven percent impairment for
multiple protrusions at other levels and nonverifiable radicular complaints.
Following the Board’s remand decision, OWCP returned the case file to Dr. Harris, who
again reviewed appellant’s schedule award claim. In an August 25, 2014 report, Dr. Harris noted
that there was no objective evidence of neurologic deficit in appellant’s right or left lower
extremity according to Dr. Xeller’s January 14, 2013 report. Thus, he determined that appellant
had zero percent impairment of the bilateral lower extremities in accordance with the A.M.A.,
Guides. Dr. Harris noted a date of MMI of November 23, 2011. In an October 5, 2014
supplemental report, he indicated that his calculations were based on the July/August 2009
Guides Newsletter.
The Board finds that OWCP’s medical adviser properly concluded that because there was
no objective evidence of neurologic deficit in appellant’s bilateral lower extremities, appellant
has failed to prove a ratable impairment of the bilateral lower extremities.11 Dr. Harris properly
utilized The Guides Newsletter July/August 2009 and provided medical rationale for his
9

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010); The Guides Newsletter is included as Exhibit 4.
10

See id., Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f)
(February 2013); Tommy R. Martin, 56 ECAB 273 (2005).
11

D.B., Docket No. 16-0059 (issued March 14, 2016).

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impairment rating. The medical evidence, therefore, fails to demonstrate that appellant has more
than one percent permanent impairment of the right upper extremity and any ratable impairment
of the left lower extremity as a result of his accepted condition under the sixth edition of the
A.M.A., Guides.
The additional progress reports by Drs. Mittleman and Brown are also insufficient to
establish appellant’s entitlement to greater impairment to his bilateral lower extremities as
neither physician reached any conclusion with regard to permanent impairment.12 Appellant has
submitted no other current medical evidence in conformance with the sixth edition of the
A.M.A., Guides or The Guides Newsletter, addressing how he has more than one percent
permanent impairment of the right lower extremity and any ratable impairment of the left lower
extremity as a result of his accepted lumbar conditions. Accordingly, the weight of the medical
opinion evidence is accorded to Dr. Harris’ August 25 and October 5, 2014 reports.
On appeal, counsel alleges that the continued use of the A.M.A., Guides or The Guides
Newsletter deprives the injured worker of due process of law as it denies compensation based
upon made-up articles that have never been adopted by the A.M.A., Guides. The Board,
however, has long recognized the discretion of OWCP to adopt and utilize various editions of the
A.M.A., Guides for assessing permanent impairment.13 In particular, the Board has recognized
the adoption of this methodology for rating extremity impairment, including the use of The
Guides Newsletter, as proper in order to provide a uniform standard applicable to each claimant
for a schedule award for extremity impairment originating in the spine.14
Appellant may request a schedule award or 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 appellant failed to establish that he has a ratable impairment of the
left lower extremity and more than one percent permanent impairment of the right lower
extremity, for which he has received a schedule award.

12

Supra note 5. Permanent impairment must be rated pursuant to The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment (July/August 2009 edition) of the sixth edition.
13

D.S., Docket No. 14-12 (issued March 18, 2014).

14

See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the March 30, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 8, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
PANAMA CANAL COMMISSION,
INDUSTRIAL DIVISION, Cristobal, Panama,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-2004
Issued: July 25, 2012

Case Submitted on the Record

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

On September 23, 2011 appellant filed a timely appeal of a May 5, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP), finding that his request for
reconsideration was untimely and failed to show clear evidence of error. The appeal was
docketed as No. 11-2004.1
This case was before the Board on prior appeals. By decision dated August 11, 1999, the
Board affirmed a September 16, 1996 OWCP decision denying the recurrence of disability
claim.2 In a decision dated October 19, 2009, the Board affirmed a September 5, 2008 OWCP
decision finding that appellant’s application for reconsideration was untimely and failed to show
clear evidence of error.3
1

A duplicative Docket No. 12-02 was also inadvertently created. Any correspondence received pursuant to
Docket No. 12-02 was considered by the Board with respect to the current appeal. Docket No. 12-02 will be
dismissed on the grounds that it duplicates Docket No. 11-2004.
2
3

Docket No. 97-2880 (issued August 11, 1999).

Docket No. 09-449 (issued October 19, 2009). Appellant did not specifically raise this argument on previous
appeal.

In the current appeal, appellant argued that he did timely request reconsideration within
one year of the Board’s August 11, 1999 merit decision, noting the submission of evidence in
2000.4 In this regard, the record contains a July 10, 2000 letter from appellant, in Spanish,
discussing his claim and referencing the August 11, 1999 Board decision. The letter is date
stamped as received by OWCP July 31, 2000. In addition, there were medical reports in Spanish
dated June 12, 2000 Dr. Avelino Gutierrez and July 4, 2000 from Dr. Daniel Clua, also received
on July 31, 2000.
The May 5, 2011 OWCP decision does not acknowledge that a July 10, 2000 letter and
medical evidence were received on July 31, 2000 with respect to this claim.5 Pursuant to Board
case law, OWCP should have attempted to secure an accurate translation of the evidence if there
was a need for clarification.6 The case will be remanded to OWCP for a proper determination as
to whether the July 10, 2000 letter and accompanying evidence constituted a timely request for
reconsideration.7 After such further development as OWCP deems necessary, it should issue an
appropriate decision.8

4

A claimant has one year from a merit decision of the Board to timely request reconsideration. See Eileen A.
Nielson, Docket No. 95-3047 (issued December 23, 1997).
5

The May 5, 2011 decision stated that the June 12 and July 4, 2000 medical reports were new to this file and not
received until October 26, 2010.
6

See H.S., Docket No. 11-1170 (issued December 14, 2011); Patrick T. Wall, Docket No. 01-1802 (issued
March 26, 2002); Armando Colon, 41 ECAB 563 (1990).
7

See Jack D. Johnson, 57 ECAB 593 (2006) for a discussion as to evidence constituting a request for
reconsideration.
8

The Board notes that appellant requested an oral argument. Pursuant to 20 C.F.R. § 501.5(a), oral arguments
may be held at the discretion of the Board. In view of the Board’s findings, oral argument in this appeal would not
serve a useful purpose. The issues can be adequately addressed based on the case record as submitted and oral
argument is denied.

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 5, 2011 is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: July 25, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Port Huron, MI, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1880
Issued: July 24, 2017

Case Submitted on the Record

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

JURISDICTION
On September 22, 2016 appellant, through counsel, filed a timely appeal from an
August 12, 2016 nonmerit decision of the Office of Workers’ Compensation Programs2
(OWCP). As more than 180 days elapsed from the last merit decision, dated May 5, 2016, to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.
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

The Board notes that appellant, through counsel, specifically appealed only OWCP’s August 12, 2016 nonmerit
decision. Although the Board has jurisdiction over an OWCP hearing representative’s May 5, 2016 merit decision
which affirmed the denial of her claim for a recurrence of disability, appellant has not appealed that decision.
Therefore, the Board has not addressed it in this appeal. See 20 C.F.R. § 501.3(a)(c).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal, counsel contends that OWCP did not properly consider new evidence
submitted by appellant along with her request for reconsideration.
FACTUAL HISTORY
On January 29, 2013 appellant, then a 45-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that on January 23, 2013 she first became aware of her
injury and first realized that it was caused by her federal employment as she had the same
symptoms as a previous injury. In a January 30, 2013 narrative statement, she related that she
was awakened by pain from her left shoulder to her fingertips. Appellant claimed that
overreaching while casing mail caused her left hand to hit a case resulting in tingling in the hand.
By letter dated February 27, 2013, OWCP advised appellant of the deficiencies in her
claim and requested that she submit additional factual and medical evidence. It afforded her 30
days to submit additional evidence and respond to its inquiries.
In a March 27, 2013 narrative statement, appellant related that a medical report from her
physician regarding her left hand condition was forthcoming.
In a March 22, 2013 electromyogram (EMG) and nerve conduction velocity study,
Dr. Geoffrey K. Seidel, a Board-certified physiatrist, provided an impression of an abnormal left
upper extremity electrodiagnostic examination.
He also provided an impression of
electrodiagnostic evidence of median mononeuropathy/carpal tunnel syndrome. Dr. Seidel found
no electrodiagnostic evidence of ulnar neuropathy at the elbow or cervical radiculopathy or
plexopathy.
Appellant completed a medical questionnaire on March 22, 2013 regarding her medical
and family history, hobbies, and exercise and sports activities.
In an April 2, 2013 decision, OWCP denied appellant’s claim after finding that the
evidence was insufficient to establish the claimed events. It noted that she had not submitted any
factual evidence in response to its February 27, 2013 development letter. OWCP also found that
the medical evidence of record did not contain a medical diagnosis in connection with an injury
or events.
By letter dated April 9, 2013, appellant, through counsel, requested a telephone hearing
with an OWCP hearing representative.
In a February 25, 2013 medical report, Dr. Antonio Colombo, an attending Boardcertified internist, noted that appellant’s rural carrier position required repetitive use of her hand.
He also noted her left arm and left hand symptoms which had worsened at work. Dr. Colombo
reported findings on physical examination and diagnosed left hand pain and left hand carpal

2

tunnel syndrome. He advised that appellant’s conditions were work related and concluded that
she could work with restrictions.4
In a November 6, 2013 decision, an OWCP hearing representative modified the April 2,
2013 decision to reflect that the evidence of record was sufficient to establish that appellant
performed the claimed work duties. However, he remanded the case to OWCP for further
development of the medical evidence.
The hearing representative found that, while
Dr. Colombo’s February 25, 2013 report was insufficient to discharge appellant’s burden of
proof to establish causal relationship, it was sufficient to require further medical development.
In a December 1, 2013 letter, Dr. Colombo advised that appellant’s left carpal tunnel
syndrome was based on an EMG. He opined that her condition was directly and causally related
to her rural carrier position which involved repetitive use of her hands, particularly driving with
her left hand.
On January 16, 2014 OWCP accepted appellant’s claim for left carpal tunnel syndrome.
By letter dated January 21, 2014, OWCP advised Dr. Colombo that appellant had not
returned to work since the filing of her claim. It requested that he submit a report addressing her
work capacity.
In a December 23, 2013 report received on January 21, 2014, Dr. Colombo noted
appellant’s difficulty with performing her repetitive job duties due to her work-related left hand
carpal tunnel syndrome. In a January 29, 2013 disability certificate, he reported that she had
been unable to work commencing January 25, 2013. Dr. Colombo advised that appellant could
return to work with restrictions on January 30, 2013.
On January 22 and 29, 2014 appellant filed claims for compensation (Forms CA-7) for
leave without pay from January 23, 2013 to February 7, 2014.
By letter dated February 19, 2014, OWCP advised appellant that the medical evidence of
record was insufficient to establish her occupational disease claim. It afforded her 30 days to
submit additional medical evidence to establish disability causally related to her accepted workrelated condition.
In a March 17, 2014 letter, Dr. Colombo reiterated that appellant’s left hand carpal tunnel
syndrome and left hand pain were work related. He advised that her limitations on lifting,
reaching, pushing, pulling, and driving limited her ability to work. Dr. Colombo further advised
that side effects from appellant’s current medications, which included sedation and sleepiness
that sometimes caused dizziness with sudden movement, blurry vision, fatigue, the need to sleep
multiple times during the day, and occasional shortness of breath and light-headedness, which
caused anxiety and her to pass out, resulted in her incapacity to work.

4

A March 6, 2013 letter and May 7, 2013 Notice of Personnel Action (Form SF-50) indicated that the employing
establishment removed appellant from employment, effective April 15, 2013, for failure to adhere to attendance
regulations and for being absent without leave.

3

In an April 9, 2014 report, Dr. Steven J. Heithoff, a Board-certified orthopedic surgeon,
noted that he had previously performed right carpal tunnel release and that appellant had an
excellent result. He also noted that she presented for treatment of her left carpal tunnel
condition. Dr. Heithoff reviewed appellant’s medical history and family and social background.
He reported findings on physical and x-ray examination and provided an impression of grade 1
left carpal tunnel syndrome and pain in the left forearm joint. Dr. Heithoff proposed left carpal
tunnel release.5 He indicated that Dr. Colombo had placed appellant off work and that the
physician would continue to manage her work status.
By decision dated April 23, 2014, OWCP denied appellant’s claim for a recurrence of
disability from January 23, 2013 to February 7, 2014. It found that the medical evidence of
record failed to establish that she was disabled during the claimed period as a result of her
accepted employment injury. OWCP further found that the evidence of record was insufficient
to establish that appellant’s claimed disability was due to a change or withdrawal of her lightduty assignment.
By letter dated April 29, 2014, counsel requested a telephone hearing with an OWCP
hearing representative.
In reports dated April 30 and September 3, 2014, Dr. Heithoff noted that appellant was
postop of her April 18, 2014 left carpal tunnel release. He also noted her history, provided
findings on examination, and reviewed prior diagnostic test results. Dr. Heithoff restated his
impression of pain in the left forearm joint and left carpal tunnel syndrome. He also reiterated
his finding regarding appellant’s disability for work. Dr. Heithoff agreed with Dr. Colombo that
she should be off work for 45 days following her April 18, 2014 surgery. He also reiterated this
finding in a September 3, 2014 disability certificate. In a May 9, 2014 disability certificate,
Dr. Heithoff advised that appellant could return to work on July 14, 2014.
In a January 30, 2015 decision, a second OWCP hearing representative set aside the
April 23, 2014 decision and remanded the case to OWCP for further development of the medical
evidence. She found that while Dr. Colombo’s opinion regarding the cause of appellant’s
disability for work was insufficient to discharge appellant’s burden of proof to establish a total
disability during the claimed period, it was sufficient to require referral to a second opinion
physician.
On April 29, 2015 OWCP referred appellant, together with a statement of accepted facts
(SOAF), the medical record, and a list of questions, to Dr. Emmanuel Obianwu, a Boardcertified orthopedic surgeon, for a second opinion.
In a May 15, 2015 report, Dr. Obianwu provided results of an examination conducted on
that date. He reviewed appellant’s medical record, the SOAF, and provided an accurate history
of the accepted employment injury. Dr. Obianwu noted her current complaints of bilateral hand,
elbow, wrist, and neck pain. He reported normal findings on examination of the left hand, left
wrist, neck, bilateral shoulders, and elbows. Dr. Obianwu diagnosed resolved carpal tunnel
5

On April 30, 2014 OWCP authorized appellant’s left carpal tunnel release which was performed on April 18,
2014 by Dr. Heithoff. Appellant received wage-loss compensation from April 21 to 30, 2014.

4

syndrome of the left wrist and hand, normal shoulder, and normal cervical spine. He explained
that the left carpal tunnel syndrome had resolved as none of the provocative tests for making
such a diagnosis was positive in the left hand. More importantly, there was no atrophy of the
thenar eminence.
Dr. Obianwu maintained that there was no single objective finding that would lead any
examiner to consider the presence of this entity. He found that there was no medical evidence to
indicate that appellant was totally disabled from January 2013 to February 2014. Appellant had
left carpal tunnel syndrome, but could work with restrictions. She had the same problem on the
right side in 2011 and worked with restrictions until her surgery. Dr. Obianwu noted talk about
dizziness and difficulty controlling appellant’s steering, but found it difficult to see how carpal
tunnel syndrome in one hand could be manifested by such a wide range in symptomatology as
described by appellant. He found that she could perform her duties as a rural carrier without
restrictions. Dr. Obianwu recommended that appellant wear wrist/forearm braces at night due to
her surgery on both hands. He also recommended that she discontinue use of Norco as he did
not find anything on her musculoskeletal examination to justify the use of this potent narcotic
analgesic agent.
By decision dated June 5, 2015, OWCP denied appellant’s claim for a recurrence of
disability from January 23, 2013 through February 7, 2014. It found that Dr. Obianwu’s referral
opinion represented the weight of the medical evidence.6
On June 12, 2015 counsel requested a telephone hearing with an OWCP hearing
representative.
In a May 5, 2016 decision, an OWCP hearing representative affirmed the June 5, 2015
decision. She found that Dr. Obianwu’s report was sufficiently rationalized to establish that
appellant did not sustain a recurrence of disability from January 23, 2013 to February 7, 2014
causally related to her accepted employment injury.
By letter dated May 16, 2016, counsel requested reconsideration and submitted medical
evidence. In an undated letter, Dr. Colombo noted that, postoperatively, appellant related that
she had weakness and occasional numbness in her left hand. As a result, appellant was unable to
ride her bike. Dr. Colombo also noted that she had weakness in her left hand on a Jamar
dynamometer testing, which was normal for her current age. He presumably disagreed with
Dr. Obianwu’s impression of a normal cervical spine, noting that a previous magnetic resonance
imaging (MRI) scan had documented an abnormal cervical spine. Dr. Colombo also disagreed
with his finding that appellant had no evidence of pathology and that a carpal tunnel could only
be diagnosed on examination. He found that she still had weakness in her hand, which was one
of her initial complaints, and her history was still positive for the condition. Dr. Colombo
maintained that the only objective proof of the condition would be another EMG. He noted that
appellant’s job required her to lift boxes weighing 70 pounds and related that with her left hand
strength being half of normal she should be restricted from performing such a task. Dr. Colombo

6

In an October 15, 2015 decision, OWCP granted appellant a schedule award for five percent permanent
impairment of the left upper extremity.

5

concluded that Dr. Obianwu was unaware of her other medical problems, and thus, his comment
regarding her pain medicine use was unfortunate.
In an August 12, 2016 decision, OWCP denied further merit review of appellant’s claim.
It found that her request for reconsideration did not raise substantive legal questions or include
new and relevant evidence. OWCP found that Dr. Colombo’s undated report was cumulative as
he had made similar statements in his previous reports.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.8 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.9 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.10
ANALYSIS
The Board finds that OWCP improperly declined to reopen appellant’s claim for
consideration of the merits.
With her May 16, 2016 reconsideration request, appellant did not allege or demonstrate
that OWCP erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered by OWCP. Consequently, she was 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).11
With respect to the third above-noted requirement under section 10.606(b)(3), appellant
submitted Dr. Colombo’s new undated report. In this report, Dr. Colombo provided rationale in
support of his opinion, which disagreed with the opinion of Dr. Obianwu, that appellant was
totally disabled from January 2013 to February 2014 due to her accepted work-related left carpal
tunnel syndrome. Contrary to Dr. Obianwu’s impression of a normal cervical spine, he noted
that a previous MRI scan documented that appellant had an abnormal cervical spine.
7

Supra note 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).
8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.607(a).

10

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

11

Id. at § 10.606(b)(3).

6

Dr. Colombo noted that, while Dr. Obianwu found no evidence of pathology, he found weakness
in appellant’s hand on testing with a Jamar dynamometer, noting that this was one of her initial
complaints and it had not resolved postsurgery. He recommended that she undergo another
EMG as the only objective proof of her carpal tunnel condition. Dr. Colombo maintained that
since appellant’s left hand strength was only half of normal, she should be restricted from lifting
70-pound boxes at work. He further maintained that, Dr. Obianwu’s comment regarding her
pain medicine use was unfortunate as he was not aware of her other medical problems.
The Board finds that Dr. Colombo’s report constitutes relevant and pertinent new
evidence not previously considered by OWCP. Appellant’s request for reconsideration met one
of the standards for obtaining merit review of her case.12 Accordingly, she is entitled to a merit
review. The Board will, therefore, set aside OWCP’s August 12, 2016 decision and remand the
case for an appropriate merit decision on appellant’s recurrence claim.
On appeal, counsel contends that OWCP did not properly consider new evidence
submitted by appellant along with her request for reconsideration. For the reasons stated above,
the case will be remanded to OWCP for issuance of an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

12

L.Y., Docket No. 15-1344 (issued March 10, 2016).

7

ORDER
IT IS HEREBY ORDERED THAT the August 12, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: July 24, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Glynco, GA, Employer
__________________________________________

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

Docket No. 09-1361
Issued: September 8, 2010

Case Submitted on the Record

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

JURISDICTION
On May 4, 2009 appellant filed a timely appeal from merit decisions of the Office of
Workers’ Compensation Programs dated July 30, 2008 and February 19, 2009 regarding the
termination of her compensation benefits and the denial of her request to expand her accepted
claim to include a cervical condition. Pursuant to 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’s claim should be expanded to include a cervical
condition; and (2) whether the Office properly terminated compensation benefits effective
July 30, 2008.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated April 22, 2008, the
Board reversed the Office decisions dated December 21, 2006 and March 30, 2007 terminating

her compensations benefits.1 The Board also set aside decisions dated October 31 and
December 4, 2006 and June 13, 2007 denying her request for expansion of her claim to include a
cervical condition and authorization for treatment for her cervical condition due to an unresolved
conflict in the medical opinion evidence. The Board found an unresolved conflict in medical
opinion between Dr. Mark A.P. Filippone,2 a Board-certified physiatrist, and Dr. A.R. Sayed
Bakhaty,3 a physician, for appellant and Dr. Zohar Stark,4 a second opinion Board-certified
orthopedic surgeon, regarding appellant’s ongoing residuals and disability were due to her
accepted right shoulder contusion and labral tear and whether her diagnosed cervical disc disease
was caused or contributed to by the May 22, 2001 employment injury. The findings of fact and
conclusions of law from the prior decision are hereby incorporated by reference.5
On May 22, 2008, following the Board’s April 24, 2008 decision, the Office referred
appellant to Dr. Robert Dennis, a Board-certified orthopedic surgeon to resolve the conflict in the
medical opinion evidence between Drs. Filippone and Dr. Bakhaty, for appellant, Dr. Stark, the
Office referral physician. The record contains a bypass sheet dated May 14, 2008 for Dr. Elliot
Semet with “L” noted under reason for bypass and a referral form to Dr. Dennis.
In a June 11, 2008 report, Dr. Dennis diagnosed mild right shoulder labral abrasion,
status post arthroscopic debridement, total right shoulder recovery, preexisting and unrelated
mild cervical spine degenerative changes. A physical examination of the right shoulder revealed
normal range of motion, minimal crepitus and normal power grip and pinch. Dr. Dennis also
reported there were no impingement syndrome signs and appellant was able to raise her hands
over head. An examination of the cervical spine revealed trigger points, a negative adduction
test and negative compression test. Range of motion included 60 degrees forward flexion, 40
degrees back flexion and 30 degrees lateral bending. Overall, Dr. Dennis concluded that the
cervical examination was very close to normal and appellant did “not have neck pathology that is
in any way in excess of her chronological age.” He opined that her accepted shoulder injury had
resolved and that her degenerative cervical spine changes were unrelated to the May 22, 2001
employment injury. In support of his conclusions, Dr. Dennis opined that the degenerative
1

Docket No. 07-2311 (issued April 22, 2008).

2

Dr. Filippone diagnosed right shoulder pain, right cervical parapsinal pain and C5-6 cervical radiculopathy
which he attributed to her employment injury.
3

Dr. Bakhaty diagnosed right-sided C5-6 radiculopathy, C5-6 post-traumatic disc bulge, post-traumatic
myofascial syndrome, post-traumatic right shoulder tendinitis with persistent complaints following surgery, which
he attributed to her employment injury.
4

Dr. Zohar concluded that appellant had no disability attributable to the May 22, 2001 employment injury. He
attributed her ongoing symptoms to her cervical spine degenerative disc disease, which was not caused or
aggravated by the employment injury.
5

On May 22, 2001 appellant, then a 31-year-old corrections officer, filed a traumatic injury claim alleging that
she injured her right shoulder on that date while shooting a shotgun. The Office accepted the claim for right
shoulder contusion and labral tear and authorized right shoulder arthroscopic surgery, which occurred on
October 20, 2005. Appellant was reassigned to a secretarial position effective November 12, 2001. The Office
accepted appellant’s June 8 and September 8, 2005 recurrence claims. Appellant was released to full-duty work on
January 6, 2006 by Dr. Lawrence I. Barr, a treating osteopath. On October 10, 2006 the Office placed appellant on
the periodic rolls for temporary total disability.

2

cervical spine changes were not employment related and were not caused by her firing of a
shotgun. As to her right shoulder, he noted the condition was no longer present and any
aggravation had ceased. Dr. Dennis stated that giving appellant “the maximum benefit of the
doubt, the impacts were responsible for the [diagnosed conditions]” and the surgery completely
resolved those problems. He noted appellant’s examination revealed no “definable clinical
functional impairment.” In his orthopedic summary, Dr. Dennis related that he was unable to
find an injury to the cervical spine due to a normal muscle and range of motion testing, no
cervical spasm and the normal age-related degenerative spine changes. As to her right shoulder,
he noted that usually the cervical spine is spared when there is impact to the right shoulder.
On June 24, 2008 the Office issued a proposed notice of termination of compensation
benefits based on Dr. Dennis’ impartial medical examiner findings that appellant had no ongoing
residuals or disability due to the May 22, 2001 employment injury and that her cervical condition
had not been caused or aggravated by the employment injury.
In a letter dated June 8, 2008, appellant’s counsel disagreed with the proposal to
terminate appellant’s compensation benefits and requested proof that Dr. Dennis had been
properly selected from the Physicians Directory System (PDS). She also contended that
Dr. Dennis’ opinion regarding the cervical condition was speculative and should not be entitled
to the weight normally given to an impartial medical examiner.
On July 22, 2008 an Office medical adviser reviewed Dr. Dennis’ June 11, 2008 report
and opined that the physician had adequately addressed the questions posed in an excellent
report.
By decision dated July 30, 2008, the Office terminated appellant’s compensation benefits
effective that day.
On August 5, 2008 appellant’s counsel requested an oral hearing before an Office
hearings representative, which was held on December 2, 2008.
Appellant submitted reports from Drs. Filippone and Dr. Bakhaty in support of her claim
that she continued to have residuals from her accepted employment injury and that her cervical
condition was employment related. Dr. Filippone, in an August 22, 2008 report, noted his
disagreement with Dr. Dennis’ conclusion that appellant’s cervical condition was not
employment related and that her shoulder condition had resolved. In reports dated September 2
and December 2, 2008, Dr. Bakhaty reiterated his opinion that appellant’s cervical conditions
continued and were employment related.
By decision dated February 19, 2009, an Office hearing representative affirmed the
July 30, 2008 decision terminating appellant’s compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
To establish a causal relationship between the condition as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence based on a complete medical and factual background supporting such a casual

3

relationship.6 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.7 Rationalized medical evidence
is evidence which includes a physician’s rationalized medical opinion on the issue of whether
there is a causal relationship between the diagnosed condition and the specific employment
factors identified by the claimant.8 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.9
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
if there is disagreement between the physician making the examination for the United States and
the physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.10 Where a case is referred to an impartial medical specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background must be given special weight.11
It is well established that Office procedures provide that an impartial medical specialist
must be selected from a rotational list of qualified Board-certified specialists, including those
certified by the American Medical Association and American Osteopathic Association.12 The
physician selected as the impartial specialist must be one wholly free to make an independent
evaluation and judgment. To achieve this end, the Office has developed procedures for the
selection of the impartial medical specialist designed to provide adequate safeguards against the
appearance that the selected physician’s opinion was biased or prejudiced.13 These procedures
contemplate selection on a strict rotating basis in order to negate any appearance that preferential
treatment exists between a physician and the Office.14 Moreover, the reasons for the selection
made must be documented in the case record.15

6

M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

7

D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004).

8

Phillip L. Barnes 55 ECAB 426 (2004); Leslie C. Moore, 52 ECAB 132 (2000).

9

V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000).

10

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

11

V.G., 59 ECAB ___ (Docket No. 07-2179, issued July 14, 2008); Sharyn D. Bannick, 54 ECAB 537 (2003);
Gary R. Sieber, 46 ECAB 215 (1994).
12

See A.R., 61 ECAB ___ (Docket No. 09-1566, issued June 2, 2010); LaDonna M. Andrews, 55 ECAB
301 (2004).
13

See Raymond J. Brown, 52 ECAB 192 (2001).

14

Id. See also Miguel A. Muniz, 54 ECAB 217 (2002).

15

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b)
(May 2003). A claimant may ask to participate in the selection of the impartial medical specialist under certain
conditions; however, no request was made in this case.

4

LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.16 The Office may not terminate
compensation without establishing that disability ceased or that it was no longer related to the
employment.17 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.18
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.19 To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.20
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”21 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.22
It is well established that Office procedures provide that an impartial medical specialist
must be selected from a rotational list of qualified Board-certified specialists, including those
certified by the American Medical Association and American Osteopathic Association.23 The
physician selected as the impartial specialist must be one wholly free to make an independent
evaluation and judgment. To achieve this end, the Office has developed procedures for the
selection of the impartial medical specialist designed to provide adequate safeguards against the
appearance that the selected physician’s opinion was biased or prejudiced.24 These procedures
16

S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008); I.J., 59 ECAB ___ (Docket No. 07-2362, issued
March 11, 2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003); Fermin G.
Olascoaga, 13 ECAB 102, 104 (1961).
17

I.J. id.; J.M., 58 ECAB 478 (2007); Elsie L. Price, 54 ECAB 734 (2003); Anna M. Blaine, 26 ECAB
351 (1975).
18

See T.P., 58 ECAB 524 (2007); J.M., id.; Del K. Rykert, 40 ECAB 284 (1988).

19

T.P., id.; Darlene R. Kennedy, supra note 10.

20

T.P., supra note 18; Kathryn E. Demarsh, 56 ECAB 677 (2005); James F. Weikel, 54 ECAB 660 (2003);
Furman G. Peake, 41 ECAB 361, 364 (1990).
21

5 U.S.C. § 8123(a); see also R.H., 59 ECAB ___ (Docket No. 07-2124, issued March 7, 2008); Raymond A.
Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45 ECAB 207 (1993).
22

V.G., 59 ECAB ___ (Docket No. 07-2179, issued July 14, 2008); Sharyn D. Bannick, 54 ECAB 537 (2003);
Gary R. Sieber, 46 ECAB 215 (1994).
23

See supra note 12.

24

See Raymond J. Brown, supra note 13.

5

contemplate selection on a strict rotating basis in order to negate any appearance that preferential
treatment exists between a physician and the Office.25 Moreover, the reasons for the selection
made must be documented in the case record.26
ANALYSIS -- ISSUES 1 & 2
The Office found, pursuant to the Board’s April 24, 2008 decision, that there was an
unresolved conflict in the medical opinion evidence between Drs. Filippone and Bakhaty, for
appellant and Dr. Stark, an Office referral physician, regarding whether appellant continued to
have any residuals and disability due to her accepted right shoulder condition. Medical evidence
from Drs. Filippone and Bakhaty indicated that appellant continued to have residuals and
disability as a result of her accepted May 22, 2001 employment injury. Dr. Stark concluded that
appellant had no residuals or disability as a result of her injury. Dr. Dennis found that appellant
had no employment-related cervical condition and that appellant had no residuals or disability
due to her accepted right shoulder employment injury
On appeal, counsel contends that the Office did not properly select Dr. Dennis as the
impartial medical specialist. Under its procedures, the Office claims examiner is to assure that
the impartial medical specialist is selected in conformance with the PDS from those Boardcertified specialists who are qualified and available to conduct the examination. The procedure
manual provides that the case file is to be supplemented with documentation of those instances in
which a physician was contacted and declined the referral or examination is not otherwise
feasible.27 The district Office is to document in the case record how the rotational procedures
were followed.
The evidence of record does not provide adequate documentation pertaining to the
selection of Dr. Dennis as the impartial medical specialist. A bypass form notes that Dr. Elliot
Semet was bypassed on May 14, 2008 with the letter “L” noted under the reason for the bypass
and a referral form for Dr. Dennis. The evidence does not reflect whether Dr. Dennis was the
first physician contacted after bypassing Dr. Semet on May 14, 2008, what the letter “L” means
for bypassing Dr. Semet, whether Dr. Dennis was next on any list maintained by the Office or
provide any reference to the rotational procedures for selecting the impartial medical specialist.
This evidence, however, is not adequate according to the procedure manual’s requirement that
the reason for the selection must be documented on the case record. To establish that Dr. Dennis
was properly selected in compliance with the rotational system using the PDS, the record must
reflect the process. For this reason, the Board finds that Dr. Dennis was not properly selected as
the impartial medical specialist. The Office’s decision denying expansion of appellant’s claim to
include a cervical condition is set aside and the decision terminating her compensation benefits
must be reversed due to an unresolved conflict in medical opinion.

25

Id. See also Miguel A. Muniz, supra note 14.

26

See Federal (FECA) Procedure Manual, supra note 15.

27

Id. at Chapter 3.500.4(b)(7).

6

CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant’s
claim should be expanded to include a cervical condition and authorization for treatment for her
cervical condition due to an unresolved conflict in the medical opinion evidence. The Board
further finds that the Office did not meet its burden of proof to terminate her compensation as of
July 30, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 19, 2009 and July 30, 2008 are reversed with respect to
the termination of appellant’s benefits and set aside and remanded with respect to the expansion
of her claim.
Issued: September 8, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., (Widow of E.R.,) Appellant
and
DEPARTMENT OF THE AIR FORCE,
EDWARDS AIR FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 09-805
Issued: November 13, 2009

Case Submitted on the Record

DECISION AND ORDER

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

JURISDICTION
On February 3, 2009 appellant filed a timely appeal of an October 30, 2008 merit
decision of the Office of Workers’ Compensation Programs finding that her husband’s death was
not causally related to his federal employment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the issue.
ISSUE
The issue is whether the employee’s death on August 2, 2002 was causally related to his
federal employment.
FACTUAL HISTORY
This case has previously been before the Board.1 In a February 20, 2007 decision, the
Board found the case was not in posture for decision. The report of Dr. Donal Sweeney, an
impartial medical specialist, was insufficient to resolve the conflict as to whether the employee’s
1

58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007).

welding duties caused or contributed to his lung cancer and resulted in his death. The Board
remanded the case to the Office for further development of the medical evidence. The facts and
history as contained in the prior decision are incorporated by reference.
On July 23, 2007 the Office referred the medical record to Dr. Steven Simons, Boardcertified in pulmonary disease, for an impartial medical evaluation to resolve the conflict.
In a report dated September 11, 2007, Dr. Simons reviewed the employee’s employment
history and death due to metastatic lung cancer in 2003. The employee had a 41-year history of
cigarette smoking and worked as a welder for approximately 39 years. Dr. Simons also reviewed
and commented on the medical literature relied upon by the previous physicians in the case. He
opined that the cause of the employee’s death was due to cigarette smoking. In response to
whether the employee’s death was caused, aggravated, precipitated or accelerated by his federal
civilian employment as a welder between 1964 and 1994, Dr. Simons opined that the medical
literature supported the contention that there were other determinants of lung cancer, which
included environmental factors. He noted that welding in general may be associated with
increased risk, but the literature was by no means conclusive. Dr. Simons stated that regarding
the “specific risks from welding in general, as well as the nature, quantity and specifics of this
gentleman’s exposure in the workplace. It is clear, given the above limitations, that this cannot
be quantified with any degree of precision whatever to facilitate the derivation of any valid
conclusion.” He concluded that the employee’s death was typical of the lung cancer as it results
from cigarette smoking. Given the clinical course, there was no reason to find any other agent as
aggravating, precipitating or accelerating the cancer, “particularly given the paucity of specific
data in this case.”
By decision dated September 27, 2007, the Office denied the claim for benefits on the
grounds that the weight of the medical evidence did not support that the employee’s death was
causally related to his employment.
On October 24, 2007 appellant’s representative requested a hearing, which was held on
February 26, 2008. Counsel reiterated that the employee worked with numerous carcinogens as
a welder, including nickel, which was found to cause lung cancer. He submitted copies of
previously received reports. In a February 23, 2008 report, Dr. Markovitz noted that he had
previously related that cigarette smoking was the predominant cause of lung cancer. He also
noted that some lung cancers were due to a combination of factors. Dr. Markovitz noted that
welding fumes played a key role as a cocarcinogen and explained that he had performed
additional research on the topic. He reviewed numerous articles including a recent report
entitled Scan J. Work Environ Health (2007-33:379-86). This study showed a statistically
increased risk of lung cancer among welders. Dr. Markovitz opined that the research revealed
that welding fumes were toxic to the lungs and concluded that there was a causal connection
between the lung cancer and the employee’s workplace. The study was submitted with his
report.
By letter dated March 10, 2008, appellant’s representative argued that Dr. Markovitz
supported that the employee’s death was work related. He questioned Dr. Simons’ report and
noted that he did not base his opinion on any independent studies to support his conclusion.

2

By decision dated May 5, 2008, the Office hearing representative vacated the
February 26, 2008 decision. She remanded the case so that the evidence from Dr. Markovitz
could be reviewed by Dr. Simons.
By letter dated August 4, 2008, the Office requested that Dr. Simons review the study on
the risk of lung cancer and welding.2 It requested that Dr. Simons provide his observations
and/or conclusions with rationale as to whether the study noted by Dr. Markovitz altered his
opinion in any manner.
On September 10, 2008 the Office again requested that Dr. Simons provide an opinion
incorporating the October 2007 study. In a memorandum of telephone call of the same date and
again on October 29, 2008, it contacted Dr. Simons’ office to inquire into the status of the
supplemental report. Dr. Simons did not provide a response.
In an October 30, 2008 decision, the Office denied appellant’s claim. It found that, since
no response was received from Dr. Simons, it could not alter the prior decision rendered on
September 27, 2007, as the weight of the medical evidence did not establish any connection
between the employee’s lung cancer and the established work-related exposure.
LEGAL PRECEDENT
The United States shall pay compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of duty.3
Appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his employment. This
burden includes the necessity of furnishing rationalized medical opinion evidence of a cause and
effect relationship, based on a complete factual and medical background, showing causal
relationship. The opinion of the physician must be one of reasonable medical certainty and must
be supported by medical rationale.4
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.5
When the Office obtains an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the specialist’s opinion requires clarification
2

By letter dated May 19, 2008, appellant’s representative objected to the referral back to Dr. Simons. He noted
that the physician was not Board-certified. In a letter dated June 24, 2008, the Office responded to appellant’s
representative and noted Dr. Simons’ qualifications.
3

5 U.S.C. § 8102(a); see id. § 8133 (compensation in case of death).

4

Lois E. Culver, 53 ECAB 412 (2002).

5

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

3

or elaboration, the Office must secure a supplemental report from the specialist to correct the
defect in his original report.6 However, when the impartial specialist is unable to clarify or
elaborate on his original report or if his supplemental report is also vague, speculative or lacking
in rationale, the Office must submit the case record and a detailed statement of accepted facts to
a second impartial specialist for the purpose of obtaining his rationalized medical opinion on the
issue.7
ANALYSIS
The Board finds this case is not in posture for decision.
The Office referred the record for a second impartial medical examination with
Dr. Simons, Board-certified in pulmonary medicine, who was selected to address the conflict in
opinion between the Office medical adviser and Dr. Markovitz, regarding whether the
employee’s welding duties caused or contributed to his lung cancer and resulted in his death.
Dr. Simons reviewed the record and concluded that the employee’s death resulted from cigarette
smoking. In denying the claim, the Office relied upon Dr. Simons’ impartial medical reports to
determine that the employee’s death was not caused or contributed to by his federal employment.
However, Dr. Simons did not respond when the Office requested that he clarify his opinion in
light of studies related to the increased risks of lung cancer among welders submitted by
Dr. Markovitz. The initial opinion of Dr. Simons does not resolve this issue. As he was unable
to clarify or elaborate on his original report, the Office should have referred the matter to another
appropriate impartial medical specialist.8
Consequently, Dr. Simons’ report is insufficient to resolve the medical conflict. For this
reason, the case will be remanded to the Office for further development of the medical evidence
including referral of the record to another impartial medical examiner. After such further
development as the Office deems necessary, an appropriate decision should be issued regarding
this matter.

6

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
7

Roger W. Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB 673 (1996).

8

See supra note 7; Harold Travis, 30 ECAB 1071, 1078-79 (1979).

4

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 30, 3008 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further action consistent with
this decision of the Board.
Issued: November 13, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL OFFICE, POST OFFICE,
Canton, MS, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0789
Issued: March 25, 2022

Case Submitted on the Record

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

JURISDICTION
On April 1, 2021 1 appellant filed a timely appeal from an October 7, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated August 19, 2020, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.3
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. § 501.3(e)(f).
One hundred and eighty days from October 7, 2020, the date of OWCP’s last decision, was April 5, 2021. Since using
April 12, 2021, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of
appeal rights, the date of the postmark is considered the date of filing. See 20 C.F.R. § 501.3(f)(1). As appellant’s
appeal request was postmarked April 1, 2021, the appeal is, therefore, timely.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the October 7, 2020 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: The Board’s review of
a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the
Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 24, 2020 appellant, then a 56-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 23, 2020 she injured her right arm and shoulder when
trying to catch a heavy package that slipped out of her hand while in the performance of duty. She
stopped work on the date of injury.4
In support of her claim, appellant submitted hospital records, including a January 24, 2020
discharge summary and emergency department reports from Dr. Richard Miles, Board-certified in
emergency medicine, who diagnosed right rotator cuff strain.
By decision dated March 6, 2020, OWCP accepted the claim for sprain of right rotator cuff
capsule (right rotator cuff syndrome) and sprain of right acromioclavicular (AC) joint (right AC
joint arthrosis). It paid appellant wage-loss compensation on the supplemental rolls from March 9
through April 28, 2020.5
In a March 27, 2020 initial report, Theresa Koerber, a field nurse OWCP assigned to
appellant’s claim, noted diagnoses of right rotator cuff syndrome and sprain of right
acromioclavicular (AC) joint (right AC joint arthrosis).
In March 27 and April 3, 2020 letters and an April 6, 2020 work capacity evaluation for
musculoskeletal conditions (Form OWCP-5c), Dr. William B. Geissler, a Board-certified
orthopedic surgeon, advised that appellant could return to light-duty work with restrictions of no
reaching overhead, pushing, pulling, or lifting over five pounds. He indicated that appellant
received an injection to the right shoulder and was undergoing physical therapy treatment for her
diagnosed rotator cuff syndrome. Dr. Geissler also provided restrictions limiting his work
schedule to 6:00 a.m. to 6:00 p.m.
On May 15, 2020 the employing establishment offered appellant a limited-full-time
position as a modified rural carrier, effective May 23, 2020. The duties included: surface visibility
scanning for two to four hours per day and quality checks on mail transport equipment for four to
seven hours per day. The tour of duty was from 9:30 p.m. to 6:00 a.m. The physical requirements
included: no pulling or pushing over five pounds and no reaching overhead.
In a May 22, 2020 statement, appellant noted that she had concerns about her medical
limitations and requested reasonable accommodation from the employing establishment. She
4

On January 24, 2020 the employing establishment executed an authorization for examination and/or treatment
(Form CA-16).
5
On July 31, 2020 appellant filed an occupational disease claim (Form CA-2) under OWCP File No. xxxxxx968
alleging that she reinjured her right shoulder when she fainted on June 26, 2020 while in the performance of duty.
OWCP denied that claim, finding that the evidence of record was insufficient to establish the factual component of
fact of injury. This claim is not presently before the Board. The Board notes that OWCP has not administratively
combined these claims.

2

indicated that, pursuant to her doctors’ recommendations, she was unable to report to work until
her next appointment on May 27, 2020.
The employing establishment, in a May 26, 2020 letter, notified OWCP that appellant
expressed concerns over her medical limitations and refused the offer of modified assignment.
In a May 26, 2020 note, Dr. Joe W. Terry, Board-certified in family practice, noted that
appellant was on medication at night that made her drowsy and unable to drive or stay alert. He
indicated that she could only work and drive between the hours of 6:00 a.m. and 6:00 p.m.
In a May 27, 2020 medical report, Dr. Geissler indicated that appellant had been
undergoing physical therapy treatment. He conducted a physical examination and diagnosed right
rotator cuff syndrome and AC joint arthrosis. Dr. Geissler advised that appellant could return to
light-duty work with restrictions of no reaching overhead, pushing, lifting, or pulling more than
10 pounds. He also indicated that her primary doctor restricted her from working at night.
The employing establishment requested, in letters dated May 27 and 28, 2020, that OWCP
determine whether the offered position was suitable. It noted that appellant provided medical
documentation to negate the work hours identified on the offer of modified assignment and added
restriction of lifting to the physical requirement.
OWCP paid appellant wage-loss compensation on the supplemental rolls from April 29
through May 8, 2020.
Appellant filed a claim for compensation (Form CA-7) for disability from work for the
period May 13 through June 3, 2020.
In a letter dated June 11, 2020, OWCP acknowledged receipt of appellant’s Form CA-7
and advised her that it had processed a wage-loss compensation payment for the period May 13
through 22, 2020. It also noted that the employing establishment had offered appellant a modified
temporary light-duty assignment on May 15, 2020, effective May 23, 2020, which she declined.
OWCP informed her that the duties and physical requirements of the employing establishment’s
temporary light-duty assignment were within Dr. Geissler’s April 3, 6, and May 27, 2020 work
restrictions. It also informed appellant of the provisions of 20 C.F.R. § 10.500(a) and further
advised that her entitlement to wage-loss compensation may be denied under this provision if she
did not accept the offered assignment or provide a written explanation with justification for her
refusal within 30 days. OWCP specifically requested appellant to submit evidence to support that
the assignment was no longer available or no longer accommodated her medical restrictions.
Appellant filed a Form CA-7 for disability from work for the period June 4 through
17, 2020.
In a June 18, 2020 statement, appellant noted that she was distraught by her report time on
her modified job offer because the medication she took at night caused drowsiness and dizziness.
She contended that she signed the modified offer on May 21, 2020 and returned it to the address
given. Appellant also contended that the employing establishment notified her that, per
Dr. Geissler’s recommendation, she was not to report to work until May 28, 2020.

3

On June 19, 2020 appellant accepted the offer of modified assignment as a limited-duty
rural carrier.
In a June 26, 2020 letter, the employing establishment notified OWCP that appellant
returned to work on June 25, 2020, but on June 26, 2020 she took a muscle relaxer due to her arm
hurting and subsequently fainted while at work. It indicated that she was sent to a hospital. In a
letter of even date, Lauren W. Buffington, a nurse practitioner, verified that appellant was seen in
the emergency room that day and indicated that she could return to work with restrictions.
In a June 29, 2020 letter, Dr. Terry again noted that appellant was on medication at night
that made her drowsy and unable to drive or stay alert. He indicated that she could only work and
drive between the hours of 6:00 a.m. and 6:00 p.m. In a work status note of even date, Dr. Terry
indicated that appellant could return to full-duty work on July 7, 2020 without restrictions.
Appellant filed a Form CA-7 for disability from work for the period June 21 through
July 14, 2020.
In a July 22, 2020 development letter, OWCP acknowledged receipt of appellant’s claim
for wage-loss compensation beginning June 21, 2020 and advised that additional evidence was
needed to establish disability from work during the claimed periods. It advised that the evidence
indicated that a temporary light-duty assignment was available within appellant’s medical
restrictions with the employing establishment for the period of claimed lost time and requested
evidence to support why she did not work the temporary light-duty assignment. OWCP afforded
appellant 30 days to submit the requested medical evidence.
In a May 27, 2020 progress report, Ms. Koerber indicated that the employing establishment
notified her that job duties within compliance of the recommended restrictions f rom Dr. Geissler
were not available for appellant at this time.
In a June 26, 2020 progress report, Ms. Koerber noted that appellant had been released to
return to limited-duty work on June 26, 2020.
In a July 20, 2020 medical report, Dr. Geissler noted appellant’s complaint that her work
duties require her to lean over pick up about 100 boxes out of bins, which aggravated and increased
her right shoulder pain. Appellant also reported that her tasks made her dizzy. Dr. Geissler noted
that in late June appellant took pain medication before passing out at work. He indicated that she
had not been back at work since her fall.
In an August 10, 2020 memorandum of telephone call (Form CA-110), OWCP notified
Ms. Koerber that appellant sustained a recurrence of disability on June 26, 2020, when she passed
out at work and reinjured her right shoulder due to the medicine she was taking.
In an August 19, 2020 Form CA-110, OWCP notified Ms. Koerber that appellant filed a
new injury claim for right shoulder injury that allegedly occurred on June 26, 2020 when she
fainted at work.
By decision dated August 19, 2020, OWCP denied appellant’s wage-loss compensation
claim for disability from work, commencing May 23, 2020, pursuant to 20 C.F.R. § 10.500(a)
based on her refusal to accept the employing establishment’s May 15, 2020 offer for a temporary
4

light-duty assignment. It explained that the evidence established that she had medical restrictions
in place, a light-duty work assignment within those restrictions was available to her, and she was
previously notified in writing that such light-duty work was available.
On September 22, 2020 appellant requested reconsideration. Along with her request, she
resubmitted copies of the January 24, 2020 hospital record, the March 27, 2020 progress report
from Ms. Koerber, and the July 20, 2020 medical report from Dr. Geissler, as well as the signed
offer of modified assignment.
Appellant also submitted progress reports dated July 26, August 25, and September 27,
2020 from Ms. Koerber. Ms. Koerber noted that appellant continued to experience right shoulder
symptoms after the June 26, 2020 fall, when she reinjured her right shoulder. She indicated that
Dr. Geissler had recommended that appellant remain off work.
By decision dated October 7, 2020, OWCP denied appellant’s request for reconsideration
of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 9 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request fo r reconsideration without
reopening the case for review on the merits. 10

6

Supra note 1 at § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468
(issued February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
7

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N.,
Docket No. 08-1569 (issued December 9, 2008).
8

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020).
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.
9

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

10

Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
Appellant’s reconsideration request did not show that OWCP erroneously applied or
interpreted a specific point of law, nor did it advance a relevant legal argument not previously
considered by OWCP. Consequently, she was not entitled to a review of the merits based o n the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 11
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. In support of her reconsideration request, appellant
submitted duplicative records, including a January 24, 2020 hospital record, March 27, 2020
progress report from the field nurse, and a July 20, 2020 medical report from Dr. Geissler, as well
as her signed offer of modified assignment. The Board has held that evidence or argument that
repeats or duplicates evidence previously of record has no evidentiary value and does not constitute
a basis for reopening a case. 12 Thus, this evidence is insufficient to warrant a merit review.
Appellant also submitted progress reports dated July 26, August 25, and September 27,
2020 from Ms. Koerber, the field nurse. The underlying issue on reconsideration was whether she
had met her burden of proof to establish disability from work during the period claimed causally
related to her accepted work-related medical conditions. This is a medical question that requires
rationalized medical opinion evidence to resolve the issue.13 Certain healthcare providers such as
physical therapists, nurses, physician assistants, and social workers are not considered physicians
as defined under FECA. 14 Consequently, their medical findings and/or opinions will not suffice
for purposes of establishing entitlement to FECA benefits. 15 As Ms. Koerber’s reports do not
constitute competent medical evidence, they are, therefore, irrelevant to the underlying merit issue.
The Board has held that the submission of evidence that does not address the particular issue
involved does not constitute a basis for reopening a case. 16 Therefore, appellant is not entitled to

11

See S.G., Docket No. 21-0067 (issued August 23, 2021); K.F., Docket No. 19-1846 (issued November 3, 2020).

12

C.L., Docket No. 20-0410 (issued October 29, 2020); M.G., Docket No. 18-0654 (issued October 17, 2018); D.K.,
59 ECAB 141 (2007); Kenneth R. Mroczkowki, 40 ECAB 855 (1989); Eugene F. Butler, 36 ECAB 393 (1984).
13

Y.L., Docket No. 20-1025 (issued November 25, 2020); M.P., Docket No. 19-1872 (issued April 15, 2020).

14

Section 8101(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA).
15

Id.

16

See T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECB 140 (2000); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

6

further review of the merits of her claim based on the third above -noted requirement under
20 C.F.R. § 10.606(b)(3).17
The Board, accordingly, finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.18
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).19
ORDER
IT IS HEREBY ORDERED THAT the October 7, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

17

Supra note 7.

18
See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020);
Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening
the case for a review on the merits).
19
The Board notes that the employing establishment executed a Form CA-16. A completed Form CA-16
authorization may constitute a contract for payment of medical expenses to a medical facility or physician, when
properly executed. The form creates a contractual obligation, which does not involve the employee directly, to pay
for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c);
J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

7