United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, NEW JERSEY
INTERNATIONAL & NATIONAL
DISTRIBUTION CENTER, Jersey City, NJ,
Employer
__________________________________________

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

Docket No. 20-1095
Issued: March 29, 2022

Case Submitted on the Record

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

JURISDICTION
On April 29, 2020 appellant, through counsel, filed a timely appeal from a December 18,
2019 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 met his burden of proof to establish a right shoulder
condition causally related to the accepted March 31, 2014 employment incident.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 31, 2014 appellant, then a 48-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his right shoulder when picking up a foot
locker while in the performance of duty. He stopped work on the date of injury.
In an April 1, 2014 report, Dr. Norman Penera, a Board-certified internist, diagnosed right
shoulder strain and advised that appellant was unable to work in any capacity at that time.
An April 4, 2014 right shoulder magnetic resonance imaging (MRI) scan demonstrated
degenerative changes of the acromioclavicular (AC) joint, extensive thickening, and abnormal
signal within the supraspinatus, subscapularis, and biceps tendons. It also revealed probable focal
full-thickness tear of the distal supraspinous tendon.
In an April 9, 2014 referral order, Dr. Penera diagnosed a full-thickness supraspinatus
rotator cuff tear.
In an April 22, 2014 medical report, Dr. Faisal Mahmood, an attending Board-certified
orthopedic surgeon, noted findings on his physical examination and advised that appellant suffered
from a right shoulder full-thickness supraspinatus rotator cuff tear with subacromial impingement.
He also diagnosed bursitis, AC joint hypertrophy/arthritis, biceps tendinitis, and labial fraying.
Based on these findings, Dr. Mahmood recommended arthroscopic surgery. In a note of even date,
he requested that appellant be excused from work until June 22, 2014.
By decision dated May 28, 2014, OWCP accepted that the March 31, 2014 employment
incident occurred, as alleged. However, it denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that his diagnosed right shoulder conditions were
causally related to the accepted March 31, 2014 employment incident.
OWCP subsequently received additional reports dated April 1 and 9, 2014 from Dr. Penera
who continued to treat appellant. Dr. Penera diagnosed right shoulder strain of the rotator cuff
capsule and reiterated his prior diagnosis of right shoulder full-thickness rotator cuff tear.
On June 6, 2014 appellant requested a review of the written record by a representative of
OWCP’s Branch and Hearings Review. He also provided a June 2, 2014 letter from Dr. Mahmood
who noted a history of his treatment of appellant’s injury. Dr. Mahmood reiterated his prior
3

Docket No. 19-0587 (issued July 22, 2019).

2

diagnoses and opined that appellant’s injury pattern was consistent with an injury sustained while
lifting an overhead object or repetitive use of the rotator cuff musculature leading to a fu llthickness tear and, as such, he concluded that the injury appellant sustained was causally related
to the employment incident on March 31, 2014.
OWCP subsequently received an attending physician’s report (Form CA-20) dated
May 20, 2014 in which Dr. Mahmood again noted a history of appellant’s accepted March 31,
2014 injury. Dr. Mahmood reiterated his diagnoses and checked a box marked “Yes,” indicating
that these conditions had been caused or aggravated by an employment activity of lifting overhead.
By decision dated August 19, 2015, an OWCP hearing representative affirmed the May 28,
2014 decision.
On November 5, 2015 appellant, through counsel, requested reconsideration of the
August 19, 2015 decision and submitted a November 3, 2015 letter from Dr. Mahmood, who noted
that appellant reported that lifting a foot locker weighing approximately 65 to 70 pounds at work
on March 31, 2014 led to his inability to fully abduct his shoulder. Dr. Mahmood further noted
that appellant related that, prior to this incident, he had full range of motion of the shoulder. He
explained that that, while MRI scan findings demonstrated some degenerative signs consistent
with regular use, including AC joint arthropathy, appellant also had a full-thickness tear of the
rotator cuff muscle, which was not a preexisting condition as he was able to abduct his shoulder
prior to the work-related incident. Because appellant could no longer abduct his shoulder since
the accepted March 31, 2014 incident, Dr. Mahmood concluded that appellant’s full-thickness
rotator cuff tear was consistent with a traumatic injury sustained during the accepted employment
incident.
By decision dated May 13, 2016, OWCP denied modification of the August 19, 2015
decision.
On July 5, 2016 appellant, through counsel, requested reconsideration and submitted a
June 14, 2016 letter from Dr. Mahmood, who continued to opine that appellant sustained a workrelated right shoulder condition and that there was a causal relationship between his condition and
the accepted March 31, 2014 employment incident.
By decision dated March 7, 2017, OWCP denied modification of its prior decision.
On September 13, 2017 appellant, through counsel, requested reconsideration.
By decision dated December 11, 2017, OWCP denied modification of its prior decision.
On July 18, 2018 appellant, through counsel, requested reconsideration and submitted an
addendum note dated July 11, 2018 from Dr. Mahmood, who reiterated his prior opinion that
appellant’s right shoulder injuries were work related.
By decision dated October 16, 2018, OWCP denied modification of its December 11, 2017
decision.

3

On January 17, 2019 appellant, through counsel, appealed to the Board. By decision dated
July 22, 2019, the Board affirmed OWCP’s October 16, 2018 decision, finding that appellant had
not met his burden of proof to establish a right shoulder condition causally related to the accepted
Match 31, 2014 employment incident. 4
On December 5, 2019 appellant, through counsel, requested reconsideration and submitted
an October 28, 2019 medical report from Dr. David Weiss, a Board-certified orthopedic surgeon,
who examined appellant and reviewed his history of treatment and diagnostic studies. Dr. Weiss
conducted a physical examination and diagnosed a post-traumatic full-thickness rotator cuff tear
to the right shoulder, post-traumatic impingement syndrome to the right shoulder, and an
aggravation of preexisting quiescent age-related acromioclavicular joint arthropathy to the right
shoulder. He explained that an impingement syndrome occurred when one raised his or her arm
to shoulder height and above, and the space between the acromion and the rotator cuff narrowed.
Dr. Weiss indicated that the acromion could then rub against or impinge the tendon in the rotator
cuff causing irritation and pain. He further explained that this compression could cause attenuation
on the tendon and predispose appellant to tearing of the rotator cuff. Dr. Weiss noted that for a
person with aged-related osteoarthritis of the acromioclavicular joint or osteoarthritis due to
repetitive use had even less space in the area and that shoulder elevation would cause a greater
impingement and a greater probability of shoulder tendinopathy. He noted that the MRI scan
revealed that appellant had degenerative changes of the acromioclavicu lar joint predisposing him
to an impingement syndrome. Dr. Weiss opined that lifting a 65- to70-pound heavy plastic
footlocker from the ground above the shoulder at the time of the accepted March 31, 2014
employment incident led to significant impingement and caused the full thickness rotator cuff tear
of the supraspinatus tendon. He noted that, when evaluating occupational risk factors with
shoulder tendinopathy, impingement, and rotator cuff tears, there was strong evidence that
awkward postures like sustained shoulder postures with more than 60 degrees of flexion and
abduction could lead to the diagnosed pathology. Dr. Weiss concluded that the accepted
March 31, 2014 employment incident was the dominant-producing cause of appellant’s injury.
By decision dated December 18, 2019, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition f or which compensation is claimed is causally related to the

4

Docket No. 19-0587 (issued July 22, 2019).

5

Supra note 2.

6

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

4

employment injury. 7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employ ee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury and can be established only by medical evidence. 9
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 10 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that findings made in prior Board decisions are res judicata,
absent further review by OWCP under section 8128 of FECA. It is, therefore, unnecessary for the
Board to consider the evidence appellant submitted prior to the issuance of OWCP’s October 16,
2018 decision as the Board considered that evidence in its July 22, 2019 decision.12
In support of his request for reconsideration, appellant submitted an October 28, 2019
medical report from Dr. Weiss who diagnosed a post-traumatic full-thickness rotator cuff tear to
the right shoulder, post-traumatic impingement syndrome to the right shoulder, and an aggravation
of preexisting quiescent age-related AC joint arthropathy to the right shoulder. Dr. Weiss
explained that an impingement syndrome occurred when one raised his or her arm to shoulder
height and above, and the space between the acromion and the rotator cuff narrowed. He related
that the acromion could then rub against or impinge the tendon in the rotator cuff causing irritation
7

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
8

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
10

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
11

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
12

C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., Docket No. 20-0007 (issued May 13, 2020).

5

and pain. Dr. Weiss noted that this compression could cause attenuation on the tendon and
predispose appellant to tearing of the rotator cuff. He further explained that for a person with
aged-related osteoarthritis of the acromioclavicular joint or osteoarthritis due to repetitive use had
even less space in the area and that shoulder elevation would cause a greater impingement and a
greater probability of shoulder tendinopathy. Dr. Weiss noted that the MRI scan revealed that
appellant had degenerative changes of the acromioclavicular joint predisposing him to an
impingement syndrome. He opined that lifting a 65- to70-pound heavy plastic footlocker from the
ground to above the shoulder led to significant impingement and caused the full thickness rotator
cuff tear of the supraspinatus tendon. Dr. Weiss explained that, when evaluating occupational risk
factors with shoulder tendinopathy, impingement, and rotator cuff tears, there was strong evidence
that awkward postures like sustained shoulder postures with more than 60 degrees of flexion and
abduction led to the diagnosed pathology.
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done. 13
Dr. Weiss is a Board-certified physician who is qualified in his field of medicine to render
rationalized opinions on the issue of causal relationship. The Board finds that, although his opinion
is insufficiently rationalized to establish causal relationship, it does raise an uncontroverted
inference regarding causal relationship between the diagnosed conditions and the accepted
March 31, 2014 employment incident sufficient to require further development of the case record
by OWCP.14 Thus, the Board finds that Dr. Weiss’ opinion is sufficient to require further
development of the record by OWCP. 15
The Board will therefore remand the case for further development of the medical evidence.
On remand, OWCP shall prepare a statement of accepted facts and obtain a rationalized opinion
from a physician in the appropriate field of medicine as to whether the accepted employment
incident caused, contributed to, or aggravated the diagnosed right shoulder c onditions.16 If the
physician opines that the diagnosed conditions are not causally related, he or she must explain with
rationale how or why their opinion differs from that of Dr. Weiss. Following this and other such
further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

C.R., Docket No. 20-1102 (issued January 8, 2021); K.P., Docket No. 18-0041 (issued May 24, 2019).

14

See B.F., Docket No. 20-0990 (issued January 13, 2021); Y.D., Docket No. 19-1200 (issued April 6, 2020).

15

See A.D., Docket No. 20-0758 (issued January 11, 2021); C.R., Docket No. 20-0366 (issued December 11, 2020);
John J. Carlone, supra note 9; Horace Langhorne, 29 ECAB 820 (1978).
16

C.G., Docket No. 20-1121 (issued February 11, 2021); A.G., Docket No. 20-0454 (issued October 29, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the December 18, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 29, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Denver, CO, Employer
__________________________________________

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

Docket No. 11-1954
Issued: July 26, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 23, 2011 appellant filed a timely appeal from March 10 and June 3, 2011
merit decisions of the Office of Workers’ Compensation Programs (OWCP) denying her claim
for disability compensation. She also appeals a June 23, 2011 nonmerit decision, denying her
request for reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case and over
the June 23, 2011 nonmerit decision.
ISSUES
The issues are: (1) whether appellant sustained intermittent disability from June 20 to 29,
2010 and January 16 to February 26, 2011 causally related to her accepted employment injury;
and (2) whether OWCP properly refused to reopen her case for further review of the merits under
5 U.S.C. § 8128.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 15, 2010 appellant, then a 45-year-old transportation security officer, filed a
traumatic injury claim alleging that on that date she injured her left lower back when her chair
“bottomed out and hit the floor.” OWCP accepted the claim for lumbar sprain and strain at L5S1 and cervical strain.
On June 15, 2010 Dr. James J. Bachman, Board-certified in family and emergency
medicine, diagnosed lumbar radiculopathy and cervical strain. He found that a magnetic
resonance imaging (MRI) scan study showed degenerative spondylolisthesis at L4-5, a
posteriolateral disc protrusion and foraminal narrowing on the left at L5-S1. Dr. Bachman noted
that appellant had a nerve block scheduled for June 23, 2010. He opined that she could perform
desk work and provided a duty status report indicating that she could sit eight hours per day.
On June 23, 2010 appellant received a steroid injection to treat right S1 radiculopathy. In
disability certificates dated June 20 and 27, 2010, Dr. Jennifer Bajaj, a Board-certified internist,
related that she was seen on those dates for back spasms caused by lumbar strain and was
excused from work on June 20 and 27 to 29, 2010.2
On July 6, 2010 Dr. Bachman related that appellant experienced pain relief after a
June 23, 2010 nerve block but had a recurrence of pain four days later. He stated, “[Appellant]
went to [a]fter [h]ours and got a three day off work note.” Dr. Bachman diagnosed lumbar
radiculopathy and cervical strain, found that she could continue with modified duty and that she
should obtain changes in work status only through him. He asserted that the “[m]echanism of
injury does not match severity” and that he did not agree with her using after hours for time off
work.
On July 8, 2010 appellant filed a claim for intermittent compensation for time lost from
work from June 20 to 29, 2010. She claimed eight hours of disability compensation on June 20,
21 and 27 to 29, 2010. By letter dated July 9, 2010, OWCP requested that appellant submit
medical evidence supporting her claim for disability compensation.
By decision dated August 27, 2010, OWCP denied appellant’s claim for compensation
for 40 hours of disability from June 20 to 29, 2010. On September 21, 2010 she requested a
review of the written record by an OWCP hearing representative.
In a September 21, 2010 report, received by OWCP on October 4, 2010,
Dr. Christopher B. Ryan, a Board-certified physiatrist, found that appellant sustained an

2

In a progress report dated June 20, 2010, a physician’s assistant related that appellant had a “flare up of her low
back pain” and that she “was taken off work today….” In a report dated June 27, 2010, a physician’s assistant
related that she had given her a note excusing her from work.

2

aggravation of cervical spondylosis due to her work injury, “which could also be called a
‘cervical strain.’” He stated:
“One other issue remains and that is the issue of [appellant’s] wage[-]loss
compensation between June 20 and 29, 2010. As I reviewed in the medical
record, she went to the urgent care facility after work, complaining of more pain.
Again, [appellant] was sitting for long periods of time and this puts more pressure
on the injured disc. She subsequently underwent the epidural steroid injection
and this not infrequently results in an early reaction of irritation to the injured
structures, while the long-term effect is one of significant anti-inflammatory
benefit. However, it is not uncommon that patients will complain of symptom
flares. Again, we know that [appellant] has an objectively documented
compressed nerve, where she had the epidural steroid injection. I believe that it is
reasonable that she be off work during this time and she was given the time by the
urgent care facility.”
In another report dated September 21, 2010, Dr. Ryan diagnosed an L5-S1 disc herniation
with right radiculopathy at L5-S1 and an aggravation of cervical and L4-5 spondylolisthesis. He
stated, “With regard to [appellant’s] time off work between June 20 and 29, 2010, this is
explained by her radiculopathy and an apparent steroid flare.” Dr. Ryan asserted that the lost
time should be accepted under workers’ compensation.
Appellant underwent physical therapy in January and February 2011. On January 25,
2011 she had a physical therapy appointment from 10:00 a.m. to 11:00 a.m. and on February 15,
2011 she had a physical therapy appointment from 11:00 a.m. to 12:00 p.m. On January 24,
2011 Dr. Joseph Fillmore, a Board-certified physiatrist, diagnosed cervical radiculitis,
spondylosis and degenerative disc disease and recommended further injections.
On January 29, 2011 appellant filed a claim for compensation for intermittent time off
work from January 16 to 29, 2011. She claimed compensation for four hours of lost time for
medical appointments on January 18, 24 and 25, 2011. Appellant also filed claims for
compensation for disability from January 30 to February 16, 2011. She requested four hours of
compensation for lost time on February 1, 7, 8 and 15, 2011 and eight hours of compensation on
February 21, 22, 25 and 26, 2011 for disability after a steroid injection. The employing
establishment challenged the four hours claimed on January 24 and February 8, 2011 as
appellant’s medical appointments were at 10:00 a.m. and her shift began at 12:30 p.m.
In a report dated February 8, 2011, Dr. Ryan noted that appellant’s symptoms had
improved after a cervical epidural but that she was experiencing incontinence. In a work
restriction evaluation of the same date, he found that she could work with restrictions on
pushing, pulling and lifting up to 10 pounds.
By decision dated March 10, 2011, the hearing representative affirmed the August 27,
2010 decision denying appellant’s claim for intermittent compensation from June 20 to 29, 2011.
She found, however, that further development was required to determine whether appellant had
additional employment-related diagnoses. The hearing representative determined that, if OWCP

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accepted S1 radiculopathy as employment related, it should again adjudicate whether appellant
had disability for work after the June 23, 2011 injection at S1.3
In letters dated March 10, 2011, OWCP informed appellant that it had reviewed her
request for compensation from January 16 to 29, 2011 and found that she was entitled to
compensation for 12 hours. It deferred her request for an additional two hours of compensation
on January 24 and 25, 2011 after finding it was for time before she began work. OWCP
requested further information supporting disability for those hours.
Regarding time claimed from January 30 to February 12, 2011, OWCP found that
appellant was entitled to compensation for four hours of lost time from work on February 1
and 7, 2011 and two hours of lost time on February 8, 2011. It determined that she had not
submitted sufficient evidence to show that she was entitled to an additional two hours on
February 8, 2011 as her medical appointment was outside her scheduled work hours.
For time claimed from February 13 to 26, 2011, OWCP paid appellant compensation for
three hours on February 15, 2011 and eight hours on February 21 and 22, 2011. It deferred a
finding on whether she was entitled to compensation for an additional hour on February 15, 2011
as she was not scheduled to work until 12:00 p.m. and whether she was entitled to compensation
for eight hours claimed on February 25 and 26, 2011. OWCP requested additional information
for the remaining time claimed.
In a report dated February 28, 2011, received by OWCP on March 17, 2011, Dr. Fillmore
reported appellant experienced a severe headache one week after her epidural injection. He
noted that the headache recurred over the next few days and she had trouble going to work.
Dr. Fillmore diagnosed cervical radiculitis, spondylosis and degenerative disc disease. He
related, “[Appellant’s] headaches appeared to be more muscular and certainly not spinal. My
initial thought was that she may have had a reaction to the dose of Fentanyl, which can
sometimes cause headaches, but it will be unlikely that several days later she will have the
headache.”
In a report dated March 15, 2011, Dr. Ryan related that near the end of February 2011
appellant underwent a cervical steroid injection and “had an adverse reaction from this and
missed a week of work. She was seen in follow up by Dr. Fillmore, who wrote a note to take
[her] off work.” He related that it appeared that she “had severe enough worsening of her
cervical symptoms that she should not have returned to work. However, I did not see [appellant]
at the time and need to leave this declaration to Dr. Fillmore.”
By decision dated June 3, 2011, OWCP denied appellant’s claim for 23 hours of wageloss compensation from January 24 to February 26, 2011. It found that the medical evidence
submitted supporting entitlement to compensation was insufficient to meet her burden of proof.
On June 7, 2011 appellant requested reconsideration of OWCP’s denial of 40 hours
claimed from June 20 to 29, 2010. She resubmitted Dr. Ryan’s September 21, 2010 reports in
support of her request for reconsideration.
3

OWCP undertook development of the evidence based on the hearing representative’s instructions.

4

By decision dated June 23, 2011, OWCP denied appellant’s request for reconsideration of
its February 14, 2011 decision after finding that the evidence submitted was insufficient to
warrant reopening her case for further merit review. It found that Dr. Ryan’s reports had been
previously submitted.
On appeal, appellant argues that OWCP had not previously examined the evidence
submitted on reconsideration.
LEGAL PRECEDENT -- ISSUE 1
The term disability as used in FECA4 means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.5 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.6 When the medical evidence establishes that the
residuals of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in the employment held when injured, the employee is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.7 The Board
will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.8
An injured employee may be entitled to compensation for lost wages incurred while
obtaining authorized medical services.9 This includes the actual time spent obtaining the medical
services and a reasonable time spent traveling to and from the medical provider’s location.10 As
a matter of practice, OWCP generally limits the amount of compensation to four hours with
respect to routine medical appointments.11
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained lumbar strain at L5-S1 and cervical strain due to
a March 15, 2010 employment injury. Appellant claimed compensation for intermittent
disability and time lost from work due to medical treatment from June 20 to 29, 2010 and
4

Supra note 1; 20 C.F.R. § 10.5(f).

5

Paul E. Thams, 56 ECAB 503 (2005).

6

Id.

7

Id.

8

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

See 5 U.S.C. § 8103(a); Gayle L. Jackson, 57 ECAB 546 (2006).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16a
(October 2009).
11

Id. at Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (November 1998).

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January 16 to February 26, 2011. She has the burden to establish through probative medical
evidence that she was disabled during this period or undergoing authorized medical treatment
causally related to her accepted injury.
For the period June 20 to 29, 2010, appellant requested compensation for eight hours on
June 20, 21 and 27 to 29, 2010 due to disability from work. In a disability certificate dated
June 20 and 27, 2010, Dr. Bajaj indicated that appellant received treatment on those dates for
back spasms related to lumbar strain. She asserted that appellant could not work on June 20 and
from June 27 to 29, 2010. Dr. Bajaj, however, did not address the cause of appellant’s disability
or attribute it to her accepted employment injury. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of diminished probative value on the
issue of causal relationship.12
Appellant underwent an epidural nerve block on June 23, 2010. On July 6, 2010
Dr. Bachman noted that she experienced pain three days after the nerve block and obtained a
note from a clinic taking her off work. He determined that her type of injury did not match the
severity of symptoms and disagreed with her use of the clinic to remain off work. As
Dr. Bachman did not find that appellant was unable to work for the time in question, his report is
insufficient to meet her burden of proof.
In reports dated September 21, 2010, Dr. Ryan diagnosed an employment-related
aggravation of cervical spondylolysis. He related that he had reviewed the medical records from
an urgent care clinic, which found that appellant was unable to work from June 20 to 29, 2010.
Dr. Ryan asserted that it was “reasonable that she be off work during this time” and explained
that a steroid injection could cause irritation from the injection. He indicated that appellant’s
time off was “explained by her radiculopathy and apparent steroid flare.” Dr. Ryan did not,
however, provide a specific opinion that she was totally disabled from work but instead opined
that it was reasonable to be off and that she could have experienced irritation and radiculopathy.
The issue of whether a claimant’s disability is related to an accepted condition is a medical
question which must be established by a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the disability is causally related to employment
factors and supports that conclusion with sound medical reasoning.13
Regarding the time period claimed from January 16 to February 26, 2011, OWCP denied
appellant’s claim for four hours of compensation on January 24 and 25 and February 8 and 15,
2011 after finding that she obtained medical treatment on those dates outside her scheduled work
hours. Appellant had medical appointments on January 24 and February 8, 2011 at 10:00 a.m.
On January 25 and February 15, 2011 she underwent physical therapy from 11:00 a.m. to 12:00
p.m. Appellant started work at 12:30 p.m. OWCP thus properly found that she was entitled to
compensation for two hours of compensation on January 24 and 25 and February 8, 2011 and
three hours of compensation on February 15, 2011 rather than the four hours of compensation
claimed on those dates as the appointments were before her scheduled start time.

12

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

13

Sandra D. Pruitt, 57 ECAB 126 (2005).

6

OWCP also denied compensation for eight hours on February 25 and 26, 2011. On
February 28, 2011 Dr. Fillmore indicated that appellant had experienced a headache a week after
a February 21, 2011 steroid injection such that she had problems working. He asserted that the
headache appeared muscular rather than a reaction to the steroid injection, noting that it was
unlikely she would have a headache begin several days after the injection. As Dr. Fillmore did
not specifically find any dates of disability or that appellant’s headache was related to her work
injury or treatment, his opinion is of little probative value.
On March 15, 2011 Dr. Ryan related that around the end of February 2011 appellant
missed a week of work after a reaction to a steroid injection. He noted that Dr. Fillmore took her
off work. Dr. Ryan stated that Dr. Fillmore should address whether she was able to work during
this time. As he did not address disability, his opinion is insufficient to meet appellant’s burden
of proof.
Appellant may submit new evidence or argument regarding the denied dates of disability
with a written request for reconsideration to OWCP within one year of this merit decision,
pursuant to 5 U.S.C. § 8128 and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,14
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.15 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.16 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.17
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.18 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.19 While the reopening of a case may be predicated

14

Supra note 1. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.”
15

20 C.F.R. § 10.606(b)(2).

16

Id. at § 10.607(a).

17

Id. at § 10.608(b).

18

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

19

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).

7

solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.20
ANALYSIS -- ISSUE 2
On June 7, 2011 appellant requested reconsideration of OWCP’s denial of 40 hours
claimed from June 20 to 29, 2010.
She resubmitted reports from Dr. Ryan dated
September 21, 2010. OWCP, however, previously considered Dr. Ryan’s reports. Evidence
which repeats or duplicates evidence already in the case record has no evidentiary value and does
not constitute a basis for reopening a case.21
In her request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law. She did not identify a specific point of law or show that it
was erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument, nor did she submit pertinent new and relevant evidence not previously submitted. The
Board accordingly finds that she did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2).
On appeal, appellant argues that OWCP had not previously examined the evidence she
submitted with her reconsideration request. The hearing representative, however, considered
Dr. Ryan’s September 21, 2010 report in the March 10, 2011 decision.
CONCLUSION
The Board finds that appellant has not established her claim for compensation for
intermittent disability from June 20 to 29, 2010 and January 16 to February 26, 2011 causally
related to her accepted work injury. The Board further finds that OWCP properly refused to
reopen her case for further review of the merits under section 8128.

20

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

21

C.N., Docket No. 08-1569 (issued December 9, 2008); Richard Yadron, 57 ECAB 207 (2005).

8

ORDER
IT IS HEREBY ORDERED THAT the June 23 and 3 and March 10, 2011 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: July 26, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
REGIONAL OFFICE, St. Petersburg, FL,
Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1219
Issued: November 26, 2008

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 March 19, 2008 appellant, through her attorney, filed a timely appeal from the merit
decision of the Office of Workers’ Compensation Programs dated February 22, 2008 wherein the
Office denied appellant’s request to modify prior decisions denying appellant’s request to expand
her claim to include bilateral upper extremity radiculopathy. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d)(2), the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant’s claim should be expanded to include bilateral upper
extremities radiculopathy.

FACTUAL HISTORY
This is the second time that this case has been before this Board on appeal. The findings
of fact and conclusions of law from the prior Board decision is hereby incorporated by
reference.1 The relevant facts are briefly set forth below.
On March 17, 2004 appellant, then a 49-year-old rating specialist, filed an occupational
disease claim alleging that, as a result of heavy lifting and lifting overhead required by her
federal position, she sustained recurrent tenosynovitis in her right hand, degenerative disc disease
in her cervical spine with radiculopathy in the left upper extremity, an increase in her
fibromyalgia and recurrent tenosynovitis in her right hand. The Office accepted appellant’s
claim for cervical degenerative disc disease at C6-7. Appellant requested that her claim be
expanded to include radiculopathy of the left upper extremity, radiculopathy of the left lower
extremity, degenerative and herniated discs, degenerative joint disease, migraine headaches and
aggravation of fibromyalgia. By decision dated December 30, 2005, the Office found that
appellant’s claim should not be expanded to include these conditions as no medical evidence
showed that these conditions were causally related to appellant’s work as a rating specialist. The
Board affirmed this decision on September 18, 2006.2
By letter dated October 24, 2006, appellant requested reconsideration. In support thereof,
appellant resubmitted the August 16, 2004 report of Dr. Michael A. Franklin, her treating Boardcertified neurologist, which had previously been considered by the Office and the Board.
Appellant also submitted an October 5, 2006 letter by Dr. Franklin wherein he expressed his
belief that his opinion was rationalized and indicated that he was a Board-certified neurologist of
15 years practice experience. Dr. Franklin noted that appellant indicated that she had been
involved in an occupation where there was extreme heavy lifting and stretching to maneuver and
position files. He opined: “I have reason to believe based on my experience that there is a
significant medical probability that [appellant’s] occupation either caused or contributed to her
degenerative disc disease involving her cervical and lumbar spine.” Dr. Franklin noted his belief
that appellant’s workers’ compensation claim should be reopened based upon review of her
records.
By decision dated February 5, 2007, the Office denied modification of its prior decision.
On November 30, 2007 appellant again requested reconsideration. Appellant, through
her attorney, argued that her claim should be expanded to include bilateral upper extremity
radiculopathy based on the reports of Dr. Franklin. In support thereof, counsel submitted a
November 27, 2007 report wherein Dr. Franklin noted that appellant has been his patient for
several years. Dr. Franklin diagnosed bilateral upper extremities radiculopathy, concluding that
it is directly caused by the aggravation of degenerative disc disease of the C6-7. He explained
that the aggravation is objectively demonstrated by the electrodiagnostic studies of March 2004.

1

Docket No. 06-896 (issued September 14, 2006).

2

Id.

2

Evidence of C6 and C7 involvement was not demonstrated in the electrodiagnostic studies done
the previous year. Dr. Franklin opined:
“This is objective evidence that there was cervical radicular involvement at C6-7
as of March 2004 as opposed to previously. The magnetic resonance imaging
[MRI scan] report of the cervical spine of March 2004 along with the
electrodiagnostic study in March 2004 are consistent with the worsening of the
claimant’s condition. More specifically, the points of numbness that do
correspond to the C6 and C7 distribution. The movements required in order to lift
the heavy boxes and place overhead as relayed by the patient would involve those
parts of the anatomy, thus consistent with the complaints. I am also aware of the
motor vehicle accident that the claimant was involved in June 2005. However,
the multiple cervical MRI [scans] performed after that date do not show any
dramatic changes since the March 2004 studies. As previously discussed, the
lifting and reaching for the heavy files aggravated the preexisting and aggravated
degenerative disc disease and the objective tests do in fact correspond to the C6
and C7 distribution as far back as the 2004 MRI [scan] report. This is consistent
with the symptomology she has expressed as numbness.”
By decision dated February 22, 2008, the Office denied modification of the prior
decisions.
LEGAL PRECEDENT
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.3
Under the Federal Employees’ Compensation Act, when employment factors cause an
aggravation of an underlying physical condition, the employee is entitled to compensation for the
periods of disability related to the aggravation.4 When the aggravation is temporary and leaves
no permanent residuals, compensation is not payable for periods after the aggravation ceased.5 A
medical restriction that is based on a fear of future aggravation due to employment exposure is
not an injury under the Act and therefore no compensation can be paid for such a possibility.6
3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
4

Raymond W. Behrens, 50 ECAB 221, 222 (1999); James L. Hearn, 29 ECAB 278, 287 (1978).

5

Id.

6

Carlos A. Maurero, 50 ECAB 117, 119 (1998); Gaetan F. Valenza, 39 ECAB 1349, 1356 (1988).

3

ANALYSIS
In the instant case, the Office accepted appellant’s claim for cervical degenerative disc
disease at C6-7. However, it rejected appellant’s claim that her work injury resulted in bilateral
upper extremity radiculopathy or other conditions enumerated by appellant and the Board
affirmed the Office’s finding. With regard to the reports of Dr. Franklin previously considered
by the Board, this Board found that these reports were not persuasive as Dr. Franklin did not
explain how the objective tests support his opinion and for the reason that his reports were
speculative. The Board also noted that, although Dr. Franklin did note a dramatic change in the
findings when appellant’s October 2003 study is compared to the March 2004 study, this was
insufficient to show causal relationship. After the Board’s decision, appellant twice requested
reconsideration and submitted further medical reports by Dr. Franklin, whose October 5, 2006
letter basically sets forth his qualifications, reiterated his conclusions in his prior reports and
stated that he thought appellant’s claim should be reopened. This report does not contain any
new rationalized medical opinion and is therefore insufficient to modify the prior decisions. In
his November 27, 2007 report, Dr. Franklin does go into greater detail, comparing the
electrodiagnostic studies before and after 2004 and concluding that a comparison of these two
studies shows a change of appellant’s condition. He specifically noted that the diagnosis as to
radiculopathy of the bilateral extremities being caused by the aggravation of the degenerative
disc disease at C6-7 was demonstrated by the electrodiagnostic studies of March 2004 in that
evidence of C6 and C7 involvement was not demonstrated in the electrodiagnostic studies done
the previous year. However, this Board already noted that the fact that appellant’s symptoms
appeared during her employment without a rationalized opinion as to causal connection is
insufficient to establish causal relationship.7
Accordingly, the medical evidence is insufficient to relate appellant’s employment to her
bilateral upper extremities radiculopathy. Therefore, the Board finds that the Office properly
denied expansion of the claim.
CONCLUSION
The Board finds that the Office properly determined that appellant’s claim should not be
expanded to include bilateral upper extremities radiculopathy.

7

Ernest St. Pierre, 51 ECAB 623 (2000).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 22, 2008 is affirmed.
Issued: November 26, 2008
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, LAKE FOREST POST
OFFICE, Jacksonville, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0563
Issued: March 22, 2022

Case Submitted on the Record

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

On March 8, 2022 appellant filed an appeal from a July 15, 2020 nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0563.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the July 15, 2020 decision was January 11, 2021. As appellant
did not file an appeal with the Board until March 8, 2022, more than 180 days after the July 1 5 ,
2020 OWCP decision, the Board finds that the appeal docketed as No. 22-0563 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not explain ed her failure to
timely file an appeal with supporting documentation sufficient to establish compelling
circumstances. Because there is no final adverse decision issued by OWCP within 180 days of
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

the filing of the instant appeal, the Board concludes that the appeal docketed as No. 22 -0563,
must be dismissed. 3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0563 is dismissed.
Issued: March 22, 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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Brooklyn, NY, Employer
__________________________________________

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

Docket No. 08-936
Issued: January 2, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 11, 2008 appellant filed a timely appeal from a merit decision of the Office
of Workers’ Compensation Programs dated July 20, 2007 that terminated his benefits. He also
appealed a November 23, 2007 decision, which denied reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to justify termination of
appellant’s medical and compensation benefits effective July 8, 2007; and (2) whether the Office
properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On June 29, 2005 appellant, then a 51-year-old corrective therapist, was in an automobile
accident and sustained injuries to multiple sites including his right side, lower back and buttocks
while in the performance of duty. The Office accepted the claim for contusion of the bilateral

knees, sprain of the neck and lumbar spine, right shoulder sprain, contusion to multiple sites and
bilateral abrasions and friction burns to the legs without infection. It authorized arthroscopic
surgery on the right knee, which was performed on April 10, 2006. Appellant stopped work on
June 29, 2005.
In a statement dated August 26, 2005, appellant noted that he provided home physical
therapy to patients. He noted that on June 29, 2005 he departed a patient’s home en route to
another patient and was hit by another automobile. Appellant came under the treatment of
Dr. Ludwig Licciardi, a Board-certified orthopedist, from June 30 to October 3, 2005 for injuries
sustained in an automobile accident. Dr. Licciardi diagnosed status post multiple trauma with
acute cervical radiculopathy predominately right sided, right shoulder rotator cuff tendinitis,
nerve entrapment in the elbows, lumbosacral derangement with possible right sciatica, right knee
internal derangement with a possible medial meniscal tear and left knee contusion. He opined
that appellant was totally disabled. On October 3, 2005 Dr. Licciardi noted that a September 22,
2005 magnetic resonance imaging (MRI) scan revealed multi-level disc protrusions at L3-4 and
L4-5 while a September 27, 2005 MRI scan revealed an extruded herniated disc at C5-6 and
additional protrusions at C3-4 and C4-5. He advised that appellant was totally disabled and
unlikely to return to his work as a physical therapist. An October 4, 2005 MRI scan of the right
shoulder revealed downsloping of the acromion process of the scapula with Grade 1
impingement. An October 11, 2005 MRI scan of the right knee showed small joint effusion and
a horizontal intrasubstance tear of the medial meniscus with a meniscal cyst. A left knee MRI
scan revealed intrameniscal mucoid degenerative changes at the posterior horn of the medial
meniscus. Dr. Licciardi referred appellant to Dr. Dennis J. Alne, a psychologist, who treated him
on October 21, 2005 for anxiety and depression that developed after the June 29, 2005 work
injury.
On October 21, 2005 the Office referred appellant to Dr. Robert Israel, a Board-certified
orthopedist, for a second opinion. In a November 4, 2005 report, Dr. Israel discussed appellant’s
work history and indicated that examination of the cervical spine revealed normal lordosis,
normal range of motion and reflexes were symmetric with no sensory deficit. Examination of
the right shoulder revealed no deltoid atrophy, normal range of motion, negative impingement
sign, no winging of the scapula and no sensory loss. Examination of the elbows, thoracic spine
and lumbar spine was essentially normal. Examination of the knees showed no joint line
tenderness or effusion, normal muscle tone and strength, normal range of motion with no
patellofemoral crepitus. Dr. Israel diagnosed resolved cervical, thoracic and lumbar spine
sprains, resolved right shoulder sprain, bilateral elbow sprains, bilateral wrist and hand sprains,
bilateral knee sprains, bilateral hip sprains, bilateral ankle sprains, arm sprains and leg sprains.
He opined that appellant could return to work and continue his activities of daily living without
restrictions.
Appellant submitted reports from Dr. Licciardi, dated November 29, 2005 to March 10,
2006, who noted that he had decreased range of motion of the cervical and lumbar spine with
crepitus in the patella femoral joint bilaterally and opined that he was totally disabled.
On January 17, 2006 the Office requested Dr. Licciardi review the second opinion report
and address whether appellant had residuals of his accepted work injury and whether he was
disabled from work. On February 3, 2006 Dr. Licciardi opined that appellant was totally

2

disabled. In a January 25, 2006 treatment note, he recommended arthroscopic surgery on the
right knee and continued conservative therapy for the right shoulder. In an April 10, 2006
operative report, Dr. Licciardi performed arthroscopic surgery of the right knee and diagnosed
internal derangement. In a duty status report dated April 17, 2006, he noted that appellant was
totally disabled from work for 6 to 10 months and might require additional surgery.
The Office found a medical conflict between Dr. Licciardi and Dr. Israel regarding
whether appellant had residuals or disability due to his accepted work injury. To resolve the
conflict, it referred appellant to Dr. J. Mervyn Lloyd, a Board-certified orthopedist.
In an April 19, 2006 report, Dr. Lloyd noted reviewing the record, noted a history of
appellant’s work-related injury and examined him. He noted findings upon physical examination
of the cervical and lumbar spine of no spasm, normal range of motion, the right shoulder
Examination of the left knee revealed no abnormalities and the right knee revealed recent
arthroscopic scars, a small effusion with limited range of motion with pain. Dr. Lloyd diagnosed
revealed no atrophy, normal range of motion and no focal weakness or signs of impingement.
cervical sprain resolved with no evidence of cervical radiculopathy, right shoulder sprain
resolved, lumbar sprain resolved with no evidence of lumbar radiculopathy, left knee contusion
resolved and right knee contusion/sprain status post arthroscopic surgery. He opined that
appellant had recovered from the cervical sprain, right shoulder sprain, lumbar sprain and left
knee contusion and required no further treatment for these areas and had no disability related to
them. Dr. Lloyd noted that, regarding the right knee, appellant was two weeks’ postsurgery and
required physical therapy for four weeks and could not perform all aspects of his normal work
for one month because of his recent right knee surgery.
Appellant continued to submit reports from Dr. Licciardi, dated April 10 to August 31,
2006, who continued to opine that appellant was totally disabled due to his work-related injuries.
On June 23, 2006 the employing establishment offered appellant a position as a modified
corrective therapist, full time, subject to the restrictions set forth by Dr. Lloyd. On June 26, 2006
appellant refused the job offer. On July 25, 2006 he asserted that Dr. Licciardi determined that
he was totally disabled. Appellant submitted a report from Dr. Alne, dated June 10, 2006, who
opined that appellant’s disabling physical injuries caused him to develop anxiety and depression.
On September 6, 2006 the Office responded to the employing establishment’s request
that appellant’s compensation be terminated. It recommended a follow-up examination with the
referee physician, Dr. Lloyd, to determine if appellant had recovered from right knee surgery and
whether he continued to require work restrictions.
On October 2, 2006 the Office referred appellant to Dr. Lloyd for a follow-up
examination. In an October 18, 2006 report, Dr. Lloyd advised that he previously examined
appellant on April 18, 2006. He noted findings upon physical examination of no abnormalities
of the cervical spine, lumbar spine, right shoulder or left knee. Examination of the right knee
revealed healed arthroscopic scars, no joint effusion and normal range of motion. Dr. Lloyd
diagnosed cervical sprain resolved, right shoulder sprain resolved, lumbar sprain resolved, left
knee contusion resolved and right knee contusion/sprain, internal derangement, now resolved
following arthroscopic surgery. He found no objective abnormality and no evidence of cervical

3

or lumbar radiculopathy. Dr. Lloyd opined that appellant had recovered from the cervical sprain,
right shoulder sprain, lumbar sprain, left knee contusion and right knee contusion and sprain and
required no further treatment for these areas and had no disability related to them. He noted that
appellant reached maximum medical improvement and could return to work eight hours per day
with no restrictions.
Appellant submitted reports from Dr. Licciardi, dated October 2, 2006 to April 4, 2007,
who noted that appellant continued to have back pain and stiffness with radicular symptoms and
remained totally disabled.
On May 15, 2007 the Office proposed to terminate appellant’s compensation benefits on
the grounds that Dr. Lloyd’s reports established no residuals of the employment injury.
On June 8, 2007 appellant asserted that he was totally disabled. He submitted reports
from Dr. Licciardi, dated May 4 to July 13, 2007, who noted that appellant continued to have
residuals of his work injury with episodes of lumbar and cervical pain with radiculopathy and
opined that he continued to be totally disabled.
By decision dated July 20, 2007, the Office terminated appellant’s benefits effective
July 8, 2007 on the grounds that the weight of the medical evidence as represented by Dr. Lloyd
established that he had no continuing disability or residuals resulting from his accepted
employment injury.
On November 2, 2007 appellant requested reconsideration and asserted that he continued
to be totally disabled due to his work-related injury. He further noted that he sustained injuries
and conditions in addition to those accepted by the Office including those of a psychiatric nature.
Appellant submitted reports from Dr. Licciardi, dated July 13 to August 10, 2007, who noted
appellant’s continued complaints of right knee pain, cervical and lumbar pain, spasms and
radiculopathy. Dr. Licciardi opined that appellant remained totally disabled. Appellant also
submitted a report from Dr. Alne, dated August 10, 2007, who treated appellant for anxiety and
depression which developed after his work accident on June 29, 2005.
In a November 23, 2007 decision, the Office denied appellant’s reconsideration request
on the grounds that his letter neither raised substantive legal questions nor included new and
relevant evidence and was therefore insufficient to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.1 After it has determined that an employee has disability
causally related to his or her 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.2 The right to medical benefits for an accepted condition is not limited to the period
1

Gewin C. Hawkins, 52 ECAB 242 (2001).

2

Mary A. Lowe, 52 ECAB 223 (2001).

4

of entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.3
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for contusion of the bilateral knees, sprain of the
neck and lumbar spine, right shoulder sprain, contusion to multiple sites and bilateral abrasions
and friction burns to the legs without infection and authorized arthroscopic surgery on the right
knee, which was performed on April 10, 2006. It subsequently developed the medical evidence
and determined that a conflict in medical opinion existed between appellant’s attending
physician, Dr. Licciardi, who disagreed with the Office referral physician, Dr. Israel, regarding
whether appellant had residuals of his accepted work injury and whether he was totally disabled
from work.4
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.5
The Board finds that the opinion of Dr. Lloyd is sufficiently well rationalized and based
upon a proper factual background such that it is entitled to special weight and establishes that
appellant’s work-related conditions have ceased and that he can return to work full time without
restrictions. In his April 19 and October 18, 2006 reports, Dr. Lloyd reviewed appellant’s
history, reported findings and noted that both subjective and objective medical evidence
established that his physical injuries had resolved. In Dr. Lloyd’s April 19, 2006 report, he noted
that appellant had recovered from the cervical sprain, right shoulder sprain, lumbar sprain and
left knee contusion and required no further treatment for these injuries and had no disability
related to them. However, he noted that appellant was two weeks’ postarthroscopic surgery of
the right knee and required continued physical therapy and could not perform all aspects of his
normal work for one month. Following appellant’s recovery from his right knee surgery,
Dr. Lloyd performed a follow-up examination and, in a report dated October 18, 2006 report, he
noted essentially normal findings upon physical examination with regard to the cervical spine,
right shoulder, lumbar spine, left and right knee. Dr. Lloyd diagnosed cervical sprain, resolved,
right shoulder sprain resolved, lumbar sprain resolved, left knee contusion resolved and right
knee contusion/sprain, internal derangement, now resolved following arthroscopic surgery. He
found no objective abnormality and opined that appellant had recovered from the cervical sprain,
right shoulder sprain, lumbar sprain, left knee contusion and right knee contusion and sprain
required no further treatment for these conditions and had no disability related to them.
Dr. Lloyd noted that appellant could return to work eight hours per day with no restrictions.

3

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

4

See 5 U.S.C. § 8123(a).

5

Solomon Polen, 51 ECAB 341 (2000).

5

Appellant submitted reports from Dr. Licciardi, dated April 10 to August 31, 2006 and
October 2, 2006 to April 4, 2007, who noted that appellant continued to experience back pain
and stiffness with radicular symptoms into his legs and remained totally disabled. However,
Dr. Licciardi failed to specifically explain the reasons why any continuing orthopedic condition,
disability or restrictions were causally related to the accepted June 29, 2005 employment injury.6
Additionally, he was on one side of a conflict that was resolved by Dr. Lloyd and his report does
not otherwise provide new findings or medical rationale sufficient to establish that any
continuing condition or disability was causally related to the June 29, 2005 work injury.7
Also submitted was a report from Dr. Alne, dated June 10, 2006, who opined that
secondary to appellant’s disabling physical injuries and severe disruption of his life and lifestyle
he developed anxiety and depression. However, the Office never accepted that appellant
developed an emotional condition as a result of his June 29, 2005 work injury and there is no
medical evidence to support such a conclusion. The Board has found that vague and
unrationalized medical opinions on causal relationship have little probative value.8
After issuance of the pretermination notice, appellant submitted reports from
Dr. Licciardi, dated May 4 to July 13, 2007, who noted that appellant continued to have residuals
of his work-related injury with episodes of lumbar and cervical pain with radiculopathy and
remained totally disabled. However, Dr. Licciardi failed to provide a rationalized opinion
addressing how any continuing condition was causally related to the accepted employment
injury. Additionally, as noted above, he was on one side of a conflict that was resolved by
Dr. Lloyd and his report does not otherwise provide new findings or medical rationale sufficient
to establish that any continuing condition or disability was causally related to the June 29, 2005
work injury.9
The Board finds that Dr. Lloyd had full knowledge of the relevant facts and evaluated the
course of appellant’s condition. He is a specialist in the appropriate field. At the time benefits
were terminated, Dr. Lloyd clearly opined that appellant had no residuals or disability
attributable to his accepted orthopedic conditions. His opinion, as set forth in his April 19 and
October 18, 2006 reports, are found to be probative evidence and reliable. The Board finds that
Dr. Lloyd’s opinion represents the weight of the medical evidence and is sufficient to justify the
Office’s termination of appellant’s benefits for the accepted conditions of contusion of the
bilateral knees, sprain of the neck and lumbar spine, right shoulder sprain, contusion to multiple
sites and bilateral abrasions and friction burns to the legs without infection.

6

See Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992);
Dorothy Sidwell, 41 ECAB 857 (1990).
8

See supra note 6.

9

See Michael Hughes, supra note 7.

6

LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Federal Employees’ Compensation Act,10 the Office has the
discretion to reopen a case for review on the merits. It must exercise this discretion in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations,11 which provides that a claimant may obtain review of the merits of his or her
written application for reconsideration, including all supporting documents, sets forth arguments
and contain evidence that: (1) shows that the Office erroneously applied or interpreted a specific
point of law; (2) advances a relevant legal argument not previously considered by the Office;
or (3) constitutes relevant and pertinent new evidence not previously considered by the Office.
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.12
ANALYSIS -- ISSUE 2
Appellant’s November 2, 2007 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office.
Appellant submitted a statement dated November 2, 2007 and asserted that he continued
to be totally disabled due to his work-related injury. He further noted that he sustained injuries
and conditions in addition to those accepted by the Office including those of a psychiatric nature.
However, appellant’s general statements and allegations did not show that the Office erroneously
applied or interpreted a point of law nor did it advance a point of law or fact not previously
considered by the Office. Consequently, he is not entitled to a review of the merits of his claim
based on the first and second above-noted requirements under section 10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant submitted treatment notes from Dr. Licciardi,
dated July 13 to August 10, 2007, who noted his continued complaints of right knee pain,
cervical and lumbar pain, spasms and radiculopathy. He opined that appellant remained totally
disabled. Appellant also submitted a report from Dr. Alne, dated August 10, 2007, who treated
appellant for anxiety and depression, which developed after his work accident on June 29, 2005.
However, this evidence is essentially duplicative of medical records already contained in the

10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.606(b).

12

Id.

7

record13 and previously considered by the Office in its July 20, 2007 decision. The Office
properly found that this evidence did warrant reopening the claim for a merit review.
Therefore, the Board finds that the Office properly determined that appellant is not
entitled to a review of the merits of his claim pursuant to any of the three requirements under
section 10.606(b)(2) and properly denied his November 2, 2007 request for reconsideration.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate benefits effective
July 20, 2007.14 The Board further finds that the Office properly denied appellant’s request for
reconsideration of his case on its merits.

13

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).
14

The Board notes that the Office’s July 20, 2007 decision indicated that the termination of benefits was effective
July 8, 2007; however, the Office provided no explanation for retroactively terminating benefits. Therefore, the
Board will modify the termination to be effective July 20, 2007, the date of the Office decision. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997) (to avoid creating an
overpayment, the Office in terminating compensation may specify the end of the next periodic roll cycle as the date
on which entitlement ceases).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 23, 2007 is affirmed and the July 20, 2007 decision is
affirmed, as modified.
Issued: January 2, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, LAFAYETTE
PROCESSING & DISTRIBUTION FACILITY,
Lafayette, LA, Employer
__________________________________________

)
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)
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)

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

Docket No. 18-1565
Issued: February 10, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 13, 2018 appellant filed a timely appeal from March 1 and May 4, 2018 merit
decisions of the Office of Workers’ Compensation Programs (OWCP).1 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
The Board notes that, during the pendency of this appeal, OWCP issued an August 27, 2018 decision denying
modification of the May 4, 2018 decision that is the subject of the current appeal. The Board and OWCP may not
simultaneously exercise jurisdiction over the same issue. 20 C.F.R. §§ 501.2(c)(3), 10.626. See W.D., Docket No.
19-1124, n3 (issued October 22, 2019); Arlonia B. Taylor, 44 ECAB 591 (1993); Douglas E. Billings, 41 ECAB
880 (1990). Consequently, OWCP’s August 27, 2018 decision is set aside as null and void.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal and to OWCP following the May 4, 2018
decision. 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.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
entitlement to medical benefits; and (2) whether appellant has met her burden of proof to establish
a recurrence of the need for medical treatment causally related to her December 14, 2017
employment injury.
FACTUAL HISTORY
On December 14, 2017 appellant, then a 55-year-old mail processor lead clerk, filed a
traumatic injury claim (Form CA-1) alleging that on that date she sustained stabbing pain in her
right heel and increased right knee pain when pushing containers to a machine to continue loading
while in the performance of duty. OWCP accepted the claim for an unspecified sprain of the right
foot.
Appellant received treatment at the emergency department on December 14, 2017 for right
foot pain. In a duty status report (Form CA-17) of even date, Dr. Stephanie Humble, Boardcertified in family medicine, diagnosed a right foot sprain and provided limitations.
On December 15, 2017 appellant accepted a limited-duty position offered by the
employing establishment.
In a report dated January 8, 2018, Dr. James Noriega, a podiatrist, obtained a history of
appellant experiencing pain in her right heel after walking and standing at work loading mail onto
machines. He noted that x-rays showed no fracture. Dr. Noriega diagnosed right foot pain and
plantar fascial fibromatosis.
In progress reports dated January 29, 2018, Dr. Noriega diagnosed plantar fascial
fibromatosis and right foot pain and referred appellant for physical therapy. In a Form CA-17 of
even date, he provided the same diagnoses and checked a box marked “yes” that the history
provided by her was the same as that on the form of her injuring both feet pushing heavy equipment
and standing for prolonged periods. Dr. Noriega indicated that appellant could perform her usual
employment with the exception of intermittently lifting up to 35 pounds rather than 70 pounds.
On January 30, 2018 Dr. Noriega requested that OWCP authorize physical therapy for
appellant.
In a February 7, 2018 Form CA-17, Dr. Noriega diagnosed plantar fascial fibromatosis and
right foot pain, checked a box marked “yes” indicating that the history provided by appellant
corresponded to that on the form and listed work restrictions.
OWCP advised appellant on March 1, 2018 that it had closed her case as the January 29,
2018 Form CA-17 had indicated that she could resume work without restrictions.
On March 13, 2018 appellant filed a notice of recurrence (Form CA-2a) of the need for
medical treatment beginning December 29, 2017 causally related to her accepted employment
injury. She indicated that she had performed modified employment following her injury.
Appellant asserted that she required physical therapy for her condition.

2

In a development letter dated April 3, 2018, OWCP advised appellant of the type of
evidence necessary to establish an employment-related recurrence of the need for medical
treatment. It afforded her 30 days to submit additional evidence. No response was received.
By decision dated May 4, 2018, OWCP found that appellant had not established that she
sustained a recurrence of the need for medical treatment causally related to her accepted
employment injury.
LEGAL PRECEDENT -- ISSUE 1
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.4 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.5
OWCP’s procedures provide that pretermination notice is required before terminating a
claimant’s entitlement to medical benefits unless the treating physician provides that additional
treatment “is not necessary or treatment has ended.”6
OWCP’s procedures further provide that a decision is not necessary regarding a claim for
a recurrence of a medical condition when the recurrence is only for medical care “and there has
been no release from care or significant gap in treatment.”7
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s
entitlement to medical benefits.
OWCP accepted appellant’s December 14, 2017 traumatic injury claim for a right foot
sprain. Appellant received medical treatment for her condition on the date of injury and thereafter
on January 8 and 29 and February 7, 2018. In a January 29, 2018 progress report, Dr. Noriega
diagnosed plantar fascial fibromatosis and right foot pain and referred her for physical therapy.
He completed a Form CA-17 of even date providing that appellant could resume work with
limitations on lifting of up to 35 pounds intermittently.
On March 1, 2018 OWCP advised appellant that her claim was closed for medical benefits
after finding that Dr. Noriega had released her to resume her usual employment in the January 29,
2018 Form CA-17. The Board finds that this March 1, 2018 communication constitutes a final
adverse decision of OWCP over which it has jurisdiction.8 As discussed, however, to terminate
entitlement to medical benefits, it must show that appellant has no further residuals of her
4

See K.W., Docket No. 19-1224 (issued November 15, 2019); T.P., 58 ECAB 524 (2007).

5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(a)(8) (February 2013).

7

Id. at Chapter 2.1500.3(e)(2) (June 2013).

8

20 C.F.R. §§ 501.2(c) and 501.3.

3

employment-related condition which require further medical treatment.9 OWCP procedures
provide that it must also issue a pretermination notice unless the attending physician provides that
further medical treatment is unnecessary.10 Dr. Noriega had not released appellant from care and
there had been no significant gap in her obtaining medical treatment. Therefore, the Board finds
that OWCP improperly terminated her entitlement to medical benefits as it failed to follow the
necessary procedures.11
On remand, OWCP should reinstate her entitlement to medical benefits.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s
entitlement to medical benefits.12

9

Supra note 4; see also S.S., Docket No. 17-0781 (issued August 1, 2018).

10

Supra note 6.

11

In light of the Board’s findings as to issue 1, issue 2 is rendered moot. The Board notes that appellant had not
been released from medical treatment for her accepted employment injury and was requesting further treatment.
12
Upon return of the case record OWCP shall administratively remove all evidence relating to a different claimant’s
claim.

4

ORDER
IT IS HEREBY ORDERED THAT the May 4 and March 1, 2018 decisions of the Office
of Workers’ Compensation Programs are reversed.
Issued: February 10, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
U.S. POSTAL SERVICE, ROSELLE POST
OFFICE, Roselle, IL, Employer
__________________________________________

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

Docket No. 19-1685
Issued: February 26, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 6, 2019 appellant, through counsel, filed a timely appeal from a June 12, 2019
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 met his burden of proof to establish a recurrence of total
disability commencing July 28, 2018 causally related to his accepted employment injuries.
FACTUAL HISTORY
On July 20, 2018 appellant, then a 24-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that he sustained mild multi-level spondylosis, worst seen from L3S1, posterior herniation at L5-S1 impinging on the ventral thecal sac, and levoscoliosis as a result
of carrying a satchel on his shoulder and bending to pick up parcels while in the performance of
duty. He noted that he first became aware of his conditions and their relationship to his federal
employment on June 27, 2018. On the reverse side of the claim form, the employing establishment
indicated that appellant stopped work on June 29, 2018.
In a July 20, 2018 narrative statement, appellant noted that he had been experiencing lower
back pain for about one year and that he took Aleve to ease his pain. He reiterated his history of
injury on June 27, 2018. Appellant asked his supervisor if he could leave work early following
his injury. He was immediately evaluated by a chiropractor who diagnosed the conditions listed
on his Form CA-2 and also right L4-5 radiculopathy with denervation based on a magnetic
resonance imaging (MRI) scan. Appellant noted that he felt better while receiving chiropractic
treatment three times a week, but experienced pain when he returned to work.
Appellant submitted medical evidence which addressed his lumbar conditions and work
capacity. In a July 10, 2018 duty status report (Form CA-17), Dr. Phillip F. Burrer, an attending
Board-certified family practitioner, noted that appellant could return to work with restrictions.
OWCP, on August 15, 2018, accepted appellant’s claim for intervertebral disc disorders
with radiculopathy, lumbar region, and other spondylosis with radiculopathy, lumbar region.
On September 14, 2018 appellant filed claims for compensation (Form CA-7) requesting
leave without pay (LWOP) for the period July 28 through August 14, 2018 and August 18 through
31, 2018. On the reverse side of the claim forms, the employing establishment indicated that he
stopped work on June 27, 2017 and returned on July 11, 2018, but not to his predate-of-injury
position.
In support of his claim, appellant submitted additional medical evidence from Dr. Burrer.
In return to work recommendations dated August 8, 2018, Dr. Burrer noted that, on that date,
appellant had received a series of lumbar spine steroid injections. He advised that appellant was
unable to work until his reevaluation on August 22, 2018. In an August 23, 2018 letter, Dr. Burrer
related that appellant was currently under his care regarding a work injury sustained on
June 27, 2018. He had taken him off work beginning June 28, 2018. Dr. Burrer indicated that he
had released appellant to return to work on July 11, 2018. He noted that, while at work on July 12,
2018, appellant realized that he was not capable of performing any of his required duties and left
work early due to pain. Dr. Burrer noted that he evaluated him on July 13, 2018 and placed him
off work until his health improved. In August 23, 2018 return to work recommendations, he
continued to hold appellant off work until his reevaluation on October 4, 2018.

2

OWCP, in an October 3, 2018 development letter, advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence and provided a questionnaire for
his completion. OWCP afforded appellant 30 days to submit the necessary evidence.
Appellant filed additional CA-7 forms requesting LWOP for the period September 15
through October 26, 2018.
In an undated initial consultation report, Dr. Burrer provided examination findings and
diagnosed other intervertebral disc displacement, lumbar region, radiculopathy, lumbar region, and
myositis, unspecified. In return to work recommendations dated September 25, 2018, he indicated
that appellant was unable to work until his reevaluation on October 6, 2018. Dr. Burrer continued
to advise that appellant was unable to work in October 5, 2018 return to work recommendations.
He related that this work restriction was in effect until October 22, 2018. In a letter dated
October 30, 2018, Dr. Burrer restated appellant’s history of injury and that he had placed him off
work on July 13, 2018. He advised that appellant would continue to be off work until his next
reevaluation or a functional capacity evaluation (FCE) indicated that he could return to full-duty
work.
Dr. Allan Kirchner-Gomez, a chiropractor, in a November 2, 2018 FCE report, noted that
appellant’s mail carrier position was in the medium strength category. He found that appellant
may return to work as a mail carrier with restrictions.
By decision dated November 20, 2018, OWCP denied appellant’s claims for disability
commencing July 28, 2018 finding that he had not submitted rationalized medical evidence
sufficient to establish that his accepted employment-related conditions had materially worsened
since he had been placed on light-duty work restrictions by Dr. Burrer on July 10, 2018.
On December 7, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
OWCP subsequently received diagnostic test results and reports dated January 7 and 25,
2019 from Dr. Steven E. Mather, a Board-certified orthopedic surgeon. Dr. Mather provided
assessments of low back pain, possible ankylosing spondylitis, and lumbar degenerative disc
disease. He indicated that appellant could work with restrictions no more than eight hours a day.
In progress notes dated March 11 and April 15, 2019, Dr. Mather noted that appellant still had
back pain since his May 2018 injury. He discussed examination findings, provided an assessment
of degenerative disc disease at L5-S1, and imposed a permanent lifting restriction.
Dr. Edwin V. Espinosa, a Board-certified internist, in a January 23, 2019 progress note,
related a history of appellant’s employment injury and provided assessments of levoscoliosis
(primary encounter diagnosis), chronic bilateral low back pain with left-sided sciatica, and spasm
of lumbar paraspinous muscle.
By decision dated June 12, 2019, an OWCP hearing representative affirmed the
November 20, 2018 decision finding that the medical evidence of record was insufficient to
establish total disability commencing July 28, 2018 causally related to the accepted work injury.

3

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 resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean 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.3
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish, by the weight of the reliable, probative, and substantial evidence, a recurrence
of total disability and an inability to perform such limited-duty work. As part of this burden of
proof, the employee must show a change in the nature and extent of the injury-related condition or
a change in the nature and extent of the limited-duty job requirements.4 To establish a change in
the nature and extent of the injury-related condition, there must be a probative medical opinion,
based on a complete and accurate factual and medical history as well as supported by sound
medical reasoning, that the claimed disability is causally related to the accepted employment
injury.5 In the absence of rationale, the medical evidence is of diminished probative value.6 While
the opinion of a physician supporting causal relationship need not be one of absolute medical
certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a
reasonable degree of medical certainty.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability commencing July 28, 2018 causally related to his accepted employment injury.
OWCP accepted appellant’s occupational disease claim for intervertebral disc disorders
with radiculopathy, lumbar region, and other spondylosis with radiculopathy, lumbar region. On
July 10, 2018 Dr. Burrer released him to light-duty work. Appellant stopped work on July 28,
2018 and filed Form CA-7 claims for LWOP for the period July 28 through October 26, 2018. He
has not alleged a change in his light-duty job requirements. Instead, appellant attributed his
inability to work to a change in the nature and extent of his accepted intervertebral disc disorders
with radiculopathy and other spondylosis with radiculopathy of the lumbar region. He therefore
3

L.S., Docket No. 18-1494 (issued April 12, 2019); F.C., Docket No. 18-0334 (issued December 4, 2018); J.F., 58
ECAB 124 (2006). 20 C.F.R. § 10.5(x). See also Richard A. Neidert, 57 ECAB 474 (2006).
4

L.S., id.; A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

5

L.S., supra note 3; Mary A. Ceglia, 55 ECAB 626 (2004).

6

Id.; Robert H. St. Onge, 43 ECAB 1169 (1992).

7

L.S., supra note 3; Ricky S. Storms, 52 ECAB 349 (2001).

4

has the burden of proof to provide medical evidence to establish that he was disabled from work
due to a worsening of his accepted work-related conditions.8
Appellant submitted an undated report and return to work recommendations and reports
dated August 8 through October 30, 2018 from his attending physician, Dr. Burrer. Dr. Burrer
diagnosed other intervertebral disc displacement and radiculopathy in the lumbar region and
myositis, unspecified. He opined that appellant was totally disabled from work commencing
July 13, 2018. In an August 23, 2018 report, Dr. Burrer noted that appellant returned to work on
July 11, 2018, he experienced pain at work on July 12, 2018 and stopped work. The Board finds
that Dr. Burrer did not provide sufficient medical reasoning explaining how the accepted
employment injuries caused appellant’s disability commencing July 13, 2018. The Board has held
that a report is of limited probative value regarding causal relationship if it does not contain
medical rationale explaining how the claimed disability was causally related to an employment
injury.9 For these reasons, the Board finds that Dr. Burrer’s return to work recommendations and
reports are insufficient to establish appellant’s recurrence claim.10
Appellant also submitted a November 2, 2018 FCE report signed by his chiropractor,
Dr. Kirchner-Gomez. Although Dr. Kirchner-Gomez supported that appellant was disabled for a
period, he did not diagnose spinal subluxations as demonstrated by x-ray to exist and, thus, he is
not considered a physician under FECA and his reports are of no probative value.11
The January 7 and 25, 2019 diagnostic test results and reports, and March 11 and April 15,
2019 progress notes of Dr. Mather addressed appellant’s lumbar conditions, work capacity, and
work restrictions, but failed to offer an opinion as to whether his total disability commencing
July 28, 2018 was causally related to the accepted employment injuries. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s disability is
of no probative value on the issue of causal relationship.12 Therefore, this evidence is insufficient
to establish appellant’s recurrence claim.
Likewise, Dr. Espinosa’s January 23, 2019 progress note is also insufficient to establish
appellant’s recurrence claim as he did not provide an opinion on causal relationship between
appellant’s claimed total disability and accepted employment injuries.13

8

L.S., supra note 3; D.H., Docket No. 18-0129 (issued July 23, 2018); D.L., Docket No. 13-1653 (issued
November 22, 2013); Cecelia M. Corley, 56 ECAB 662 (2005).
9

See S.D., Docket No, 19-1245 (issued January 3, 2020); A.P., Docket No. 19-0446 (issued July 10, 2019); G.G.,
Docket No. 18-1788 (issued March 26, 2019); E.W., Docket No. 17-1988 (issued January 29, 2019).
10

S.D., id.; A.P., id.; G.G., id.; K.G., Docket No. 15-0669 (issued April 8, 2016).

11

5 U.S.C. § 8101(2); see also D.P., Docket No. 13-1721 (issued February 21, 2014); P.D., Docket No. 13-2034
(issued May 8, 2014); Paul Foster, 56 ECAB 208 (2004).
12

S.D., supra note 9; M.G., Docket No. 19-0610 (issued September 23, 2019); L.B., Docket No. 18-0533 (issued
August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
13

Id.

5

On appeal counsel contends that the evidence of record establishes that appellant sustained
a recurrence of total disability when he tried to return to work. However, as explained above,
appellant has not submitted rationalized medical evidence to establish causal relationship between
his claimed recurrence of total disability commencing July 28, 2018 and the accepted employment
injuries. As such, he has not met his 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 his burden of proof to establish a recurrence of
total disability commencing July 28, 2018 causally related to his accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the June 12, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 26, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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