United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, San Francisco, CA,
Employer
__________________________________________

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

Docket No. 09-2189
Issued: August 5, 2010

Case Submitted on the Record

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

JURISDICTION
On August 31, 2009 appellant filed a timely appeal from a March 25, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration. As the most recent merit decision is dated January 25, 2008, more than one year
prior to the filing of this appeal, the Board lacks jurisdiction to review the merits of this case
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly refused appellant’s request to reopen his case for
further review of the merits under 5 U.S.C. § 8128.

1

An appeal of an Office decision must be filed within one year of the issuance of such decision for decisions
issued prior to November 19, 2008; see 20 C.F.R. § 501.3(d)(2) or within 180 days of the issuance of such decision
for decisions issued on or after November 19, 2008; see 20 C.F.R. § 501.3(e) (2008).

FACTUAL HISTORY
On April 6, 2007 appellant, then a 41-year-old clerk, filed a traumatic injury claim
alleging that on March 24, 2007 he sustained stress, insomnia and headaches when he was
“repeatedly accused of being caught drinking alcohol by coworkers and managers” on
March 24, 2007. He stopped work on March 27, 2007.
In an accompanying statement, appellant related that on the morning of March 24, 2007
he drove his coworker, Ray Fernandez, to work. Mr. Fernandez had a history of problems with
alcohol. Appellant parked his car across the street from the employing establishment, put a
frozen water bottle in his pocket and gave another water bottle to Mr. Fernandez. When
appellant went into work an acting supervisor, John Luk, told him that Thomas Hom, a manager,
witnessed Mr. Fernandez and him outside drinking beer. Appellant informed Mr. Hom twice
that he and Mr. Fernandez were drinking water but Mr. Hom responded that he saw them
opening beer cans. He was upset about the accusation and feared disciplinary action. A
supervisor and coworkers told appellant that they heard he was caught drinking beer. On
March 26, 2007 appellant asked coworkers for statements confirming that he did not drink beer.
Henry Moye, a manager, told Mr. Hom that appellant did not drink and was assisting
Mr. Fernandez in his attempt to cure his alcoholism.
In a statement dated April 6, 2007, Mr. Hom related that he saw Mr. Fernandez, who had
a history of drinking alcohol, open what appeared to be a beer can that appellant handed him
from the trunk of his car, which was parked across the street from the employing establishment.
He told Mr. Luk to watch Mr. Fernandez and “explained what I thought I saw.” Mr. Hom did
not accuse appellant of drinking. He stated that on April 2, 2007 he “verbally apologized for
[his] bad assumption on March 24, 2007.”
In a statement dated April 6, 2007, Mr. Luk related that on March 24, 2007 Mr. Hom told
him to watch Mr. Fernandez because he may have been drinking. He indicated that Mr. Hom did
not mention appellant or accuse him of drinking. Mr. Luk spoke with appellant because he knew
that he drove Mr. Fernandez to work.
On April 10, 2007 the employing establishment controverted the claim. It noted that the
manager did not accuse appellant directly of drinking but instead of handing a can of beer to
Mr. Fernandez. The employing establishment stated:
“It is apparent that [appellant] handed Ray Fernandez a frozen bottle of water,
which looked like a white beer can from across the street. [Mr. Hom] asked his
supervisor John Luk only to observe Ray Fernandez, who has a well-known
drinking problem. However, the supervisor approached [appellant] (without his
instructions) and asked him if he had been drinking outside. The incident
apparently got twisted in the claimant’s mind and he thought that the manager had
questioned him about the drinking. At no time was the claimant accused of
drinking on March 24, 2007 by the manager or Supervisor John Luk.”

2

The employing establishment noted that it was appellant rather than management
that told his coworkers about the alleged drinking.2
On May 15, 2007 appellant asserted that Mr. Luk signed a statement on April 6, 2007
that conflicted with his other signed version of events. He alleged that Mr. Hom “instructed
Mr. Luk to sign this contradictory statement.”
In a statement received May 18, 2007, Mr. Luk related that on March 24, 2007 Mr. Hom
told him that appellant and Mr. Fernandez were drinking beer outside. Mr. Luk told Mr. Hom
that appellant did not drink. Mr. Hom also inquired about his red skin and Mr. Luk informed
him that he took medication for diabetes and high blood pressure.
By decision dated May 24, 2007, the Office denied appellant’s emotional condition
claim. It discussed his allegation that a manager, Mr. Hom, accused him and a coworker of
drinking beer before work. The Office noted that the employing establishment subsequently
determined that appellant was not drinking beer. It found, however, that Mr. Hom’s discussion
of his suspicion with other managers was an administrative matter. The Office further noted that
Mr. Hom did not take any disciplinary action against him as he realized that he was incorrect. It
concluded that appellant had not established any compensable factors of employment.
On June 3, 2007 appellant requested an oral hearing, which was held on
October 23, 2007. His representative, Mr. Luk, Mr. Hom and Marybel Gonazales, a manager,
testified at the hearing. Appellant’s representative asserted that the employing establishment did
not investigate him but instead accused him of drinking and spread the accusation as gossip.
Appellant described the March 24, 2007 incident. He again noted that Mr. Luk’s statement
conflicted regarding whether Mr. Hom said that he and Mr. Fernandez or just Mr. Fernandez
were outside drinking beer. Mr. Luk related that he could not remember why the statement he
signed differed in that respect. Mr. Hom asserted that on March 24, 2007 he told Mr. Luk to
watch Mr. Fernandez and see if he smelled alcohol. He did not tell Mr. Luk to speak with
appellant. Mr. Hom told only managers about the suspected alcohol drinking but did not
mention it any more.
In a decision dated January 25, 2008, the hearing representative affirmed the May 24,
2007 decision.
He determined that the employing establishment was performing an
administrative function when questioning appellant about possible wrongdoing and that there
was no evidence that it acted unreasonably. The hearing representative also found that there was
no evidence that Mr. Hom gossiped or spread rumors about appellant drinking alcohol. He noted
that it was possible that appellant accidentally spread the rumor when he spoke to Mr. Hom
about the matter. The hearing representative additionally found no evidence of harassment or
discrimination and noted that his failure to obtain redress or a written apology from Mr. Hom
was not a compensable work factor.
On January 21, 2009 appellant, through his representative, requested reconsideration.
His representative argued that Mr. Hom’s version of events was contradictory as he initially
stated that he stopped repeating his suspicions about the alleged beer drinking once he was
2

Appellant submitted numerous statements from coworkers supporting that he did not drink.

3

corrected and then admitted that he told others. Appellant’s representative also noted that
Mr. Luk provided conflicting statements and admitted that Mr. Hom pressured him into making
false statements. He referred to a statement provided by Danny Fong, a coworker, as evidence of
Mr. Hom’s derogatory comments about appellant and noted that Mr. Hom told Marsha Walker, a
coworker, not to say anything to EEO investigators. Appellant’s representative concluded that
Mr. Hom’s actions were “dishonest and destructive.”
Appellant resubmitted statements from his union representative, coworkers and
supervisors dated 2007. He further submitted numerous investigative affidavits from witnesses
in connection with his Equal Employment Opportunity (EEO) claim, including a January 31,
2008 affidavit from Ms. Gonzales, a February 3, 2008 affidavit from Mr. Hom, a February 12,
2008 affidavit from Ms. Walker, a February 12, 2008 affidavit from Danny Fong, a coworker,
and an April 3, 2008 affidavit from Walter Pettus, a coworker. Ms. Walker related that Mr. Hom
told her not to say anything to appellant about his workers’ compensation case. Mr. Fong noted
that after the hearing Mr. Hom indicated that he did not care if appellant was married to a
“f…ing Chinese woman or a f…ing black woman.” Mr. Pettus indicated that he saw Mr. Hom
watch appellant get something from a cooler and noted that appellant had in the past handed him
a beer from his car trunk. He warned appellant that Mr. Hom saw him get something from his
trunk. Mr. Hom, in his affidavit, denied informing anyone that appellant was drinking beer. He
noted that he told other managers of his suspicions but did not spread gossip.
On July 10, 2008 Mr. Luk related that he “felt pressure to sign a statement against
[appellant].” In a statement dated September 30, 2008, Mr. Luk related:
“It seems to me this was a small situation that has become a ‘bigger situation’
when the [employing establishment’s] management conspired to a cover-up story
against [appellant] April 6, 2007 at manager Thomas Hom’s direction with
manager Marybel Gonzales’s approval in the tour office. I continued to object,
but I finally gave [in] to the pressure of my managers and signed the false
statement given to me by Mr. Hom that manipulated the facts against [appellant].
Since April 6, 2007 I feel this act and others has created a retaliatory,
discriminatory and hostile environment by Mr. Hom.”
In a decision without a hearing dated November 18, 2008, an EEO judge found that
appellant did not establish harassment or a hostile work environment from being improperly
accused of drinking alcohol or from workplace gossip. The judge noted that the employing
establishment did not take any adverse action against him or action based on race or disability.
On January 9, 2009 appellant provided a statement relevant to his EEO claim and a
statement listing the relevant events. In a statement dated January 28, 2009, he related that
Mr. Hom’s misconduct caused his work injury.

4

By decision dated March 25, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was not new or pertinent and thus
insufficient to warrant reopening the case for further merit review.3
On appeal appellant argues that he sustained an injury on March 24, 2007 when Mr. Hom
spread rumors about him drinking. He described the events of March 24, 2007, noting that a
manager and other coworkers told him that they heard the story that he was drinking beer.
Appellant asserted that Mr. Hom asked about his red skin and that Mr. Luk acknowledged that he
signed false documents typed by Mr. Hom. He noted that he was at work when the incident
occurred. Appellant stated, “Management used my name and ‘beer drinking’ and then all
conspired and said nobody used my name.”
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,4 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.5 To be entitled to a merit
review of an Office 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.6 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.7
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.8 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.9 While the reopening of a case may be predicated
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.10

3

The Office noted that in some statement appellant referred to incidents subsequent to the March 24, 2007 work
injury and surrounding events. It advised him to file a new claim if he believed that he sustained an injury due to
those work factors.
4

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act 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.”
5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

9

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

10

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

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ANALYSIS
The Office denied appellant’s emotional condition claim after finding that he did not
establish any compensable work factors. It determined that he did not establish either
harassment or error or abuse by the employing establishment in an administrative function.
Appellant did not attribute his emotional condition to the performance of his work duties. He
maintained instead that he sustained a stress-related condition due to an accusation by
management that he had been drinking before work on March 24, 2007 and actions taken by
management in connection with the March 24, 2007 incident. In order to warrant reopening his
case for further merit review, he must raise an argument or submit evidence relevant to the issue
of whether the employing establishment harassed and discriminated against him11 or committed
error or abuse in administrative matters arising out of the March 24, 2007 incident.12
In his request for reconsideration, appellant’s representative argued that Mr. Hom spread
rumors that he was drinking beer and then denied his actions. Mr. Hom also forced Mr. Luk to
provide conflicting statements and told Ms. Walker not to say anything to EEO investigators.
The representative asserted that Mr. Hom’s statement to Mr. Fong about appellant’s wife showed
that he was antagonistic toward appellant. The Office previously considered appellant’s
argument that Mr. Hom told others of his belief that appellant and Mr. Fernandez had been
drinking beer and his contention that Mr. Hom continued to spread rumors about appellant after
he said that he had dropped the matter. Evidence or argument which repeats or duplicates
evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.13
Appellant contends that Mr. Hom told Mr. Luk that he was drinking outside of work and
then coerced Mr. Luk into signing a statement that Mr. Hom did not state that appellant was
drinking. In support of his contention, he submitted a September 30, 2008 statement from
Mr. Luk, who related that management “conspired to a cover-up story against [appellant]
April 6, 2007.” Mr. Luk related that he yielded to pressure from management and signed a false
statement that Mr. Hom provided “that manipulated the facts against [appellant].” He stated,
“Since April 6, 2007 I feel this act and others has created a retaliatory, discriminatory and hostile
environment by Mr. Hom.” Mr. Luk, however, did not provide any specific information
regarding what he signed that was false or adverse in any way to appellant. He further did not
describe any specific discriminatory or hostile action taken against appellant by management.
Consequently, Mr. Luk’s statement is not relevant to establishing harassment or error or abuse by
the employing establishment.

11

For harassment and discrimination to give rise to compensable disability, there must be evidence that
harassment or discrimination did in fact occur. Mere perceptions are not compensable. See V.W., 58 ECAB 428
(2007); Doretha M. Belnavis, 57 ECAB 311 (2006).
12

An administrative or personnel matter will be considered an employment factor only where the evidence
discloses evidence of error or abuse by the employing establishment. T.G., 58 ECAB 189 (2006); Robert Breeden,
57 ECAB 622 (2006).
13

C.N., 60 ECAB ___ (Docket No. 08-1569, issued December 9, 2008); Elaine M. Borghini, 57 ECAB
549 (2006).

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Appellant’s representative also argued that Mr. Hom told Ms. Walker not to talk to EEO
investigators. He submitted a February 12, 2008 affidavit from Ms. Walker, who related that
Mr. Hom told her not to say anything to appellant about his workers’ compensation case. There
is no evidence that Mr. Hom’s instructions to Ms. Walker not to comment on appellant’s case
were erroneous or abusive and thus this evidence is not relevant to establishing a compensable
work factor.
In a February 12, 2008 affidavit, Mr. Fong maintained that after the hearing Mr. Hom
related that he did not care if appellant was married to a “f…ing Chinese woman or a f…ing
black woman.” In an April 3, 2008 affidavit Mr. Pettus indicated that he saw Mr. Hom watch
appellant get something from a cooler and related that at one time prior appellant had given him
a beer from his car trunk. Mr. Hom, in his affidavit, related that he told other managers about his
suspicions of the beer drinking but did not gossip. These statements are not relevant to showing
harassment or error or abuse in a factor identified by appellant as causing his emotional
condition. Evidence that does not address the particular issue involved does not warrant
reopening a case for merit review.14
With his request for reconsideration, appellant submitted evidence from 2007 already of
record. 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.15
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit new
and relevant evidence not previously considered. As he did not meet any of the necessary
regulatory requirements, he is not entitled to further merit review.
On appeal appellant argued that management accused him by name of drinking beer and
then purposefully denied that he was accused. He also related that Mr. Hom gossiped about his
belief that appellant was drinking and questioned his red skin. As discussed, however, the Office
already considered these assertions and thus they do not warrant reopening the claim.
Appellant further maintained that he was at work when the incident occurred and thus
sustained a work injury. In order to establish an emotional condition, however, a claimant must
first establish a compensable work factor.16
CONCLUSION
The Board finds that the Office properly refused appellant’s request to reopen his case for
further review of the merits under 5 U.S.C. § 8128.

14

Johnny B. Causey, 56 ECAB 359 (2006); Freddie Mosley, 54 ECAB 255 (2002).

15

See Elaine M. Borghini, supra note 13.

16

There are situations where an injury or illness occurs in the course of the employment and has some kind of
causal connection with it but nevertheless is not covered because it is found not to have arisen out of the
employment. A.K., 58 ECAB 119 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 25, 2009 is affirmed.
Issued: August 5, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 07-1706
Issued: January 3, 2008

Case Submitted on the Record

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

JURISDICTION
On June 12, 2007 appellant filed a timely appeal of a February 22, 2007 decision of the
Office of Workers’ Compensation Programs denying her claim for a recurrence of disability.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2) the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant established a recurrence of disability on or about
November 14, 2006 causally related to her accepted work injury.
FACTUAL HISTORY
On December 1, 1993 appellant, then a 34-year-old clerk, filed an occupational disease
claim alleging that she sustained an injury to her hand and right arm as a result of repetitive
keying at work. She listed her date of awareness as October 29, 1993. By letter dated
January 31, 1994, the Office accepted appellant’s claim for tenosynovitis of the right thumb.
Appellant has been working full time with restrictions since August 21, 1994.

On December 12, 2006 appellant filed a claim for recurrence of her employment injury
on November 14, 2006. She noted that, after her injury she returned to limited-duty work.
Appellant noted that now she could not use her hands at full capacity. She noted pain in her
hands as well as swelling and weakness.
In a letter dated January 16, 2007, appellant indicated that the duties on her return to
work involved light-duty assignments with no lifting over 10 to 15 pounds and intermittent
keying. She opined that her current condition is due to the original injury as it is in the same area
of her body -- her hands and appellant noted that she is still doing repetitive motion and that has
aggravated her original injury.
In support of her recurrence claim, appellant submitted an impairment rating by
Dr. George L. Rodriguez dated November 14, 2006.
In a November 20, 2006 report,
Dr. Rodriguez noted that, as a result of appellant’s work injury, she suffered from tendinitis in
the flexors of both hands (all digits), carpal tunnel syndrome in both wrists, activity decrease and
a triangular fibrocartilage complex tear in her left wrist. Appellant also submitted numerous
notes of treatment at the physiatric/acupuncture treatment office dated November 15, 2006 to
January 10, 2007. She submitted a follow-up patient evaluation from the acupuncture center
indicating that she still experiences constant bilateral hand pain. Finally, appellant also
submitted a medical report by Dr. David S. Zelouf, a Board-certified orthopedic surgeon,
specializing in hand surgery, who noted that she had vague complaints including pain, swelling
an aching sensation with difficulty of gripping. Dr. Zelouf noted subjective complaints with no
objective findings. He stated that he could not explain her subjective symptoms.
By decision dated February 22, 2007, the Office denied appellant’s claim for a recurrence
of disability as the evidence was not sufficient to establish that appellant was unable to perform
the restricted-duty work to which she was assigned because of a material worsening of the
accepted condition.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment.1
When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited duty position or the medical evidence of record
establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,
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.2

1

20 C.F.R. § 10.5(x).

2

Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman, 38 ECAB 222, 227 (1986).

2

To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.3
ANALYSIS
The Office accepted that appellant sustained employment-related tenosynovitis in her
right thumb. Appellant returned to full-time work with restrictions on August 21, 1994. She
indicated that she stopped work on November 14, 2006.
The Board finds that appellant has not established a recurrence of disability on or about
November 14, 2006. There is no allegation that there was a change in the nature and extent of
the limited-duty job requirements. Moreover, none of the medical reports establish a change in
appellant’s medical condition that would prevent her from doing her limited-duty job. Neither
Dr. Rodriguez, nor Dr. Zelouf stated that she could not perform her limited-duty assignment.
They merely reported that appellant experienced pain and swelling on activity but offered no
description of her work activity or mention of any debilitating employment relationship. The
acupuncture notes are simply notes recording appellant’s treatment. The fact that she still has
pain does not indicate that appellant cannot perform her modified-job assignment.
The Board finds that appellant has not submitted sufficiently rationalized medical
evidence establishing a recurrence of disability. Therefore, it finds that appellant has not met her
burden of proof in this case.
CONCLUSION
The Board finds that appellant has not established a recurrence of disability on or about
November 14, 2006 causally related to her accepted injury.

3

James H. Botts, 50 ECAB 265 (1999).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 22, 2007 is affirmed.
Issued: January 3, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
DEPARTMENT OF THE ARMY, MATERIEL
COMMAND, Anniston, AL, Employer
__________________________________________
Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-1519
Issued: September 25, 2014

Case Submitted on the Record

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

On June 12, 2013 appellant, through his attorney, filed a timely appeal from the
April 3, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). The
Board assigned Docket No. 13-1519.
In its April 3, 2013 decision, OWCP granted appellant a schedule award for a 7 percent
permanent impairment of his left arm, 5 percent permanent impairment of his right arm and
12 percent permanent impairment of his right leg.1 The award ran for 72 weeks from
May 8, 2012 to September 23, 2013. OWCP indicated that the award was based on its medical
adviser’s approval of a May 2012 impairment rating conducted by a physical therapist for the
physical therapy firm of Wilhoite and Associates.

1

OWCP accepted that on March 9, 2011 appellant, then a 45-year-old welder leader, sustained a closed fracture
of the astragalus of his right foot, traumatic arthropathy of his right foot and ankle, closed commuted talar navicular
fracture/dislocation of his right foot/ankle, complete rupture of the rotator cuffs of both shoulders, loose body in his
right shoulder region and sprains of his right shoulder and upper arm. It authorized several surgeries, including open
reduction internal fixation of his right midfoot on March 9, 2011, right rotator cuff repair and open removal of old
sutures/anchors on June 13, 2011, left rotator cuff repair on October 5, 2011 and right triple arthrodesis on
December 21, 2011.

The record contains a document which was prepared by Rashad Pearson, a physical
therapist for Wilhoite and Associates and which was signed by him on May 23, 2012. The
document bears the heading, “Combined Impairment for Whole Body (5, 7, 12) = 22 percent”
and contains a brief summary of appellant’s factual and medical history. Mr. Pearson indicated
that an impairment rating evaluation was carried out using several tables of the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).2 On May 24, 2012 the document was signed without comment by Dr. Eli J. Hurowitz
and Dr. David P. Adkison, two of appellant’s attending Board-certified orthopedic surgeons.
The record contains February 11, March 1 and 22, 2013 reports in which an OWCP medical
adviser indicated that appellant had a 7 percent permanent impairment of his left arm, 5 percent
permanent impairment of his right arm and 12 percent permanent impairment of his right leg.
The medical adviser stated that the May 2012 impairment rating calculation carried out by
Mr. Pearson of Wilhoite and Associates was correct.
The Board finds that OWCP has not adequately explained how its April 3, 2013 schedule
award decision was supported by the medical evidence in the present record. The record does
not contain probative medical evidence providing a rationalized medical opinion regarding
appellant’s permanent impairment.3 The above-noted document signed by Dr. Hurowitz and
Dr. Adkison on May 24, 2012 does not constitute such an opinion because it does not provide a
clear opinion on how appellant’s impairment rating was derived under the relevant standards of
the sixth edition of the A.M.A, Guides. Although the document referenced various tables of the
sixth edition of the A.M.A, Guides, it did not provide any explanation of how these tables were
applied.4 OWCP’s medical adviser concluded that appellant had a 7 percent permanent
impairment of his left arm, 5 percent permanent impairment of his right arm and 12 percent
permanent impairment of his right leg, but his impairment rating appears to have been based on
nonmedical evidence, i.e., an impairment rating calculation conducted by Mr. Pearson, a physical
therapist.5
2

For consistent results and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for evaluating
schedule losses. 20 C.F.R. § 10.404 (1999). The effective date of the sixth edition of the A.M.A., Guides is
May 1, 2008. FECA Bulletin No. 09-03 (issued March 15, 2009).
3

The Board has held that medical reports are entitled to little probative value when their medical opinions are not
supported by rationale. See S.S., 59 ECAB 315 (2008).
4

In addition, the document does not contain a clear opinion on the extent of appellant’s impairment as it merely
states, “Combined Impairment for Whole Body (5, 7, 12) = 22 percent.”
5

The record also contains a functional capacity evaluation carried out by Mr. Pearson on May 8 and 9, 2012 and
signed by him on May 23, 2012 as well as an impairment rating calculation signed by Mr. Pearson on May 23, 2012.
The impairment rating document contained references to application of various tables of the sixth edition of the
A.M.A., Guides and indicated that appellant had a 7 percent permanent impairment of his left arm, 5 percent
permanent impairment of his right arm and 12 percent permanent impairment of his right leg. The Board notes,
however, that these documents do not constitute probative medical evidence because they were not reviewed and
approved of by a physician. Physical therapists are not physicians under the Federal Employees’ Compensation Act
(FECA) and therefore their opinions do not constitute medical opinion evidence and have no weight or probative
value on medical matters. C.E., Docket No. 14-710 (issued August 11, 2014); Jane A. White, 34 ECAB 515, 51819 (1983).

2

Moreover, the record does not currently contain any other medical evidence on which a
schedule award may be based. A document produced by Charles McKie, a physical therapist
with ACT Physical Therapy, which was signed by him on October 31, 2012 references tables of
the sixth edition of the A.M.A., Guides and concludes that appellant has 19 percent permanent
impairment of his left arm, 14 percent permanent impairment of his right arm and 20 percent
permanent impairment of his right leg. Although the document was signed by Dr. Adkison and
Dr. Hurowitz on October 31, 2012 and these physicians later produced March 20, 2013 letters
approving of the impairment ratings contained within, none of the documents pertaining to this
October 2012 impairment rating contains a rationalized explanation of how the impairment
rating was derived under the relevant standards of the sixth edition of the A.M.A., Guides.
At a minimum a document which purports to be the opinion of a physician must clearly
show that it was written and reviewed by a physician. The presence of a doctor’s initials or
signature, without evidence that the doctor prepared or reviewed the report is not sufficient to
establish it as a medical opinion under FECA.
For these reasons, the Board finds that OWCP has not adequately explained the basis for
its April 3, 2013 decision regarding the extent of appellant’s permanent impairment. The case is
remanded to OWCP for further development on this matter to be followed by the issuance of an
appropriate decision regarding appellant’s entitlement to schedule award compensation.
IT IS HEREBY ORDERED THAT the April 3, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.6
Issued: September 25, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6

Richard J. Daschbach, Chief Judge, who participated in the preparation of this order, was no longer a member of
the Board after May 16, 2014.

3


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

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Docket No. 14-1151
Issued: September 29, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On April 21, 2014 appellant filed a timely appeal from a February 28, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP).
Appellant, then a 62-year-old city mail carrier, filed a Form CA-1, claim for
compensation for traumatic injury. The form did not contain a description of the injury for
which she was claiming compensation, and noted that the cause of her injury was unknown. She
stated that the injury occurred on December 9, 2013. The employing establishment noted that
appellant stopped work on December 20, 2013. It also noted that this claim was not for a
traumatic injury, and that the form submitted should have been a Form CA-2 claim for
occupational disease.
With her claim, appellant submitted two documents containing recommendations on
returning to work, signed by a nurse practitioner. She also submitted a report signed by a
physical therapist.
By letter dated January 29, 2014, OWCP asked appellant to submit additional evidence in
support of her claim. It noted that she had not submitted sufficient evidence to establish that she
actually experienced an incident or employment factor alleged to have caused injury, and that
she had not provided a diagnosis of a condition from a physician or a physician’s opinion as to

how her injury resulted in the condition diagnosed. OWCP also requested that appellant clarify
as to whether she was claiming an occupational disease or a traumatic injury.
Appellant submitted three reports signed by a nurse practitioner. She also submitted
another document containing recommendations on returning to work and transcription notes
dated January 28, 2014, signed by the same nurse.
In a report dated February 10, 2014, Dr. David C. Ritzow, a Board-certified orthopedist,
diagnosed appellant with right foot plantar fasciitis. He stated that appellant was seen on that
day for her right foot, and that she had noted improvement in her symptoms. Dr. Ritzow
submitted a document containing his recommendations on appellant’s return to work, noting a
date of injury of December 9, 2013. He checked a box indicating that the injury was workrelated and provided diagnoses of right foot plantar fasciitis, mild tendinitis anterior to the tibial
tendon, mild synovitis and an unnamed condition of the flexor halluces longus (FHL).
By letter dated February 24, 2014, appellant responded to OWCP’s inquiries. She
explained that on December 9, 2013 she went to work at the employing establishment to perform
her eight-mile walking route. Appellant noted that it was snowing on that day, and that she wore
boots. After three hours of walking, her right foot began to hurt. She stated that she did not step
incorrectly or fall, but that she had been walking in the same manner that she usually did.
Appellant noted that she had never had any problems with her feet before other than that they
were tired at the end of the day. She took her boots off and put on tennis shoes, which did not
help with the pain. The next day, appellant stated that she saw a physician in order to determine
the nature of the pain, who told her that she had a bone spur and to take over-the-counter pain
medication. Appellant continued to work for the next two weeks. On December 19, 2013 her
foot became so sore that she could not finish her route. The next day, she saw Dr. Ritzow,
whose assistant told her that her injury appeared to be a stress fracture. Appellant stated that she
had an magnetic resonance imaging scan, which determined that she had tendinitis, and attended
physical therapy. She explained that her claim was originally filed as a traumatic injury because
she thought it was a stress fracture, but that as her diagnosis was tendinitis, it should have been
submitted as an occupational disease claim.
By decision dated February 28, 2014, OWCP denied appellant’s claim. It found that she
had not identified a cause of injury, and that the medical evidence was insufficient to establish
that a diagnosed condition was causally related to an injury. OWCP noted that the evidence
received from appellant included return to work slips and a report signed by a nurse, physical
therapy notes and Dr. Ritzow’s February 10, 2014 report.
The Board has held that OWCP must review all evidence submitted by a claimant and
received by it prior to the issuance of a final decision, including evidence received on the date of
the decision.1 Since Board decisions are final as to the subject matter appealed,2 it is crucial that
all of the evidence relevant to that subject matter, which was properly submitted to OWCP prior

1

Linda Johnson, 45 ECAB 439 (1994).

2

20 C.F.R. § 501.6(c).

2

to the time of issuance of its final decision, be addressed by OWCP.3 In its February 28, 2014
decision, OWCP did not consider appellant’s February 24, 2014 statement responding to its
inquiries, which was received on February 28, 2014. As OWCP failed to address all the relevant
evidence of record at the time it issued its February 28, 2014 decision, the case is remanded for a
proper review of the evidence and issuance of an appropriate final decision.4
IT IS HEREBY ORDERED THAT the February 28, 2014 decision of the Office of
Workers’ Compensation Programs is set aside, and the case record remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: September 29, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

3

William A. Couch, 41 ECAB 548 (1990).

4

See A.B., Docket No. 12-1907 (issued May 13, 2013).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF THE ARMY, TANKAUTOMOTIVE & ARMAMENTS COMMAND,
Fort Benning, GA, Employer
__________________________________________

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

Docket No. 15-738
Issued: June 18, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 17, 2015 appellant, through counsel, filed a timely appeal from the
January 6, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury causally
related to a June 13, 2013 work incident.
FACTUAL HISTORY
On June 19, 2013 appellant, a 46-year-old tools and parts attendant, filed a traumatic
injury claim alleging that she injured her left ankle and tail bone in the performance of duty
1

5 U.S.C. § 8101 et seq.

when she tripped over a pallet and fell on June 13, 2013. She stopped work the following day
and went to the emergency room where she saw a physician assistant. The physician assistant
diagnosed a fractured left ankle. Appellant was released to light duty on June 18, 2013.
In a decision dated February 28, 2014, OWCP denied appellant’s traumatic injury claim.
It accepted that the June 13, 2013 work incident occurred as alleged, but found that appellant
failed to submit medical evidence establishing a diagnosis causally related to the work incident.
On February 27, 2014 Dr. Deanna M. del Mazo, an internist, requested that appellant be
allowed to wear prescribed orthotic devices or shoe gear for treatment of her fractured foot.
Appellant, through counsel, on March 27, 2014 requested a telephonic hearing before an
OWCP hearing representative.
During the hearing on October 17, 2014, appellant’s counsel argued that the timeline,
along with appellant’s testimony and the medical records, showed causal relationship. Appellant
was in a lot of pain after she fell, her tailbone more so than her left ankle. She told a coworker
what happened. Appellant finished her shift, took a van pool home, and took medication. When
she awoke the next morning she could barely climb out of bed because her tailbone hurt so
much, and her left ankle was black and blue and swollen. Appellant went to the emergency
room. It was later found that she had a left ankle fracture. Appellant wore a soft cast and walked
around on crutches. Nothing more could be done for her fractured tailbone.
In a decision dated January 6, 2015, an OWCP hearing representative affirmed the
February 28, 2014 denial of appellant’s traumatic injury claim. He found that no physician had
provided an opinion explaining how the June 13, 2013 work incident caused a diagnosed medical
condition. The hearing representative found that the timeline of injury alone was insufficient to
establish a work-related injury.
On appeal, appellant’s counsel again argues the timeline of events: “How could claimant
sustain her injury in any manner other than alleged? The claimant has sustained her burden of
proof.”
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident, or
exposure occurring at the time, place, and in the manner alleged. He or she must also establish
that such event, incident, or exposure caused an injury.3

2

5 U.S.C. § 8102(a).

3

John J. Carlone, 41 ECAB 354 (1989).

2

Causal relationship is a medical issue,4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,5 must be
one of reasonable medical certainty,6 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.7
A physician assistant is not considered a “physician” within the meaning of FECA and is
therefore not competent to give a medical opinion.8
ANALYSIS
OWCP accepts that appellant tripped over a pallet and fell at work on June 13, 2013.
Appellant has therefore established that a specific event, incident, or exposure occurring at the
time, place, and in the manner alleged. The question that remains is whether the accepted work
incident caused a fracture of her left ankle and tailbone.
The question of causal relationship is a medical issue that usually requires reasoned
medical opinion for resolution. This evidence should be obtained from a physician who has
examined or treated the claimant for the condition for which compensation is claimed.9 There is
no reasoned medical opinion in appellant’s case. Dr. del Mazo, the internist, confirmed that
appellant had a fractured foot, but she made no attempt to connect this condition to what
happened on June 13, 2013. On its face, then, the medical opinion evidence is insufficient to
establish the critical element of causal relationship.
OWCP recognizes, however, that a medical opinion on causal relationship is not required
in every case. If all of the following criteria are satisfied, a claim may be accepted without a
medical report addressing causal relationship: (1) The condition reported is a minor one which
can be identified on visual inspection by a lay person (e.g., burn, laceration, insect sting or
animal bite); (2) The injury was witnessed or reported promptly, and no dispute exists as to the
fact of injury; and (3) No time was lost from work due to disability.10

4

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

5

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

6

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

7

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

8

Guadalupe Julia Sandoval, 30 ECAB 1491 (1979); see 5 U.S.C. § 8101(2) (the term “physician” includes
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within
the scope of their practice as defined by state law).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3 (January 2013).

10

Id. at Chapter 2.805.c.3.

3

Appellant’s injury was not a minor condition that could be identified on visual inspection
by a lay person. It appears that she lost at least one day from work as a result of the claimed
injury. Appellant stopped work on June 14, 2013. She was released to light duty on
June 18, 2013. As all three criteria do not apply to appellant’s case, a medical report addressing
causal relationship is required, notwithstanding the relative circumstances of her case.
Because appellant has not submitted a physician’s opinion on the critical issue of causal
relationship, the Board finds that she has not met her burden of proof to establish that the
June 13, 2013 work incident caused an injury. The Board will therefore affirm OWCP’s
January 6, 2014 decision denying her traumatic injury claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden to establish an injury causally
related to a June 13, 2013 work incident.
ORDER
IT IS HEREBY ORDERED THAT the January 6, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 18, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, RALEIGH-DURHAM
INTERNATIONAL AIRPORT, Morrisville, NC,
Employer
__________________________________________

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

Docket No. 13-446
Issued: May 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 18, 2012 appellant, through her attorney, filed a timely appeal of a
November 6, 2012 Office of Workers’ Compensation Programs’ (OWCP) merit decision.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective March 26, 2012; and (2) whether
appellant has met her burden of proof in establishing any continuing disability or medical
residuals due to her August 5, 2006 employment injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 11, 2006 appellant, then a 35-year-old supervisory transportation security
screener, filed a traumatic injury claim alleging that she injured her shoulders and back while
lifting a bag in the performance of duty on August 5, 2006. OWCP accepted her claim for sprain
of the lumbar back and neck sprain on November 3, 2006. Appellant’s attending physician
released her to return to full duty on October 16, 2006. By decision dated January 9, 2007,
OWCP denied appellant’s claim for compensation for the period September 12 through
October 14, 2006.
OWCP accepted the additional condition of sacroiliitis and disorders of the sacrum on
July 20, 2007. Appellant returned to full-time light-duty work on October 14, 2007 but
Dr. Dian Eisinger, a Board-certified orthopedic surgeon, found that appellant was totally
disabled beginning November 8, 2007.
She was placed on the periodic rolls on
November 28, 2007. Appellant requested approval for sacroiliac joint fusion on the left on
December 12, 2007. On May 7, 2009 OWCP noted the accepted conditions of sacroiliitis and
sacroiliac arthritis and authorized fusion of the sacroiliac joint.
On August 6, 2009 appellant underwent left sacroiliac arthrodesis with iliac crest bone
grafting and internal fixation. In a note dated January 13, 2010, Dr. Eisinger noted appellant’s
reports of left-sided back pain. On examination she found tenderness in the sciatic notch and
markedly positive straight leg raising on the left with giveaway weakness due to pain.
Dr. Eisinger diagnosed possible discogenic left radicular back pain. She examined appellant on
February 4, 2010 and diagnosed chronic left radicular low back pain with severely antalgic gait
and markedly positive straight leg raise on the left and tenderness in the left sciatic notch.
Appellant underwent a left L5-S1 interlaminar epidural steroid injection on February 22, 2010.
This procedure did not reduce her pain. Appellant underwent a magnetic resonance
imaging (MRI) scan on March 31, 2010 which demonstrated unchanged mild degenerative facet
changes in the lower lumbar spine. Dr. Eisinger found that appellant was totally disabled from
March 25, 2010. On May 5, 2010 she noted that appellant had developed right interscapular pain
which was “probably related to her cane use and therefore related to the sacroiliac joint….”
Dr. Ralph A. Liebelt, a Board-certified orthopedic surgeon, examined appellant on
May 12, 2010 and reviewed her MRI scan. He stated that appellant’s examination showed
questionable pain behaviors, but no motor or sensory deficits. Dr. Liebelt diagnosed back and
leg pain of uncertain etiology. On July 20, 2010 Dr. Eisinger continued to find appellant totally
disabled. Appellant underwent an additional MRI scan on August 3, 2010 which was not
substantively changed from her prior study. Dr. Eisinger reviewed these results on August 24,
2010 and noted that appellant had left greater than right facet changes at L3-4 and L5-S1. She
noted that appellant reported pain on extension and standing which was consistent with left facet
pain. Dr. Eisinger found tenderness over the lower lumbar facets with moderately restricted
flexion and severely restricted extension. She stated, “Suspect significant facet component to
back pain.” Dr. Eisinger performed a lumbar facet injection on October 4, 2010. On October 14,
2010 appellant stated that she had no relief from the injection. Dr. Eisinger performed an
electromyogram (EMG) on December 14, 2010 and found a normal study. She stated, “At this

2

point we are not really finding the cause of her continued severe back and left leg pain which has
been totally disabling for her.”
OWCP referred appellant for a second opinion evaluation on January 6, 2011.
Dr. Edward R. Mulcahy, a Board-certified orthopedic surgeon, completed a report on
January 25, 2011. He found a slight antalgic gait favoring the left leg, no paravertebral muscle
spasm and slight pain with palpation around the left sacroiliac joint. Dr. Mulcahy found limited
range of motion of the lumbar spine with cogwheel motion and no atrophy of the lower
extremity, no major muscle weakness and equal deep tendon reflexes. He determined that
appellant had no objective findings and stated that the loss of range of motion of the lumbar
spine was self-limiting and an overreaction to the examination maneuvers. Dr. Mulcahy stated
that appellant’s cervical and lumbar strains had resolved, that fibromyalgia and chronic pain
syndrome were not related to her accepted employment injuries and noted her sacroiliac joint
fusion. He stated, “The accepted injuries including the cervical and lumbar strains as well as the
concurrent medical condition of sacroiliitis have totally resolved.” Dr. Mulcahy further stated
that the physical limitations that appellant was experiencing were not due to the work injury,
based on the lack of objective physical findings, inconsistent history and inconsistent anatomical
nature of her complaints as well as lack of significant findings on diagnostic testing. He
concluded that appellant’s perceived limitations were due to nonwork-related psychological
issues. Dr. Mulcahy found that she was capable of performing her date-of-injury position.
Dr. Eisinger examined appellant on February 8, 2011 and noted that appellant described
refractory back pain with increasing left radicular pain with no clear cause. She found that
appellant’s gait was severely antalgic on the left with tenderness in the left buttock and sacroiliac
area. Dr. Eisinger noted very restricted lumbar flexion and extension and diagnosed refractory
back pain.
Dr. Eisinger reviewed Dr. Mulcahy’s report on March 23, 2011 and opined that appellant
had work restrictions due to her sacroiliac joint fusion including lifting, bending and prolonged
standing. She noted objective findings including the prior sacroiliac joint fusion, significant
spasm and restricted flexion and extension. Dr. Eisinger disagreed that appellant had only
psychological issues even though she was unable to determine the cause of appellant’s back pain.
On July 26, 2011 OWCP referred appellant, together with a statement of accepted facts
and list of specific questions, for an impartial medical examination, pursuant to 5 U.S.C.
§ 8123(a), with Dr. Donald Getz, a Board-certified orthopedic surgeon. The statement of
accepted facts lists the accepted conditions as cervical and lumbar strain as well as sacroiliitis.2
In his August 15, 2011 report, Dr. Getz described appellant’s history of injury and medical
treatment. He examined appellant and found no cervical spine symptoms with full range of
motion and no tenderness. Dr. Getz found that appellant’s lumbar spine examination
demonstrated that she leaned to the right side while sitting and walked with a left leg limp. He
noted that she had mild tenderness over the low back primarily in the buttocks with exquisite

2

The statement of accepted facts dated September 10, 2008 did not include disorders of the sacrum and sacroiliac
arthritis or the authorized fusion of the sacroiliac joint. All of which were accepted by OWCP as due to appellant’s
accepted employment injury of August 5, 2006

3

tenderness overlying the bilateral trochanters. Dr. Getz diagnosed bilateral trochanteric bursitis,
early right sacroiliitis and resolved cervical and lumbar sprains as well as chronic pain syndrome.
Dr. Getz opined that the accepted conditions of cervical and lumbar strain were no longer
present or disabling. He stated, “The work injury has now totally resolved and the claimant’s
continuing complaints are the results of her unrelated conditions of chronic pain syndrome,
bilateral sacroiliitis, exogenous obesity, bilateral trochanteric bursitis and fibromyalgia.”
Dr. Getz opined that appellant did not have any restrictions or limitations as a result of the
conditions of cervical and lumbar strain. In regard to the accepted condition of sacroiliitis, he
stated:
“This in my opinion, preexisted the incident of August 5, 2006 and was only
incidentally discovered during an overall work up of the claimant’s low back
pain. The sacroiliac joint condition was not caused by the incident of
August 5, 2006. While the sacroiliac joint may be traumatically injured its
construction is sufficiently rigid and protected by extremely strong ligamentous
structures that it cannot be damaged merely by the lifting of a suitcase. Traumatic
injuries do occur to the sacroiliac joint but only after significant trauma such as a
crush pelvis or associated with major fractures. The claimant’s sacroiliac
condition is either inflammatory or degenerative and may explain the claimant’s
painful symptoms in the area that preceded the incident of August 5, 2006 that
were interpreted as part of her fibromyalgia. This opinion is further supported by
the developing bilaterality of the condition.”
Dr. Getz concluded that appellant was not currently disabled from any work due to the
conditions accepted as resulting from her August 5, 2006 employment incident.
In a letter dated February 2, 2012, OWCP proposed to terminate appellant’s medical and
compensation benefits for the accepted conditions of cervical sprain, lumbar sprain and
sacroiliitis based on Dr. Getz’ report. It allowed appellant 30 days for a response. Appellant
disagreed on February 10, 2012. She stated that, although her neck and back sprains had
resolved, she continued to have symptoms and residuals due to her accepted condition of
sacroiliitis.
On February 8, 2012 Dr. Eisinger diagnosed right sacroiliitis in a patient with a previous
left joint fusion. Dr. Liebelt examined appellant on February 22, 2012 and diagnosed
healed/healing left joint arthrodesis with increasing pain on the right. He opined that appellant’s
right hip symptoms had been present since her injury.
By decision dated March 26, 2012, OWCP terminated appellant’s compensation benefits
effective March 26, 2012 based on Dr. Getz’ report. Counsel requested an oral hearing before an
OWCP hearing representative on April 5, 2012. Appellant testified at the oral hearing on
July 11, 2012. By decision dated September 24, 2012, the hearing representative found that
Dr. Getz’ opinion was based on a complete and accurate factual and medical background and
constituted the weight of the medical opinion evidence. She found that this report established
that appellant’s injury-related residuals and disability had resolved.

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Appellant requested reconsideration on October 1, 2012 and submitted an additional
report from Dr. Liebelt dated July 25, 2012. By decision dated November 6, 2012, OWCP
reviewed the merits of appellant’s claim and denied modification of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.4 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.5 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.6
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.7 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.8
In situations where there are opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.9
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for cervical and lumbar sprain as well as sacroiliitis,
disorders of the sacrum and sacroiliac arthritis as well as fusion of the sacroiliac joint. It
subsequently developed the medical evidence and determined that a conflict in medical opinion
existed between Dr. Eisinger, appellant’s treating physician, who opined that appellant had
residuals of her sacroiliitis and resulting surgery and was partially disabled, and Dr. Mulcahy,
3

Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

Id.

5

Furman G. Peake, 41 ECAB 361, 364 (1990).

6

Id.

7

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

8

R.C., 58 ECAB 238 (2006).

9

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

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OWCP’s second opinion physician, who opined that she had no work-related residuals and
disability. Consequently, OWCP properly referred appellant to Dr. Getz to resolve the medical
conflict.
The Board finds that Dr. Getz’ report is not sufficiently well reasoned to resolve the
medical conflict. Regarding appellant’s accepted sacroiliitis, Dr. Getz opined that this condition
was not related to the work injury of August 5, 2006. However, her condition was accepted by
OWCP for sacroiliitis and this was reflected on the statement of accepted facts provided to
Dr. Getz. The Board finds that Dr. Getz’ report is of diminished probative value, as his opinion
disregarded a critical element of the statement of accepted facts. The Board notes that it is the
function of the medical expert to give an opinion only on medical questions, not to find facts.10
Furthermore, to be given special weight, the opinion of an impartial medical specialist must be
based on a proper factual background. As Dr. Getz did not give due regard to the statement of
accepted facts, his opinion was not based on a proper factual background.
Consequently, the Board finds that there is an unresolved conflict in the medical evidence
regarding whether appellant continues to have disability or residuals attributable to her accepted
emotional condition. Therefore, OWCP did not meet its burden of proof to terminate her
compensation benefits.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits.

10

S.J., Docket No. 09-1355 (issued May 20, 2010); Paul King, 54 ECAB 356 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the November 6, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 15, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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