United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Birmingham, AL, Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0847
Issued: July 18, 2017

Case Submitted on the Record

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

JURISDICTION
On March 6, 2017 appellant, through counsel, filed a timely appeal from a January 24,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction 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 OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d) due to his failure to attend a scheduled medical examination.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case, as set forth in the
prior decision, are incorporated herein by reference.
On January 25, 2006 appellant, then a 64-year-old mine safety and health inspector,
injured his right knee in the performance of duty.4 OWCP accepted his traumatic injury claim
(Form CA-1) for right knee sprain, medial meniscus tear, aggravation of degenerative
osteoarthrosis, and chondromalacia patellae. Additionally, it authorized two right knee
arthroscopic surgical procedures performed by Dr. Richard Hoblitzell, a Board-certified
orthopedic surgeon, on March 30, 2006 and December 8, 2011. Appellant retired effective
July 31, 2006.
On October 23, 2012 appellant, through counsel, filed a claim for a schedule award
(Form CA-7). In an April 11, 2012 report, Dr. Hoblitzell opined that appellant had reached
maximum medical improvement (MMI) for his right knee on January 3, 2012. He indicated that
appellant would likely require right knee joint replacement surgery due to the progression of
arthritis and not due to his employment injury. Dr. Hoblitzell assigned appellant to class 2 for
primary knee joint arthritis, grade A and found that he had 16 percent permanent impairment of
the right lower extremity based on Table 16-3, Knee Regional Grid, American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) 509-11
(6th ed. 2009).
OWCP referred appellant to Dr. Theodore Toan Le, a Board-certified orthopedic surgeon,
for a second opinion evaluation to determine the nature and extent of his permanent impairment.
Initially, in an April 9, 2013 report, Dr. Le found 26 percent permanent impairment of the right
lower extremity. However, in an August 7, 2013 letter, OWCP’s district medical adviser
(DMA), Dr. Zimmerman, indicated that Dr. Le’s rating was unacceptable because he used the
rating methodology for primary knee joint arthritis or patellofemoral arthritis without measuring
the knee joint space interval with a ruler graduated in millimeters, in accordance with the
A.M.A., Guides (6th ed. 2009).
In an October 3, 2013 addendum report, Dr. Le utilized Table 16-3 of the A.M.A., Guides
based on a magnetic resonance imaging (MRI) scan report dated September 24, 2011, which
showed chondromalacia patella and a progression with cartilage damage of the posterior aspect
of the weight-bearing portion of the medial femoral condyle in comparison to a previous May 14,
2008 report. He opined that the loss of cartilage corresponded to class 2 for both the knee
3

Docket No. 14-1834 (issued September 18, 2015).

4

Appellant twisted his right knee while stepping out of a trailer. The distance (step) from the trailer to ground
level was approximately 10 inches.

2

arthritis and patellofemoral arthritis. Dr. Le corrected his impairment rating based on a grade
modifier of 2 for Functional History (GMFH) and Physical Examination (GMPE) and 1 for
Clinical Studies (GMCS). He concluded that appellant had 14 percent permanent impairment of
the right lower extremity.
On October 21, 2013 Dr. Zimmerman found that, in his October 3, 2013 report, Dr. Le
had not considered plane film x-rays, but rather chose to extrapolate a rating for joint space
interval narrowing based on what he thought the joint space interspace would be due to changes
in an MRI scan of the right knee. He indicated that this method was not permitted by the
A.M.A., Guides. Utilizing Table 16-23,5 Dr. Zimmerman utilized the range of motion (ROM)
method and determined that appellant had 10 percent permanent impairment of the right lower
extremity based on 100 degrees flexion as reported by Dr. Le in his April 9, 2013 report. He also
found that appellant had reached MMI on April 9, 2013, the date of Dr. Le’s initial second
opinion examination.
By decision dated November 6, 2013, OWCP granted appellant a schedule award for 10
percent permanent impairment of the right lower extremity. The award ran for 28.8 weeks for
the period April 9 through October 27, 2013.
Counsel requested a telephonic hearing before a representative of the Branch of Hearings
and Review, which was held on May 9, 2014.
By decision dated July 23, 2014, an OWCP hearing representative affirmed the
November 6, 2013 schedule award decision.
In a decision dated September 18, 2015, the Board set aside OWCP’s July 23, 2014
decision and remanded the case for further development because appellant’s ROM had not been
properly measured under Chapter 16 of the A.M.A., Guides. The Board found that there was no
indication that the digital measurements for each extremity reported by Dr. Le followed the
procedure outlined in section 16.7b, page 544, of the sixth edition of the A.M.A., Guides and
remanded the case for OWCP to obtain further information.
Accordingly, on October 21, 2015, OWCP referred appellant to Dr. Le for another
second opinion evaluation to determine the extent of his permanent impairment.
In a November 12, 2015 report, Dr. Le found that appellant’s active ROM of the right
knee was limited. Passive ROM in the supine position was 50, 55, and 55 degrees on three
separate determinations. In the sitting position, the knee could be flexed to 65 degrees on two
determinations and 75 degrees with some passive stretch. Dr. Le found that with comparison to
his previous measurements and his worksheet from 2013, using Table 16.23, page 549, of the
A.M.A., Guides for knee impairments utilizing three separate measurements of the right knee put
appellant in a moderate impairment category, equaling 20 percent permanent impairment of the
right lower extremity. He noted that his measurements were performed in accordance with
section 16.7 of the sixth edition of the A.M.A., Guides and all three measurements were taken
after warm-up in the supine position and in the sitting position.
5

Table 16-23, page 549 of the sixth edition of the A.M.A., Guides is entitled Knee Motion Impairments.

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OWCP subsequently referred the case to its DMA, Dr. Morley Slutsky, who is Boardcertified in occupational medicine.
In a November 24, 2015 report, Dr. Slutsky disagreed with Dr. Le’s impairment rating.
He utilized the diagnosis-based impairment (DBI) rating method and found that appellant’s most
impairing diagnosis in the right knee region was a class 1 primary knee joint arthritis secondary
to having a full-thickness articular cartilage defect in the medial compartment of the knee.
Dr. Slutsky explained that if Dr. Le had taken joint space measurements for each compartment of
the knee using x-rays, then appellant may have been eligible for a higher class of arthritis.
However, Dr. Le only obtained passive knee ROM measurements. Dr. Slutsky found that the
ROM measurements utilized by Dr. Le were invalid for rating appellant’s impairment because
they were passive, not active measurements. Additionally, he opined that the DBI method was
preferred over the ROM method for calculating impairment ratings. Dr. Slutsky determined that
using the DBI method, appellant had nine percent permanent impairment of the right lower
extremity based on his diagnosis of primary knee joint arthritis.
In a January 6, 2016 letter, OWCP found a conflict in the medical opinion evidence
between appellant’s attending physician, Dr. Hoblitzell, who found 16 percent permanent
impairment, and its second opinion physician, Dr. Le, who found 20 percent permanent
impairment of the right lower extremity. It referred appellant to Dr. E. Gregory Fisher, a Boardcertified orthopedic surgeon, for a referee examination scheduled for January 14, 2016 to resolve
the conflict.
In letters dated January 12 and 15, 2016, counsel provided notice that appellant would not
be present for the scheduled January 14, 2016 examination with Dr. Fisher because there was no
conflict in the case. He noted that OWCP had already determined that Dr. Hoblitzell’s
16 percent impairment rating was unacceptable. Therefore, OWCP was obligated to utilize
Dr. Le’s 20 percent right lower extremity permanent impairment rating, and award an additional
10 percent permanent impairment. Counsel argued that, in the absence of a true conflict in
medical opinion, a referee examination was unwarranted.
In a January 20, 2016 notice of proposed suspension, OWCP informed appellant that it
planned to suspend his compensation benefits because he failed to attend the January 14, 2016
referee examination that had been scheduled with Dr. Fisher. It explained the consequences
under 5 U.S.C. § 8123(d) for failing to submit to or obstruction an examination. OWCP also
noted that counsel’s argument regarding the lack of conflict did not establish good cause for
appellant’s failure to attend the previously scheduled referee examination. It allowed appellant
14 days to provide good cause for his failure to submit to or cooperate with the referee
examination. OWCP also forwarded a copy of the notice of proposed suspension to counsel.
Thereafter, counsel submitted a letter dated January 26, 2016, reiterating his contention that there
was no need or requirement for a referee examination as there was no disagreement among the
physicians in the claim because OWCP did not recognize the impairment rating of Dr. Hoblitzell.
He further requested that OWCP refer appellant back to Dr. Le for another examination to
determine his impairment rating.
By decision dated March 8, 2016, OWCP finalized the proposed suspension of
compensation, finding that appellant had failed to attend the medical examination scheduled for

4

January 14, 2016 and did not establish good cause for refusing to submit to the examination. It
found that counsel’s arguments were insufficient to establish good cause for appellant’s failure to
attend the referee examination. OWCP noted that another second opinion examination was
scheduled with Dr. Le, but his November 12, 2015 report continued to improperly apply the sixth
edition of the A.M.A., Guides. It explained that it had not gone back to Dr. Le for clarification
because since 2013 he had repeatedly provided impairment ratings that were not in accordance
with the A.M.A., Guides. Moreover, OWCP decided that it would be more advantageous for
appellant to seek an impartial referee examination from a different specialist to determine a final
impairment rating for his right lower extremity because two DMAs had provided impairment
ratings lower than his attending physician.
On March 17, 2016 counsel requested a hearing before the Branch of Hearings and
Review.
A telephonic hearing was held before an OWCP hearing representative on November 3,
2016 and counsel reiterated his arguments.
By decision dated January 24, 2017, OWCP’s hearing representative affirmed the prior
decision.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.6
The determination of the need for an examination, the type of examination, the choice of locale,
and the choice of medical examiners are matters within the province and discretion of OWCP.7
OWCP regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary.8
Section 8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit
to or obstructs a directed medical examination, his or her compensation is suspended until the
refusal or obstruction ceases.9 However, before OWCP may invoke these provisions, the
employee is to be provided a 14-day period within which to present in writing his or her reasons
for the refusal or obstruction.10 If good cause for the refusal or obstruction is not established,
entitlement to compensation is suspended in accordance with section 8123(d) of FECA.11

6

5 U.S.C. § 8123(a).

7

J.T., 59 ECAB 293 (2008); S.B., 58 ECAB 267 (2007); James C. Talbert, 42 ECAB 974 (1991).

8

20 C.F.R. § 10.320.

9

5 U.S.C. § 8123(d); id. at § 10.323.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).
11

Id.; see T.W., Docket No. 16-1524 (issued February 6, 2017).

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ANALYSIS
OWCP scheduled a referee examination on January 14, 2016 with Dr. Fisher. Appellant
did not appear for the scheduled examination. On January 20, 2016 it advised him of its
intention to suspend compensation benefits pursuant to 5 U.S.C. § 8123(d), and afforded him 14
days to submit new and pertinent explanation for not attending or obstructing the referee
examination. Counsel responded on January 26, 2016 essentially reiterating his prior argument
that there was no conflict and, therefore, no need for a referee examination. Additionally, he
argued that OWCP should either seek further clarification from Dr. Le or refer appellant for
another examination by Dr. Le. By decision dated March 8, 2016, OWCP suspended appellant’s
entitlement to compensation benefits based on his failure to establish good cause for not
participating in the scheduled impartial medical examination. The Board finds that OWCP
properly suspended his entitlement to compensation for failure to attend a medical examination
on January 14, 2016.
The determination of the need for an examination, the type of examination, the choice of
locale, and the choice of medical examiners are matters within the province and discretion of
OWCP. The only limitation on OWCP’s authority, with regard to instructing a claimant to
undergo a medical examination, is that of reasonableness.12 The Board has interpreted the plain
meaning of section 8123(d) to provide that compensation is not payable while a refusal or
obstruction of an examination continues.13
In a January 6, 2016 letter, OWCP found a conflict in the medical opinion evidence
between appellant’s attending physician, Dr. Hoblitzell, and its second opinion physician, Dr. Le,
regarding his impairment rating. Appellant was referred for a referee examination with
Dr. Fisher and was advised of the need for the examination and the time and place for the
scheduled appointment. He failed to attend the scheduled January 14, 2016 appointment.
OWCP subsequently allowed appellant 14 days to provide reasons for failing to appear.
Counsel’s argument that there was no conflict and therefore no need or requirement for a
referee examination is without merit. The Board finds that OWCP reasonably referred appellant
for an impartial referee examination from a different specialist to determine a final impairment
rating for his right lower extremity because two DMAs had provided impairment ratings lower
than his attending physician. Counsel further requested that OWCP return the case to Dr. Le for
another examination to clarify his impairment rating. In its March 8, 2016 decision, OWCP
explained that it did not go back to Dr. Le for clarification because since 2013 he had repeatedly
provided impairment ratings that were not in accordance with the A.M.A., Guides (6th ed. 2009).
Thus, the Board finds that OWCP properly suspended entitlement to compensation in
accordance with 5 U.S.C. § 8123(d) until the date on which appellant agrees to attend the

12

Lynn C. Huber, 54 ECAB 281 (2002).

13

T.W., Docket No. 16-1524 (issued February 6, 2017).

6

examination. When appellant actually reports for examination, payment retroactive to the date
on which he agreed to attend the examination may be made.14
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
effective March 8, 2016 due to his failure to attend a scheduled medical examination.
ORDER
IT IS HEREBY ORDERED THAT the January 24, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 18, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

C.S., Docket No. 11-1366 (issued December 12, 2011); E.B., 59 ECAB 298 (2008).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
U.S. POSTAL SERVICE, MILWAUKEE MAIN
POST OFFICE, Milwaukee, WI, Employer
__________________________________________

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

Docket No. 19-1056
Issued: November 1, 2019

Case Submitted on the Record

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

JURISDICTION
On April 12, 2019 appellant, through counsel, filed a timely appeal from a March 8, 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 her burden of proof to establish disability for the
period commencing November 21, 2017 causally related to her accepted May 29, 2015
employment injury.
FACTUAL HISTORY
On May 29, 2015 appellant, then a 53-year-old occupational health nurse, filed a traumatic
injury claim (Form CA-1) alleging that, on the same date, she sustained a back injury while in the
performance of duty. She maintained that as she was moving a file cabinet she made a sudden
jerking movement in an attempt to catch some files falling off the cabinet and pulled muscles in
her back. Appellant stopped work on May 30, 2015.3
OWCP accepted appellant’s claim for a lumbar sprain. It paid her wage-loss compensation
for work stoppages related to medical appointments and recovery from steroid injections.4
Appellant stopped work on November 21, 2017 and, on December 12, 2017, she filed a
claim for compensation (Form CA-7) alleging disability for the period November 21 to
December 8, 2017 causally related to her accepted May 29, 2015 employment injury. She later
filed additional Forms CA-7 alleging disability for the period December 9, 2017 and continuing
causally related to her accepted May 29, 2015 employment injury.5
In disability notes dated between November 27 and December 11, 2017, Dr. Chandur
Piryani, a Board-certified anesthesiologist, advised that appellant should be off work from
November 27 through December 25, 2017. In the November 27, 2017 note, he diagnosed
lumbosacral radiculopathy and indicated that appellant reported experiencing increased pain due
to a change in her medication.
In a December 15, 2017 development letter, OWCP requested that appellant submit
additional medical evidence in support of her claim for disability commencing
November 21, 2017.
In response, appellant submitted a November 20, 2017 report from Dr. Piryani who
diagnosed intervertebral lumbar disc degeneration, lumbar spondylosis without myelopathy or
radiculopathy, intervertebral lumbar disc disorders with radiculopathy, lumbar spinal stenosis,
sacrococcygeal disorders, and chronic pain syndrome. Dr. Piryani noted that he provided appellant
3

OWCP assigned the claim OWCP File No. xxxxxx867.

4

Appellant previously filed traumatic injury claims under separate file numbers, including a claim for a
September 19, 2001 injury which was accepted by OWCP for lumbar strain (OWCP File No. xxxxxx968), and a claim
for a December 17, 2003 injury which it accepted for aggravation of lumbar degenerative disc disease at L5-S1,
contusions of the back and left shoulder, and sprains of the wrist, left shoulder/upper arm, and lumbar spine (OWCP
File No. xxxxxx469). OWCP has not administratively combined the current claim, OWCP File No. xxxxxx867, with
these claims.
5
Appellant returned to limited-duty work on February 27, 2018 for six hours per day and she began to claim wageloss compensation for two hours per day.

2

an off-work excuse starting that day and advised her that she could return to work on
November 27, 2017. In a January 8, 2018 report, he discussed appellant’s reported low back/lower
extremity symptoms and opined that her medical condition and accompanying disability were
related to her May 29, 2015 employment injury.6
In February 2018 OWCP referred appellant to Dr. David S. Haskell, a Board-certified
orthopedic surgeon, for a second opinion examination and requested that he provide an opinion
regarding whether she had disability commencing November 21, 2017 causally related to her
accepted May 29, 2015 employment injury.
In a March 14, 2018 report, Dr. Haskell discussed appellant’s factual and medical history
and noted that his physical examination showed restricted forward flexion of the back, but no
sensory/motor loss of the back or lower extremities. He indicated that, as evidenced by MRI scans,
appellant had longstanding degenerative disc disease at L5-S1 prior to suffering the May 29, 2015
employment injury. Dr. Haskell opined that the May 29, 2015 employment injury only
temporarily aggravated appellant’s preexisting condition and that she had no residuals of that
employment injury. He recommended that she undergo a lumbar laminectomy at L5-S1 to treat
her preexisting degenerative disc disease.7
In April 2018, OWCP declared a conflict in the medical opinion evidence between
Dr. Piryani and Dr. Haskell regarding whether appellant had disability for the period commencing
November 21, 2017 causally related to her accepted May 29, 2015 employment injury. It referred
appellant to Dr. Richard Karr, a Board-certified orthopedic surgeon, for an impartial medical
examination and opinion regarding this issue.
In an August 31, 2018 report, Dr. Karr discussed appellant’s factual and medical history,
and provided an extensive summary of the medical evidence in the case record. He detailed the
findings of his physical examination and noted that appellant exhibited nonorganic give-way
weakness upon bilateral big toe extension and right hip ﬂexion, as well as with respect to her right
quadriceps. Dr. Karr reported that there were no cutaneous signs of active disease involving
appellant’s thoracolumbar midline or sacroiliac areas, and that lumbar rhythm was difficult to
assess given the voluntary limited range of motion of her back. Straight leg raise testing was
negative to 90 degrees bilaterally. Dr. Karr indicated that the May 29, 2015 employment injury
caused a minor low back strain with no structural spinal or neurological damage. He maintained
that appellant’s preexisting degenerative lumbar spondylosis and chronic low back pain/sciatica
difﬁculties were not aggravated by the injury on May 29, 2015. Dr. Karr opined that the minor
May 29, 2015 injury resolved by no later than August 29, 2015 without continuing disability or
alteration in her working capability. He indicated that appellant’s seeking of treatment and
disability from work after that date was not related to the May 29, 2015 employment injury.
6
In a February 26, 2018 report, Dr. Piryani provided similar diagnoses and indicated that appellant could work with
restrictions, including no frequent bending/twisting and no lifting more than 20 pounds. Appellant also submitted the
findings of a November 6, 2017 magnetic resonance imaging (MRI) scan of the lumbar spine which contained an
impression of moderate degenerative disc disease at L5-S1 and mild degenerative disc disease at L3-4 and L4-5.
7
In a March 28, 2018 work capacity evaluation form (OWCP-5c), Dr. Haskell indicated that appellant could work
with restrictions due to her underlying degenerative disc condition.

3

Dr. Karr advised that appellant could return to full-time work under the restrictions that were
assigned to her in 2008 with respect to her accepted December 17, 2003 employment injury.
In a September 10, 2018 OWCP-5c form, Dr. Karr indicated that appellant had no work
restrictions attributable to her May 29, 2015 employment injury and could perform her usual work
with respect to that injury. He noted that appellant had been assigned a permanent restriction of
lifting no more than 25 pounds, but explicitly indicated the restriction was assigned due to her
December 17, 2003 employment injury.
By decision dated September 18, 2018, OWCP determined that appellant had not met her
burden of proof to establish her claim for disability for the period commencing November 21, 2017
causally related to her accepted May 29, 2015 employment injury. It found that the special weight
of the medical opinion evidence rested with the well-rationalized August 31, 2018 report of
Dr. Karr, the impartial medical specialist.
On September 27, 2018 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. Appellant submitted September 21
and 27, and November 21, 2018 reports from Dr. Piryani who diagnosed left lumbar radiculopathy
and several low back conditions, and indicated that appellant could work with restrictions
including no bending/twisting and no lifting more than 20 pounds.
During the hearing, held on January 30, 2019, appellant testified that the pain from her
May 29, 2015 back injury caused her to stop work in November 2017.
By decision dated March 8, 2019, OWCP’s hearing representative affirmed the
September 18, 2018 decision.8
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.9 In general the term disability under FECA means incapacity

8

The hearing representative inadvertently indicated that appellant claimed disability commencing November 25,
2017 rather than the actual date of November 21, 2017. The hearing representative recommended that the files for
appellant’s previous claims (OWCP File Nos. xxxxxx968 and xxxxxx469) be administratively combined with the file
for the present claim (OWCP File No. xxxxxx867), but the analysis of the March 8, 2019 decision was limited to
consideration of whether appellant met her burden of proof to establish disability for the period commencing
November 21, 2017 causally related to her May 29, 2015 employment injury.
9

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

4

because of injury in employment to earn the wages which the employee was receiving at the time
of such injury.10 This meaning, for brevity, is expressed as disability for work.11
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.12
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”13 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability for
the period commencing November 21, 2017 causally related to her accepted May 29, 2015
employment injury.
The Board finds that OWCP properly determined that there was a conflict in the medical
opinion evidence between Dr. Piryani, an attending physician, and Dr. Haskell, an OWCP referral
physician, regarding whether appellant had disability for the period commencing November 21,
2017 causally related to her May 29, 2015 employment injury. In order to resolve the conflict,
OWCP properly referred appellant, pursuant to section 8123(a) of FECA, to Dr. Karr for an
impartial medical examination and an opinion.15
The Board finds that the special weight of the medical opinion evidence is represented by
the thorough, well-rationalized opinion of Dr. Karr.16 The August 31 and September 10, 2018
10

See 20 C.F.R. § 10.5(f).

11

See S.W., supra note 9. See also A.M., Docket No. 09-1895 (issued April 23, 2010); Roberta L. Kaaumoana, 54
ECAB 150 (2002).
12

E.J., Docket No. 09-1481 (issued February 19, 2010).

13

5 U.S.C. § 8123(a).

14

D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).
15

See supra note 13.

16

See supra note 14.

5

reports of Dr. Karr establish that appellant did not have disability for the period commencing
November 21, 2017 causally related to her May 29, 2015 employment injury.
In his August 31, 2018 report, Dr. Karr noted that his physical examination revealed
instances of nonorganic give-way weakness in appellant’s lower extremities and voluntary limited
range of motion of her back. He indicated that the May 29, 2015 employment injury caused a
minor low back strain with no structural spinal or neurological damage. Dr. Karr opined that the
minor May 29, 2015 employment injury resolved by no later than August 29, 2015 without
continuing disability or alteration in working capability. He indicated that appellant’s seeking of
treatment and any disability from work after that point was not related to the May 29, 2015
employment injury, but was attributable to the December 17, 2003 employment injury, which is
not the subject of the current appeal. In a September 10, 2018 OWCP-5c form, Dr. Karr noted that
appellant had no work restrictions attributable to her May 29, 2015 employment injury and could
perform her usual work with respect to that injury.17
The Board finds that Dr. Karr’s opinion has reliability, probative value, and convincing
quality with respect to its conclusions regarding the relevant issue of ongoing disability. Dr. Karr
provided a thorough factual and medical history and accurately summarized the relevant medical
evidence. He provided medical rationale for his opinion by explaining that the nature of
appellant’s May 29, 2015 soft-tissue employment injury was such that it resolved by lateAugust 2017 and that she did not exhibit findings related to the injury upon examination.18
Appellant submitted September 21, 27, and November 21, 2018 reports from Dr. Piryani
who indicated that she could work with restrictions including no bending/twisting and no lifting
more than 20 pounds. However, these reports have no probative value regarding the underlying
issue of this case because Dr. Piryani did not provide an opinion that appellant required work
restrictions due to her May 29, 2015 employment injury. The Board has held that medical evidence
that does not offer an opinion regarding the cause of an employee’s condition or disability is of no
probative value on the issue of causal relationship.19 Therefore, these reports are insufficient to
establish appellant’s claim.20
As appellant has not submitted rationalized medical evidence establishing disability
commencing November 21, 2017 causally related her accepted May 29, 2015 employment injury,
she has not met her burden of proof.

17

Dr. Karr noted that appellant had been assigned a permanent restriction of lifting no more than 25 pounds, but he
explicitly indicated the restriction was assigned due to her December 17, 2003 injury. The Board notes that appellant’s
December 17, 2003 injury is not the subject of the present appeal.
18

See W.C., Docket No. 18-1386 (issued January 22, 2019); Melvina Jackson, 38 ECAB 443 (1987) (regarding the
importance, when assessing medical evidence, of such factors as a physician’s knowledge of the facts and medical
history, and the care of analysis manifested and the medical rationale expressed in support of the physician’s opinion).
19

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

20

Id.

6

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability for
the period November 21, 2017 causally related to her accepted May 29, 2015 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 8, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 1, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF THE NAVY, ARMED
FORCES RETIREMENT HOME, Gulfport, MS,
Employer
__________________________________________

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

Docket No. 07-2428
Issued: March 11, 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 September 25, 2007 appellant filed a timely appeal from the July 30, 2007 merit
decision of the Office of Workers’ Compensation Programs, which awarded scheduled
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of the case.
ISSUE
The issue is whether the Office’s schedule award for nine percent to the left arm was
proper.
FACTUAL HISTORY
On May 11, 2004 appellant, a 41-year-old physical therapy assistant, sustained an injury
in the performance of duty when she repositioned a veteran who was reclining in a wheelchair.
She was discharged from medical treatment on May 12, 2004 and released to resume regular
duty the following day. Appellant was discharged from physical therapy on June 25, 2004. The

Office accepted her claim for aggravation of cervical radiculopathy. Appellant filed a claim for a
schedule award.
On June 6, 2007 Dr. Raymond R. Fletcher, an orthopedic surgeon and Office referral
physician, examined appellant and evaluated her impairment. He found that she had sensory and
motor deficits of the C6 spinal nerve. Dr. Fletcher graded both deficits at 20 percent and
calculated that appellant had a two percent impairment of her left upper extremity due to C6
sensory deficits and a seven percent impairment of her left upper extremity due to C6 motor
deficits. He estimated the date of maximum medical improvement to be three months post
injury, or August 11, 2004.
On July 30, 2007 the Office issued a schedule award for a nine percent permanent
impairment of the left upper extremity. The Office awarded 28.08 weeks of compensation
beginning August 11, 2004, the date of maximum medical improvement.
On appeal, appellant asks how the Office determined the period of the schedule award
and why the period of the award did not begin on the date of her initial injury.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.2
The A.M.A., Guides explains that impairment should not be considered permanent until
the clinical findings indicate that the medical condition is static and well stabilized:
“It is understood that an individual’s condition is dynamic. Maximal medical
improvement refers to a date from which further recovery or deterioration is not
anticipated, although over time there may be some expected change. Once an
impairment has reached MMI, a permanent impairment rating may be
performed.”3
It is well established that the period of a schedule award commences on the date that the
employee reaches maximum medical improvement from the residuals of the accepted

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999). Effective February 1, 2001 the Office began using the A.M.A., Guides (5th ed.
2001).
3

A.M.A., Guides 19.

2

employment injury.4 The determination of whether maximum medical improvement has been
reached is based on the probative medical evidence of record.5
ANALYSIS
Dr. Fletcher, the orthopedic surgeon and Office referral physician, examined appellant
and found that she had sensory and motor deficits of the C6 spinal nerve. According to Table
16-13, page 489 of the A.M.A., Guides, injury to the C6 spinal nerve can cause an eight percent
maximum sensory impairment of the upper extremity. It can also cause a 35 percent maximum
motor impairment. Using the grading schemes set forth in Table 16-10, page 482, and Table 1611, page 484, Dr. Fletcher graded the severity of both deficits at 20 percent. Then, following the
procedure for determining upper extremity impairment, he multiplied the severity of the deficits
by the maximum impairment values of the C6 spinal nerve: 20 percent x 8 percent = 1.6 percent
impairment due to sensory deficit, which the Office rounded up to 2 percent; 20 percent x 35
percent = 7 percent impairment due to motor deficit. The sensory and motor impairments
combine for a nine percent total impairment of the left upper extremity.
Section 8107 of the Act provides 312 weeks of compensation for the total loss of an arm.6
Partial losses are compensated proportionally.7 A nine percent impairment of appellant’s left
upper extremity is therefore nine percent of 312 weeks, or 28.08 weeks of compensation, which
is what the Office awarded.
As for when the schedule award should begin, Dr. Fletcher estimated that she reached
maximum medical improvement three months post injury, or by August 11, 2004. It was his
opinion that residuals of the May 11, 2004 employment injury had stabilized after three months,
such that further recovery or deterioration was not anticipated. This was the earliest date that her
impairment could be considered permanent. The Office properly used August 11, 2004 as the
starting date of the schedule award.
The Board finds that appellant was properly granted 28.08 weeks of compensation under
section 8107 of the Act. Moving the start of the award to an earlier date would not gain her
additional weeks of compensation. The Office may pay no more because Congress, through the
Act, has limited the compensation payable for permanent impairment to a specified number of
weeks.8
The Board will affirm the Office’s July 30, 2007 schedule award. Dr. Fletcher’s
impairment rating was in accordance with the standards contained in the A.M.A., Guides. The
4

Peter C. Belkind, 56 ECAB 580 (2005).

5

Mark A. Holloway, 55 ECAB 321 (2004).

6

5 U.S.C. § 8107(c)(1).

7

Id. at § 8107(c)(19).

8

Linda R. Sherman, 56 ECAB 127 (2004). Appellant retains the right to file a claim for an increased schedule
award based on new exposure or on medical evidence noting a progression of her accepted condition which results
in greater impairment. See Tommy R. Martin, 56 ECAB 273 (2005).

3

Office properly determined the number of weeks of compensation to which appellant was
entitled and the date her schedule award should begin.
CONCLUSION
The Board finds that appellant has no more than nine percent impairment of the left arm.
ORDER
IT IS HEREBY ORDERED THAT the July 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 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
__________________________________________
K.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Oakland, CA, Employer
__________________________________________

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

Docket No. 18-0029
Issued: May 11, 2018

Case Submitted on the Record

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

JURISDICTION
On October 3, 2017 appellant filed a timely appeal from a September 12, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision of OWCP, dated August 26, 2015, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after issuance of the September 12, 2017 decision.
The Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether OWCP’s hearing representative properly denied appellant’s request
for an oral hearing as untimely filed.
FACTUAL HISTORY
On July 8, 2015 appellant, then a 56-year-old transportation security officer, filed an
occupational disease claim (Form CA-2) alleging right heel pain, which arose on or about
March 1, 2015. She explained that it hurt to stand after sitting, and the pain, which radiated up her
leg and pulled on her heel, wouldn’t subside until after two to three minutes of walking.
In a July 15, 2015 report, Dr. Adric H. Huynh, a Board-certified family practitioner, noted
that appellant complained of right heel pain that had been ongoing for several months, and that her
pain was due to her job at the employing establishment. He also noted a prior history of left heel
or Achilles surgical repair. Dr. Huynh examined appellant and obtained a right heel (calcaneus)
x-ray.3 He diagnosed right heel pain and right Achilles tendinitis.
On July 21, 2015 the employing establishment controverted appellant’s claim due to a lack
of sufficient medical evidence. It also noted that appellant previously filed a similar claim,
assigned OWCP File No. xxxxxx152, for injury to her left foot, and that she had been on modified
duty for that injury since 2011, with limited walking and standing.
In a July 24, 2015 development letter, OWCP requested additional factual and medical
evidence in support of appellant’s claim. It specifically noted her prior claim, File No. xxxxxx152,
accepted for left Achilles tendinitis, and the limited-duty assignment that appellant had been
performing since 2011. OWCP asked that she describe in detail the employment-related activities
that she believed caused or contributed to her current claimed condition. It afforded her 30 days
to submit the requested information. No response was received.
By decision dated August 26, 2015, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the employment event(s) occurred as alleged.
On an appeal request form dated July 18, 2017, and postmarked July 19, 2017, appellant
requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.
By decision dated September 12, 2017, OWCP’s hearing representative denied appellant’s
request. She noted that appellant’s request was postmarked July 19, 2017, which was more than
30 days after OWCP’s August 26, 2015 decision. The hearing representative, therefore, found that
the request was untimely. She also considered whether to grant a discretionary hearing, but denied
such a hearing because the issue could equally well be addressed by appellant requesting
reconsideration before OWCP and submitting new and relevant evidence not previously
considered.

3
A July 15, 2015 right calcaneus x-ray revealed no acute right calcaneal osseous abnormalities. The x-ray report
also noted that the site of pain corresponded to “posterior calcaneal enthesophyte, attachment of Achilles tendon.”

2

LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary ... is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his [or her] claim before a representative of the
Secretary.”4 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record.5 A claimant is entitled to a hearing or review of the written record as a matter of
right only if the request is filed within the requisite 30 days as determined by postmark or other
carrier’s date marking and before the claimant has requested reconsideration.6 Although there is
no right to a review of the written record or an oral hearing if not requested within the 30-day time
period, OWCP may within its discretionary powers grant or deny appellant’s request and must
exercise its discretion.7
ANALYSIS
Appellant requested an oral hearing on an appeal request form dated July 18, 2017 and
postmarked on July 19, 2017. As this was more than 30 days after the August 26, 2015 OWCP
decision, the hearing request was untimely filed. Section 8124(b)(1) is unequivocal on the time
limitation for requesting a hearing.8 Thus, the Board finds that appellant was not entitled to an
oral hearing as a matter of right.
OWCP’s hearing representative has the discretionary power to grant an oral hearing when
a claimant is not entitled to one as a matter of right. She exercised her discretion in the
September 12, 2017 decision, finding that appellant’s issue could equally-well be addressed by
requesting reconsideration before OWCP and submitting additional evidence. This basis for
denying appellant’s request for a hearing is a proper exercise of the hearing representative’s
discretionary authority.9 Accordingly, the Board finds that OWCP’s hearing representative
properly denied appellant’s request for an oral hearing as it was untimely filed.
CONCLUSION
The Board finds that OWCP’s hearing representative properly denied appellant’s request
for an oral hearing as untimely filed.

4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. §§ 10.616, 10.617.

6

Id. at § 10.616(a).

7

Delmont L. Thompson, 51 ECAB 155 (1999); Eddie Franklin, 51 ECAB 223 (1999).

8

William F. Osborne, 46 ECAB 198 (1994).

9

Mary B. Moss, 40 ECAB 640, 647 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the September 12, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 11, 2018
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE NAVY, MEDICAL
COMMAND, Fort Campbell, KY, Employer
__________________________________________

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

Docket No. 16-1267
Issued: February 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 6, 2016 appellant filed a timely appeal from a February 22, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of her
medical condition causally related to her March 17, 2006 employment injury.
FACTUAL HISTORY
On March 22, 2006 appellant, then a 40-year-old food service worker, filed a traumatic
injury claim (Form CA-1) alleging that on March 17, 2006 she broke two front teeth when she
slipped and fell, striking a gallon jar she was carrying. Evidence received with the claim
indicated that the teeth were not appellant’s natural teeth, but were part of a 14 unit bridge of
1

5 U.S.C. § 8101 et seq.

artificial teeth. The medical evidence also indicated that the bridge needed to be replaced as it
could not be repaired. Appellant was noted to have had a partial denture for her lower teeth, in
addition to lower jaw problems due to missing lower back teeth. These were not reported as
being related to the instant claim, though the dentist indicated that treatment was necessary for
the lower jaw. OWCP accepted the claim for broken upper front teeth and lower back teeth and
paid wage-loss compensation benefits, including authorization of the requested bridge
replacement.
In January 2015, appellant contacted OWCP by telephone. She indicated that due to her
husband’s military service her family had been transferred to Japan in 2006 and that they were
now stationed in Belgium. Appellant stated that she needed her claim reopened for a medical
appointment. She subsequently provided a new mailing address in writing.
On May 19, 2015 OWCP received appellant’s claim for a recurrence (Form CA-2a)
requesting follow-up care for appellant’s denture. Appellant indicated that every six months her
prosthetic denture needed adjustment and replacement of the rubber and that her prosthetic
dentures were getting loose. She indicated that she was unable to see her doctor every six
months as her family was stationed overseas.
In a January 20, 2015 letter, Dr. Joseph C. Steele, a prosthodontist, indicated that
appellant’s denture had been replaced due to an injury on March 17, 2006 and that annual
examinations were needed to maintain oral health along with proper fit of partial dentures. He
noted that his original treatment included: upper metal partial denture, porcelain fused to high
noble crown on teeth numbers 2, 6, 11, 13, and 14, and precision attachments for teeth numbers
2, 6, and 11.
In a June 2, 2015 letter, OWCP advised appellant of the evidence needed to establish her
claimed recurrence. It advised that for her to be entitled to additional medical treatment for her
work injury after being released from care, or not receiving care for a significant period of time,
she must provide evidence to support that her need for treatment was due to a worsening of the
accepted work-related conditions(s) without intervening cause. OWCP noted that the evidence
received was insufficient to establish her claim for recurrence because she was claiming that she
needed to follow up for adjustment and replacement of the rubber every six months. It requested
that she provide additional factual evidence along with copies of all medical records for the
work-related condition and a comprehensive, narrative medical report from her treating
physician which established the relationship between her current medical condition and the
original injury. Appellant was afforded 30 days to submit the requested evidence.
In a July 15, 2015 statement, appellant related that before she left for Japan in 2006, her
dentist, Dr. Steele, had told her that the replacement rubber for her dentures needed to be
replaced two to three times a year. She did nothing about it for the first year because she did not
note any problem. Appellant ultimately returned to the United States and saw Dr. Steele, who
changed the replacement rubber for her, but she ended up paying the bill on her own as her
workers’ compensation claim had been closed. She indicated that she had trouble getting the
rubber replaced as needed because she could not find any dentists to do it. Appellant saw
Dr. Steele again in 2011, but he recommended that, since she lived in Belgium, she should get
the work done there. She indicated that she was still trying to get her dentures repaired in
Belgium.
2

Medical treatment notes from 2015 indicated that some of the attachments in appellant’s
upper prosthesis and crowns were broken. The dentist performed the repair, but indicated that
this was not a good solution. The dentist recommended an extraction of teeth of upper jaw and a
fixed temporary bridge for six months, after which a fixed bridge would be in upper jaw.
Handwritten treatment records from 2015, mostly illegible, bills and a claim for medical
reimbursement were provided.
By decision dated July 28, 2015, OWCP denied the recurrence claim as the medical
evidence of record failed to establish that the requested treatment was due to the accepted injury.
On August 27, 2015 OWCP received appellant’s August 13, 2015 request for review of
the written record before OWCP’s Branch of Hearings and Review. Appellant provided
duplicative evidence already of record.
Medical evidence from 2006 indicated a bridge had been made in April 2004 with five
teeth supporting that bridge and that appellant’s upper jaw was missing multiple teeth. The
lower jaw was also missing back teeth, the lower right first molar and the lower left first molar
and second premolar. Appellant broke the upper front teeth off her bridge due to her accident at
work on March 17, 2006 and the dentists of record all indicated that her bridge had to be
replaced. The treatment plan indicated that teeth numbers 2, 6, 11, 13, 14, and 15 were involved.
By decision dated February 22, 2016, an OWCP hearing representative affirmed the
July 28, 2015 decision, finding that the medical evidence of record failed to explain how
appellant’s current need for dental work was due to the accepted March 17, 2006 work injury.
LEGAL PRECEDENT
The United States shall furnish to an employee who is injured while in the performance
of duty the services, appliances, and supplies prescribed or recommended by a qualified
physician that the Secretary of Labor considers likely to cure, give relief, reduce the degree or
the period of any disability, or aid in lessening the amount of any monthly compensation.2
Recurrence of medical condition means a documented need for further medical treatment
after release from treatment for the accepted condition or injury when there is no accompanying
work stoppage. Continuous treatment for the original condition or injury is not considered a
need for further medical treatment after release from treatment, nor is an examination without
treatment.3
If a claim for recurrence of medical condition is made more than 90 days after release
from medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet
her burden.4
2

5 U.S.C. § 8103(a).

3

20 C.F.R. § 10.5(y).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013); see also
J.M., Docket No. 09-2041 (issued May 6, 2010).

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An employee has the burden of proof to establish that he or she sustained a recurrence of
a medical condition that is causally related to his or her accepted employment injury. To meet
this burden, the employee must submit medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, supports that the condition is causally related
to and supports appellant’s conclusion with sound medical rationale.5
ANALYSIS
OWCP accepted that appellant’s March 17, 2006 employment injury resulted in broken
upper front teeth and lower back teeth. It authorized an upper bridge replacement due to two
broken artificial teeth on a bridge that could not be repaired. In 2015, appellant filed a claim for
recurrence of medical condition, which OWCP denied as the medical evidence of record failed to
establish that the requested treatments were due to the accepted injury.
Appellant requested medical care for replacement rubber for her dentures. The medical
records from 2015 also indicated that some attachments in appellant’s upper prosthesis and
crowns were broken.
In a January 20, 2015 letter, Dr. Steele indicated that appellant’s denture had been
replaced due to an injury on March 17, 2006 and that annual examinations were needed to
maintain oral health along with proper fit of partial dentures. Dr. Steele, however, did not
mention any of the above medical care claimed. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.6
The dental records provided from 2015 also fail to mention that the necessary treatment is
due to the accepted work injury of 2006. Moreover, there are no dental records from 2006 to
2015 to substantiate that the claimed recurrence of medical care is due to the work injury of
2006.
In order for a medical condition to be covered under FECA, medical evidence must
demonstrate that it is related to the accepted injury. Appellant’s physician must explain how the
work injury of 2006 caused or affected her current dental condition, based upon an accurate
factual and medical history, citing objective findings in support of the opinion. As noted, no
dentist has explained how appellant’s current need for dental work continued to be related to the
work injury of 2006. In short, appellant bears the burden of establishing a recurrence of medical
condition.
The Board finds that the evidence submitted by appellant lacks adequate rationale to
establish causal relationship between the alleged recurrence of her medical conditions and the
accepted employment injury. Appellant has the burden of submitting sufficient medical
evidence to document the need for further medical treatment. She did not submit such evidence
as required and failed to establish a need for continuing medical treatment.7
5

O.H., Docket No. 15-0778 (issued June 25, 2015), K.T., Docket No. 15-1758 (issued May 24, 2016).

6

Jaja K. Asaramo, 55 ECAB 200 (2004).

7

See P.Q., Docket No. 14-1905 (issued May 26, 2015); J.F., 58 ECAB 331 (2006).

4

On appeal, appellant contends that the medical evidence of record supports that her whole
bridge needed to be replaced to restore her mouth back to the way it was prior to the accident.
As noted, OWCP authorized the replacement of appellant’s upper bridge and all necessary work,
which appellant had done. The current issue, however, involves appellant’s claim for medical
treatment. As noted, the evidence submitted by appellant lacks adequate rationale to establish
causal relationship between the alleged recurrence of her medical conditions and the accepted
employment injury.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence
of her medical condition causally related to her March 17, 2006 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 22, 2016 is affirmed.
Issued: February 24, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 09-2126
Issued: May 5, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 18, 2009 appellant filed a timely appeal from a June 11, 2009 merit decision
of the Office of Workers’ Compensation Programs denying modification of a March 13, 2009
merit decision that denied her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of appellant’s claim.
ISSUE
The issue is whether appellant established that on January 27, 2009 she sustained an
injury in the performance of duty causally related to her employment.
FACTUAL HISTORY
On February 2, 2009 appellant, a 37-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) for a right elbow condition that she attributes to casing mail. She alleges that on

January 27, 2009 while lifting flats and casing mail her elbow “popped” after which she
experienced elbow pain.1
Appellant submitted reports bearing an illegible signature.2
By decision dated March 13, 2009, the Office denied the claim. While it found the
evidence of record established that the employment incident occurred as alleged, it denied the
claim because the evidence of record did not demonstrate the established employment incident
that caused a medically-diagnosed condition.
On March 22, 2009 appellant requested reconsideration.
Appellant submitted reports signed by a registered nurse and other reports bearing an
illegible signature.
By decision dated June 11, 2009, the Office denied modification of its March 13, 2009
decision, finding that the evidence of record did not demonstrate the established employment
incident that caused a medically-diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,4
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.5 As part of her burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.6 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.
1

Appellant submitted additional evidence on appeal. The Board may not consider evidence for the first time on
appeal, which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision.
2

The Board notes that the Office issued a Form CA-16. A properly executed Form CA-16 creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989). The CA-16 issued to
appellant did not authorize either examination or treatment and was therefore not properly executed.
3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
6

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
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.
ANALYSIS
The Office accepted that on January 27, 2009 as appellant lifted flats and cased mail her
elbow “popped.” Appellant’s burden is to establish that the accepted employment incident
caused a medically-diagnosed injury. As noted above, causal relationship is a medical issue that
can only be established through production of probative rationalized medical opinion evidence.
Appellant has not submitted sufficient medical opinion evidence to substantiate her claim.
Appellant submitted reports bearing illegible signatures, which lacked probative medical
value on the issue of causal relationship and are insufficient to satisfy her burden of proof
because their author cannot be identified as a “physician” for purposes of the Act.9
Appellant also submitted reports from a registered nurse. Because healthcare providers
such as nurses, acupuncturists, physicians’ assistants and physical therapists are not considered
“physicians” under the Act, their reports and opinions do not constitute competent medical
evidence.10 Accordingly, these reports do not constitute competent medical evidence and do not
satisfy appellant’s burden of proof.

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
9

5 U.S.C. § 8101(2). See R.M., 59 ECAB ___ (Docket No. 08-734, issued September 5, 2008); Merton J. Sills,
39 ECAB 572 (1988).
10

Id.; see also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40
ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).

3

An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.11 Further, the fact that a condition manifests itself or worsens
during a period of employment12 or that work activities produce symptoms revelatory of an
underlying condition13 does not raise an inference of causal relationship between a claimed
condition and employment factors.
The Board finds that appellant has not submitted sufficient medical opinion evidence to
establish that the accepted incident caused an injury in the performance of duty causally related
to her employment.
CONCLUSION
The Board finds that appellant has not established that on January 27, 2009 she sustained
an injury in the performance of duty causally related to her employment.

11

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

12

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

13

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155,157 (1960).

4

ORDER
IT IS HEREBY ORDERED THAT the June 11 and March 13, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 5, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Honaunau, HI,
Employer
__________________________________________

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

Docket No. 16-0235
Issued: April 6, 2016

Case Submitted on the Record

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

JURISDICTION
On November 20, 2015 appellant filed a timely application for review from a
September 10, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Because more than 180 days has elapsed from February 12, 2014, the date of the most
recent merit decision, to the filing of this appeal, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. Facts relevant to
this appeal are set forth below.
OWCP accepted appellant’s August 29, 2011 claim that, while working as a laborer and
mason, he sustained lumbar strain due to lifting rocks, cutting brush, and carrying logs in the
performance of duty. It terminated his benefits on May 20, 2013, finding that appellant had no
continuing residuals of his accepted lumbar strain condition. Appellant requested a hearing
before the Branch of Hearings and Review and on February 12, 2014 the hearing representative
affirmed the termination of compensation benefits. Thereafter appellant filed an appeal with the
Board. By decision dated September 18, 2014, the Board affirmed the termination of benefits.
On October 9, 2014 appellant, through counsel, requested reconsideration. With his
request, appellant submitted medical records from a registered nurse. He also submitted the
results of a diagnostic test of his right foot, dated October 20, 2010. Appellant also resubmitted a
report, dated November 10, 2011, from Dr. David Brown, a Board-certified radiologist.
In a hospital record dated April 18, 2013, Dr. Carl F. von Trampe, Board-certified in
emergency medicine, diagnosed probable gout of appellant’s right foot.
In a report of a surgical procedure dated September 5, 2014, Dr. Scot Murray, a Boardcertified gastroenterologist, described performing a colonoscopy on appellant with no
complications.
By decision dated October 21, 2014, OWCP denied appellant’s request for
reconsideration without reviewing the merits of his case. It found that he had not submitted any
relevant and pertinent evidence not previously considered by OWCP.
On December 16, 2014 appellant, through counsel, again requested reconsideration.
In a report dated October 31, 2014, Dr. Lynn W. Puana, an internist, noted that appellant
told her that the onset of his back pain was on September 15, 2010 due to an old injury. She
examined him and diagnosed lumbar facet syndrome and occasional radiculitis secondary to
lumbar spondylosis. Dr. Puana recommended potential injections, physical therapy, and
medication.
On October 20, 2013 Dr. Puana examined appellant and diagnosed lower back pain,
lumbosacral spondylosis, and thoracic or lumbosacral neuritis or radiculitis. She noted that he
had undergone a surgical procedure of bilateral lumbar median branch blocks for his back on
October 3, 2014, and that appellant’s pain level diminished from 5 out of 10 to 3 out of 10.
By decision dated March 18, 2015, OWCP denied appellant’s request for reconsideration
without reviewing the merits of his case.
2

A.A., Docket No. 14-1091 (issued September 18, 2014).

2

On August 21, 2015 appellant, through counsel, again requested reconsideration. With
his request, he resubmitted the October 31, 2014 report of Dr. Puana. Appellant also submitted
surgical reports from September 2 and October 3, 2014 from Dr. Puana, describing successful
surgical procedures of a right lumbar transforaminal epidural and lumbar median branch blocks,
respectively.
On May 13, 2015 Dr. Puana noted that appellant had pain in his bilateral lumbar back.
She diagnosed him with lumbar facet joint pain, lumbosacral spondylosis, thoracic or
lumbosacral neuritis or radiculitis, and low back pain.
In a surgical report dated June 18, 2015, Dr. Puana described performing a right lumbar
three level medial branch rhizotomy without complications.
In a follow-up report dated July 2, 2015, Dr. Puana noted that appellant felt 90 percent
relief after the surgical procedure. She diagnosed him with lumbar facet joint pain, lumbosacral
spondylosis, thoracic or lumbosacral neuritis or radiculitis, and low back pain.
By decision dated September 10, 2015, OWCP denied appellant’s request for
reconsideration without reviewing the merits of his case. It found that he had not submitted any
pertinent and relevant evidence not previously considered and that, while appellant had
submitted new medical evidence diagnosing him with numerous lumbar conditions, the medical
reports did not explain whether this condition was causally related to his original accepted
condition of lumbar sprain.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by 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.3 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.4
ANALYSIS
OWCP terminated appellant’s wage-loss and medical compensation by decision dated
July 10, 2013. The Board affirmed the termination on September 18, 2014. Thereafter, he
requested reconsideration several times from OWCP, most recently on August 21, 2015. By
decision dated September 10, 2015, OWCP denied appellant’s request for reconsideration
without reviewing the merits of his case.

3

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

4

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

3

The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of his claim.
In his August 21, 2015 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. Thus, 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)(3).
A claimant may be entitled to a merit review by submitting new and relevant evidence;
however, appellant did not do so in this case. The underlying issue is whether appellant met his
burden of proof to establish continuing residuals of his work-related injury.
While appellant submitted numerous medical reports, some of which were previously of
record, none of the medical reports submitted on reconsideration discuss the causal relationship
between his current symptoms and that of his work-related injury, which was found to have
resolved. After a termination decision is issued, the burden of proof shifts to appellant to
establish that any subsequent medical condition or disability is related to the earlier accepted
work injury.5 As appellant did not submit any evidence containing an explanation of the causal
relationship between his current symptoms and the accepted injury, he did not submit any
evidence relevant to the underlying issue of OWCP’s decision to terminate his wage-loss and
medical compensation. As such, the reports are insufficient to warrant reconsideration of his
claim.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the merits
of his claim pursuant to 5 U.S.C. § 8128(a).

5

See M.H., Docket No. 13-1315 (issued November 14, 2013).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 10, 2015 is affirmed.
Issued: April 6, 2016
Washington, DC

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

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

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

5


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

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

Docket No. 11-972
Issued: October 20, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 9, 2011 appellant filed a timely appeal from a November 19, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days elapsed from the most recent merit decision of October 8, 2009 to the filing of this appeal,
the Board lacks jurisdiction to review the merits of his claim pursuant to the Federal Employees’
Compensation Programs (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the whether OWCP properly refused to reopen appellant’s case for
reconsideration of her claim under 5 U.S.C. § 8128(a).

1

For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal
of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
Appellant, a 52-year-old mail clerk, filed an occupational disease claim for benefits on
November 15, 2008, alleging that she developed carpal tunnel syndrome in her right wrist due to
employment factors. OWCP accepted the claim for right carpal tunnel syndrome.
In a January 22, 2009 report, Dr. Rahul Vohra, Board-certified in physical medicine and
rehabilitation, stated that he had treated appellant for chronic neck pain since 2005. Appellant
had a mild right median neuropathy in the right wrist. She underwent a magnetic resonance
imaging (MRI) scan of her right shoulder on November 10, 2008 which noted a high-grade
partial distal rotator cuff tear versus severe focal tendinopathy. Dr. Vohra asserted that it was
possible appellant’s work as a clerk may have aggravated her right carpal tunnel syndrome or her
right rotator cuff tear due to the repetitive lifting required by her employment.
On March 2, 2009 appellant filed a claim for compensation for wage loss from
November 6, 2008 to March 20, 2009.
In a report dated April 2, 2009, Dr. Vohra stated that appellant had recently undergone
surgery to repair a torn right rotator cuff. He advised that she was required to do repetitive
movement with her right wrist as well as repetitive lifting which could have put her at a higher
risk to develop carpal tunnel syndrome and a torn rotator cuff.
By decision dated April 14, 2009, OWCP denied appellant’s claim for wage loss from
November 6, 2008 to March 20, 2009. It found the medical evidence she submitted was not
sufficient to establish disability due to her right shoulder and neck conditions, which OWCP had
not accepted under this claim.
On May 11, 2009 appellant requested reconsideration.
By decision dated October 8, 2009, OWCP denied modification of the April 14, 2009
decision.
Appellant underwent nerve conduction and electromyelogram
November 25, 2009. The tests were administered by Dr. Vohra.

testing

on

In a report dated February 23, 2010, Dr. John Neill, a Board-certified neurosurgeon,
stated that appellant related complaints of severe carpal tunnel syndrome, with significant pain in
both hands and cramps in her fingers. The pain occurred when appellant was sorting mail.
Dr. Neill advised that she had back pain and hip pain and noted that she underwent surgery on
her neck and left hip. He opined that appellant probably had carpal tunnel syndrome, although
he was not able to state with certainty the degree to which this was contributing to her symptoms.
Dr. Neill scheduled her for further testing and recommended that she undergo ameliorative
surgery in both hands.
In a March 3, 2010 report, Dr. Neill advised appellant that he would proceed with a
carpal tunnel decompression in the event she agreed to undergo the procedure. He noted that her
lab results had been normal.

2

On March 24, 2010 Dr. Neill performed a right carpal tunnel release procedure on
appellant.
In a treatment note dated April 22, 2010, Dr. Neill checked a box excusing appellant from
work from April 22 to May 13, 2010. He did not attribute the excused period to any workrelated disability.
On June 2, 2010 Dr. Neill performed a left carpal tunnel release procedure on appellant.
In an August 17, 2010 report, Dr. Neill stated that appellant did not have significant
problems with her right hand, although he noted some discomfort on the right posterior forearm.
Appellant had surgery on both wrists and could probably return to work without restrictions.
Dr. Neill advised that he wanted to see her one more time, in three months, before releasing her
to return to work. He recommended a course of physical therapy for both hands, which appeared
to have improved the condition of her right hand.
On October 5, 2010 appellant requested reconsideration. In a note accompanying her
request, she indicated that two additional OWCP claims, under case numbers xxxxxx962 and
xxxxxx963, had been combined with the present claim, case number xxxxxx615.
In a report dated October 19, 2010, Dr. Neill stated that appellant’s right hand was
improving and that she had been transferred to a job which entailed more stacking of mail.
Appellant had current complaints of pain in her fingers and on the dorsum of both hands.
Dr. Neill noted that she had pain on her right side which radiated above the elbow to the mid-arm
level; the pain involves the entire forearm and distal arm. He stated, however, that he was not
able to attribute appellant’s discomfort to carpal tunnel syndrome. Dr. Neill recommended
further diagnostic testing and advised her to return to her previous work level. Appellant also
submitted reports from physician’s assistants, nurse practitioners and physical therapists.
By decision dated November 19, 2010, OWCP denied appellant’s application for review
on the grounds that it did not raise any substantive legal questions or include new and relevant
evidence sufficient to require review of the prior decision. It stated that appellant had submitted
no new and relevant medical evidence.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by OWCP; or by submitting
relevant and pertinent evidence not previously considered by OWCP.2 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.3

2

20 C.F.R. § 10.606(b). See generally 5 U.S.C. § 8128(a).

3

Howard A. Williams, 45 ECAB 853 (1994).

3

ANALYSIS
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; nor has he advanced a relevant legal argument not previously
considered by OWCP. The evidence she submitted is not pertinent to the underlying issue in this
appeal: whether she has established disability due to her accepted right carpal tunnel syndrome
from November 6, 2008 to March 20, 2009. Appellant submitted several reports from Dr. Neill,
who treated her for complaints of severe bilateral carpal tunnel syndrome and performed carpal
tunnel release procedures on the right and left wrists in March and June 2010. None of the
reports from Dr. Neill, however, discussed disability attributable to the accepted right carpal
tunnel condition during the time period in question. He indicated in his August and
October 2010 reports that appellant continued to experience intermittent pain and discomfort in
her right wrist and in both hands. Dr. Neill recommended that she change jobs. The Board has
held that the submission of evidence which does not address the particular issue involved in the
case does not constitute a basis for reopening the claim.4
Appellant also submitted other documents to the record in support of her request for
reconsideration. The reports from physician’s assistants, nurse practitioners and physical
therapists do not constitute medical evidence under section 8101(2). Appellant has not submitted
any new medical evidence which addresses the relevant issue of whether she sustained any wage
loss from disability from November 6, 2008 to March 20, 2009 causally related to the accepted
condition of right carpal tunnel syndrome. The other medical reports appellant submitted were
previously considered by OWCP in the decisions denying her claim. This evidence is therefore
cumulative and duplicative.5 Appellant’s reconsideration request failed to show that OWCP
erroneously applied or interpreted a point of law nor did it advance a point of law or fact not
previously considered by OWCP. OWCP did not abuse its discretion in refusing to reopen
appellant’s claim for a review on the merits.6
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for
reconsideration on the merits of her claim under 5 U.S.C. § 8128(a).

4

See David J. McDonald, 50 ECAB 185 (1998).

5

See Patricia G. Aiken, 57 ECAB 441 (2006).

6

The Board notes that OWCP erroneously stated in its November 19, 2010 nonmerit decision that appellant did
not submit any medical evidence with her reconsideration request. Any error is harmless, however, as none of the
medical evidence she submitted addressed the relevant issue of whether she sustained any wage loss from disability
from November 6, 2008 to March 20, 2009 causally related to the accepted condition of right carpal tunnel
syndrome.

4

ORDER
IT IS HEREBY ORDERED THAT the November 19, 2010 Office of Workers’
Compensation Programs’ decision is affirmed.
Issued: October 20, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5