United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Midland, MI, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 17-0935 &
17-0936
Issued: June 12, 2018

Case Submitted on the Record

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

On March 27, 2017 appellant, through counsel, filed a timely application for review of an
October 28, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP) in
OWCP File No. xxxxxx497. The Board docketed the appeal as No. 17-0935. Also on March 27,
2017 appellant, through counsel, filed a timely application for review of a December 14, 2016
decision issued in OWCP File No. xxxxxx168. The Board docketed this appeal as No. 17-0936.
The Board has duly considered this matter and finds that these cases are not in posture for
decision.
The Board finds that the aforementioned case files should be administratively combined.
In its October 28, 2016 decision in OWCP File No. xxxxxx497, OWCP indicated that it was
denying a December 2, 2014 occupational disease claim wherein appellant indicated that she
sustained an injury or medical condition on March 10, 2011 due to factors of her federal
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.

employment. In its December 14, 2016 decision issued under OWCP File No. xxxxxx168,
OWCP indicated that it was denying appellant’s December 2, 2014 occupational disease claim
for an injury sustained on April 24, 2012 due to factors of her federal employment.
On December 2, 2014 appellant filed a notice of recurrence (Form CA-2A), alleging a
recurrence of her March 10, 2011 injury commencing April 24, 2012. Appellant alleged that the
employing establishment refused to provide work consistent with her medical restrictions and
that, as a result, she stopped work on April 24, 2012 due to an increase in her symptoms. This
notice of recurrence appears to serve as the basis for both the October 28 and December 14, 2016
decisions. The Board notes that the record in both cases is different, with the record in OWCP
File No. xxxxxx168 containing substantially more evidence than the record in OWCP File No.
xxxxxx497. The alleged recurrence of disability commencing April 24, 2012 requires a review
of evidence not only from the present claim files, OWCP File Nos. xxxxxx497 and xxxxxx168,
but also appellant’s prior claim in File No. xxxxxx227 (relating to prior accepted injuries of
September 25, 2008 and March 10, 2011). The Board notes that the records in all three case files
are relevant to whether appellant has sustained a recurrence of disability.
The case must, therefore, be remanded to OWCP to combine OWCP File Nos.
xxxxxx497 and xxxxxx168 with xxxxxx227. OWCP should then reevaluate the evidence,
conduct any other development as deemed necessary, and then issue an appropriate de novo
decision.
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 14 and October 28, 2016 are set aside and the cases are
remanded for further proceedings consistent with this opinion.2
Issued: June 12, 2018
Washington, DC

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

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

2
Colleen Duffy Kiko, Judge, participated in the preparation of this decision, but was no longer a member of the
Board effective December 11, 2017.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL LAW ENFORCEMENT TRAINING
CENTER, Glynco, GA, Employer
__________________________________________

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

Docket No. 11-623
Issued: October 7, 2011

Case Submitted on the Record

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

JURISDICTION
On January 11, 2011 appellant filed a timely appeal from a December 21, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury on July 29, 2010 causally related to factors of his federal employment.
FACTUAL HISTORY
On August 10, 2010 appellant, then a 46-year-old law enforcement firearms specialist,
filed an occupational disease claim alleging that he developed a bacterial infection as a result of
his employment with the Department of Homeland Security located in Glynco, Georgia. He
1

5 U.S.C. § 8101 et seq.

explained that he had contact with bacteria in one or more areas at the work site, during physical
conditioning, while using the locker room, or during physical contact with personnel or
equipment during firearms training. Appellant noted that he first became aware of his condition
on July 29, 2010. In a supplemental statement dated August 17, 2010, he explained that during
the period July 21 to 28, 2010 he noticed a rash near an abrasion on his elbow; and on July 27,
2010 he noticed what appeared to be insect bites on his left elbow, left thigh and left knee.
In support of his claim, appellant submitted a form report from AppleCare Medical dated
July 29, 2010, with an illegible signature, co-signed by a nurse, which provided findings of bites
on left arm and leg, three inch circle of abscess and cellulitis on left thigh, and noted that
appellant had several “areas” that are very tender. A box was checked indicating that the injury
was not work related.
A medical report and discharge documents dated July 31, 2010 from the Emergency
Department of the Southern Georgia Health System, signed by Dr. Brian J. Kornblatt, Boardcertified in emergency medicine, provided diagnoses of left leg abscess and cellulitis of the leg
and left upper arm/forearm. Blood cultures were taken which tested positive for methicillin
resistant staphlacosus aureous. The history of injury stated that appellant reported small insect
bites seven days ago on the left leg and left forearm, which started to swell and became irritated
three days ago.
Notes from an office visit to Summit Dermatology and Laser Center, PC, signed by
Dr. Lawrence G. Blasik, Jr., a dermatologist, on August 2 and 9, 2010, noted a history of injury
that appellant presented with an infection which began about a week prior. Appellant’s physical
examination revealed abscess of left thigh, left knee and left arm.
On October 10, 2010 OWCP advised appellant that further evidence was required to
establish his claim, including a physician’s opinion supported by a medical explanation as to
whether his exposure resulted in the specific infection that has been diagnosed and/or how the
reported work incident caused or aggravated the claimed injury.
On September 30, 2010 appellant submitted a handwritten note, with an illegible
signature, dated July 31, 2010 from AppleCare Medical. This note characterized appellant’s
wound as a bite, and stated that appellant “works at FLETC (Federal Law Enforcement Training
Center)” and was “exposed to staphlacocus bacteria frequently.”
Appellant also submitted a work excuse note dated August 4, 2010 from Dr. Blasik which
indicated that he was not to work August 2 through 9, 2010.
In a decision dated December 21, 2010, OWCP accepted that the alleged events occurred
as alleged but denied appellant’s claim on the grounds that appellant failed to establish that he
was exposed to the bacteria at work which caused his diagnosed conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden to establish the essential
elements of his claim including the fact that the individual is an employee of the United States
2

5 U.S.C. §§ 8101-8193.

2

within the meaning of FECA, that the claim was timely filed, that an injury was sustained in the
performance of duty as alleged and that any disability or medical condition for which
compensation is claimed is causally related to the employment injury.3
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.4
Causal relationship is a medical 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.5
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an employment-related injury.
OWCP accepted that appellant was exposed to bacteria at his work site. Appellant did
not meet his burden of proof because he did not establish that any of his diagnosed conditions
resulted from his work exposure to bacteria.
The July 29, 2010 medical report from AppleCare Medical stated findings of bug bites,
abscess and cellulitis, but indicated by check mark that these findings were not work related. It
is noted that appellant has not alleged that he sustained bug bites at work.
The July 31, 2010 discharge report from Dr. Kornblatt noted a history of insect bites, and
diagnosed staph, abscess and cellulits, but did not offer any medical explanation as to how
appellant’s exposure to bacteria at work would have caused either the staph, abcess or cellulitis.
Again the history of injury noted that swelling occurred after bug bites, but appellant has not
alleged that he sustained insect bites at work.
The handwritten July 31, 2010 medical note from Applecare Medical stated that appellant
worked at the Federal Law Enforcement Training Center (FLETC), and was exposed to
“staphlacosus” frequently. The Board notes that he has not alleged or established that he was
exposed bacteria at work. This note provided diagnoses of abcess and cellulitis, but it did not
3

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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provide a medical opinion explaining how appellant’s conditions were related to his work
factors. This report did not provide the necessary rationalized medical opinion explaining how
his exposure to bacteria at work caused appellant’s diagnosed conditions.
Appellant submitted reports from Dr. Blasik which noted findings on physical
examination and which stated appellant’s work restrictions, but which did not link his diagnosed
staph infection, abscess and cellulitis to his work conditions.
The Board finds that appellant failed to submit the necessary medical evidence to
establish that his diagnosed conditions were causally related to factors of his federal
employment.
Appellant may submit additional evidence, together with a written request for
reconsideration, to the OWCP within one year of the Board’s merit decision, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an injury in the performance of duty causally related to factors of his federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 21, 2010 is affirmed.
Issued: October 7, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.M., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 11-108
Issued: August 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 19, 2010 appellant filed a timely appeal from August 18 and October 6, 2010
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant sustained a ratable hearing impairment entitling
him to a schedule award; and (2) whether OWCP properly denied appellant’s request for
reconsideration under 5 U.S.C. § 8128(a) without further merit review.
FACTUAL HISTORY
On October 20, 2007 appellant, then a 65-year-old retired rigger, filed an occupational
disease claim alleging hearing loss due to 17 years of exposure to noise generated by diesel
1

5 U.S.C. § 8101 et seq.

cranes.2 He became aware of his condition and its relationship to his employment on
July 22, 2007. Appellant retired effective April 29, 1989.3
In an undated statement, appellant detailed that he was in the military reserve from 1960
to 1968 and worked as a rigger in private industry from 1964 to 1972, but was minimally
exposed to noise. After he was hired by the employing establishment, his hearing diminished
starting around 1982. Appellant denied having any preexisting condition. A supervisor’s
statement dated December 12, 2007 and various employing establishment records confirmed that
his former job involved the operation and maintenance of cranes, hoists, forklifts and other motor
vehicles.4
Appellant provided an August 7, 2007 report, from Dr. Charles H. Dennis, a Boardcertified otolaryngologist, who related that appellant experienced gradual hearing loss over a 20year period as well as dizziness and tinnitus. He previously worked as a rigger for 18 years and
was last exposed to loud noise in 1989. Dr. Dennis did not observe any physical abnormalities
on examination while an audiogram conducted for him on August 7, 2007 exhibited the
following decibel (dBA) losses at 500, 1,000, 2,000 and 3,000 Hertz (Hz): 35, 30, 35 and 35 for
the right ear and 40, 35, 35 and 35 for the left ear. Applying the standard provided by the
American Medical Association, Guides to the Evaluation of Permanent Impairment5 (hereinafter
A.M.A., Guides) to the audiometric data, an audiologist calculated a binaural hearing impairment
of 14 percent and then added five percent on account of tinnitus for a total of 19 percent.6
Dr. Dennis diagnosed noise-induced sensorineural hearing loss and tinnitus and recommended
hearing aids.
OWCP referred appellant for a second opinion examination to Dr. Lorenz F. Lassen, an
otolaryngologist. In a May 27, 2008 report, Dr. Lassen noted that appellant operated a crane
from 1972 to 1989 and was exposed to industrial noise generated by diesel engines, grinders,
turbines, sirens, air horns and power equipment. He also mentioned that he did not receive
appellant’s prior audiogram. Physical examination results were normal while a May 27, 2008
audiogram showed dBA losses of 20, 15, 25 and 25 for the right ear and 25, 20, 25 and 25 for the
left ear, respectively, at 500, 1,000, 2,000 and 3,000 Hz. Dr. Lassen’s supported that appellant’s
hearing loss was “more than what might be expected from presbycusis” and caused by workplace
noise, but he also checked a form box “not due” as to whether his hearing loss was work related.
2

Appellant previously received a schedule award for 80-percent lung impairment. Also, the record contains
medical documents pertaining to his knee. Neither condition is presently before the Board.
3

This information was subsequently incorporated into April 29 and July 30, 2008 statements of accepted facts. In
addition, the April 29, 2008 version noted that appellant worked as a rigger for the employing establishment
beginning February 1975 and retired as a result of a separate, nonhearing-related condition.
4

A December 14, 2007 report from an employing establishment official added that while appellant was routinely
exposed to hazardous noise on the job, the employing establishment provided and mandated the use of hearing
protection in areas where noise exceeded 84 decibels (dBA).
5

A.M.A., Guides (6th ed. 2008).

6

Appellant later submitted a September 22, 2008 hearing impairment computation worksheet, which duplicated
these findings.

2

He concluded that appellant’s condition was likely due to presbycusis and not occupational noise
exposure, taking into account the absence of a noise-notch pattern between 4,000 and 6,000 Hz.
Dr. Lassen did not recommend hearing aids.
In an August 13, 2008 report, OWCP’s medical adviser opined that appellant had
binaural sensorineural hearing loss. He applied the standard provided by the A.M.A., Guides to
the May 27, 2008 audiogram, and calculated that appellant had no ratable hearing loss for
schedule award purposes. OWCP’s medical adviser advised against authorization of hearing
aids. He listed May 27, 2008 as the date of maximum medical improvement. OWCP’s medical
adviser did not address the August 7, 2007 audiogram. In a September 10, 2008 memorandum,
OWCP stated that Dr. Lassen’s May 27, 2008 second opinion examination report made no
distinction on the issue of causal relationship. The claims examiner advised that the claim would
be accepted for bilateral sensorineural hearing loss was work related.
By decision dated September 10, 2008, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss, but denied his claim for a schedule award and medical benefits on the
grounds that the condition was not ratable.
Appellant requested a telephonic hearing, which was held on March 10, 2009. At the
hearing, he testified that his condition continued to worsen. Appellant’s representative also
pointed out that the August 7, 2007 audiometric data showed significant hearing loss and that
three physicians recommended hearing aids.
On May 21, 2009 OWCP’s hearing representative affirmed the September 10, 2008
decision. On August 18, 2010 OWCP reissued the May 21, 2009 decision to preserve
appellant’s appeal rights.7
Appellant requested reconsideration on August 25, 2010. In a June 10, 2010 report,
Dr. Dennis attended to complaints of left inner ear pain, right pterygoid tenderness and bilateral
tinnitus. The otolaryngologist noted an ongoing, 23-year history of binaural hearing loss and that
appellant was last exposed to hazardous noise in 1989. He did not observe any physical
abnormalities on examination while a June 9, 2010 audiogram showed dBA losses of 45, 60, 65
and 70 for the right ear and 50, 60, 55 and 60 for the left ear, respectively, at 500, 1,000, 2,000
and 3,000 Hz. Dr. Dennis diagnosed mild to severe bilateral sensorineural hearing loss and
tinnitus due to occupational noise exposure and recommended hearing aids.
By decision dated October 6, 2010, OWCP denied appellant’s request for reconsideration
on the basis that he did not present new evidence or legal contentions warranting further merit
review.

7

The original May 21, 2009 decision did not have complete appeal rights.

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LEGAL PRECEDENT -- ISSUE 1
FECA’s schedule award provision and its implementing regulations8 set forth the number
of weeks of compensation payable to employees sustaining permanent impairment from loss or
loss of use of scheduled members or functions of the body. An employee is entitled to a
maximum award of 52 weeks of compensation for complete loss of hearing of one ear and 200
weeks of compensation for complete loss of hearing of both ears.9 However, FECA does not
specify the manner in which the percentage of loss shall be determined. 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.10
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the “fence” of 25 dBA is deducted because, as the
A.M.A., Guides points out, losses below 25 dBA result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. Binaural loss is determined by first
calculating the loss in each ear using the formula for monaural loss: the lesser loss is multiplied
by five, then added to the greater loss, and the total is divided by six to arrive at the amount of
the binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.11
ANALYSIS -- ISSUE 1
In support of his occupational disease claim, appellant provided an August 7, 2007 report
from Dr. Dennis, who detailed the history of injury, diagnosed bilateral sensorineural hearing
loss and tinnitus related to occupational noise exposure and recommended hearing aids. The
report included an August 7, 2007 audiogram that exhibited the following dBA losses at 500;
1,000; 2,000 and 3,000 Hz: 35, 30, 35 and 35 for the right ear and 40, 35, 35 and 35 for the left
ear. OWCP subsequently referred appellant for a second opinion examination to Dr. Lassen,
who obtained a May 27, 2008 audiogram that showed losses of 20, 15, 25 and 25 dBA for the
right ear and 25, 20, 25 and 25 dBA for the left ear, respectively, at 500, 1,000, 2,000 and
3,000 Hz. OWCP thereafter accepted appellant’s claim for bilateral sensorineural hearing loss.
However, after applying the standard provided by the A.M.A., Guides to the May 27, 2008
audiometric results, it found that his condition was not ratable and denied his claim for schedule
award and medical benefits.

8

20 C.F.R. § 10.404.

9

5 U.S.C. § 8107(c)(13).

10

20 C.F.R. § 10.404. See also Mark A. Holloway, 55 ECAB 321, 325 (2004).

11

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

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The Board finds that the case is not in posture for decision. When several audiograms
are in the case record, made approximately within two years of each other, and submitted by
more than one specialist, OWCP should evaluate the audiograms to determine the percentage of
hearing loss shown by each. In making a determination of this percentage for a schedule award,
OWCP should give an explanation as to why it selected a particular audiogram over the others.
It should not arbitrarily select one audiogram without explanation, even though the one selected
is the most recent, in those instances where other specialists have submitted current
audiograms.12
In this case, OWCP failed to provide rationale for choosing the May 27, 2008 audiogram
over the earlier August 7, 2007 audiogram for computing appellant’s hearing impairment. On
remand, OWCP shall evaluate the audiograms of record that were obtained by a physician to
determine the percentage of hearing loss shown by each. If OWCP determines that there is a
conflict regarding the percentage of hearing loss, it shall resolve this conflict by presenting
medical rationale for selecting one report as more reliable than the other or, in the alternative,
arranging another medical evaluation of appellant’s condition.13 After conducting further
development as it may find necessary, OWCP shall render an appropriate decision.14
CONCLUSION
The Board finds that the case is not in posture for decision.15

12

John C. Messick, 25 ECAB 333 (1974). See Joshua A. Holmes, 42 ECAB 231, 236 (1990).

13

See id.

14

The Board notes that appellant submitted new evidence on appeal. The Board lacks jurisdiction to review
evidence for the first time on appeal. 20 C.F.R. § 501.2(c).
15

In light of the Board’s disposition of the first issue, the second issue is moot.

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ORDER
IT IS HEREBY ORDERED THAT the October 6, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: August 9, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.C., claiming as widow of G.C., Appellant
and
DEPARTMENT OF THE AIR FORCE,
RAMSTEIN AIR FORCE BASE, Germany,
Employer
__________________________________________

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

Docket No. 13-800
Issued: August 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 15, 2013 appellant filed a timely appeal from a January 8, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation under 20
C.F.R. § 10.414 for not submitting a properly executed CA-12 form.
FACTUAL HISTORY
OWCP accepted that the employee’s death on April 2, 1964 was causally related to his
federal employment. Appellant began receiving death benefit compensation and periodically
1

5 U.S.C. § 8101 et seq.

was asked to submit a Form CA-12 application for continuance of compensation benefits. The
address that she reported was a bank address with a post office box in Basel, Switzerland.
In a letter dated July 15, 2009, appellant stated that her bank notified her that her monthly
compensation payments had been interrupted and she had not received information from OWCP.
The letterhead listed a residence address in Paris, France, and she stated that her bank address,
account and permanent address in Paris had not changed.
The record indicates that OWCP continued to send CA-12 forms to the Basel,
Switzerland address. An August 6, 2009 Form CA-12 reported a Paris address, and a
December 4, 2010 Form CA-12 reported another address in France. Appellant completed a
November 11, 2011 CA-12 form and reported the Basel, Switzerland address.
By letter dated October 16, 2012, OWCP requested that appellant complete the enclosed
Form CA-12 within 30 days. It advised her that her benefits would be suspended if she did not
complete the CA-12 form. In a letter dated December 6, 2012, OWCP advised appellant that it
had not received a completed CA-12 form.
In a decision dated January 8, 2013, OWCP suspended compensation on the grounds that
appellant had not submitted a CA-12 form or written equivalent. It found that when she
completed the CA-12 form, benefits would be retroactively restored.
LEGAL PRECEDENT
According to 20 C.F.R. § 10.414:
“If a beneficiary is receiving compensation benefits on account of an employee’s
death, OWCP will ask him or her to complete a report once each year on Form
CA-12. The report requires the beneficiary to note changes in marital status and
dependents. If the beneficiary fails to submit the form (or written equivalent)
within 30 days of the date of request, OWCP shall suspend compensation until the
requested form or equivalent written statement is received. The suspension will
include compensation payable for or on behalf of another person (for example,
compensation payable to a widow on behalf of a child). When the form or
statement is received, compensation will be reinstated at the appropriate rate
retroactive to the date of suspension, provided the beneficiary is entitled to such
compensation.”
ANALYSIS
The record reflects that OWCP sent a letter dated October 16, 2012 to the last known
address of appellant in Basel, Switzerland requesting completion of the CA-12 form within 30
days. While there is some confusion in the record as to her residence, OWCP had been using the
Basel, Switzerland address as she had reported in her last Form CA-12 dated
November 11, 2011. The Board has held that OWCP may properly use the last known address

2

for correspondence.2 In the absence of evidence to the contrary, a letter properly addressed and
mailed in the due course of business is presumed to have arrived at the mailing address in due
course.3
The Board finds that OWCP properly mailed the October 16, 2012 letter to the last
known mailing address. OWCP advised appellant that her compensation would be suspended if
a properly completed form was not received. A second letter dated December 6, 2012 noted that
a response was not received and that failure to complete the form could result in interruption of
benefits.
OWCP did not receive a CA-12 form or written equivalent. Appellant’s compensation
was suspended by decision dated January 8, 2013. The implementing regulations at 20 C.F.R.
§ 10.414 provides that, if the CA-12 or written equivalent is not timely submitted, OWCP will
suspend compensation until the requested form or equivalent is received. Based on the evidence
of record, the Board finds that OWCP properly suspended compensation in this case.
On appeal, appellant submitted additional evidence. The Board cannot consider evidence
that was not before OWCP at the time of the January 8, 2013 decision on appeal.4 Once OWCP
receives a properly completed CA-12 or written equivalent, her compensation would be
reinstated retroactive to the date of suspension. Based on the evidence before the Board, OWCP
properly suspended her benefits in this case. 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 OWCP properly suspended appellant’s entitlement to compensation
pursuant to 20 C.F.R. § 10.414.

2

See Claudia J. Whitten, 52 ECAB 483 (2001) (notice of hearing was properly mailed to claimant’s last known
address); see also G.P., Docket No. 12-907 (issued October 15, 2012). OWCP procedures specifically state that an
OWCP decision shall be mailed to the employee’s last known address. 20 C.F.R. § 10.127.
3

Jeffrey M. Sagrecy, 55 ECAB 724 (2004).

4

20 C.F.R. § 501.2(c)(1).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 8, 2013 is affirmed.
Issued: August 22, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4


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

)
)
)
)
)
)
)
)

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

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

Case Submitted on the Record

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

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

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

5 U.S.C. § 8101 et seq.

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

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

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

2

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

3

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

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

6

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

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

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
9

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

10

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

5

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

11

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

12

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

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

14

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

Id.

16

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

6

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

17

Supra note 7.

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
T.B., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Chicago, IL, Employer
)
___________________________________________ )

Docket No. 10-767
Issued: November 15, 2010

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

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 19, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated August 7, 2009, denying her request for
further merit review of her claim. Because more than 180 days elapsed between the most recent
merit decision of June 12, 2009 to the filing of this appeal, the Board lacks jurisdiction to review
the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 27, 2009 appellant, then a 42-year-old mail clerk, filed an occupational
disease claim alleging that she sustained bilateral ganglion cysts in the performance of duty. She
became aware of the disease or illness on February 14, 2007. Appellant stopped work on
April 6, 2002.

In a March 5, 2009 statement, appellant indicated that her injury began on December 14,
2007 when she was instructed to attend an impartial medical examination regarding another
claim. She alleged that the physician performed various tests on her hands and wrists and that,
later, she experienced pain and was diagnosed with bilateral ganglion cysts.
In a letter dated March 11, 2009, Sheila Spane, a health and resources management
specialist, controverted the claim. She stated that appellant had a prior claim under File
No. xxxxxx279. She noted that appellant retired on disability effective April 21, 2008.
By letter dated March 23, 2009, the Office informed appellant of the evidence needed to
support his claim and requested that he submit additional evidence within 30 days.
In a May 13, 2008 report, Dr. Perry Rudich, a Board-certified diagnostic radiologist,
diagnosed bilateral wrist ganglion cysts. In a June 26, 2008 ultrasound examination, he
diagnosed mild left median nerve entrapment and probable mild right median nerve entrapment.
In an April 7, 2009 report, Dr. Samuel J. Chmell, a Board-certified orthopedic surgeon,
noted treating appellant since August 1, 1995. He advised that she was diagnosed with multiple
tendinitis/enthesopaty, carpal tunnel syndrome and wrist sprain. Dr. Chmell advised that these
conditions were accepted by the Office and appellant continued to experience hand and wrist
pain. He related that, on December 14, 2007, appellant was examined by an Office physician
who painfully manipulated and forced both wrists into positions that they had not been in for
many years. Dr. Chmell opined that because her wrists were forced into these positions,
additional trauma was sustained and ganglion cysts ensued.
In a decision dated June 12, 2009, the Office denied appellant’s claim. It found that the
injury did not occur in the performance of duty. It found that none of the medical evidence
established the cause of the bilateral ganglion cysts to be the December 14, 2007 examination.1
On June 25, 2009 appellant requested reconsideration. She alleged that during her
December 14, 2007 impartial medical examination, the x-ray technician performed a series of
x-rays on both hands. Appellant alleged that her wrists were painfully forced into awkward
positions. Thereafter, she experienced burning sensations, numbness and tingling and developed
a protruding lump on each of her hands and wrists. Appellant was diagnosed with dorsal
ganglion cysts of the right and left wrists and enclosed pictures of hand positions during the
examination.2
By decision dated August 7, 2009, the Office denied appellant’s request for
reconsideration without a review of the merits, finding that her request was insufficient to
warrant further merit review.

1

The Office indicated that appellant had a separate claim under No. xxxxxx279. Matters pertaining to claim
number xxxxxx279 are not before the Board on the present appeal.
2

Appellant stated that she was submitting a May 13, 2008 results of x-ray examination with her request. No
May 13, 2008 report accompanied the reconsideration request.

2

LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,3 the Office may
reopen a case for review on the merits in accordance with the guidelines set forth in section
10.606(b)(2) of the implementing federal regulations, which provides that a claimant may obtain
review of the merits if the written application for reconsideration, including all supporting
documents, sets forth arguments and contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.5
ANALYSIS
Appellant disagreed with the Office’s June 12, 2009 decision, which denied her claim for
ganglion cysts. She requested reconsideration on June 25, 2009. The underlying issue on
reconsideration was medical in nature, whether appellant submitted sufficient medical evidence
to establish that her ganglion cysts was sustained during her medical evaluation of
December 14, 2007. The Board finds that she did not provide any relevant or pertinent new
evidence warranting further merit review.
On reconsideration, appellant argued that her ganglion cysts were caused by the awkward
positions in which her hands and wrists were placed by an x-ray technician during an impartial
medical examination on December 14, 2007. Her contentions are not relevant to the issue of her
claim as it is medical in nature and must be established by probative medical evidence.6
Appellant’s assertions also do not show that the Office erroneously applied or interpreted a
specific point of law and they do not advance a relevant legal argument not previously
considered by the Office.

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

5

Id. at § 10.608(b).

6

Robert P. Mitchell, 52 ECAB 116 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Alan G.
Williams, 52 ECAB 180 (2000).

3

Appellant also submitted photographs of the positions in which her hands were placed
during the examination. This evidence is not relevant to the issue of her claim for an injury in
the performance of duty, as this underlying issue is medical in nature. The submission of
evidence that is not relevant to the particular issue involved does not constitute a basis for
reopening a case.7
Consequently, the evidence and argument submitted by appellant on reconsideration does
not satisfy any of the three regulatory criteria, noted above, for reopening a claim for merit
review.
On appeal appellant reiterated her disagreement with the Office’s denial of her claim.
The Board notes that it only has jurisdiction to consider whether the Office properly denied
further merit review of the claim. To the extent that appellant is arguing that her ganglion cysts
arose as a consequential condition of her multiple tendinitis condition, that is not an issue in the
present appeal.8
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

7

Id.

8

This decision of the Board does not preclude appellant from pursuing matters pertaining to other claims not
presently before the Board. The Board also notes that, subsequent to the Office’s August 7, 2009 decision, appellant
submitted additional evidence. The Board has no jurisdiction to review this evidence for the first time on appeal. 20
C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

4

ORDER
IT IS HEREBY ORDERED THAT the August 7, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 15, 2010
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Juan, PR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-2302
Issued: June 23, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 14, 2010 appellant filed a timely appeal of the August 9, 2010 decision of
the Office of Workers’ Compensation Programs which denied modification of a decision
denying his claim. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed an
occupational disease in the performance of duty.
FACTUAL HISTORY
On August 11, 2009 appellant, then a 38-year-old sales service associate, filed an
occupational disease claim, alleging that he developed cervical and lumbar pain as a result of
standing for four hours a day and sitting for three hours a day while at work. He became aware

1

5 U.S.C. §§ 8101-8193.

of his condition and realized it was causally related to his work on July 30, 2009. Appellant
stopped work on July 27, 2009.
Appellant submitted a July 27, 2007 report from Dr. Jorge Anrillaga-Vargas, Boardcertified in emergency medicine, who treated appellant for chronic low back pain. He was
sitting at work for a prolonged time and experienced worsening back pain. Dr. Anrillaga-Vargas
diagnosed chronic low back pain and recommended home physical therapy and bed rest for three
days. In a July 30, 2009 duty status report, Dr. Luis E. Faura Clavell, a Board-certified
physiatrist, diagnosed lumbar strain.2 Appellant reported sitting and writing at work which
caused back pain. He noted findings of positive palpations of the cervical and lumbar spine, pain
at the bilateral dorsal back at L4, tenderness at L5 and weakness of the bilateral lower distal area.
Dr. Clavell recommended light-duty work.
On July 30, 2009 the employing establishment controverted appellant’s claim noting that
he alleged he strained his back because he was standing for four hours and sitting for three hours
a day. The employing establishment noted his duties were performed intermittently and not
continuously as alleged.
In an August 28, 2009 letter, the Office advised appellant of the evidence needed to
establish his claim. It requested that he submit a physician’s reasoned opinion addressing the
relationship of his claimed condition and specific work factors.
Appellant submitted a job description for a sales, services and distribution associate.
Also submitted were several statements from coworkers and a union steward regarding a
grievance against their supervisor. In an undated statement, appellant indicated that he believed
that cumulative work duties in addition to working certified mail caused his condition.
In a September 14, 2009 report, Dr. Clavell treated appellant for low back pain.
Appellant reported having recurrent lumbar muscle spasms on July 30, 2009. Dr. Clavell noted
constant low back pain radiating into both legs, severe right sciatica, marked weakness of the
arms, an antalgic gait and sensory dysesthesias to light touch. He diagnosed chronic low back
pain, degenerative disc disease at C3-6, chronic radiculopathy at C5-6, poly-radiculopathy at L4,
L5, S1, bilateral carpal tunnel syndrome as noted in a March 6, 2008 electromyogram (EMG),
bilateral cubital tunnel syndrome, right shoulder contracture due to shoulder sprain and status
post right shoulder arthroscopy. He noted appellant’s history was significant for a fall in
September 1996 which caused a severe blunt trauma to his lumbar structure eventually
developing into chronic low back pain. Dr. Clavell noted that on March 6, 2008 he developed
radiating pain and paresthesias which resulted in decreased tolerance for prolonged standing. He
noted that appellant’s back condition developed as a direct effect of his job duties requiring him
to sit up to six hours per day. Dr. Clavell noted that appellant’s condition recurred and was
aggravated by the performance of his job duties which included prolonged sitting. He noted
prolonged sitting created intravertebral and lumbar structure pressure which led to aggravation of
lumbago, soft tissue inflammation and posterior facet joints ligament inflammation.

2

On the duty status report, or Form CA-17, the employing establishment listed the physical activities required in
appellant’s job.

2

Dr. Clavell opined that appellant’s job duties as noted on the CA-17 including lifting and
carrying objects up to 10 pounds, prolonged sitting up to six hours per day and standing up to
two hours per day, greatly contributed to the recurrence, progression and aggravation of
appellant’s initial diagnoses of lumbago into lumbar poly-radiculopathy. He opined that the
cumulative, repetitive, performance of his job duties including sitting six hours per day,
keyboarding up to five hours while sitting at a workstation, weakened appellant’s core muscle
group causing increased pressure and stress on the lumbar structures. Dr. Clavell noted that this
stress led to inflammation of the spinal ligament, posterior ligaments, lower lumbar and sacral
nerve roots, neural foramen with residual poly-radiculopathy. In an October 10, 2009 return to
work certificate, he noted that appellant was reevaluated and diagnosed with lumbosacral strain
and status post right shoulder contracture. Appellant was disabled from October 6 to
December 8, 2009.
In a decision dated November 27, 2009, the Office denied appellant’s claim on the
grounds that the medical evidence was insufficient to establish that his claimed conditions were
caused by his employment.
In an undated statement, appellant requested reconsideration. He indicated that he
sustained a fall in September 1996 while in the army and indicated that this condition was
aggravated by his work duties since joining the employing establishment in February 1999.
Appellant indicated that a report from Dr. Clavell was attached to his reconsideration request;
however, no additional medical report was received by the Office.
In a decision dated August 9, 2010, the Office denied modification of the November 27,
2009 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim. When an employee claims that he sustained an injury in the
performance of duty, he must submit sufficient evidence to establish that he experienced a
specific event, incident or exposure occurring at the time, place and in the manner alleged.
Appellant must also establish that such event, incident or exposure caused an injury.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
3

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).

3

physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. 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.4
ANALYSIS
In the instant case, it is not disputed that appellant worked as a sales service associate and
was required to sit, stand, carry and lift for portions of his work shift.
The Office denied appellant’s claim for compensation on the grounds that the medical
evidence was not sufficient to establish that appellant’s medical condition of aggravation of
chronic low back pain, degenerative disc disease at C3-6, chronic radiculopathy at C5-6, polyradiculopathy at L4, L5, S1, was causally related to his employment. However, the Board notes
that medical evidence submitted by appellant supports that he sustained an aggravation of the
chronic low back pain, degenerative disc disease at C3-6, chronic radiculopathy at C5-6, polyradiculopathy at L4, L5, S1, from prolonged standing and sitting while performing his sales
service associate duties. Dr. Clavell’s September 14, 2009 report noted that appellant had a fall
in September 1996 which caused a severe blunt trauma to his lumbar structure eventually
progressing into chronic low back pain, radiating pain and paresthesias. He stated that
appellant’s back condition developed as a direct effect of his job duties requiring him to sit up to
six hours per day. Dr. Clavell noted that appellant’s condition was aggravated by prolonged
sitting at work which created intravertebral and lumbar structure pressure which aggravated
appellant’s lumbago causing soft tissue inflammation and posterior facet joint ligament
inflammation. He opined that appellant’s job duties as noted on the CA-17 including lifting and
carrying objects up to 10 pounds, prolonged sitting up to six hours per day and standing up to
two hours per day, which greatly contributed to the recurrence, progression and aggravation of
appellant’s initial diagnoses of lumbago into lumbar poly-radiculopathy. Dr. Clavell opined that
the cumulative, repetitive, performance of his job duties which included sitting six hours per day,
keyboarding up to five hours while sitting at a workstation, weakened appellant’s core muscle
group causing increased pressure and stress on the lumbar structures. He noted that this stress
led to inflammation of the spinal ligament, posterior ligaments, lower lumbar and sacral nerve
roots, neural foramen with residual poly-radiculopathy. Although Dr. Clavell’s opinion is
insufficiently rationalized with regard to the affect of the 1996 nonemployment injury on the
claimed condition, it is uncontroverted in the record and is sufficient to require further
development of the case by the Office.5
In view of this evidence the Office should have referred the matter to an appropriate
medical specialist to determine whether appellant sustained an aggravation of his chronic low
back condition, degenerative disc disease at C3-6, chronic radiculopathy at C5-6, polyradiculopathy at L4, L5, S1 as a result of his employment duties.

4

Solomon Polen, 51 ECAB 341 (2000).

5

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

4

Proceedings under the Act are not adversary in nature nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.6
Therefore, the Board finds that the case must be remanded to the Office for preparation of
a statement of accepted facts concerning appellant’s working conditions,7 and referral of the
matter to an appropriate medical specialist, consistent with Office procedures, to determine
whether appellant may have sustained an aggravation of the chronic low back pain, degenerative
disc disease at C3-6, chronic radiculopathy at C5-6, poly-radiculopathy at L4, L5, S1 as a result
of performing his employment duties. Following this, and any other further development as
deemed necessary, the Office shall issue an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 9, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
in accordance with this decision of the Board.
Issued: June 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

John W. Butler, 39 ECAB 852 (1988).

7

The Office should also request that appellant provide medical records pertaining to treatment of his 1996 injury.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1634
Issued: August 11, 2015

Case Submitted on the Record

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

JURISDICTION
On July 21, 2014 appellant, through counsel, filed a timely appeal from a May 9, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits on October 9, 2013.
On appeal counsel maintains that the opinion of the attending physician Dr. Charles M.
Bolno, an osteopath, is sufficient to establish residual disability and that the opinion of an OWCP
referral physician Dr. Zohar Stark, a Board-certified orthopedic surgeon, was inconsistent with
the statement of accepted facts and was therefore insufficient to carry the weight of the medical
evidence. He asserts that the termination of benefits should be reversed or, in the alternative, the
case should be referred to a referee physician.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 28, 2011 appellant, then a 33-year-old mail processing clerk expediter, filed a
traumatic injury claim alleging that she injured her back and shoulder on May 27, 2011 while
pulling large, heavy mail containers. She stopped work on May 27, 2011. In a brief emergency
department report dated May 28, 2011, Dr. Brian Clohessy, an osteopath, diagnosed shoulder
pain.
Appellant subsequently came under the care of Dr. Bolno, an osteopath who practices
family medicine and orthopedic surgery. On May 31, 2011 Dr. Bolno advised that the May 27,
2011 injury caused acute traumatic cervical and lumbar radiculopathy, acute traumatic arthritis
of both shoulders, and acute traumatic cervical and lumbar spine sprain and strain. He advised
that appellant was totally disabled. A June 27, 2011 magnetic resonance imaging (MRI) scan
study of the left shoulder demonstrated degenerative changes and was suspicious for tear within
the superior labrum. An MRI scan study of the lumbar spine that day demonstrated a small disc
herniation at T12-L1 and a moderate herniation at L5-S1 with degenerative changes seen. A
June 28, 2011 MRI scan study of the cervical spine revealed no evidence of disc herniation or
spinal stenosis. A June 29, 2011 MRI scan study of the right shoulder was unremarkable.
Following an initial denial on July 14, 2011, on September 29, 2011 an OWCP hearing
representative reversed the July 14, 2011 decision, and appellant’s claim was accepted for
displacement of intervertebral discs without myelopathy at T12-L1 and L5-S1 and cervical and
lumbar radiculopathy. She received compensation and was placed on the periodic compensation
rolls.
In October 2011 OWCP referred appellant to Dr. Robert F. Draper, Jr., a Board-certified
orthopedic surgeon, for a second opinion evaluation. He provided a work capacity evaluation
dated December 1, 2011 and a report dated December 2, 2011.
Dr. Bolno continued to submit reports in which he reiterated his diagnoses and indicated
that a July 28, 2011 electrodiagnostic study of the lower extremities demonstrated acute L5-S1
radiculopathy.
OWCP determined that a conflict in medical evidence had been created between the
opinions of Dr. Bolno and Dr. Draper regarding appellant’s physical restrictions and work
abilities, and referred her to Dr. William H. Simon, a Board-certified orthopedic surgeon, for an
impartial evaluation. Dr. Simon provided a June 4, 2012 report and advised that appellant could
perform sedentary duty.
In a July 2, 2012 letter, OWCP proposed to terminate appellant’s compensation and
medical benefits on the grounds that the medical evidence, as characterized by Dr. Simon’s
report, established that she no longer had residuals or disability due to the May 27, 2011

2

employment injury. Appellant, through counsel, disagreed with the proposed termination.
Dr. Simon provided an additional report on July 14, 2012.2
In a July 6, 2012 report, Dr. Marc C. Cohen, a chiropractor, noted review of emergency
records dated May 27, 2011 and MRI scan studies of the left and right shoulder and left foot and
ankle. He diagnosed cervical sprain/strain; rule out cervical disc herniation; rule out cervical
radiculopathy; lumbar-sacral myofasciitis/sprain/strain; small left paracentral disc herniation at
T1-2-L1; moderate size broad-based central disc herniation at L5-S1; bilateral shoulder
sprain/strain; superior labral tear of the left shoulder; and tendinopathy of the left shoulder due to
the May 2011 employment injury. A whole body bone scan on July 24, 2012 showed increased
activity in the knees and shoulders, similar to an examination of November 11, 2011.
By decision August 21, 2012, OWCP found that the weight of the medical evidence
rested with the opinion of Dr. Simon and finalized the termination of wage-loss and medical
compensation benefits, effective August 25, 2012. Appellant, through counsel, timely requested
a hearing.
In an October 10, 2012 decision, an OWCP hearing representative set aside the
August 21, 2012 termination decision and remanded the case for further development. She
found the wording of a question furnished by OWCP to Dr. Draper was inappropriate and thus
his opinion should be excluded. As such, it was premature to find a conflict in medical evidence.
Upon remand OWCP was to refer appellant for a new second opinion evaluation and reinstate
wage-loss compensation.
In October 2012 OWCP referred appellant to Dr. Noubar A. Didizian, a Board-certified
orthopedic surgeon, for a second opinion evaluation.3
In a December 6, 2012 letter, OWCP proposed to terminate appellant’s wage-loss and
medical benefits as the medical evidence, as characterized by Dr. Didizian’s report, established
that she no longer had residuals or disability due to the May 27, 2011 employment injury.
Appellant, through counsel, disagreed with the proposed termination and submitted a
December 21, 2012 report in which Dr. Bolno reviewed appellant’s diagnostic studies and
medical care. Dr. Bolno reported that, shortly after she returned to light duty in July 2012, she
sustained additional work-related injuries, and continued to have severe cervical and lumbar pain
that radiated into the shoulders and down both legs. He described physical examination findings
of severe neck spasm and neurosensory impairment over the L4 to S1 and C4 to C6 nerve roots
and restricted range of motion of the cervical and lumbar spine.
By decision dated March 27, 2013, OWCP found that the weight of the medical evidence
rested with the opinion of Dr. Didizian and finalized the termination of wage-loss and medical

2

Appellant returned to work on July 12 or 13, 2012. On July 13, 2012 she filed a traumatic injury claim alleging
that a driver crashed into her, injuring her back and hand. Appellant stopped work that day. OWCP adjudicated the
claim under file number xxxxxx981 and accepted lumbar sprain. Appellant returned to modified duty in
September 2012.
3

Dr. Didizian provided a November 26, 2012 report which, as discussed infra, has been excluded from the
record.

3

compensation benefits, effective August 25, 2012. Appellant, through counsel, timely requested
a hearing.
In a June 24, 2013 decision, an OWCP hearing representative set aside the March 27,
2013 decision and remanded the case to OWCP. She found that Dr. Didizian had been provided
a copy of Dr. Draper’s report when that report should have been excluded. As such,
Dr. Didizian’s report should also be excluded. OWCP was instructed to refer appellant for a new
second-opinion evaluation.
In July 2013 OWCP referred appellant, along with a statement of accepted facts and a set
of questions, to Dr. Stark, a Board-certified orthopedic surgeon, for a second opinion evaluation.4
A July 17, 2013 MRI scan study of the left shoulder demonstrated findings suggestive of
supraspinatus tendinopathy without focal tear and acromioclavicular joint hypertrophy with mild
impingement.
In a July 23, 2013 report, Dr. Stark described appellant’s report of the employment injury
and her complaints of radiating low back pain, left shoulder pain, and left foot pain.5 He noted
his review of the medical record, including diagnostic studies and appellant’s complaint of
radiating low back pain, tingling and numbness in both lower extremities, and left shoulder pain
that started two months previously. Physical examination demonstrated that appellant was able
to walk with a normal gait. There was no tenderness on examination of the cervical spine and no
spasm with normal motion. There was tenderness on palpation over the spinous processes of the
midthoracic and lumbosacral vertebrae and over the paradorsal and paralumbar musculature with
no spasm. Appellant complained of pain on motion. Sitting root test was negative, and straight
leg raising was negative at 80 degrees bilaterally. There was no sensory or motor deficit to the
upper or lower extremities, and deep tendon reflexes to the extremities were present and equal
bilaterally. Examination of her left shoulder revealed local tenderness on palpation with
diminished range of motion. Impingement and apprehension tests were negative.
Dr. Stark opined based on the history given by appellant and his review of the medical
records, it was his opinion that none of the accepted diagnoses were related to the May 27, 2011
work incident. He further opined that the demonstrated degenerative disc disease found on MRI
scan study of her lumbar spine was not caused by the May 2011 preexisting condition. Dr. Stark
noted that he found no evidence of cervical or lumbar radiculopathy on his physical examination.
He further opined that the May 27, 2011 incident caused a lumbar strain and left shoulder sprain
from which appellant had recovered, and that the shoulder pain she had developed two months
prior to his examination had no connection to the May 27, 2011 injury. Dr. Stark concluded that
she had no remaining residuals of the May 27, 2011 injury and was not totally or partially
disabled at the time of his examination secondary to the May 27, 2011 incident. In an attached
4

The statement of accepted facts indicated that appellant was under the care of Dr. Bolno and described
diagnostic studies. The statement also indicated that she had a second employment injury that occurred on July 13,
2013 that had been accepted for lumbar sprain. The questions provided Dr. Stark were: “Which conditions were
sustained as a result of the May 27, 2011 work injury? Does the claimant continue with residuals of these sustained
conditions? Is the claimant totally or partially disabled due to these sustained conditions, and if partially disabled,
does the claimant require restrictions to return to work?” Dr. Stark was asked to fully address the questions on a
work capacity evaluation (OWCP Form 5c) and attach the form to his report.
5

Dr. Stark did not indicate that he reviewed the reports of Drs. Draper, Simon, and Didizian.

4

work capacity evaluation, he advised that appellant had reached maximum medical improvement
and could perform her usual job duties without restriction.
In an August 8, 2013 letter, OWCP proposed to terminate appellant’s compensation and
medical benefits on the grounds that the medical evidence, as characterized by Dr. Stark’s report,
established that she no longer had residuals or disability due to the May 27, 2011 employment
injury. Counsel disagreed with the proposed termination and submitted a September 12, 2013
report in which Dr. Bolno reiterated his medical findings and conclusions. Dr. Bolno found on
physical examination that appellant still had restricted cervical spine range of motion and severe
pain with flexion and extension of the lumbar spine. He advised that appellant had never fully
recovered from the May 27, 2011 employment and was unable to perform full duty.
By decision October 9, 2013, OWCP found that the weight of the medical evidence
rested with the opinion of Dr. Stark and finalized the termination of wage-loss and medical
compensation benefits. Appellant, through counsel, timely requested a hearing. Counsel noted
that appellant was working full-time light duty. He asserted that because Dr. Stark opined that
the accepted conditions were not caused by the May 27, 2011 employment injury, his opinion
was insufficient to carry the weight of the medical evidence. Counsel asserted that, at the least, a
conflict in medical evidence had been established between Dr. Stark and Dr. Bolno regarding
whether appellant continued to have residuals of the accepted conditions.
In a May 9, 2014 decision, an OWCP hearing representative found that the weight of the
medical evidence rested with the opinion of Dr. Stark who performed a thorough examination
and reviewed the complete medical record. She affirmed the October 9, 2013 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7
ANALYSIS
OWCP accepted that on May 27, 2011 appellant sustained employment-related
displacement of intervertebral discs without myelopathy at T12-L1 and L5-S1 and cervical and
lumbar radiculopathy.
Appellant returned to work briefly in July 2012 and since
September 2012 has been working modified duty.8
In July 2013 OWCP referred her to Dr. Stark for a second opinion evaluation. In a
July 23, 2013 report, Dr. Stark described appellant’s report of the employment injury, her
complaints of radiating low back pain, and left shoulder pain, his review of the medical record,
6

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

7

Id.

8

Supra note 3.

5

and physical examination findings.9 He indicated that none of the accepted diagnoses were
related to the May 27, 2011 incident at work. Dr. Stark further opined that the demonstrated
degenerative disc disease found on MRI scan study of her lumbar spine was not caused by the
May 2011 injury and was a preexisting condition. He noted that he found no evidence of
cervical or lumbar radiculopathy on his physical examination. Dr. Stark further opined that the
May 27, 2011 incident caused a lumbar strain and left shoulder sprain from which she had
recovered, and that the shoulder pain she had developed two months prior to his examination had
no connection to the May 27, 2011 injury. He concluded that appellant had no remaining
residuals of the May 27, 2011 injury and was not totally or partially disabled at the time of his
examination secondary to the May 27, 2011 incident. In an attached work capacity evaluation,
Dr. Stark advised that appellant had reached maximum medical improvement and could perform
her usual job duties without restriction.
As noted, Dr. Stark opined that none of the accepted conditions were caused by the
May 27, 2011 employment injury and that she only sustained a lumbar strain and left shoulder
sprain that day, from which she had recovered. However, acceptance of displacement of
intervertebral discs without myelopathy at T12-L1 and L5-S1 and cervical and lumbar
radiculopathy has not been rescinded. The Board finds that Dr. Stark’s report does not comport
with the statement of accepted facts and does not comport with adequate rationale the
determination that her residuals have ceased.10 Dr. Stark’s opinion is insufficient to establish
that appellant’s disability had ceased. Dr. Bolno, appellant’s attending physician, has been
consistent in his opinion that she continues to have residuals of the May 27, 2011 employment
injury. OWCP did not meet its burden of proof to terminate appellant’s compensation and
medical benefits for the May 27, 2011 employment injury.11
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation and medical benefits on October 9, 2013.

9

Dr. Stark did not indicate that he reviewed the reports of Drs. Draper, Simon, and Didizian.

10

See John L. Hofmann, Docket No. 04-1802 (issued November 22, 2004).

11

J.W., Docket No. 14-250 (issued May 28, 2014).

6

ORDER
IT IS HEREBY ORDERED THAT the May 9, 2014 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: August 11, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7