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

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

Docket No. 14-1926
Issued: July 9, 2015

Case Submitted on the Record

DECISION AND ORDER

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

JURISDICTION
On September 2, 2014 appellant, through counsel, filed a timely appeal of a July 29, 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 effective November 6, 2013 pursuant to 5 U.S.C. § 8106(c).
FACTUAL HISTORY
On October 15, 2011 appellant, then a 42-year-old mail processing clerk, filed a
traumatic injury claim alleging that on that date he sustained a back injury when he helped a
1

5 U.S.C. § 8101 et seq.

coworker prevent a pallet of mail from falling. He stopped work on that date. OWCP accepted
the claim for a lumbar sprain and later expanded the claim to include a left shoulder sprain.
Appellant’s physician released appellant to limited-duty work on January 2, 2012. Appellant
was provided limited-duty work for one hour a day beginning January 5, 2012.2 He received
appropriate compensation benefits.
In a January 10, 2012 report, Dr. Charles May, an osteopath and family practitioner,
stated that appellant’s work stoppage was due to worsening low back pain and radicular
symptoms. Diagnostic testing revealed facet arthropathy but not radiculopathy. Dr. May noted
that due to symptoms appellant had not been able to work as anticipated.
On February 6, 2012 OWCP referred appellant to Dr. Pietro Seni, a Board-certified
orthopedic surgeon, for a second opinion. In a report dated March 21, 2012, Dr. Seni described
appellant’s history of injury and treatment and examined appellant. Appellant reported having
back issues for a number of years with the worst injury occurring around 1991 while in military
service. Dr. Seni determined that the accepted strain had resolved and there was no medical
evidence to establish that appellant could not perform his regular duties. He further opined that
any symptoms that appellant had been attributable to the preexisting back condition.
On April 12, 2012 OWCP forwarded the report to appellant’s treating physician,
Dr. May, for his review and comment. On April 16, 2012 Dr. May responded to its request. He
explained that, while appellant’s lumbar strain/sprain should have healed a long time ago, he did
not believe that appellant could return to work without restrictions. Dr. May advised that
appellant had evidence of facet arthropathy, which was the cause of his pain. He opined that he
believed that facet arthropathy should be an accepted condition. Dr. May further indicated that
appellant was unable to return to his usual duties as a result of the condition.
In an October 5, 2012 report, Dr. Sachidanandan P. Kanoor, Jr., a Board-certified
internist, noted that appellant had chronic low back pain, a bulging disc, and multilevel
degenerative arthritis. He indicated that appellant’s condition was chronic and he could not lift,
push, or pull any heavy weights.
OWCP found that Dr. Seni’s report created a conflict with the opinion of the attending
physician, Dr. May, with regard to whether the lumbar strain had resolved and appellant’s
resulting ability to work. On September 25, 2012 it referred appellant along with a statement of
accepted facts, and the medical record to Dr. Ralph G. Rohner, a Board-certified orthopedic
surgeon, for an impartial evaluation to resolve the conflict.
In a report dated October 9, 2012, Dr. Rohner noted appellant’s history and treatment.
He examined appellant and provided findings which included that his gait was nonantalgic and
slow. Additionally, Dr. Rohner noted that, when appellant walked on his heels and toes, he
2

Appellant also worked as a barber, for several hours a day in a nonfederal employment. The record reflects that
he has a preexisting back condition. Other preexisting conditions included: chronic headaches; degenerative joint
disease in the left acromioclavicular joint; tripartite patella; right partial meniscectomy and osteochondral defect of
the femur; spondylosis with mild narrowing of the neuroforaminal at L4-5; and L5-S1 bilaterally with facet
arthropathy.

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complained of increased back pain. He found that appellant had lumbar flexion to 30 degrees
and extension to 10 degrees. Lateral flexion to the right was 10 degrees and 30 degrees on the
left. Appellant had paraspinal muscle tenderness and sacroiliac joint tenderness more right than
left. There was no sciatic notch tenderness. In the sitting position, the popliteal compression
tests were unremarkable, while the left knee extension test gave low back pain. The right knee
extension test gave low back pain but actually to a lesser degree than the left. Appellant had
complaints of decreased sensation involving the left lower extremity over the right involving
both the L4-5 and L5-S1 nerve roots. Dr. Rohner explained that, while appellant could not
return to regular duty, he could perform limited-duty work for eight hours a day. He advised
that, if appellant could work five hours a day, three and four days a week as a barber, appellant
could work in the employing establishment with proper restrictions for the same amount of time,
with proper pain management. Dr. Rohner completed a work capacity evaluation. The
restrictions included that appellant could intermittently sit and reach for no more than three hours
a day and have no more than two hours of standing. Dr. Rohner prescribed a five-pound lifting
restriction. He recommended that appellant commence limited duty at four hours a day and
gradually increase. Dr. Rohner also indicated that more definition was needed with regard to
some activities such as pushing and climbing.
On November 13, 2012 the employing establishment provided appellant with a modified
job offer as a mail processing clerk. Appellant refused to sign the offer and asserted that it was
not a valid job offer. He indicated that it was not a gradual return, the duties violated his
restrictions, and also violated his prior restrictions for his knee injury under a separate claim.
In a December 19, 2012 report, Dr. May advised that, based upon appellant’s injuries to
his right knee and lumbar spine, he was unable to perform the flat preparation duty required by
the offered position.
On December 19, 2012 OWCP advised the impartial medical examiner that appellant
sustained a work-related knee injury under a separate claim and described his work limitations
from that injury. It requested that he review the job offer and advise whether appellant could
perform the physical requirements.
In a January 11, 2013 addendum, Dr. Rohner advised that for the right knee Dr. May
noted restrictions to include a weight limit of 20 pounds. Sitting was one to six hours a day,
standing one hour a day, walking one hour a day bending, stooping, twisting, pushing, and
pulling were one hour a day. In a January 15, 2013 addendum, Dr. Rohner noted reviewing the
modified-job assignment dated November 13, 2012. He reviewed the work restrictions for the
back and those provided by Dr. May for the knee. Dr. Rohner indicated that intermittent
standing for three hours was acceptable as was the five-pound weight lifting. He indicated that
appellant could not carry for four hours without exceeding the two-hour intermittent walking,
two-hour and one-hour intermittent walking restrictions.
In a letter dated March 4, 2013, Annette Clark, a health and human resource management
specialist with the employing establishment, indicated that the job offer mirrored Dr. Rohner’s
restrictions. However, it was for only three hours a day and not four hours. Ms. Clark also noted
that appellant owned a barber shop and cut hair while standing on a daily basis. She indicated

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that her observations revealed that he was not adhering to these limitations off the job while
performing his business duties.
In a letter dated June 25, 2013, the employing establishment notified appellant that it was
providing him with a limited-duty job offer working three hours a day, five days a week based
upon his medical restrictions. Appellant was advised that the position was a lobby director
position where he would be assisting window clerks by helping customers in line. On August 5,
2013 the lobby direction job offer was presented to appellant. The job entailed intermittent
standing and walking for up to two hours a day, stocking inventory not weighing over five
pounds, and intermittent sitting for up to three hours a day. Total work hours were four hours a
day, five days a week.
In a letter dated August 6, 2013, appellant refused the offer. He explained that the 25mile drive would aggravate his condition. Appellant further noted that the lobby did not have
seating and the shelves were high and there would be reaching, all of which violated his
restrictions and were outside his work limitations.
In a letter dated August 26, 2013, the employing establishment requested that OWCP
provide a suitability determination on the job offer.
In a September 9, 2013 report, Dr. May examined appellant and indicated that his pain
was work related.
On September 12, 2013 OWCP advised appellant that it had confirmed with the
employing establishment that the position remained available. It explained that the lobby
director position was suitable and in accordance with his medical conditions and that he had 30
days to accept the position. OWCP also informed appellant that the 25-mile drive was not a
valid reason to refuse the position as the physicians had not restricted driving. It also advised
him that, if he failed to report to the offered position and failed to demonstrate that the failure
was justified, his right to compensation would be terminated.
On September 18, 2013 appellant repeated his reasons for refusing the offer, reiterating
his concern that the job would make his condition worse. They included that the driving distance
of 25 miles and the lobby facilities and layout would aggravate his conditions. Appellant also
indicated that there was no seating.
In an October 21, 2013 telephone call memorandum, OWCP contacted the employing
establishment to confirm whether the job offer remained available and addressed the concerns of
appellant. The employing establishment indicated that appellant would be able to “sit in the
back” intermittently but “not in the lobby because it is not professional.” Additionally, it
indicated that stocking the shelves did not entail bending and lifting as the shelves were waist
high.
In an October 21, 2013 letter, OWCP advised appellant that his reasons for refusing the
offered position were insufficient. It confirmed that the job offer remained available and that he
would be able to sit as needed. OWCP afforded appellant 15 days in which to accept the
position without penalty, noting that no further reasons for refusal would be considered. If
appellant still refused the offered position, he would face termination of his monetary benefits.
4

In a November 6, 2013 decision, OWCP terminated appellant’s wage-loss and schedule
award benefits finding that he had failed to accept suitable work after work was offered to him.
It found that his reasons for refusing the job offer were unacceptable.
In a February 10, 2014 report, Dr. May noted that appellant had two work injuries while
working for the employing establishment. He indicated that aside from the present claim,
appellant also had a right knee injury that resulted in osteoarthritis of the right knee under File
No. xxxxxx044 that affected his ability to stand, walk, climb, or crawl. Dr. May explained that
he read the work modifications for the lobby director position. He agreed that the modified
assignments were within appellant’s work ability. However, Dr. May was concerned about
appellant sitting three hours a day and walking intermittently two hours a day. He explained that
the job offer indicated that there was no sitting allowed in the lobby as it was unprofessional.
Dr. May noted that it indicated that there was seating in a back room which could be utilized
intermittently for three hours a day per appellant’s restrictions. He opined that the job offer
exceeded appellant’s restrictions as he would not be able to sit and/or stand as necessary or as
needed or change position as needed and he would have to walk to a back room in order to sit.
Dr. May explained that this would affect not only appellant’s low back injury, but also his knee
injury. He recommended declining the job offer unless appellant had the ability to sit or stand on
an as needed basis within a very reasonable distance i.e., within the lobby of his workstation.
On November 14, 2013 counsel requested a hearing, which was held on May 8, 2014. He
argued that appellant’s physician indicated that the job was not suitable as appellant would not
be able to sit or stand as necessary. Appellant also indicated that, while he did not get to see the
room where he could actually sit, he indicated that the lobby was huge and he did not believe
that he would be able to physically walk back and forth to the back room to sit outside the lobby
area on an intermittent basis. Counsel indicated that appellant also refused the job offer based
upon his physician’s recommendation and noted Dr. May’s February 10, 2014, report.
By decision dated July 29, 2014, an OWCP hearing representative affirmed the
November 6, 2013 decision.
LEGAL PRECEDENT
Section 8106(c)(2)3 of FECA provides that a partially disabled employee who refuses or
neglects to work after suitable work is offered to, procured by or secured for the employee is not
entitled to compensation. 5 U.S.C. § 8106(c) provides in pertinent part, “A partially disabled
employee who ... (2) refuses or neglects to work after suitable work is offered ... is not entitled to
compensation.” It is OWCP’s burden to terminate compensation under section 8106(c) for
refusing to accept suitable work or neglecting to perform suitable work.4 To justify such a
termination, OWCP must show that the work offered was suitable.5 An employee who refuses or

3

5 U.S.C. § 8106(c).

4

Henry P. Gilmore, 46 ECAB 709 (1995).

5

John E. Lemker, 45 ECAB 258 (1993).

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neglects to work after suitable work has been offered to him has the burden of showing that such
refusal to work was justified.6
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.7 In situations where the case is referred to an
impartial medical specialist for the purpose of resolving a medical conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.8
ANALYSIS
OWCP terminated appellant’s benefits under 5 U.S.C. § 8106(c) finding that the offered
position was medically suitable as it was within the medical restrictions of record.
OWCP accepted that appellant sustained a lumbar sprain and a left shoulder sprain. It
found that Dr. Seni’s report created a conflict with the opinion of appellant’s physician, Dr. May,
with regard to whether the lumbar strain had resolved and appellant’s resulting ability to work.
Therefore, OWCP properly referred appellant to Dr. Rohner, a Board-certified orthopedic
surgeon, for an impartial medical examination to resolve the conflict in the role of referee.
In a report dated October 9, 2012, Dr. Rohner noted appellant’s history and treatment,
examined him, and provided findings. He explained that, while appellant could not return to
regular duty he could perform limited-duty work for eight hours a day. Dr. Rohner explained
that, if appellant could work five hours a day, three and four days a week as a barber, he could
work in the employing establishment with proper restrictions for the same amount of time, with
proper pain management. He completed a work capacity evaluation and advised that appellant
could intermittently sit and reach for no more than three hours a day, and have no more than two
hours of standing with lifting of no more than five pounds. Dr. Rohner recommended that
appellant begin limited-duty work at four hours a day and gradually increase. Furthermore, more
definition was needed with regard to some activities such as pushing and climbing.
Appellant asserted that Dr. Rohner’s restrictions violated his prior restrictions for his
knee injury under a separate claim. Dr. May provided a December 19, 2012 report, advising that
appellant was unable to perform the flat preparation duty required in the position based upon
appellant’s injuries to his right knee and lumbar spine.
On December 19, 2012 OWCP advised Dr. Rohner that appellant sustained a workrelated knee injury under a separate claim and described his work limitations from that injury. It
requested that he review the job offer and advise whether appellant could perform the physical

6

Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

7

5 U.S.C. § 8123(a).

8

Guiseppe Aversa, 55 ECAB 164 (2003).

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requirements.9 In a January 15, 2013 addendum, Dr. Rohner indicated that he had reviewed a
copy of a modified-job assignment dated November 13, 2012. He reviewed the work restrictions
for the back and those provided by Dr. May for the knee. Dr. Rohner determined that
intermittent standing for three hours was acceptable as was the five-pound weight lifting. He
indicated that appellant could not carry for four hours without exceeding the two-hour
intermittent walking, two-hour and one-hour intermittent walking restrictions. In a letter dated
March 4, 2013, Ms. Clark with the employing establishment confirmed that the job offer
mirrored Dr. Rohner’s restrictions and noted that the job only required three hours a day and not
four hours.
The Board finds that Dr. Rohner’s opinion is entitled to special weight as his report is
sufficiently well rationalized and based upon a proper factual background. OWCP properly
relied upon Dr. Rohner’s reports in finding that the work offered to appellant was suitable.
Dr. Rohner examined appellant, reviewed his medical records, and reported an accurate history.
The Board finds that OWCP met its burden of proof to terminate wage-loss and schedule award
benefits as appellant refused suitable work. Although appellant noted objections to the job offer,
and argued there was no seating in the lobby where he would be working, Dr. Rohner reviewed
the job offer and confirmed that appellant was capable of performing the duties. The employing
establishment also explained that, while he could not sit in the front lobby, he was able to sit in
the back.
Subsequent to terminating appellant’s benefits, OWCP received a February 10, 2014
report from Dr. May, who advised that appellant could not perform the modified-duty positon as
he would have to walk into the back room to sit instead of being able to sit in the lobby.
However, it confirmed with the employing establishment that appellant would be able to sit as
needed. Furthermore, Dr. May was on one side of the conflict in the medical opinion that
Dr. Rohner resolved, and his report is insufficient to overcome the special weight accorded the
impartial specialist or to create a new medical conflict.10
The Board finds that Dr. Rohner’s report established that appellant was capable of
performing the job offered and the position was suitable, and thereby OWCP was justified in its
July 29, 2014 termination of benefits as he refused suitable work.
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.

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See id. (where OWCP secures an opinion from an impartial medical specialist for the purpose of resolving a
conflict in the medical evidence and the opinion from such specialist requires clarification or elaboration, OWCP
has the responsibility to secure a supplemental report from the specialist for the purpose of correcting the defect in
the original opinion).
10

Alice J. Tysinger, 51 ECAB 638 (2000); Barbara J. Warren, 51 ECAB 413 (2000).

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CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective November 6, 2013 pursuant to 5 U.S.C. § 8106(c).
ORDER
IT IS HEREBY ORDERED THAT the July 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, SHAKER HEIGHTS
POST OFFICE, Cleveland, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1141
Issued: March 10, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 20, 2021 appellant, through counsel, sought an appeal from a purported July 20,
2021 decision of the Office of Workers’ Compensation Programs (OWCP). 2 The Clerk of the
Appellate Boards assigned Docket No. 21-1141.
The Board has duly considered the matter and notes that the Board has jurisdiction to the
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act
(FECA).3 This jurisdiction encompasses any final decision issued by OWCP within 180 days of
1

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

Counsel did not appeal from OWCP’s June 7, 2021 merit decision, which affirmed OWCP’s November 30, 2020
forfeiture decision. He identified only the purported July 20, 2021 decision on the application for review (AB-1
Form). Therefore, the Board will not consider the June 7, 2021 OWCP decision in this appeal. See 20 C.F.R. § 501.3;
see also D.E., Docket No. 21-0531 (issued June 16, 2021).
3

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§501.2(c) and 501.3(a).

the date appellant filed her appeal. 4 While there is correspondence dated July 20, 2021, that letter
is purely informational in nature and does not constitute a final adverse decision of OWCP from
which she may properly appeal.5 As there is no final adverse decision issued by OWCP that
counsel has appealed from over which the Board may properly exercise jurisdiction, the Board
lacks jurisdiction over the appeal. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1141 is dismissed. 6
Issued: March 10, 2022
Washington, DC

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

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

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

Id. at § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of
issuance of a decision of OWCP.”
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5

See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020).
6

The Board’s decisions and orders are final upon the expiration of 30 days from the date of their issuance. 20
C.F.R. § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 09-710
Issued: December 29, 2009

Case Submitted on the Record

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

JURISDICTION
On December 31, 2008 appellant filed a timely appeal from June 25 and November 17,
2008 decisions of the Office of Workers’ Compensation Programs denying his claim for an
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that his emotional
condition was causally related to a compensable employment factor.
FACTUAL HISTORY
On April 17, 2008 appellant, then a 48-year-old air traffic control specialist, filed a
traumatic injury claim alleging that he sustained an emotional condition on that date due to
verbal abuse and a hostile work environment.

By letter dated May 21, 2008, the Office requested that appellant provide further
information regarding his claim, including a detailed description of the employment-related
conditions or incidents which he believed contributed to his condition.
In response, on June 18, 2008 the Office received a detailed supplemental statement from
appellant. Appellant alleged that, during the week prior to April 17, 2008, workshifts were
changed to accommodate an employee on sick leave. On Monday, April 14, 2008, he worked a
2:00 p.m. to 10:00 p.m. shift, on Tuesday a 12:00 p.m. to 8:00 p.m. shift, on Wednesday a 5:30
a.m. to 1:30 p.m. shift and on Wednesday a shift from 10:00 p.m. to 6:00 a.m. Thursday
morning, April 17, 2008, approximately one hour into his shift he argued on the telephone with
another controller. In July 16, 2007 a controller at another airport placed two aircraft in
proximity for a potential mid-air collision. Appellant was directing one of the two planes. On a
different occasion, he was working alone on a midnight shift when an aircraft departed another
airport and the pilot climbed above his assigned altitude into the flight path and altitude of
another plane. Appellant was able to direct evasive action to prevent a collision in both of these
incidents. However, the events caused heart palpitations, chest pains, involuntary muscle
tension, an inability to breathe properly or focus on his work tasks and difficulty sleeping. On
August 12, 2007 appellant received an award from the employing establishment for his
performance regarding these two incidents. At this time he began to worry that he might issue an
instruction that would create a dangerous situation or that he might not react quickly enough to
prevent a collision. A couple of hours after receiving his award, appellant failed to issue an
altitude restriction and the aircraft descended into a dangerous situation. On September 8, 2007
he failed to notice that a pilot read back and followed instructions meant for a different pilot.
This pilot descended into airspace not under appellant’s control. Appellant became continuously
concerned about the safety of the aircraft he directed. He adhered to the air traffic control
regulations and procedures but a controller at another airport repeatedly tried to badger him into
circumnavigating the regulations, thus putting aircraft in jeopardy. This controller was abusive
and argumentative when appellant refused to engage in actions that would violate employing
establishment procedures and regulations. Appellant’s symptoms worsened and he sometimes
thought he was having a heart attack. His medical clearance for work was revoked on May 13,
2008 when he reported his symptoms to the employing establishment.
In reports dated June 8 and 13 and August 19, 2008, Michael Esson, a licensed clinical
psychologist, stated that appellant had a history of conflict with an air traffic controller from
another airport that caused escalating anxiety. On April 17, 2008 he experienced a conflict with
the other controller and had a major anxiety and depression reaction. Appellant could not stop
thinking about the ongoing conflict and April 17, 2008 incident. Mr. Esson diagnosed an
adjustment disorder.
On June 4, 2008 Lauren Reed, an employing establishment compensation specialist,
stated that there were no witnesses to the alleged April 17, 2008 incident. Appellant signed a
traumatic injury claim form but told his supervisor that he was going to withdraw the claim. On
May 13, 2008 he became upset about an investigation concerning a different incident.1
1

Appellant disputed Ms. Reed’s statement that he was counseled on May 13, 2008 regarding an investigation.
He advised that he last saw his supervisor on April 28, 2008 and was not counseled regarding any air traffic control
incidents on May 13, 2008. What occurred on May 13, 2008 was the revocation of appellant’s clearance for work
based on his medical reports regarding his emotional condition.

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Appellant inquired about his CA-1 claim form for the April 17, 2008 incident, stated that he had
not withdrawn the claim and left the building to seek medical attention. Ms. Reed challenged the
claim, stating that appellant worked without difficulty until May 13, 2008 and there was no
evidence the argument with the other controller occurred.
By decision dated June 25, 2008, the Office denied appellant’s claim on the grounds that
he failed to establish that his emotional condition was causally related to a compensable
employment factor. It made findings of fact regarding the April 17, 2008 incident, and all of the
other incidents which appellant alleged in his supplemental statement, beginning with the events
of August 12, 2007.
On July 16, 2008 appellant requested a review of the written record.
On September 30, 2008 Ms. Reed advised that a review of the April 17, 2008 incident
was conducted and it was determined that appellant needed to maintain composure and stay calm
while communicating with coworkers and maintain professionalism and not argue on the
landline telephone. She contended that his claim was filed because on May 13, 2008 he was
counseled about his professional behavior.
By decision dated November 17, 2008, an Office hearing representative affirmed the
May 20, 2008 decision.2
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his regular or specially assigned work duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.4 Generally, actions of the employing
establishment in administrative or personnel matters, unrelated to the employee’s regular or
specially assigned work duties, do not fall within coverage of the Act. However, where the

2

Subsequent to the February 2, 2009 Office decision, additional evidence was associated with the file. Including
a Form CA-2 dated October 26, 2009 wherein appellant alleged that he developed symptoms of post-traumatic stress
disorder due to his duties as an air traffic controller after July 16, 2007. As the Office has already developed
appellant’s April 17, 2008 traumatic injury claim as an occupational disease claim, upon return of the case record, it
shall consolidate further development of appellant’s April 17, 2008 and October 26, 2009 claims. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c).
3

5 U.S.C. §§ 8101-8193.

4

Lillian Cutler, 28 ECAB 125 (1976).

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evidence demonstrates that the employing establishment either erred or acted abusively in the
administration of personnel matters, coverage may be afforded.5
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment, which may be considered by a physician when
providing an opinion on causal relationship, and which are not deemed compensable factors of
employment and may not be considered.6 When an employee fails to establish a compensable
factor of employment, the Office should make a specific finding in that regard. If an employee
does establish a compensable factor of employment, the Office should then determine whether
the evidence of record substantiates that factor.7 As a rule, allegations alone by an employee are
insufficient to establish a factual basis for an emotional condition claim but rather must be
corroborated by other evidence.8 Where the employee alleges compensable factors of
employment, he must substantiate such allegations with probative and reliable evidence.9 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, then the Office must base its decision on an analysis of the
medical evidence.10
ANALYSIS
While appellant initially filed a traumatic injury claim on April 17, 2008 for an incident
occurring on that day, the Office by letter dated May 21, 2008 and decision dated June 25, 2008,
expanded development of appellant’s claim to incidents commencing on April 17, 2007.
In his supplemental statement dated June 18, 2008, appellant alleged that his emotional
condition was caused by his attempt to perform his regular or specially assigned work duties.
The employing establishment asserted that appellant’s allegations involved an administrative or
personnel matter, a May 13, 2008 investigation regarding an air traffic control incident unrelated
to the April 17, 2008 incident. The Board has held that an administrative or personnel matter
will be considered to be an employment factor only where the evidence discloses error or abuse
on the part of the employing establishment.11 In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.12 In this case, appellant did not allege that his supervisors erred
5

Michael Thomas Plante, 44 ECAB 510 (1993).

6

Dennis J. Balogh, 52 ECAB 232 (2001).

7

Margaret S. Krzycki, 43 ECAB 496 (1992).

8

See Charles E. McAndrews, 55 ECAB 711 (2004).

9

Joel Parker, Sr., 43 ECAB 220 (1991).

10

See Charles D. Edwards, 55 ECAB 258 (2004).

11

Id.

12

Janice I. Moore, 53 ECAB 777 (2002).

4

or acted abusively regarding administrative or personnel matters. He alleged that he developed
his emotional condition because he was attempting to perform his regular duties or specially
assigned duties as an air traffic controller.
Following four incidents in 2007 through April 17, 2008, appellant became increasingly
concerned about performing his job and ensuring the safety of the aircraft he directed. He
adhered to the air traffic control regulations and procedures but a controller at another airport
repeatedly tried to badger him into circumnavigating the regulations and putting aircraft in
jeopardy. This controller was abusive and argumentative when appellant refused to engage in
actions that would violate employing establishment procedures and regulations. Appellant
developed heart palpitations, difficulty breathing, sleep and concentration problems and other
symptoms. The symptoms worsened and he sometimes thought he was having a heart attack.
Appellant’s medical clearance for work was revoked on May 13, 2008 when he reported his
symptoms to the employing establishment. As noted, where the disability results from an
employee’s emotional reaction to his regular or specially assigned work duties or to a
requirement imposed by the employment, the disability comes within the coverage of the Act.13
The Board finds that appellant has alleged a compensable factor of employment that he
was in the performance of his regular or specially assigned job duties when he developed his
emotional condition. On remand, the Office should review the medical evidence and determine
whether it establishes that appellant’s emotional condition was caused or aggravated by the
compensable employment factor.
On appeal, appellant contends that the June 25 and November 17, 2008 decisions are
contrary to fact and law. However, he does not provide any specific argument or evidence
regarding his contention.
CONCLUSION
The Board finds that appellant has established a compensable factor of employment. On
remand, the Office should review the medical evidence to determine whether it establishes causal
relationship between the compensable employment factor and appellant’s diagnosed emotional
condition. After such further development as the Office deems necessary, it should issue an
appropriate decision.

13

Lillian Cutler, supra note 4.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 17 and June 25, 2008 are set aside and the case is
remanded for further action consistent with this decision by the Board.
Issued: December 29, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
N.C., Appellant
and
DEPARTMENT OF THE AIR FORCE,
BARKSDALE AIR FORCE BASE, LA,
Employer
_________________________________________

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

Docket No. 14-1882
Issued: March 3, 2015

Case Submitted on the Record

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

JURISDICTION
On August 25, 2014 appellant filed a timely appeal from the February 26, 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 schedule award determination.2
ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment due to her accepted conditions.

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant asserted that she should receive a schedule award and provided additional evidence in
support of her claim. However, 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).

FACTUAL HISTORY
On August 10, 1971 appellant, then a 42-year-old secretary, was injured when her right
shoe heel got caught in her dress, causing her to fall at work. She noted that she fell and bruised
her right hand, left leg at the ankle, and twisted her right arm, shoulder, neck, entire back, and
left leg. Appellant did not initially stop work. OWCP accepted her claim for neck and low back
strain. It also accepted the claim for displacement of cervical intervertebral disc without
myelopathy, intervertebral disc disorder with myelopathy, lumbar region, and degeneration of
lumbar intervertebral disc. Additionally, as a result of lumbar traction, OWCP accepted injury to
the teeth and a dental restoration cost.3 Appellant received appropriate compensation benefits.4
In a January 8, 2013 report, Dr. Austin Gleason, III, a Board-certified orthopedic
surgeon, noted appellant’s history of injury and treatment and provided an impairment rating
utilizing the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(6th ed. 2009) (hereinafter A.M.A., Guides). For the cervical spine, Dr. Gleason referred to page
564, under motion segment lesions, for single level herniated disc and fusion, and diagnosed a
class 2 impairment, or 11 percent to the total body. Regarding the lumbar spine, he referred to
Table 17-4,5 under motion segment lesions, for a two level spinal stenosis requiring
decompression and diagnosed a class 3 impairments which gave her 19 percent impairment to
the total body. Dr. Gleason used the Combined Values Chart to combine the 11 percent for the
cervical spine with the 19 percent for the lumbar spine to equal 28 percent impairment to the
total body.6
On April 18, 2013 appellant filed a claim for a schedule award.
In a May 9, 2013 report, OWCP medical adviser noted that Dr. Gleason’s report was
insufficient, as the A.M.A., Guides did not allow for a schedule award to the spine. He
explained that a diagnosed injury originating in the spine could be considered only to the extent
that it resulted in permanent impairment of the extremities as manifested through spinal nerve
impairment and was best determined using the method discussed in the July/August 2009 issue
of The Guides Newsletter.7 OWCP medical adviser opined that Dr. Gleason’s report was not
3

The record reflects that appellant had preexisting conditions to include: bilateral carpal tunnel syndrome;
bilateral total knee replacements; rheumatoid arthritis; restless leg syndrome; and fibromyalgia. On February 5,
1980, appellant underwent excision of right calcific sebdeltoid bursitis, excision bilateral bunions, excision tailor’s
bunions, and excision bilateral neurofibromas.
4

Appellant stopped work on January 13, 1972 and underwent surgery on March 23, 1972 for excision of a
herniated disc. The record reflects that on September 5, 1983 she was involved in an off-duty automobile accident
in which she sustained right shoulder, right arm, neck, and low back and left leg pain. On December 1, 1980 OWCP
terminated appellant’s wage-loss compensation. On November 6, 2001 it accepted a March 21, 2001 claim for a
recurrence. Appellant subsequently retired.
5

A.M.A., Guides 570.

6

Id. at 542, Table 17-8.

7

Rating Spinal Nerve Extremity Impairment Using the Sixth Edition, The Guides Newsletter (A.M.A., Chicago,
IL), July/August 2009.

2

sufficiently rationalized and advised that a second opinion should be obtained to determine the
extent of impairment.
By letter dated May 24, 2013, OWCP referred appellant for a second opinion, along with
a statement of accepted facts, a set of questions and the medical record to Dr. John Sklar, a
Board-certified internist.
In a July 11, 2013 report, Dr. Sklar reported his examination of appellant on July 3, 2013
and described appellant’s history of injury and treatment. He found that, as appellant was unable
to stand or ambulate, he was unable to conduct an examination. Dr. Sklar examined her and
determined that the findings were consistent with the diagnoses of chronic nonspecific upper and
lower back pain, which was a “symptom more of [appellant’s] fibromyalgia than it would be of
her work injury many years ago.” He noted that spinal imaging revealed multiple level
degenerative disease in the cervical and lumbar region, without any specific evidence of a lesion,
which could be connected to appellant’s complaints. Dr. Sklar determined that electrodiagnostic
testing was repeatedly negative for any evidence of radiculopathy and he found no evidence of
radiculopathy affecting the upper or lower extremities related to her cervical and lumbar
conditions. He advised that there was no evidence of peripheral neuropathy and that
electrodiagnostic testing failed to demonstrate evidence of radiculopathy. Dr. Sklar concluded
that under the A.M.A., Guides appellant had zero percent impairment for each upper and lower
extremity.
OWCP referred the record to an OWCP medical adviser. In an October 28, 2013 report,
OWCP medical adviser reviewed the record and the statement of accepted facts. He determined
that the date of maximum medical improvement was July 3, 2013, the date of Dr. Sklar’s
evaluation. OWCP medical adviser agreed with Dr. Sklar’s finding of zero percent impairment
of the upper and lower extremities.
In an October 30, 2013 decision, OWCP denied appellant’s claim for a schedule award.
Although there was no request for reconsideration of the schedule award decision, on
February 26, 2014 it reiterated the denial of the schedule award. OWCP found that the medical
evidence did not demonstrate a measurable impairment and the requirements were not met for
entitlement to a schedule award.
LEGAL PRECEDENT
Section 8107 of FECA8 sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.9 FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.10 The A.M.A., Guides has been adopted by the implementing regulations as the
8

5 U.S.C. §§ 8101-8193.

9

Id. at § 8107.

10

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

3

appropriate standard for evaluating schedule losses.11 For decisions issued after May 1, 2009,
the sixth edition will be used.12
In addressing upper and lower extremity impairments, the sixth edition requires
identifying the impairment for the Class of Diagnosis (CDX), which is then adjusted by grade
modifiers based on Functional History (GMFH), Physical Examination (GMPE) and Clinical
Studies (GMCS).13 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).14
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.15 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.16
ANALYSIS
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award in accordance with the sixth edition of the A.M.A., Guides.
In support of her claim for a schedule award, appellant submitted a January 8, 2013
report from Dr. Gleason, who opined that she had 28 percent impairment to the total body.
FECA, however, does not provide for a schedule award based on whole person impairment.17 As
Dr. Gleason did not provide an impairment rating in accordance with the requirements of FECA,
his report is of limited probative value.
On May 24, 2013 OWCP referred appellant for a second opinion examination, along with
a statement of accepted facts, a set of questions and the medical record to Dr. Sklar, a Boardcertified internist. In his July 11, 2013 report, Dr. Sklar determined that the findings were
consistent with the diagnoses of chronic nonspecific upper and lower back pain, which was a
“symptom more of [appellant’s] fibromyalgia than it would be of her work injury many years
ago.” Dr. Sklar explained that spinal imaging revealed multiple level degenerative disease in the
11

20 C.F.R. § 10.404.

12

FECA (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013).
13

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

14

Id. at 521.

15

L.J., Docket No. 10-1263 (issued March 3, 2011).

16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
17

See Tania R. Keka, 55 ECAB 354 (2004); James E. Mills, 43 ECAB 215 (1991) (neither FECA, nor its
implementing regulations provide for a schedule award for impairment to the body as a whole).

4

cervical and lumbar region, without any specific lesion which could be connected with
appellant’s complaints. He determined that, as repeat electrodiagnostic testing was negative for
any evidence of radiculopathy affecting the upper or lower extremities related to her cervical and
lumbar conditions, appellant had zero percent impairment for each upper extremity and lower
extremity.
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides.18
In an October 28, 2013 report, OWCP medical adviser noted appellant’s history and
reviewed Dr. Sklar’s report. He concurred with Dr. Sklar and concluded that there was no basis
to rate any impairment to a scheduled body member.
The evidence of record at the time of OWCP’s February 26, 2014 decision is insufficient
to establish ratable impairment to a scheduled body member as a result of appellant’s accepted
conditions.
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for a schedule award.

18

Supra note 12 at Chapter 2.808.6(d) (August 2002).

5

ORDER
IT IS HEREBY ORDERED THAT the February 26, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EAST ORANGE MEDICAL CENTER,
East Orange, NJ, Employer
__________________________________________

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

Docket No. 09-649
Issued: October 26, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 6, 2009 appellant, through her representative, filed a timely appeal from the
May 27 and December 16, 2008 merit decisions of the Office of Workers’ Compensation
Programs terminating benefits. Pursuant 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 the Office properly terminated appellant’s medical and wageloss benefits effective May 27, 2008; and (2) whether appellant established any continuing
employment-related residuals or disability after May 27, 2008.
FACTUAL HISTORY
On April 26, 2006 appellant, then a 31-year-old program support clerk, filed a traumatic
injury claim alleging that on April 20, 2006 she slipped and fell on the floor resulting in an injury
to her back, neck, wrist and head. She was off work from April 21 through May 8, 2006. On

October 20, 2006 the Office accepted the claim for lumbar spine radiculopathy. On July 3, 2007
appellant filed a claim for a June 14, 2007 recurrence alleging that she sought pain management
treatment from her physician and that due to her lumbar spine radiculopathy she had chronic pain
in her neck. She stopped work on June 19, 2007. By decision dated July 3, 2007, the Office
accepted the recurrence claim.
Appellant filed several claims for wage-loss compensation (Form CA-7) for the period
June 19 through October 22, 2007. On October 2, 2007 the Office placed her on the periodic
rolls.
In a June 18, 2007 medical report, Dr. Isaiah Florence, a Board-certified anesthesiologist,
stated that appellant’s condition, including chronic pain in her legs and back, prevented her from
sitting or standing for long periods of time. Appellant was unable to work at that time and was
considering surgery in the near future. In a June 28, 2007 medical report, Dr. Florence stated
that she had been under his care since May 2006 for pain management related to her lumbar
spine radiculopathy, which prevented her from sitting, standing, walking for long periods of
time, bending or stooping. He recommended that appellant be relieved of duty until
July 31, 2007. On July 25, 2007 Dr. Florence amended his recommendation and stated that she
should be relieved of duty until August 31, 2007.
On November 7, 2007 the Office referred appellant, together with her medical record and
a statement of accepted facts, to Dr. Melvin P. Vigman, a Board-certified neurologist and
psychiatrist, for a second opinion evaluation. In a November 9, 2007 medical report,
Dr. Vigman reviewed her medical history and performed a physical examination, which revealed
left knee joint pain and discomfort bending the back to 80 degrees. He opined that the only area
causing appellant pain was her left knee joint and that she was a nervous individual who seemed
to magnify physical ailments. Dr. Vigman stated that nothing in her case history would justify
lumbar surgery and that, based on his reading of the records, she never had any lower back
disease. He opined that appellant was capable of returning to her regular work without any work
restrictions.
The Office determined that a conflict of medical opinion arose between Drs. Vigman and
Florence regarding the extent of residuals from the April 20, 2006 employment injury. It
referred appellant, together with her record and an updated statement of accepted facts, to
Dr. Dev R. Gupta, a Board-certified neurologist, for an impartial evaluation.
In a March 3, 2008 medical report, Dr. Gupta reviewed appellant’s medical history. He
reported her complaints of diffuse pain in her lower back and left lower extremity with no
particular characteristics of radicular pain symptomatology. Dr. Gupta noted that appellant was
anxious and emotional and cried several times during the examination and complained that she
had severe pain and was unable to function. Physical examination did not reveal any objective
weakness in the muscles of the lower extremities. Sensory examination revealed diminished
sensation in the entire left lower extremity; however, Dr. Gupta opined that the sensory loss was
nonorganic and functional and did not correspond to any particular peripheral nerve root or
distribution. He also reviewed a magnetic resonance imaging (MRI) scan of the lumbosacral
spine showing mild central disc bulge at L5-S1. Dr. Gupta opined that the MRI scan finding was
common in otherwise totally asymptomatic individuals and that it was a very common finding in

2

the normal population at large. He stated that appellant had a totally normal nonfocal neurologic
examination and that he did not find any evidence of disc disease or lumbosacral radiculopathy.
Dr. Gupta opined that her symptoms were purely subjective and that there was no objective
evidence to account for the symptoms. Appellant did not have any neurologic reasons for the
continued symptomatology and that she could return to full-time work.
By letter dated March 18, 2008, the Office requested that Dr. Gupta clarify his medical
report and indicate whether he reviewed the October 16, 2007 statement of accepted facts prior
to preparing his report. It also requested that he complete a work evaluation form identifying
appellant’s current work restrictions.
In an April 17, 2008 addendum, Dr. Gupta advised that he read the statement of accepted
facts prior to preparing his report. He stated that appellant could return to full-time work without
any restrictions.
On April 24, 2008 the Office proposed to terminate appellant’s compensation benefits. It
found that, based on Dr. Gupta’s report, appellant’s lumbar spine radiculopathy had ceased and
that she no longer had any disability or residuals due to her accepted work-related condition.
Appellant was afforded 30 days to submit additional medical evidence.
In a May 20, 2008 telephone memorandum, the employing establishment reported that
appellant attempted to return to work on May 13 and 14, 2008 but that she went to the employee
health center. Appellant did not return.
In a medical report dated May 20, 2008, Dr. Florence stated that appellant’s lower back
pain was persistent and that she reported a pain level of 10. He recommended that she be
relieved of duty until July 21, 2008 so that she could undergo surgery.
In a May 6, 2008 medical note, Dr. Robert Heary, a Board-certified neurosurgeon, stated
that after a pain consultation appellant should consider a lumbar discogram.
On May 20, 2008 Dr. Sanjiv Parikh, a Board-certified anesthesiologist, stated that
appellant was under his care for pain management and that she was diagnosed with facet
arthropathy of the lumbar spine and disc desiccation of the L5-S1 disc. He noted that appellant
was scheduled to undergo a lumbar discogram on May 21, 2008.
By decision dated May 27, 2008, the Office finalized the termination of appellant’s
compensation benefits effective that date. It found that the weight of medical evidence
established that she was not disabled due to her employment injury or had residuals requiring
further medical treatment.
On June 27, 2008 appellant filed a request for an oral hearing before an Office hearing
representative. By letter dated September 25, 2008, appellant’s representative requested a
telephonic hearing in lieu of an oral hearing, which took place on October 24, 2008.
Appellant submitted chart notes dated April 20, 2006 through September 5, 2008, an
August 9, 2008 laboratory testing report, an August 11, 2008 operative report and diagnostic test
reports dated January 5, 2007 through August 26, 2008. An August 25, 2008 medical report
3

signed by a certified nurse practitioner stated that appellant was unable to work in any capacity
until at least January 2, 2009.
In a medical report dated June 17, 2008, Dr. Florence reported appellant’s complaints of
back and left leg pain and that she sometimes stayed in bed all day to treat the pain. He
diagnosed lumbar radiculopathy secondary to disc bulge, facet arthropathy, cervical
radiculopathy, muscle spasm and neuropathic pain.
In a June 10, 2008 medical report, Dr. Heary stated that appellant experienced lower
extremity and low back pain since she fell at work on April 20, 2006. He noted that appellant
was ambulatory with a straight cane secondary to weakness. Dr. Heary performed a physical
examination and diagnosed lumbar degenerative disc disease at L5-S1. He recommended
surgical and weight loss treatment.
By decision dated December 16, 2008, the Office hearing representative affirmed the
May 27, 2008 termination of benefits, finding that Dr. Gupta’s medical report represented the
weight of the medical evidence and that appellant did not submit rationalized medical evidence
sufficient to overcome the special weight accorded the Dr. Gupta’s opinion of the impartial
medical specialist.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation.1 After it has been determined that an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.2
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.3 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.4
To terminate authorization for medical treatment, the Office must establish that appellant no
longer has residuals of an employment-related condition, which requires further medical
treatment.5
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.6
1

A.W., 59 ECAB ___ (Docket No. 08-306, issued July 1, 2008).

2

J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007).

3

See Del K. Rykert, 40 ECAB 284 (1988).

4

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007).

5

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

6

Gloria J. Godfrey, 51 ECAB 486 (2001).

4

ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained lumbar spine radiculopathy as a result of her
work-related fall on April 20, 2006. Appellant sustained a recurrence of her employment-related
injury on June 14, 2007 and stopped working on June 19, 2007. The Office placed her on the
periodic rolls on October 2, 2007. The issue is whether it properly terminated appellant’s wageloss and medical benefits effective May 27, 2008.
Appellant’s treating physician, Dr. Florence, opined that appellant could not work due to
chronic pain in her legs and back related to the spinal radiculopathy. The Office referred her to a
second opinion physician, Dr. Vigman, who concluded that she no longer had a lower back
disease and was capable of returning to her regular work without restrictions. It properly found
that a conflict of medical opinion arose between Drs. Florence and Vigman regarding whether
appellant had any residuals or disability from her employment-related injury. The Office
referred appellant, together with her medical record and a statement of accepted facts, to
Dr. Gupta, a Board-certified neurologist, for an impartial medical examination to resolve the
conflict.7
In a March 3, 2008 medical report, Dr. Gupta reported appellant’s complaints of lower
back and left extremity pain but noted that her complaints were not characteristic of radicular
pain. He performed a physical examination during which he did not find any evidence of disc
disease or lumbosacral radiculopathy. Dr. Gupta did note diminished sensation in the lower left
extremity, however, he stated that the loss was nonorganic and functional and did not correspond
to a peripheral root or nerve distribution. He also reviewed an MRI scan showing a mild central
disc bulge at L5-S1, which he opined was a common finding in the population and not abnormal.
Dr. Gupta stated that appellant did not have any neurological reasons for the continued pain and
that she could return to full-time work. At the Office’s request, in an April 17, 2008 addendum,
he clarified that he had reviewed the statement of accepted facts prior to preparing his report and
that appellant could return to work full time without any restrictions.
Appellant subsequently submitted a May 20, 2008 medical report from Dr. Florence, who
reiterated that she experienced persistent pain and should be off duty until July 21, 2008. A
May 6, 2008 note from Dr. Heary recommended a lumbar discogram, and a May 20, 2008
medical report from Dr. Parikh, stated that appellant was diagnosed with facet arthropathy of the
lumbar spine and disc desiccation of the L5-S1 and was undergoing lumbar discogram on
May 21, 2008.
The Board finds the Office properly terminated appellant’s benefits effective
May 27, 2008. Where there exists a conflict in medical opinion and the case is referred to an
impartial medical examiner for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background is entitled
to special weight.8 Dr. Gupta’s medical report was well rationalized and based on a proper
7

When there are opposing medical reports of virtually equal weight and rationale, the case must be referred to an
impartial medical specialist, pursuant to section 8123(a), to resolve the medical conflict. Richard R. LeMay, 56
ECAB 341 (2005).
8

Willie M. Miller, 53 ECAB 697 (2002).

5

factual background and medical history. His opinion, that appellant no longer had any residuals
from her lumbar radiculopathy and could return to work, is entitled to the special weight afforded
an impartial medical examiner.
Appellant did not submit sufficient medical evidence to overcome the special weight
accorded to Dr. Gupta’s opinion. Dr. Heary merely recommended a lumbar discogram. He did
not provide a rationalized medical opinion explaining how appellant was still disabled or
experiencing residuals from her employment-related injury. Thus, this report is of diminished
probative value.9 Dr. Parikh only mentioned appellant’s lumbar spine diagnoses and that she
was to undergo a lumbar discogram on May 21, 2008. He did not address whether she was
continuing to experience any residuals or disability from her employment injury. Dr. Parikh did
not explain the reasons for the upcoming lumbar discogram or discuss whether the surgery was
related to the April 20, 2006 injury. Thus, this report is similarly of diminished probative
value.10 Finally, in the May 20, 2008 medical report, Dr. Florence stated that appellant had
continuing lower back pain and that she should be off work until July 21, 2008. He did not
provide any rationale as to how her employment injury contributed to her lower back pain or
continuing disability. Moreover, Dr. Florence essentially reiterated his prior opinion regarding
appellant’s disability. As he was on one side of the conflict resolved by the impartial medical
specialist, his report is insufficient to create a new conflict.11
The Board finds that Dr. Gupta’s medical opinion, that appellant was no longer
experiencing any residuals of her employment-related lumbar radiculopathy, represents the
weight of the medical opinion. Appellant did not submit any probative medical evidence
sufficient to overcome the weight of Dr. Gupta’s opinion. Therefore, the Board finds that the
Office properly terminated appellant’s medical and wage-loss benefits effective May 27, 2008.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to her accepted
injury.12 To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence, based on a complete factual and medical background, supporting such a causal
relationship.13 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.14 Rationalized medical evidence
9

See Jimmie H. Duckett, 52 ECAB 332 (2001).

10

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

11

The Board has held that reports from a physician who was on one side of a medical conflict that an impartial
specialist resolved are generally insufficient to overcome the weight accorded to the report of the impartial medical
examiner or to create a new conflict. E.H., 60 ECAB ___ (Docket No. 08-182, issued July 8, 2009).
12

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

13

Kathryn E. Demarsh, supra note 5.

14

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elizabeth Stanislav, 49 ECAB 540 (1998).

6

is medical evidence which includes a physician’s rationalized medical 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.15
ANALYSIS -- ISSUE 2
The issue is whether appellant established any continuing disability or residuals related to
her employment injury after May 27, 2008. Subsequent to the Office’s termination of
compensation benefits, she submitted a June 17, 2008 medical report from Dr. Florence, who
reported appellant’s complaints of back and left leg pain. Dr. Florence was on one side of the
conflict that Dr. Gupta resolved. Thus, his additional report is insufficient to overcome the
special weight accorded Dr. Gupta’s opinion or to create a new conflict.16
Further, appellant submitted a June 10, 2008 medical report from Dr. Heary, who stated
that appellant experienced lower extremity and low back pain since her April 20, 2006 workrelated fall. Dr. Heary diagnosed lumbar degenerative disc disease at L5-S1 based on a physical
examination and recommended surgical and weight-loss treatment. He did not provide a
rationalized medical opinion explaining how appellant’s April 20, 2006 injury was related to the
low back and lower extremity pain or any ongoing disability. Further, Dr. Heary only addressed
a degenerative disc disease at L5-S1. The only accepted condition in this case is lumbar
radiculopathy. As Dr. Heary did not provide an opinion explaining how the degenerative disc
disease was related to the accepted lumbar radiculopathy or otherwise resulted from the April 20,
2006 employment injury, his report is of diminished probative value.17
Finally, appellant submitted an August 25, 2008 medical report from a certified nurse
practitioner, who stated that appellant was unable to work in any capacity until January 2, 2009.
A nurse practitioner is not included in the definition of a physician under the Federal Employees’
Compensation Act. Thus, this medical note is also of diminished probative value.18
The remaining chart notes, laboratory testing report, operative report and diagnostic test
reports do not address appellant’s continuing disability or provide a rationalized medical opinion
that she continued to experience residuals of her employment-related injury. Thus, these reports
are further insufficient to overcome the weight of Dr. Gupta’s report.19
15

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007); Solomon Polen, 51 ECAB 341 (2000).

16

See E.H., supra note 11.

17

See K.E., 60 ECAB ___ (Docket No. 08-1461, issued December 17, 2008).

18

Under section 8101(2), the definition of 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).
19

See I.J., supra note 5.

7

CONCLUSION
The Board finds that the Office properly terminated appellant’s medical and wage-loss
benefits effective May 27, 2008. The Board also finds that she did not establish any continuing
employment-related residuals or disability after May 27, 2008.
ORDER
IT IS HEREBY ORDERED THAT the December 16 and May 27, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 26, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0967
Issued: August 23, 2017

Case Submitted on the Record

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

JURISDICTION
On April 3, 2017 appellant filed a timely appeal from a November 21, 2016 merit
decision and a January 31, 2017 nonmerit 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.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
developed bilateral ulnar neuropathy causally related to factors of his federal employment; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its January 31, 2017
decision. The Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time
of its final decision, therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

FACTUAL HISTORY
On October 12, 2016 appellant, then a 59-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed bilateral ulnar neuropathy as a result of
his federal employment duties which entailed sorting mail, picking up large parcels for delivery,
grabbing bundles of mail, and delivering packages, and which required fine manipulation of the
fingers. He first became aware of his condition on January 12, 2015 and of its relationship to his
employment on September 28, 2016. Appellant notified his supervisor of his condition on
October 13, 2016. He did not indicate that he had stopped work. On the reverse side of the
claim form, appellant’s supervisor reported that he had several claims with some of the same
body parts and conditions, noting that this was contradictory to the dates appellant had provided
pertaining to when he first became aware and related his condition to his employment.3
By letter dated October 18, 2016, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and was afforded 30 days to submit the additional evidence. In another letter of that
same date, OWCP requested the employing establishment provide additional information
pertaining to appellant’s occupational disease claim.
In an undated narrative statement received on November 17, 2016, appellant described
his employment duties which involved the repetitive use of his arms and hands to case flats and
letters. He also explained that he would then load the letters and parcels to his delivery truck and
spend the remainder of the day performing curbside deliveries.
In support of his claim, appellant submitted January 12, 2015 and September 28, 2016
medical reports from Dr. Michael T. Acurio, a Board-certified orthopedic surgeon. In the
January 12, 2015 report, Dr. Acurio noted that appellant complained of bilateral upper extremity
pain, neck pain, and back pain. He noted that appellant underwent nerve studies which
demonstrated a moderate neuropathy. Dr. Acurio diagnosed cervical and lumbar disc disease,
pelvic girdle dysfunction, and ulnar neuropathy.
In the September 28, 2016 report, Dr. Acurio related that appellant complained of
increasing numbness, tingling, and pain in his elbows. He was previously noted to have ulnar
neuropathies bilaterally. Appellant reported that his job entailed the repetitive motion of lifting
his elbows and transporting mail pieces approximately 1,000 times daily. Physical examination
of the upper extremities revealed a markedly positive Tinel’s at the elbow. Dr. Acurio diagnosed
cervical and lumbar disc disease, bilateral shoulder impingement, sacroiliitis, and ulnar
neuropathies. He opined that appellant’s condition was work related and he provided work
restrictions.
By decision dated November 21, 2016, OWCP denied appellant’s claim finding that the
medical evidence of record did not show that his diagnosed condition was causally related to the
established factors of his federal employment.
3

Appellant has seven other traumatic injury claims and two other occupational disease claims with a date of
injury ranging from July 5, 2001 through March 28, 2016. The record before the Board contains no other
information pertaining to appellant’s other claims.

2

On December 19, 2016 appellant requested reconsideration of OWCP’s decision. He
provided a narrative statement describing his course of medical treatment for his neck, hand, and
elbow injuries. No other evidence was received.
By decision dated January 31, 2017, OWCP denied appellant’s request for
reconsideration, finding that he neither raised substantive legal questions nor included relevant
and pertinent new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.7 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
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.8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence based on a complete factual and medical background, supporting such a causal
relationship.9 The opinion of the physician must be one of reasonable medical certainty and
4

Supra note 1.

5

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

6

Michael E. Smith, 50 ECAB 313 (1999).

7

Elaine Pendleton, supra note 5.

8

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

9

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

3

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. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant engaged in repetitive activities fulfill his employment
duties as a letter carrier. It denied his claim, however, finding that the evidence of record failed
to establish causal relationship between those activities and his bilateral ulnar neuropathy
condition. The Board finds that the medical evidence of record is insufficient to establish that
appellant developed bilateral ulnar neuropathy causally related to factors of his federal
employment as a letter carrier.11
In a January 12, 2015 report, Dr. Acurio noted that a nerve study demonstrated a
moderate neuropathy. As the physician failed to discuss appellant’s employment duties or
provide any opinion regarding the casual nature of his condition, this report is insufficient to
establish appellant’s occupational disease claim. The Board has held that medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value.12
In a September 28, 2016 medical report, Dr. Acurio reported that appellant complained of
increasing numbness, tingling, and pain in his elbows. He diagnosed cervical and lumbar disc
disease, bilateral shoulder impingement, sacroiliitis, and ulnar neuropathies. Dr. Acurio opined
that appellant’s condition was work related. The Board finds that Dr. Acurio failed to provide a
well-rationalized opinion pertaining to the cause of appellant’s injuries and only generally
repeated his allegations pertaining to his employment factors. Such generalized statements do
not establish causal relationship because they merely repeat appellant’s allegations and are
unsupported by adequate medical rationale explaining how or why this physical activity actually
caused the diagnosed condition.13 Dr. Acurio failed to provide a fully detailed report as he made
no mention of appellant’s medical history and only briefly noted findings on physical
examination and review of diagnostic testing. Appellant’s medical history is of particular
importance given that appellant has filed nine prior workers’ compensation claims.14 Moreover,
while Dr. Acurio had some knowledge of appellant’s repetitive employment duties, his statement
on causation failed to provide a sufficient explanation as to the mechanism of injury pertaining to
10

James Mack, 43 ECAB 321 (1991).

11

S.Y., Docket No. 11-1816 (issued March 16, 2012).

12

B.B., Docket No. 17-919 (issued June 28, 2017).

13

K.W., Docket No. 10-98 (issued September 10, 2010).

14

A well-rationalized opinion is particularly warranted when there is a history of preexisting condition. T.M.,
Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

4

this occupational disease claim as alleged by appellant, namely, how repetitive sorting and
delivering mail/packages would cause his bilateral ulnar neuropathy.15 Without explaining how
physiologically the movements involved in appellant’s employment duties caused or contributed
to his diagnosed condition, his opinion on causal relationship is equivocal in nature and of
limited probative value.16
On appeal appellant asserts that his ulnar nerve condition is work related and caused him
difficulty in performing his employment duties. The Board has held an award of compensation
may not be based on surmise, conjecture, speculation, or on the employee’s own belief of causal
relation.17 Appellant’s honest belief that his occupational employment duties caused his medical
injury is not in question, but that belief, however sincerely held, does not constitute the medical
evidence necessary to establish causal relationship.18 In the instant case, the record lacks
rationalized medical evidence establishing causal relationship between appellant’s federal
employment duties as a letter carrier and his diagnosed bilateral ulnar neuropathy. Thus,
appellant has failed to meet his burden of proof.19
Appellant may submit this additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.20 Section 10.608(b) of OWCP regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.21

15

S.W., Docket 08-2538 (issued May 21, 2009).

16

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
17

D.D., 57 ECAB 734 (2006).

18

P.P., Docket No. 17-0483 (issued June 13, 2017).

19

See supra note 16.

20

D.K., 59 ECAB 141 (2007).

21

20 C.F.R. § 10.606(b)(3); see also K.H., 59 ECAB 495 (2008).

5

ANALYSIS -- ISSUE 2
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the
claim. In his application for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law. He did not advance a new and relevant legal
argument. Appellant argued that his injury was employment related and described his
employment duties and subsequent medical treatment.22 The underlying issue in this case was
whether appellant developed bilateral ulnar neuropathy causally related to his accepted repetitive
employment duties. That is a medical issue which must be addressed by relevant new medical
evidence.23 In this case, appellant did not submit any relevant and pertinent new medical
evidence.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or constitute relevant and pertinent new evidence not previously considered. Pursuant to
20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
bilateral ulnar neuropathy is causally related to factors of his federal employment as a letter
carrier. The Board further finds that OWCP properly denied his request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

22

Sherry A. Hunt, 49 ECAB 467 (1998).

23

See Bobbie F. Cowart, 55 ECAB 746 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated January 31, 2017 and November 21, 2016 are affirmed.
Issued: August 23, 2017
Washington, DC

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

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

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

7