United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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VETERANS HEALTH ADMINISTRATION,
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Augusta, GA, Employer
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D.M., Appellant

Docket No. 15-0504
Issued: June 21, 2016

Appearances:
Paul H. Felser, Esq., for the appellant
Office of Solicitor, for the Director

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 January 5, 2015 appellant, through counsel, filed a timely appeal of a September 24,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 As more
than 180 days elapsed from April 1, 2013, the date of the most recent OWCP merit decision, to
the filing of the current appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
appellant’s claim.

1

Appellant requested oral argument before the Board. In an October 8, 2015 order, the Board exercised its
discretion and denied her request, noting that her arguments on appeal could be adequately addressed in a Board
decision based on a review of the case record as submitted. Order Denying Request for Oral Argument, Docket No.
15-0504 (issued October 8, 2015).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 7, 1987 appellant, then a 38-year-old nursing assistant, filed a traumatic
injury claim alleging that on that date a patient struck her in the left side of her chest in the
performance of duty. She did not initially stop work. OWCP accepted the claim for lumbar
sprain and bulging discs at L3-4 and L4-5. Appellant was subsequently placed on the periodic
rolls.
OWCP continued to develop the claim.
On April 15, 2011 OWCP determined there was a conflict in the medical evidence
between Dr. Leslie Pollard, Jr., the treating physician Board-certified in family medicine, who
found appellant totally disabled, and the second opinion physician, Dr. James Bethea, a Boardcertified orthopedic surgeon, who found that appellant was not capable of working her date-ofinjury job but that she could work another type job with restrictions. OWCP referred appellant
to Dr. Thomas R. Cadier, a Board-certified orthopedic surgeon, for an impartial medical opinion
as to appellant’s work capacity.
In his June 27, 2011 report, Dr. Cadier noted appellant’s history of injury and findings on
examination. He determined that she could not perform her date-of-injury job as a nursing
assistant for multiple reasons. Dr. Cadier noted that appellant had been out of the work force for
greater than 20 years and had multiple comorbidities along with her on-going complaints of
persistent back pain. He advised that she was capable of working in another type of job with
restrictions. Dr. Cadier noted an absence of significant objective finding and opined that the
accepted injuries should have resolved. He advised that appellant still complained of pain, but
that it was impossible to quantify. Dr. Cadier opined that the work injury had resolved, but the
ongoing pain had not resolved. He explained that appellant could work in a sedentary-type job.3
On August 5, 2011 OWCP requested clarification from Dr. Cadier with regard to whether
her accepted conditions of lumbar sprain and bulging discs at L3-4 and L4-5 had completely
resolved in relation to the January 7, 1987 work-related incident.
In an August 8, 2011 response, Dr. Cadier opined that bulging discs were present but that
the work-related injury had resolved.
In a letter dated September 8, 2011, OWCP requested clarification with regard to bulging
discs and whether they were related to the work-related incident and whether or not they had
3

Dr. Cadier also noted that the most practical way to resolve her case would be to accept the fact that she was
near retirement and met the Medicare standard of disability, i.e., she could reasonably be placed on social security
disability with the above diagnoses and, therefore, terminate her workers’ compensation disability status, provided
she was given extensive job training.

2

resolved. It also requested whether there were any work restrictions related to the accepted
condition of bulging discs.
In a September 26, 2011 response, Dr. Cadier opined that bulging discs were a product of
normal degenerative change over time and there were no objective findings in appellant’s case to
suggest they were related to the accepted work incident. He explained that he did not expect
them to “resolve” since they were simply a radiographic finding. Dr. Cadier indicated that he
would not place any work restrictions on appellant simply due to the bulging discs which were
discovered following the work incident, as they appeared over months and years due to slow disc
degeneration. He advised that any work restrictions would be due to her multiple preexisting
medical problems and not due to the presence of the bulging discs.
On October 21, 2011 OWCP proposed to terminate appellant’s wage-loss and medical
benefits. Appellant submitted two medical reports dated November 3 and 8, 2011 from
Dr. Alex D. Collins, a Board-certified orthopedic surgeon and an osteopath. Dr. Collins found
that appellant’s pain had been constant since her January 7, 1987 incident.
On December 1, 2011 OWCP finalized the termination, effective that date, finding that
the medical evidence of record failed to support continued residuals related to the work injury of
January 7, 1987. It relied upon the report of the impartial medical examiner, Dr. Cadier, a
Board-certified orthopedic surgeon. OWCP explained that there were no objective findings to
support continuing disability due to the accepted bulging discs.
On December 12, 2011 counsel for appellant requested an oral hearing, which was held
on March 12, 2012. During the hearing, he argued that appellant remained disabled and
questioned the validity of the impartial medical examiner. Counsel indicated that Dr. Cadier was
over 200 miles away and that he did not examine appellant or take x-rays or CT scans. He also
discussed Dr. Cadier’s medical report, and found it was the only contradictory report. In a
separate letter, also dated December 12, 2011, counsel argued that there never had been a
conflict in the medical opinion and that OWCP failed to follow its procedures to give proper
notice.
By decision dated May 14, 2012, the OWCP hearing representative affirmed the
December 1, 2011 decision. He found the report from Dr. Cadier was sufficient to carry the
weight of the medical evidence and affirmed the termination.
In a letter dated June 21, 2012, counsel for appellant requested reconsideration of the
May 14, 2012 decision and enclosed a report from Dr. Collins dated June 1, 2012. Dr. Collins
opined that appellant was permanently disabled, unable to work, and was currently receiving
injections for her conditions.
On August 30, 2012 OWCP denied modification of the prior decision, finding that
Dr. Collins’ opinion was based on an inaccurate history and was insufficient to overcome the
weight of Dr. Cadier.
On February 13, 2013 appellant requested reconsideration. In a December 11, 2012
statement, she stated that she was injured at work in January 1987 and received workers’
compensation from 1987 to November 2011. Appellant advised that she continued to receive
3

treatment and her condition had not resolved. She argued that all of her physicians found that
she was unable to work. Appellant also acknowledged that the impartial medical examiner,
Dr. Cadier, thought her condition was a product of normal degenerative change, but she believed
Dr. Cadier was searching for a reason to terminate her benefits. She also argued that
Dr. Cadier’s opinion should not be given special weight as he did not perform any tests or
provide treatment. Appellant complained that she had to travel three hours away to see
Dr. Cadier and noted his contradictory reasoning when he found her not disabled, but could be
on social security disability.
Appellant provided an October 17, 2012 report from her treating physician, Dr. Collins,
who advised that her low back pain began with her on-the-job injury on January 7, 1987.
Dr. Collins explained that this led to spondylosis of the back, which in turn led to chronic
changes, which led to the current diagnosis of bulging discs. He opined that appellant was
unable to work due to these bulging discs and her back pain which limited her ability to walk and
get up and down from a chair. Dr. Collins found appellant permanently disabled.
By decision dated April 1, 2013, OWCP denied modification of the prior decision as
Dr. Collins had simply restated his opinion which did not overcome the weight of Dr. Cadier.
By letter dated March 31, 2014, appellant’s counsel requested reconsideration. He
argued that Dr. Cadier, the impartial medical examiner, had not provided a conclusive opinion to
resolve the conflict. Counsel also argued that leading questions had been presented to
Dr. Cadier, who then changed his original position. He further contended that Dr. Cadier’s
report was not based upon a proper statement of accepted facts. Counsel argued that the
statement of accepted facts was incomplete and did not contain information vital to the claim.
He specifically noted the medical history and argued that Dr. Cadier did not account for the fact
that appellant was able to perform her full work duties, unrestricted, before her work injury.
Additionally, he argued the report was not rationalized and did not explain how the accepted
conditions had resolved and became age related. Counsel noted that Dr. Cadier did not refer to
any of the treating physician’s reports or notes and omitted reference to the medical
documentation available from 1987 to the present. He noted that Dr. Cadier did not properly
assess the preinjury base line, or compare that with the present status of her injury, which
effectively prevented the physician from assessing whether an aggravation of a preexisting
condition occurred or contributed to the development of any preexisting condition. Furthermore,
counsel argued that appellant had developed additional conditions resulting from the work
incident which were not addressed. Additionally, he argued that the medications that had been
prescribed for appellant had documented side effects, which should be compensable. Counsel
noted that in 1992 appellant attempted to return to work, but was unable to do so and she was
found totally and completely disabled by OWCP. He alleged that Dr. Cadier did not
acknowledge these reemployment efforts. Counsel argued that OWCP had not met its burden of
proof to terminate her compensation and that she remained disabled. He also requested that the
claim be expanded and that appellant be referred to a new impartial medical examiner. Counsel
also advised that he was submitting new medical evidence from Dr. Justin Bundy, a Boardcertified orthopedic surgeon.
In a report dated January 14, 2014, Dr. Bundy noted appellant’s history of injury and
treatment. He advised that she presented with a history of sharp, shooting, and stabbing pain in

4

the lumbar region that occurred constantly. Dr. Bundy examined appellant and diagnosed
lumbar degenerative disc disease. He recommended additional treatment, which appellant
declined. Dr. Bundy opined that she had never recovered from her injury. He explained that
appellant’s condition had progressed “likely due to age and degenerative changes.”
In a decision dated September 24, 2014, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant review of its prior
decision.
LEGAL PRECEDENT
Under section 8128(a) of FECA,4 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(3) 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 which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”5
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
OWCP without review of the merits of the claim.6
ANALYSIS
The Board finds that appellant has submitted new evidence requiring further merit
review.
Appellant through counsel disagreed with the April 1, 2013, decision, affirming the
termination of her compensation and medical benefits, effective December 1, 2011, and timely
requested reconsideration on March 31, 2014. OWCP denied appellant’s timely application for
reconsideration in a September 24, 2014 decision finding that no new evidence was offered
warranting further merit review. OWCP found that the evidence submitted was repetitious and
immaterial. It also advised that counsel’s arguments on reconsideration were similar to those
previously considered.

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608(b).

5

The Board notes that counsel submitted a relevant and pertinent new report from
Dr. Bundy dated January 14, 2014. This report is relevant as the physician supports that
appellant never recovered from her work injury. The Board also finds that counsel presented
new argument in support of the requested reconsideration. Because appellant submitted new and
relevant argument and evidence in support of her March 31, 2014 reconsideration request, the
Board finds that OWCP improperly denied further merit review of her case. The September 24,
2014 decision will be set aside and the case remanded for OWCP to review her claim and issue a
merit decision.
On appeal, counsel argued that at the very least she should have been given a merit
review. The Board has remanded the claim for a merit review.
CONCLUSION
The Board finds that OWCP improperly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and remanded.
Issued: June 21, 2016
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, Fremont, CA, Employer
__________________________________________

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

Docket No. 21-0116
Issued: June 8, 2021

Case Submitted on the Record

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

JURISDICTION
On November 3, 2020 appellant filed a timely appeal from a July 1, 2020 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted August 8, 2018 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 1, 2020 decision, appellant submitted additional evidence to OWCP.
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.

FACTUAL HISTORY
On September 17, 2018 appellant, then a 23-year-old volunteer, filed a traumatic injury
claim (Form CA-1) alleging that on August 8, 2018 she suffered a right foot injury when climbing
down from a rock while in the performance of duty. On the reverse side of the claim form the
employing establishment acknowledged that appellant was injured in the performance of duty.
Appellant did not stop work.
In an accompanying narrative statement, appellant noted that on August 8, 2018 she was
spraying plants at a national wildlife refuge. While climbing down rocks to return to the trail, she
jumped approximately three feet and landed on her right foot. Appellant reported experiencing
sharp pain on the lateral side of her foot, which subsided after a few minutes. She noted that she
continued to work and only experienced sharp foot pain when hitting the lateral side of her right
foot. Appellant indicated that on August 20, 2018 she began treating her foot with ice, heat, cold
laser, taping, and use of a walking boot, but continued to walk on her foot with some discomfort.
She reported that walking short and moderate distances began to cause lingering pain and she
began reducing use of her right foot. Appellant noted that she reported her right foot condition to
the employing establishment on September 11, 2018. She indicated that as of September 14, 2018
she was using an immobilization boot with a knee scooter or crutches.
In an October 11, 2018 report, Dr. John Ambrosino, a podiatrist, noted that appellant
experienced right foot pain and numbness after jumping from a rock and landing on her foot on
August 8, 2018. He examined appellant and reviewed x-rays of her right foot. Dr. Ambrosino
diagnosed traumatic tarsal tunnel syndrome of the right foot, possible stress fracture of the right
foot, peroneus brevis tendinitis of the right foot, metatarsalgia of the fifth metatarsal shaft of the
right foot, right foot pain, cuboid syndrome of the right foot, bilateral plantar fasciitis, bilateral
plantar calcaneal bursitis, bilateral functional instability of the joint, bilateral limb pain, and
bilateral edema. He recommended physical therapy treatment and use of crutches or a kneewalker.
On November 19, 2018 Dr. Ambrosino noted that appellant experienced ongoing bilateral
foot pain. He provided physical examination findings and reviewed x-rays of her bilateral ankles.
Dr. Ambrosino diagnosed traumatic tarsal tunnel syndrome of the right foot, possible stress
fracture of the right foot, peroneus brevis tendinitis of the right foot, metatarsalgia of the fifth
metatarsal shaft of the right foot, right foot pain, cuboid syndrome of the right foot,
osteoarthritis/degenerative joint disease of the tibiotalar joint of the right foot, bilateral plantar
fasciitis, bilateral plantar calcaneal bursitis, bilateral functional instability of the joint, bilateral
limb pain, and bilateral edema.
In a January 30, 2019 report, Dr. Ambrosino noted that appellant’s bilateral ankle and foot
pain had decreased since her last visit. He examined appellant and reviewed x-rays of her right
foot and ankle. Dr. Ambrosino provided the same diagnoses and recommended continued physical
therapy treatment.
In a narrative statement dated February 15, 2019, appellant noted that she avoided putting
weight on her right foot from September 14 through December 10, 2018. She indicated that she
relied solely on her left foot for movement. Appellant reported that on December 5, 2018, she put

2

her left foot down and experienced a sharp pain on the lateral side of her foot. She noted that she
experienced substantial pain that improved once she began using her right foot. Appellant
indicated that she wanted to include her left foot condition in her claim as extended use of one foot
appeared to be a direct contributor to her condition.
In a development letter dated March 18, 2019, OWCP indicated that, when appellant’s
claim was first received it appeared to be a minor injury that resulted in minimal or no lost time
from work and, based on these criteria and because the employing establishment did not controvert
continuation of pay or otherwise challenge the case, payment of a limited amount of medical
expenses was administratively approved. It explained that it had reopened the claim for
consideration because appellant requested that a consequential condition be included in her claim.
OWCP requested additional factual and medical evidence in support of her claim and provided a
questionnaire for her completion. It afforded appellant 30 days to submit the necessary evidence.
No additional evidence was received.
By decision dated April 18, 2019, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
conditions and the accepted August 8, 2018 employment incident.
OWCP continued to received medical reports from Dr. Ambrosino, dated October 22, 2018
through October 7, 2019, who provided physical examination findings, reviewed x-rays of
appellant’s bilateral feet and ankles, detailed her bilateral foot and ankle treatment, and diagnosed
traumatic tarsal tunnel syndrome of the right foot, possible stress fracture of the right foot,
peroneus brevis tendinitis of the right foot, metatarsalgia of the fifth metatarsal shaft of the right
foot, right foot pain, cuboid syndrome of the right foot, osteoarthritis/degenerative joint disease of
the tibiotalar joint of the right foot, bilateral plantar fasciitis, bilateral plantar calcaneal bursitis,
bilateral functional instability of the joint, bilateral limb pain, and bilateral edema.
In a February 18, 2020 report, Dr. Larry Woodcox, a podiatrist, noted that appellant
jumped from a rock and landed on her right foot while at work. He provided physical examination
findings and diagnosed right foot post-strain/sprain, post-traumatic tendinitis/tendinosis of the fifth
metatarsal of the right foot, and calcaneocuboid instability with chronic cuboid syndrome.
Dr. Woodcox opined that the accepted August 8, 2018 employment incident was more than likely
the medical cause of appellant’s conditions. He requested authorization for a magnetic resonance
imaging (MRI) scan of her right foot to assess for peroneal tendon damage and calcaneocuboid
ligament damage. Dr. Woodcox advised that appellant’s work restrictions included no climbing,
walking on uneven terrain, or squatting for more than an occasional basis.
On April 7, 2020 appellant requested reconsideration.
In support of her request, appellant submitted additional reports from Dr. Ambrosino, dated
October 31, 2018 through November 4, 2019, who provided physical examination findings and
noted treatment of appellant’s ongoing bilateral foot and ankle conditions.
By decision dated July 1, 2020, OWCP denied modification of the April 18, 2019 decision.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 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.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 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 incident identified by the claimant.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted August 8, 2018 employment incident.
In support of her claim, appellant submitted numerous reports from Dr. Ambrosino, dated
October 11, 2018 through November 4, 2019, who provided physical examination findings,
reviewed x-rays of her bilateral feet and ankles, and noted her bilateral foot and ankle treatment.
Dr. Ambrosino diagnosed traumatic tarsal tunnel syndrome of the right foot, possible stress
3

Supra note 1.

4
M.O., Docket No. 19-1398 (issued August 13, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.R., Docket No. 20-0496 (issued August 13, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6

B.M., Docket No. 19-1341 (issued August 12, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.J., Docket No. 19-0461 (issued August 11, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

8

D.M., Docket No. 20-0386 (issued August 10, 2020); John J. Carlone, 41 ECAB 354 (1989).

9

A.R., Docket No. 19-0465 (issued August 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

W.L., Docket No. 19-1581 (issued August 5, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

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fracture of the right foot, peroneus brevis tendinitis of the right foot, metatarsalgia of the fifth
metatarsal shaft of the right foot, right foot pain, cuboid syndrome of the right foot,
osteoarthritis/degenerative joint disease of the tibiotalar joint of the right foot, bilateral plantar
fasciitis, bilateral plantar calcaneal bursitis, bilateral functional instability of the joint, bilateral
limb pain, and bilateral edema. However, he did not offer an opinion as to whether any of
appellant’s diagnosed conditions were causally related to the accepted August 8, 2018 employment
incident in any of his reports. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.11 Accordingly, these reports are insufficient to meet appellant’s burden of
proof to establish her claim.
Appellant also submitted a February 18, 2020 report from Dr. Woodcox who provided
physical examination findings and diagnosed right foot post strain/sprain, post-traumatic
tendinitis/tendinosis of the fifth metatarsal of the right foot, and calcaneocuboid instability with
chronic cuboid syndrome. While he opined that the accepted August 8, 2018 employment incident
was more than likely the medical cause of appellant’s conditions, Dr. Wilcox offered only a
conclusory statement devoid of medical rationale. He did not explain the medical mechanics of
how the accepted employment incident of jumping and landing on her foot was competent to cause
appellant’s diagnosed conditions. The Board has held that a medical report is of limited probative
value on a given medical issue if it contains an opinion which is unsupported by medical
rationale.12 Consequently, this report is also insufficient to establish appellant’s claim.
As the medical evidence of record does not contain rationalized medical evidence
establishing causal relationship between appellant’s diagnosed conditions and the accepted
August 8, 2018 employment incident, the Board finds that appellant has not met her burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted August 8, 2018 employment incident.

11

P.C., Docket No. 20-0855 (issued November 23, 2020).

12

V.S., Docket No. 20-1034 (issued November 25, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the July 1, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 8, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 15-1878
Issued: January 6, 2016

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 September 14, 2015 appellant, through counsel, filed a timely appeal from a June 30,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his diagnosed
medical conditions were causally related to factors of his federal employment.
On appeal appellant, through counsel, contends that he submitted sufficient evidence to
establish his claim or, at the minimum, sufficient evidence to require further development of the
medical evidence.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 18, 2012 appellant, then a 55-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that, as a result of his federal duties, he suffered from
bilateral osteoarthritis of his hips, aseptic necrosis of the bone, and stiffness. He noted that as a
carrier his job consisted of repetitive movements of the hip, such as walking up and down steps,
twisting and turning, bending, lifting, and standing long periods of time on cement floors for six
to eight hours, five days a week for 24 years.
In support of his claim, appellant submitted a March 31, 2011 report from Dr. Shital S.
Desai, a Board-certified family practitioner. Dr. Desai indicated that appellant was first seen in
his office for hip pain on November 18, 2005, and that he has had similar complaints on May 10,
June 26, and July 31, 2006; April 1, 2009; December 13, 2010; February 9, 22, and 23, and
March 9, 2011. He noted that appellant had been diagnosed with iliotibial band syndrome and
arthritis of the hip, both of which can happen with overuse from prolonged walking.
By letter to appellant dated March 5, 2012, OWCP informed appellant of the information,
including medical evidence that was needed to support his claim. Appellant responded to
questions regarding the activities of his federal employment, but did not submit any new medical
evidence.
By decision dated April 19, 2012, OWCP denied appellant’s claim because he had not
submitted medical evidence establishing that a diagnosed medical condition was causally related
to the accepted factors of his employment.
On June 8, 2012 appellant requested reconsideration. In support of his request, he
submitted a May 14, 2012 report from Dr. Desai wherein he listed appellant’s active problems as
hypertension, abnormal glucose tolerance test (prediabetes), iliotibial band syndrome, history of
flexible sigmoidoscopy, shoulder region pain, osteoarthritis of hip, and severe obesity. Dr. Desai
noted that appellant’s iliotibial band syndrome and shoulder region pain were overuse injuries
that may be due to his work-related activities of walking and lifting of mail. He noted that
appellant has successfully completed required imaging, physical therapy and orthopedics consult
for these issues, and was taking medications for the pain. Dr. Desai noted that the x-ray of his
shoulder on January 7, 2011 showed no fracture or dislocation, but did show arthritic changes in
the acromioclavicular joint with a large spur in the inferior border of the distal clavicle. He
noted that appellant had a magnetic resonance imaging (MRI) scan of his hips on February 27,
2011 that showed advanced degenerative changes involving the bilateral hips, probably avascular
necrosis involving the left hip, and probably cystic lesion involving the right iliac bone.
Appellant submitted a copy of the x-ray and MRI scan reports that Dr. Desai referenced in his
opinion. He also submitted a copy of an x-ray taken on February 9, 2011 which was interpreted
as showing advanced osteoarthritis/avascular necrosis (AVN) of both hips.
By decision dated September 12, 2012, OWCP denied modification of the April 19, 2012
decision.
On December 5, 2012 appellant again requested reconsideration. He submitted a new
undated report by Dr. Desai, which OWCP received on December 5, 2012. Dr. Desai detailed
his treatment of appellant, noting that he first saw him for iliotibial band syndrome which had
2

worsened. He noted that appellant was referred to physical therapy for seven visits. Dr. Desai
noted that appellant saw him again on December 13, 2010 for the same complaint, and he
referred him to physical therapy for 10 visits. He noted that during this time period appellant had
an MRI scan of his hip that showed advanced arthritis of both hips and probable AVN of the left
hip. Dr. Desai noted that appellant continued to see him for hip pain from September 8, 2011
through October 1, 2012. He noted that in these visits appellant complained that continuous
standing, bending and stair climbing aggravated his pain, and that he appeared to do better with
rest and avoidance of these activities. Dr. Desai also noted that appellant was first seen for a
right shoulder injury on January 7, 2011 after tripping over a trash can. He opined that
appellant’s iliotibial band syndrome, hip arthritis, and shoulder arthritis appeared to be overuse
injuries that may be due to his employment-related activities of walking and lifting of mail.
Dr. Desai noted that appellant had successfully completed the required imaging, physical therapy
and orthopedics consult for these issues and was also treated with medication for his pain.
By decision dated February 22, 2013, OWCP denied modification of its prior decisions.
On February 22, 2013 appellant again requested reconsideration. He submitted a report
signed by Dr. Desai and also signed by appellant on February 8, 2013. This report was identical
to the last report by Dr. Desai except that he noted that appellant’s iliotibial band syndrome, hip
arthritis, and shoulder arthritis were overuse injuries due to his employment-related activities of
walking and lifting mail.
Appellant also submitted another request for reconsideration on July 25, 2013, stating his
belief that his present condition was a direct result of the prolonged climbing, walking, bending,
stooping, and kneeling that were requirements of a letter carrier’s duties. He also contended that
the medical document was sufficient to establish his claim.
By decision dated October 23, 2013, OWCP denied modification of its prior decisions.
On March 25, 2014 appellant again requested reconsideration. He submitted a statement
detailing the duties of his federal employment. In further support of his claim, appellant
submitted a March 21, 2014 report wherein Dr. Desai reiterated his treatment of appellant and
his diagnoses. Dr. Desai noted that after careful discussion with appellant of his employment
duties, it was his medical opinion that appellant’s iliotibial band syndrome, hip and shoulder
arthritis, were likely a direct result of several specific work duties, including heavy lifting of up
to 20 to 30 pounds of mail, repetitive movement of the shoulder with letter sorting, pulling
several heavy tubs of mail up and multiple steps, and prolonged walking/standing/bending and
climbing which were part of his duties as a letter carrier for the past 20 plus years.
By decision dated April 14, 2014, OWCP denied modification of the prior decisions.
On April 7, 2015 appellant, now through counsel, requested reconsideration. In his
supporting brief, counsel argued that appellant has submitted medical evidence sufficient to
establish his claim, as the evidence unequivocally established that the debilitating medical
conditions were caused by the compensable factors of appellant’s employment. Counsel further
argued that at a minimum OWCP failed to develop the evidence and must refer appellant to an
appropriate Board-certified specialist for a medical examination.

3

By decision dated June 30, 2015, OWCP denied modification of its prior decision. In this
decision it noted Dr. Desai’s opinion that appellant’s iliotibial band syndrome, hip and shoulder
arthritis were overuse injuries related to his work activities. OWCP found, however, that the
record did not contain probative medical evidence establishing causal relationship between
appellant’s diagnosed conditions, and his employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged, and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.4 To establish fact of injury in an
occupational disease claim, 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.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s 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, 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.6
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed conditions are causally related to his federal employment.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

See S.P., 59 ECAB 184, 188 (2007).

5

See Roy L. Humphrey¸ 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

6

I.J., 59 ECAB 408 (2008); supra note 3.

4

Appellant alleged that his diagnosed conditions of iliotibial band syndrome, hip arthritis,
and shoulder arthritis were causally related to the accepted factors of his federal employment.
He submitted his own statements explaining what he believed to be the causal relationship
between his work factors and his medical conditions. However, the Board has held that the
statement of a layperson is not competent evidence on the issue of causal relationship.7
Appellant also submitted multiple reports by Dr. Desai as well as the results of diagnostic
studies. In a March 31, 2011 report, Dr. Desai noted that iliotibial band syndrome and arthritis
of the hip can happen with overuse from prolonged walking. In a May 14, 2012 verification of
treatment form, he indicated that appellant’s iliotibial band syndrome and shoulder region pain
were overuse injuries that may be due to his employment-related activities of walking and lifting
mail. In another report, received by OWCP on December 5, 2012, Dr. Desai opined that
appellant’s iliotibial band syndrome, hip arthritis, and shoulder arthritis appeared to be overuse
injuries that may be due to his employment-related activities of walking and lifting mail.
Another medical report, dated February 8, 2013, provided similar opinions, with the exception
that Dr. Desai noted that appellant’s aforementioned conditions were overuse injuries.
The first reports of Dr. Desai are insufficient to establish appellant’s claim as they are
speculative in nature, as evinced by the use of terms “can happen,” “maybe due to,” and “appear
to be.” The Board has held that medical opinions that are speculative or equivocal in character
are of diminished probative value.8
The February 8, 2013 report was more definitive but lacked a through physiological
explanation supporting causal relationship. The opinion of a physician supporting causal
relationship 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.9 In his March 21, 2014 report, Dr. Desai opined that
appellant’s condition was likely a direct result of several specific work duties, including heavy
lifting of 20 to 30 pounds of mail, repetitive movement of the shoulder with letter sorting, pulling
several heavy tubs of mail multiple steps, and prolonged walking/standing/bending and climbing
that were part of his duties as a letter carrier for the past 20 years. Although Dr. Desai was more
specific in the March 21, 2014 report when he related appellant’s employment duties to his
medical condition, once again he couches his conclusion in speculative terms, noting that
appellant’s “condition is likely a direct result of several specific work duties.” Dr. Desai never
provided a probative medical explanation as to how specific employment duties caused any
specific medical condition. Accordingly, Dr. Desai’s reports are insufficient to establish causal
relationship.

7

See James A. Long, 40 ECAB 538 (1989); Susan M. Biles, 40 ECAB 420 (1988); see also J.S., Docket No.
15-0619 (issued July 17, 2015).
8

D.D., 57 ECAB 183 (2005); see also C.M., Docket No. 15-0677 (issued June 24, 2015).

9

I.J., supra note 6; see also A.F., Docket No. 14-1392 (issued October 21, 2014).

5

The Board further notes that the medical record contains diagnostic evidence. However,
this evidence is insufficient to establish causal relationship because it does not address causal
relationship.10
Appellant has not met his burden of proof as he has not submitted rationalized medical
evidence which describes specific employment factors and explains how these factors caused any
medical condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
medical conditions are causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 30, 2015 is affirmed.
Issued: January 6, 2016
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

10

G.M., Docket No. 14-2057 (issued May 12, 2015).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
DEPARTMENT OF COMMERCE, CENSUS
BUREAU, Charlotte, NC, Employer
__________________________________________

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

Docket No. 12-1058
Issued: November 19, 2012

Case Submitted on the Record

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

JURISDICTION
On April 9, 2012 appellant filed a timely appeal from the January 4, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision of June 6, 2011 and the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
does not have jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant contends that OWCP erred in denying his claim because they did not
understand the situation and did not behave in a proper manner.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 28, 2010 appellant, then a 56-year-old enumerator, filed a claim alleging that, as
a result of extensive walking and bending, he sustained an injury to his lower back and right
thigh. By decision dated December 3, 2010, OWCP denied appellant’s claim. It determined
that, although appellant had established that the employment factors occurred, he had not
established that the injury or medical condition was causally related to the compensable work
factors. This decision was affirmed by a hearing representative on June 6, 2011. The hearing
representative determined that appellant had not established that he sustained a back injury in the
performance of duty causally related to factors of his federal employment.
By letter received by OWCP on December 21, 2011, appellant requested reconsideration.
He indicated that he had new evidence to be considered. No new evidence was received by
OWCP. The record also contains a December 15, 2011 letter from appellant’s congressman
requesting that appellant’s claim be reopened. No new evidence was submitted by OWCP.
By decision dated January 4, 2012, OWCP denied appellant’s claim for reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.5
ANALYSIS
OWCP denied appellant’s claim because he had not established an injury that was
causally related to the established factors of federal employment. On appeal, appellant addresses
the merits of his case. However, the last merit decision in this case was the hearing
representative’s decision of June 6, 2011. As previously stated, this decision was issued over
180 days prior to the filing of this appeal and, accordingly, the Board does not have jurisdiction

2

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

2

to review the merits of the case.6 The only issue before the Board is whether OWCP properly
denied appellant’s reconsideration request.
Appellant submitted no new evidence with his request for reconsideration. Furthermore,
he did not argue that OWCP erroneously interpreted or applied a specific point of law nor did he
advance a relevant legal argument not previously considered. Accordingly, OWCP properly
denied appellant’s request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 4, 2012 is affirmed.
Issued: November 19, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

Id. at § 501.3(e).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Cincinnati, OH, Employer
__________________________________________

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

Docket No. 07-2277
Issued: February 21, 2008

Case Submitted on the Record

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

JURISDICTION
On September 5, 2007 appellant filed a timely appeal from a June 1, 2007 decision of the
Office of Workers’ Compensation Programs denying her claim for a back injury. Pursuant to
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 appellant sustained a back injury on March 31, 2007 while in the
performance of duty.
FACTUAL HISTORY
On April 11, 2007 appellant, then a 46-year-old nursing assistant, filed a traumatic injury
claim alleging that on March 31, 2007 she injured her low back when she attempted to lift a
patient upright in his chair. She experienced back pain but completed her shift.

On April 23, 2007 the Office requested additional evidence, including medical evidence
containing a diagnosis and an explanation as to how the diagnosed condition was causally related
to the March 31, 2007 work incident.
A March 20, 2006 magnetic resonance imaging (MRI) scan report noted that appellant
had developed back and bilateral leg pain a few weeks earlier when she lifted heavy boxes of
books. She had bi-level disc protrusions in her lumbar spine. A December 6, 2006 x-ray report
indicated mild degenerative changes in appellant’s lumbar spine. A March 21, 2007 disability
certificate indicated that she was able to return to regular work on March 22, 2007.
Notes from the employing establishment medical clinic dated February to April 2007
indicated that appellant sustained a low back strain on March 31, 2007. It is not clear whether a
physician signed the notes.
On May 3, 2007 Dr. Karen Barnes, an employing establishment physician, requested
authorization for physical therapy for appellant’s back condition. No cause was given for the
condition. In notes dated May 15, 2007, Dr. Barnes indicated that appellant could return to work
without restrictions.
Appellant submitted notes from a nurse and a physical therapist.
By decision dated June 1, 2007, the Office denied appellant’s claim on the grounds that
the evidence failed to establish that she sustained a back injury on March 31, 2007 while in the
performance of duty.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden to establish the essential elements of her claim including the fact that the individual is an
employee of the United States within the meaning of the Act, 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 determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the “fact of injury” has been
established. There are two components involved in establishing the fact of injury. First, the
employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place and in the manner alleged.4 Second, the employee must
1

Appellant submitted additional evidence subsequent to the Office decision of June 1, 2007. 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). The Board may not consider this evidence for the first time on appeal.
2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

2

submit medical evidence to establish that the employment incident caused a personal injury.5 An
employee may establish that the employment incident occurred as alleged but fail to show that
her disability or condition relates to the employment incident.
To establish a causal relationship between a claimant’s condition and any attendant
disability claimed and the employment event or incident, she must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s 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.6
ANALYSIS
The Board finds that the medical evidence is insufficient to establish that appellant
sustained a back injury on March 31, 2007 while in the performance of duty.
The x-ray and MRI scan reports of record are related to an incident at work in 2006 when
appellant developed back pain while lifting books. They are of no probative value on the issue
of whether she sustained a back injury on March 31, 2007 when she assisted a patient in his
chair. The March 21, 2007 disability certificate also precedes the claimed March 31, 2007 date
of injury and is therefore of no probative value regarding her claim for a March 31, 2007 back
injury.
The medical clinic notes dated February to April 2007 indicated that appellant sustained a
low back strain on March 31, 2007. There is no rationalized medical opinion given on the cause
of the back strain. Additionally, it is not clear whether a physician signed the notes. For these
reasons, these notes are insufficient to establish that appellant sustained a back injury on
March 31, 2007 when she lifted a patient.
On May 3, 2007 Dr. Barnes requested physical therapy authorization for appellant’s back
condition. On May 15, 2007 she indicated that appellant could return to work without
restrictions. Dr. Barnes did not provide any medical rationale explaining how appellant’s back
condition was causally related to the March 31, 2007 lifting incident. Therefore, her reports are
not sufficient to establish that appellant sustained a back injury on March 31, 2007 while in the
performance of duty.

5

Shirley A. Temple, 48 ECAB 404 (1997).

6

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, supra note 5.

3

Appellant submitted notes from a nurse and a physical therapist. However, a nurse and a
physical therapist do not qualify as physicians under the Act.7 Registered nurses, licensed
practical nurses, physician’s assistants and physical therapists are not physicians as defined
under the Act and their opinions are of no probative value.8 Consequently, these notes are not
sufficient to establish that appellant sustained a work-related back injury on March 31, 2007
There is no medical evidence containing a complete and accurate factual and medical
background, physical findings on examination and medical rationale explaining how appellant’s
back condition was causally related to the March 31, 2007 lifting incident at work. Therefore,
the Office properly denied appellant’s claim.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a back injury on
March 31, 2007 while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 1, 2007 is affirmed.
Issued: February 21, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
7

See 5 U.S.C. § 8101(2) which provides: “‘physician’ includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by state law”; see also Roy L. Humphrey, 57 ECAB ___ (Docket No. 05-1928, issued November 23, 2005);
Jennifer L. Sharp, 48 ECAB 209 (1996).
8

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
White Plains, NY, Employer
__________________________________________

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

Docket No. 15-11
Issued: April 7, 2015

Case Submitted on the Record

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

JURISDICTION
On October 3, 2014 appellant, through counsel, filed a timely appeal from an August 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 properly terminated appellant’s wage-loss and medical
compensation benefits effective November 17, 2013 on the grounds that she no longer had any
residuals or disability causally related to her employment-related injuries.
On appeal, counsel contends that the opinion of Dr. James Melton, a Board-certified
orthopedic surgeon and independent medical examiner, lacked probative value and was not
sufficient to terminate appellant’s compensation benefits.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant, then a 38-year-old postal clerk, sustained spinal
subluxations at C1, C4, and C5, lumbar subluxations at L2 and L4, and a left sacroilium
subluxation due to factors of her federal employment, including bending, lifting, pushing, and
pulling mail. By decision dated February 25, 2005, it accepted that appellant sustained a
recurrence of total disability on January 31, 2005. Appellant was placed on the periodic rolls and
received appropriate medical and wage-loss compensation benefits.
The employing
establishment accepted her application for disability retirement effective July 20, 2005.
On November 12, 2012 Dr. James Lukes, appellant’s chiropractor, diagnosed subluxation
of C5 with subluxation of multiple cervical levels and cervical disc displacement, subluxation of
L4 with lumbar disc degeneration, sacroiliac somatic dysfunction, and myofascial pain
syndrome.
OWCP referred appellant to Dr. Jonathan Black, a Board-certified orthopedic surgeon,
for a second opinion evaluation to determine the nature and extent of her employment-related
conditions. In his December 11, 2012 report, Dr. Black conducted a physical examination and
reviewed a statement of accepted facts, history of the injury and the medical evidence of record.
He found that appellant had reached maximum medical improvement and concluded that her
accepted conditions had ceased.
OWCP referred appellant to Dr. Melton for an impartial medical examination to resolve
the conflict in medical opinion between Drs. Lukes and Black on the issue of whether she
continued to have any continuing disability or residuals as a result of the accepted employment
conditions. In his May 8, 2013 report, Dr. Melton reviewed a statement of accepted facts and the
medical evidence of record. He found that appellant was ambulatory, walking with a normal
gait, not using any type of cane or crutch. Appellant was not wearing any type of collar, corset,
brace, or other apparatus and had no problem getting up and down from a seated position or from
the examining table without help. In an August 5, 2013 addendum report, Dr. Melton indicated
that he had no objective findings of any cervical or lumbar subluxation and “found nothing to
indicate spinal subluxation at C1, C4, C5 or lumbar subluxation at L2 or L4 or left sacroilium
subluxation.” He opined that appellant was not capable of returning to full-time work,
“assum[ing] that the opinion was based on her returning to her usual job activities and not
working at a sedentary position only.”
In reports dated June 6 through 26, 2013, Dr. Lukes reiterated his diagnoses.
On May 23, 2013 Dr. Vrajlal Rajyaguru, a Board-certified anesthesiologist, diagnosed
cervical facet syndrome, cervical disc disease, and myofascial pain syndrome.
In reports dated August 7 through September 4, 2013 Dr. Raymond Fernandez, a
chiropractor, diagnosed subluxation at C5, subluxation at multiple cervical vertebras,
displacement of cervical intervertebral disc without myelopathy, lumbar subluxation at L4,
lumbar intervertebral disc degeneration, sacroiliac segmental dysfunction, and myofascial pain
syndrome.

2

By letter dated September 23, 2013, OWCP notified appellant that it proposed to
terminate her compensation benefits on the basis that her accepted conditions had resolved,
relying on Dr. Melton’s reports dated May 8 and August 5, 2013 as the weight of the medical
evidence. It afforded her 30 days to submit additional evidence or argument in disagreement
with the proposed action.
Appellant submitted reports dated September 12 through November 1, 2013 from
Dr. Fernandez who reiterated his diagnoses. On September 18, 2013 Dr. Fernandez indicated
that appellant continued to require periodic conservative chiropractic manipulative therapy for
the work-related injuries of 2004. He opined that appellant’s conditions were “still medically
present and disabling.”
By decision dated November 15, 2013, OWCP terminated appellant’s wage-loss and
medical compensation benefits effective November 17, 2013. It found the weight of the medical
evidence was represented by Dr. Melton.
On December 3, 2013 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative. He submitted two magnetic resonance imaging (MRI) scans
dated February 7, 2014 demonstrating a disc herniation at C5-6 and bulging discs at L3-4 and
L4-5. Appellant also submitted reports dated February 3 through June 2, 2014 from Dr. Robert
Reppy, an osteopath specializing in family medicine, who diagnosed lumbar spondylosis, lumbar
disc disease with bulging discs at L3-S1, and cervical disc disease with herniated discs at C5-7.
A telephonic oral hearing was held before an OWCP hearing representative on
June 12, 2014.
Appellant, through counsel, submitted functional capacity evaluations dated July 3 and
August 5, 2014.
In an August 4, 2014 report, Dr. Reppy indicated that appellant had no new trauma and
opined that she had been suffering from neck and back pain since 2004 due to lifting bundles of
catalogs and magazines at work weighing up to 45 pounds each.
By decision dated August 29, 2014, an OWCP hearing representative affirmed the
November 15, 2013 termination decision finding that the weight of the medical evidence was
represented by Dr. Melton.2
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an
2

On July 4, 2014 appellant, through counsel, requested an expansion of her claim. By decision dated August 1,
2014, OWCP denied expansion of the claim on the basis that the medical evidence was insufficient to establish
causal relationship. Appellant disagreed and requested an oral hearing. By decision dated February 19, 2015, an
OWCP hearing representative vacated the prior decision and remanded the case for further development and a de
novo decision on the requested claim expansion.
3

See S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.4 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.7
Section 8123(a) of FECA provides in pertinent part: if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.8 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.9
ANALYSIS
The Board finds that OWCP did not meet its burden to justify termination of benefits.
On appeal, counsel contends that the opinion of Dr. Melton lacked probative value and
was not sufficient to terminate appellant’s compensation benefits. It is OWCP that bears the
burden to justify modification or termination of benefits.10
OWCP based its decision to terminate appellant’s benefits on reports dated May 8 and
August 5, 2013 from Dr. Melton, the impartial medical examiner. Dr. Melton conducted a
physical examination and reviewed appellant’s medical history. He found that appellant was
ambulatory, walking with a normal gait, not using any type of cane or crutch. Appellant was not
wearing any type of collar, corset, brace, or other apparatus and had no problem getting up and
down from a seated position or from the examining table without help. In his August 5, 2013
addendum report, Dr. Melton indicated that he had no objective findings of any cervical or
lumbar subluxation and “found nothing to indicate spinal subluxation at C1, C4, C5 or lumbar
subluxation at L2 or L4 or left sacroilium subluxation.” He opined that appellant was not
4

See I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

See James F. Weikel, 54 ECAB 660 (2003).

8

5 U.S.C. § 8123(a). See R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

9

See V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB
215 (1994).
10

See Curtis Hall, 45 ECAB 316 (1994).

4

capable of returning to full-time work, “assum[ing] that the opinion was based on her returning
to her usual job activities and not working at a sedentary position only.”
In his reports, Dr. Reppy diagnosed lumbar spondylosis, lumbar disc disease with bulging
discs at L3-S1, and cervical disc disease with herniated discs at C5-7. He indicated that
appellant had no new trauma and opined that she had been suffering from neck and back pain
since 2004 due to lifting bundles of catalogs and magazines at work weighing up to 45 pounds
each.
Dr. Fernandez, appellant’s chiropractor, diagnosed subluxation at C5 and multiple
cervical vertebras. He indicated that appellant continued to require periodic conservative
chiropractic manipulative therapy for the work-related injuries of 2004 and opined that her
conditions were “still medically present and disabling.”
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits because it failed to obtain a supplemental report from Dr. Melton which
evaluates some of the reports of Drs. Reppy and Fernandez. The Board notes that the reports and
treatment records of Drs. Reppy and Fernandez were of record prior to OWCP’s hearing
representative’s August 29, 2014 termination decision. The Board finds that where OWCP
received the reports from Dr. Reppy and Dr. Fernandez, it should have submitted them to
Dr. Melton, the impartial medical examiner, and requested a supplemental report before issuing a
final decision on appellant’s entitlement. As OWCP failed to base its decision on a resolution of
the medical opinion evidence, the Board finds that it did not meet its burden of proof to terminate
appellant’s wage-loss and medical compensation benefits. A supplemental report from the
impartial medical specialist is warranted. Accordingly, OWCP’s decision to terminate
appellant’s compensation benefits shall be reversed.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective November 17, 2013. Further development of the medical
evidence is warranted.

5

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2014 decision of the Office of
Workers’ Compensation Programs is reversed and the case remanded for further action
consistent with this opinion of the Board.
Issued: April 7, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Fort Riley, KS, Employer
__________________________________________

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

Docket No. 16-1235
Issued: August 9, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 25, 2016 appellant filed a timely appeal from an April 1, 2016 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed
since the last merit decision dated July 13, 2015 and the filing of this appeal on May 25, 2016,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of the claim pursuant to 5 U.S.C. § 8128(a).
On appeal appellant contends that he is entitled to medical expenses for an examination
after his accepted employment-related motor vehicle accident, as his supervisor strongly
recommended that he seek medical attention before returning home from his out-of-town work
assignment.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 18, 2015 appellant, then a 28-year-old construction representative, filed a
traumatic injury claim (Form CA-1) alleging that on February 12, 2015 the government vehicle
he was driving was “rear ended” while stopped at an intersection. He noted that, after the
accident, he had a slight headache and pain in his jaws because his jaws clamped shut rapidly
during the collision. Appellant did not submit any evidence with his claim.
By letter dated February 20, 2015, OWCP advised appellant that further medical
evidence was necessary to establish his claim. Appellant was afforded 30 days to submit the
necessary evidence.
Appellant did not respond to the February 20, 2015 OWCP request for further medical
evidence.
By decision dated March 25, 2015, OWCP denied appellant’s claim. While OWCP
accepted that the incident had occurred as alleged, it denied the claim as there was no medical
evidence diagnosing a condition causally related to the accepted work event.
On April 27, 2015 appellant requested reconsideration. He explained that the accident
occurred on February 12, 2015 in Lackawanna, New York, and that he wanted medical
verification that he did not have a concussion before he traveled home. Appellant noted that no
evidence of a concussion was discovered. He submitted, inter alia, notes from Western New
York Immediate Care, which related that appellant was evaluated by Dr. Dawn Bingeman,
Board-certified in emergency medicine, and that he had a normal examination. Appellant was
released to regular duties without restrictions.
By decision dated July 13, 2015, OWCP denied modification of appellant’s claim, as the
medical evidence was devoid of a definitive diagnosis or any opinion explaining how a claimed
condition was related to the Feburary12, 2015 employment incident.
On March 22, 2016 appellant again requested reconsideration. He asked OWCP to
reconsider his request for payment of a medical bill that was the result of a medical checkup that
his supervisor strongly recommended he obtain after he was in the motor vehicle accident. In
support thereof, appellant submitted a sworn statement from his supervisor, indicating that he
was his employee, that he was in an automobile accident when his government vehicle was
struck from behind while waiting at a traffic light, and that the impact damaged the vehicle to the
extent that it was a total loss. His supervisor contended that he strongly recommended that
appellant be evaluated by a medical professional prior to allowing himself to drive from
Lackawanna, New York, to his duty station in Ohio, as he was concerned about a concussion or
potentially a traumatic brain injury. He noted that appellant was advised by the attending
physician that he would be allowed to drive.
By decision dated April 1, 2016, OWCP denied reconsideration because the new
evidence was not sufficient to warrant review of the July 13, 2015 decision which denied
appellant’s claim.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
be received within one year of the date of that decision.4 When a claimant fails to meet one of
the above standards, OWCP will deny the application for reconsideration without reopening the
case for review on the merits.5
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim under 5 U.S.C. § 8128(a).
The underlying issue in this case is whether appellant submitted sufficient medical
evidence establishing an injury causally related to the accepted February 12, 2015 employment
incident. That is a medical issue which must be addressed by relevant, new medical evidence.6
With his request for reconsideration, appellant explained that he had sought medical
evaluation at the hospital emergency room following the accepted motor vehicle collision at the
request of his supervisor, because the collision occurred while he was driving from his work site
in Lackawanna, New York to his duty station in Ohio. He submitted a sworn statement from his
supervisor substantiating that he strongly recommended that appellant be evaluated by a medical
professional before driving back to the duty station as there was concern that appellant may have
sustained a concussion or a traumatic brain injury.
The Board finds that appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant did not advance a relevant legal
argument not previously considered. His allegations are not relevant to the issue of whether the
medical evidence of record establishes a diagnosed condition causally related to the accepted
incident. Consequently, appellant was not entitled to a review of the merits of the claim based
on the first and second above-noted requirements under section 10.606(b).7

2

Id. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” Id. at § 8128(a).
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

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

7

20 C.F.R. § 10.606(b).

3

As to the submission of relevant and pertinent new evidence not previously considered by
OWCP, the Board also finds that appellant failed to meet this requirement. The evidence
submitted on reconsideration consisted of a sworn statement from his supervisor relating that he
had recommended that appellant be evaluated by a medical professional prior to allowing
himself to continue his ride home from Lackawanna, New York to his duty station in Ohio. The
underlying issue was whether appellant had a diagnosed condition caused by the accepted
employment factors. This evidence was not relevant to the issue of causal relationship because it
was not medical evidence, but factual information.8 OWCP properly explained in the April 1,
2016 decision that the evidence appellant submitted in support of his request for reconsideration
was new; however, it was immaterial, irrelevant, and inconsequential to the underlying issue.
The evidence, therefore, is insufficient to require merit review of the claim.9
The Board finds that 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 appellant’s request for reconsideration
of the merits of his claim under 5 U.S.C. § 8128(a).10
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of the claim pursuant to 5 U.S.C. § 8128(a).11

8

D.A., Docket No. 17-0535 (issued June 27, 2017).

9

Supra note 6.

10

Supra note 8.

11

20 C.F.R. § 10.304 of OWCP’s regulations provides that in unusual or emergency circumstances OWCP may
approve payment for medical expenses incurred otherwise than as authorized by 20 C.F.R. § 10.300. The Board has
held that OWCP may approve payment for medical expenses incurred even if a CA-16 form authorizing medical
treatment and expenses has not been issued and the claim is subsequently denied. Payment in such situations must
be determined on a case-by-case basis. See R.S., Docket No. 16-0142 (issued February 25, 2016). On return of the
case record OWCP shall determine whether given the emergency circumstance of this case it may approve
appellant’s medical expense.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 1, 2016 is affirmed.
Issued: August 9, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF JUSTICE, JUSTICE
MANAGEMENT DIVISION, Washington, DC,
Employer
__________________________________________

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

Docket No. 19-1557
Issued: February 24, 2020

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 July 15, 2019 appellant filed a timely appeal from a February 22, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

1
The Board notes that, during the pendency of this appeal, OWCP issued an August 6, 2019 decision which denied
an oral hearing before a representative of OWCP’s Branch of Hearings and Review concerning the February 22, 2019
merit decision currently on appeal. OWCP’s August 6, 2019 decision is null and void as the Board and OWCP may
not simultaneously exercise jurisdiction over the same issue(s) in a case on appeal. 20 C.F.R. §§ 501.2(c)(3),
10.626; see e.g., M.C., Docket No. 18-1278 (issued March 7, 2019); Lawrence Sherman, 55 ECAB 359, 360
n.4 (2004); Arlonia B. Taylor, 44 ECAB 591 (1993); Douglas E. Billings, 41 ECAB 880 (1990).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 22, 2019 decision, OWCP received additional evidence. 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 abused its discretion by denying appellant’s request for
authorization of left wrist joint repair surgery.
FACTUAL HISTORY
On August 29, 2013 appellant, then a 48-year-old accounting technician, filed a traumatic
injury claim (Form CA-1) alleging that on August 26, 2013 he sustained hip, upper chest, upper
back, neck, head, and arm injuries when walking into a revolving glass door while in the
performance of duty. OWCP accepted the claim for lumbar ligaments sprain, complicated
headache syndrome, neck sprain, left wrist sprain, right hip region enthesopathy/traumatic bursitis,
face, neck and scalp contusion, concussion without loss of consciousness, and postconcussion
syndrome. Appellant stopped work on the date of injury and returned to full-time work with
restrictions on November 18, 2013. OWCP paid him intermittent wage-loss compensation on the
supplement rolls for the period October 11 to December 14, 2013.4
In a report dated February 27, 2018, Dr. George Yeh, a Board-certified orthopedic and
hand surgeon, noted that appellant returned for further evaluation of his left wrist and thumb
conditions because he had continuing pain since the August 26, 2013 employment injury. He
noted that appellant was last seen on September 23, 2014. Dr. Yeh reviewed appellant’s
diagnostic test results and diagnosed left wrist scapholunate ligament rupture, based on current xray findings. He referred appellant to Dr. Raymond A. Pensy, a Board-certified orthopedic
surgeon, for further treatment of the left wrist scapholunate ligament tear.
On January 14, 2019 OWCP received a request for authorization for left wrist joint repair.
In a development letter dated January 15, 2019, OWCP notified appellant that his request
for authorization of left wrist joint repair could not be approved as it was unclear how the requested
surgical intervention was causally related to the accepted conditions. It requested that he submit
a detailed narrative medical report from his treating physician, which explained how the requested
elective surgery was medically necessary and how it was causally related to the accepted traumatic
injury.
OWCP subsequently received additional evidence in the form of documents related to
appellant’s left thumb or lumbar conditions. The medical evidence pertaining to appellant’s left
wrist included an October 1, 2013 x-ray report wherein Dr. Shu Li, a Board-certified diagnostic
radiologist, reported that x-ray of appellant’s left hand revealed normal findings, with no fracture
or dislocation, no soft tissue swelling, no suspicious osseous lesion, and no significant arthritic
changes. In a July 19, 2018 x-ray report, Dr. Edward Mishner, a Board-certified diagnostic
radiologist, related that x-ray of appellant’s left wrist revealed no fracture or dislocation and no
significant arthritic changes, with a minimal widening of the scapholunate joint, and a tiny
calcification distal to the ulna syloid process, compatible with old trauma. In an October 25, 2018
x-ray report, he related that x-ray of appellant’s left wrist showed no significant change from his
previous study of July 29, 2018. Dr. Mishner noted that there may be widening of the
scapholunate joint and clinical correlation for scapholunate dissociation was recommended.

4

The employing establishment terminated appellant’s two-year probationary appointment effective April 4, 2014.

2

Dr. Pensy, in a December 20, 2018 progress note, noted that appellant was seen that day
for a postoperative checkup. He reported that appellant had postoperative edema and provided
physical examination findings.
OWCP also received letters from appellant dated January 17 and 29, 2019 as well as two
letters dated February 20, 2019.
By decision dated February 22, 2019, OWCP denied appellant’s request for authorization
of left wrist joint repair, finding that the evidence of record did not support that it was medically
necessary to address the effects of the employment-related injury.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.5 In interpreting section 8103(a), the Board
has recognized that OWCP has broad discretion in approving services provided under FECA to
ensure that an employee recovers from his or her injury to the fullest extent possible in the shortest
amount of time.6 OWCP has administrative discretion in choosing the means to achieve this goal
and the only limitation on OWCP’s authority is that of reasonableness.7
Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.8
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof establishing that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.9 Causal relationship requires supporting rationalized
medical evidence.10 Therefore, in order to prove that, a procedure is warranted, appellant must
establish that the procedure was for a condition causally related to the employment injury and that

5

5 U.S.C. § 8103.

6

R.M., Docket No. 19-1319 (issued December 10, 2019); G.M., Docket No. 18-1710 (issued June 3, 2019); Dale E.
Jones, 48 ECAB 648 (1997).
7

J.E., Docket No. 18-0228 (issued August 8, 2019); G.M., id.; Daniel J. Perea, 42 ECAB 214 (1990) (abuse of
discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise of judgement,
or administrative actions, which are contrary to both logic and probable deductions from established facts).
8
E.L., Docket No. 17-1445 (issued December 18, 2018); L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007);
Daniel J. Perea, 42 ECAB 214 (1990).
9

R.M., supra note 6; J.R., Docket No. 18-0603 (issued November 13, 2018).

10

K.W., Docket No. 18-1523 (issued May 22, 2019).

3

the procedure was medically warranted. Both of these criteria must be met in order for OWCP to
authorize payment.11
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
authorization of left wrist joint repair surgery.
The claim was accepted for left wrist sprain. In a February 27, 2018 report, Dr. Yeh noted
that appellant was last seen on September 23, 2014 for his left wrist condition, but had returned
for further evaluation due to ongoing pain complaints. He diagnosed left wrist scapholuate
ligament rupture, based on current x-ray evidence. However, Dr. Yeh did not explain how and
why the accepted August 26, 2013 employment injury resulted in the additional condition of left
wrist scapholuate ligament rupture, which he diagnosed in 2018. Furthermore, he offered no clear
opinion regarding the necessity of the requested procedure. As Dr. Yeh failed to provide medical
rationale explaining how the requested surgery was necessary to treat appellant’s accepted left
wrist sprain or how the additional condition of left wrist scapholuate ligament rupture was causally
related to the accepted August 26, 2013 employment injury, his report is of diminished probative
value.12 This report therefore lacks probative value regarding the issue of whether the requested
procedure was medically necessary due to the accepted employment injury.13
The remaining medical evidence of record did not address the relevant medical issues. The
October 1, 2013, and July 19, and October 25, 2018 x-ray interpretations, and Dr. Pensy’s
December 20, 2018 progress note did not address whether the requested left wrist joint repair
surgery was medically necessary and causally related to the accepted employment injury.14
Therefore, these reports were therefore insufficient to establish that the requested surgical
procedure should be authorized.
The Board finds that OWCP did not abuse its discretion in denying authorization for the
proposed left wrist joint repair surgery. As noted above, the only restriction on OWCP’s authority
to authorize medical treatment is one of reasonableness.15 As none of the medical evidence
explained how the proposed surgery was medically necessary or causally related to the accepted
left wrist sprain, the Board finds that OWCP acted reasonably in denying appellant’s request for
authorization for left wrist joint repair surgery.
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.

11

Id.

12

M.M., Docket No. 19-0563 (issued August 1, 2019); N.G., Docket No. 18-1340 (issued March 6, 2019).

13

See M.M., id.; G.V., Docket No. 18-0482 (issued May 21, 2019); N.G., id.

14

Supra note 10.

15

Supra note 7.

4

CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
authorization of left wrist joint repair.
ORDER
IT IS HEREBY ORDERED THAT the February 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 24, 2020
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

5