United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
DEPARTMENT OF DEFENSE, DECA SOUTHERN REGION, Fort Lee, VA, Employer
__________________________________________

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

Docket No. 07-1037
Issued: September 12, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 6, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated February 8, 2007 which denied her request for
reconsideration. The record also contains merit decisions dated August 10, 2006, denying
modification of its previous decision that she was not entitled to a schedule award, and a
January 5, 2007 decision, denying her request for an oral hearing. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and nonmerit issues.
ISSUES
The issues are: (1) whether appellant has any permanent impairment of the left lower
extremity causally related to her accepted condition; (2) whether the Office properly denied
appellant’s request for an oral hearing as reconsideration was previously requested; and
(3) whether the Office properly denied her request for reconsideration pursuant to 5 U.S.C.
§ 8128(a).

FACTUAL HISTORY
On October 19, 2001 appellant, then a 54-year-old cashier, filed an occupational disease
claim alleging that she developed heel pain due to standing for long periods of time. She first
became aware of her condition and its relation to her employment on June 19, 2001. The Office
accepted the condition of exacerbation of left plantar fasciitis. Appellant voluntarily retired from
the employing establishment effective April 30, 2003.
On June 3, 2003 appellant filed a claim for a schedule award. To further develop
appellant’s claim, the Office, in a letter dated December 15, 2004, requested that appellant’s
treating physician provide an opinion as to whether appellant had a lower extremity impairment
causally related to her accepted condition under the standards of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (hereinafter
A.M.A., Guides).
In a February 25, 2005 report, Dr. John B. Bieltz, an orthopedic surgeon, advised that
appellant had been treated in the military for quite some time, but she was being seen as a new
patient. He advised that he reviewed appellant’s records, noted that her chronic plantar fasciitis
had been treated for four years and opined that maximum medical improvement had been
reached. Dr. Bieltz noted that appellant also had some mild degenerative joint disease in her
right knee and mild carpal tunnel in her right hand. Under Table 17-33 of the A.M.A., Guides,
he determined that appellant had a 4 percent whole person impairment, 10 percent lower
extremity impairment and 14 percent foot impairment for her bilateral heel spurs. Dr. Bieltz also
determined that appellant had five percent lower extremity impairment for her knee and five
percent upper extremity impairment for her carpal tunnel. No examination findings were
provided.
In a March 28, 2005 report, an Office medical adviser reviewed Dr. Bieltz’s February 25,
2005 report. He opined that the date of maximum medical improvement was unknown and the
claimant’s medical records were not sufficient to show a permanent impairment of the left foot
or leg under the A.M.A., Guides. The Office medical adviser advised that findings on the left
foot or leg were needed to show permanent impairment under the A.M.A., Guides.
In an April 21, 2005 letter, the Office advised Dr. Bieltz of the deficiencies in his
impairment rating and requested that he provide additional information to show how appellant’s
impairment of the left leg was calculated. It further requested that Dr. Bieltz limit his rating to
appellant’s left leg as that was where the accepted condition was.
In a May 6, 2005 report, Dr. Bieltz indicated that, according to appellant’s military
records, she has calcaneal heel spurs on both feet. He advised that appellant’s examination was
consistent with chronic plantar fasciitis and that maximum medical improvement had been
reached. In accordance with Table 17-33 of the A.M.A., Guides, Dr. Bieltz opined that appellant
had 4 percent whole person impairment, 10 percent lower extremity impairment and 14 percent
foot impairment.
By decision dated June 8, 2005, the Office determined that appellant did not meet her
burden of proof to establish that she has a permanent impairment of her left leg which entitled

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her to schedule award compensation. The Office indicated that Dr. Bieltz’s reports failed to
demonstrate a measurable impairment.
In a July 5, 2005 report, Dr. Bieltz stated that, when appellant was examined on May 6,
2005, he performed a complete physical examination, x-rays, and a review of the medical
records regarding her left foot. He stated that her past and present examinations were consistent
with chronic plantar fasciitis. Dr. Bieltz reiterated his opinion that appellant had 4 percent whole
person, 10 percent lower extremity and 14 percent foot impairment under Table 17-33 of the
A.M.A., Guides.
In a letter dated August 4, 2005, appellant requested both a hearing before an Office
hearing representative and reconsideration of the June 8, 2005 Office decision. Following the
Office’s letter requesting clarification of her appeal process, appellant requested a hearing in a
letter dated September 22, 2005.
By decision dated December 19, 2005, the Office found that appellant was not entitled to
a hearing as a matter of right as her August 2005 request was not made within 30 days of the
June 8, 2005 decision. The Office further considered the matter and denied a discretionary
hearing because appellant could further pursue her claim by submitting new evidence with a
reconsideration request.
On June 7, 2006 appellant requested reconsideration. She requested that her claim be
expanded to include bilateral heel spurs. In a November 21, 2005 report, Dr. Bieltz repeated the
history of appellant’s left heel pain and medical history. He reported the results of his physical
examination and noted that x-rays showed bilateral heel spurs. Dr. Bieltz diagnosed chronic
plantar fasciitis and opined that appellant’s condition was caused or aggravated by the prolonged
standing on hard surfaces. He opined that her condition was permanent and under Table 17-33
of the A.M.A., Guides, she had 4 percent whole person impairment, 10 percent lower extremity
impairment and 14 percent foot impairment. Dr. Bieltz further opined that appellant could
engage in sitting-type work and that she must wear custom orthotics in her shoes at all times.
By decision dated August 10, 2006, the Office denied modification of its June 8, 2005
decision. It noted that it could neither expand appellant’s claim to include bilateral heel spurs as
a consequential injury or issue a schedule award for such condition as bilateral heel spurs had
neither been claimed as resulting from occupational factors or exposure nor claimed as
consequential to the already accepted medical condition.1
On December 2, 2006 appellant requested an oral hearing before a representative of the
Office’s Branch of Hearings and Review. By decision dated January 5, 2007, the Office denied
appellant’s request for a hearing on the grounds that reconsideration was already requested. The
Office additionally denied appellant’s request for a hearing on the grounds that the issues
involved could be addressed equally well by requesting reconsideration and submitting new

1

In a letter dated August 10, 2006, the Office advised appellant that the evidence of file was not sufficient to
proceed with further development on her claim for bilateral heel spurs. It further advised her on how to pursue this
issue as either a consequential injury claim or a new claim.

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evidence which established that she sustained a permanent impairment to a scheduled member
due to her accepted work injury.
In a January 30, 2007 letter, appellant requested reconsideration. In support of her claim,
she submitted an October 20, 2006 letter from the Social Security Administration, noting that she
met the medical requirements for disability benefits, and medical reports from Dr. Bieltz dated
October 9 and November 3, 2006. In his October 9, 2006 report, Dr. Bieltz provided range of
motion findings for appellant’s hands. In his November 3, 2006 report, he diagnosed mild right
carpal tunnel syndrome and bilateral plantar fasciitis, which he opined were causally related to
her job which involved prolonged standing and walking. Dr. Bieltz stated that appellant’s
examination was consistent with chronic plantar fasciitis and, in accordance with the A.M.A.,
Guides, Table 17-33, she had 4 percent whole person impairment, 10 percent lower extremity
impairment, and 14 percent foot impairment.
By decision dated February 8, 2007, the Office denied reconsideration on the grounds
that the evidence submitted was insufficient to warrant a review of the case on the merits. It
found that appellant failed to submit new and relevant medical evidence not previously
considered.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence.3
The schedule award provision of the Act4 and its implementing regulation5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.6
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a left plantar fasciitis. Appellant later
claimed entitlement to schedule award compensation and submitted reports dated February 25,
2

5 U.S.C. §§ 8101-8193.

3

Gary J. Watling, 52 ECAB 278 (2001).

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

See id.

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May 6, July 5 and November 21, 2005 in which Dr. Bieltz, an attending orthopedic surgeon,
determined that appellant had a 4 percent whole person, 10 percent permanent impairment to her
lower extremity and 14 percent foot impairment under Table 17-33 of the A.M.A., Guides. The
Board finds that appellant did not meet her burden of proof to establish that she has permanent
impairment of her left leg because she has not shown that the impairments reported by Dr. Bieltz
are causally related to her accepted condition.
The Board notes that Dr. Bieltz did not provide a rationalized medical opinion explaining
how the above-noted lower extremity impairments could be related to appellant’s accepted left
plantar fasciitis and the medical evidence of record does not otherwise support such a finding.
Appellant’s claim was only accepted for a left plantar fasciitis. The Office has not accepted that
her bilateral heel spurs or bilateral plantar fasciitis were related to the employment injury. In
each of Dr. Bieltz’s reports, he reports that appellant has bilateral heel spurs or bilateral plantar
fasciitis and fails to focus solely on her left lower extremity. While he states in his July 5, 2005
report that such impairment finding is for the left side, he fails to provide any examination
findings of the left side or clearly show how the impairment rating relates solely to the left side.
Such medical rationale is particularly necessary in the present case for the further reason that the
medical evidence of record suggests that appellant had other lower extremity conditions on both
sides. In its April 21, 2005 letter, the Office requested that Dr. Bieltz limit his rating to
appellant’s left leg and show how appellant’s impairment of the left leg was calculated.
However, Dr. Bieltz did not provide any support for his opinion. For these reasons, the Office
properly found that appellant did not show that he has permanent impairment to his left lower
extremity which entitles her to schedule award compensation.7
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of the Act, concerning a claimant’s entitlement to a hearing before an
Office representative, states: Before review under section 8128(a) of this title, a claimant not
satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after the
date of issuance of the decision, to a hearing on his claim before a representative of the
Secretary.8 Sections 10.617 and 10.618 of the federal regulations implementing this section of
the Act provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.9 Office procedures, which require the Office
to exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of the Act and Board precedent.10

7

The Office found that the condition of bilateral heel spurs had neither been claimed as resulting from
occupational factors or exposure nor claimed as consequential to already accepted medical conditions. Thus, this
issue is not before the Board. See 20 C.F.R. § 501.2(c). In an August 10, 2006 letter, the Office advised appellant
how to proceed if she wished to claim either a consequential injury or a new injury.
8

5 U.S.C. § 8124(b)(1).

9

20 C.F.R. §§ 10.616, 10.617.

10

Claudio Vasquez, 52 ECAB 496 (2002).

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ANALYSIS -- ISSUE 2
In this case, appellant requested a hearing on December 2, 2006. In its January 5, 2007
decision, the Office denied this request on the grounds that she had previously requested
reconsideration under section 8128. The record shows that the Office’s August 10, 2006
decision denying modification was based on appellant’s June 7, 2006 reconsideration request,
after a previous request for an oral hearing was denied. As noted, a claimant is not entitled to a
hearing or a review of the written record as a matter of right if the request is made after a
reconsideration request.11 As appellant had previously requested reconsideration, the Office
properly found that she was not entitled to a hearing as a matter of right.
The Office also has the discretionary power to grant a request for a hearing when a
claimant is not entitled to such a matter of right. In the January 5, 2007 decision, the Office
properly exercised its discretion by stating that it had considered the matter in relation to the
issue involved and denied appellant’s request on the basis that the issue in this case could be
addressed through a reconsideration application. The Board has held that, as the only limitation
on the Office’s authority is reasonableness, 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 deduction from established facts.12 In the present case, the evidence
of record does not indicate that the Office committed any act in connection with its denial of
appellant’s request for a hearing which could be found to be an abuse of discretion. Here, the
Office informed appellant in its January 5, 2007 decision, that it had considered the matter in
relation to the issue involved and denied her hearing request on the basis that appellant could
further pursue the matter through the reconsideration process. There is no indication that the
Office abused its discretion in this case in denying appellant’s hearing request. Further,
appellant was advised that she could request reconsideration and submit evidence in support of
his argument that she sustained a permanent impairment to a scheduled member due to her
accepted work injury. Thus, the Board finds that the Office properly denied appellant’s request
for a hearing in its January 5, 2007 decision.
LEGAL PRECEDENT -- ISSUE 3
Section 10.606(b)(2) of Office regulations provides that a claimant may obtain review of
the merits of the claim by either: (1) showing that the Office erroneously applied or interpreted a
specific point of law; (2) advancing a relevant legal argument not previously considered by the
Office; or (3) constituting relevant and pertinent new evidence not previously considered by the
Office.13 Section 10.608(b) provides that, when an application for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b)(2), the Office will
deny the application for reconsideration without reopening the case for a review on the merits.14
11

See supra note 8; 20 C.F.R. § 10.616(a) (to obtain a hearing, a claimant must not have previously submitted a
reconsideration request on the same decision).
12

See Daniel J. Perea, 42 ECAB 214 (1990).

13

20 C.F.R. § 10.606(b)(2).

14

20 C.F.R. § 10.608(b).

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Evidence or argument that repeats or duplicates evidence previously of record has no evidentiary
value and does not constitute a basis for reopening a case.15 Likewise, evidence that does not
address the particular issue involved does not constitute a basis for reopening a case.16
ANALYSIS -- ISSUE 3
In her letter requesting reconsideration, appellant did not show that the Office
erroneously applied or interpreted a specific point of law or advance a relevant legal argument
not previously considered by the Office. Thus, appellant is not entitled to a review of the merits
of her claim based on the first and second above-noted requirements under section
10.606(b)(2).17
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted no new medical evidence relevant to whether she has a permanent impairment of the
left leg to which she is entitled to a schedule award under the Act. Appellant’s submission of the
October 20, 2006 letter from the Social Security Administration is irrelevant to the claim as it is
insufficient to establish that she was entitled to a schedule award under the Act. The Board has
held that the submission of evidence irrelevant to the issue involved is not a basis for reopening a
case.18 The October 9, 2006 report of Dr. Bieltz is irrelevant to the issue involved as it pertains
to examination findings on appellant’s hands and does not relate to a permanent partial
impairment to the left lower extremity. In his November 3, 2006 report, Dr. Bieltz diagnosed
appellant with bilateral plantar fasciitis and again provided an impairment rating of 4 percent
whole person, 10 percent lower extremity impairment and 4 percent foot rating. This report is
duplicative of information previously provided in Dr. Bieltz’s November 21, 2005 medical
report, which the Office had considered in its August 10, 2006 decision. As noted, evidence or
argument that repeats or duplicates evidence previously of record has no evidentiary value and
does not constitute a basis for reopening a case.19 Appellant therefore did not submit relevant
and pertinent new evidence not previously considered by the Office, and, by its decision dated
February 8, 2007, the Office properly denied her reconsideration request.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an entitlement
to a schedule award for her accepted condition. The Board also finds that the Office properly
denied appellant’s request for an oral hearing and her request for reconsideration.

15

Helen E. Paglinawan, 51 ECAB 591 (2000).

16

Kevin M. Fatzer, 51 ECAB 407 (2000).

17

20 C.F.R. § 10.606(b)(2).

18

Joseph A. Brown, Jr., 55 ECAB 542 (2004); see Daniel Deparini, 44 ECAB 657 (1993) (in determining
whether an employee is disabled under the Act, the findings of the Social Security Administration are not
determinative of disability under the Act).
19

Helen E. Paglinawan, supra note 15.

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ORDER
IT IS HEREBY ORDERED THAT the February 8 and January 5, 2007 and August 10,
2006 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 12, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-1510
Issued: November 16, 2015

Case Submitted on the Record

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

On July 6, 2015 appellant filed a timely appeal from a March 18, 2015 decision of the
Office of Workers’ Compensation Programs (OWCP), which found that her request for
reconsideration was untimely filed and did not present clear evidence of error. The appeal was
docketed as No. 15-1510.
On October 20, 2004 appellant, then a 50-year-old mail clerk, filed an occupational
disease claim alleging that she developed bilateral epicondylitis, wrist tendinitis, and carpal
tunnel syndrome as a result of her daily work activity. OWCP accepted her claim for bilateral
tenosynovitis of the hand and wrist and bilateral lateral epicondylitis.
On November 26, 2012 OWCP terminated appellant’s wage-loss and medical
compensation benefits. Appellant disagreed with the decision and requested an oral hearing. By
decision dated June 12, 2013, an OWCP hearing representative affirmed the November 26, 2012
termination decision.
On October 24, 2013 OWCP received appellant’s request for
reconsideration. In a decision dated February 21, 2014, it affirmed the termination of her
benefits.

Appellant subsequently requested reconsideration of the February 21, 2014 OWCP
decision on February 23, 2015 and submitted additional evidence. In a March 18, 2015 decision,
OWCP denied her request for reconsideration on the grounds that it was not timely filed and
failed to establish clear evidence of error.
The Board finds that appellant’s reconsideration request was timely. Section 10.607(a) of
the implementing regulations provides that an application for reconsideration must be received
within one year of the date of OWCP decision for which review is sought.1 In this case, the last
OWCP merit decision was dated February 21, 2014 and one year elapsed on February 21, 2015.
Appellant’s reconsideration request was received by OWCP on February 23, 2015. In
computing the time for requesting reconsideration, however, the last day of the period shall be
included unless it is a Saturday, a Sunday, or a legal holiday.2 As February 21, 2015 was a
Saturday, appellant had until February 23, 2015 to request reconsideration. Thus, her request
was timely received by OWCP.
Because appellant filed a timely reconsideration request, OWCP should have reviewed
her request under the standard for a timely request,3 as opposed to the standard for untimely
requests.4 The clear evidence of error standard utilized by OWCP in its March 18, 2015 decision
is appropriate only for untimely reconsideration requests. The Board will set aside OWCP’s
March 18, 2015 decision and remand the case for an appropriate final decision on appellant’s
timely request for reconsideration.

1

20 C.F.R. § 10.607(a).

2

Debra McDavid, 57 ECAB 149 (2005); J.J., Docket No. 14-746 (October 17, 2014).

3

20 C.F.R. § 10.606(b)(3).

4

Section 10.607(b) states that OWCP will consider an untimely application for reconsideration only if it
demonstrates clear evidence of error by OWCP in its most recent merit decision. The reconsideration request must
establish that OWCP’s decision was, on its face, erroneous. 20 C.F.R. § 10.607(b).

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IT IS HEREBY ORDERED THAT the March 18, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order.
Issued: November 16, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 15-1859
Issued: January 5, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 14, 2015 appellant, through counsel, filed a timely appeal of an April 28,
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 this case.
ISSUE
The issue is whether appellant met her burden of proof to establish disability from
January 11 to 24, 2014 due to her employment injury.
FACTUAL HISTORY
On August 25, 2013 appellant, a 50-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral hand and wrist rheumatoid arthritis

1

5 U.S.C. § 8101 et seq.

causally related to employment factors. OWCP accepted the claim for aggravation of bilateral
rheumatoid arthritis.
On January 25, 2014 appellant submitted a Form CA-7 requesting compensation for
wage loss from January 11 to 24, 2014.
By letter to appellant dated February 21, 2014, OWCP requested additional factual and
medical evidence to establish disability during the period claimed, including medical
documentation to establish that she either had medical treatment or was unable to work as a
result of her accepted work condition for all dates claimed. Appellant was afforded 30 days to
submit the requested information.
In a report dated December 2, 2013, received by OWCP on March 6, 2014, Dr. David B.
Maxwell, Board-certified in internal medicine and rheumatology, advised that he was treating
appellant for rheumatoid arthritis. He noted that she was currently working, but was
experiencing good days and bad days and had difficulty sustaining her employment. Appellant
had pain in both hands and had restrictions placed upon her following a functional capacity
evaluation (FCE), which made it impossible for her to continue driving a mail delivery route and
handle mail. Dr. Maxwell reported that she began to experience rheumatoid arthritis in
October 2012 and was diagnosed with rheumatoid arthritis in June 2013. He recommended that
she discontinue driving a mail route to deliver mail given her permanent deformities and
limitations in her hands and wrists.
In a February 17, 2014 report, received by OWCP on May 14, 2014, Dr. Maxwell noted
that appellant continued to experience pain in her hands and wrists, but was told by a surgeon
that he was unable to perform surgery on her wrists.
In an April 2, 2014 report, received by OWCP on August 4, 2014, Dr. Maxwell
essentially reiterated his previous findings and conclusions. He advised that her degree of
disability was significant and limited her ability to make a full fist formation to grip or lift
anything greater than 10 pounds, climb, stand, or walk for prolonged periods, or work for more
than two to three hours without rest. Dr. Maxwell noted that appellant had undertaken
aggressive anti-inflammatory disease-modifying therapy, with only limited improvement. He
reported that the slow deterioration of her functional ability was inevitable given her present
arthritic symptoms.
Appellant also submitted several duty status reports (Form CA-17) from Dr. Maxwell in
which he advised that her work activities were limited due to pain in her wrists causally related
to her accepted rheumatoid arthritis condition and he outlined work restrictions.
By decision dated January 28, 2015, OWCP denied appellant’s claim for compensation
for wage loss from January 11 to 24, 2014, finding that the medical evidence failed to support
disability.
On February 2, 2015 appellant requested reconsideration.
In a report dated February 10, 2015, Dr. Maxwell essentially reiterated his previous
findings and conclusions. He related that appellant’s diagnoses included rheumatoid arthritis and
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severe destructive arthropathy of the wrists. Dr. Maxwell explained that he had recommended
that appellant not continue driving a mail route given the permanent deformities and restrictions
of her hands and wrists. He concluded that if his opinion did not provide sufficient
documentation he would recommend referring appellant to a hand specialist for further
evaluation and treatment.
By decision dated April 28, 2015, OWCP denied modification of the January 28, 2015
decision.
LEGAL PRECEDENT
It is the employee’s burden of proof to establish disability during the period of time for
which wage-loss compensation is claimed. The term “disability” is defined by implementing
regulations as “the incapacity, because of an employment injury, to earn the wages the employee
was receiving at the time of injury. It may be partial or total.”2 The Board has long held that
whether a particular injury causes an employee disability for employment is a medical question
which must be resolved by competent medical evidence.3
ANALYSIS
OWCP accepted appellant’s claim for aggravation of bilateral rheumatoid arthritis. It
asked appellant to submit medical evidence to support the period of disability claimed. The
Board finds that appellant, however, did not provide a probative, rationalized medical opinion
establishing that she was disabled for work due to the accepted condition for the period
January 11 to 24, 2014.4
As noted above, to establish entitlement to compensation, an employee must establish
through competent medical evidence that disability from work resulted from the employment
injury.5 The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.6 Appellant has the burden to demonstrate his disability for work
based on rationalized medical opinion evidence. The issue of whether a claimant’s disability is
related to an accepted condition is a medical question which must be established by a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disability is causally related to employment factors and supports that conclusion with sound

2

20 C.F.R. § 10.5(f).

3

See Donald E. Ewals, 51 ECAB 428 (2000).

4

William C. Thomas, 45 ECAB 591 (1994).

5

Supra note 3.

6

Paul E. Thams, 56 ECAB 503 (2005).

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medical reasoning.7 There is no such evidence in this case. Appellant did not provide any
medical opinion, with supporting rationale, establishing disability for the period claimed.
The only medical reports which described her conditions were the periodic reports from
Dr. Maxwell. Dr. Maxwell advised that he was treating appellant for bilateral rheumatoid
arthritis and noted that she was currently working, but was having difficulty performing her
usual job as a letter carrier due to rheumatoid arthritis symptoms. He reported that she had
restrictions placed upon her following an FCE, which made it impossible for her to handle mail
and continue driving a mail delivery route.
Dr. Maxwell noted in his April 2, 2014 report that appellant’s symptoms were significant
and limited her ability make a full fist formation grip or lift anything greater than 10 pounds,
climb, stand, or walk for prolonged periods. He advised that the slow deterioration of her
functional ability was inevitable given her present arthritic symptoms. Dr. Maxwell provided
restrictions to allow appellant to continue to work, however, he failed to establish total disability
due to the accepted condition of aggravation of bilateral rheumatoid arthritis.8
OWCP continued to received medical reports from Dr. Maxwell which noted appellant’s
restrictions, but Dr. Maxwell never opined in any of his reports that appellant was totally
disabled from work during the period claimed. Appellant has thus failed to establish that her
accepted condition caused disability for the period claimed.9
CONCLUSION
The Board finds that appellant has not met her burden to establish disability from
January 11 to 24, 2014.

7

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

8

Id.

9

The form reports from Dr. Maxwell which support causal relationship with a box marked “yes” are insufficient
to establish the claim, as the Board has held that without further explanation or rationale, a checked box is not
sufficient to establish causation. Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB
247 (1979).

4

ORDER
IT IS HEREBY ORDERED THAT the April 28, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 5, 2016
Washington, DC

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

Colleen Duffy Kiko, 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.S., Appellant
and
DEPARTMENT OF ENERGY, WESTERN
POWER ADMINISTRATION,
Salt Lake City, UT, Employer
__________________________________________

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Appearances:
James R. Black, Esq., for the appellant
No Appearance, for the Director

Docket No. 08-863
Issued: January 12, 2009

Oral Argument July 15, 2008

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

JURISDICTION
On January 31, 2008 appellant, through counsel, filed a timely appeal of the decision of
the Office of Workers’ Compensation Programs dated December 6, 2007 denying merit review
of the hearing representative’s decision affirming the termination of benefits. Because more than
one year has elapsed between the last merit decision dated October 2, 2006 and the filing of this
appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2).1
ISSUE
The issue is whether the Office properly denied appellant’s requests for reconsideration
of the merits pursuant to 5 U.S.C. § 8128(a).
1

Appellant, through counsel, alleged that she did not receive the October 2, 2006 decision until March 29, 2007.
This argument is not addressed in the December 6, 2007 decision denying merit review. The Board further notes
that the Office, in its March 29, 2007 letter, indicated that the October 2, 2006 decision was sent to appellant’s
correct address.

FACTUAL HISTORY
On June 19, 1987 appellant, then a 44-year-old personnel officer, filed a traumatic injury
claim alleging that on June 14, 1987, while stooping down to pull out a low double wide file
drawer, the runner broke off the side of the drawer and the drawer fell towards appellant’s feet.
Appellant noted that she tried to support the falling drawer and keep it from hitting her feet and
legs and in the process, sustained a herniated disc. The Office accepted appellant’s claim for low
back strain and herniated nucleus pulposus at L4-5.
By letter dated July 14, 2004, the Office referred appellant to Dr. A. Creig MacArthur, a
Board-certified orthopedic surgeon, for a second opinion. In a note dated August 19, 2004,
Dr. MacArthur listed appellant’s condition as mechanical low back pain and discogenic low back
pain. He noted that objective findings for the accepted condition of chronic low back strain were
not evident. However, Dr. MacArthur noted that given previous surgery in 1985 and appellant’s
medical history it was difficult to relate her current condition to her work accident. He opined
that any aggravation of her underlying condition caused by the June 1987 work accident was
temporary.
In a September 7, 2004 report, Dr. Alan Brown, a Board-certified orthopedic surgeon,
noted current objective findings including continued pain and decreased range of motion. He
stated that, although appellant did have a preexisting surgery, her current condition was due to
the work injury of June 14, 1987. Dr. Brown opined that appellant was probably not capable of
working her date-of-injury position.
Due to the conflict between Drs. Brown and MacArthur with regard to whether appellant
had any residual disability due to her work injury, by letter dated September 29, 2004, the Office
referred appellant to Dr. Robert P. Hansen, a Board-certified orthopedic surgeon, for an impartial
medical examination. In an opinion dated December 21, 2004, Dr. Hansen concluded that the
injury of 1987 aggravated a previous L4-5 disc herniation and that there was also evidence of
L4-5 disc narrowing and facet arthritic changes with some degenerative disc changes in 1987.
He noted current objective findings of limitation of motion of lumbar spine and pain with right
straight leg raising. Dr. Hansen reported that appellant’s current condition appeared related to
the degenerative disc changes in her back. He indicated that the June 14, 1987 injury did cause a
temporary aggravation of the underlying condition, but that it was impossible to give a precise
date as to when this temporary aggravation decreased due to the 17-year period that has lapsed
since the injury. Dr. Hansen reported that appellant was not capable of working her date-ofinjury position due to the time she has been off work, degenerative changes, limited motion and
stiffness and history of chronic depression. In a January 27, 2005 updated report, he indicated
that he would estimate that appellant sustained an aggravation of her underlying condition until
January 22, 2000 at which time the magnetic resonance imaging scan showed degenerative disc
changes but no disc herniation or stenosis.
On January 19, 2005 the Office issued a notice of proposed termination of benefits based
on the opinion of Dr. Hansen, the impartial medical examiner. By decision dated February 22,
2005, it terminated appellant’s compensation and medical benefits effective March 19, 2005.

2

On March 8, 2005 appellant requested an oral hearing before an Office hearing
representative and appointed legal counsel. Additional evidence was submitted, including a
February 15, 2005 report wherein Dr. Robert H. Horne, a Board-certified orthopedic surgeon,
stated that he examined appellant and reviewed her previous medical and work history. He noted
that he stood by the reports of appellant’s surgeon and concluded that the work-related injury
was an L4-5 disc herniation, not an aggravation of a recurrence. He based this on the fact that
appellant’s surgeon noted that appellant’s 1985 surgery was for extruding a fragment from the
L5-S1 disc, that had migrated superiorly to the L4-5 level, but did not involve the L4-5 disc. He
disagreed with Dr. McArthur that appellant had a free fragment.
In a decision dated October 2, 2006, the hearing representative affirmed the February 22,
2005 decision. The hearing representative specifically found that there were no residuals from
the June 14, 1987 employment injury.
2

By letter dated September 26, 2007, appellant, through counsel, requested reconsideration
of the hearing representative’s decision. In support thereof, he submitted an August 29, 2007
report wherein Dr. Horne provided an extensive comparison of doctor’s notes with regard to
appellant’s December 9, 1985 injury and the injury in this claim, which occurred on
June 14, 1987. Dr. Horne determined that the surgery in 1985 was secondary to a herniated disc
that occurred when appellant was on a treadmill. He found that the new injury in 1987, at a level
above, constituted a “new injury.” Dr. Horne noted that continuing disability and herniation of
the disc would be compatible with a disc herniation large enough to produce a progressive
deterioration of the disc. He then concluded, “The June 4, 1987 injury is not a temporary
aggravation of a preexisting injury because the preexisting injury is in the L5-S1 disc space and
not in L4-5.”
By decision dated December 6, 2007, the Office denied appellant’s request for
reconsideration of the merits.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.4 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year

2

The Board notes that although the Office hearing representative indicated that she was affirming a May 12, 2005
Office decision, this is a typographical error as the most recent decision issued by the Office at the time of the oral
hearing is February 22, 2005.
3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[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).
4

20 C.F.R. § 10.606(b)(2).

3

of the date of that decision.5 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
In the instant case, on September 26, 2007 appellant filed a timely request for
reconsideration of the hearing representative’s October 2, 2006 decision finding that appellant
had no residuals from her June 14, 1987 employment injury. In a decision dated December 6,
2007, the Office denied appellant’s request without merit review.7 The Office found that the
new evidence submitted by appellant, i.e., Dr Horne’s report of August 29, 2007, was cumulative
and repetitive of his prior report of February 5, 2005. However, the Board finds that the
August 29, 2007 report is sufficient to constitute pertinent new and relevant evidence not
previously considered by the Office. This report contains a thorough discussion of appellant’s
1985 and 1987 injuries and specifically concluded that the June 14, 1987 employment injury was
not a temporary aggravation of a preexisting injury because the preexisting injury was located in
the L5-S1 disc space and the June 14, 1987 employment injury was located in the L4-5 disc
space. Accordingly, the Board finds that the Office should have conducted a merit review.
CONCLUSION
The Board finds that the Office abused its discretion by refusing to reopen appellant’s
case for further consideration of the merits, pursuant to 5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607(a).

6

20 C.F.R. § 10.608(b).

7

The December 6, 2007 decision references the “clear evidence of error” standard, which is the standard used to
review requests for reconsideration that are not timely filed. See 20 C.F.R. § 10.607(b).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 6, 2007 is set aside. The case is remanded for further
proceedings by the Office consistent with this decision.
Issued: January 12, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER, San Diego, CA,
Employer
__________________________________________

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

Docket No. 18-1007
Issued: November 28, 2018

Case Submitted on the Record

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

JURISDICTION
On April 16, 2018 appellant filed a timely appeal from a November 30, 2017 merit
decision and a January 16, 2018 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that his
bilateral carpal tunnel syndrome was causally related to the accepted factors of his federal
1
2

5 U.S.C. § 8101 et seq.

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

employment; and (2) whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 13, 2017 appellant, then a 44-year-old composite fabricator leader, filed an
occupational disease claim (Form CA-2) alleging that he sustained bilateral carpal tunnel
syndrome as a result of continual daily use of his hands, including holding tools, sanding, and
squeezing and grasping tools with recurring force in the performance of duty. He indicated that
he first became aware of his condition and realized that it resulted from his federal employment
on March 23, 2009. On the reverse side of the claim form, the employing establishment noted
that appellant was last exposed to the employment conditions alleged to have caused his
occupational disease on October 7, 2017.
In an accompanying statement, appellant explained that he had carpal tunnel syndrome
for some time and was told by his primary physician that the occupational tools he used may
have attributed to the pain and numbness in his hands. He outlined his work history, including
the time he served in the military, and related that he was hired by the employing establishment
in 2003. Appellant noted that he worked at the composite shop repairing various aircraft. He
listed the tools that he used and provided a detailed description of the steps he took to complete
repairs. Appellant related that he first noticed numbness, stiffness, and pain in both wrists in
2006, but he was not diagnosed until around 2010.
In an October 16, 2017 development letter, OWCP acknowledged receipt of appellant’s
claim and informed him that additional evidence was needed in support of his claim. It provided
appellant a factual questionnaire to complete and return. OWCP also requested medical
evidence with a physician’s opinion as to how his employment activities caused, contributed to,
or aggravated his hand/wrist condition. It afforded appellant 30 days to submit the requested
information.
OWCP subsequently received appellant’s professional résumé, a technical manual for
general composite repair, an inventory of the tools he used, and job grading standards for
composite/plastic fabricating.
On October 30, 2017 OWCP received appellant’s response to its development letter.
Appellant explained that he had been suffering from the effects of carpal tunnel syndrome for
some time. He related that his physician had informed him that his condition was from the tools
he used at work and that it would worsen over time. Appellant indicated that the documents he
had submitted would show his return visits for medical treatment over the past several years.
OWCP also received several medical reports dated from 2009 through 2015.
In a March 12, 2009 report, Dr. Jenny C. Wang, an osteopath and Board-certified family
practitioner, related that appellant had complained of “off and on” right hand pain for several
years. Upon physical examination of appellant’s right hand, she observed tenderness and
decreased sensation at ulnar distribution. Dr. Wang diagnosed hand pain, not arthralgia.

2

A March 14, 2009 right hand x-ray examination report showed an old healed fracture, but
the rest of the hand was otherwise unremarkable.
In a March 23, 2009 report, Dr. Kris K. Hirata, Board-certified in physical medicine and
rehabilitation, related appellant’s complaints of consistent right hand pain and right hand
numbness in the 4th and 5th fingers for the past two years. Physical examination of appellant’s
upper extremities showed positive Tinel’s test bilaterally. Dr. Hirata diagnosed neuropathy of
the ulnar nerve.
A March 23, 2009 electromyography (EMG) and nerve conduction velocity (NCV) study
report showed right ulnar nerve neuropathy and bilateral carpal tunnel syndrome, mild-tomoderate on the right and severe on the left.
On June 8, 2009 Dr. James S. Hwang, an osteopath and Board-certified family
practitioner, reported that appellant was seen for follow-up of left arm pain. Upon examination
of appellant’s left arm, he observed tenderness to palpation at the muscles and slight crepitus.
Dr. Hwang diagnosed arm strain, repetitive use.
In a June 17, 2010 report, Dr. Raymundo Miranda David, a Board-certified family
practitioner, noted appellant’s complaints of worsening elbow and wrist pain. He noted that the
symptoms started approximately four years prior. Dr. David indicated that an NCV study was
positive for right ulnar neuropathy and bilateral carpal tunnel syndrome.
On July 21, 2010 Dr. Marc Harold Fogelson, a Board-certified orthopedic surgeon,
reported appellant’s complaints of worsening right ulnar neuropathy and bilateral carpal tunnel
syndrome. Upon physical examination of appellant’s upper extremities, he observed no
tenderness to palpation and normal sensation and muscle strength. Dr. Fogelson diagnosed
carpal tunnel syndrome.
In a March 31, 2014 report, Dr. Hwang indicated that appellant still complained of sharp
pain and numbness of the lateral aspect of the bilateral hand. He noted that appellant did “a lot
of repetitive work with his hands.” Physical examination revealed positive Phalen’s and Tinel’s
signs bilaterally and positive full range of motion of both wrists. Dr. Hwang diagnosed bilateral
carpal tunnel syndrome and chronic low back pain.
Dr. Richard Hanna, a Board-certified orthopedic surgeon, related in an April 17, 2014
report, that appellant’s complaints of bilateral hand pain and numbness had increased in the past
few months, especially at night. Upon physical examination of appellant’s upper extremities, he
observed normal range of motion of the wrists and digits and intact sensation to light touch.
Tinel’s and carpal tunnel tests were positive bilaterally. Dr. Hanna diagnosed bilateral carpal
tunnel syndrome.
A January 5, 2015 lumbar spine magnetic resonance imaging (MRI) scan report showed
mild degenerative disc disease at L3-4, L4-5, and L5-S1.
A May 14, 2015 right shoulder MRI scan showed supraspinatus tendinitis and a small
tear at the posterior superior labrum.

3

By decision dated November 30, 2017, OWCP denied appellant’s occupational disease
claim. It accepted his duties as a composite fabricator leader and diagnosis of carpal tunnel
syndrome, but denied his claim because the medical evidence of record was insufficient to
establish that his diagnosed condition was causally related to the accepted employment factors.
On January 9, 2018 appellant filed a request for reconsideration and noted his
disagreement with the November 30, 2017 decision. He alleged that he had bilateral carpal
tunnel syndrome in both hands and that it was still a major issue to this date. Appellant related
that Dr. Hwang would send a letter opining that this health problem was caused by his
occupation at the employing establishment.
In an after visit summary report dated December 19, 2017, Dr. Hwang indicated that he
treated appellant on that date and noted a diagnosis of bilateral carpal tunnel syndrome.
By decision dated January 16, 2018, OWCP denied reconsideration of the merits of
appellant’s claim. It found that appellant had not met the requirement of 5 U.S.C. § 8128(a)
sufficient to warrant merit review. OWCP found that the additional medical report submitted
was irrelevant or immaterial to the underlying issue of his case.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which compensation is claimed is causally related
to that employment injury.5 In an occupational disease claim, appellant’s burden requires
submission of the following: (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.6
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical opinion evidence.7 The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature

3

Supra note 1.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

4

of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish bilateral carpal
tunnel syndrome causally related to the accepted factors of his federal employment.
In support of his claim, appellant submitted several reports by Dr. Hwang. In a June 8,
2009 report, Dr. Hwang observed tenderness to palpation and slight crepitation of appellant’s left
arm. He diagnosed arm strain, repetitive use. In a March 31, 2014 report, Dr. Hwang related
that appellant still complained of pain and numbness of the lateral aspect of both hands. He
indicated that appellant did “a lot of repetitive work with his hands.” Dr. Hwang diagnosed
bilateral carpal tunnel syndrome. The Board notes that Dr. Hwang provided objective findings
on examination and diagnosed bilateral carpal tunnel syndrome. He did not, however, provide
any rationalized opinion relative to the cause of appellant’s diagnosed condition. While
Dr. Hwang alluded to the fact that appellant performed repetitive work with his hands, he did not
explicitly opine or explain how such repetitive use or repetitive work caused or contributed to
appellant’s bilateral carpal tunnel syndrome. Medical evidence that does not offer any
rationalized opinion regarding the cause of an employee’s diagnosed condition is of no probative
value to establish causal relationship.9 Accordingly, Dr. Hwang’s reports are insufficient to
establish appellant’s claim.
Appellant also submitted various reports from several physicians dated from 2009 to
2014. In a March 12, 2009 report, Dr. Wang observed tenderness and decreased sensation at the
right ulnar nerve and observed hand pain, not arthralgia. In a March 23, 2009 report, Dr. Hirata
examined appellant for complaints of right hand pain and reported that Tinel’s test was positive
bilaterally. He diagnosed neuropathy of the ulnar nerve. Neither physician, however, offered
any opinion or explanation on the cause of appellant’s diagnosed right hand condition. The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.10
Similarly, Dr. David’s June 17, 2010 report, Dr. Fogelson’s July 21, 2010 report, and
Dr. Hanna’s April 17, 2014 report, provide a diagnosis of bilateral carpal tunnel syndrome, but
do not offer any opinion on the cause of appellant’s diagnosed condition. These reports,
therefore, are also of no probative value and are thus insufficient to establish appellant’s claim.11
The remaining diagnostic reports, including the March 14, 2009 right hand x-ray report,
March 23, 2009 EMG/NCV study report, January 5, 2015 lumbar spine MRI scan report, and
May 14, 2015 right shoulder MRI scan report, are of limited probative value as diagnostic
8

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

9

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

10

See supra note 9.

11

Id.

5

reports fail to provide an opinion on the causal relationship between appellant’s employment and
his diagnosed condition. For this reason, this evidence is insufficient to meet his burden of
proof.12
The mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of an employment relation. Such a relationship must be
shown by rationalized medical evidence of causal relationship based upon a specific and accurate
history of employment conditions which are alleged to have caused or exacerbated a disabling
condition.13 Because appellant has failed to provide sufficient medical evidence to establish that
his bilateral carpal tunnel syndrome was causally related to the accepted factors of his federal
employment, he has not met his burden of proof to establish his occupational disease claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award
for or against compensation at any time on his own motion or on application.14
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.15
A request for reconsideration must also be received by OWCP within one year of the date
of its decision for which review is sought.16 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.17 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.18
12

See A.B., Docket No. 17-0301 (issued May 19, 2017).

13

Patricia J. Bolleter, 40 ECAB 373 (1988).

14
5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB
372 (2008).
15

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 081569 (issued December 9, 2008).
16

20 C.F.R. § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4 (February 2016)
17

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

18

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

6

ANALYSIS -- ISSUE 2
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).
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, did not advance a relevant legal argument not previously considered by OWCP, and did not
constitute relevant and pertinent new evidence not previously considered by OWCP. As such, he
was not entitled to a review of the merits of his claim.19
The underlying merit issue on reconsideration is medical in nature, whether appellant’s
bilateral carpal tunnel syndrome was causally related to his employment duties. He submitted a
December 19, 2017 after visit summary report by Dr. Hwang. This after visit summary report,
however, did not discuss or offer any opinion regarding whether appellant’s bilateral carpal
tunnel syndrome was causally related to his employment. The Board notes that the submission
of evidence that does not address the particular issue involved does not constitute a basis for
reopening a case.20
Accordingly, the Board finds that appellant did not provide OWCP with any evidence
which has met the requirements of 20 C.F.R. § 10.606(b)(3) sufficient to require further merit
review of his claim.
The Board finds, therefore, that appellant has not met any of the regulatory requirements
and OWCP properly denied his request for reconsideration of the merits of his claim under
5 U.S.C. § 8128(a).21
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
bilateral carpal tunnel syndrome was causally related to the accepted factors of his federal
employment.
The Board further finds that OWCP properly denied his request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

19

See J.F., Docket No. 16-1233 (issued November 23, 2016).

20

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

21
A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006).

7

ORDER
IT IS HEREBY ORDERED THAT the January 16, 2018 and November 30, 2017
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 28, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.T., Appellant
and
DEPARTMENT OF THE AIR FORCE,
BARKSDALE AIR FORCE BASE, LA,
Employer
__________________________________________

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

Docket No. 09-2312
Issued: June 11, 2010

Case Submitted on the Record

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

JURISDICTION
On September 17, 2009 appellant filed a timely appeal from an August 26, 2009 merit
decision of the Office of Workers’ Compensation Programs terminating his compensation and
authorization for medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the termination decision.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
effective September 27, 2009 on the grounds that he had no further disability causally related to
his accepted employment injuries; and (2) whether the Office properly terminated his
authorization for medical treatment.
FACTUAL HISTORY
On September 6, 2006 appellant, then a 55-year-old aircraft ordinance systems mechanic,
filed a claim alleging that he sustained a pulled muscle in his lower back on August 28, 2006

loading a practice bomb into position. The Office accepted his claim for lumbar sprain.
Appellant worked limited duty for four weeks following his injury.
On June 28, 2007 appellant filed a recurrence of disability claim on May 9, 2007 due to
his August 28, 2006 employment injury. He related that he experienced low back spasms due to
lifting missiles over his shoulders.
On July 22, 2007 the Office began paying appellant compensation for total disability. It
noted on the supplemental roll payment sheet that he had sustained a new injury on May 9, 2007.
The Office paid appellant compensation on the periodic rolls beginning September 2, 2007.
By letter dated March 14, 2008, the Office referred appellant to Dr. Robert E.
Holladay, IV, a Board-certified orthopedic surgeon, for a second opinion examination. On
April 14, 2008 Dr. Holladay diagnosed a lumbar spine strain and sprain and preexisting lumbar
degenerative disc disease. He opined that there were no objective residuals of the August 26,
2006 lumbar strain and sprain. Dr. Holladay stated, “The claimant has underlying, preexisting
conditions of degenerative disc disease of the spine and anxiety which have contributed to his
prolonged recovery.” He found that, considering only his August 26, 2006 injury, appellant
could perform his usual employment.
On April 29, 2008 Dr. John D. Danzell, Jr., an attending physician who is Board-certified
in family practice, opined that appellant’s lumbar disc problems increased after his May 9, 2007
work injury. He related that a magnetic resonance imaging (MRI) scan study obtained on June 7,
2007 showed a bulging disc at L3-4 and L4-5 probably due to the lifting injury and further
maintained that the May 9, 2007 injury aggravated appellant’s preexisting scoliosis and
degenerative changes at L1 through S1. Dr. Danzell opined that he could not perform his usual
work duties.
The Office determined that a conflict existed between Dr. Danzell and Dr. Holladay
regarding appellant’s ability to return to work. On December 3, 2008 it referred him to Dr. John
Steele, a Board-certified orthopedic surgeon, for an impartial medical examination. The Office
requested that Dr. Steele provide an opinion regarding whether appellant had any objective
residuals of his August 26, 2006 work injury and the nature and extent of any work-related
disability. In the accompanying statement of accepted facts, it advised that it had accepted that
he sustained lumbar strain due to an August 28, 2006 employment injury. The Office further
noted that appellant reinjured his back lifting missiles on May 9, 2007.
In a report dated January 19, 2009, Dr. Steele reviewed the history of injury and the
medical reports of record. On examination, he found moderately limited range of motion of the
back and tenderness “to deep palpation in the left greater sciatic notch as well as over the sciatic
nerves in the posterior thighs bilaterally.” Dr. Steele indicated that appellant had a negative
Spurling’s test bilaterally and a straight leg raise negative in the seated position but positive in
the supine position. He found some positive Waddell’s signs and a “stocking pattern of sensory
disturbance and distinct disproportionate verbalization facial expression and pain behavior.”
Dr. Steele diagnosed a “strain/sprain of the lumbar spine, compensable, appearing to be
resolved” and preexisting degenerative spondylosis and disc disease of the thoracic and lumbar
spine. He determined that there were no objective findings of the accepted condition and that

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appellant’s residuals ceased when he “was released to regular duties without restrictions on
October 11, 2006.”
By decision dated August 26, 2009, the Office terminated appellant’s compensation and
entitlement to medical benefits effective September 27, 2009 on the grounds that the medical
evidence established that he had not further disability or condition due to his August 28, 2006
work injury.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.1
The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.2
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.3 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.4 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.5
The Office procedure manual provides as follows:
“When the DMA [district medical adviser], second opinion specialist or referee
physician renders a medical opinion based on a SOAF [statement of accepted
facts] which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.”6

1

T.P., 58 ECAB 524 (2007); Gloria J. Godfrey, 52 ECAB 486 (2001).

2

Gewin C. Hawkins, 52 ECAB 242 (2001).

3

5 U.S.C. § 8123(a).

4

20 C.F.R. § 10.321.

5

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).

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ANALYSIS
The Office accepted that appellant sustained lumbar strain due to an August 28, 2006
work injury. It further accepted that he reinjured his back on May 9, 2007 lifting missiles. The
Office paid appellant compensation beginning July 22, 2007.
The Office determined that a conflict existed between Dr. Holladay, the second opinion
physician and Dr. Danzell, appellant’s attending physician, regarding whether he had any
continuing disability or residuals of his August 28, 2006 work injury. It referred him to
Dr. Steele for an impartial medical examination. In an accompanying statement of accepted
facts, the Office indicated that it had accepted that he reinjured his back on May 9, 2007. It did
not provide the condition it accepted as related to the May 9, 2007 injury.
Where there exists a conflict in medical opinion and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, is entitled to special
weight.7 The Board finds, however, that Dr. Steele’s opinion is of diminished probative value
and thus does not represent the special weight of the medical evidence. On January 19, 2009
Dr. Steele diagnosed a resolved lumbar strain/sprain and preexisting degenerative thoracic and
lumbar spondylosis and disc disease. He found that residuals of the accepted condition ceased
on October 11, 2006. Based on Dr. Steele’s opinion, the Office terminated appellant’s
compensation effective September 27, 2009. Prior to its termination, however, it paid appellant
compensation for disability as a result of his May 9, 2007 work injury. The Office did not ask
Dr. Steele whether appellant had any further residuals or disability due to the May 9, 2007
employment injury. The statement of accepted facts provided to Dr. Steele did not include the
condition accepted by the Office due to the May 9, 2007 injury. To assure that the report of a
medial specialist is based upon a proper factual background, the Office provides information to
the physician through the preparation of a statement of accepted facts.8 When a physician
renders a medical opinion based on an incomplete or inaccurate statement of accepted facts, the
probative value of the opinion is seriously negated or diminished altogether.9 As Dr. Steele’s
opinion is based on a statement of accepted facts that does not accurately reflect the conditions
accepted as employment related, his opinion is of diminished probative value and insufficient to
resolve the conflict in medical opinion.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation and
authorization for medical treatment effective September 27, 2009 on the grounds that he had no
further disability causally related to his accepted work injuries.

7

J.M., 58 ECAB 478 (2007); Glen E. Shriner, 53 ECAB 165 (2001).

8

Helen Casillas, 46 ECAB 1044 (1995).

9

See supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT the August 26, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 11, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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