United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FEDERAL
CORRECTIONAL INSTITUTION, Loretto, PA,
Employer
__________________________________________

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

Docket No. 15-1495
Issued: November 16, 2015

Case Submitted on the Record

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

JURISDICTION
On June 30, 2015 appellant, through counsel, filed a timely appeal from a March 4, 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 has established a lumbar disc condition consequential to
an accepted lumbosacral sprain.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on July 23, 2010 appellant, then a 42-year-old corrections officer,
sustained a lumbosacral sprain when attempting to forcibly remove an inmate from a cell.
Dr. Patrick Lenz, an attending Board-certified family practitioner, submitted July 23 and 26,
2010 reports noting a history of injury. He diagnosed a lumbosacral sprain and prescribed
medication. Dr. Lenz released appellant to full duty as of July 26, 2010. Appellant did not seek
additional medical care for lumbar symptoms until July 2012.
On July 10, 2012 appellant filed a recurrence of disability (Form CA-2a) claiming that
the accepted back injury worsened spontaneously on June 20, 2012. He stopped work on
July 2, 2012. Appellant submitted July 2, 2012 reports from Dr. Lenz relating appellant’s
account that he injured his back at home on June 20, 2012 while doing yard work. Dr. Lenz also
noted a history of back pain since 2008 from an unspecified cause. He diagnosed lumbago
aggravated by work. Dr. Lenz held appellant off work for four weeks.2
In an August 10, 2012 letter, OWCP advised appellant of the additional evidence needed
to establish his claim, including his physician’s opinion explaining how and why the accepted
resolved lumbosacral sprain would disable him for work on and after June 20, 2012.
In response, appellant submitted reports from Dr. Charles J. Harvey, an attending
osteopath Board-certified in orthopedic surgery. In a July 24, 2012 report, Dr. Harvey noted a
history of lumbar pain since 2009, and that appellant sustained the accepted 2010 lumbar sprain.
He related appellant’s account that the pain had “been steady since June 23, 2012.” Dr. Harvey
diagnosed back pain. He obtained a lumbar magnetic resonance imaging (MRI) scan showing a
left-sided L5-S1 disc protrusion. Based on the study, Dr. Harvey diagnosed degenerative joint
disease of the lumbar spine with a left-sided L5-S1 disc protrusion. On October 10, 2012
Dr. Harvey noted that appellant’s June 2012 increase in discomfort was “related to the original
low back sprain [in] 2010.” He diagnosed left S1 radiculitis secondary to the disc protrusion.
Appellant underwent a series of lumbar epidural steroid injections in October and
November 2012, authorized by OWCP. Dr. Harvey discharged appellant from care on
November 20, 2012. Appellant underwent additional lumbar injections by Dr. Harvey in
February and July 2013, authorized by OWCP.
A November 29, 2013 MRI scan indicated progression of the L5-S1 herniated disc. At
the time, appellant was working full duty with no restrictions.3 Appellant presented to
Dr. Harvey in January 2014 with increasing bilateral radiculopathy. He underwent additional
lumbar epidural injections in February 2014, authorized by OWCP.4

2

Appellant participated in physical therapy in July 2012.

3

By decision dated November 4, 2013, OWCP denied authorization for additional epidural injections as the
herniated lumbar disc had not been accepted as work related.
4

February 17, 2014 electromyography (EMG) and nerve conduction velocity (NCV) studies showed no
peripheral neuropathy.

2

Dr. Harvey opined on February 25, 2014 that the increasing left-sided S1 disc herniation
was a “continuation of ongoing symptomatology caused by his original work-related injury.
That work-related injury with discogenic pain due to a central disc protrusion noted on the MRI
[scan] of August 20, 2012.” He opined that while “the original diagnosis was a lumbar sprain
but truly his symptomatology has always been caused by a deranged disc at L5-S1. Therefore,
his present symptomatology … is a work-related diagnosis.”
In a March 28, 2014 letter, Dr. Harvey requested that OWCP authorize an L5-S1
discectomy. He explained that appellant’s “present left S1 radiculopathy from this large
herniated disc is a continuation of his ongoing symptomatology caused by his original
work-related injury of August 20, 2012. At that time, [appellant] did sustain discogenic pain
with a moderate protrusion,” since progressed to a full left-sided herniation. Dr. Harvey opined
that although appellant was originally diagnosed with a lumbar sprain, his symptoms were due to
disc derangement at L5-S1. Therefore, the recently diagnosed “herniated disc and need for
surgery [were] directly related to the work injury of August 20, 2012.”
On April 3, 2014 Dr. Harvey performed a left-sided L5-S1 discectomy with
decompression of the left S1 nerve root.
By decision dated April 30, 2014, OWCP denied appellant’s claim for a consequential
lumbar disc condition and related surgery. It found that the medical evidence indicated that
appellant sustained a new, nonoccupational injury while doing yard work at home on
June 20, 2012.
Appellant disagreed and on May 6, 2014, through counsel, requested a telephone hearing
before an OWCP hearing representative. At the hearing, held December 15, 2014, appellant
testified that he did not seek medical treatment from July 2010 through June 2012 as over-thecounter pain medication effectively controlled his symptoms, and he believed that he had only
sustained a lumbar sprain. Appellant clarified that he experienced lumbar discomfort after
raking leaves at home on June 20, 2012, prompting him to seek treatment. He contended,
however, that this was not strenuous activity and that he did not sustain a new injury. Counsel
asserted that Dr. Harvey’s reports were sufficient to establish the claimed causal relationship
between the herniated disc and the accepted July 23, 2010 incident. Appellant submitted
additional medical evidence.
In a March 20, 2014 report, Dr. Lenz noted an original 2010 lumbar injury and a reinjury
in June 2012. Appellant underwent additional lumbar steroid injections in March 2014.
Dr. Fred Khalouf, an attending osteopath Board-certified in pain medicine, noted on
September 3, 2014 that appellant’s lumbar radiculopathy resolved after surgery.
He
5
administered a lumbar epidural steroid injection on September 8, 2014.
A December 16, 2014 lumbar MRI scan showed a diffuse L5-S1 disc bulge with
impingement of the left S1 nerve roots. In a December 17, 2014 report, Dr. Khalouf noted the
new onset of left-sided radicular pain.
5

October 27, 2014 EMG and NCV studies of lower extremities were within normal limits.

3

On January 5, 2015 Dr. Harvey performed an L5 laminotomy with left-sided L5
discectomy to address a recurrent left-sided L5-S1 disc herniation.6 Appellant was readmitted on
January 12, 2015 with increased left-sided lumbar pain after he sneezed at home. On January 12,
2015 Dr. Harvey performed a repeat L5 laminotomy with left L5-S1 discectomy, medial
facetectomy and foraminotomy.
By decision dated March 4, 2015, an OWCP hearing representative affirmed the April 30,
2014 decision, finding that the additional medical evidence submitted did not contain sufficient
rationale supporting that the accepted lumbosacral sprain, since resolved, caused or contributed
to the claimed lumbar disc condition.
LEGAL PRECEDENT
The Board has held that if a member weakened by an employment injury contributes to a
later injury, the subsequent injury will be compensable as a consequential injury, if the further
medical complication flows from the compensable injury, so long as it is clear that the real
operative factor is the progression of the compensable injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.9
ANALYSIS
OWCP accepted that appellant sustained a lumbosacral sprain on July 23, 2010. On
July 10, 2012 appellant claimed a consequential lumbar injury occurring on June 20, 2012. In
support of his claim, he submitted reports from Dr. Lenz, an attending Board-certified family
practitioner, who diagnosed a lumbosacral strain on July 23 and 26, 2010. He did not observe or
diagnose an intervertebral disc herniation or other disc-related pathology. In July 2, 2012 and
March 20, 2014 reports, Dr. Lenz noted that appellant sustained a new back injury on June 20,
2012 while doing yard work at home. However, he did not opine that the accepted lumbar sprain
caused or was pathophysiologically connected to the June 20, 2012 nonoccupational injury.
Dr. Khalouf, an attending osteopath Board-certified in pain medicine, did not address
causal relationship in his reports.

6

In a January 5, 2015 letter, OWCP advised appellant that it could not authorize surgery at that time, pending the
outcome of the hearing.
7

S.M., 58 ECAB 166 (2006); Raymond A. Nester, 50 ECAB 173, 175 (1998).

8

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

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

4

Dr. Harvey, an attending osteopath Board-certified in orthopedic surgery, attributed the
worsening of appellant’s symptoms in June 2012 to the accepted lumbar sprain, but did not
provide any rationale to support this conclusion. He posited that appellant was misdiagnosed in
2010, as his symptoms were indicative of a disc protrusion and not a lumbar sprain. However,
Dr. Harvey did not explain the objective clinical findings from contemporaneous medical reports
that supported that appellant sustained a more significant injury than the lumbosacral sprain
diagnosed by Dr. Lenz. The lack of medical rationale significantly diminishes the probative
value of Dr. Harvey’s opinion.10
Additionally, Dr. Harvey opined on March 28, 2014 that appellant’s left S1 radiculopathy
was “directly related to the work injury of August 20, 2012.” However, the accepted lumbar
sprain occurred on July 23, 2010, not August 20, 2012. The only other injury demonstrated by
the record was the June 20, 2012 nonoccupational yardwork incident. This inaccurate history of
injury further reduces the probative quality of Dr. Harvey’s opinion.11
Appellant also provided reports from April 2014 to January 2015 signed by a physician
assistant. However, as physician assistants are not considered physicians under FECA, these
reports are not probative medical evidence. Section 8101(2) of FECA provides as follows:
(2) physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State
law. J.T., Docket No. 12-1903 (issued February 15, 2013). See Merton J. Sills, 39 ECAB 572,
575 (1988).
As appellant did not submit medical evidence supporting that the accepted June 20, 2012
lumbosacral sprain caused a June 20, 2012 consequential injury, he did not meet his burden of
proof. Thus, OWCP properly denied expansion of the claim, including denial of the April 3,
2014, January 5 and 12, 2015 lumbar surgeries. The Board finds that OWCP’s March 4, 2015
decision is proper under the law and facts of this case.
On appeal, counsel contends that OWCP’s March 4, 2015 decision is “contrary to law
and fact.” As set forth above, the medical evidence does not support that the accepted lumbar
sprain caused a subsequent lumbar disc herniation or predisposed appellant to further injury.
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 established a lumbar disc condition consequential
to an accepted lumbosacral sprain.

10

Deborah L. Beatty, 54 ECAB 340 (2003).

11

Douglas M. McQuaid, 52 ECAB 382 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 4, 2015 is affirmed.
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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EAST ORANGE VA MEDICAL CENTER,
East Orange, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0698
Issued: February 3, 2022

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 March 31, 2021 appellant, through counsel, filed a timely appeal from a December 29,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 29, 2020 decision, OWCP received additional evidence. 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 has met its burden of proof to terminate appellant’s medical
benefits, effective July 18, 2020, as he no longer had residuals of his accepted employment-related
conditions.
FACTUAL HISTORY
On September 5, 2015 appellant, then a 53-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging on that date that he sustained injuries to his lower back, right side of his
face, and left knee, as well as a headache, after intervening in a struggle with a patient while in the
performance of duty. OWCP accepted the claim for left shoulder sprain and lumbar strain.
Appellant did not stop work and OWCP did not authorize payment of any wage -loss compensation.
On September 17, 2015 appellant was first seen by Dr. Ningning He, a Board-certified
anesthesiologist and pain medicine physician, for treatment of his September 5, 2015 employment
injury. Dr. He noted appellant’s history of injury, symptoms, and physical examination findings.
He diagnosed lumbar and cervical sprain and strain, lumbar/thoracic radiculitis, lumbar and
cervical facet syndrome/spondylosis, and shoulder pain. In subsequent reports, Dr. He repeated
diagnoses of lumbar and cervical sprain and stain, lumbar/thoracic radiculitis, lumbar and cervical
facet syndrome/spondylosis, and shoulder pain.
On November 16, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a copy of the case record, and a series of questions, to Dr. Jeffrey Lakin, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine the current status of appellant’s
accepted conditions.
In a report dated December 6, 2018, Dr. Lakin reviewed appellant’s history of injury, the
SOAF, and the medical record and set forth negative examination findings. He opined that the
accepted left shoulder and lumbar sprains had resolved. Dr. Lakin reported excellent left shoulder
and lumbar spine motion and strength and excellent lower extremity strength. As there are no
active objective findings of a lumbar or left shoulder sprain, he explained that these conditions had
resolved without residuals or disability. Dr. Lakin also noted that appellant had no additional
conditions causally related to the accepted employment injury.
On April 10, 2019 OWCP found a conflict in the medical opinion evidence between
Dr. Lakin, the second opinion physician, and Dr. He, a treating physician, as to whether appellant’s
current diagnosed conditions were causally related to the accepted employment injury, and
whether the accepted conditions had resolved. It referred appellant, together with a SOAF, medical
record, and list of questions to Dr. Dean Carlson, a Board-certified orthopedic surgeon, to resolve
the conflict.4
In a May 9, 2019 report, Dr. Carlson discussed appellant’s history of injury and his current
complaints of neck, back, and left shoulder pain, and noted his review of the medical record and
SOAF. He set forth findings based upon appellant’s physical examination and opined that
appellant had no residuals of his accepted September 5, 2005 employment injury. On examination,
4

The case record contains an MEO23 appointment schedule notification dated April 5, 2019, which indicates that
Dr. Carlson was selected as the impartial medical examiner (IME).

2

Dr. Carlson found no cervical tenderness or palpable muscle spasm, no lumbar palpable muscle
spasm, L4-5 diffuse tenderness on palpation, diffuse left shoulder tenderness over the de ltoid
muscle, and negative Neer and Hawkins signs. Regarding appellant’s lumbar condition,
Dr. Carlson related that appellant’s L2-4 disc bulges on magnetic resonance imaging (MRI) scan
were not pathological, and the L4-5 herniated disc had no corresponding L5 nerve root signs or
symptoms. Regarding appellant’s left shoulder, he indicated that there was no clinical step off to
indicate an acromioclavicular (AC) separation. The post-traumatic AC arthrosis seen on MRI scan
would be due to a more remote injury, since there were degenerative changes of the AC joint on
the film during the initial examination. Dr. Carlson also reviewed appellant’s cervical x-rays,
which he found showed normal spacing and alignment. He related that appellant’s voluntary
restriction of cervical spine movement on physical examination did not indicate pathology as he
had no spasm or splinting of his cervical muscles. Dr. Carlson diagnosed resolved lumbar,
cervical, and shoulder strains. He concluded that he agreed with Dr. Lakin’s opinion and disagreed
with the opinion of Dr. He.
Dr. He, in a progress notes dated June 10, 2019, diagnosed lumbar sprain and strain,
lumbar/thoracic radiculitis, lumbar facet syndrome, cervical sprain and strain, cervical radiculitis,
cervical facet syndrome/spondylosis, and shoulder pain.
On December 19, 2019 OWCP issued a notice in which it proposed to terminate appellant’s
wage-loss compensation and medical benefits because his September 15, 2015 work-related injury
had resolved without residuals or disability. It found that the special weight of medical evidence
rested with the May 9, 2019 medical report of Dr. Carlson, who found that appellant no longer had
any residuals causally related to his accepted lumbosacral and left shoulder strains. Based on
Dr. Carlson’s diagnosis of a resolved cervical strain, OWCP expanded the acceptance of the claim
to include this condition. It afforded appellant 30 days to submit additional evidence or argument,
in writing, if he disagreed with the proposed notice of termination.
In a letter dated February 27, 2020, appellant, through counsel, objected to the proposed
notice of termination. Counsel asserted that Dr. Carlson had been improperly selected to resolve
the conflict in the medical opinion evidence as the record contained no evidence of any bypass
sheets.
By decision dated July 17, 2020, OWCP finalized the notice of proposed termination of
appellant’s wage-loss compensation and medical benefits, effective July 18, 2020. It found that
the special weight of medical evidence rested with the opinion of Dr. Carlson, the IME, who
concluded in his May 9, 2019 report that appellant had no disability or residuals due to his accepted
September 5, 2015 work-related injury. OWCP also found that the referee selection process was
proper as Dr. Carlson was the first physician selected by the medical management application
(MMA) system.
On August 3, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on October 14, 2020.
By decision dated December 29, 2020, the hearing representative modified the July 17,
2020 decision to find that only entitlement to medical treatment was terminated.

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LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.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 employ ee, the
Secretary shall appoint a third physician who shall make an examination.”8 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an IME 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. 9
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s medical
benefits, effective July 18, 2020, as he no longer had residuals of his accepted employment-related
conditions.
OWCP properly determined that a conflict in medical opinion evidence arose between
Dr. He, appellant’s treating physician, and Dr. Lakin, an OWCP referral physician, regarding
whether the accepted left shoulder and lumbar conditions had resolved. It referred him to
Dr. Carlson for an impartial medical examination, pursuant to 5 U.S.C. § 8123(a).
The Board finds that the special weight of the evidence is represented by the thorough and
well-rationalized opinion of Dr. Carlson, the IME selected to resolve the conflict in medical
opinion.10 In a May 9, 2019 report, Dr. Carlson discussed appellant’s complaints of neck, back,
and left shoulder pain, reviewed his history of injury, and analyzed the medical evidence of record.
He found no cervical tenderness or palpable muscle spasm, no lumbar palpable muscle spasm,
L4-5 diffuse tenderness on palpation, diffuse left shoulder tenderness over the deltoid muscle, and
negative Neer and Hawkins signs. Dr. Carlson noted that appellant’s left shoulder and cervical
5

R.V., Docket No. 20-00005 (issued December 8, 2020); D.G., Docket No. 19-1259 (issued January 29, 2020); S.F.,
59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

R.V., id.; J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued
February 27, 2019).
7

R.V., id.; L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued
February 5, 2019).
8

5 U.S.C. § 8123(a).

9

D.G., supra note 5; D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P.
Roberts, 31 ECAB 1010 (1980).
10

M.L., Docket No. 20-1682 (issued June 24, 2021); R.P., Docket No. 19-0057 (issued May 16, 2019); R.H., 59
ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

4

x-rays revealed normal findings. He opined that appellant’s cervical, lumbar, and left shoulder
strains had resolved based on the lack of objective findings on examination. Dr. Carlson provided
a thorough factual and medical history and accurately summarized the relevant medical evidence. 11
He provided rationale for his opinion by explaining that appellant’s findings on examination were
within normal limits and that the diagnostic studies showed no abnormalities, causally related to
the accepted injury. Dr. Carlson’s opinion, thus, represents the special weight of the evidence and
establishes that he had no further residuals causally related to his September 5, 2015 employment
injury.12
The additional evidence submitted subsequent to Dr. Carlson’s May 9, 2019 report, but
prior to OWCP’s termination of appellant’s compensation, is insufficient to overcome the special
weight accorded to Dr. Carlson as the IME.
Appellant submitted June 10, 2019 progress reports from Dr. He, who opined that appellant
continued to suffer from residuals of the September 5, 2015 employment injury. However, Dr. He
was on one side of the conflict regarding whether appellant had continued residuals. Reports from
a physician who was on one side of a medical conflict resolved by an IME are insufficient to
overcome the special weight accorded to the opinion of the IME. 13
The Board, therefore, finds that OWCP properly terminated appellant’s medical benefits,
effective July 18, 2020, as he no longer had residuals causally related to his accepted September 5,
2015 employment injury.
On appeal, counsel asserts that the IME selection process was flawed and unexplained, as
there were no bypass reports of record. He has presented no evidence to support his assertion.
OWCP addressed this assertion noting that Dr. Carlson was the first physician selected and, thus,
no bypass sheets were created. It uses the MMA with a strict rotational feature to select an IME.14
The record contains an April 5, 2019 MEO23report. As there is no evidence that OWCP bypassed
physicians before selecting Dr. Carlson as the IME, the Board finds that OWCP provided sufficient
documentation to establish that it properly utilized its MMA system in selecting Dr. Carlson.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s medical
benefits, effective July 18, 2020, as he no longer had residuals of his accepted employment-related
conditions.

11

M.L., id.; M.R., Docket No. 19-0518 (issued September 12, 2019); A.G., Docket No. 19-0113 (issued
July 12, 2019).
12

M.L., id.; A.M., Docket No. 18-1243 (issued October 7, 2019); J.K., Docket No. 18-1250 (issued June 25, 2019).

13

D.G., supra note 5; I.J., 59 ECAB 408 (2008).

14
H.W., Docket No. 14-1319 (issued February 3, 2015); Federal (FECA) Procedure Manual, Part 3 -- Medical,
OWCP Directed Medical Examinations, Chapter 3.500.5(i) (May 2013). “The ME023, Appointment Notification
Report, can only be generated through the [MMA] and serves as documentary evidence that the appointment was
scheduled through the use of the rotational system in the [MMA]. The medical scheduler should image a copy of the
ME023 report into the case file to substantiate that the rotational system was u sed to select the physician.”

5

ORDER
IT IS HEREBY ORDERED THAT the December 29, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2022
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
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Troy, MI, Employer
__________________________________________

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

Docket No. 07-1931
Issued: December 21, 2007

Case Submitted on the Record

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

JURISDICTION
On July 17, 2007 appellant, through her attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ hearing representative’s merit decision dated June 25, 2007
finding that she had not established a left knee 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 has met her burden of proof in establishing that she
developed a left knee injury due to her federal employment duties.
FACTUAL HISTORY
On August 14, 2006 appellant, then a 51-year-old letter carrier, filed an occupational
disease alleging that she had developed a left knee condition due to her federal job duties. She
previously injured her left knee in 2002 and underwent surgery. Appellant returned to work, but

continued to experience knee pain. She noted that she had previously filed a notice of recurrence
of disability which was denied by the Office. Appellant stated that she required additional knee
surgery.
Dr. Brian Titesworth, a Board-certified internist, examined appellant on April 28, 2006
and reported her history of knee injury in 2002. Appellant reported recent increasing pain in her
left knee. Dr. Titesworth opined that a medial meniscal injury was progressing. In a note dated
June 13, 2006, Dr. Henry Goitz, a Board-certified orthopedic surgeon, noted appellant’s history
of knee injury in 2002 and surgery in 2003. He stated that appellant had significant
improvement following her 2003 surgery and was able to perform her usual activities. Dr. Goitz
noted that in the early spring of 2006 appellant developed increasing pain while walking. He
reviewed diagnostic studies and diagnosed collapse of the medial compartment, degenerative
changes with a bucket-handle tear of the medial meniscus. Dr. Goitz noted that appellant wanted
additional surgery.
In a letter dated August 28, 2006, the Office requested additional factual and medical
information from appellant including a detailed description of the employment duties to which
she attributed her condition.
Dr. Goitz completed a form report on June 21, 2006 and noted appellant’s prior
employment injury. He diagnosed left knee osteoarthritis and moderate suprapatellar effusion.
Dr. Goitz indicated with a checkmark “yes” that appellant’s condition was caused or aggravated
by employment activities. He recommended additional surgery.
Appellant submitted additional information on September 12, 2006 and noted that,
following her return to work in January 2003 after her initial knee injury, she performed light
duty. She had restrictions of limited bending, lifting and walking. Appellant stated that she
cased mail for four hours and then delivered her route which required “vigorous bending,
stooping, walking and standing.” Dr. Goitz completed a note on September 26, 2006 and
described how a meniscal tear could occur. He noted that a twisting event with a direct
contusion could result in a meniscal tear and that a direct contusion could aggravate a preexisting
tear. Dr. Goitz stated: “In short, the claimed event can result in the problem treated surgically
particularly if the patient was doing well prior to the injurious event.”
By decision dated November 8, 2006, the Office denied appellant’s claim finding that she
failed to provide a detailed factual statement describing the employment activities that she felt
caused or contributed to her current left knee condition. The Office further found that appellant
had not submitted the necessary medical evidence to establish a causal relationship between her
employment duties and her left knee condition.
Appellant, through her attorney, requested an oral hearing on December 2, 2006. She
testified at the oral hearing on March 27, 2007, reiterating that she underwent a left knee surgery
on August 2006 and received compensation benefits for lost time due to this surgery. Appellant
noted that she return to full duty with lifting restrictions after her initial knee surgery. She stated
that she entered and exited her mail truck at 300 stops a day, that she frequently walked to place

2

parcels in doorways and that she frequently twisted both her body and her knee performing her
job duties. Appellant provided the job requirements of her position, which included twisting six
hours a day.
By decision dated June 25, 2007, the hearing representative found that, although
appellant had provided the necessary factual information detailing the physical duties she
performed, she did not provide a detailed reasoned medical report supporting that these work
duties caused or contributed to her current left knee condition or the need for surgery in
August 2006.
LEGAL PRECEDENT
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.1 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence of existence of a the disease or condition for
which compensation is claimed; (2) a factual statement identifying the employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The medical opinion 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.2
ANALYSIS
Appellant has submitted evidence of a left knee condition diagnosed as collapse of the
medial compartment and degenerative change with a bucket-handle tear of the medial meniscus.
She implicated factors of her federal employment duties of twisting for six hours a day, entering
and exiting her mail truck 300 times a day and walking. However, appellant has not submitted
the necessary medical evidence to establish a causal relationship between these employment
duties and her left knee condition.
In support of her claim, appellant submitted medical reports from Dr. Goitz, a Boardcertified orthopedic surgeon. In a form report dated June 21, 2006, Dr Goitz indicated with a
checkmark “yes” that appellant’s left knee condition was due to employment activities. The
Board has held that an opinion on causal relationship which consists only of a physician
checking “yes” to a medical form report question on whether the claimant’s condition was
related to the history given is of little probative value. Without any explanation or rationale for
the conclusion reached, such a report is insufficient to establish causal relationship.3

1

20 C.F.R. § 10.5(q).

2

Solomon Polen, 51 ECAB 341, 343-44 (2000).

3

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

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Dr. Goitz submitted a narrative report on September 26, 2006 and offered possibilities of
how a meniscal tear could occur. He indicated that a twisting event with a direct contusion or a
direct contusion only could result in this injury. However, appellant has not alleged that she
sustained any contusion to her knee. As this report does not address the specifics of appellant’s
claim and does not offer a clear opinion regarding the mechanism of injury in this case, it is not
sufficient to meet appellant’s burden of proof.
Appellant has not submitted any medical evidence describing her employment duties,
following her return to limited duty in 2003. There is no medical evidence addressing how these
duties resulted in her left knee condition and need for surgery or explaining how the physician
reached this conclusion as required to establish an occupational disease claim. As she has not
submitted the required medical evidence, the Office properly denied her claim.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion to
establish that her diagnosed condition was causally related to the employment factors she
identified for this reason, the Office properly denied her claim.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 21, 2007
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 07-1372
Issued: October 10, 2007

Case Submitted on the Record

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

JURISDICTION
On April 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 26, 2006 decision regarding a schedule award and the Office’s
September 21, 2006 decision denying his reconsideration request. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over these decisions.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he has
more than a two percent permanent impairment of his left leg, for which he received a schedule
award; and (2) whether the Office properly denied appellant’s request for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 6, 2005 appellant, then a 43-year-old civil aviation security specialist, filed a
traumatic injury claim alleging that he sustained a left knee injury on that date when it made

contact with a concrete surface during range combat activities. He did not stop work at that time
but later stopped work for intermittent periods.
The findings of July 6, 2005 magnetic resonance imaging scan testing revealed a mild
intrasubstance degenerative signal of the posterior horn of the left medial meniscus.
Dr. David R. Kingery, an attending Board-certified orthopedic surgeon, diagnosed a left medial
meniscus tear. The Office accepted that appellant sustained a left knee sprain/strain and a left
medial meniscus tear and paid compensation for periods of disability. On September 23, 2005
Dr. Kingery performed a partial left medial meniscectomy which was authorized by the Office.
On November 8, 2005 appellant returned to regular full-time work for the employing
establishment.1 On November 28, 2005 Dr. Kingery stated that appellant complained of mild
pain in the medial area of his left knee but noted that he exhibited good range of motion. On
January 3, 2006 he indicated that appellant had some mild pain on McMurray’s maneuver of the
left knee but had no swelling and exhibited excellent knee motion.
The Office requested that Dr. Kingery provide an assessment of the permanent
impairment to appellant’s left leg. On February 28, 2006 he indicated that appellant had full
flexion and extension of the left knee and indicated that his collateral and cruciate ligaments
were stable. Dr. Kingery stated that appellant had reached maximum medical improvement and
was cleared to perform all his normal physical activities. He noted: “Based upon the loss of his
medial meniscus and his future potential for degenerative changes, [five] percent permanent
partial impairment is recommended.”
On May 15, 2006 Dr. Harry L. Collins, Jr., a Board-certified orthopedic surgeon and
Office district medical adviser, reviewed the medical evidence of record. He concluded that
appellant had a two percent permanent impairment of his right leg due to his partial medial
meniscectomy under Table 17-33 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001). The Office provided Dr. Kingery with a
chance to comment on Dr. Collins’ impairment rating, but there was no response in the time
period allotted by the Office.
In a June 26, 2006 award of compensation, the Office granted appellant a schedule award
for a two percent permanent impairment of his left leg.2 The award ran for 5.76 weeks from
March 1 to April 10, 2006.
On August 28, 2006 appellant requested reconsideration of his claim. He submitted a
July 18, 2006 form report in which Dr. Kingery noted pain upon squatting and running which
interfered with but did not prevent activity. Dr. Kingery also indicated that appellant had
“weakness of quadriceps.” In a September 21, 2006 decision, the Office denied appellant’s
request for further review of the merits of his claim.

1

Dr. Kingery placed some restrictions on the distances that appellant could run. Appellant was periodically
required to perform to pass physical fitness tests which included running tasks.
2

The Office inadvertently indicated that the award was for the left knee but it actually was for the left leg.

2

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulation4 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.5
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a left knee sprain/strain and a left medial
meniscus tear. On September 23, 2005 Dr. Kingery, an attending orthopedic surgeon, performed
a partial left medial meniscectomy. In a June 26, 2006 award of compensation, the Office
granted appellant a schedule award for a two percent permanent impairment of his left leg.
The Board finds that Dr. Collins, a Board-certified orthopedic surgeon, who served as an
Office district medical adviser, properly determined that appellant had a two percent permanent
impairment of his left leg. Dr. Collins reviewed the medical evidence of record and correctly
concluded that appellant had a two percent permanent impairment of his right leg due to his
partial medial meniscectomy.6 On February 28, 2006 Dr. Kingery noted: “Based upon the loss
of his medial meniscus and his future potential for degenerative changes, [five] percent
permanent partial impairment is recommended.”7 However, this opinion is of limited probative
value in that the physician failed to provide an explanation of how he rated permanent
impairment in accordance with the A.M.A., Guides, the standards adopted by the Office and
approved by the Board as appropriate for evaluating schedule losses.8 As the report of
Dr. Collins provided only evaluation which conforms with the A.M.A., Guides, it constitutes the

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

See A.M.A., Guides 546, Table 17-33. There is no indication that appellant had any other ratable impairments
due to strength, motion or pain deficits. He consistently exhibited normal range of motion on flexion and extension
of the left knee and there is no evidence that he had significant pain or weakness after reaching maximum medical
improvement. See generally id. at 531-37, 550-53, 565-86.
7

Dr. Kingery also indicated that appellant had full flexion and extension of the left knee and indicated that his
collateral and cruciate ligaments were stable.
8

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the
standards adopted by the Office and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment).

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weight of the medical evidence.9 Appellant has not shown that he has more than a two percent
permanent impairment of his left leg.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office’s regulation 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.11 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his application for review within one year of the date of that decision.12 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.13 The Board has held that the submission of evidence
which does not address the particular issue involved does not constitute a basis for reopening a
case.14
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ANALYSIS -- ISSUE 2
In support of his timely reconsideration request, appellant submitted a July 18, 2006 form
report of Dr. Kingery. The submission of this report did not require reopening of appellant’s
claim because it is not relevant to the underlying issue of the present case, i.e., whether he has
shown that he has more than a two percent permanent impairment of his left leg. Dr. Kingery’s
report did not provide any impairment rating for appellant’s left leg which was derived in
accordance with the relevant standards of the A.M.A., Guides.15 Therefore, it is not relevant to
the issue in this case.
In the present case, appellant has not established that the Office improperly denied his
request for further review of the merits of its June 26, 2006 decision under section 8128(a) of the
Act, because the evidence he submitted did not to show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered

9

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

10

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).
11

20 C.F.R. § 10.606(b)(2).

12

Id. at § 10.607(a).

13

Id. at § 10.608(b).

14

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

15

Dr. Kingery indicated that appellant had some left knee pain and quadriceps weakness, but he did not describe
these ostensible deficits in enough detail to determine whether they would show a ratable permanent impairment
under the standards of the A.M.A., Guides.

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by the Office or constitute relevant and pertinent new evidence not previously considered by the
Office.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a two percent permanent impairment of his left leg, for which he received a schedule
award. The Board further finds that the Office properly denied appellant’s request for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 21 and June 26, 2006 decisions are affirmed.
Issued: October 10, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF THE ARMY, PINE BLUFF
ARSENAL, Pine Bluff, AR, Employer
__________________________________________

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

Docket No. 15-234
Issued: April 9, 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 November 10, 2014 appellant filed a timely appeal from an October 29, 2014
nonmerit decision and an August 25, 2014 merit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employee’s Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant established that he sustained a traumatic injury in
the performance of duty; and (2) whether OWCP properly denied his request for review of the
written record as untimely under 5 U.S.C. § 8124.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 13, 2014 appellant, then a 63-year-old telecommunications specialist filed a
traumatic injury claim alleging that on May 6, 2014 he sustained a right knee injury in the
performance of duty. He alleged that, while digging a trench, he began to experience pain in his
right knee. It was noted that appellant was on restrictions due to a 2001 injury. The employing
establishment did not indicate that he stopped work.
In a May 8, 2014 report, Dr. Diego Gonzalez, Board-certified in pediatrics, advised that
appellant had a severe onset of right knee pain while digging a trench. He noted that appellant
had a recurrent history of knee pain and that his left knee had previously been replaced.
Dr. Gonzalez advised that appellant previously had a steroid injection for right knee pain in
February 2014. On physical examination, he noted localized pain and swelling in the lateral
aspect of the right knee with a grinding and crunching sound on flexion, extension, and rotation.
Dr. Gonzalez diagnosed right knee joint pain and internal derangement of the lateral meniscus.
He released appellant to limited-duty work. In a May 19, 2014 report, Dr. Gonzalez referred
appellant to an orthopedic surgeon. He repeated that appellant had severe right knee pain while
digging a trench and that appellant had a previous history of right knee pain which required a
steroid injection. On examination, Dr. Gonzalez found localized pain and swelling of the right
knee. He diagnosed right knee pain and noted that the mode of injury was undetermined.
OWCP also received multiple medical reports regarding appellant’s medical history,
including reports relating to a 2001 work injury to the knees. A September 24, 2001 report noted
that appellant had right knee bursitis at the Gerdy’s tubercle. In a September 12, 2005 report,
Dr. Jon R. Jacobson, Board-certified in occupational medicine, advised that appellant
complained of right knee pain and diagnosed patellar chondromalacia.
In a June 25, 2014 attending physician’s report (Form CA-20), Dr. Michael Superior, a
preventative medicine specialist, diagnosed joint pain of the right knee after digging a trench.
On physical examination, he found pain and swelling of the right knee. Dr. Superior further
noted that appellant had recurrent knee pain from 2001. When asked if appellant’s condition was
caused or aggravated by factors of his employment, he stated that he was unsure. Dr. Superior
remarked that appellant was previously a runner and was currently a cyclist and that these
activities could not be ruled out as contributing to his condition.
In a July 8, 2014 statement, the employing establishment controverted appellant’s claim.
It noted that he had preexisting osteoarthritis which previously required knee injections and that
he was a runner and cyclist which could be a cause of his injury. The statement also advised that
initially appellant claimed that his condition was a recurrence from his 2001 claim and that there
was no new injury.
In a July 16, 2014 attending physician’s report (Form CA-20), Dr. Tad Pruitt, a Boardcertified orthopedic surgeon, advised that appellant had a shoveling injury. He noted that
appellant had preexisting mild arthritis and diagnosed a possible lateral meniscal tear. Dr. Pruitt
also checked the box marked “yes” to indicate that appellant’s condition was caused or
aggravated by an employment-related activity. In a July 16, 2014 disability status report, he
advised that appellant was able to return to full duty without restrictions.

2

By letter dated July 23, 2014, OWCP notified appellant that medical evidence was
insufficient to establish his claim and advised him of the type of evidence needed.
Appellant submitted a July 16, 2014 report from Dr. Pruitt advising that appellant
complained of right knee pain. Dr. Pruitt noted that appellant was digging a trench when he
began to experience sharp lateral knee pain. Appellant related that he has had “bad knees” for
years, including a 2002 total left knee arthroplasty, but was able to perform unrestricted activities
such as biking and running. Dr. Pruitt advised that, in early May, appellant was digging a trench
and went down onto the knee and, while shoveling later, he had a sharp lateral knee pain.
Appellant took medication but overall the pain was getting worse with intermittent swelling.
Knee alignment was normal. The right knee had tenderness along the lateral joint line, full range
of motion as well as good strength and stability. Anteroposterior right knee x-ray was relatively
normal while the Rosenberg view showed possible lateral joint space narrowing and lateral
patellofemoral facet joint space narrowing. Dr. Pruitt assessed right knee strain related to the
May 6, 2014 work incident, possible right lateral meniscus tear, and right knee osteoarthritis.
In an August 4, 2014 statement, appellant advised that, while he was digging a trench to
bury a telephone cable, he began to feel a sharp pain in his right knee that he had never felt
previously. He noted that his injury caused a severe right limp. In response to the employing
establishment’s statement, appellant noted that he had not run since 2001 and that his cycling
was recommended by his personal physician. He also submitted a newspaper article indicating
that older people should not limit high-impact activities like jogging.
In an August 18, 2014 report, Dr. Pruitt reiterated that the diagnosis of right knee strain
related to the May 6, 2014 work incident, possible right lateral meniscus tear, and right knee
osteoarthritis. He advised that appellant was injured while digging a hole at work. Appellant
was experiencing pain over the lateral aspect of the knee. Dr. Pruitt advised that a steroid
injection gave appellant 35 percent pain relief for approximately two weeks but the pain had
mostly returned. He noted findings and recommended a magnetic resonance imaging (MRI)
scan of the right knee.
By decision dated August 25, 2014, OWCP denied appellant’s claim because the medical
evidence did not establish that the diagnosed condition was causally related to the work incident.
In a September 3, 2014 report, a physician assistant advised that appellant complained of
right knee pain. He detailed appellant’s treatment with regard to his right knee and opined that
appellant’s condition was not a recurrence of the old injury because the prior injury did not lend
itself to explain his lateral knee pain. The physician assistant also noted that appellant related
that he went 12 years without right knee pain until the May 6, 2014 incident of digging trenches.
Appellant also resubmitted medical reports previously of record.
By letter post-marked and dated September 25, 2015, appellant requested review of the
written record. In a September 24, 2014 report, Dr. Pruitt advised that, while appellant was
digging a trench, his foot slipped causing him to fall and land on his right knee. He noted that
this incident caused compression, bruising, pain, swelling, and a tear to the lateral meniscus.
Dr. Pruitt opined that appellant’s current symptoms were due to the work-related injury sustained
on May 6, 2014, as opposed to appellant’s preexisting osteoarthritis. He advised that x-rays

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revealed some lateral joint space narrowing and lateral facet joint narrowing caused by the lateral
meniscus tear.
By decision dated October 29, 2014, OWCP denied appellant’s request for review of the
written record as untimely without a merit review. It considered his request within its discretion,
but found that his case could be addressed equally well by a request for reconsideration and the
submission of evidence showing a causal relationship between his claimed condition and the
work incident.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,2 including that he is an “employee” within the meaning of FECA and that he or she
filed his or her claim within the applicable time limitation.3 The employee must also establish
that he or she sustained an injury in the performance of duty as alleged and that his or her
disability for work, if any, was causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. 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 -- ISSUE 1
On May 6, 2014 appellant was digging a trench when he began to experience right knee
pain. The evidence supports that the claimed work incident occurred. Therefore, the Board finds
that the first component of fact of injury is established. However, the medical evidence is
insufficient to establish that the employment incident on May 6, 2014 caused appellant’s right
knee condition.
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

4

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

T.H., 59 ECAB 388 (2008).

6

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

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In his July 16, 2014 report, Dr. Pruitt advised that appellant complained of right knee
pain. He noted that appellant related that he has had “bad knees” for years and assessed right
knee strain related to the May 6, 2014 work incident, possible right lateral meniscus tear, and
right knee osteoarthritis. Although Dr. Pruitt provides some support for causal relationship, he
failed to provide medical rationale to explain how the work incident caused appellant’s knee
strain and possible meniscus tear. As noted, rationalized medical opinion evidence is generally
required to establish causal relationship. In his August 18, 2014 report, Dr. Pruitt reiterated the
diagnosis of right knee strain related to the May 6, 2014 work incident, possible right lateral
meniscus tear, and right knee osteoarthritis. Again, he failed to provide sufficient rationale. In
his July 16, 2014 attending physician’s report, Dr. Pruitt, checked the box marked “yes” to
indicate that appellant’s condition was caused or aggravated by an employment-related activity.
The Board has held that an opinion on causal relationship that consists only of a physician
checking yes to a medical form question on whether the claimant’s condition was related to the
history given is of little probative value.7 As a result, these reports are insufficient to discharge
appellant’s burden of proof. None of Dr. Pruitt’s reports provide rationale explaining how
appellant’s work activity on May 6, 2014 caused or contributed to a diagnosed condition.
In his May 8, 2014 report, Dr. Gonzalez advised that appellant had a severe onset of right
knee pain while digging a trench. He noted that appellant had a recurrent history of knee
pain. Although Dr. Gonzalez relates the history of the injury, the Board has found that the mere
fact that a condition manifests itself or is worsened during employment period does not raise an
inference of causal relationship between the two.8 Furthermore, medical evidence without an
opinion as to causal relationship is of little probative value.9 As a result, this report is
insufficient to discharge appellant’s burden of proof. In his May 19, 2014 report, Dr. Gonzalez
noted that appellant had severe right knee pain while digging a trench. He diagnosed right knee
pain and noted that the mode of injury was undetermined. This report is insufficient to discharge
appellant’s burden of proof because it notes that the mode of injury is “undetermined.” This
report is of diminished probative value as Dr. Gonzalez declined to support causal relationship.
In his June 25, 2014 attending physician’s report, Dr. Superior diagnosed joint pain of the
right knee after digging a trench. When asked if appellant’s condition was caused or aggravated
by factors of his employment, he stated that he was unsure. Dr. Superior remarked that appellant
was previously a runner and was currently a cyclist and that these activities could not be ruled
out as contributing to his condition. As he did not specifically support causal relationship, this
report is of limited probative value and insufficient to establish the claim. The September 12,
2005 report of Dr. Jacobson indicated that appellant complained of right knee pain but made no
reference to the causal nature of the pain.
Consequently, appellant has submitted insufficient medical evidence to establish his
claim. As noted, causal relationship is a medical question that must be established by probative
7

Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box yes in a form report, without additional
explanation or rationale, is insufficient to establish causal relationship).
8

Patricia Bolleter, 40 ECAB 373 (1988).

9

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

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medical opinion from a physician.10 The physician must accurately describe appellant’s work
duties and medically explain the pathophysiological process by which these duties would have
caused or aggravated his condition.11 Because appellant has not provided such medical opinion
evidence in this case, he has failed to meet his burden of proof. The need for rationale by a
physician is particularly important since the record indicates that appellant has a preexisting right
knee condition.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of FECA provides that a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his claim before a representative of the Secretary.12 Section
10.615 of the federal regulations implementing this section of FECA provides that a claimant
shall be afforded a choice of an oral hearing or a review of the written record.13 The request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.14 A claimant is entitled to a hearing or review
of the written record as a matter of right if the request is filed within 30 days.15
While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.16

10

See supra note 6.

11

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).
12

5 U.S.C. § 8124(b)(1).

13

20 C.F.R. § 10.615.

14

Id. at § 10.616(a).

15

See Leona B. Jacobs, 55 ECAB 753 (2004).

16

20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (October 2011).

6

ANALYSIS -- ISSUE 2
In a decision dated August 25, 2014, OWCP denied appellant’s traumatic injury claim.
The record indicates that appeal rights accompanied the decision. Appellant sought a review of
the written record in a letter postmarked September 25, 2014. By decision dated October 29,
2014, OWCP denied his request for a review of the written record as untimely under section
8124 of FECA.
On appeal, appellant argues that only 20 days elapsed when calculating his work schedule
and excluding holidays. However, the Board has held that, in computing a time period, the date
of the event from which the designated period of time begins to run shall not be included while
the last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a
legal holiday.17 The 30-day time period for determining the timeliness of appellant’s review of
the written record began on August 26, 2014 and ended on September 24, 2014 which was a
Wednesday. As appellant’s request for a hearing was postmarked September 25, 2014, he was
not entitled to review of the written record as a matter of right.
OWCP has the discretionary power to grant a hearing or review of the written record
when a claimant is not entitled to a hearing or review as a matter or right. It properly exercised
its discretion by stating that it had considered the matter in relation to the issue involved and
denied appellant’s request for a review of the written record on the basis that the case could be
resolved by submitting additional evidence to OWCP with a reconsideration request. The Board
has held that the only limitation on OWCP’s discretionary authority is reasonableness. An 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.18 In this case, the evidence of record does not establish that OWCP committed
any action in connection with its denial of appellant’s request for a review of the written record
which could be found to be an abuse of discretion. Consequently, OWCP properly denied his
request for an oral hearing as untimely under section 8124 of FECA.
The Board notes that appellant submitted other medical reports addressing causal
relationship after OWCP’s August 25, 2014 merit decision. As these reports were not considered
by OWCP in reaching a decision, the Board lacks jurisdiction to review this new evidence for the
first time on appeal.19
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury in the
performance of duty on May 16, 2014. Furthermore, the Board finds that OWCP properly
denied appellant’s request for review of the written record as untimely.

17

John B. Montoya, 43 ECAB 1148 (1992).

18

See L.W., 59 ECAB 471 (2008).

19

See 20 C.F.R. § 501.2(c).

7

ORDER
IT IS HEREBY ORDERED THAT the October 29 and August 25, 2014 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: April 9, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Albuquerque, NM, Employer
__________________________________________

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

Docket No. 12-394
Issued: July 27, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On December 14, 2011 appellant filed a timely appeal from a November 29, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying authorization for
requested medical treatment. 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 abused its discretion by denying appellant’s request for
surgical authorization.
FACTUAL HISTORY
On September 18, 2009 appellant, then a 53-year-old housekeeping aid, filed a traumatic
injury claim alleging that he sustained lower back strain while lifting a pallet at work on
1

5 U.S.C. § 8101 et seq.

August 31, 2009. He submitted progress notes from his treating physician, Dr. James Thiel, an
internist, dated through October 14, 2009.
After appropriate development, OWCP accepted appellant’s claim for lumbar sprain in a
decision dated October 21, 2009.
On September 20, 2011 appellant requested medical authorization for lumbar spine
fusion, extra segment of spine fusion, spine fixation device insertion, Sine Prosth device
application, spinal lamina removal, spinal lamina add-on removal, lumbar spine revision, extra
spine segment revision and lumbar spine fusion.
Along with the request, appellant submitted a July 25, 2011 x-ray report from
Dr. Cynthia C. Johnston, a Board-certified family physician. This report indicated that appellant
had degenerative changes of the lumbar spine and that Dr. Johnston had ordered a magnetic
resonance imaging (MRI) scan for further evaluation of appellant’s condition.
In an August 29, 2011 report, Dr. Nicholas Ransom, Board-certified in orthopedic
surgery, noted that appellant was seen for back pain. Regarding the mechanism of injury he
stated that appellant had “Recent Reinjury 2009 lifting injury occurred at work,” and that
appellant had been out of work for two years due to this injury. Dr. Ransom recommended that
appellant undergo an MRI scan evaluation.
A September 14, 2011 MRI scan report signed by Dr. Boyd C. Ashdown, a Boardcertified neuroradiologist, found that appellant had moderately severe central canal stenosis at
L4-5 with moderately severe right and severe left foraminal narrowing, as well as moderate right
foraminal L5-S1 narrowing.
On September 19, 2011 Dr. Ransom reviewed the MRI scan report and diagnosed
appellant with “spinal stenosis of lumbar region, new” and recommended laminectomy at L4,
L5, S1, posterolateral fusion at L4, L5, S1, instrumentation at L4, L5, S1, as well as “TLIF” L4,
L5, S1.
Upon receipt of appellant’s request, OWCP forwarded appellant’s case file to the district
medical adviser (DMA) for review on October 12, 2011.
In an October 14, 2011 memorandum, the DMA stated that lumbar sprains do not require
surgical fusion and are self-limiting conditions. He further explained that, because the record
established that there was no medical treatment between 2009 and 2011, it is medically
implausible that the recently diagnosed degenerative disc disease was in any way related to the
lumbar sprain in 2009. The DMA concluded that surgery should not be authorized as work
related.
On October 19, 2011, upon receipt of the DMA’s memorandum, OWCP referred
appellant’s case to Dr. Mark E. Frankel, a Board-certified physician in orthopedic surgery, for a
second opinion examination.
On November 8, 2011 appellant was seen by Dr. Frankel for examination. In preparation
for the examination, Dr. Frankel was provided with the relevant factual and medical records.
2

In his November 8, 2011 medical report, Dr. Frankel discussed appellant’s history of
work injury and reviewed in detail the medical evidence of record. He concurred with the
DMA’s opinion that appellant’s spinal stenosis was not medically related to the 2009 work injury
and that appellant did not suffer any residuals from the work injury. Dr. Frankel explained that,
because there was no medical treatment between October 29, 2009 and July 15, 2011, it was
medically probable that appellant’s lumbar strain had resolved. He further expressed his
agreement with the DMA’s findings, reasoning that “there has been no medical treatment from
the two years previously and the lumbar sprain is self-limited and does not require surgery.”
Dr. Frankel concluded that, while the requested surgery is appropriate for the spinal stenosis, it is
not medically related to appellant’s claim.
On November 29, 2011 OWCP denied appellant’s request for authorization of the various
surgical procedures on the grounds that the weight of the medical evidence did not establish that
the treatment was medically necessary for his accepted work injury.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability or aid in lessening the amount of monthly compensation.2
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion
in approving services provided under section 8103, with the only limitation on OWCP’s
authority being that of reasonableness.3 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.4 In order to be
entitled to reimbursement for medical expenses, a claimant must establish that the expenditures
were incurred for treatment of the effects of an employment-related injury.5 Proof of causal
relationship must include supporting rationalized medical evidence. Thus, in order for a surgery
to be authorized, appellant must submit evidence to show that the requested procedure is for a
condition causally related to the employment injury and that it is medically warranted. Both of
these criteria must be met in order for OWCP to authorize payment.6
ANALYSIS
OWCP accepted that appellant sustained lumbar sprain due to an August 31, 2009 injury.
On September 19, 2011 Dr. Ransom diagnosed appellant with spinal stenosis of lumbar region
2

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

3

Joseph P. Hofmann, 57 ECAB 456 (2006); James R. Bell, 52 ECAB 414 (2001).

4

Claudia L. Yantis, 48 ECAB 495 (1997).

5

Cathy B. Mullin, 51 ECAB 331 (2000).

6

Id.

3

and recommended surgery procedures to treat this condition. While he mentioned that appellant
had sustained a work injury in 2009, he did not explain whether or how the spinal stenosis was
related to appellant’s accepted condition of lumbar sprain, or whether it was related to
appellant’s work injury. The Board has consistently held that medical reports lacking rationale
on causal relationship are of little probative value.7 As such, Dr. Ransom’s medical report is
insufficient to establish that the spinal stenosis condition is causally related to the employment
injury.
While appellant also submitted a report from Dr. Johnston, wherein she reviewed
appellant’s July 25, 2011 x-ray, as well as a report from Dr. Ashdown wherein he reviewed a
September 14, 2011 MRI scan, neither of these physicians discussed the need for the proposed
surgical treatment.
The second opinion report issued by Dr. Frankel concluded that, while the requested
surgery was appropriate treatment for spinal stenosis, it was not medically related to appellant’s
accepted lumbar sprain. Dr. Frankel concurred with the opinion of the DMA. Further, he
asserted that appellant no longer had any residuals from lumbar sprain and that his spinal
stenosis condition was unrelated to the work injury. Dr. Frankel explained that he arrived at this
conclusion because appellant had no medical treatment for two years since his employment
injury and that the lumbar sprain was a self-limiting condition.
The Board finds that, because Dr. Frankel’s report is thorough, well rationalized and
based on an accurate factual and medical history, his report represents the weight of the medical
evidence. Appellant has offered no medical evidence establishing causal relationship between
his spinal stenosis condition for which the surgeries was requested and his accepted work
condition of lumbar sprain. OWCP properly determined that his requested medical treatment
was not work related.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying appellant’s request
for surgical authorization.

7

See Mary E. Marshall, 56 ECAB 420 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 29, 2011 is affirmed.
Issued: July 27, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Humble, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0166
Issued: March 8, 2022

Case Submitted on the Record

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

On November 12, 2020 appellant filed an appeal from a May 8, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of Appellate Boards docketed
the appeal as Docket No. 21-0166.
The Board, having duly considered the matter, notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act. 1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s authority
is limited to appeals, which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180 th day following the most recent OWCP decision, dated May 8, 2020, was
November 4, 2020. As appellant did not file an appeal with the Board until November 12, 2020,
more than 180 days after the May 8, 2020 decision, the Board finds that the appeal docketed as
No. 21-0166 is untimely filed. The Board is without jurisdiction to review the appeal. Appellant
has not offered a reason to explain her failure to timely file an appeal with supporting
1

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

2

Id. at § 501.3(e).

documentation sufficient to establish compelling circumstances. Because there is no final adverse
decision issued by OWCP within 180 days of the filing of this appeal over which the Board may
properly exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-0166 must
be dismissed. 3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0166 is dismissed.
Issued: March 8, 2022
Washington, DC

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

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

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Anchorage, AK, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-987
Issued: August 14, 2007

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 February 28, 2007 appellant, through his attorney, filed a timely appeal from a
January 3, 2007 nonmerit decision of the Office of Workers’ Compensation Programs, denying
his request for reconsideration as untimely and finding that it failed to establish clear evidence of
error. Because more than one year has elapsed between the most recent merit decision dated
August 6, 2004 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).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.

FACTUAL HISTORY
On February 7, 1978 appellant, then a 30-year-old air traffic controller, filed a claim for a
traumatic injury; Office File No. 140-125959.1 He alleged that on February 5, 1978 he sustained
a mental condition as a result of losing an aircraft and possibly the lives of six persons aboard an
aircraft under his control jurisdiction.2 Appellant stopped work on February 6, 1978.3 On
April 4, 1978 the Office accepted appellant’s claim for acute depression.
On August 14, 2002 appellant filed a claim alleging that he sustained a recurrence of
disability. By letters dated October 23 and November 13, 2002, the Office addressed the medical
evidence that he needed to submit to establish his recurrence of disability claim.
By decision dated January 23, 2003, the Office found that appellant did not sustain a
recurrence of disability causally related to his February 7, 1978 employment-related injury. It
noted that he was treated for his employment-related emotional condition until
December 4, 1978. The Office further found that appellant did not submit any bridging evidence
establishing that he sought treatment for his accepted emotional condition from December 4,
1978 until his recurrence of disability on August 14, 2002. By letter dated February 20, 2003,
appellant requested an oral hearing before an Office hearing representative.
In a November 12, 2003 decision, the hearing representative affirmed the Office’s
January 23, 2003 decision. The hearing representative found the factual and medical evidence of
record insufficient to establish that appellant sustained a recurrence of disability on August 14,
2002 causally related to his February 5, 1978 employment injury. Appellant did not submit any
bridging evidence that he sought treatment for his accepted emotional condition from 1980, the
year he stopped working at the employing establishment, through his recurrence of disability on
August 14, 2002.
By letters dated June 21, 2004, from Joan Everett, an employing establishment workers’
compensation specialist, and June 24, 2004 from Richard W. Musser, appellant’s father,
appellant requested reconsideration.4 In an affidavit signed by appellant on March 26, 2004, he
described his April 28, 1977 and February 5 and August 11, 1978 employment injuries and
resultant disability. He submitted medical reports dated April 6, May 2, August 11 and
September 5, 1978 from Dr. Patricia C. Patrick, a psychiatrist, who found that appellant
1

Prior to the instant claim, appellant filed a traumatic injury claim on May 6, 1977. He alleged that on April 28,
1977 he watched helplessly as two jet aircraft merged on the radar scope at the same altitude. Appellant stopped
work on April 28, 1977 and returned to work on May 2, 1977. On September 23, 1977 the Office accepted
appellant’s claim for hyperventilation. The Office originally assigned File No. A14-117417. It has been combined
into Master File No. 140-125959.
2

The record reveals that only one person aboard the aircraft survived the February 5, 1978 incident.

3

Appellant retired on disability from the employing establishment effective May 9, 1980. He successfully
completed training in a second career program and obtained employment as a stock broker.
4

In a letter dated July 8, 2004, the Office advised appellant that Ms. Everett’s June 21, 2004 and Mr. Musser’s
June 24, 2004 letters were not acceptable. It requested that he submit a letter of representation designating his father
as his legal representative.

2

sustained an emotional condition causally related to the February 5, 1978 employment injury and
that he was totally disabled for work. A March 20, 1978 report of Jon F. Burke, PhD., a clinical
psychologist, found that appellant suffered from an emotional condition. In progress notes
covering dated March 11 to April 13, 2004, Dr. Dennis B. Elrod, a psychiatrist, diagnosed
depression and probable post-traumatic stress disorder. He found that appellant was totally
disabled for work. In a November 26, 2003 report, Dr. Ramzi M. Nassar, a Board-certified
psychiatrist, opined that appellant sustained post-traumatic stress disorder and leg pain and he
had a global assessment functioning score of 50 to 60. In a November 26, 2003 prescription, he
ordered medication for appellant’s emotional condition.
On August 6, 2004 the Office issued a decision, denying modification of the
November 12, 2003 decision. Appellant failed to submit rationalized medical evidence
establishing that he sustained a recurrence of disability on August 14, 2002 causally related to his
February 5, 1978 employment injury. The Office noted that appellant did not submit any
bridging evidence that he was treated for his accepted emotional condition during the period
1980 through 2002.
The Office received a May 14, 2004 progress note of Dr. Michael R. McCoy5 which
found that appellant sustained spondylosis and disc disease of the lumbar spine and depression
and that he used tobacco. An article entitled “Reliving Trauma” from the National Institute of
Mental Health provided facts, treatment and research findings related to post-traumatic stress
disorder.
By letter dated September 29, 2006, appellant, through his attorney, requested
reconsideration of the Office’s August 6, 2004 decision. A November 7, 2005 report of
Dr. Royal P. Kiehl, a psychiatrist, found that appellant sustained post-traumatic stress disorder,
pathological guilt and recurrent major depression. He stated that appellant was profoundly
affected by his military and air traffic control experiences. Dr. Kiehl stated that appellant
suffered from considerable back and ankle pain secondary to injuries he sustained in the military.
In a June 14, 2006 report, he found that appellant suffered from severe depression and anxiety
with a return of his post-traumatic stress disorder. Dr. Kiehl indicated that this diagnosis was
originally made by Dr. Patrick in 1978 and reestablished in 2003 by Dr. Nassar. He opined that
the sole cause of the recurrence of appellant’s emotional condition was due to the February 1978
employment-related injury. Dr. Kiehl further opined that appellant was totally disabled from
gainful employment due to the recurrence of his post-traumatic stress disorder and the severity of
his depression.
By decision dated January 3, 2007, the Office found that appellant’s letter requesting
reconsideration was dated September 29, 2006, more than one year after the Office’s August 6,
2004 decision and was untimely. The Office further found that appellant did not submit
evidence to establish clear evidence of error in the prior decision finding that he did not sustain a
recurrence of disability on August 14, 2002 causally related to his February 5, 1978
employment-related injury.

5

The Board notes that Dr. McCoy’s professional qualifications are not contained in the case record.

3

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act6 does not entitle a claimant
to a review of an Office decision as a matter of right.7 The Office, through its regulations, has
imposed limitations on the exercise of its discretionary authority under section 8128(a). Section
10.607(a) of the Office’s implementing regulation provides that an application for
reconsideration must be sent within one year of the date of the Office decision for which review
is sought.8
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.9
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.10 The evidence must be positive, precise and explicit
and must be manifest on its face that the Office committed an error.11 Evidence that does not
raise a substantial question concerning the correctness of the Office’s decision is insufficient to
establish clear evidence of error.12 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.13 This entails a limited review by the Office of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of the Office.14
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office decision.15 The
Board makes an independent determination of whether a claimant has submitted clear evidence

6

5 U.S.C. § 8128(a).

7

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

8

20 C.F.R. § 10.607(a).

9

Id. at § 10.607(b).

10

Nancy Marcano, 50 ECAB 110, 114 (1998).

11

Leona N. Travis, 43 ECAB 227, 241 (1991).

12

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

13

Leona N. Travis, supra note 11.

14

See Nelson T. Thompson, 43 ECAB 919 (1992).

15

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

4

of error on the part of the Office such that the Office abused its discretion in denying merit
review in the face of such evidence.16
ANALYSIS
The Board finds that the Office properly determined that appellant failed to file a timely
application for review. In implementing the one-year time limitation, Office’s procedures
provide that the one-year time limitation period for requesting reconsideration begins on the date
of the original Office decision. However, a right to reconsideration within one year accompanies
any subsequent merit decision on the issues.17
The last merit decision in this case was issued by the Office on August 6, 2004, finding
that appellant did not sustain a recurrence of disability on August 14, 2002 causally related to his
February 5, 1978 employment injury.
As his September 29, 2006 letter requesting
reconsideration was made more than one year after the Office’s August 6, 2004 merit decision,
the Board finds that it was not timely filed.
The issue for purposes of establishing clear evidence of error in this case, is whether
appellant submitted evidence establishing that there was clear error in the Office’s finding that he
failed to establish that he sustained a recurrence of disability on August 14, 2002 causally related
to his February 5, 1978 employment-related acute depression.
In support of his September 29, 2006 request for reconsideration, appellant submitted
Dr. McCoy’s May 14, 2004 progress note which found that he had spondylosis, disc disease of
the lumbar spine and depression. Dr. Kiehl’s November 7, 2005 report stated that appellant
sustained post-traumatic stress disorder, pathological guilt and recurrent major depression. He
stated that appellant was profoundly affected by his military and air traffic control experiences.
Dr. Kiehl also noted considerable back and ankle pain secondary to injuries appellant sustained
in the military. This evidence is insufficient to shift the weight of the evidence in favor of
appellant’s claim. Neither Dr. McCoy nor Dr. Kiehl provided any opinion as to, the underlying
issue of whether he sustained a recurrence of disability on August 14, 2002 caused by his
February 5, 1978 employment injury. The Board finds that Dr. McCoy’s progress note and
Dr. Kiehl’s report do not establish clear evidence of error.
Dr. Kiehl’s June 14, 2006 report listed severe depression and anxiety with a return of his
post-traumatic stress disorder. He opined that the sole cause of the recurrence of appellant’s
emotional condition was due to his February 1978 employment-related injury. Dr. Kiehl advised
that appellant was totally disabled from gainful employment due to the recurrence of his posttraumatic stress disorder and the severity of his depression. Although this evidence addressed
the recurrence of appellant’s employment-related emotional condition and disability, Dr. Kiehl
did not explain how or why the recurrence was caused by the accepted employment injury. The
June 14, 2006 report fails to establish clear evidence of error.

16

Thankamma Mathews, 44 ECAB 765, 770 (1993).

17

Larry L. Litton, 44 ECAB 243 (1992).

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The article entitled “Reliving Trauma” addressed facts, treatment and research findings
related to post-traumatic stress disorder. The submission of this factual evidence does not show
clear evidence of error because it is not relevant to the main issue in the present case, which is
medical in nature and should be resolved by the submission of medical evidence. The Board,
therefore, finds that the article does not shift the weight in favor of appellant’s claim.
For these reasons, the Board finds that appellant has not established clear evidence of
error on the part of the Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the January 3, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2007
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

6