United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

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

Docket No. 12-641
Issued: September 4, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 25, 2012 appellant filed a timely appeal of an Office of Workers’
Compensation Programs’ (OWCP) decision dated September 7, 2011. 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 sustained consequential conditions of cervical disc
protrusion at C5-6 with canal stenosis and degeneration at L4-5 causally related to her accepted
February 2, 2004 cervical and lumbar injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 33-year-old transportation security screener, alleged that she injured her
spine while reaching for baggage on February 2, 2004. She filed a claim for benefits on April 5,
2004, which OWCP accepted for lumbar sprain. The claim was subsequently expanded to
include the conditions of cervical strain, resolved and displacement of lumbar intervertebral discs
at L3-4 and L4-5.
In a report dated April 13, 2004, Dr. Daniel D. Lee, Board-certified in orthopedic
surgery, stated that appellant had complaints of neck and low back pain, primarily in the midback and right anterior thigh. Appellant was originally injured in February 2003 but her case
was closed in March before she experienced any improvement in her symptoms. She was placed
on light duty in the office, which did not help her condition. Dr. Lee advised that appellant
reinjured herself in February 2004 while moving bins. He noted her complaint of ongoing back
pain. Dr. Lee advised that the results of a magnetic resonance imaging (MRI) scan showed mild
disc degeneration at L4-5; moderate disc degeneration at L3-4; a central focal disc bulge at L3-4
and a right paracentral disc bulge at L4-5.
Dr. Lee concluded that appellant had lumbar back pain, a lumbar strain and age-related
changes of degenerative discs. He prescribed anti-inflammatory treatment and physical therapy.
In a report dated August 9, 2006, Dr. Lee advised that appellant had significant low back
pain and known internal disc disruption. Appellant worked on light duty and retraining. Dr. Lee
asserted that she had experienced some worsening of her neck pain, which was part of her
original complaint. He noted that x-rays of appellant’s neck showed no cervical fracture or
misalignment with minimal spondylosis. Dr. Lee noted tenderness around the cervical spine
with mechanical neck pain and worsening low back with internal disc disruption.
In a December 29, 2006 report, Dr. Lee stated that there had been no improvement in her
condition. Appellant underwent a cervical MRI scan on October 2, 2006 which showed a small
disc osteophyte flattening the left cord, effacing the left lateral recess. The MRI scan of the
lumbar spine demonstrated a small disc herniation at L3-4 and L4-5.
In a report dated July 7, 2009, Dr. Lee stated that appellant had a history of low back pain
but experienced worsening upper extremity radiculopathy and neck pain. Appellant underwent a
recent MRI scan of the cervical spine which, when compared with the October 2006 study,
showed a moderate to large left-sided broad-based disc protrusion of 11 millimeters by 3
millimeters at C5-6. Dr. Lee asserted that appellant sustained a left upper extremity strain at the
time of her injury which had recurred. He opined that her recurrence and cervical strain was
related to her industrial injury and disc herniation. Appellant had positive left C6 radicular pain
and Dr. Lee recommended that she undergo pain management for left C5-6 versus C6
transforaminal selective nerve root blocks.
In a December 22, 2009 report, Dr. Firooz Mashhood, Board-certified in physical
medicine and rehabilitation, stated that appellant had a history of neck pain and left upper
extremity pain. He administered electromyogram (EMG) and nerve conduction velocity (NCV)
tests. The tests showed evidence of mild left carpal tunnel syndrome (median nerve entrapment

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at the wrist) affecting sensory components, mild left ulnar nerve entrapment at the wrist
involving sensory fibers and evidence of chronic moderate left C5, C6 and C7 radiculopathy.
In a February 18, 2010 OWCP telephone memorandum, appellant requested medical
treatment and a new examination. It advised her that it could not authorize her request because it
had not accepted a cervical spine condition as work related. The initial medical evidence of
record did not show that a cervical spine condition had been diagnosed in tandem with the
acceptance of the lumbar condition. After review of the record, the claims examiner determined
that one of the physicians of record found that appellant had sustained a cervical strain which had
resolved at the time of his examination. Appellant was advised of the requirement to submit a
medical report providing a diagnosis of her cervical spine condition and a physician’s opinion
regarding the relationship between the condition and her February 2, 2004 work injury.2
In a May 7, 2010 report, Dr. Pouya Mohajer, Board-certified in pain medicine, stated that
appellant was post work-related injury with post-traumatic neck pain, post-traumatic arm pain,
post-traumatic low back pain and post-traumatic leg pain. He advised that appellant underwent a
bilateral L3-5 medial branch nerve block and a bilateral L5 and S1 selective nerve root block
without significant, lasting benefits. Appellant currently rated her overall pain as a nine on scale
of one to ten, with most of the pain localized to her low back. Dr. Mohajer related that appellant
believed she was currently stable as to her cervical condition.
In a May 11, 2010 report, Dr. Lee stated that appellant had worsening low back and left
lower extremity pain, with known degeneration and stenosis at L3-4 and L4-5. He advised that
she had failed all conservative management, was completely disabled and would consider
surgery. Appellant also had a large disc protrusion and herniation at C5-6 which mostly affected
the left C6 nerve root.
A May 18, 2010 statement of accepted facts listed appellant’s accepted lumbar strain;
cervical strain, resolved; and displacement of the lumbar intervertebral discs at L3-4 and L4-5.3
In order to determine appellant’s current disability status, OWCP referred her to
Dr. Aubrey E. Swartz, Board-certified in orthopedic surgery, for a second opinion examination. In
a report dated June 21, 2010, Dr. Swartz stated that appellant had good range of motion of the
cervical spine and a good range of motion of the lumbar spine, with stocking hypesthesias in both
lower extremities. He opined that appellant appeared to have right upper extremity cervical
radiculopathy with sensory changes related to peripheral neuropathy. Dr. Swartz advised that the
cervical MRI scan results showed disc protrusion at C5-6. It was not clear, however, whether there
was any nerve root compression. Dr. Swartz stated that the lumbar MRI scan results from
July 2003 demonstrated a small central disc bulge with right paracentral disc bulging at two levels.

2

This developmental letter to which OWCP refers is not contained in the instant record.

3

The statement of accepted facts indicated that appellant had a filed previous claim for a traumatic lower back
injury, case number xxxxxx689, for an injury which occurred on February 19, 2003, which OWCP accepted for
lumbar sprain/strain. Appellant was released to full duty on December 12, 2003 and continued to work light duty
until March 7, 2004. The claims were combined under case number xxxxxx848.

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The subsequent MRI scan showed a disc protrusion to the right which did not clearly cause any
nerve root compression and no clear identification at L3-4 of nerve root compression.
Dr. Swartz opined that appellant’s current diagnosis was postcervical strain, occurring on
February 2, 2004, with a temporary aggravation of degenerative changes in the cervical spine, that
had subsided without evidence of residuals. The cervical aggravation was temporary and ceased at
the time Dr. Lee found that she had reached maximum medical improvement on April 8, 2009.
Dr. Swartz stated that appellant had degenerative changes in the cervical and lumbar spines which
were no longer work related but disabled her from performing her preinjury job as a transportation
security screener. He found that she was capable of working light duty on a full-time basis and had
no further injury-related factors of disability, either subjective or objective, her ongoing physical
restrictions stemmed from the preexisting degenerative disease in her cervical and lumbar spines.
In an October 1, 2010 report, Dr. Mohajer related that appellant was having a difficult time
with her workman’s compensation because they did not initially authorize the cervical spine
condition, even though that was part of her injury. He noted that most of her pain was localized to
her neck, which was of a throbbing nature. Appellant’s low back pain was more an achy, sharp
pain. Dr. Mahajer reiterated that she was at a postwork-related injury status with post-traumatic
neck pain, post-traumatic cervical radiculitis and post-traumatic low back pain.
OWCP found there was a conflict in the medical opinion between Drs. Lee and Mashhood,
and the second opinion examiner, Dr. Swartz, regarding whether appellant’s servical disc at C5-6
with stenosis and degeneration at L4-5 were related to the accepted injury. It referred appellant to
Dr. Mark J. Rosen, Board-certified in orthopedic surgery, for an impartial examination. In a report
dated July 19, 2011, Dr. Rosen noted that the May 18, 2010 statement of accepted facts, listed the
conditions of lumbar strain, cervical sprain and displacement of lumbar intervertebral discs at L3-4
and L4-5. He advised that appellant had cervical spondylosis secondary to cervical stenosis which
was not related to her original work injury of February 2, 2004. Appellant had neck problems in
May 2004 but did not experience any additional cervical issues until August 2006. Dr. Rosen
noted that the neck was a relatively minor part of her complaints until December 2006 when she
became more symptomatic. He advised that her neck pain gradually worsened to the point where
she purportedly was unable to ambulate with a walker. Appellant subsequently improved and was
currently ambulating without any obvious problem.
Dr. Rosen stated that appellant’s MRI scans and other studies showed that she had a
significant problem at C5-6 with a protruding disc and spinal stenosis. He opined that, to a
reasonable degree of medical probability, this was due to a chronic degenerative process which
was not related to the February 2004 employment injury. Dr. Rosen advised that the most striking
thing about appellant was the waxing and waning of her cervical complaints. He opined that the
desultory pattern of her complaints was consistent with cervical spinal stenosis, which was
degenerative in nature and not work related; otherwise, there were no work-related disabilities.
Regarding appellant’s lumbar spine, he stated that appellant was quite functional and surgery or
other treatment was not recommended. Dr. Rosen added that, while appellant might require
surgery in the future, it would be related to her chronic degenerative disease, which was not
causally related to her industrial injury. He concluded: “If one accepts based upon the statement
of accepted facts that the displacement of lumbar intervertebral disc is the result of her industrial

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injury rather than a chronic degenerative process, then her continued pain in the low back and
consequent restrictions are subsequent to the February 2, 2004 injury.”
By decision dated September 7, 2011, OWCP found that appellant failed to establish that
her cervical disc protrusion at C5-6 with canal stenosis and degeneration at L3-4 and L4-5 did
not develop as a consequence of her accepted February 2, 2004 employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.5 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
The general rule respecting consequential injuries is that, when the primary injury is shown
to have arisen out of and in the course of employment, every natural consequence that flows from
the injury is deemed to arise out of the employment, unless it is the result of an independent
intervening cause.7 The subsequent injury is compensable if it is the direct and natural result of the
compensable primary injury. With respect to consequential injuries, the Board has noted that
where an injury is sustained as a consequence of an impairment residual to an employment injury,
the new or second injury, even if nonemployment related, is deemed because of the chain of
causation to arise out of and in the course of employment and is compensable.8
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee the Secretary shall
appoint a third physician who shall make an examination.9 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.10

4

5 U.S.C. §§ 8101-8193.

5

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

6

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

7

See Debra L. Dillworth, 57 ECAB 516 (2006).

8

L.S., Docket No. 08-1270 (issued July 2009).

9

Regina T. Pellecchia, 53 ECAB 155 (2001).

10

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

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ANALYSIS
In this case, OWCP accepted that appellant had sustained the conditions of cervical
strain, resolved, lumbar strain and displacement of lumbar intervertebral disc at L3-4 and L4-5.
It found that there was a conflict in the medical evidence between appellant’s treating physicians,
Dr. Lee and Dr. Mashhood, and the second opinion physician, Dr. Swartz, regarding whether
appellant developed additional conditions of cervical disc protrusion at C5-6 with canal stenosis
and degeneration at L4-5 as a consequence of the February 2, 2004 employment injury. OWCP
referred appellant to Dr. Rosen for an impartial examination to resolve the conflict.
In his July 19, 2011 report, Dr. Rosen stated that appellant’s diagnostic tests, including
MRI scans and other studies, demonstrated that she had a significant problem at C5-6 with a
protruding disc and spinal stenosis. He stated, however, that these findings were related to a
chronic degenerative process and not to her February 2, 2004 employment injury. Dr. Rosen noted
that appellant had neck problems in May 2004 which resolved but that she did not experience any
additional cervical issues until August 2006, she had no significant problems with her neck until
December 2006. He opined that the most striking thing about her condition was the waxing and
waning of her complaints, noting that at one time she was so disabled she required a walker but
somehow improved to the point where that was no longer needed. Dr. Rosen opined that this
pattern was indicative of cervical spinal stenosis, which was degenerative in nature and not work
related.
Regarding appellant’s lower back condition, Dr. Rosen concluded that appellant had
current complaints related to the accepted work-related condition of displacement of the lumbar
intervertebral disc, and due to a chronic degenerative process, but that appellant was quite
functional relative to these conditions. Dr. Rosen opined that appellant’s lumbar degenerative
process was not work related. He explained that appellant’s continued low back pain and
restrictions were work related in so far as they were due to the accepted condition of lumbar disc
displacement, rather than a chronic degenerative process.
The Board finds that OWCP properly found that Dr. Rosen’s referee opinion negated a
causal relationship between appellant’s claimed consequential conditions of cervical disc
protrusion at C5-6 with canal stenosis and degeneration at L4-5, and the February 2, 2004 work
injury. Dr. Rosen’s opinion is sufficiently probative, rationalized and based upon a proper
factual background. Therefore, OWCP properly accorded his opinion the special weight of an
impartial medical examiner.11
Therefore, given the fact that the weight of the medical evidence of record, as represented
by Dr. Rosen’s referee opinion, indicates that appellant’s claimed conditions did not arise as a
consequence of her February 2, 2004 work injury, appellant has not met her burden of proof to
establish her claim that these conditions were sustained in the performance of duty. The Board
will affirm OWCP’s September 7, 2011 decision.

11

Gary R. Seiber, 46 ECAB 215 (1994).

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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 failed to establish that she sustained consequential
conditions of cervical disc protrusion at C5-6 with canal stenosis and degeneration at L4-5
causally related to her accepted February 2, 2004 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the September 7, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 4, 2012
Washington, DC

Patricia Howard Fitzgerald, 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
__________________________________________
P.T., Appellant
and
DEPARTMENT OF THE NAVY, FAMILY
HOUSING OFFICE, Oakland, CA, Employer
__________________________________________

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1146
Issued: December 22, 2009

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 March 24, 2009 appellant filed a timely appeal from the April 1, 2008 merit decision
of the Office of Workers’ Compensation Programs. Under 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 more than a five percent impairment of both the right
and left upper extremities, for which she received schedule awards.
FACTUAL HISTORY
On March 24, 1993 appellant, a 47-year-old housing manager, filed a claim for a bilateral
carpal tunnel condition causally related to employment factors. The Office accepted her claim
for bilateral carpal tunnel syndrome.
In a July 12, 2002 report, Dr. David Wren, Board-certified in orthopedic surgery and
appellant’s treating physician, noted that she had chronic pain and swelling in both wrists.
Appellant had right carpal tunnel release surgery in 1996 and 1998 and left carpal tunnel release

surgery on May 3, 2000. Dr. Wren found that appellant continued to experience pain in both
wrists.
On November 1, 2004 appellant filed a Form CA-7 claim for a schedule award based on
a partial loss of use of her left and right upper extremities.
The Office referred appellant to Dr. Robert S. Ferretti, Board-certified in orthopedic
surgery, for a second opinion examination. In an April 23, 2007 report, Dr. Ferretti reviewed
appellant’s history of injury and medical treatment. Appellant complained of pain, numbness
and tingling in both hands and wrists. Dr. Ferretti had appellant undergo sensory testing, from
which she related a “glove pattern” hypesthesia over both hands diffusely extending to the mid
forearm on the left and just above the arm on the right. Appellant reported normal sensation
above these levels. Dr. Ferretti stated that on examination appellant showed a full, painless
range of motion of both elbows, forearms, hands, wrists, thumbs and fingers. He noted no
noticeable deformity, discoloration, or swelling, no thenar atrophy of the hands bilaterally and no
pinch weakness. Dr. Ferretti stated:
“On digital palpation, there is reported pain over the base of both thumbs and over
the carpal tunnel release and trigger thumb release scars. There is an equivocally
positive Finkelstein test bilaterally with reported pain only in the distal radial
aspect of the wrist. There is an equivocally positive bilateral Tinel’s sign over the
carpal tunnels. [Appellant] reports local numbness and tingling on tapping in the
region of the carpal tunnel release scan. She reports no distal pain or paresthesia.
With sustained thumb pressure over both carpal tunnels, on the right [appellant]
reports local pain and tingling under the thumb extending to the little finger and
on the left only locally under the thumb pressure. There is a negative Phelan’s
test bilaterally for carpal tunnel compression. During the testing, [appellant] had
some mild median nerve irritability in both wrists.”
He concluded that appellant did not have any neurological deficit to either upper extremity.
Dr. Ferretti concluded that she had bilateral upper extremity chronic pain syndrome with no
evidence of residual carpal tunnel median nerve compression or tendinitis. Appellant had
subjective complaints of pain and abnormal sensations of both hands, wrists and forearms greater
on the right. The only objective factors Dr. Ferretti noted were surgical scars related to bilateral
carpal tunnel release and right trigger thumb release, and equivocally positive Tinel’s sign over
both carpal tunnels. He did not provide an impairment rating under the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A. Guides) (5th edition).
In a report dated July 18, 2007, an Office medical adviser found that appellant had five
percent impairment to both upper extremities pursuant to the A.M.A., Guides. He found a
successful carpal tunnel release in both wrists for which the text at page 495 allows a five
percent impairment rating. The Office medical adviser found that appellant reached maximum
medical improvement on September 4, 2005.
On October 10, 2007 the Office granted appellant schedule awards for five percent
impairment of her right and left upper extremities. The period of the awards totaled 31.20 weeks
of compensation.

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By letter dated November 8, 2007, appellant’s representative requested an oral hearing,
which was held on February 4, 2008. Appellant did not submit any additional medical evidence.
By decision dated April 1, 2008, an Office hearing representative affirmed the
October 10, 2007 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use. However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule
losses. The claimant has the burden of proving that the condition for which a schedule award is
sought is causally related to his or her employment.
ANALYSIS
The Office accepted bilateral carpal tunnel syndrome for which appellant underwent
release on her right and left wrists.
Dr. Ferretti, an Office referral physician, noted that appellant had subjective complaints
of pain, numbness and tingling and weakness in both hands and wrists and that she exhibited a
chronic pain syndrome. However, he found no neurological deficits, normal pain-free range of
motion, with only mild median nerve irritability in her wrists. There was objective evidence of
residual carpal tunnel median nerve compression or tendinitis. While appellant did show some
positive results from her Finkelstein test and Tinel’s sign test, Dr. Ferretti advised that her
responses on these tests were equivocal. He did not find any permanent impairment arising from
her accepted condition. An Office medical adviser reviewed the medical evidence and noted that
Dr. Ferretti described mild nerve irritability in the wrists with no evidence of residual carpal
tunnel median nerve compression or tendinitis. He rated impairment as five percent to both
upper extremities based on successful carpal tunnel release, as set forth at page 495 of the
A.M.A., Guides. If, after optimal recovery time, the employee complains of pain in the presence
of normal sensibility and opposition strength, a rating at five percent is allowed. The report of
the Office medical adviser conforms to the text of the A.M.A., Guides.
There is no medical evidence establishing that appellant has greater impairment. The
Office properly found that appellant has five percent impairment to both the right and left upper
extremities.
CONCLUSION
The Board finds that appellant has no more than a five percent impairment of the right
and left upper extremities, for which she received schedule awards.

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ORDER
IT IS HEREBY ORDERED THAT the April 1, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: December 22, 2009
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.J., Appellant
and
U.S. POSTAL SERVICE, MEMPHIS BULK
MAIL CENTER, Memphis, TN, Employer
__________________________________________

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

Docket No. 09-1000
Issued: November 2, 2009

Case Submitted on the Record

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

JURISDICTION
On March 3, 2009 appellant filed a timely appeal from a December 17, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying reconsideration of a July 19,
2007 merit decision. As over one year has passed since the last merit decision in this case, dated
July 19, 2007, and the filing of this appeal, dated March 3, 2009, the Board lacks jurisdiction
over the merits of appellant’s claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 30, 2006 appellant, a 55-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) for lumbar disc disease. She attributed her condition to “heavy
1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

lifting and pulling.” Appellant first became aware of her condition and that it was caused by her
federal employment on December 19, 2005.
By decision dated January 22, 2007, the Office denied her claim because the evidence of
record was insufficient to establish a causal relationship between a medically diagnosed
condition and identified employment factors.
On February 8, 2007 appellant requested a hearing.
Appellant submitted additional evidence supporting her request including an August 28,
2006 note in which Dr. Glenn A. Crosby, a Board-certified neurosurgeon, reviewed appellant’s
course of treatment and reported findings on examination.
A hearing was held on June 11, 2007.
By decision dated July 19, 2007, the Office hearing representative affirmed the Office’s
January 22, 2007 decision.
Appellant disagreed and on July 14, 2008 requested reconsideration.
Appellant submitted a copy of Dr. Crosby’s August 28, 2006 note. In a note dated
August 13, 2007, Dr. Crosby reported findings on examination and diagnosed “lumbar
spondylosis with chronic back problem.”
By decision dated December 17, 2008, the Office denied appellant’s reconsideration
request.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.3 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 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.5
2

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).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

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ANALYSIS
Appellant did not argue that the Office erroneously applied a point of law, nor did she
advance a new legal argument not previously considered by the Office. Therefore, she was not
entitled to a merit review based upon the first two enumerated grounds noted above.
Concerning the third requirement, submission of relevant and pertinent new evidence not
previously considered by the Office, appellant submitted a copy of Dr. Crosby’s August 28, 2006
note. This evidence was already of record and, therefore, furnishes no grounds for the Office to
reopen appellant’s claim for merit review.6
Appellant also submitted an August 13, 2007 note in which Dr. Crosby reported findings
on examination and diagnosed appellant with “lumbar spondylosis with chronic back problem.”
Dr. Crosby furnished no opinion concerning how factors of appellant’s employment caused the
conditions he diagnosed. Medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of no probative value on the issue of causal relationship.7 Thus,
Dr. Crosby’s note, though new, is not relevant and pertinent evidence requiring the Office to
reopen appellant’s claim for merit review.
Because appellant has not satisfied any of the above-mentioned criteria, the Board finds
that the Office properly refused to reopen her case for further review of the merits of her claim.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

6

James W. Scott, 55 ECAB 606 (2004).

7

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

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ORDER
IT IS HEREBY ORDERED THAT the December 17, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Syracuse, NY, Employer
__________________________________________

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Appearances:
Kimberly A. Slimbaugh, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0333
Issued: September 3, 2019

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 November 29, 2018 appellant, through counsel, filed a timely appeal from an
August 27, 2018 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.

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant received an overpayment of wage-loss compensation
in the amount of $13,968.46 for the period November 9, 2015 through July 23, 2016; and
(2) whether OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On November 3, 2004 appellant, then a 38-year-old mail processing clerk, filed a notice of
recurrence (Form CA-2a) on July 13, 2004 claiming disability causally related to a January 11,
2001 employment injury.4 OWCP converted the recurrence claim to a claim for a new traumatic
injury, assigned OWCP File No. xxxxxx288, and accepted it for aggravation of dislocation of the
lumbar vertebra. It paid appellant wage-loss compensation beginning July 2004.
By decision dated May 9, 2007, OWCP reduced appellant’s wage-loss compensation based
on its finding that her actual earnings working 20 hours per week as a modified manual clerk,
effective January 22, 2006, fairly and reasonably represented her wage-earning capacity. It paid
her compensation for partial disability beginning January 22, 2006 based on her loss of wageearning capacity (LWEC).5
OWCP subsequently accepted appellant’s May 20, 2008 occupational disease claim (Form
CA-2) for other affections of the right shoulder region. It assigned OWCP File No. xxxxxx669.
Appellant stopped work on May 20, 2008 and received wage-loss compensation on the
supplemental rolls beginning May 21, 2008 and on the periodic rolls beginning April 12, 2009.
OWCP noted that she received compensation for four hours per day based on an LWEC
determination issued under File No. xxxxxx288.
By decision dated May 2, 2011, issued under OWCP File No. xxxxxx669, OWCP reduced
appellant’s wage-loss compensation, effective May 8, 2011, based on its finding that she had the
capacity to earn wages as a surveillance system monitor working four hours per day.
In an August 13, 2015 work capacity evaluation (Form OWCP-5c) submitted under OWCP
File No. xxxxxx288, Dr. George T. Cunningham, a chiropractor, found that appellant could return
to work for six hours per day with sitting and walking limited to one hour per day, standing a half
hour per day, pushing and pulling up to 10 pounds, and occasional reaching above the shoulder.

3

Order Remanding Case, Docket No. 17-1058 (issued February 8, 2018).

4

The claim was originally filed as a recurrence under OWCP File No. xxxxxx433. That claim, which involved a
November 1, 2001 injury, has not been administratively combined with the present claim.
5
OWCP combined OWCP File Nos. xxxxxx699 and xxxxxx288, with OWCP File No. xxxxxx288 designated as
the master file.

2

In a September 11, 2015 work capacity evaluation (Form OWCP-5c) submitted under
OWCP File No. xxxxxx669, a nurse practitioner indicated that appellant had limitations due to
right shoulder pain and reduced motion. She found that appellant could work four hours per day
pushing, pulling, and lifting up to 10 pounds, performing repetitive movements under one hour,
limiting reaching above the shoulder, and operating a motor vehicle over 30 minutes.
On October 21, 2015 the employing establishment offered appellant a position as a
modified mail processing clerk for four hours per day. The duties included: sitting and walking
intermittently for less than one hour at a time, standing intermittently for less than a half hour at a
time, and repetitive reaching for less than a half hour at a time. The grade, step, and salary provided
on the form is illegible. The employing establishment provided both OWCP file numbers and
injury dates on its October 21, 2015 job offer.
In a return to work form dated November 4, 2015, the employing establishment indicated
that appellant had accepted a job offer for four hours per day under OWCP File No. xxxxxx669.
In a return to work form of even date, it asserted that she had returned to work under OWCP File
No. xxxxxx288. The employing establishment noted that appellant received wage-loss
compensation on the periodic rolls for both OWCP File No. xxxxxx288 and OWCP File No.
xxxxxx699 and requested that it remove her from the periodic rolls on one of the claims.
On November 9, 2015 the employing establishment notified OWCP that appellant had
returned to work on November 9, 2015.
On February 25, 2016 appellant telephoned OWCP and questioned the accuracy of her
compensation payments, noting that she had resumed work for four hours per day on
November 9, 2015. OWCP advised that it would either stop or adjust her continuing wage-loss
compensation payments.
In a letter dated April 28, 2016, the employing establishment notified OWCP that appellant
had returned to work foUr hours per day, but was still receiving wage-loss compensation for four
hours per day under both OWCP File Nos. xxxxxx669 and xxxxxx288.6 It requested that OWCP
remove her from the periodic rolls under OWCP File No. xxxxxx669 as of November 9, 2015.
On August 2, 2016 OWCP requested that the employing establishment provide the medical
evidence that it used for the offered position.
In an August 4, 2016 letter, the employing establishment again advised OWCP that
appellant was on the periodic rolls under both OWCP File Nos. xxxxxx669 and xxxxxx288. It
requested that OWCP stop compensation payments on one of the claims as she had returned to
work for four hours per day on November 9, 2015. The employing establishment indicated that it
had reviewed an August 13, 2015 work capacity evaluation (Form OWCP-5c) under File No.
xxxxxx288 and a similar form dated September 11, 2015 which had been completed by a nurse
6

The employing establishment submitted a return to work form (Form CA-3) to OWCP on April 27, 2016
requesting that it remove appellant from the periodic rolls under one of the claim numbers. It noted that she was
receiving wage-loss compensation for four hours per day under both File No. xxxxxx288 and File No. xxxxxx699
following her return to part-time employment.

3

practitioner under File No. xxxxxx669. It advised that it had used the more restrictive limitations
in its offer of employment.
On August 16, 2016 OWCP requested that the employing establishment provide pay rate
information, including appellant’s current base pay rate and the number of hours that she worked
weekly.
On September 26, 2016 OWCP informed appellant of its preliminary determination that
she had received an overpayment of wage-loss compensation in the amount of $13,898.98 for the
period November 9, 2015 through July 23, 2016 because she had returned to work four hours per
day on November 9, 2015, but continued to receive compensation for a total of eight hours per
day. It noted that she had received compensation for four hours per day following an LWEC
determination based on her actual earnings under OWCP File No. xxxxxx288 and compensation
for four hours per day for an LWEC determination based on a constructed position under OWCP
File No. xxxxxx669. OWCP found that appellant had returned to work for four hours per day
under OWCP File No. xxxxxx288, but had continued to receive compensation under OWCP File
No. xxxxxx288 based on its LWEC determination until July 23, 2016. It calculated the
overpayment by determining the amount she had received from November 9 through July 23, 2016
under File No xxxxxx288, which yielded an overpayment in the amount of $13,989.98. OWCP
further informed appellant of its preliminary determination that she was at fault in creating the
overpayment as she knew or should have known that she was not entitled to wage-loss
compensation for total disability after she resumed part-time employment. It requested that she
complete the enclosed overpayment recovery questionnaire (Form OWCP-20) and submit
supporting financial documents. Additionally, OWCP notified appellant that, within 30 days of
the date of the letter, she could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing.
Appellant submitted a completed overpayment recovery questionnaire (Form OWCP-20)
and requested a telephone conference on October 25, 2016. She listed monthly income of
$2,700.00 and monthly expenses of $2,325.00. Appellant related that she telephoned OWCP in
January 2016 about her return to work, but was informed that she did not owe anything as she was
receiving reduced wages. She also maintained that she should receive continued payments under
OWCP File No. xxxxxx288 instead of OWCP File No. xxxxxx669.
By decision dated October 27, 2016, OWCP found that appellant had received an
overpayment of compensation in the amount of $13,989.98 for the period November 9, 2015
through July 23, 2016 and that she was at fault in the creation of the overpayment. It indicated
that she had failed to respond to its preliminary overpayment determination.
Appellant appealed to the Board. By order dated February 8, 2018, the Board set aside the
October 27, 2016 decision.7 The Board found that OWCP had failed to conduct a telephone
conference prior to issuing its final overpayment determination even though she had timely
requested a telephone conference and had timely submitted a completed overpayment recovery

7

Supra note 2.

4

questionnaire. The Board remanded the case for OWCP to respond to appellant’s request for a
telephone conference.
In a memorandum of conference dated May 29, 2018, counsel questioned why OWCP had
based the overpayment on the higher of the two LWEC payments appellant received during the
period in question. OWCP’s claims examiner advised that she had returned to work under File
No. xxxxxx288, and thus it had terminated her wage-loss compensation under that claim. The
claims examiner noted, “The representative stated that they would like the overpayment calculated
for the lower payment case [xxxxxx]669. I advised that I was not authorized to switch the debt to
the lower paying case file. I also advised that if it could be done, the claimant would owe a lot
more money and for a longer period.” Counsel further asserted that appellant was without fault in
creating the overpayment as she had telephoned OWCP regarding her return to employment.
Regarding repayment, he advised that she could repay $50.00 per month.8
By decision dated August 27, 2018, OWCP found that appellant was without fault in the
creation of the overpayment of wage-loss compensation in the amount of $13,968.46 for the period
November 9, 2015 through July 23, 2016. It denied waiver of recovery of the overpayment as she
had not returned the money to OWCP. OWCP advised appellant to submit $50.00 monthly as
repayment of the overpayment.
On appeal counsel notes that medical providers had released appellant to resume part-time
work with restrictions under both OWCP File Nos. xxxxxx669 and xxxxxx288.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.9
Section 8116 of FECA defines the limitations on the right to receive compensation benefits.
This section of FECA provides that, while an employee is receiving compensation, he or she may
not receive salary, pay, or remuneration of any type from the United States, except in limited
circumstances.10 Section 10.500 of OWCP’s regulations provides that compensation for wage loss
due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.11

8

Appellant remains in receipt of wage-loss compensation for partial disability under OWCP File No. xxxxxx669.

9

5 U.S.C. § 8102.

10

Id. at § 8116(a); see also C.Y., Docket No. 18-0263 (issued September 14, 2018).

11

20 C.F.R. § 10.500.

5

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation, but that the case
is not in posture for decision regarding the amount of the overpayment.
OWCP paid appellant wage-loss compensation for the period November 9, 2015 through
July 23, 2016 for four hours per day under OWCP File No. xxxxxx288 based on her actual earnings
working 20 hours per week as a modified mail clerk. It further paid her wage-loss compensation
under OWCP File No. xxxxxx669 for that same period based on its finding that she could earn
wages as a surveillance system monitor working four hours per day.
On October 21, 2015 the employing establishment offered appellant a position as a
modified mail processing clerk for four hours per day. Appellant returned to work for four hours
per day on November 9, 2015, but continued to receive wage-loss compensation based on LWEC
determinations under both OWCP File No. xxxxxx288 and OWCP File No. xxxxxx699 without
any offset for her actual earnings.12 She consequently received an overpayment of compensation.13
The Board finds, however, that the case is not in posture for determination regarding the
amount of the overpayment. OWCP found that appellant had returned to work under OWCP File
No. xxxxxx288 and that, consequently, the amount of wage-loss compensation that it paid under
that file number for the period November 9, 2015 through July 23, 2016 constituted an
overpayment of compensation. In its August 27, 2018 decision, however, it did not provide an
explanation for its determination that she had returned to work under OWCP File No. xxxxxx288,
rather than OWCP File No. xxxxxx699. Such an explanation is particularly necessary given the
conflicting information from the employing establishment regarding whether it offered the position
under OWCP File No. xxxxxx288 or OWCP File No. xxxxxx699. The Board thus finds that
OWCP has failed to provide adequate findings of fact regarding the amount of overpayment as
required by statute and regulation.14
Additionally, the Board notes that OWCP determined that the entire amount that appellant
received based on its LWEC under OWCP File No. xxxxxx288 for the period November 9, 2015
through July 23, 2016 constituted an overpayment of compensation. OWCP’s procedures provide
that if a claimant, after a formal LWEC rating, accepts a position with no loss of wages and returns
to work, no wage-loss entitlement continues and compensation should be terminated.15 The salary
and grade indicated on the job offer, however, are illegible. Prior to determining the amount of

12

See L.A., Docket No. 15-1213 (issued April 27, 2016).

13

See J.L., Docket No. 18-1266 (issued February 15, 2019).

14
5 U.S.C. § 8124(a) provides that OWCP shall determine and make findings of fact and make an award for or
against payment of compensation. 20 C.F.R. §10.126 provides in pertinent part that the final decision of OWCP shall
contain findings of fact and a statement of reasons. See also D.S., Docket No. 16-0721 (issued October 13, 2017).
15
Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity
Determinations, Chapter 2.1501.3(b) (June 2013).

6

the overpayment, OWCP should determine whether appellant had a continuing LWEC under the
applicable OWCP file number subsequent to her return to part-time employment.16
Accordingly, the case will be remanded to OWCP for further development regarding the
amount of the overpayment. After such development as deemed necessary, it shall issue a de novo
decision regarding the amount of overpayment and waiver of recovery of the overpayment.
CONCLUSION
The Board finds that appellant received an overpayment of compensation for the period
November 9, 2015 through July 23, 2016. The Board further finds, however, that the case is not
in posture for decision regarding the amount of the overpayment.17
ORDER
IT IS HEREBY ORDERED THAT the August 27, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: September 3, 2019
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

16

Under such circumstances, OWCP offsets actual earnings pursuant to the formula set forth in Albert C. Shadrick,
5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.
17
In light of the Board’s findings regarding the amount of overpayment, it is premature to address the issue of
waiver of recovery of the overpayment of compensation.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
U.S. POSTAL SERVICE, AKRON HUB,
Akron, OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1677
Issued: February 25, 2020

Case Submitted on the Record

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

JURISDICTION
On August 6, 2019 appellant, through counsel, filed a timely appeal from a May 29, 2019
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent
merit decision was a Board decision dated November 6, 2018, which became final 30 days after
issuance, and is not subject to further review.2 As there is no merit decision issued by OWCP
within 180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of
this case.

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

20 C.F.R. § 501.6(d); see J.M., Docket No. 19-0252 (issued January 8, 2020).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 11, 2016 appellant, then a 67-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he sustained a left shoulder condition causally related to
factors of his federal employment. He attributed his condition to repetitively turning a steering
wheel on a forklift. Appellant stopped work on March 6, 2016.
In a March 11, 2016 statement, appellant related that in 2002 he began experiencing
bilateral shoulder problems due to repetitively lifting mail trays and driving a fork lift. He
indicated that he had undergone surgery on his left rotator cuff in 2005.
On April 11, 2016 Dr. Michael R. Magoline, a Board-certified orthopedic surgeon,
discussed appellant’s history of a rotator cuff repair some years earlier and advised that his current
complaints were due to a work injury. He noted that he had experienced sharp pain with repetitive
driving of a forklift. Dr. Magoline diagnosed a complete left shoulder rotator cuff tear.
By decision dated May 23, 2016, OWCP denied appellant’s occupational disease claim. It
found that the medical evidence was insufficient to show that he sustained a diagnosed medical
condition causally related to the accepted employment factors.
In a report dated May 25, 2016, Dr. Magoline opined that appellant had developed rotator
cuff arthropathy of the left shoulder due to the prior work injury and requested authorization for a
reverse total shoulder arthroplasty.
On May 31, 2016 appellant requested reconsideration.
On July 11, 2016 Dr. Magoline noted that appellant had previously experienced a left
rotator cuff tear that was repaired by another surgeon. He advised that he had reinjured his left
shoulder repetitively lifting bins causing rotator cuff arthropathy that required surgical
intervention.
In an August 2, 2016 report, Dr. Magoline opined that appellant had sustained a rotator
cuff tear due to repetitively turning a steering wheel on a forklift that had failed to heal following
surgery. He opined that he had developed left shoulder rotator cuff arthropathy due to the prior
injury.

3

Docket No. 18-1056 (issued November 6, 2018).

2

In a January 5, 2017 progress report, Dr. Magoline advised that appellant had a “clear cut
case of rotator cuff arthropathy which was created and caused by his original work[-]related rotator
cuff tear.” He advised that the tear had failed to heal and resulted in arthritis and rotator cuff
arthropathy.
On June 7, 2017 appellant, through counsel, requested reconsideration.4
By decision dated March 26, 2018, OWCP denied modification of its May 23, 2016
decision. It found that the medical evidence of record was insufficient to establish that the accepted
work factors caused the rotator cuff tear and rotator cuff arthropathy.
Appellant appealed to the Board. By decision dated November 6, 2018, the Board affirmed
OWCP’s March 26, 2018 decision, finding that the medical evidence of record was insufficient to
establish a left shoulder condition causally related to the accepted factors of federal employment.5
On March 1, 2019 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In a report dated February 12, 2019, Dr. Magoline evaluated appellant for left shoulder
pain and indicated that he had sustained an injury on March 6, 2016. He diagnosed rotator cuff
arthropathy and a complete left shoulder rotator cuff tear. Dr. Magoline opined that appellant had
sustained an employment-related injury to his left shoulder treated with failed surgery. Due to the
unrepaired rotator cuff tear, he experienced pain and loss of function. Dr. Magoline advised that
appellant sustained rotator cuff arthropathy due to continuing to perform his job duties.
By decision dated May 29, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim under 5 U.S.C. § 8128(a). It found that the newly submitted medical
evidence was substantially similar to evidence previously of record and thus insufficient to warrant
reopening his case for further merit review.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a

4

On January 19, 2017 Dr. Magoline requested that OWCP expand the acceptance of appellant’s claim to include
rotator cuff arthropathy of the left shoulder.
5

Supra note 3.

6

5 U.S.C. § 8128(a).

3

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.7
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.9 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
The Board finds that appellant has not alleged or demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Moreover, appellant has not advanced a relevant
legal argument not previously considered. Consequently, he is not entitled to a review of the merits
of his claim based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).11
The Board further finds that appellant has not provided relevant and pertinent new evidence
in support of his request for reconsideration. Appellant submitted a report dated February 12, 2019
from Dr. Magoline, who opined that appellant had sustained an employment-related injury to his
left shoulder. He diagnosed rotator cuff arthropathy and a complete left shoulder rotator cuff tear
and noted that, after failed surgery to treat the rotator cuff tear, appellant had continued pain and
reduced function. Dr. Magoline opined that his continued performance of his employment duties
resulted in rotator cuff arthropathy. While this report is new, it is not relevant as it is substantially
similar to Dr. Magoline’s prior reports already of record and previously reviewed. Providing
additional evidence that either duplicates or is substantially similar to evidence already in the case
record does not constitute a basis for reopening a case.12 As appellant did not provide relevant and

7

20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

8
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System. Id. at Chapter 2.1602.4b.
9

Id. at § 10.608(a); see also A.P., Docket No. 19-0224 (issued July 11, 2019).

10

Id. at § 10.608(b); A.G., Docket No. 19-0113 (issued July 12, 2019).

11

C.B., Docket No. 18-1108 (issued January 22, 2019).

12

See V.Q., Docket No. 19-1309 (issued January 3, 2020).

4

pertinent new evidence, he is not entitled to a merit review based on the third requirement under
20 C.F.R. §10.606(b)(3).13
The Board, accordingly, finds that appellant has not met any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.14
On appeal counsel contends that OWCP failed to properly apply the causation standard or
give adequate deference to the findings of appellant’s attending physician. As explained above,
the Board lacks jurisdiction to review the merits of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 29, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 25, 2020
Washington, DC

Christopher J. Godfrey, Deputy 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

13

20 C.F.R. § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

14

D.G., Docket No. 19-1348 (issued December 2, 2019).

5


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

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

Docket No. 09-910
Issued: November 10, 2009

Case Submitted on the Record

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

JURISDICTION
On February 25, 2009 appellant filed a timely appeal from a January 6, 2009 merit
decision of the Office of Workers’ Compensation Programs. Under 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 the Office met its burden of proof to terminate appellant’s
compensation on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On June 20, 2007 appellant, a 61-year-old letter carrier, filed a Form CA-2 claim for
benefits based on occupational disease, alleging that she developed a bilateral carpal tunnel
condition causally related to employment factors. The Office accepted the claim for bilateral
carpal tunnel syndrome. Dr. David Antonio, Board-certified in orthopedic surgery, performed
left carpal tunnel release surgery on September 18, 2007. The Office paid appropriate
compensation for temporary total disability.

On January 24, 2008 Dr. Stephen J. Leibovic, Board-certified in orthopedic surgery,
released appellant to work light duty, for eight hours per day, with restrictions on the use of her
left hand, grasping and weight lifting. Appellant accepted a modified job offer from the
employing establishment as a rural mail carrier, tailored to Dr. Leibovic’s restrictions, on
January 29, 2008.1
In reports dated April 21 and June 9, 2008, Dr. Antonio noted that appellant had
continued complaints of pain from bilateral carpal tunnel syndrome. He stated that her left hand
was approximately the same, but advised that she had severe right hand pain which was
progressively worsening. In his June 9, 2008 report, Dr. Antonio recommended that appellant
reduce her work hours from eight hours a day to six hours per day, though he stated that he had
reviewed her present job description and considered it appropriate. In a work capacity
evaluation dated June 12, 2008, Dr. Antonio reduced appellant’s work hours from eight hours a
day to six hours per day on June 11, 2008.
Appellant submitted a June 20, 2008 Form CA-7 requesting compensation for wage loss
from June 7 to 20, 2008. A June 24, 2008 Time Analysis Form indicated that she worked six
hours on June 12 and 13, 2008 and from June 16 to 20, 2008.
On June 20, 2008 the employing establishment offered appellant a modified job as a rural
mail carrier. The job entailed the identical work restrictions as the job she had accepted and
worked at since January 29, 2008, except for the fact that she would only be required to work for
six hours per day.
On July 8, 2008 appellant filed a Form CA-2a claim for benefits, alleging that she
sustained a recurrence of disability on June 12, 2008 which was causally related to her accepted
carpal tunnel condition.
In order to determine whether appellant’s current claimed disability was causally related
to her accepted bilateral carpal tunnel condition, whether she was capable of working for eight
hours per day, the Office referred her to Dr. Glenn Spiegler, Board-certified in orthopedic
surgery, for a second opinion examination. In a July 22, 2008 report, Dr. Spiegler stated that the
persistent discomfort and synovitis caused by her median nerve made it difficult for her to
complete her job description. He stated, however, that she was capable of performing everything
in her job description for eight hours per day.2 Dr. Spiegler advised that appellant could work
six hours per day if she were to attend regular physical therapy sessions, but otherwise he would
request an eight-hour workday.

1

The position of modified rural carrier, which appellant accepted, actually entailed sorting and casing mail. It
included the following job duties: casing letter mail with the right hand for 2 hours; answering the telephone for
½ hour; sorting mail with the right hand for 3 hours; miscellaneous paperwork for ½ hour; and casing box mail for
2 hours. The job description included Dr. Leibovic’s restrictions of limited use of the left hand, no lifting exceeding
two pounds and no grasping.
2

Dr. Spiegler stated that he disagreed with appellant’s 70-pound lifting restriction, listed in her job description,
which he opined should be reduced to 25 pounds. The job description provided by the employing establishment,
however, in both the January 29 and June 20, 2008 job offers list only a two-pound limitation.

2

Dr. Spiegler indicated that appellant’s symptoms were likely to improve and even resolve
completely if she was aggressive about her physical therapy; without such an aggressive
approach, however, he advised that she would have limitations on lifting for a prolonged,
perhaps permanent, period. He stated that appellant’s carpal tunnel syndrome had resolved on
the left side, but not the right side. Dr. Spiegler recommended that she undertake aggressive
physical therapy for her left hand and that she should consider carpal tunnel release surgery for
her right hand; he did not believe that her right carpal tunnel syndrome would resolve without
surgery. He estimated that appellant could return to full, regular duty if she underwent
approximately three months of aggressive physical therapy.
By decision dated September 3, 2008, the Office denied appellant’s claim for a
recurrence of disability and her request for wage-loss compensation from June 7 to 20, 2008. It
found that she failed to show that there was a change in the nature and extent of her accepted
carpal tunnel condition or a change in the nature and extent of her light-duty requirements. The
Office stated that Dr. Spiegler’s referral opinion represented the weight of the medical evidence.
In a report dated September 15, 2008, Dr. Antonio stated that he had examined appellant
on that date and advised that her condition remained essentially unchanged. He noted that she
had been examined by Dr. Spiegler and, on the basis of that evaluation, she was returning to light
duty for eight hours per day.
On September 18, 2008 appellant elected to receive retirement benefits from the Office of
Personnel Management (OPM) as of September 28, 2008.
By letter dated October 22, 2008, the Office advised appellant that, a suitable position,
the modified rural carrier job which she began working in January 2008, was available and that,
pursuant to section 8106(c)(2), she had 30 days to either accept the job or provide a reasonable,
acceptable explanation for refusing the offer. It noted that she had elected to receive disability
retirement from OPM and advised her that it would be terminating her compensation based on
her refusal to accept a suitable position which reflected her ability to work as a modified rural
carrier for eight hours per day. The Office stated that if appellant refused the job or failed to
report to work within 30 days without reasonable cause, it would terminate her compensation
pursuant to 5 U.S.C. § 8106(c)(2).3
In a letter dated November 10, 2008, appellant stated that she elected to receive disability
retirement benefits because her bilateral carpal tunnel syndrome precluded her from performing
the modified job. She advised that the job involved mostly sorting and casing mail, which
aggravated her left-sided carpal tunnel condition.
In addition, appellant experienced
considerable pain and discomfort in her right hand and wrist but was apprehensive about
undergoing another carpal tunnel release on her right side because of the continued problems she
was experiencing after having such surgery on her left hand and wrist.
By letter dated November 26, 2008, the Office advised appellant that she had 15 days in
which to accept the position or it would terminate her compensation. Appellant did not respond
within 15 days.
3

5 U.S.C. § 8106(c)(2).

3

By decision dated January 6, 2009, the Office terminated appellant’s entitlement to
compensation benefits on the grounds that she refused an offer of suitable work. It stated that
Dr. Spiegler’s opinion that she could return to light-duty work for eight hours per day constituted
the weight of the medical evidence. The Office stated that appellant could not receive both
workers’ compensation benefits and OPM annuity benefits at the same time. It advised her that
this was not a reasonable justification for refusing to accept the modified rural carrier position.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened to order to justify termination or modification of compensation benefits.4
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.5
Section 10.517(a) of the Federal Employees’ Compensation Act’s implementing
regulations provide that an employee who refuses to work after suitable work has been offered to
or secured for the employee, has the burden of showing that such refusal or failure to work was
reasonable or justified.6 Pursuant to 20 C.F.R. § 10.516, the employee shall be provided with the
opportunity to make such a showing before a determination is made with respect to termination
of entitlement to compensation.7
Once the section 8116(a) of the Act states that, while an employee is receiving workers’
compensation, he or she may not receive salary, pay or remuneration of any type from the United
States, except in return for services actually performed or for certain payments related to service
in the Armed Forces, including benefits administered by the Department of Veterans Affairs
unless such benefits are payable for the same injury or the same death being compensated for
under the Act.8 The implementing regulations provide that a beneficiary may not receive wageloss compensation concurrently with a federal retirement or survivor annuity.9 The beneficiary
must elect the benefit that he or she wishes to receive.10
ANALYSIS
The determination of whether an employee has the physical ability to perform a modified
position offered by the employing establishment is primarily a medical question that must be
4

Mohamed Yunis, 42 ECAB 325, 334 (1991).

5

Id.

6

20 C.F.R. § 10.517(a).

7

Id. at § 10.516.

8

5 U.S.C. § 8116(a).

9

20 C.F.R. § 10.421(a).

10

Id.

4

resolved by the medical evidence.11 The weight of the medical evidence in this case indicates
that appellant was capable of performing her light-duty job sorting and casing mail and doing
paperwork for eight hours per day. The employing establishment tailored the requirements of
the job in accordance with Dr. Leibovic’s work restrictions; she accepted the job on January 29,
2008 and continued to perform it for eight hours per day until June 12, 2008, when Dr. Antonio
reduced her work hours from eight to six. The Office referred appellant to Dr. Spiegler, who
found that she could return to an eight-hour day at her former position. Appellant was
subsequently examined on September 15, 2008 by Dr. Antonio, who did not express
disagreement with Dr. Spiegler’s opinion and stated that, based on Dr. Spiegler’s examination,
she was returning to modified work for eight hours per day. In the October 22, 2008 letter, the
Office notified appellant of its finding that the light-duty casing and sorting position was suitable
and of the consequences for not accepting a suitable offer. It confirmed that the position
remained available. Appellant rejected the offered position on November 10, 2008 and asserted
that she had retired under OPM on the grounds that she could not work due to her continuing
problems with bilateral carpal tunnel syndrome. The Office, however, properly found in its
January 9, 2008 decision that the weight of the medical evidence rested with Dr. Spiegler’s
July 22, 2008 opinion, which indicated that she was capable of performing the modified job and
returning to work for eight hours per day within the indicated restrictions.
In addition, the Office noted that appellant had elected to receive OPM disability
retirement benefits and retire from the employing establishment on September 18, 2008.
Retirement, however, is not considered an acceptable reason for refusing an offer of suitable
work.12 Therefore, appellant has not established a reasonable or justifiable basis for refusing the
offered position. As the weight of the medical evidence established that she could perform the
duties of the offered position, she did not offer sufficient justification for refusing the position.
The Board finds that the Office met its burden of proof to terminate appellant’s wage-loss
compensation pursuant to 5 U.S.C. § 8106,13 effective January 6, 2009, as she refused an offer of
suitable work.14 Accordingly, the Board affirms the January 9, 2009 Office decision.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation on the grounds that she refused an offer of suitable work.

11

Robert Dickinson, 46 ECAB 1002 (1995).

12

Robert P. Mitchell, 52 ECAB 116 (2000) (where the claimant chose to receive disability retirement benefits
rather than accept a position offered by the employing establishment).
13

20 C.F.R. § 10.421(a); see Franklin L. Bryan, 56 ECAB 310 (2005).

14

Karen L. Yaeger, 54 ECAB 323 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the January 6, 2009 decision of the Office of
Workers Compensation Programs is affirmed.
Issued: November 10, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF THE ARMY, BAYNEJONES ARMY COMMUNITY HOSPITAL,
Fort Polk, LA, Employer
__________________________________________

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

Docket No. 07-573
Issued: May 31, 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 December 26, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 3, 2006 nonmerit decision finding that she abandoned her
hearing request. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
this nonmerit decision.1
ISSUE
The issue is whether the Office properly determined that appellant abandoned her hearing
request.

1

The record also contains an April 13, 2006 merit decision denying appellant’s request for authorization of
surgery and a January 10, 2006 merit decision concerning her wage-earning capacity. Appellant has not appealed
either of these decisions to the Board.

FACTUAL HISTORY
On May 8, 2003 appellant, then a 37-year-old medical support clerk, filed an
occupational disease claim alleging that she sustained injury to her arms and hands due to
engaging in extensive typing. The Office accepted that she sustained bilateral carpal tunnel
syndrome.
On September 24, 2004 appellant underwent right carpal tunnel release surgery which
was authorized by the Office. She stopped work in September 2004 and began to receive
disability compensation. On October 24, 2005 appellant returned to light-duty work for the
employing establishment as a medical support assistant. In a January 10, 2006 decision, the
Office determined that appellant’s wages as a medical support assistant fairly and reasonably
represented her wage-earning capacity.
In a January 12, 2006 notice, the Office advised appellant of its preliminary
determination that she received a $3,455.26 overpayment of compensation during the period
October 24 to December 24, 2005 because she continued to receive Office compensation after
she returned to work. The Office also made a preliminary determination that appellant was at
fault in the creation of the overpayment. It advised her that she could request waiver of the
overpayment and that she could take various actions including requesting a prerecoupment
hearing before an Office hearing representative.
On January 27, 2006 appellant indicated that she wished to request waiver of the
overpayment and requested a prerecoupment hearing with an Office hearing representative
regarding this matter.2
In an April 13, 2006 decision, the Office denied appellant’s request for authorization of
left carpal tunnel release surgery.
In a July 25, 2006 letter, the Office advised appellant that an oral hearing would be held
with an Office hearing representative at 3:00 p.m. on October 19, 2006. The hearing was to be
held at a federal courthouse in Shreveport, LA. The letter was sent to appellant’s last address of
record in Deridder, LA and advised her of the procedures for requesting postponement of the
hearing.3
In a November 3, 2006 decision, the Office determined that appellant abandoned her
hearing request. The Office found that appellant did not appear for the hearing scheduled for
October 19, 2006 and did not contact the Office, before or after the scheduled date for the
hearing, to explain her failure to appear.4

2

Appellant also submitted a completed overpayment recovery questionnaire that had been provided by the Office.

3

The record also contains a draft notice for an August 31, 2006 hearing in Houston, TX. It does not appear that
this notice was sent to appellant.
4

The Office inadvertently listed the place for the hearing as Pensacola, FL rather than Shreveport, LA. It appears
that appellant moved to Leesville, LA after the Office issued its November 3, 2006 decision.

2

LEGAL PRECEDENT
The authority governing abandonment of hearings rests with the Office procedure
manual. Chapter 2.1601.6(e) of the procedure manual, dated January 1999, provides as follows:
“e. Abandonment of Hearing Requests.
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to
appear at a scheduled hearing; and the claimant has failed to provide any
notification for such failure within 10 days of the scheduled date of the
hearing.
“Under these circumstances, H&R [Branch of Hearings and Review] will
issue a formal decision finding that the claimant has abandoned his or her
request for a hearing and return the case to the DO [district Office]. In
cases involving prerecoupment hearings, H&R will also issue a final
decision on the overpayment, based on the available evidence, before
returning the case to the DO.
“(2) However, in any case where a request for postponement has been
received, regardless of any failure to appear for the hearing, H&R should
advise the claimant that such a request has the effect of converting the
format from an oral hearing to a review of the written record.
“This course of action is correct even if H&R can advise the claimant far
enough in advance of the hearing that the request is not approved and that
the claimant is, therefore, expected to attend the hearing and the claimant
does not attend.”5
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome and paid
her compensation for periods of disability. In a January 12, 2006 notice, the Office advised
appellant of its preliminary determination that she received a $3,455.26 overpayment of
compensation because she continued to receive Office compensation after she returned to work.
Appellant requested a hearing with an Office hearing representative regarding this matter and
such a hearing was scheduled for October 19, 2006 in Shreveport, LA.
The Office scheduled an oral hearing before an Office hearing representative at a specific
time and place on October 19, 2006. The record shows that the Office mailed appropriate notice
to the claimant at her last known address. The record also supports that appellant did not request
postponement, that she failed to appear at the scheduled hearing and that she failed to provide
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999).

3

any notification for such failure within 10 days of the scheduled date of the hearing. As this
meets the conditions for abandonment specified in the Office procedure manual, the Office
properly found that appellant abandoned her request for an oral hearing before an Office hearing
representative.6
The Board notes that Office procedures state that, in situations involving the
abandonment of a prerecoupment hearing, the Office’s H&R will also issue a final decision on
the overpayment, based on the available evidence, before returning the case to the district
Office.7 Consequently, upon return of the case record, the Office, pursuant to its established
procedures, shall refer the matter to the H&R for an appropriate final decision on the alleged
overpayment of compensation.
CONCLUSION
The Board finds that the Office properly determined that appellant abandoned her
hearing.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 3, 2006 decision is affirmed, as modified.
Issued: May 31, 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

See also Claudia J. Whitten, 52 ECAB 483, 485 (2001).

7

See supra note 5.

4