United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Redmond, WA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-433
Issued: July 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 18, 2013 appellant, through her attorney, filed a timely appeal from a
November 5, 2013 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 sustained an emotional condition in the performance of
duty causally related to factors of her federal employment.
FACTUAL HISTORY
On January 6, 2012 appellant, then a 51-year-old customer service supervisor, filed an
occupational disease claim alleging that she sustained major depression and panic attacks
causally related to factors of her federal employment. She stopped work on December 12, 2011.
1

5 U.S.C. § 8101 et seq.

In a January 11, 2012 statement, appellant related that she worked as a letter carrier from
1984 until she injured her elbow in 2002 and her shoulder in 2003. After her injuries, she was
assigned to work as a guard for the back door, which she found demeaning. Appellant learned
administrative duties, voluntarily relinquished her bid position and “became an unassigned
regular.” In 2006, when the National Reassessment Program (NRP) began, she trained to be a
supervisor. When appellant returned from training, a new postmaster changed her days off when
she was on vacation and listed her as absent without leave even though she was unaware that her
work hours had changed. In 2008, she and her family moved to another state after she obtained
another position as a supervisor. At appellant’s new work location in Redmond, WA, the
postmaster, Kathy Smith, rarely came to work and supervisor, Ken Thompson, ran the
organization. Mr. Thompson marked his annual leave days as travel days. When appellant went
on vacation, he offered to give her “travel days” so she would not have to use vacation but she
refused. Mr. Thompson spent his time at work on the Internet and running a private business.
Appellant told Ms. Smith, but then learned that Mr. Thompson also let Ms. Smith indicate that
she was at work when she was absent. In 2010, Harleynda Wilcox became postmaster.
Appellant believed that the illegal activities would stop but they did not. She began seeing a
counselor with the Employees’ Assistance Program (EAP) to help cope with her mother’s
terminal diagnosis. Ms. Wilcox changed appellant’s schedule so she could not attend EAP
counseling. She wanted to change the no lunch policy for carriers. After appellant told
Ms. Wilcox that she did not believe that she would have been successful, Ms. Wilcox changed
appellant’s scheduled days off. Ms. Wilcox told appellant to change any overtime used by a
carrier who signed the no lunch list to annual leave or leave without pay. She also instructed
appellant to not use carriers who signed the no lunch list for overtime and to send carriers who
were not on the overtime list. When appellant objected because it violated the union contract,
Ms. Wilcox yelled at appellant and ordered her out of the office. In November 2010, she learned
that her mother’s cancer had metastasized but Ms. Wilcox denied appellant’s request for time
off. Appellant went to visit her mother around Christmas 2010. When appellant’s return flight
was cancelled due to weather, Ms. Wilcox marked appellant as absent without leave.
In March 2011, appellant returned to work after her mother died and found that the office
had relocated and she had 40 more employees to supervise. The employing establishment
wanted her to work less hours with an increased workload. Rich Miele, a manager, instructed
appellant to manually fix express mail that had been scanned or delivered improperly.
Appellant’s work location had poor results for scanning so Mr. Miele asked her to scan parcels
“as business closed so we could get off the poor performers list. I was not comfortable doing
this, but I had been given a direct order.” Mr. Thompson used work hours to run his business so
appellant answered most of the telephone calls and all of the complaints online. Appellant
stated, “I felt bad when [customers] complained about not getting packages, because I knew that
we had them, but were [not] delivering them.” She complained to consumer affairs but “got read
the riot act” because of a previous complaint. Mr. Thompson refused to allow overtime and
would give carriers a 1260 form and indicate that they ended the tour without overtime.
Appellant stated, “I did this a few times because I was given a direct order to do so, but felt bad
because it was wrong.” On November 23, 2011 she refused to change the times for the carriers
who worked overtime. Joyce Chen took Family and Medical Leave Act (FMLA) leave to care
for her daughter but was not entitled to the leave because her daughter was not disabled and was
an adult. Appellant was not comfortable breaking rules. She began to have attacks of stress and

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stated, “Part of what was causing my attacks was the notion that if I reported what I knew about
my fellow supervisor, they could possibly lose their jobs.”
In a report dated January 7, 2012, Dr. David P. Shaw, a Board-certified psychiatrist,
diagnosed disabling major depression that might be related to employment.
In a February 29, 2012 response to OWCP’s request for additional information, appellant
again described the actions to which she attributed her condition. She provided the dates from
October through November 2011 that Mr. Miele instructed her “to change carrier clock rings so
our office did not show any penalty overtime.”
Appellant submitted a May 14, 2011 arbitration determination settling a grievance from
her work location. The arbitrator found that carriers were allowed to request no lunch and work
overtime. Appellant also submitted time and attendance records.
In an e-mail dated February 25, 2012, July Ngo, with the employing establishment,
controverted appellant’s claim. She had not witnessed falsifying clock rings. Ms. Ngo noted
that appellant had taken much time off work and argued that her workload had not increased as
the employing establishment had reduced mail volume.
In a statement dated February 27, 2012, Mr. Miele related that appellant requested his
assistance in 2010 because Ms. Wilcox was constantly changing appellant’s work hours such that
she could not easily attend EAP sessions. In August 2012, Ms. Wilcox stopped the no lunch
policy and indicated that carriers on the no lunch list could not work overtime. Appellant
questioned this action in light of prior grievances, after which Ms. Wilcox changed her work
schedule. In 2011, Mr. Miele became postmaster. He related that they had “more work to do
with fewer employees.” Mr. Miele “finally began directing my supervisors to make sure that our
employees did not work over 10 hours per day and go into penalty overtime.” When employees
did work over 10 hours, he “gave direct orders to [appellant] to ensure that any employee who
worked over 10 hours would fill out a 1260 stating [that] their end tour time was 10 hours or less.
I also instructed her to try and make up that time for the employee on a day that they had worked
under 10 hours.” Mr. Miele further related:
“In July and August 2011, our office kept showing up on the poor performance
list for scans for Express Mail and delivery confirmation packages. I tried
everything I could think of to improve our performance but nothing seemed to
work. I finally gave directly order to [appellant] that when she checked our
Express Mail delivery and delivery confirmation labels at the end of the day, to
fix any errors. That meant she would have to manually input false information so
that we could get off the poor performer list. When [appellant] told me that she
had been told not to do that by [manager] Evie, I told her to still do it anyway.
When she finally refused to do it anymore, I assigned that task to my morning
supervisors.”
Mr. Miele also ordered appellant to “falsely input any missing scans” on parcels not
sorted before carriers left on their routes. He instructed her to enter time for Ms. Chen’s absence
after her daughter gave birth as sick leave instead of annual leave because he “did not want to

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make any waves with [Ms. Chen] and thought that someone else would tell her that she was not
entitled to use that type of leave.”
By decision dated April 13, 2012, OWCP denied appellant’s claim after finding that she
had not established any compensable employment factors. On May 11, 2012 appellant requested
an oral hearing before an OWCP hearing representative.
In a statement dated September 5, 2012, Louis J. Matthews, a therapist, counseled
appellant through the EAP program.2 Appointments could not be scheduled with appellant
because the postmaster kept changing her schedule or assigning her to route counts. Appellant
received assistance from the union.
In a statement dated October 24, 2012, appellant described the work factors to which she
attributed her condition. She related that the arbitration panel’s finding that the no lunch policy
was acceptable established that the postmaster violated the union contract in ordering her to take
away no lunch for employees who worked overtime.
A hearing was held on October 25, 2012. Appellant’s attorney attributed her condition to
management instructing her to manipulate data to meet standards, as confirmed by Mr. Miele.
In a report dated November 12, 2012, Dr. Shaw reviewed appellant’s duties as a
supervisor and noted that she was instructed to make packages look as though they had been
timely scanned. He discussed the postmaster refusing to allow carriers to work overtime if they
did not take lunch, which she believed violated both a contract and arbitration decisions.
Mr. Miele also advised appellant to manually input inaccurate data. He stated, “[Appellant]
reports [that] she was repeatedly asked to bend or to break the rules or to overlook someone else
ignoring the rules and guidelines. She reported that supervisors were misusing company time for
their personal business, misreporting their work hours, vacation and leave days.” Management
changed appellant’s schedule while she was on vacation and marked her absent without leave
and changed her schedule so she could not attend medical appointments. Appellant had an
additional 40 employees when she returned to work in March 2011 after the death of her mother.
She addressed angry complaints from customers. Dr. Shaw diagnosed moderate major
depression, anxiety disorder with panic attacks and post-traumatic stress disorder and found that
she could no longer perform her usual employment. He listed both work and nonwork stressors
and found that her condition was related, at least in part, to work stressors that occurred during
the course of her employment. When appellant refused the work duties because of her
conscience, she “worried about disobeying orders. With her military background and her family
history of law enforcement employment both were equally abhorrent to her (disobey a superior,
or break the law).”
In a decision dated January 2, 2013, an OWCP hearing representative set aside the
April 13, 2012 decision. She found that appellant had established as compensable work factors
that in October and November 2011 Mr. Miele told her to falsely change scans on Express Mail
and in July and August 2011 instructed her to fill out 1260 forms listing that carriers worked 10
2

In a letter dated October 3, 2012, Diana J. LaCount related that appellant experienced constant schedule
changes.

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hours or less even if they worked more than 10 hours. The hearing representative determined
that appellant established error or abuse by her manager when Mr. Miele “directed the claimant
to input false information regarding inputting carrier time, scanning Express Mail delivery,
delivery confirmation and [Ms.] Chen’s FMLA.” She instructed OWCP to prepare a statement
of accepted facts describing the compensable and noncompensable work factors and refer
appellant for a second opinion examination.
In a January 18, 2013 statement of accepted facts, OWCP listed as compensable factors
of employment that Mr. Miele told her to change scans on Express Mail and carrier clock rings,
instructed her to hand out 1260s and advised her to allow Ms. Chen to take FMLA when it was
not warranted.
In a statement dated January 29, 2013, Ms. Wilcox related that she changed appellant’s
schedule because of operational needs. She did not order appellant out of her office and denied
that she asked her to falsify carrier lunch, time records or scanning reports.
On February 6, 2013 OWCP referred appellant to Dr. Douglas Robinson, a Boardcertified psychiatrist, for a second opinion examination.
In a report dated February 28, 2013, Dr. Robinson discussed appellant’s work history and
the factors to which she attributed her condition. He also listed nonwork stressors, including a
custody dispute over grandchildren. Dr. Robinson diagnosed recurrent major depressive
disorder, panic disorder with agoraphobia and some obsessive-compulsive personality traits. He
found that the compensable work factors “did not directly cause, aggravate, precipitate or
accelerate the identified psychiatric disorders.” Dr. Robinson noted that appellant did not adjust
to her transfer to Redmond, WA. He stated, “However, it was not until more significant personal
stressors arose that [appellant] experienced a recurrence of depression and the onset of panic
disorder.” Dr. Robinson related:
“Third, it is my impression that [appellant’s] personality places her at risk for
interpreting events as representing malfeasance, illegal activities, et cetera. The
information available from the Statement of Accepted Facts indicates that her
allegations regarding her supervisor have not been established. Therefore, it is
unclear whether her perceptions are valid and if such behaviors represented a
violation or some form of illegal activity. In any case, there does seem to be a
pattern of grudge-keeping, fault-finding and perceiving herself as vulnerable to
the whims of supervisor above and beyond what might be reasonable.”
Dr. Robinson concluded that appellant was not disabled as a result of any condition due
to compensable work factors.
By letter dated March 26, 2013, appellant’s attorney disputed Dr. Robinson’s opinion,
noting that he questioned the occurrence of the accepted compensable work factors.
By decision dated April 25, 2013, OWCP denied appellant’s emotional condition claim,
finding that the weight of the medical evidence established that she did not sustain any condition
as a result of the accepted employment factors.

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On April 30, 2013 appellant, through her attorney, requested a review of the written
record by an OWCP hearing representative. On May 29, 2013 he submitted a February 19, 2005
letter indicating that due to a work injury appellant was giving up her bid position and becoming
an unassigned regular.
In a report dated May 20, 2013, Dr. Shaw diagnosed a single episode of moderate major
depression, anxiety disorder with panic attacks and post-traumatic stress disorder. He stated,
“The recurring challenges to [appellant’s] sense of right and wrong made this work situation
untenable and unhealthy for her; this has not changed. She reported that she was repeatedly
asked to bend or break the rules or to overlook someone else ignoring the rules and guidelines,
some of which are in place to protect carriers against unreasonable expectations.” Dr. Shaw
found that appellant was disabled from employment. He stated:
“Thus, as I have said before, work factors have certainly contributed to
[appellant’s] emotional condition.
[Appellant’s] family, personal and
occupational history and perhaps her genetic vulnerability rendered her unable to
cope with and conflicted over requirements to violate [employing establishment]
and union rules. Even when she was excused from some of those requirements,
she remained conflicted over disobeying her superiors for the same reasons.”
By decision dated November 5, 2013, an OWCP hearing representative affirmed the
April 25, 2013 decision. She found that the opinion of Dr. Robinson represented the weight of
the evidence and established that appellant did not sustain an emotional condition due to
compensable work factors. The hearing representative further determined that appellant had not
established that giving up her bid position constituted a compensable factor of employment.
On appeal, appellant’s attorney contends that OWCP should have accepted additional
compensable work factors. He argues that her schedule was unreasonably changed and that she
did not give up her bid position voluntarily. Appellant supervised an additional 40 employees
when she returned to work after her mother’s death and answered most of the telephone calls and
all of the online complaints. Customers screamed at her many times each day. Counsel also
argues that the statement of accepted facts provided by OWCP to Dr. Robinson did not
adequately set forth that appellant had established error or abuse by the employing establishment.
He noted that Dr. Robinson questioned the existence of compensable work factors. At a
minimum, appellant’s attorney contends that a conflict in medical opinion exists between
Dr. Robinson and Dr. Shaw.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.3 On the other hand, the
3

5 U.S.C. § 8101 et seq.; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

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disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.4
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.5 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the claimant,8 must be
one of reasonable medical certainty9 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.10
OWCP’s procedures provide as follows:
“When the DMA [district medical adviser], second opinion specialist or referee
physician renders a medical opinion based on a SOAF [statement of accepted
facts,] which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.”11
ANALYSIS
OWCP accepted as compensable work factors that the employing establishment
committed error and abuse when appellant’s supervisor, Mr. Miele, instructed her to improperly
4

Gregorio E. Conde, 52 ECAB 410 (2001).

5

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

6

Id.

7

John J. Montoya, 54 ECAB 306 (2003).

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

John W. Montoya, supra note 7.

10

Judy C. Rogers, 54 ECAB 693 (2003).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600(3)
(October 1990).

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input scans on Express Mail in July and August 2011, wrongly indicate on 1260 forms that
carriers worked less than 10 hours and place Ms. Chen on unwarranted sick leave.
Appellant submitted supporting medical evidence from Dr. Shaw, who noted that the
employing establishment instructed her to inaccurately input data and ignore rules. Dr. Shaw
diagnosed major depression, anxiety disorder and post-traumatic stress disorder due at least in
part to work stress, including been forced to choose between violating rules and obeying orders
from her superiors. OWCP referred appellant to Dr. Robinson for a second opinion examination
to determine whether she had established an emotional condition causally related to the accepted
work factors. In an accompanying SOAF, it listed as compensable work factors that Mr. Miele
told her to change scans on Express Mail and carrier clock rings, instructed her to hand out 1260s
and advised her to allow Ms. Chen to take FMLA when it was not warranted.
On February 28, 2013 Dr. Robinson diagnosed recurrent major depressive disorder, panic
disorder with agoraphobia and obsessive-compulsive personality traits. He found that the
diagnosed conditions were not related to the compensable work factors as her symptoms
coincided with personal stressors. Dr. Robinson also found that appellant’s personality might
cause her to misinterpret incidents as illegal or unethical and indicated that the SOAF “indicates
that her allegations regarding her supervisor have not been established. Therefore, it is unclear
whether her perceptions are valid and if such behaviors represented a violation or some form or
illegal activity.” OWCP accepted as a compensable work factor that appellant’s supervisor
erroneously required her to mislabel Express Mail, inaccurately reflect carrier work hours and
allow inaccurate leave usage. As noted, if an OWCP referral physician fails to utilize the SOAF
in forming his opinion, the probative value of the report is diminished or negated.12 As
Dr. Robinson did not accept the compensable work factors set forth by OWCP in the SOAF, his
report is insufficient to resolve the issue of whether appellant sustained an emotional condition in
the performance of duty. The Board notes that she has submitted evidence from Dr. Shaw in
support of her claim. Once OWCP undertakes to develop the medical evidence further, it has the
responsibility to do in a manner that will resolve the relevant issues in the case.13 The case will,
consequently, be remanded for OWCP to further develop the issue of whether appellant
sustained an emotional condition causally related to the compensable work factors. On remand,
OWCP should clearly indicate in the SOAF that she established error and abuse by the
employing establishment in instructing her to falsify scans on Express Mail and delivery
confirmation, inaccurately completing forms showing carrier work hours and erroneously
allowing Ms. Chen to use FMLA when it was not warranted. After such further development as
deemed necessary, it should issue a de novo decision.
On appeal, appellant’s attorney argues that OWCP should have accepted as compensable
work factors that the employing establishment changed appellant’s schedule unreasonably and
forced her to relinquish a bid position. Matters involving schedule changes and the assignment
of work are administrative or personnel matters of the employing establishment, which are
covered only when erroneous or abusive.14 Appellant has not submitted sufficient evidence
12

Id.

13

See Melvin James, 55 ECAB 406 (2004).

14

See D.L., 58 ECAB 217 (2006); Jeral R. Gray, 57 ECAB 611 (2006).

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establishing that management erred in changing her schedule or taking away her bid position.
Ms. Matthews, a counselor, indicated that she could not schedule appointments with her due to
schedule changes. While Mr. Miele also confirmed that appellant’s schedule had changed such
that she could not easily attend counseling, he did not describe the changes as erroneous.
Ms. Wilcox asserted in a January 29, 2013 statement that she changed appellant’s schedule due
to operational needs. In a letter dated February 19, 2005, the postmaster and union president
agreed to post appellant’s bid position and convert her to an unassigned regular due to a work
injury. Appellant has not submitted any evidence establishing error by the employing
establishment in these administrative matters and thus has not established a compensable work
factor.15
Counsel also maintains that appellant had to supervise an additional 40 employees when
she returned to work after her mother’s death. Overwork, when substantiated by sufficient
factual information, may be a compensable factor of employment.16 Mr. Miele generally
asserted that they had additional work with less staff but did not specifically confirm that
appellant was overworked. Ms. Ngo asserted that appellant’s workload had not increased. The
Board finds that the evidence is insufficient to support appellant’s allegations of overwork.17
Regarding appellant’s contention that she had to address the complaints of angry
customers, the Board has held that emotional reactions to situations in which an employee is
trying to meet his or her position requirements are compensable under Cutler.18 Appellant
generally indicated that she had to deal with angry customers by telephone and online and was
unhappy that they had not received their packages. She did not, however, provide further details
about this allegation or establish a factual basis for any particular customer complaints that she
handled as part of her duties. The Board thus finds that appellant has not established a
compensable employment factor.19
CONCLUSION
The Board finds that the case is not in posture for decision.

15

See L.S., 58 ECAB 249 (2006) (the fact that management changed an employee’s work schedule a number of
times did not bring the claim within the scope of workers’ compensation absent a showing that management
changed her schedule in error).
16

See Bobbie D. Daly, 53 ECAB 691 (2002).

17

See J.R., Docket No. 13-1881 (issued January 24, 2014).

18

See Lillian Cutler, supra note 3.

19

See D.M., Docket No. 09-212 (issued August 14, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the November 5, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion by the Board.
Issued: July 3, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Salisbury, NC, Employer
__________________________________________

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

Docket No. 16-0716
Issued: July 19, 2016

Case Submitted on the Record

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

JURISDICTION
On February 29, 2016 appellant filed a timely appeal from a January 4, 2016 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 recurrence of disability for intermittent
periods commencing November 8, 2011 causally related to accepted right knee and lumbar
sprains and a right upper extremity contusion.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances outlined in
the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
OWCP accepted that on October 8, 2009 appellant, a 59-year-old health technician,
sustained a lumbar sprain and right collateral ligament knee sprain in the performance of duty
when she slipped and fell down a stairway. Appellant was followed by Dr. Christopher K. Nagy,
the attending Board-certified orthopedic surgeon, who noted improving lumbar, right shoulder,
and right knee symptoms in reports through March 2010.2 In a May 26, 2010 report, Dr. Nagy
noted that appellant continued to have limited motion in the right shoulder. Appellant underwent
surgical intervention in the past, but continued to have positive impingement findings and
chronic pain. She returned to light-duty work.
On June 1, 2010 appellant claimed a schedule award (Form CA-7). In a July 8, 2010
letter, Dr. Nagy advised that he was not formally trained in evaluating impairment and requested
that OWCP refer appellant to an appropriate specialist. An OWCP medical adviser reviewed the
medical record on July 8, 2010 and noted that the accepted conditions had resolved with no
evidence of permanent impairment.
By decision dated July 28, 2010, OWCP denied appellant’s schedule award claim.
Appellant requested a review of the written record and submitted additional evidence.
In an August 11, 2010 report, Dr. Nagy found that appellant had reached maximum
medical improvement from the accepted sprains. Due to her improvement and lack of findings
of any specific physiologic abnormality, he explained that “there will be no impairment rating
for [appellant] in regard to the sprain of her back and the lateral ligament of her knee.” Dr. Nagy
added that the impairment rating for her lumbar spine and knee sprain was zero “as both have
resolved over the passage of time.”
By decision dated December 2, 2010, an OWCP hearing representative affirmed the
denial of appellant’s schedule award claim, finding that the medical evidence did not establish
any permanent impairment of a scheduled member of the body due to the accepted injuries.
On March 2, 2011 Dr. Nagy advised that when he saw appellant following her fall she
was complaining of pain in her shoulder, which has resolved as of March 3, 2009 following
August 2009 surgery. Although the October 8, 2009 incident was not fully responsible for
appellant’s shoulder problems, he found that she did sustain an injury to her shoulder at that
time, which further aggravated her condition and continued to cause disability and pain with use
of the arm in general.
On or about June 16, 2011 appellant filed a reconsideration request which was forwarded
to the employing establishment.

2

A March 18, 2010 lumbar magnetic resonance imaging (MRI) scan showed a diffuse disc bulge at L4-5.

2

By decision dated July 14, 2011, OWCP denied modification, finding that the accepted
conditions resolved without permanent impairment. It noted that Dr. Nagy offered no diagnosis
of appellant’s shoulder condition and made no distinction between her current condition and an
employment-related right shoulder injury she sustained on April 12, 2005. OWCP also found
that there was no basis to expand the acceptance of appellant’s claim to include a shoulder
condition. Appellant disagreed and requested reconsideration by placing an “x” on the
applicable line on the appeal form accompanying the July 14, 2011 decision. She did not submit
additional evidence.
By decision dated August 10, 2011, OWCP denied appellant’s request for reconsideration
as it neither raised substantive legal questions nor included new and relevant evidence.
Appellant then appealed to the Board.
During the pendency of the first appeal, on March 9, 2012, appellant submitted a claim
for a recurrence of disability (Form CA-2a) commencing October 9, 2009.
By decision and order issued April 6, 2012,3 the Board affirmed OWCP’s July 14, 2011
decision denying appellant’s schedule award claim, finding that the medical evidence of record
did not support that the accepted October 8, 2009 injuries caused any permanent impairment to a
scheduled member of the body. The Board also affirmed OWCP’s August 10, 2011 decision
denying appellant’s request for reconsideration, finding that as it consisted only of the “x” on the
appeal form, it did not raise substantive legal questions nor include new and relevant evidence.
In an April 13, 2012 letter, OWCP expanded the claim to accept a resolved right arm
contusion. It also advised appellant of the type of evidence needed to establish her claim for
recurrence of disability, including a physician’s opinion supporting a causal relationship between
the accepted injuries and her condition on and after October 9, 2009.
Appellant submitted chart notes from Dr. Nagy dated April 13 to July 27, 2011, noting
continued pain and limited motion in the right shoulder and right knee.
By decision dated May 21, 2012, OWCP denied appellant’s claim for recurrence of
disability, finding that the medical evidence did not establish a causal relationship between
appellant’s shoulder condition and the accepted injuries.
On May 31, 2012 appellant requested a review of the written record. She submitted
additional medical evidence.
In a July 29, 2011 letter, Dr. Nagy noted appellant’s history of multiple right rotator cuff
problems and surgery. He opined that the October 2009 fall “caused her to continue to have
difficulties with her shoulder and essentially was an aggravation of a preexisting shoulder
condition.” Dr. Nagy noted abduction limited to 60 degrees, with limited internal and external
rotation. He opined that appellant had 15 percent permanent impairment of her right upper
extremity.

3

Docket No. 11-2006 (issued April 6, 2012).

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In a May 18, 2012 letter, Dr. Nagy opined that, although appellant had a right shoulder
condition prior to the October 2009 fall, the incident worsened her symptoms. He further opined
that there “may have been some irritation or inflammation of her preexisting shoulder condition”
which should be accepted as compensable. Dr. Nagy explained that it was “difficult to
differentiate” whether appellant’s ongoing right shoulder symptoms were due to the October 14,
2009 fall or the preexisting condition. He offered that the “truth of this matter will never be fully
revealed,” so he gave appellant “the benefit of the doubt as she continue[d] to be significantly
limited with her shoulder which was likely the result of the combination of the injury she
sustained in 2009 as well as aggravation of the secondary injury.”
By decision dated September 24, 2012, an OWCP hearing representative affirmed
OWCP’s May 21, 2012 decision, finding that the medical evidence of record was insufficient to
establish causal relationship. She noted Dr. Nagy’s opinion that the etiology of appellant’s right
shoulder condition would “never be fully revealed.”
Appellant underwent left shoulder surgery on April 17, 2013 with postoperative physical
therapy through July 2013. She returned to light-duty work on an unspecified date.
On October 30, 2013 appellant filed an occupational disease claim (Form CA-2) alleging
a full-thickness rotator cuff tear of the left shoulder sustained on or before October 8, 2009. She
asserted that she injured her left shoulder in the October 14, 2009 fall, but did not have x-rays
taken at the time of the injury. Appellant first related the condition to work factors on
November 29, 2012, because the “extreme pain and swelling was the same as the previous right
shoulder injury as in 2007 which resulted in surgery and permanent impairment of the right
shoulder.” She therefore favored her left shoulder, resulting in “the same injury and surgery” to
the left shoulder as on the right. Appellant asserted that pulling patients in Geri-chairs and
handling their lunch trays aggravated her left shoulder condition.
Dr. William Furr, an attending Board-certified orthopedic surgeon, opined on August 12,
2013 that appellant’s left shoulder symptoms were consistent with a fall down stairs. On
May 14, 2014 he opined that appellant’s left shoulder condition was related to the 2009 injuries,
with deterioration due to overuse and compensating for the right shoulder. Dr. Furr opined that
the April 17, 2013 left shoulder surgery “stems from the injury in 2009 and there was just the
issue of coverage.”
In a July 18, 2014 report, Dr. Furr noted swelling and mild effusion in the right knee,
paraspinal tenderness, restricted lumbar motion, tenderness of the anterior right shoulder,
positive coroacromial, Neer’s, and Hawkin’s tests, and restricted elevation. Right shoulder xrays demonstrated mild acromioclavicular joint changes. Right knee and lumbar x-rays showed
multiple degenerative changes. Dr. Furr opined that appellant’s right shoulder, right knee, and
lumbar conditions were all related to the October 2009 injuries.
On June 8, 2015 appellant filed a claim for recurrence of disability (Form CA-2a),
claiming that she was disabled from work for unspecified periods on and after November 8, 2011
due to sequelae of October 8, 2009 injuries. She asserted that she injured her right and left
shoulders when she fell down steps on October 8, 2009. The employing establishment

4

confirmed that appellant was on light duty at the time of the claimed recurrence. Appellant did
not stop work.
In an undated letter received on August 17, 2015, Dr. Furr provided a history of injury
and treatment, relating appellant’s assertion that she injured her left shoulder in the October 8,
2009 fall. He noted appellant’s duties of carrying patient luggage, passing out and collecting
meal trays, taking vital signs, assisting with bathing, and lifting heavy linens. Dr. Furr opined
that appellant’s “left shoulder rotator cuff tear resulting in surgery in April 2013 [was] directly
related to the injury she sustained on October 8, 2009 and overuse of the shoulder secondary to
compensation for the right shoulder injury with heavy lifting.”
In an October 6, 2015 letter, OWCP advised appellant of the type of additional evidence
needed to establish her recurrence claim, including a medical opinion from her attending
physician demonstrating a worsening of the accepted condition such that she could no longer
perform her light-duty job. Appellant was afforded 30 days to submit such evidence.
Appellant responded by October 21, 2015 letter, explaining that she claimed periods of
disability relating to the April 2013 left shoulder surgery. She provided a July 15, 2015 report
from Dr. Furr regarding her lumbar condition. Dr. Furr did not specify any period of disability.
Appellant also submitted progress notes from Dr. Furr documenting her recovery from the
April 2013 left rotator cuff repair.
By decision dated January 4, 2016, OWCP denied appellant’s recurrence claim, finding
that she did not submit medical evidence establishing a worsening of the accepted injuries that
would disable her from light duty for any period. Dr. Nagy opined in August 2010 that the
accepted lumbar and right knee injuries had attained maximum medical improvement. OWCP
noted that it had not accepted a left or right shoulder injury under the present claim.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as “an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.”4
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative, and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.5 This includes the necessity of
4

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.b
(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004).
5

Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986).

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furnishing medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the disabling condition is causally related to
employment factors and supports that conclusion with sound medical reasoning.6 An award of
compensation may not be made on the basis of surmise, conjecture, speculation or on appellant’s
unsupported belief of causal relation.7
ANALYSIS
OWCP accepted that appellant sustained a lumbar sprain, right collateral ligament knee
sprain, and a resolved right arm contusion when she fell down a stairway on October 8, 2009.
Appellant returned to light-duty work with intermittent absences. She claimed a recurrence of
disability commencing November 8, 2011, at which time she was performing modified duty.
Appellant thus has the burden of providing sufficient evidence, including rationalized medical
evidence, to establish the causal relationship asserted.8
In support of her claim, appellant submitted reports from Dr. Nagy, an attending Boardcertified orthopedic surgeon, who found that she reached maximum medical improvement as of
August 11, 2010. Dr. Nagy noted continued lumbar and right knee symptoms in reports through
May 18, 2012 regarding nonoccupational shoulder conditions, but did not opine that the accepted
injuries had worsened and caused disability during the period at issue. Therefore, his opinion is
insufficient to meet appellant’s burden of proof.9
Appellant also provided reports from Dr. Furr, an attending Board-certified orthopedic
surgeon, who noted lumbar symptoms through July 15, 2015. Dr. Furr did not find appellant
totally disabled for work due to her lumbar symptoms, or opine that the accepted lumbar sprain
remained present or had worsened. Therefore, his opinion is insufficient to establish the claimed
recurrence of disability.10
The Board notes there is a significant amount of the medical evidence of record related to
bilateral shoulder injuries and surgeries, however, OWCP did not accept that appellant sustained
an injury to either shoulder in the October 8, 2009 fall, due to a lack of medical rationale
supporting causal relationship. Dr. Nagy remarked on May 18, 2012 that he could not determine
if appellant’s continuing right shoulder symptoms were due to the accepted October 2009 fall, or
a preexisting condition. Dr. Furr opined that appellant sustained a left rotator cuff tear due to
overcompensating for the weakened right shoulder. However, as OWCP did not accept a right
shoulder injury, any consequential impact to the left shoulder cannot be compensable.

6

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

7

Patricia J. Glenn, 53 ECAB 159 (2001); Ausberto Guzman, 25 ECAB 362 (1974).

8

Ricky S. Storms, 52 ECAB 349 (2001).

9

Albert C. Brown, supra note 5.

10

Id.

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OWCP advised appellant by October 6, 2015 letter to submit rationalized medical
evidence regarding whether the accepted conditions in her claim had worsened on and after
November 8, 2011 as claimed. Nothing was submitted. Without such rationalized medical
evidence, OWCP properly denied her claim for a recurrence of disability.
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 that she sustained a recurrence of
disability for intermittent periods commencing November 8, 2011 causally related to accepted
right knee and lumbar sprains and a right upper extremity contusion.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 4, 2016 is affirmed.
Issued: July 19, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION
MEDICAL CENTER, Albuquerque, NM,
Employer
__________________________________________

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

Docket No. 12-1033
Issued: December 6, 2012

Case Submitted on the Record

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

JURISDICTION
On April 16, 2012 appellant filed a timely appeal from a December 22, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied her claim for
a traumatic injury. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on December 20, 2010.
On appeal, appellant contends that she was in the performance of duty at the time of the
injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 11, 2011 appellant, then a 58-year-old nurse, filed a traumatic injury claim
Form CA-1 alleging that she tripped and fell at approximately 7:15 p.m. in Bullhead Park city lot
after her shift ended at 7:00 p.m. on Monday, December 20, 2010. She noted that the lot was
dark, the street light was not lit and she tripped on a tree trunk stump injuring her hands, right
knee and neck. Appellant’s regular tour of duty was 8:30 a.m. to 7:00 p.m. on Mondays. She
submitted medical evidence, including a duty status report dated January 10, 2011 and
chiropractic notes.
In a June 16, 2011 narrative statement, appellant indicated that on the date of the
employment incident she parked behind the employing establishment in the Bullhead Park city
lot. She stated that she did not park in that lot by choice, but since the San Pedro employee
parking lot was full by 8:30 a.m. she had no choice but to park in the city lot. Appellant
explained that employees who go to work at 8:30 a.m. have two options for parking: they can
park in the Bullhead Park city lot; or park far from the front entrance in “Woody’s Woods”
where their cars are subjected to tree sap and bird droppings.
In a June 30, 2011 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of her claim. It afforded 30 days for the submission of additional
evidence.
Appellant submitted three photographs of the parking lot and a July 22, 2011 narrative
statement indicating that at the time of her fall there was a problem with cars not bearing
employing establishment decals parking in the employee lot and taking up spaces reserved for
employees in the San Pedro employee lot. After her injury, she drove around looking for an
employing establishment police officer and found none. Appellant reported that she does not
pay for parking in the Bullhead Park city lot. She submitted a map and a diagram of the area
where the incident occurred. Appellant also submitted a page from the employee handbook
referring to parking areas, which indicated that staff members would park their privately owned
vehicles in designated employee parking lots. It indicated that any staff member may park in the
Bullhead Park city lot, which was owned by the City of Albuquerque and leased to the
Department of the Air Force, Monday through Friday, 6:00 a.m. to 5:30 p.m. The handbook
noted that the employing establishment police had no jurisdictional authority over the area.
By decision dated August 11, 2011, OWCP denied appellant’s claim finding that her
injury on December 20, 2010 was not sustained while in the performance of duty.
On September 1, 2011 appellant requested a review of the written record by an OWCP
hearing representative. Along with her request, she submitted a time sheet, two maps, 15
photographs and a petition signed by her coworkers indicating that the employee parking lot was
full by 7:30 a.m. causing them to seek parking in the Bullhead Park city lot which was not
monitored and poorly lit after dark.
In a September 1, 2011 narrative statement, appellant indicated that the Bullhead Park
city lot contained signs which used verbiage such as “Staff Overflow,” “Patients” and “Visitors.”
She argued that it is reasonable to surmise that the signs are specifically oriented toward

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informing employees of the employing establishment where to park and that the employing
establishment had some degree or level of control over the parking lot.
By decision dated December 22, 2011, OWCP’s hearing representative affirmed the
August 11, 2011 decision, finding that appellant’s injury did not arise in the performance of duty.
He noted that the injury did not occur on the employing establishment premises and that the
parking lot was open to the general public and free of charge.
LEGAL PRECEDENT
As a general rule under FECA off-premises injuries sustained by employees having fixed
hours and place of work, while going to or coming home from work or during a lunch period, are
not compensable as they do not arise out of or in the course of employment but are merely the
ordinary, nonemployment hazards of the journey itself, which are shared by all travelers.2 This
is in accord with the weight of authority under workers’ compensation statutes that such injuries
do not occur in the course of employment.3
In the course of employment relates to the elements of time, place and work activity. To
arise in the course of employment, an injury must occur at a time when the employee may
reasonably be said to be engaged in her master’s business, at a place when she may reasonably
be expected to be in connection with her employment and while she was reasonably fulfilling the
duties of her employment or engaged in doing something incidental thereto.4
However, exceptions to the rule have been declared by courts and workers’ compensation
agencies. One such exception, almost universally recognized, is the premises rule: an employee
driving to or coming from work is covered under workers’ compensation while on the premises
of the employing establishment. As to what constitutes the premises of the employing
establishment, the Board has stated that the term “premises” is not synonymous with “property.”
The former does not depend on ownership, nor is it necessarily coextensive with the latter. In
some cases premises may include all the property owned by the employing establishment; in
other cases, even though the employing establishment does not have ownership and control of
the place where the injury occurred, the place is nevertheless considered part of the premises.5
The Board has pointed out that factors which determine whether a parking area used by
employees may be considered a part of the employing establishment’s premises include whether
the employer contracted for the exclusive use by its employees of the parking area, whether
parking spaces on the lot were assigned by the employer to its employees, whether the parking
areas were checked to see that no unauthorized cars were parked in the lot, whether parking was
provided without cost to the employees, whether the public was permitted to use the lot and
whether other parking was available to the employees. Mere use of a parking facility, alone, is
2

See Randi H. Goldin, 47 ECAB 708 (1996); Conrad F. Vogel, 47 ECAB 358 (1996).

3

See William L. McKenney, 31 ECAB 861 (1980).

4

See Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

5

See id. at 424. See also Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971).

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not sufficient to bring the parking lot within the premises of the employer. The premises
doctrine is applied to those cases where it is affirmatively demonstrated that the employing
establishment owned, maintained or controlled the parking facility, used the facility with the
owner’s special permission or provided parking for its employees.6
ANALYSIS
Appellant alleged that she sustained bilateral hand, right knee and neck injuries at 7:00
p.m. on December 20, 2010 due to a fall in a parking lot located near the employing
establishment. Her regular work schedule was Mondays from 8:30 a.m. to 7:00 p.m. Appellant
had clocked out from work at the regular end of her workday and was walking to her vehicle in
order to leave work just prior to her fall, which occurred when she tripped over a tree stump in
the Bullhead Park city lot. The record establishes that she had fixed hours and place of work and
that her injury occurred while she was leaving work that evening. Appellant’s status at the time
of injury was that of a fixed premises employee with fixed hours of work coming to work. Her
injury therefore is subject to the going and coming rule generally applicable to such employees.
Unless it occurred on the actual or constructive premises of the employing establishment,
appellant’s injury cannot be considered as sustained in the performance of duty.7
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on December 20, 2010.
This case is similar to the case of M.P.,8 where the employee, a nurse at a VA clinic,
slipped and fell in a parking lot located near the employing establishment. Appellant contended
that the employing establishment premises should have been construed as extending to the
parking lot. However, the Board found that the employing establishment did not own the
parking lot and was not responsible for its maintenance. The parking lot was open to the public
and owned by the State of Missouri. Although employees of the employing establishment used
the lot, they did not pay for use, were not assigned designated areas for their exclusive use and
the employing establishment did not check the lot for unauthorized use. The Board found that
the parking lot was not so connected with the employing establishment as to be considered part
of its premises and held that the employee’s fall was an ordinary, nonemployment hazard of
appellant’s journey to work, which was shared by all travelers.
In the present case, appellant tripped and fell in a parking lot located near the employing
establishment on December 20, 2010 while leaving work after the end of her scheduled shift. As
a general rule, off-premises injuries sustained by employees having fixed hours and place of
work, while going to or coming home from work or during a lunch period, are not compensable
as they do not arise out of and in the course of employment but are merely the ordinary,
nonemployment hazards of the journey itself, which are shared by all travelers.9 Appellant
6

See Diane Bensmiller, 48 ECAB 675 (1997); Rosa M. Thomas-Hunter, 42 ECAB 500 (1991); Edythe Erdman,
36 ECAB 597 (1985); Karen A. Patton, 33 ECAB 487 (1982).
7

See Sallie B. Wynecoff, 39 ECAB 186 (1987).

8

Docket No. 10-54 (issued July 27, 2010).

9

See G.N., Docket No. 12-261 (issued July 23, 2012); Mary Keszler, 38 ECAB 735, 739-40 (1987).

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contended that “Staff Overflow” signs in the parking lot and reference to the parking lot in the
employee handbook made it reasonable to assume that the employing establishment maintained a
certain amount of control over the parking lot. She submitted portions of the employee
handbook which indicated that staff members may park in the south lot west of Bullhead Park
city lot, only between the hours of 6:00 a.m. and 5:30 p.m., Monday through Friday. Appellant
indicated that she fell at 7:15 p.m. The Board finds this evidence is not sufficient to establish
that the premises of the employing establishment should be constructively extended to include
the Bullhead Park city lot.
Appellant did not submit sufficient evidence to establish that her claimed injury occurred
on the premises of the employing establishment. Although the definition of the employing
establishment premises is not solely dependent on the status or extent of legal title or control, she
has not established any relationship of the injury site to her employment. The evidence of record
is insufficient to establish that the area on which appellant fell was owned, controlled,
maintained or leased by the employing establishment. The parking lot was not part of the actual
premises of the employing establishment. Under the circumstances in this case, it cannot be
stated that appellant’s injury occurred on the constructive premises of the employing
establishment.
The Board has held that, under special circumstances, the employment premises are
constructively extended to hazardous conditions which are proximately located to the premises
and therefore may be considered as hazards of the employing establishment.10 The primary
consideration in applying this rule is whether the conditions giving rise to the injury are causally
connected to the employment.11
The evidence reveals that the parking lot where appellant fell was not owned, leased,
operated or maintained by the employing establishment, but rather was owned, operated and
maintained by the City of Albuquerque and leased to the Department of the Air Force, entities
distinct from the employing establishment. The record establishes that the employing
establishment had no jurisdictional authority over the parking lot area. Although employees of
the employing establishment used the lot, they did not pay for use and were not assigned
designated areas for their exclusive use nor did the employing establishment check the lot for
unauthorized use.12 The evidence does not establish that the premises should be constructively
extended to the parking lot in this case. The Board finds that the parking lot was owned by the
City of Albuquerque leased to the Department of the Air Force and also open for use by the
general public.
Appellant has not established that any of the exceptions to the general rule regarding offpremises injuries are applicable. As noted above, she was leaving work when she fell on
December 20, 2010 and she has not shown that she was performing work duties or actions
10

See Randi H. Goldin, supra note 2 at 711.

11

Id. See also William L. McKenney, supra note 3.

12

See Roma A. Mortenson-Kindschi, supra note 4. See also Rosa M. Thomas-Hunter, supra note 6 at 504-05
(1991) (mere use of a parking facility, alone, is not sufficient to bring the parking lot within the premises of the
employing establishment).

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incidental to her work duties at the time of the alleged injury. The evidence indicates that
appellant’s claimed injury occurred away from her place of employment while she was engaged
in nonemployment activities and encountered hazards that were shared by the general public.
Thus, the Board finds that the December 20, 2010 employment incident constitutes an
off-premises noncompensable injury that occurred while appellant was going home from work,
which is not compensable as it did not arise out of and in the course of her federal employment,
but out of the ordinary nonemployment hazards of the journey itself which are shared by all
travelers.13 Consequently, appellant failed to establish that her injuries were sustained while in
the performance of duty.
On appeal, appellant contends that she was in the performance of duty at the time of the
injury. For the reasons stated above, the Board finds that her argument is not substantiated.
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 did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on December 20, 2010.

13

See Rosa M. Thomas-Hunter, supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT the December 22, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lompoc, CA, Employer
__________________________________________

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Appearances:
Raquell Krueger-Denio, for the appellant
Office of Solicitor, for the Director

Docket No. 09-816
Issued: January 14, 2010

Case Submitted on the Record

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

JURISDICTION
On February 4, 2009 appellant, through her representative, filed a timely appeal from a
December 5, 2008 merit decision of the Office of Workers’ Compensation Programs which
affirmed the termination of her wage-loss benefits for refusing suitable work. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the appeal.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
July 24, 2007 on the grounds that she refused an offer of suitable work pursuant to 5 U.S.C.
§ 8106(c).
On appeal, appellant’s representative contends that the job offer was not suitable.
FACTUAL HISTORY
On February 27, 1997 appellant, then a 40-year-old letter carrier, filed an occupational
disease claim for carpal tunnel syndrome and problems involving her neck, shoulders and back
as employment related. The Office accepted her claim for left arm strain and bilateral shoulder

calcific tendinitis, for which she underwent a right shoulder arthroscopy. By letter dated
April 12, 2004, it placed appellant on the periodic rolls in receipt of wage loss for total disability.
In a July 19, 2006 report, Dr. Margaret E. Elfering, a second opinion Board-certified
orthopedic surgeon, confirmed the diagnoses of right shoulder calcific tendinitis and left
shoulder tendinitis. Based upon her review of the medical evidence, statement of accepted facts
and findings on physical examination, Dr. Elfering found that appellant was capable of working
provided there was no casing mail, no over the shoulder height work, no full reaching with the
arms and no lifting more than 10 pounds. In an attached July 24, 2006 work capacity evaluation
(Form OWCP-5c), Dr. Elfering set forth appellant’s work restrictions, noting that she was
capable of an eight-hour day. The restrictions included no full reaching, no reaching at shoulder
level, no pushing overhead and no pulling overhead.
On September 1, 2006 Dr. C. Clay Wellborn, an attending Board-certified orthopedic
surgeon, diagnosed right arm strain. On physical examination, he noted a normal range of
motion. Appellant related to the physician that her symptoms were made worse with overhead
use. Dr. Wellston advised that appellant might “require intermittent additional symptomatic
care” but that no additional treatment was currently planned.
On October 10, 2006 Dr. Elfering stated that appellant continued to have residuals of her
accepted conditions. She noted that appellant had restrictions on the use of her shoulders which
included no reaching out or above shoulder height and no reaching below shoulder level.
On November 16, 2006 the employing establishment offered appellant a job as a
modified carrier technician based on Dr. Elfering’s reports. The job was sedentary, required no
full reaching above or below shoulder level, no lifting more than 10 pounds and no overhead
pulling or pushing. The employing establishment notified her that the position was presently
available and would remain so until the Office made a suitability determination. The job
description listing the duties of the offered position identified the position as stamps by mail
(SBM). The duties of the position included: counting the incoming number of stamps by mail
order forms; opening the stamp by mail envelopes with an electronic cutter; pulling checks and
order forms from the envelopes and sorting them; taking and putting a self-adhesive address
label on a Tyvek envelope; responding to customers and answering telephones with a hand free
telephone; minimal and light typing of information into a computer order form; using a
calculator to total the checks placed in the computer; and sealing the Tyvek envelope by pulling
the adhesive strip from the envelope’s flap and folding it over. Attached to the proposed job
offer was a form appellant was to provide to Dr.Wellborn for his opinion on whether she could
perform the duties of the offered position.
On April 30, 2007 the Office advised appellant of its determination that the position
offered by the employing establishment was suitable. It noted that the November 16, 2006 job
offer conformed to her physical restrictions. The Office notified appellant that her compensation
could be terminated if she did not accept the position or provide good cause for not doing so
within 30 days of the date of the letter.
In a letter dated May 24, 2007, appellant’s representative informed the Office that neither
appellant nor she had received a copy of the modified position. Additional time to respond to the

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job offer was requested as appellant had a June 6, 2007 appointment with Dr. Wellborn.
Appellant’s representative contended that the offered position did not take into consideration her
nonemployment depression and an accepted right knee condition.
On May 29, 2007 appellant rejected the offered position. She contended that it exceeded
her medical restrictions, did not consider all her medical conditions, her commute and driving
restrictions or the side effects of her medications.
Appellant submitted the June 4, 2007 report of Robert Bannister, MA, MFT, who advised
that appellant had a history of major depression for which she received treatment. Mr. Bannister
advised that appellant was totally disabled.
On June 6, 2007 Dr. Wellborn completed the form forwarded by the employing
establishment. He noted that he disapproved of the job offer for the reason that it did not meet
appellant’s current work limitations. On June 11, 2007 Dr. Wellborn submitted an OWCP-5
work capacity evaluation, advising that appellant was limited to a maximum of lifting and
reaching five pounds below the shoulder, no reaching or lifting above the shoulder, one hour in
operating a motor vehicle, and four- hour work restrictions of pushing and pulling no more than
five pounds.
In a June 22, 2007 letter, the Office advised appellant that it had considered her reasons
for not accepting the position and found them to be unacceptable. It noted that Mr. Bannister
was not a physician and his opinion did not constitute medical evidence. The Office noted that
the most recent medical report from Dr. Wellborn was dated September 1, 2006 and did not
provide objective findings. Appellant was advised that her compensation would be terminated if
she did not accept the job offer within 15 days of the letter.
In a July 5, 2007 report, Dr. Wellborn reported that he disapproved of the job offer as
currently extended to appellant. He advised that there should be no reaching above shoulder
level and that she was limited to a maximum of four hours a day of intermittent pushing and
pulling less than five pounds. Dr. Wellborn noted that driving from her residence to work would
exceed a one-hour driving limitation.
In a July 24, 2007 decision, the Office terminated appellant’s compensation effective that
day on the grounds that she had refused an offer of suitable work. It found that the job
limitations were based on the opinion of Dr. Elfering and that the July 5, 2007 report of
Dr. Wellborn was not rationalized as the physician did not set forth any findings from physical
examination. The weight of medical opinion established that the job offer was suitable.
In a July 31, 2007 letter, appellant’s representative requested a review of the written
record before an Office hearing representative.
On November 6, 2007 appellant’s representative presented arguments as to why the job
was not suitable, contending that the position was not within appellant’s physical restrictions and
that the Office failed to comply with its procedures regarding the suitability determination.
In an October 15, 2007 report, Dr. Wellborn reviewed his treatment of appellant since
2001 and that he had reviewed the November 16, 2006 job offer. He noted that appellant had
3

physical limitations due to restrictions based on her thoracic outlet syndrome, knee conditions1
and upper extremity conditions. Dr. Wellborn reported that appellant had permanent restrictions
of no repetitive reaching overhead or away from the body, no machinery use, no driving more
than one hour one way and no lifting more than five pounds overhead or away from the body.
He stated that pulling envelopes away from the machine was contrary to his limitation of no
reaching away from the body, no pulling and no working with machinery. Dr. Wellborn
reviewed the job duties listed under the position description and stated why they exceed her
restrictions by requiring overhead reaching or pulling or were over her weight restriction. As to
the restriction on driving, he stated it was imposed to limit the amount of time appellant was
required to hold her upper extremities up from her body. Dr. Wellborn also noted that the
medication appellant was taking caused drowsiness as a side effect.
By decision dated December 5, 2007, an Office hearing representative affirmed the
July 24, 2007 decision terminating appellant’s wage-loss benefits finding that she refused an
offer of suitable work.
On September 9, 2008 appellant requested reconsideration of the December 5, 2007
decision. She submitted a March 18, 2008 report from Dr. Paul Willis, a neurologist, who noted
that he had previously examined appellant in 1998 and noted her complaint of predominately left
shoulder and arm pain without clear cervical, radicular or thoracic outlet patterns. Dr. Willis
presented findings on physical examination and noted that prior diagnostic studies had shown
degenerative disc disease at C5-6 and C6-7 with prominent anterior and posterior spurring. He
diagnosed chronic shoulder dysfunction, degenerative disease and noted appellant’s other
diagnoses of depression, lupus and hypertension. While Dr. Willis could not find evidence of
neurologic deficit, there was limitation with effortful positional movement of the shoulder. He
noted that appellant was attempting to pursue an employment job that complied with her
orthopedic restrictions.
Appellant also submitted reports from Dr. Katherine Hamilton, Ph.D., a clinical
psychologist, who noted treatment for depression since 1990 to 1991. Dr. Hamilton disapproved
of the job offer as appellant was found totally disabled due to depression.
By decision dated December 5, 2008, the Office denied modification of the December 5,
2007 decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation.2 Under section 8106(c)(2) of the Act, the Office may terminate
wage-loss compensation of a partially disabled employee who refuses or neglects to work after
suitable work is offered to, procured by or secured for the employee.3 To support termination,
1

Dr. Wellborn noted that appellant had a separate claim for this, but does not note the claim number.

2

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

3

5 U.S.C. § 8106(c)(2); see also Mary E. Woodard, 57 ECAB 211 (2005); Geraldine Foster, 54 ECAB
435 (2003).

4

the Office must show that the work offered was suitable and must inform the employee of the
consequences of refusal to accept such employment.4 Section 8106(c) will be narrowly
construed as it serves as a penalty provision, which may bar an employee’s entitlement to
compensation based on a refusal to accept a suitable offer of employment.5
Office regulations provide that, in determining what constitutes suitable work for a
particular disabled employee, the Office should consider the employee’s current physical
limitations, whether the work is available within the employee’s demonstrated commuting area,
the employee’s qualifications to perform such work and other relevant factors.6 It is well
established that the Office must consider preexisting and subsequently acquired conditions in the
evaluation of suitability of an offered position.7 The issue 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 resolved by the medical evidence.8 Furthermore, if
medical reports document a condition which has arisen since the compensable injury and the
condition disables the employee, the job will be considered unsuitable.9
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Office shall appoint a third physician who shall
make an examination.10
ANALYSIS
The Office accepted that appellant’s claim for left arm strain, right shoulder calcific
tendinitis and left shoulder tendinitis and authorized surgery. It terminated appellant’s
compensation by decision dated July 24, 2007 on the grounds that she refused an offer of
suitable work. The Board finds that the Office did not meet its burden of proof to terminate
compensation benefits as there was a conflict in medical opinion as to appellant’s work
restrictions.
The Office found that the weight of medical opinion regarding appellant’s work
restrictions was represented by Dr. Elfering, a second opinion physician. The record reflects that
Dr. Elfering found that appellant was capable of full-time work in a limited capacity and
provided limitations. She limited lifting to 10 pounds maximum with no casing, no over the
shoulder height work and no full reaching.
4

T.S., 59 ECAB ___ (Docket No. 07-1686, issued April 24, 2008); Ronald M. Jones, 52 ECAB 190 (2000).

5

Richard P. Cortes, 56 ECAB 200 (2004); Joan F. Burke, 54 ECAB 406 (2003).

6

20 C.F.R. § 10.500(b).

7

Richard P. Cortes, supra note 5.

8

Id.; Bryant F. Blackmon, 56 ECAB 752 (2005).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(b)(4) (July 1997).
10

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

5

The employing establishment based the modified-duty job offer on the work restrictions
listed by Dr. Elfering. In extending the job offer to appellant on November 16, 2006, it provided
her with a form to be completed by her attending physician addressing whether he approved of
the job description. Dr. Wellborn completed the form in June 2007, advising that the work
limitations described in the job offer were not consistent with appellant’s limitations. He advised
that appellant had a maximum lifting capacity of five pounds and imposed greater limitations on
the number of hours she could push or pull to four hours a day. Dr. Wellborn advised no
overhead lifting or reaching above or below shoulder level. He also limited driving to one hour a
day.
At the time the Office terminated appellant’s compensation on July 24, 2007, there was a
conflict in medical opinion between appellant’s attending physician and the second opinion
physician as to her capacity for employment, work limitations and the suitability of the modifiedduty position offered. Based on the evidence of record, the Board finds that the Office
improperly determined that the modified position offered to appellant constituted suitable work
within her physical limitations. Consequently, the Office did not meet its burden of proof to
terminate appellant’s wage-loss compensation.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
monetary compensation benefits on the grounds that she refused an offer of suitable work under
5 U.S.C. § 8106(c).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 5, 2008 be reversed.
Issued: January 14, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Ana, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0225
Issued: July 23, 2019

Case Submitted on the Record

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

JURISDICTION
On November 8, 2018 appellant filed a timely appeal from a June 27, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated September 1, 2017, to 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.
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
On May 8, 2015 appellant, then a 55-year-old mail processing clerk, filed a traumatic injury
claim (Form CA-1) alleging that on March 13, 2015 he sustained a right lumbar injury with right1

5 U.S.C. § 8101 et seq.

sided radiculopathy when sweeping, loading, and lifting mail while in the performance of duty.
He did not stop work.
In a report dated May 8, 2015, Dr. Gary Linnemann, a treating Board-certified family
practitioner, diagnosed a lumbar strain. He restricted appellant to limited-duty work.2 Appellant
accepted a modified-duty position on May 12, 2015.
By decision dated June 23, 2015, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
conditions and the accepted March 13, 2015 employment incident.
On November 13, 2015 appellant requested reconsideration and submitted additional
medical evidence.
In a report dated September 29, 2015, Dr. Basimah Khulusi, a treating Board-certified
physiatrist, noted appellant’s history of a 2010 back injury3 and the March 13, 2015 employment
incident. She diagnosed lumbar radiculopathies, lumbar spondylolisthesis, and lumbar spinal
stenosis causally related to the March 13, 2015 employment incident. Dr. Khulusi explained that
twisting while processing mail had created torque forces on disc spaces already under excessive
loading forces, causing annular disc protrusions and spinal stenosis. She submitted periodic
reports through February 8, 2016 restricting appellant to limited-duty work.
By decision dated February 11, 2016, OWCP vacated its prior decision, as the evidence
submitted was sufficient to warrant modification. By separate decision dated February 11, 2016,
it accepted the claim for a lumbar strain. OWCP paid his compensation commencing August 3,
2015 for intermittent wage loss to attend medical appointments and physical therapy treatments.
On February 29, 2016 appellant requested reconsideration. In support of his request, he
submitted a report dated February 18, 2016 by Dr. Khulusi. She opined that the March 13, 2015
employment incident had increased the severity of appellant’s preexisting lumbar disc protrusions,
causing a disc extrusion at L5-S1 and right-sided lumbar radiculopathy.
On May 20, 2016 OWCP obtained a second opinion regarding the nature and extent of the
accepted lumbar injuries from Dr. Aubrey Swartz, a Board-certified orthopedic surgeon.
Dr. Swartz reviewed the medical record and statement of accepted facts. On examination, he found
no lumbar tenderness on palpation, negative straight leg raising tests bilaterally, and a normal
neurologic examination of the lower extremities. Dr. Swartz opined that the March 13, 2015
employment incident had caused a lumbar strain with temporary aggravation of preexisting
2

An August 10, 2015 lumbar magnetic resonance imaging (MRI) scan demonstrated disc protrusions at L2-3, L34, and L4-5 causing moderate-to-severe stenosis at each level. September 11, 2015 electrodiagnostic studies of the
lower extremities demonstrated right L4 chronic radiculopathy, bilateral L5 subacute radiculopathy with ongoing
denervation, and bilateral S1 subacute radiculopathy.
3

Appellant has a prior claim involving an August 2, 2010 injury. OWCP assigned that claim File No. xxxxxx493
and accepted it for lumbar strain. Appellant’s claims have not been administratively combined. An October 27, 2011
lumbar MRI scan demonstrated mild central canal stenosis with disc protrusions at L1-2 and L2-3, and mild left L5S1 foraminal stenosis.

2

multilevel spinal conditions that had ceased no later than May 8, 2015. He explained that spinal
stenosis was an idiopathic process unrelated to trauma or acute injury.
By decision dated June 7, 2016, OWCP vacated its February 11, 2016 reconsideration
decision, finding that the evidence submitted on reconsideration was sufficient to modify the prior
decision. By separate decision dated June 7, 2016, it expanded its acceptance of the claim to
include a temporary aggravation of preexisting disc herniations/protrusions at L4-5 and L5-S1,
resolved as of May 8, 2015.
On September 6, 2016 appellant requested reconsideration. In support of his request, he
provided an August 18, 2016 report by Dr. Khulusi. Dr. Khulusi argued that Dr. Swartz’s opinion
was erroneous as he failed to recognize that appellant’s traumatic injury had resulted in spinal
stenosis. She contended that the accepted lumbar strain had caused soft tissue swelling,
compromising the nerve roots and spinal canal, which resulted in lumbar radiculopathy.
Dr. Khulusi also asserted that the aggravation of preexisting degenerative disc disease should be
considered permanent.
By decision dated December 1, 2016, OWCP denied modification. It found that
Dr. Khulusi’s opinion was not sufficiently reasoned to outweigh Dr. Swartz’s opinion.
On January 3, 2017 appellant requested reconsideration. He submitted reports from
Dr. Khulusi dated September 6 and December 7, 2016 diagnosing permanent aggravation of disc
protrusions/herniations, and permanent aggravation of spinal stenosis. In a narrative report dated
December 22, 2016, Dr. Khulusi contended that there was a conflict of medical opinion between
herself and Dr. Swartz regarding the nature and extent of the employment injuries.
By decision dated February 23, 2017, OWCP denied modification as the additional
evidence submitted was insufficient to outweigh Dr. Swartz’s opinion.
On March 20, 2017 appellant requested reconsideration. He submitted a March 9, 2017
report by Dr. Khulusi contending that her experience as a physiatrist was more germane to
appellant’s case than Dr. Swartz’s training as an orthopedic surgeon. In an April 5, 2017 report,
Dr. Khulusi reiterated her previous diagnoses and maintained appellant on modified duty.
By decision dated May 8, 2017, OWCP denied modification of its prior decision.
On June 5, 2017 appellant requested reconsideration. In support of his request, he provided
a May 25, 2017 report from Dr. Khulusi, requesting that OWCP expand its acceptance of the claim
to include lumbar radiculopathies, permanent aggravation of disc protrusions/herniations, and
permanent aggravation of spinal stenosis. Dr. Khulusi again contended that there was a conflict
of medical opinion between Dr. Swartz and herself regarding the nature and extent of the
employment-related conditions. In August 2, 2017 reports, she repeated previous diagnoses and
continued to restrict appellant to modified-duty work.
By decision dated September 1, 2017, OWCP denied modification of its prior decision.
On March 29, 2018 appellant requested reconsideration. In support of his request, he
submitted a March 22, 2018 report from Dr. Khulusi, reiterating her August 18, 2016 opinion that
3

a traumatic lumbar injury could cause spinal stenosis. Dr. Khulusi repeated her disagreement with
Dr. Swartz’s opinion that a spinal injury could not cause spinal stenosis. She enclosed medical
literature on spinal stenosis which indicated that spinal injuries could cause swelling and pressure
on the spinal cord and nerve roots.
By decision dated June 27, 2018, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was insufficient to warrant review of its September 1, 2017
decision. It found that his request for reconsideration did not raise new, substantial legal questions
nor include new, relevant evidence. OWCP further found that Dr. Khulusi’s March 22, 2018
report merely repeated her prior arguments and opinions and was therefore cumulative in nature.
It also found that the medical literature submitted was irrelevant or immaterial to the claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.4
A request for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought.5 If it chooses to grant reconsideration, it reopens and reviews
the case on its merits.6 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.7
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).
In his application for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law, and he did not advance a new and relevant legal
argument not previously considered. The underlying issue on appeal is whether the medical
evidence of record establishes that OWCP should expand its acceptance of the claim to include
lumbar radiculopathies, permanent aggravation of disc protrusions/herniations, and permanent
aggravation of spinal stenosis. Appellant submitted Dr. Khulusi’s March 22, 2018 report
reiterating her August 18, 2016 opinion. The Board has held that the submission of evidence or
argument which repeats or duplicates evidence or argument already in the case record does not
4
20 C.F.R. § 10.608(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
5

20 C.F.R. § 10.607(a).

6

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

7

Id. at § 10.608(b); H.H., supra note 4; E.R., Docket No. 09-1655 (issued March 18, 2010).

4

constitute a basis for reopening a case.8 Consequently, appellant is not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under section
10.606(b)(3).
In support of his reconsideration request, appellant’s physician, Dr. Khulusi submitted
medical literature on spinal stenosis. The Board has held that medical literature from publications
is of no evidentiary value in establishing causal relationship between a claimed condition and
employment factors because such materials are of general application and are not determinative of
whether the specifically claimed condition is related to the particular employment factors alleged
by the employee.9
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP. Consequently, he is not entitled to a review of the merits of his claim based
on the third above-noted requirements under 20 C.F.R. § 10.606(b)(3). The Board, accordingly,
finds that pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.10
On appeal, appellant contends that Dr. Khulusi’s March 22, 2018 letter had proven that
Dr. Swartz erred by opining that spinal stenosis could not be caused by an injury. This argument,
however, pertains to the merits of the claim. As explained above, the Board lacks jurisdiction over
the merits of this case.
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).

8

J.B., Docket No. 18-1531 (issued April 11, 2019); see L.R., Docket No. 18-0400 (issued August 24, 2018);
Candace A. Karkoff, 56 ECAB 622 (2005).
9
F.D., (S.D.), Docket No. 18-1528 (issued April 10, 2019); A.S., Docket No. 18-0376 (issued July 18, 2018);
William C. Bush, 40 ECAB 1064, 1075 (1989).
10

J.B., supra note 8; M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when an application for
reconsideration does not meet at least one of the three requirements enumerated under 20 C.F.R. § 10.606(b), OWCP
will deny the application for reconsideration without reopening the case for a review on the merits).

5

ORDER
IT IS HEREBY ORDERED THAT the June 27, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 23, 2019
Washington, DC

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

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

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

6