United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Poland, OH, Employer
__________________________________________

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

Docket No. 16-0217
Issued: April 4, 2016

Case Submitted on the Record

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

JURISDICTION
On November 16, 2015 appellant, through counsel, filed a timely appeal of a May 21,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed since the last merit decision dated February 27, 2014, 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 to consider the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
Appellant, a 41-year-old postal clerk, injured her left arm, right shoulder, and neck when
she passed out and fell on July 19, 2008. She filed a traumatic injury claim (Form CA-1) for
1

5 U.S.C. § 8101 et seq.

benefits on July 25, 2008, which OWCP accepted for left arm contusion, cervical strain, right
shoulder strain, and right rotator cuff tear with impingement.
On June 9, 2009 appellant underwent arthroscopic surgery on her right shoulder to
ameliorate right shoulder impingement syndrome and acromioclavicular joint degenerative joint
disease, which was performed by Dr. Joseph Stefko, Board-certified in orthopedic surgery. She
has not worked since her June 9, 2009 surgery. OWCP commenced payment for temporary total
disability compensation and placed appellant on the periodic rolls as of July 5, 2009.
Dr. Ronald J. Hartwig, a treating physician specializing in geriatric medicine, reported on
November 8, 2010 that appellant required permanent work restrictions. OWCP then referred
appellant to Dr. Manhal A. Ghanma, an orthopedic surgeon, for a second opinion evaluation to
determine appellant’s disability status. Dr. Ghanma reported on April 21, 2011 that appellant’s
accepted conditions had resolved. OWCP thereafter found a conflict in the medical opinion
evidence and referred appellant to Dr. Mark S. Berkowitz, Board-certified in orthopedic surgery.
Dr. Berkowitz opined in a September 22, 2011 report that appellant could return to work without
restrictions and that appellant did not require further medical treatment.
By decision dated October 14, 2011, OWCP terminated appellant’s compensation,
effective October 23, 2011, finding that she was no longer disabled and had no residuals from
her accepted July 19, 2008 employment injury.
By letter dated October 26, 2011, appellant, through counsel, requested a hearing before
an OWCP hearing representative, which was held on February 9, 2012.
By decision dated May 8, 2012, an OWCP hearing representative affirmed the
October 14, 2011 termination decision.
On August 3, 2012 appellant filed a claim for schedule award, Form CA-7, based on a
partial loss of use of her right upper extremity.
In support of her schedule award claim appellant submitted an October 16, 2012 report
from Dr. John L. Dunne, an osteopathic physician. Dr. Dunne related that he evaluated appellant’s
permanent impairment pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (sixth edition). He concluded that appellant had one percent permanent
impairment of the cervical spine. Dr. Dunne then assessed appellant’s right shoulder impairment
pursuant to Table 15-34, Table 15-35, and Table 15-7 for loss of range of motion. He concluded
that appellant had 16 percent permanent impairment of the right shoulder.
OWCP on August 22, 2012 advised appellant of the deficiencies in her evidence.
Appellant did not respond within the time allotted.
By decision dated November 29, 2012, OWCP found that appellant had no ratable
impairment of the right upper extremity causally related to her accepted right shoulder condition
and therefore was not entitled to a schedule award.
By letter dated December 4, 2012, counsel requested an oral hearing. In a decision dated
February 6, 2013, the OWCP hearing representative vacated the November 29, 2012 decision
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and remanded the case to the district office for further development of the medical evidence,
based upon Dr. Dunne’s report.
In a March 12, 2013 report, Dr. Brian Tonne, an OWCP medical adviser and a Boardcertified orthopedic surgeon, found that appellant had 14 percent permanent impairment of the
right upper extremity from her accepted right shoulder condition pursuant to the A.M.A., Guides.
In a report dated April 17, 2013, Dr. Dunne advised that he concurred with Dr. Tonne’s
rating of 14 percent right upper extremity impairment.
By letter dated May 3, 2013, OWCP advised Dr. Dunne that it had terminated appellant’s
medical benefits and compensation for wage loss in its October 14, 2011 decision and had found
that she had no residuals from her accepted conditions. It noted that, once a determination was
made which terminates continuing entitlement to compensation and medical benefits because the
effects of the injury ceased and that there are no residuals, entitlement to a schedule award
ceases. OWCP advised Dr. Dunne that the only way appellant would be entitled to an
impairment rating would be if it could be medically proven that the 14 percent impairment rating
was effective before October 23, 2011, when her benefits were terminated. It therefore asked
him to provide a medical opinion including rationale for why and how the 14 percent impairment
rating should be rated before October 23, 2011.
In a report dated May 21, 2013, Dr. Dunne advised that there was nothing in his reports
which demonstrated an ongoing impairment that would indicate that this impairment somehow
occurred after 2008; and nothing in his report or in his records that would suggest that the
July 19, 2008 employment injury had completely resolved and that her shoulder impairment had
developed postoperatively after that date.
By decision dated July 10, 2013, OWCP denied modification of the November 29, 2012
decision. It found, based on OWCP’s October 23, 2011 determination that appellant had no
residuals from the July 19, 2008 employment injury, that there was no basis to show permanent
impairment from an accepted condition. Therefore, appellant’s entitlement to a schedule award
had ceased.
By letter dated July 15, 2013, appellant, through counsel, requested a hearing which was
held on December 18, 2013. By decision dated February 27, 2014, an OWCP hearing
representative affirmed the July 10, 2013 decision denying a schedule award.
In a December 22, 2014 report, Dr. Dunne advised that he did not have an opportunity to
review appellant’s postoperative medical records, including her physical examinations at the
completion of her postoperative physical therapy and subsequent discharge from the care of her
surgeon. He noted that, when he did examine her, there was evidence of impairment in motion
and strength testing concerning the right shoulder. Dr. Dunne opined that a fairly common
outcome of a shoulder subacromial decompression and distal clavicle excision procedure that the
patient is left with less than full recovery, with generally some degree of motion loss above the
horizontal and a degree of weakness in certain shoulder girdle muscles. He advised that his
October 16, 2012 examination of appellant provided objective evidence of impairment consistent
with an operated shoulder injury, with typical residual impairments. Dr. Dunne concluded that

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to determine whether appellant had impairment resulting directly from her injury to the right
shoulder, he would have to review the records of her treating physician from 2009 as well as the
reports from the operative surgeon.
By letter dated and received on January 27, 2015, appellant’s counsel requested
reconsideration.
By decision dated May 21, 2015, OWCP denied appellant’s request for reconsideration,
finding that it neither raised substantive legal questions, nor included new and relevant evidence
sufficient to require OWCP to review its prior decision.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.3 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant’s application for review must be received within one year of the
date of that decision.4 When a claimant fails to meet one of the above standards, OWCP will
deny the application for reconsideration without reopening the case for review on the merits.5
ANALYSIS
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; nor has she advanced a relevant legal argument not previously
considered by OWCP. She submitted the December 22, 2014 report of Dr. Dunne. The Board
has held that the submission of evidence which does not address the particular issue involved in
the case does not constitute a basis for reopening the claim.6 The evidence submitted in
connection with appellant’s January 27, 2015 reconsideration request, however, is not pertinent to
the issue on appeal; i.e., whether she had any ratable, permanent impairment stemming from her
accepted July 19, 2008 right shoulder injury. Dr. Dunne’s report merely reiterated his previously
held opinion regarding his October 16, 2012 physical examination findings. He did not evaluate
appellant’s permanent impairment, and he indicated that he could not provide further opinion
regarding appellant’s entitlement to a schedule award, without review of appellant’s earlier
medical records. Dr. Dunne’s opinion was considered by OWCP in previous merit decisions and

2

Section 8128 (a) of FECA provides that the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

See David J. McDonald, 50 ECAB 185 (1998).

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found insufficient to establish entitlement to a schedule award.
cumulative and duplicative.7

His report is therefore

Appellant’s reconsideration request failed to show that OWCP erroneously applied or
interpreted a point of law, and failed to advance a point of law or fact not previously considered
by OWCP. OWCP did not abuse its discretion in refusing to reopen appellant’s claim for a
review on the merits in its May 21, 2015 decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for
reconsideration on the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 2016
Washington, DC

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

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

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

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See Patricia G. Aiken, 57 ECAB 441 (2006).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, RUGBY STATION
POST OFFICE, Brooklyn, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1024
Issued: January 20, 2022

Case Submitted on the Record

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

JURISDICTION
On April 13, 2020 appellant, through counsel, filed a timely appeal from a March 4, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the March 4, 2020 decision. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 31, 2019, finding that she no longer had
disability or residuals causally related to her accepted bilateral plantar fibromastosis; and
(2) whether appellant has met her burden of proof to establish continuing employment-related
disability or residuals on or after March 31, 2019.
FACTUAL HISTORY
On March 6, 2001 appellant, then a 27-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed severe bilateral plantar fasciitis due to factors of
her federal employment. She noted that she first became aware of her condition on July 20, 2000,
and realized its relation to her federal employment on July 24, 2000. Appellant stopped work on
February 10, 2001. She underwent a left foot plantar fasciotomy on March 9, 2001.
On June 6, 2001 OWCP accepted the claim for plantar fasciitis of the left foot. It paid
appellant wage-loss compensation on the periodic rolls effective December 29, 2002. On July 20,
2003 OWCP expanded the acceptance of the claim to include bilateral plantar fasciitis.
On October 23, 2018 OWCP referred appellant, together with a statement of accepted facts
(SOAF), the medical record, and a list of questions, to Dr. James Schwartz, an orthopedic surgeon,
for a second opinion evaluation to obtain an assessment of appellant’s work-related condition, any
related disability, and appropriate treatment. It explained that the accepted conditions were listed
as “plantar fibromatosis, left; plantar fibromatosis, right.”
In a November 2, 2018 report, Dr. Schwartz noted appellant’s history of injury and medical
treatment. He noted that the accepted condition was bilateral plantar fasciitis. Dr. Schwartz also
diagnosed nonphysiologic pain behavior, unrelated to her employment as a letter carrier. He
opined: “to consider this plantar fasciitis related to two to three months as letter carrier is absurd.
At the present time, [appellant’s] exam[ination] and history taking is completely nonphysiologic
both by exam[ination] and history taking. I see no evidence of fibromatosis, but I also cannot get
close enough to examine her feet for plantar fibromatosis. Regardless, the diagnosis of
fibromatosis would in no way be related to an occupational disease.” Dr. Schwartz indicated that
the area of pain and the area operated on was not related to plantar fasciitis, that appellant did not
have plantar fascial origin pain or tenderness, but rather had global pain, particularly on the left
lower extremity. He further opined, “very succinctly, in my opinion, not only does she not have
plantar fasciitis, she cannot possibly have plantar fasciitis as an occupational disease after what
appears to be two to three months on the job and indeed started within five days of working. The
findings now are so global as to be totally unrelated to plantar fasciitis. I find no evidence of any
disease process related to her work as a letter carrier.” Dr. Schwartz noted that appellant’s surgery
incision was along the arch of her left foot and was two inches away from the plantar fascial origin.
He diagnosed plantar fasciitis accepted as related to an occupational disease and marked
nonphysiologic pain behavior, unrelated to employment as a letter carrier. In response to whether
appellant continued to suffer residuals of a work-related condition, Dr. Schwartz opined “I find
that there was no work injury.” In response to the period of total disability due to the work-related
condition and whether appellant had any physical limitations, he responded “I find no work-related

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condition.” Dr. Schwartz opined “[o]rthopedically, she has no work-related injury.” He further
noted “I find no identifiable work injury.”
In a December 17, 2018 report, Dr. Beth Winke, Board-certified in physical medicine and
rehabilitation, noted that appellant ambulated with a cane. She related that appellant’s feet
continued to swell and that she was able to ambulate, care for herself, and perform activities of
daily living by using the medication Norco. Dr. Winke diagnosed left foot pain, plantar fasciitis,
and long-term drug therapy. She noted that compression stockings were ordered.
On January 18, 2019 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits because her accepted employment condition had resolved with no disabling
residuals.4 It found that the weight of medical evidence rested with the report of Dr. Schwartz,
who found that appellant had no residuals or continuing disability from work. OWCP afforded
appellant 30 days to submit additional evidence or argument, in writing, if she disagreed with the
proposed termination.
In a letter dated January 31, 2019, appellant disagreed with the proposed termination and
the findings of the second opinion physician. She argued that she continued to suffer from her
work-related conditions.
OWCP received additional evidence. In January 29, 2019 report, Dr. Michael A. Caines,
an orthopedist, diagnosed plantar fascia syndrome and foot pain. In a March 18, 2019 report
Dr. Winke, noted her continued treatment of appellant for left foot pain and plantar fasciitis.
By decision dated March 20, 2019, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective March 31, 2019. The weight of the medical evidence was accorded
to the opinion of the second opinion physician, Dr. Schwartz.
OWCP continued to receive medical evidence from appellant’s treating physicians. On
January 20, 2020 appellant, through counsel, requested reconsideration. He submitted arguments
and an undated report from a psychiatrist and requested expansion of appellant’s claim.
By decision dated March 4, 2020, OWCP denied modification of its March 20, 2019
termination decision. It found that the evidence of record was insufficient to establish that
appellant had continuing disability due to the accepted employment-related conditions.5
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it bears the burden of proof to justify
termination or modification of benefits.6 It may not terminate compensation without establishing

4

The proposal to terminate indicated that the accepted conditions were plantar fibromatosis on the left and right.

5

The decision noted that the accepted conditions were plantar fibromatosis on the left and right.

6

R.P., Docket No. 17-1133(issued January 18, 2018); D.W., Docket No. 18-0123(issued October 4, 2018); S.F., 59
ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (20005); Paul L. Stewart, 54 ECAB 824 (2003).

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either that the disability has ceased or that it is no longer related to the employment. 7 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 31, 2019.
In his November 2, 2018 second opinion report, Dr. Schwartz noted that the accepted
condition was plantar fasciitis and opined that appellant, “cannot possibly have plantar fasciitis as
an occupational disease after what appears to be two to three months on the job and indeed started
within five days of working.” He further opined that, “the diagnosis of fibromatosis would in no
way be related to an occupational disease.” However, OWCP had accepted appellant’s
occupational disease claim for bilateral plantar fasciitis. The accepted condition was included in
the SOAF that was provided to Dr. Schwartz. As his opinion disregarded that appellant’s
conditions were accepted by OWCP. OWCP procedures9 provide that, when a physician selected
by OWCP renders a medical opinion based on a SOAF 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. As Dr. Schwartz did not give due regard to
the conditions as accepted by OWCP, his opinion was not based on a proper factual background
and is therefore insufficient to constitute the weight of the medical opinion evidence. Thus the
Board finds that OWCP failed to meet its burden of proof to establish that appellant no longer had
employment-related disability or residuals
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation benefits, effective March 31, 2019.10

7

A.G., Docket No. 19-0220 (issued August 1, 2019); I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB
734 (2003).
8

L.W., Docket No. 18-1372 (issued February 27, 2019); Furman G. Peake, 41 ECAB 361,364 (1990).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Case/Disability Management, Developing and
Evaluating Medical Evidence, Chapter 2.810.11 (September 2010).
10

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the March 4, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: January 20, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Carol Stream, IL,
Employer
__________________________________________

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Appearances:
Lenin V. Perez, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0648
Issued: July 21, 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 18, 2016 appellant, through his representative, filed a timely appeal from a
December 16, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to justify termination of appellant’s
wage-loss and medical benefits for his accepted injuries effective February 25, 2015.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 4, 2008 appellant, then a 47-year-old mail handler, filed a traumatic injury
claim (Form CA-1) for injuries to his back, left buttocks, and left thigh that he sustained on
October 29, 2008 while unloading a trailer of recycled mail. OWCP accepted the claim for
lumbar strain on November 14, 2008. On December 24, 2008 it accepted an additional condition
of lumbar disc herniation, and on June 26, 2009 it accepted an additional condition of C4-5 left
paracentral disc herniation. Appellant received supplemental roll benefits as of December 14,
2008 and periodic roll benefits as of June 5, 2011.
In a report dated February 12, 2014, Dr. Francisco Espinosa, a Board-certified
neurosurgeon, examined appellant and diagnosed a bulging disc at C3-4; a herniated disc and
osteophyte complex at C4-5 with indentation and compression of the spinal cord at C5-6; and
foraminal stenosis with a bulging disc at L5-S1. He recommended that, due to spinal cord
compression at C4-5 and C5-6, appellant needed to undergo surgeries including an anterior
cervical discectomy; spinal cord decompression and fusion with instrumentation using Peek
cages; bone graft, and plate screws; and laminectomy, foraminotomy; and nerve decompression
at L5-S1.
Appellant requested authorization on February 27, 2014 for surgical procedures including
an anterior cervical discectomy; spinal cord decompression and fusion with instrumentation
using Peek cages, bone graft, and plate screws; laminectomy; foraminotomy; and nerve
decompression.
By letter dated April 30, 2014, OWCP notified appellant that his request for authorization
could not be approved at that time, and that a district medical adviser (DMA) would have to
review the request. On the same date, it referred appellant’s case history to a DMA, noting
relevant underlying conditions of preexisting degenerative disc disease of the cervical and
lumbar spine. OWCP requested that the DMA render an opinion on the issue of whether the
requested surgeries were necessary to treat the accepted work injuries of October 28, 2008.
By letter dated May 12, 2014, the DMA responded to OWCP’s request. He noted that
appellant had been initially seen by a Dr. Montella on November 10, 2008. As early as 2009,
Dr. Montella indicated that appellant had also injured his neck at work. However, there was no
incident report of record relating any neck injury. Dr. Montella’s initial evaluation from
November 10, 2008 did not discuss the neck. The DMA noted that appellant had degenerative
conditions of his neck and low back. Given his preexisting degenerative disease of the neck and
low back, it is much more likely true that any and all surgery as it related to appellant’s spine
was due to a preexisting degenerative condition and not to any work injury.
On June 5, 2014 OWCP forwarded the case file to Dr. Safwan Barakat, a Board-certified
neurosurgeon, along with a statement of accepted facts, for an impartial medical evaluation in
order to resolve the conflict of medical opinion between Dr. Espinosa and the DMA.
Dr. Barakat was asked to resolve eight questions. First, OWCP requested that he determine
whether the requested surgeries were necessary to treat appellant’s accepted work-related
injuries; second, whether appellant’s current conditions were causally related to his accepted
work-related injury; third, whether there were any additional work-related diagnoses; fourth,
whether residuals of appellant’s work-related injuries existed, and to what extent any current
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conditions were related to natural age-related degenerative changes versus the original injury;
fifth, what course of treatment would be recommended if the surgery were not approved; sixth,
whether appellant was currently disabled from work; seventh, whether the treating physician’s
work restrictions were appropriate; and eighth, when it was anticipated that appellant would
reach maximum medical improvement.
OWCP prepared a June 5, 2014 statement of accepted facts, which noted appellant’s
history of injury, medical history, employment duties, as well as his preexisting degenerative
disc disease of the cervical and lumbar spine. The statement of accepted facts did not state that
any of appellant’s medical conditions had been accepted as employment related.
In a report dated October 1, 2014, Dr. Barakat rendered his responses to OWCP’s
inquiries based upon an examination and review of appellant’s records conducted on
September 30, 2014. He noted that appellant’s requested surgery was not medically necessary to
treat his work-related injury, as appellant presented with a preexisting degenerative disease of the
lumbar spine and a disc bone complex degenerative condition in his cervical spine. Dr. Barakat
noted that appellant’s symptoms on examination of the cervical area did not fit with the findings
of previous diagnostic studies and did not comport with the purpose of the proposed surgery. He
opined that appellant’s condition had returned to its preinjury status, namely the degenerative
disease in his neck and back. Dr. Barakat noted that appellant had no additional work-related
conditions, and that his condition was a degenerative disc disease resulting from natural wear
and tear on the spine. He recommended no further treatment for this condition, as appellant had
already undergone extensive physical therapy and an epidural steroid injection. Dr. Barakat
opined that appellant was partially disabled from work as a result of his underlying and
preexisting degenerative disc disease. He noted that appellant was not able to return to his
preinjury position without restrictions, but that he may be able to work on restricted duty, after a
functional capacity evaluation. Dr. Barakat observed that appellant had reached maximum
medical improvement and had a fair prognosis.
By decision dated October 24, 2014, OWCP denied appellant’s request for authorization
of surgery.
On January 7, 2015 OWCP proposed to terminate appellant’s medical and wage-loss
compensation as Dr. Barakat had opined that appellant no longer had residuals of his workrelated injury. On the same date, it issued an updated list of appellant’s accepted conditions,
which included sprain of the lumbosacral joint/ligament; displacement of the lumbar
intervertebral disc without myelopathy; and displacement of the left cervical intervertebral disc
without myelopathy.
By decision dated February 25, 2015, OWCP terminated appellant’s medical benefits and
wage-loss compensation.
On March 3, 2015 appellant requested a telephonic hearing before an OWCP hearing
representative.
The hearing was held on October 13, 2015. At the hearing, appellant’s representative
argued that Dr. Barakat’s report was speculative, because he only opined that the aggravation of
appellant’s underlying degenerative conditions was temporary and had resolved. He further

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argued that Dr. Barakat’s opinion, that appellant’s condition was degenerative, was not well
rationalized. Appellant stated that he had undergone the cervical surgery under his own private
insurance, but that he had engaged with disputes with his insurance companies and the
employing establishment with regard to his coverage. He reported that he still had symptoms of
his conditions. Appellant asked how OWCP could update the list of accepted conditions and
then immediately terminate his benefits. The hearing representative afforded appellant 30 days
to submit additional evidence.
In a report dated November 4, 2015, Dr. Espinosa reviewed appellant’s medical history
and opined that the surgery for his cervical spine and lumbar spine should be approved, as it was
related to his approved injury.
By decision dated December 16, 2015, the hearing representative affirmed OWCP’s
termination of appellant’s compensation benefits. She found that Dr. Barakat had been asked to
resolve a conflict in medical opinion only on the issue of whether appellant’s surgeries ought to
be authorized as work related. The hearing representative explained that because this was the
scope of the conflict put before Dr. Barakat, he was not an impartial medical specialist on the
issue of work-related residuals. However, she noted that Dr. Barakat’s report could still be
considered for its own intrinsic value and therefore could still constitute the weight of the
medical evidence on the issue of work-related residuals. The hearing representative found that
Dr. Espinonsa’s November 4, 2015 report did not opine on the issue of whether appellant
continued to suffer from work-related residuals related to the accepted injury of
October 29, 2008. As such, she found that the weight of medical evidence remained with
Dr. Barakat, and that as such OWCP met its burden of proof in terminating his compensation
benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4
FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.5 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee or impartial examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.6
3

Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000).

4

Mary A. Lowe, 52 ECAB 223, 224 (2001).

5

5 U.S.C. § 8123(a).

6

20 C.F.R. § 10.321.

4

To be of probative value, a medical opinion must be based on a complete factual and
medical background, must be of reasonable medical certainty, and be supported by medical
rationale.7 Medical rationale is a medically sound explanation for the opinion offered.8
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.9
ANALYSIS
OWCP found a medical conflict between appellant’s physician, Dr. Espinosa, and a
DMA, on the issue of whether certain surgeries should to be authorized by OWCP as necessary
and related to his accepted conditions. It referred appellant to Dr. Barakat for an impartial
medical examination to resolve the conflict of opinion with respect to surgery. However, he was
also asked to opine on other questions related to appellant’s condition, such as whether he
continued to have work-related residuals of his condition. Dr. Barakat opined that appellant’s
temporary work-related aggravation of degenerative spinal conditions had resolved and that his
current medical conditions were related only to the preexisting degenerative conditions. He
further opined that the accepted work-related injury of October 29, 2008 had resolved and
appellant returned to a preinjury status.
The Board finds that, under the circumstances of this case, the referee examiner was not
acting as an impartial medical specialist on the issue of whether appellant’s conditions had
resolved or returned to their preinjury status. The relevant conflict of medical opinion was
limited to the issue of authorization of surgery for the accepted cervical and lumbar spine
conditions.
While the referee examiner’s report was not entitled to the special weight afforded to an
opinion of an impartial medical specialist, his report can still be considered for its own intrinsic
value10 and can still constitute the weight of the medical evidence. However, the Board finds
that, due to the deficiency of the June 5, 2014 statement of accepted facts, Dr. Barakat’s opinion
is of limited probative value.
The Board has stated that when an OWCP medical adviser, a second opinion specialist,
or a referee physician renders a medical opinion based on an incomplete or inaccurate statement
of accepted facts, the probative value of the opinion is diminished or negated altogether.11
7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound, and logical).
9

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

10

See Leanne E. Maynard, 43 ECAB 482 (1992) (finding that a physician’s opinion is probative even though he
was not an impartial medical examiner and that the opinion of this physician and another physician were sufficient
to establish causal relation); Rosa Whitfield Swain, 38 ECAB 368 (1987) (finding that a physician was improperly
designated as an impartial medical specialist, but that his opinion nonetheless constituted the weight of the medical
evidence).
11

J.D., Docket No. 15-0305 (issued August 5, 2015).

5

OWCP procedures also require that the statement of accepted facts include a specific description
of the conditions accepted.12
Dr. Barakat relied upon a statement of accepted facts that did not provide any information
regarding conditions already accepted by OWCP. To insure that the report of an OWCP referral
physician is based upon an accurate factual background, OWCP provides information to the
physician through the preparation of a statement of accepted facts. The statement of accepted
facts must include a description of the accepted conditions, or the opinion of the referral
physician will be based upon an in incomplete framework and will be of limited probative
value.13 On January 7, 2015 OWCP prepared an updated list of appellant’s accepted
employment-related conditions, but this information was never provided to Dr. Barakat. As
Dr. Barakat’s opinion was based upon an incomplete framework and was of diminished
probative value. His report, therefore, is an insufficient basis upon which to prove justification
to terminate compensation. The Board therefore finds that OWCP did not meet its burden of
proof to terminate appellant’s wage-loss and medical benefits.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation and medical benefits for his accepted injuries effective February 25, 2015.

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
13

See J.D., supra note 11.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 16, 2015 is reversed.
Issued: July 21, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Springfield, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0541
Issued: April 27, 2016

Case Submitted on the Record

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

JURISDICTION
On February 1, 2016 appellant, through counsel, filed a timely appeal from October 1 and
November 13, 2015 merit decisions 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 employment-related disability for the
periods July 20 to August 19, September 22 to October 21, or November 21 to
December 20, 2014.
FACTUAL HISTORY
On December 20, 2012 appellant, then a 48-year-old general expediter, filed a traumatic
injury claim (Form CA-1), alleging that she sustained a right foot injury in the performance of
1

5 U.S.C. § 8101 et seq.

duty on December 12, 2012. She noted on the claim form that a loaded wire container was rolled
over her foot, causing abrasions on top of her right foot. The attending physician, Dr. Kenneth
Aquilino, a Board-certified internist, submitted a Form CA-17 (duty status report) dated
January 2, 2013 diagnosing a right foot contusion. He opined that appellant would be disabled at
least two or three weeks. Dr. Aquilino also diagnosed lumbar degenerative disc disease. In a
March 13, 2013 report, he noted that the lumbar condition was longstanding and appellant’s low
back pain had been getting worse over the past two years. Dr. Aquilino reported that appellant’s
physical limitations had been compounded by the December 12, 2012 foot injury, but could not
say whether the foot injury had affected the back condition.
The record indicates that appellant stopped working and did not return. In a May 20,
2013 letter, appellant indicated that she had received a notice of termination of employment from
the employing establishment on December 26, 2012.2 She asserted that her supervisor had a
personal issue against her.
On August 1, 2013 OWCP advised appellant that it had accepted her claim for right foot
contusion. Appellant submitted a claim for compensation (Form CA-7) on September 25, 2013
claiming compensation commencing January 26, 2013. She continued to submit CA-7 forms
claiming ongoing wage-loss compensation.
By two decisions dated December 4, 2013, OWCP denied appellant’s claims for
compensation for the periods January 26 to September 18, and September 19 to
October 20, 2013, as the submitted evidence failed to support the claimed periods of disability.
By report dated December 23, 2013, Dr. Aquilino reported that appellant continued to
have chronic right foot pain and was not able to work.
OWCP issued two decisions dated February 24, 2014, denying claims for compensation
from October 20 to November 19, and November 20 to December 20, 2013 due to insufficient
medical evidence.
The record contains a right foot magnetic resonance imaging (MRI) scan dated
February 25, 2014 from Dr. William Glucksman, a radiologist. He reported no evidence for
osteomyelitis and no definite significant abnormality. Dr. Aquilino submitted a March 26, 2014
report indicating that appellant continued to have right foot pain, and he encouraged her to seek
treatment with a podiatrist or orthopedic surgeon.
By decision dated April 24, 2014, OWCP denied a claim for compensation from
December 21, 2013 to January 20, 2014 as the evidence was insufficient to establish her claim.
In a letter dated May 12, 2014, appellant, through counsel, requested a hearing before an OWCP
hearing representative.
Appellant was seen by Dr. Thomas Rossi, a Board-certified orthopedic surgeon, on
April 28, 2014. Dr. Rossi provided a history that she had sustained a right foot injury at work on
2

The record contains a notice of removal dated December 26, 2012 for failure to maintain regular attendance and
failure to respond to official correspondence.

2

December 12, 2012 and provided results on examination. He diagnosed a crush injury to her
foot, reported appellant’s condition had shown marked improvement with some residual swelling
pain and tenderness. Dr. Rossi noted the negative MRI scan results and concluded that he was
not sure anything could be done with the right foot.
In two decisions dated June 27, 2014, OWCP denied appellant’s for compensation for the
periods January 20 to February 18 and February 19 to March 20, 2014. It also issued two
decisions dated October 20, 2014, denying appellant’s claims for compensation for the periods
April 20 to May 19 and May 20 to June 18, 2014. Appellant had again failed to provide
sufficient evidence to support her claims.
Appellant, through counsel, timely requested hearings with respect to the June 27 and
October 20, 2014 OWCP decisions.
Appellant submitted an October 21, 2014 report from Dr. Aquilino, in which he related
that she continued to be off work due to chronic right foot pain that “apparently arose” as a result
of her December 12, 2012 injury. Dr. Aquilino opined that her “chronic right foot pain currently
appears to be due to some type of reflex sympathetic dystrophy (RSD) that arose directly in
relation to her injury and, as discussed on numerous occasions with the patient, is best managed
in conjunction with orthopedics and physical and occupational therapy.” He further opined that
appellant continued to be disabled.
By decision dated December 23, 2014, an OWCP hearing representative affirmed the
April 24, June 27, and October 20, 2014 OWCP decisions. She found that the reports from
Dr. Aquilino were speculative and without objective findings.
In a report dated November 26, 2014, Dr. Aquilino again opined that appellant had
chronic right foot pain that appears to be due to some sort of RSD. He also asserted in a separate
report dated November 26, 2014 that he had never released her to return to work.
By decisions dated January 16, 2015, OWCP denied appellant’s claims for compensation
for the periods July 20 to August 19, 2014, and September 22 to October 21, 2014.3 Appellant
requested a hearing before an OWCP hearing representative in a letter dated January 22, 2015.
In a decision dated February 13, 2015, OWCP denied her claim for compensation for the periods
October 22 to November 20, 2014. By decision dated March 13, 2015, it denied a claim for
compensation for the period November 21 to December 20, 2014. Appellant also requested a
hearing regarding this decision in a letter dated March 18, 2015.
A hearing was held on July 13, 2015. Appellant’s counsel argued that OWCP should
further develop the issue of whether an RSD condition was causally related to the December 12,
2012 employment injury.

3

A third decision dated January 16, 2015 was issued denying compensation from April 20 to May 19, 2014. By
decision dated June 24, 2015, an OWCP hearing representative vacated this decision, noting that this period had
already been adjudicated in the December 23, 2014 hearing representative decision.

3

In a February 26, 2015 report, Dr. Aquilino noted that he was not a pain specialist. He
opined that because of the December 12, 2012 employment injury appellant “most likely has
some type of RSD as a result of her injury, but as I am not a pain specialist, I cannot say that that
particular diagnosis is exactly what she has. I did advise [appellant], if possible, to seek the
professional opinion of a licensed and certified pain specialist for further evaluation regarding
this.” Appellant’s counsel submitted an April 30, 2015 letter requesting that OWCP expand the
claim to include RSD.
By decision dated October 1, 2015, an OWCP hearing representative affirmed the
January 16, 2015 decisions. With respect to the periods July 20 to August 19, and September 22
to October 21, 2014, she found that the medical evidence was insufficient to establish the claim.
The hearing representative noted that counsel had requested that OWCP expand the claim to
include RSD and it would be appropriate for OWCP to further develop the issue with a second
opinion examination.
In a decision dated November 13, 2015, an OWCP hearing representative affirmed the
March 13, 2015 OWCP decision. For the period November 21 to December 20, 2014, she found
that the evidence was insufficient to establish the claim. The hearing representative also noted
that OWCP had not adjudicated the request to expand the claim and should complete any
necessary development.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.4 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.5
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.6 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.7 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
4

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
6

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Id.

4

disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.8
To establish a causal relationship between the disability claimed and the employment
injury, an employee must submit rationalized medical evidence, based on a complete factual and
medical background, supporting such a causal relationship.9 Causal relationship is a medical
issue and the medical evidence required to establish a causal relationship is rationalized medical
evidence.10 The opinion of the physician must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship.11
ANALYSIS
In the present case, OWCP accepted that appellant sustained a right foot contusion in the
performance of duty on December 12, 2012. Appellant has been claiming compensation for
wage loss since January 26, 2013.
Appellant has the burden of proof to establish an employment-related disability for the
periods claimed. The Board finds that the evidence of record is of diminished probative value
and insufficient to establish the claim. Dr. Rossi saw appellant prior to the claimed periods and
he did not discuss any disability from work. He noted that a February 25, 2014 MRI scan was
essentially negative.
There are numerous reports from Dr. Aquilino in the record, but none of these reports
provide a rationalized medical opinion as to an employment-related disability for the periods
claimed. Dr. Aquilino reported on October 21 and November 26, 2014 that it appeared that
appellant had some sort of RSD and remained off work. He did not discuss the diagnosis or
objective findings supporting the diagnosis. Dr. Aquilino did not provide an opinion supported
by medical rationale relating a disabling diagnosed condition to the employment injury. In a
February 26, 2015 report, he again indicated that he felt appellant had some sort of RSD, but he
emphasized that he was not a pain specialist and she should seek the opinion of a pain specialist.
The opinion is speculative and there is no medical rationale to support causal relationship
between disability and the December 12, 2012 employment injury.12
On appeal, counsel briefly argues that with respect to the November 13, 2015 decision
the hearing representative should have held the decision in abeyance until the issue of expansion
of the claim was resolved. However, it is appellant’s burden of proof to establish a period of
employment-related disability, and she reviewed the relevant evidence of record. For the reasons
8

Id.

9

Kathryn E. DeMarsh, 56 ECAB 677 (2005).

10

Elizabeth Stanislaw, 49 ECAB 540 (1998).

11

Leslie C. Moore, 52 ECAB 132 (2000).

12

Medical opinions that are speculative and not supported by medical rationale are generally entitled to little
probative value and are insufficient to meet appellant’s burden of proof. Carolyn F. Allen, 47 ECAB 240 (1995).

5

discussed above, the evidence was insufficient to establish an employment-related disability for
the periods claimed.
Appellant has one year from the date of this decision to request reconsideration of the
October 1 or November 13, 2015 decisions and submit new evidence or argument regarding the
issues presented, 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 an employment-related disability for
July 20 to August 19, September 22 to October 21, or November 21 to December 20, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 13 and October 1, 2015 are affirmed.
Issued: April 27, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
)
)
J.H., Appellant
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION
)
MEDICAL CENTER, Bronx, NY, Employer
___________________________________________ )
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1491
Issued: January 8, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 3, 2012 appellant, through her attorney, filed a timely appeal of an April 30,
2012 decision of the Office of Workers’ Compensation Programs (OWCP) which denied her
request for reconsideration without conducting a merit review. Because more than one year has
elapsed between the most recent merit decision dated April 24, 2008, and the filing of this
appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d)(2).1 Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit
decision.

1

For final adverse decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to the
Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19, 2008, a
claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
FACTUAL HISTORY
On May 17, 2007 appellant, then a 43-year-old nursing assistant, filed a traumatic injury
claim alleging that she slipped on a wet floor and injured her right knee in the performance of
duty on May 8, 2007. She stopped work on May 8, 2007.
In a decision dated September 5, 2007, OWCP denied appellant’s claim for compensation
finding that she had not met the requirements for establishing that she sustained an injury as
alleged. It noted that they had not received a clear statement from her regarding the basis of her
claim and the basis of her claim was unclear or unknown.
In a decision dated April 24, 2008, OWCP’s hearing representative affirmed as modified
OWCP’s decision dated September 5, 2007. The hearing representative found that the claimed
incident occurred but that the medical evidence was insufficient to establish that any diagnosed
condition was caused or contributed to by the May 8, 2007 employment incident.
OWCP subsequently received numerous treatment notes. They included a July 5, 2007
report from Dr. Thomas Scilaris, a Board-certified orthopedic surgeon; a July 10, 2007 treatment
note from Dr. Orsuville Cabatu, a treating physician; reports dating from February 12, 2008 to
August 9, 2011 from Dr. Victor Sasson, a Board-certified orthopedic surgeon, treatment notes
dated April 29 and May 6, 2009 from Dr. Mehul Shah, a Board-certified orthopedic surgeon and
a December 15, 2011 treatment note from Dr. Luciano Tuluca, a Board-certified internist.
Additionally, OWCP received: a May 31, 2007 x-ray read by Dr. John T. Rigney, a
Board-certified diagnostic radiologist; a June 18, 2007 magnetic resonance imaging (MRI) scan
of the lumbar spine read by Dr. Robert D. Soloman, a radiologist; a June 15, 2009 MRI scan of
the right shoulder read by Dr. Harold Tice, a Board-certified diagnostic radiologist; prescriptions
dated September 4 and 11, 2008 for a knee brace from Dr. Indu Garg, Board-certified in physical
medicine and rehabilitation; and operative reports from Dr. Sasson dated March 12, 2008 for
synovitis of the right knee and August 5, 2009 for rotator cuff partial tear. It received numerous
physical therapy reports dating from April 3, 2008 to August 25, 2009.
Appellant also submitted copies of her October 4, 2007 letter requesting a hearing.
In a letter dated April 18, 2012, appellant’s representative requested reconsideration and
submitted new medical evidence. He alleged that the new evidence suggested that the claim
should be reopened.
In a March 17, 2012 report, Dr. Garg noted appellant’s history of injury and treatment.
He advised that he treated her for her right knee and noted that her history was consistent with
her falling down at work on May 8, 2007. Dr. Garg opined that appellant continued to be in pain

2

and was unable to work full duty, although she continued to work modified duty. He indicated
that her injury to the right knee and low back was related to her work.
In a decision dated April 30, 2012, OWCP denied appellant’s request for reconsideration
for the reason that it was not timely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
OWCP’s imposition of a one-year time limitation within which to file an application for
review as part of the requirements for obtaining a merit review does not constitute an abuse of
discretionary authority granted OWCP under section 8128(a).4 This section does not mandate
that OWCP review a final decision simply upon request by a claimant.
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a). Thus, section 10.607(a) of the implementing regulations
provides that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought.5
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by OWCP. The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
3

5 U.S.C. § 8128(a).

4

Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b).

3

submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP.7 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision. The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.8
ANALYSIS
In its April 30, 2012 decision, OWCP properly determined that appellant failed to file a
timely application for review. It rendered its last merit decision on April 24, 2008. Counsel’s
April 18, 2012 letter requesting reconsideration was submitted more than one year after the
April 24, 2008 merit decision and was, therefore, untimely.
In accordance with internal guidelines and with Board precedent, OWCP properly
proceeded to perform a limited review to determine whether appellant’s application for review
showed clear evidence of error, which would warrant reopening her case for merit review under
section 8128(a) of FECA, notwithstanding the untimeliness of her application. It reviewed the
evidence submitted by her in support of her application for review, but found that it did not
clearly show that OWCP’s prior decision was in error.
The Board finds that the evidence submitted by appellant in support of her application for
review does not raise a substantial question as to the correctness of OWCP’s decision and is
insufficient to demonstrate clear evidence of error. The underlying issue in this case is whether
OWCP properly denied appellant’s claim for an injury in the performance of duty on the grounds
that the medical evidence was insufficient to establish that any diagnosed condition was caused
or contributed to by the accepted employment incident of May 8, 2007.
With his April 18, 2012 request for reconsideration, counsel submitted a March 17, 2012
report from Dr. Garg, who noted appellant’s history of injury and treatment and noted that her
history was consistent with her falling down at work on May 8, 2007. Dr. Garg opined that
appellant’s injury to the right knee and low back was related to her work. The Board finds that,
while this medical report provides some support for causal relationship, it is insufficient to
establish clear evidence of error as it does not show that OWCP’s denial of the claim was
erroneous or raise a substantial question as to the correctness of OWCP’s determination that
appellant did not establish an injury in the performance of duty. The Board notes that the record
also contains numerous treatment notes and diagnostic reports and these too are insufficient to
establish clear evidence of error. The Board has held that the term “clear evidence of error” is
intended to represent a difficult standard. The claimant must present evidence which on its face
shows that OWCP made an error (for example, proof of a miscalculation in a schedule award).
7

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

8

Id.

4

Evidence such as a detailed, well-rationalized report, which if submitted prior to OWCP’s denial,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error and would not require a review of a case.9
Appellant also submitted copies of physical therapy notes. Section 8101(2) of FECA
provides that the term physician includes surgeons, podiatrist, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law.10 Physical therapists are not considered physicians as defined under FECA
and thus their reports do not constitute competent medical evidence.11 Consequently, these
reports are insufficient to establish clear error by OWCP.
The Board finds that this evidence is insufficient to shift the weight of the evidence in
favor of appellant’s claim or raise a substantial question that OWCP erred in denying appellant’s
claim for an injury in the performance of duty. Therefore, the Board finds that appellant has not
presented clear evidence of error.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.

9

Annie L. Billingsley, 50 ECAB 210 (1998).

10

5 U.S.C. § 8101(2).

11

Id.; J.M., 58 ECAB 448 (2007); G.G., 58 ECAB 389 (2007); David P. Sawchuk, 57 ECAB 316 (2006);
Allen C. Hundley, 53 ECAB 551 (2002).

5

ORDER
IT IS HEREBY ORDERED THAT the April 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2013
Washington, DC

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

Patricia Howard Fitzgerald, 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
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1824
Issued: May 16, 2014

Case Submitted on the Record

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

On August 1, 2013 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) March 18, 2013 nonmerit decision denying her request for
reconsideration and May 7, 2013 nonmerit decision denying her request for an oral hearing. The
Board assigned Docket No. 13-1824.
This case has previously been before the Board with respect to the termination of
appellant’s medical benefits.1 In a May 9, 2008 decision, the Board affirmed OWCP’s
January 18 and November 15, 2007 decisions which terminated appellant’s medical benefits
related to her May 7 and July 24, 1985 work injuries and found that she did not have any
continuing employment-related residuals after January 18, 2007.2

1
2

Docket No. 08-571 (issued May 9, 2008).

In an August 21, 2013 decision, OWCP denied appellant’s June 12, 2013 request for reconsideration of the
May 9, 2008 termination decision on the grounds that it was not timely filed and failed to establish clear evidence of
error of the prior decision. It is well established that the Board and OWCP may not have concurrent jurisdiction
over the same issue in a case. Consequently, any decision by OWCP on an issue pending before the Board is null
and void. Douglas E. Billings, 41 ECAB 880, 895 (1990). As OWCP issued the August 21, 2013 decision after
appellant filed her August 1, 2013 Board appeal and, as it is on the same issue pending before the Board, i.e.,
whether appellant’s request for reconsideration of the termination decision was timely filed or established clear
evidence of error, it is null and void. See 20 C.F.R. § 501.2(c)(2).

By letter dated September 20, 2012, appellant requested reconsideration “for the
termination of my claim on January 18, 2007 for no residual of ongoing disability” and
submitted evidence.
In the March 18, 2013 decision, OWCP failed to address the proper issue on
reconsideration. OWCP stated that the request for reconsideration concerned whether appellant
had sustained a recurrence of disability; yet the issue on reconsideration clearly was the
termination of medical benefits.
The Board has duly considered the matter and finds that OWCP failed to address the
relevant issue in this case. Appellant specifically requested reconsideration of OWCP’s decision
terminating her medical benefits as of January 18, 2007 on the grounds that she no longer had
any employment-related residuals or disability. Therefore, the decision is void ab initio, that is,
void from its inception and of no force and effect3. OWCP should have adjudicated the issue of
whether appellant’s September 20, 2012 request for reconsideration of the termination of her
medical benefits was timely filed or established clear evidence of error. The Board finds that the
case must be remanded to OWCP for a proper decision on this issue.4 Following this and such
other development as deemed necessary, OWCP shall issue an appropriate decision on
appellant’s September 20, 2012 request for reconsideration.

3

Cf. Donald E. Buckles, 43 ECAB 707 (1992), in which the Board found that its prior order remanding case was
void ab initio where the Board had no authority, due to lack of jurisdiction, to issue the order at the time of issuance.
In the instant case, OWCP improperly adjudicated a recurrence issue when appellant had requested reconsideration
of the termination of her medical benefits. OWCP’s actions precluded appellant from a proper adjudication of her
reconsideration request and, as such, it acted outside its authority when issuing the March 18, 2013 decision on the
recurrence issue.
4

In light of the disposition of this case, the Board finds that the May 7, 2013 OWCP decision denying an oral
hearing is moot.

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IT IS HEREBY ORDERED THAT the March 18, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
action consistent with this order.
Issued: May 16, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Missouri City, TX, Employer
__________________________________________

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

Docket No. 06-2069
Issued: February 5, 2007

Case Submitted on the Record

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

JURISDICTION
On September 11, 2006 appellant filed a timely appeal of a July 28, 2006 decision of the
Office of Workers’ Compensation Programs which denied his claim for wage-loss compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant established that he was disabled during the period
March 12 through June 7, 2006, as a result of his September 7, 2005 employment-related left
wrist sprain.
FACTUAL HISTORY
On September 12, 2005 appellant, then a 43-year-old letter carrier, filed a traumatic
injury claim alleging that he injured his hand and wrist while picking up a parcel on
September 7, 2005. He stated that his left wrist popped and he experienced sudden numbness in
his hand and fingers. Appellant did not initially stop work but accepted a limited-duty

assignment from the employing establishment. He then stopped work on March 12, 2006 and
returned on June 7, 2006. The employing establishment challenged appellant’s claim, stating
that his disability was not caused by the traumatic injury. The employing establishment
submitted a statement from Postmaster Karen Parson, dated September 12, 2005, noting that
appellant had previously submitted a claim for occupational disease requesting compensation for
carpal tunnel syndrome, which was denied on March 7, 2005. Postmaster Parson stated that she
believed that appellant filed his current claim because his initial claim was denied.
On September 23, 2005 the Office requested additional information concerning
appellant’s September 7, 2005 injury. Specifically, the Office noted that appellant had not
submitted medical evidence containing either a diagnosis or a physician’s opinion as to how the
claimed injury caused a diagnosed condition.
Appellant submitted a work status report dated September 16, 2005 stating that he had
sustained a left wrist sprain and that he could perform light duty.1 He also submitted several
unsigned, undated treatment notes indicating that he had sustained a left wrist sprain while lifting
at work on September 7, 2005.
By decision dated November 3, 2005, the Office accepted appellant’s claim for left wrist
sprain.
On June 9, 2006 appellant submitted a claim for compensation from March 12 through
June 7, 2006. On June 7, 2006 appellant returned to a limited-duty assignment. In support of his
claim for compensation, appellant submitted a June 13, 2006 attending physician’s report signed
by Dr. Richard K. Vanik, a Board-certified plastic surgeon, who diagnosed appellant with
bilateral carpal tunnel syndrome and noted that appellant’s on-the-job repetitive hand motions
may have aggravated his symptoms. Dr. Vanik also supported causal relationship by answering
“yes” to the question “Do you believe the condition found was caused or aggravated by an
employment injury?.” The report also noted that he treated appellant by performing carpal
tunnel release surgery.
Appellant also submitted a May 17, 2006 report, signed by Dr. Vanik, noting his work
restrictions.
Dr. Vanik predicted that appellant’s work restrictions would apply for
approximately four weeks and noted that none of the limitations were due to preexisting or
nonwork-related conditions. Appellant also submitted a report dated June 8, 2006, signed by
Dr. Vanik, which repeated the answers given in the May 17, 2006 report. Finally, he submitted a
May 17, 2006 duty status report from Dr. Vanik.
On June 27, 2006 the Office requested additional information concerning appellant’s
claim for compensation. It noted that appellant’s claim had been accepted for a left wrist sprain
but that the medical evidence of record showed that appellant was in fact disabled from work due
to bilateral carpal tunnel syndrome. The Office informed appellant that bilateral carpal tunnel
syndrome was not an accepted work injury in his case and requested evidence establishing that
appellant was disabled due to left wrist sprain. It allotted appellant 30 days to provide the
requested evidence.
1

The physician’s signature is illegible.

2

By decision dated July 28, 2006, the Office denied appellant’s claim for compensation. It
stated that appellant had failed to provide sufficient evidence that he was disabled for the period
claimed due to the accepted work injury of left wrist sprain.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including that any specific condition
or disability for which he claims wage-loss compensation is causally related to the employment
injury.3 Whether a particular injury causes an employee to be disabled for work and the duration
of that disability are medical issues that must be proven by a preponderance of the reliable,
probative and substantial medical evidence.4
ANALYSIS
The Board finds that appellant failed to meet his burden of proof in establishing that he
was disabled during the period claimed because of his employment-related left wrist sprain. In
support of his claim for compensation, appellant submitted a June 13, 2006 attending physician’s
report from Dr. Vanik who diagnosed bilateral carpal tunnel syndrome, which he attributed to
appellant’s on-the-job repetitive hand motions and noted that he performed carpal tunnel release
surgery. The report supports causal relationship, as Dr. Vanik checked a box “yes” in answer to
the question, “Do you believe the condition found was caused or aggravated by an employment
injury?.” The Board has held, however, that an opinion on causal relationship which consists
only of a physician checking “yes” on a medical form without further explanation or rationale is
of little probative value.5 Although Dr. Vanik attempted to further explain his answer, stating
that “constant repetitive motion may aggravate symptoms,” this explanation is not sufficient6 as
the doctor did not discuss the medical processes by which specific employment factors would
cause or aggravate the diagnosed condition. Moreover, Dr. Vanik did not mention appellant’s
accepted left wrist sprain, nor did he indicate that appellant was disabled because of the left wrist

2

5 U.S.C. § 8101 et seq.

3

Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

5

Alberta S. Williamson, 47 ECAB 569 (1996).

6

In order to be considered rationalized medical evidence, a physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and claimant’s specific employment factors. Victor J. Woodhams, 41
ECAB 345, 352 (1989); Steven S. Saleh, 55 ECAB 169, 172 (2003). The Board has held that a medical opinion not
fortified by medical rationale is of little probative value. Caroline Thomas, 51 ECAB 451, 456 n. 10 (2000);
Brenda L. Dubuque, 55 ECAB 212, 217 (2004).

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sprain; rather, Dr. Vanik focuses solely on appellant’s carpal tunnel syndrome, which was not an
accepted condition.7
Appellant also submitted attending physician’s reports from Dr. Vanik, dated May 17 and
June 8, 2006, respectively. Finally, appellant submitted a duty status report signed by Dr. Vanik
and dated May 17, 2006. None of these reports are sufficient to establish causal relationship, as
they either do not address causal relationship or they do not provide a rationalized medical
opinion, based on thorough medical history and examination, in which the physician fully
explains how and why the September 7, 2005 injury caused the claimed period of disability.
Because the medical evidence of record at the time the Office rendered its July 28, 2006
decision8 did not adequately support a causal relationship between appellant’s accepted left wrist
sprain and the claimed period of disability, the Board finds that appellant has not established that
his claimed disability was causally related to his accepted employment injury.9
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he was
disabled during the period of March 12 through June 7, 2006, as a result of his accepted
employment-related left wrist sprain.

7

Where an employee claims that a condition not accepted or approved by the Office was due to an employment
injury, he or she bears the burden of proof to establish that the condition is causally related to the employment
injury. Jaja K. Asaramo, 55 ECAB 200 (2004).
8

After the Office’s July 28, 2006 decision, appellant submitted additional medical evidence. The Board,
however, notes that it cannot consider this evidence for the first time on appeal because the Office did not consider
this evidence in reaching its final decision. The Board’s review is limited to the evidence in the case record at the
time the Office made its final decision. 20 C.F.R. § 501.2(c).
9

The Board also notes that there is no evidence of any changes in appellant’s light-duty job requirements. See
Terry R. Hedman, 38 ECAB 222 (1986).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 28, 2006 is affirmed.
Issued: February 5, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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