United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF THE AIR FORCE, 283rd
COMBAT COMMUNICATIONS SQUADRON,
DOBBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 19-0653
Issued: November 21, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On February 1, 2019 appellant filed a timely appeal from a January 17, 2019 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.2
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 17, 2019 decision, OWCP received additional evidence. 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
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On June 26, 2018 appellant, then a 43-year-old security manager, filed a traumatic injury
claim (Form CA-1) alleging that on January 2, 2018 he injured his lower back while in the
performance of duty. He explained that when he lifted an elliptical machine off of a furniture dolly
with the help of another person, the machine slipped, causing appellant to quickly adjust, which
jarred his back and caused sciatic nerve damage. On the reverse side of the claim form, the
employing establishment acknowledged that the incident occurred while appellant was in the
performance of duty. It further indicated that appellant stopped work on January 2, 2018 and
returned to work on January 8, 2018.
On July 3, 2018 OWCP received appellant’s hospital records indicating that he was seen
in the emergency room for right leg pain, right lower back pain, and intermittent numbness.
Appellant indicated that on December 26, 2017 while he was carrying an elliptical machine he had
to shift his back, which resulted in immediate muscle spasms and pain in his right lower back. He
reported that the pain had improved, but he still experienced numbness in his right leg when sitting
for a significant period of time. The records also noted that the “current episode” of his pain began
gradually and over two days ago, and that the issue occurs on a daily basis and was related to his
twisting and lifting heavy objects. They documented that the pain was in appellant’s lumbar spine
and was moderate, but shooting and stabbing radiated to the right thigh, and worsened with
particular positions. The records recorded that other symptoms included paresthesias, leg pain,
and numbness.
Dr. Jay P. Patel, a Board-certified diagnostic radiologist, found that appellant experienced
pain in his lumbar back, and in an anatomy diagram he circled the lower right back to indicate
where appellant’s pain was located. He found that appellant’s lumbar back had “normal range of
motion, no tenderness, no bony tenderness, no swelling, no edema, no deformity, no laceration, no
spasm and normal pulse.” An x-ray of appellant’s lumbar spine indicated that his “vertebral body
heights and alignments are maintained. No acute fracture or dislocation. Soft tissues are otherwise
grossly unremarkable,” and “no acute osseous abnormalities.”
A nurse practitioner, Eleanor E. Girodo, indicated that appellant had lumbar radiculopathy
and diagnosed appellant with right-sided sciatica and acute right-sided low back pain. She
prescribed medication and provided follow-up advice. The nurse practitioner additionally
recorded that appellant would be able to return to work on January 5, 2018. The records indicated
that appellant was also diagnosed with hypertension and skin paresthesia and discharged on
January 3, 2018.
In a December 13, 2018 development letter, OWCP advised appellant that, when his claim
was received, it appeared to be a minor injury that resulted in minimal or no lost time from work.
The claim was administratively approved to allow payment for limited medical expenses, but the
merits of the claim had not been formally adjudicated. OWCP advised appellant that his claim
was being reopened due to unpaid bills. However, additional evidence was required in support of
his claim for compensation benefits. OWCP advised appellant of the type of factual and medical
evidence needed and provided a questionnaire for his completion. It afforded him 30 days to
submit the requested evidence.

2

On January 10, 2019 appellant called OWCP and indicated that he was injured on
December 26, 2017 and went to see a physician on January 2, 2018. The claims examiner
memorialized the conversation in a memorandum (Form CA-110). Additionally, appellant
submitted an undated incident report signed by his supervisor, his unit safety representative, and
his commander. The report indicated that on December 26, 2017 while in the performance of duty
appellant and another sergeant were transporting an elliptical machine to the new gym area with a
dolly, and when they removed the elliptical machine from the dolly the machine moved quickly,
causing appellant to strain his back. The report listed the other sergeant involved in the incident
as a witness.
By decision dated January 17, 2019, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that he sustained an injury in the performance of
duty, as alleged. It noted that he had not returned OWCP’s development questionnaire, which was
needed to clarify the contradicting evidence on the date of the employment injury. OWCP
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.7 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.8 Second, the employee must

3

Supra note 1.

4
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
8

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

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submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.10 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established. An employee’s
statements alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.11
ANALYSIS
The Board finds that the case is not in posture for decision.
On his June 26, 2018 Form CA-1, appellant alleged that he injured his lower back on
January 2, 2018 when he lifted an elliptical machine off of a furniture dolly with the help of another
person, and the machine slipped, causing him to quickly adjust. However, appellant’s January 3,
2018 emergency room treatment records reflected that he reported having been injured on
December 26, 2017 while carrying an elliptical machine. OWCP subsequently requested that
appellant clarify the discrepancy regarding the date of injury, and provided him a factual
questionnaire to complete and submit. Although appellant did not return the factual questionnaire,
he telephoned OWCP (CA-110 notes) on January 10, 2019 and advised that he was injured on
December 26, 2017. He also submitted an employing establishment incident report, which
indicated that he and another employee were transporting an elliptical machine on a dolly when
the machine moved quickly, causing appellant to strain his back.
The Board finds that appellant established that the incident involving the elliptical machine
occurred as alleged, on December 26, 2017. The employing establishment incident report, coupled
with the contemporaneous January 3, 2018 emergency room treatment records, as well as
appellant’s subsequent clarification establish that the alleged incident occurred on
December 26, 2017. Moreover, appellant has provided a single account of the mechanism of
injury that has not been refuted by any evidence in the record.12 As noted above, a claimant’s
statement that an injury occurred at a given time and place, and in a given manner is of great

9
A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 7.
10

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

11

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

12

B.S., Docket No. 19-0524 (issued August 8, 2019).

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probative value and will stand unless refuted by strong or persuasive evidence.13 The Board
therefore finds that appellant has established that the December 26, 2017 employment incident
occurred in the performance of duty, as alleged.
As appellant has established that the December 26, 2017 employment incident factually
occurred, the question becomes whether this incident caused a personal injury.14 The Board will,
therefore, remand the case for consideration of the medical evidence. Following this and other
such further development as deemed necessary, OWCP shall issue a de novo decision addressing
whether appellant has met his burden of proof to establish an injury or condition causally related
to the accepted December 26, 2017 employment incident.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 17, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: November 21, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

13

Supra note 11.

14

Supra note 12.

5


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

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

Docket No. 14-809
Issued: August 6, 2014

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 26, 2014 appellant filed a timely appeal from a January 27, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reimbursement for travel expenses to attend a doctor’s appointment. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s request for
reimbursement of travel expenses for an April 15, 2013 medical appointment.
On appeal, appellant contends that the examination was preapproved.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 1, 2011 appellant, then a 63-year-old rural carrier who resides in Michigan, filed
a claim for occupational disease alleging that the opening and closing of mailboxes and casing
letters and flats with his right arm caused a shoulder condition. On August 24, 2011 OWCP
accepted his claim for rotator cuff tendinitis. It later accepted right rotator cuff impingement
syndrome, right shoulder impingement syndrome, disorder of burse and tendons in right shoulder
and right shoulder tendinitis. Appellant underwent surgery on December 30, 2011 for right
shoulder arthroscopy with subacromial decompression and distal claviole excision.
On August 31, 2012 appellant filed a claim for a schedule award. He indicated on the
claim form that he was filing a claim for three cases, OWCP File Nos. xxxxxx298, xxxxxx357
and xxxxxx003. OWCP responded by letter dated September 10, 2012. It requested that
appellant submit a medical report from his physician describing his impairment and providing
objective findings.2
In an October 22, 2013 memorandum, OWCP doubled appellants claim.
File
No. xxxxxx298 was accepted for the right shoulder conditions with surgery as the master file.
The memorandum also listed subsidiary claims in File No. xxxxxx244, accepted for left shoulder
condition with surgery; File No. xxxxxx357, accepted for an aggravation of left lateral
epicondylitis; and File No. xxxxxx003, accepted for left thumb tendinitis.
By letter dated September 24, 2012, appellant requested that OWCP schedule a second
opinion evaluation with regards to his right shoulder. He noted that he was unable to find a
physician to provide an impairment determination under the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment. OWCP responded on
October 2, 2012 that it would schedule a second opinion examination in order to obtain an
impairment rating.
In a January 26, 2013 letter to his congressman, appellant indicated that he had requested
a second opinion with regards to his claims for a schedule award. As it had been almost four
months and he heard no response, he contacted a claims examiner and found a physician,
Dr. John W. Ellis, a physician Board-certified in family medicine in Oklahoma City, Oklahoma
that would conduct an impairment evaluation. Appellant requested travel expenses but did not
receive a reply. He noted that he found two places in northern Indiana where an evaluation could
be obtained, but it had to be preauthorized by OWCP. Appellant noted that the claims examiner
advised him that it was too late to find someone to perform the evaluation since he requested a
second opinion. In a letter to appellant’s congressman dated February 12, 2013, OWCP
apologized for the delay in obtaining a second opinion and noted that he was scheduled for
examination by Dr. Emmanuel Obianwu, a Board-certified orthopedic surgeon, on
March 4, 2013 for the purpose of an impairment evaluation.

2

In a previous claim, OWCP File No. xxxxxx244, OWCP accepted appellant’s claim for left tendinitis and
appellant received a schedule award for 15 percent impairment of the left upper extremity.

2

Appellant saw Dr. Obianwu on March 4, 2013, and in a report of that date Dr. Obianwu
found that appellant had a 10 percent impairment of his right upper extremity based on his
accepted post distal clavicle resection under Table 15-5. In reports dated May 13 and
August 7, 2013, OWCP’s medical adviser agreed with Dr. Obianwu that appellant had a right
upper extremity impairment of 10 percent based on the right shoulder distal clavicle resection.
In a June 10, 2013 letter, appellant advised OWCP that on April 15, 2013 he traveled to
Oklahoma City to the Ellis Clinic for an impairment evaluation of his left elbow and left thumb.
He submitted a request for travel expenses of $420.60 for airfare and $56.69 for car rental.
Appellant stated that he was unable to find a qualified physician close to his home even though
he had contacted over 50.
By letter dated June 13, 2013, OWCP asked Dr. Todd Ream, appellant’s treating Boardcertified orthopedic surgeon, for an evaluation of impairment with regard to appellant’s left
lateral epicondylitis. Dr. Ream did not respond.
In a letter dated July 18, 2013 to his congressman, appellant stated that he was advised by
OWCP that it would not pay for him to go to Oklahoma City for examination as there were
physicians in Michigan who could provide an impairment rating. He could only locate two
physicians in Michigan who requested payment in advance. Appellant provided the names to the
claims examiner. He contended that his only recourse was to go to Oklahoma City to obtain an
impairment rating.
In a decision dated August 5, 2013, OWCP denied appellant’s request for reimbursement
for airfare and rental car expenses in Oklahoma City. It noted that it made all the necessary
arrangements for his evaluation by Dr. Obianwu for an impairment assessment, so appellant
knew that OWCP was capable of arranging a second opinion evaluation for the thumb condition.
OWCP also noted that Oklahoma City was more than 800 miles from appellant’s home in
Michigan.
By letter dated August 22, 2013, appellant stated that he filed a claim on August 31, 2012
for three schedule awards and that there had only been activity on one of the claims. He inquired
about what action was being taken on the other two claims. Appellant also filed a request for
review of the written record by an OWCP hearing representative with regard to the
August 5, 2013 decision denying his claim for travel reimbursement.
In an August 12, 2013 letter, appellant indicated that the Ellis Clinic requested
authorization for the medical examination and it was authorized for claim File Nos. xxxxxx852,
xxxxxx 855 and xxxxxx846.
The April 15, 2013 report of Dr. Ellis was received by OWCP on September 23, 2013.
Dr. Ellis opined that for claim File No. xxxxxx357 appellant had a seven percent impairment of
his left upper extremity due to lateral epicondylitis and in claim File No. xxxxxx003, he found an
eight percent impairment of the left thumb.
On September 26, 2013 OWCP issued a schedule award for a 10 percent impairment of
the right upper extremity.

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In a letter to appellant dated October 22, 2013, OWCP noted that appellant’s claim in File
No. xxxxxx003 has been accepted for left thumb tendinitis; File No. xxxxxx292 had been
accepted for left lateral epicondylitis and that it had received a request for left elbow surgery in
claim File No. xxxxxx292 which had been approved. It noted that as he was not at maximum
medical improvement with regards to his left upper extremity and no additional action would be
taken on the schedule award. In a statement of accepted facts dated November 12, 2013, OWCP
noted that on December 20, 2012 appellant began to experience pain in his left elbow which he
attributed to his federal duties. Under File No. xxxxxx292, accepted for left lateral epicondylitis,
appellant stopped work on November 11, 2013 to undergo left elbow repair.
By decision dated January 27, 2014, an OWCP hearing representative affirmed the
August 5, 2013 decision denying appellant’s request for travel expenses for attending a medical
examination in Oklahoma.
LEGAL PRECEDENT
Section 8103 of FECA3 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability or aid in lessening the amount of monthly compensation.
Section 10.315 of Title 20 of the Code of Federal Regulations provide, in relevant part:
“The employee is entitled to reimbursement of reasonable and necessary
expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what is a reasonable distance to travel
[OWCP] will consider the availability of services, the employee’s condition and
the means of transportation. Generally, 25 miles from the place of injury, the
worksite or the employee’s home, is considered a reasonable distance to travel.
The standard form designated for [f]ederal employees to claim travel expenses
should be used to seek reimbursement under this section.”4
The only limitation on OWCP’s authority is reasonableness. Abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment or
actions taken which are contrary to both logic and probable deductions from known facts.5 The
Board has long held that OWCP has broad discretion in approving services provided under
FECA.6

3

20 C.F.R. § 10.315.

4

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

5

Supra note 3.

6

See W.T., Docket No. 13-197 (issued June 3, 2013); see also William B. Webb, 56 ECAB 156 (2004); Lecil E.
Stevens, 49 ECAB 673 (1998).

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ANALYSIS
The Board finds that OWCP did not abuse its discretion when it denied appellant’s
request for reimbursement of travel expenses for a medical examination in Oklahoma City on
April 15, 2013.
On August 31, 2012 appellant requested schedule awards under three different cases,
OWCP claim File Nos. xxxxxx298, xxxxxx357 and xxxxxx003. On September 24, 2012 he
requested that OWCP schedule a second opinion evaluation with regard to his right shoulder. An
impairment evaluation with a second opinion physician, Dr. Obianwu, was scheduled for
March 4, 2013. He rated impairment to the left arm of 10 percent. The report of Dr. Obianwu
was reviewed by OWCP’s medical adviser and appellant was granted a schedule award for 10
percent impairment of his right upper extremity on September 26, 2013.7
Appellant went to Oklahoma on April 15, 2013 to obtain an impairment rating for his left
thumb and left elbow by Dr. Ellis. Contrary to his assertions on appeal, there is no evidence of
record that his travel to Oklahoma City was ever authorized by OWCP.
Appellant resides in Michigan and flew to Oklahoma City to obtain a medical evaluation
on his left thumb and left elbow, a distance which OWCP noted was over 800 miles from his
home. He asked for reimbursement for his airfare and automobile rental. Appellant contends
that he could not locate a physician to provide impairment rating in Michigan or Northern
Indiana. However, the record reflects that in response to his request for assistance to obtain a
second opinion impairment rating of his right shoulder OWCP scheduled an evaluation on
March 4, 2013 by Dr. Obianwu, a physician with offices in Southfield and Grand Rapids,
Michigan. Thereafter, on his own volition, appellant traveled to Oklahoma City for an
evaluation on April 15, 2013 by Dr. Ellis. OWCP denied reimbursement for travel expenses,
noting a second opinion examination could be scheduled much closer to his home, as with the
appointment with Dr. Obianwu. Appellant has not established that his examination by Dr. Ellis
was reasonable or necessary to the adjudication of his claims for schedule awards. His expenses
were incurred for medical services not authorized by OWCP. Section 8103 provides that
medical care shall be furnished by or on the order of physicians designated or approved by
OWCP. 8 In the absence of an emergency, an employee may not recover the cost of medical care
obtained without prior approval.
The Board finds that OWCP properly considered the factors enumerated in section
10.315 of its regulations and denied appellant’s request for authorization for travel expenses to
see Dr. Ellis in Oklahoma City. OWCP did not abuse its discretion by denying authorization of
travel expenses between Michigan and Oklahoma City.

7

The Board notes that appellant has not appealed the schedule award decision of September 26, 2013. Thus, it is
not currently before the Board. See 20 C.F.R. § 501.3(a).
8

See Mildred A. Lindell, 56 ECAB 287 (1983).

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CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying appellant’s request
for reimbursement of travel expenses for an April 15, 2013 medical appointment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 27, 2014 is affirmed.
Issued: August 6, 2014
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Vero Beach, FL, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1386
Issued: February 23, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 5, 2009 appellant filed a timely appeal from a February 24, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error. Because more than one year has elapsed between the last merit decision of August 9, 2007
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.

ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely and failed to establish clear
evidence of error.

FACTUAL HISTORY
On March 7, 2003 appellant filed a notice of recurrence (CA-2a) alleging that she
sustained a lower back injury on February 24, 2003 when she stepped into a hole while getting
out of her mail truck.1 The Office developed the claim as a traumatic injury claim.
The Office initially denied appellant’s claim on September 7, 2005 on the grounds that
there was no medical evidence which provided a diagnosis that could be connected to the
incident. In a January 23, 2007 decision, an Office hearing representative affirmed the
September 7, 2005 decision on the grounds that appellant had failed to establish the fact of
injury. By decision dated August 9, 2007, the Office denied modification of its previous
decision, finding that appellant had not established that a specific incident had occurred in the
time, place and in the manner alleged. It found that appellant had provided inconsistent
variations of the events which allegedly caused her back injury.
On December 29, 2008 appellant, through her representative, requested reconsideration.
Counsel stated that appellant’s claim “actually represents a continuing repetitive trauma injury as
[her] day to day duties are what aggravated her condition as finally demonstrated on
February 24, 2003 when she had to cut short her route.” He indicated that he was submitting a
report from appellant’s physician, which he contended was sufficient to establish a causal
relationship between her repetitive employment activities and her back condition.
Appellant submitted a December 17, 2008 statement in which she indicated that she
originally injured her lower back on June 29, 1999 when she stepped out of her mail truck and
into a hole. She noted that her claim was accepted for lumbago. Appellant described her carrier
duties, which involved getting in and out of the mail truck approximately 80 times per day, and
frequently picking up trays of mail, which weighed up to 70 pounds. Her back condition
allegedly worsened over time, and on February 24, 2003 she found it impossible to complete her
routes. Appellant stated that “there was no particular incident that occurred on February 24,
2003, but just a gradual progression of the condition over many days and weeks since [she] had
returned after the 2001 incident.”
Appellant submitted an undated report from Dr. Frank X. Conidi, a neurologist. Noting
that he had been treating appellant since 2006 for low back pain, Dr. Conidi stated that previous
sensory examinations had revealed decreased light touch on the dorsum of the right foot,
decreased temperature on the lateral aspect of the right leg and a possible decreased ankle jerk on
the right side. Musculoskeletal examinations revealed pain on palpation at the L5 spinous
process, as well as in the right piraformis and lumbar paraspinal regions in the lower lumbar area
on the right. Dr. Conidi indicated that his objective findings were consistent with the results of a
January 25, 2006 magnetic resonance imaging (MRI) scan of the L5-S1 area. He diagnosed
L5-Sl disc herniation on the right side, with right lower extremity radiculopathy, and piraformis
syndrome on the right. Stating that the original injury to appellant’s low back had occurred on
June 29, 1999, Dr. Conidi related that in 2003, her symptoms gradually worsened, and she
developed radicular pain in her right leg. He opined that appellant’s condition was caused by her
years of performing the duties of a letter carrier, which consisted of getting in and out of her
1

Appellant’s June 29, 1999 traumatic injury claim (File No.xxxxxx864) was accepted for lumbago.

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delivery vehicle approximately 80 times a day and carrying the trays of mail. Noting that the
original injury predisposed appellant to subsequent aggravation, Dr. Conidi opined that her
repetitive work activities provided nearly daily exacerbation, resulting in the disc herniation with
nerve root involvement.
In a decision dated February 24, 2009, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.2 It
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.3 In implementing the one-year time limitation,
the Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision. However, a right to
reconsideration within one year accompanies any subsequent merit decision on the issues.4
When an application for review is untimely, the Office undertakes a limited review to
determine whether the application presents clear evidence that the Office’s final merit decision
was in error.5 The Office procedures state that the Office will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s application for review shows clear evidence of error on the part of the Office.6 In this
regard, it will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.8 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 the Office of how the
2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

4

Veletta C. Coleman, 48 ECAB 367 (1997); Larry L. Lilton, 44 ECAB 243 (1992).

5

Id.

6

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “[The Office] will consider an
untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of
[it] in its most recent decision. The application must establish, on its face, that such decision was erroneous.
20 C.F.R. § 10.607(b).
7

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

8

Leon J. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 ECAB 143 (2003).

3

evidence submitted with the reconsideration request bears on the evidence previously of record,
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.9 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office, such that the Office abused its discretion in denying merit review in the face
of such evidence.10
ANALYSIS
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely and failed to establish clear
evidence of error.
The Office properly determined that appellant failed to file a timely application for
review. Its procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.11 Aright to reconsideration
within one year also accompanies any subsequent merit decision on the issues.12 As appellant’s
December 29, 2008 request for reconsideration was submitted more than one year after August 9,
2007, the date of the last merit decision of record, it was untimely. Consequently, she must
demonstrate clear evidence of error by the Office in denying her claim.13
In its August 9, 2007 decision, the Office found that appellant had failed to establish that
a specific incident had occurred in the time, place and in the manner alleged. It found that
appellant had provided inconsistent accounts of the incident which allegedly caused her back
injury. Appellant has not demonstrated clear evidence of error on the part of the Office in
issuing its decision. She did not submit the type of positive, precise and explicit evidence that
manifests on its face that the Office committed an error.
In connection with the untimely reconsideration request, appellant’s representative stated
that appellant’s claim “actually represents a continuing repetitive trauma injury as [her] day to
day duties are what aggravated her condition as finally demonstrated on February 24, 2003 when
she had to cut short her route.” He contended that the undated report from Dr. Conidi was
sufficient to establish a causal relationship between her repetitive employment activities and her
back condition. Counsel’s argument does not establish error on the part of the Office. Rather, it
undermines appellant’s traumatic injury claim, in which she alleged that she injured her back on
9

Id.

10

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

11

20 C.F.R. § 10.607(a).

12

Robert F. Stone, 57 ECAB 292 (2005).

13

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

4

a specific day, February 24, 2003, when she stepped out of her mail truck. The Office did not
adjudicate the claim as an occupational disease as counsel’s argument now maintains.
In a December 17, 2008 statement, appellant indicated that “there was no particular
incident that occurred on February 23, 2003, but just a gradual progression of the condition over
many days and weeks.” Her statement does not refute the Office’s determination that she did not
establish the occurrence of a traumatic injury on February 24, 2003 as originally claimed.
Therefore, appellant’s statement is insufficient to establish that the Office erred when it rendered
its August 9, 2007 decision.
Appellant submitted an undated report from Dr. Conidi, who noted that he had been
treating appellant since 2006 for low back pain. Dr. Conidi provided examination findings and
diagnosed L5-Sl disc herniation on the right side, with right lower extremity radiculopathy and
piraformis syndrome on the right. He provided a history of injury, which reflected that the
original injury to appellant’s low back occurred on June 29, 1999, and that in 2003, her
symptoms gradually worsened, and she developed radicular pain in her right leg. Dr. Conidi
opined that appellant’s condition was caused by her years of performing the repetitive duties of a
letter carrier.
The Board finds that Dr. Conidi’s report is insufficient to establish clear evidence of
error. The term “clear evidence of error” is intended to represent a difficult standard. The
submission of a detailed well-rationalized medical report which, if submitted before the denial
was issued, would have created a conflict in medical opinion requiring further development, is
not clear evidence of error.14 The evidence must prima facie shift the weight of the evidence in
favor of appellant.15 Dr. Conidi’s report does not address whether appellant sustained a
traumatic injury on February 24, 2003, as alleged; nor does it discuss the “inconsistent variations
of the events which allegedly caused her back injury.” Rather, he attributes appellant’s L5-Sl
disc herniation to repetitive duties over an extended period of years. Dr. Conidi’s report does not
manifest on its face that the Office committed an error in denying appellant’s traumatic injury
claim.16
On appeal, counsel argues that the Office erred by misinterpreting appellant’s statement
regarding her history and that the claims examiner ignored newly submitted evidence. The
Board finds counsel’s arguments do not establish clear error in the Office’s denial of appellant’s
claim of traumatic injury. The Office’s February 24, 2009 decision reflects that it considered all
newly submitted evidence under the “clear evidence of error” standard. Neither appellant’s
statement, nor Dr. Conidi’s report, is sufficient to establish clear error at the time it issued its
decision.17 As noted, it is not enough merely to show that the evidence could be construed so as
to produce a contrary conclusion. Rather, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
14

Joseph R. Santos, 57 ECAB 554 (2006).

15

See Darletha Coleman, supra note 8.

16

20 C.F.R. § 10.607(b).

17

Leon J. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 ECAB 143 (2003).

5

must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office’s decision.18
Appellant’s attempt to clarify the “issue of events” does not meet this standard.
The Board finds that appellant failed to present clear evidence that the Office’s final
merit decision was in error.19 Therefore, the Office properly refused to reopen appellant’s claim
for reconsideration of the merits on the grounds that it was untimely and failed to establish clear
evidence of error.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely and failed to
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 24, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 23, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

18

Id.

19

Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Macon, GA, Employer
__________________________________________

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

Docket No. 10-371
Issued: October 14, 2010

Case Submitted on the Record

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

JURISDICTION
On November 23, 2009 appellant filed a timely appeal from a November 2, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established she sustained an injury in the performance of
duty on July 11, 2009 causally related to her employment.
Appellant argues that she has submitted all the medical evidence she has which should
have been sufficient to grant her claim for medical compensation.
FACTUAL HISTORY
On July 15, 2009 appellant, a 40-year-old postal employee, filed a traumatic injury claim
(Form CA-1) for left elbow pain which she attributes to a July 11, 2009 incident when the postal
vehicle she was driving was involved in a motor vehicle accident.

Appellant submitted reports signed by a nurse practitioner and a note dated August 10,
2009 in which appellant described the events of July 11, 2009 and her symptoms.1
By decision dated August 26, 2009, the Office denied the claim because the evidence of
record did not demonstrate that the established employment incident caused a medicallydiagnosed injury.
In a September 21, 2009 report, Dr. Charles H. Hughes, Jr., a Board-certified orthopedic
surgeon, presented findings on examination and diagnosed left lateral epicondylitis.
On October 2, 2009 appellant requested reconsideration.
By decision dated November 2, 2009, the Office affirmed its August 26, 2009 decision,
finding the evidence of record did not demonstrate that the established employment incident
caused a medically-diagnosed injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,3
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.4 As part of her burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment

1

The Board notes that the Office issued a Form CA-16. A properly executed Form CA-16 creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989). The CA-16 issued to
appellant did not authorize examination or treatment and was therefore not properly executed.
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

2

incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.9
ANALYSIS
The Office accepted that appellant established the employment incident she deemed
responsible for her condition. Appellant’s burden is to demonstrate the established employment
incident caused a medically-diagnosed injury. Causal relationship is a medical issue that can
only be proven by probative medical opinion evidence. Appellant has not submitted sufficient
medical opinion evidence supporting her claim and, consequently, the Board finds appellant has
not established she sustained an injury in the performance of duty on July 11, 2009, causally
related to her employment.
Appellant submitted reports signed by a nurse practitioner. Because healthcare providers
such as nurses, acupuncturists, physician’s assistants and physical therapists are not considered
“physicians” under the Act, their reports, notes and opinions do not constitute competent medical
evidence.10 Thus, these reports do not establish the required causal relationship between the
established employment incident and a medically-diagnosed injury.
The relevant medical opinion evidence of record consists of a Dr. Hughes’ September 21,
2009 report. Dr. Hughes diagnosed left lateral epicondylitis but did not explain how the
established employment incident caused the conditions he diagnosed. For this reason, his report
has little probative value and is insufficient to establish the requisite causal relationship.

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
9

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
10

5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (Docket No. 06-1564, issued February 27, 2007); Jerre R.
Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).

3

An award of compensation may not be based on surmise, conjecture or speculation.11
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.12 The fact that a condition manifests itself or worsens during a
period of employment13 or that work activities produce symptoms revelatory of an underlying
condition14 does not raise an inference of causal relationship between a claimed condition and an
employment incident.
Because appellant has not submitted competent medical opinion evidence containing a
reasoned discussion of causal relationship, one that soundly explains how the accepted
employment incident caused or aggravated a firmly diagnosed medical condition, the Board
finds appellant has not established the essential element of causal relationship.
CONCLUSION
The Board finds appellant has not established she sustained an injury in the performance
of duty on July 11, 2009, causally related to her employment.

11

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
12

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

13

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

14

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

4

ORDER
IT IS HEREBY ORDERED THAT the November 2 and August 26, 2009 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 14, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 16-1679
Issued: June 21, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 10, 2016 appellant filed a timely appeal from a February 12, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from the last merit decision, dated January 15, 2016, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.3

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from February 12, 2016, the date of OWCP’s last decision, was
August 10, 2016. Since using August 15, 2016, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is August 10, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

3

20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 8, 2006 appellant, then a 52-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed left ankle and foot conditions due to her
federal employment duties as of June 15, 2004. She reported that her conditions were caused by
her employment duties which required that she stand for 3 to 3.5 hours per day sorting mail and
stand for approximately 7 hours per day while making mail deliveries.
OWCP accepted the claim for aggravation of left tibial tendon rupture, contracture of
tendon, and enthesopathy of left ankle. On July 9, 2007 appellant underwent left medial
displacement calcaneal osteotomy, left gastrocnemius tendon lengthening, left flexor digitorum
longus tendon transfer, and left first tarsometatarsal arthrodesis. The surgery was approved by
OWCP. On November 24, 2010 appellant had left ankle surgery for removal of hardware and
subtalar arthrodesis.
Appellant stopped work intermittently and received medical and wage-loss compensation
benefits. On November 23, 2011 she accepted a limited-duty assignment with restrictions of no
lifting more than 35 pounds, case route for one to three hours per day, and deliver route for one
to six hours per day. On May 16, 2014 appellant again stopped work.
On August 7, 2014 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period June 28 through July 11, 2014.
By letter dated August 12, 2014, OWCP requested that appellant submit additional
medical evidence in support of her claim for disability. Appellant was afforded 30 days to
submit the additional evidence.
OWCP received additional medical evidence in support of appellant’s claim.
In an April 29, 2014 medical report, Dr. Pooja Patel, a Board-certified rheumatologist,
reported complaints of pain in the neck, back, left hip, left knee, right hip, and right knee. He
diagnosed osteoarthritis of the knee, trochanteric bursitis of both hips, and unspecified hand pain.
Dr. Patel noted that appellant’s physical examination revealed bilateral trochanteric bursitis,
bilateral knee crepitus, and neck paraspinal tenderness. He further opined that appellant had
degenerative arthritis and trochanteric bilateral bursitis.
In a June 20, 2014 report, Dr. Warren Ray Blount, an emergency room (ER) physician,
reported that appellant complained of bilateral feet weakness and trouble walking. He diagnosed
chronic foot discomfort.
OWCP received a June 30, 2014 note, wherein Dr. George N. Merritt, a podiatrist, related
that appellant was evaluated on that date and could return to work on July 9, 2014.

2

In a September 23, 2014 report, Dr. Harvey Bishow, a Board-certified orthopedic
surgeon, diagnosed aggravation of posterior tibial tendinitis of the left ankle, pes planovalgus of
the left foot, chronic posterior tibial tendinitis of the left foot and ankle, and arthritis of the
subtalar joint of the left foot. He opined that appellant’s job duties aggravated her preexisting
injury of posterior tibial tendinitis and was the direct and proximate cause of the diagnoses listed.
By decision dated October 29, 2014, OWCP denied appellant’s claim for compensation
for disability for the period June 28 through July 11, 2014 finding that the medical evidence
failed to establish that her disability from work during that period was due to the accepted workrelated conditions.
Appellant filed another Form CA-7 claim for wage-loss compensation for the period
September 20 through October 4, 2014.
On November 3, 2014 appellant accepted a limited-duty modified city carrier assignment
which provided restrictions of no lifting/carrying over 20 pounds for up to four hours per day;
sitting, twisting, pushing, pulling, and simple grasping for up to four hours per day; fine
manipulation and reaching above shoulder for up to four hours per day; and standing, walking,
and kneeling for up to one hour per day.
On November 4, 2014 appellant requested a telephone hearing before an OWCP hearing
representative. She submitted numerous medical reports in support of her disability claim.
In an October 15, 2014 report, Dr. Merritt related that appellant was not fit to go back to
work. He noted that he had previously excused her from work commencing July 2, 2014 for a
period of six weeks. Dr. Merritt opined that appellant’s condition was definitely the result of her
work-related injury and although it had been treated surgically, the condition continued to
worsen. He explained that a progression of degeneration occurred in the foot where appellant
had arthritis. Appellant’s joints became more symptomatic because she altered her gait.
Dr. Merritt opined that appellant should be excused from work because she was unable to
ambulate or use her foot. He questioned whether appellant would have a return of her symptoms
if she returned to work.
In a December 15, 2014 report, Dr. Merritt reported that appellant would always have
some type of gait instability which would cause undue strain on other parts of her body, such as
her knees, hip, and back. He explained that her feet were the foundation of the body and
structures, and her knees were affected because they helped carry the load and compensated for
the deformities in her feet and ankles.
A hearing was held on June 2, 2015 where appellant testified that her claim should be
expanded to include a hip condition. She explained that she did not work during the period
June 28 through October 4, 2014 because she would have had to stand on her feet. Counsel for
appellant referenced Dr. Merritt’s October 15 and December 15, 2014 medical reports in support
of her disability claim.
By decision dated August 12, 2015, OWCP’s hearing representative affirmed the
October 29, 2014 decision in part, finding that the medical evidence of record failed to establish
that appellant was disabled from work for the period June 28 and 29, 2014 because appellant had
3

not been seen by a physician on those dates. The hearing representative found that there was no
evidence of record that appellant was unable to work prior to June 30, 2014. OWCP remanded
the case for further development of the medical evidence to determine if she was disabled for the
period June 30 through October 4, 2014.
Per the instructions of the hearing representative, OWCP referred appellant, the case file,
a statement of accepted facts (SOAF), and a series of questions to Dr. Jared A. Toman, a Boardcertified orthopedic surgeon, for a second opinion evaluation on October 14, 2015. It requested
that he identify all medical conditions, including any consequential conditions, caused by
appellant’s work exposure, and provide rationale in support of his conclusions. OWCP further
requested that Dr. Toman determine whether appellant was disabled from work for the period
June 30 through October 4, 2014.
In an October 21, 2015 report, Dr. Toman related that appellant’s most recent significant
surgery was in November 2010 and as such, it was difficult to determine disability as a result of
the surgery from June through September 2014. He explained that she had been working until
June 2014 and there was no history or evidence of a precipitating or aggravating event which
would have caused an exacerbation of her symptoms. Dr. Toman noted that appellant had
difficulty bearing weight, and that her altered gait might not have happened had she not
undergone surgery on the contralateral lower extremity. He opined that cervical disease,
shoulder disease, and abdominal issues were not related to the work exposure or subsequent
surgical procedures.
Dr. Toman further explained that appellant was assigned to light duty starting in 2011
with lifting no more than 35 pounds, and with limitations on walking, kneeling, and driving. He
reported that pain prevented her from walking, but her hip bursitis had resolved during this time.
As to the question of whether appellant was disabled from work, Dr. Toman explained that this
depended on the type of work that was available to her. He noted that if she had been able to
remain in a sedentary position, it was unlikely that she would have been totally disabled from
gainful employment. Dr. Toman reported that based on appellant’s description of her usual and
customary job, and even the light-duty restrictions she was provided, the exacerbation during this
interval may have hindered her ability to both commute to and from work, as well as stand,
climb, or drive for protracted periods of time. He opined that she had some level of disability
although it was unclear how it developed and how it eventually resolved. Dr. Toman noted that
appellant had been off work since January 2015.
On October 29, 2015 OWCP requested that Dr. Toman clarify his opinion with regards to
any work-related conditions.
In a January 6, 2016 supplemental report, Dr. Toman reported that appellant’s injury was
from 2004 and she was complaining about pain approximately 10 years after the date of injury.
As such, appellant was not disabled from June to October 2014 based on symptoms arising
directly from her injury in 2004. Dr. Toman noted that to imply that all of appellant’s current
pain and perceived disability were related to a low energy ankle injury was neither correct nor
responsible. He stated that appellant’s other diagnosed conditions were not related to the 2004
injury. Dr. Toman reported that OWCP’s premise for the criteria of disability was flawed as it
stated that the capacity for employment was a medical issue. He disagreed stating that it was a

4

relative capacity issue. Dr. Toman explained that appellant was able to perform activities of
daily living which meant that, if matched work of the same demand was available, and she was
willing, she would be able to perform some kind of work activity. He further related that if a job
was available for appellant which required that she do little more than sit and sort small objects
with her hands she would be more than capable of performing full-capacity work.
In support of her claim, appellant submitted medical reports dated August 4 through
December 2, 2015 from Dr. Robert R. Reppy, an osteopathic physician. In a December 2, 2015
report, Dr. Reppy reported that appellant had a left foot and ankle work-related injury from 2004
when she was diagnosed with posterior tibial tendon dysfunction. Appellant underwent her first
surgery on July 9, 2007 where hardware was placed. In November 2010, she had an additional
surgery for a tendon transfer and the rod remained in the left heel. Appellant developed some
damage in the right foot consequential to not being able to use the left foot properly, and this
required further surgery on January 29, 2013. Dr. Reppy noted that she had worked for the
employing establishment since 1988 and her work status since June 10, 2015 had been “no work
available that could meet her current restrictions.” He reported that the results of a nerve
conduction velocity test done on July 31, 2014 were abnormal with polyneuropathy of the lower
extremities affecting both S1 nerve roots. He reported that a July 18, 2014 x-ray of the left foot
showed prior fusion of the first tarsometatarsal joint and of the subtalar joints. An x-ray of the
ankle revealed degenerative changes. Dr. Reppy diagnosed internal derangement of the left
ankle, chronic tendinitis of the posterior tibialis, planovalgus, osteophytes of the left foot, status
post tarsometatarsal fusion of the left ankle, and status post wedge resection of the left foot.
By decision dated January 15, 2016, OWCP denied appellant’s claim finding that the
evidence of record failed to establish disability from June 30 through October 4, 2014 causally
related to her accepted work-related conditions. It based its decision on the reports from
Dr. Doman, who served as OWCP’s second opinion physician.
On January 22, 2016 appellant requested reconsideration of the merits of her claim.
In a January 22, 2016 narrative statement, appellant disagreed with the January 15, 2016
OWCP decision, contending that the claims examiner overlooked and misinterpreted pertinent
information. She noted that the claims examiner stated that Dr. Toman found it unlikely that she
was disabled for the period June 30 through October 2014. However, appellant argued that the
claims examiner had not fully read Dr. Toman’s comment as he explained that the question of
disability from work relied on the scope of employment that was available to her at that time and
if she had been able to remain sedentary, it was unlikely that she would have been totally
disabled. She argued that this statement supported her claim because at the time of disability,
she did not have a sedentary position and no work was available within her restrictions of one to
two hours of walking and standing. Appellant further argued that she was not evaluated by
Dr. Toman until October 2015. Because she had not worked since January 2015, her
October 2015 evaluation and condition would not have been the same as during her June 2014
period of disability when she had to stop work because her employment duties caused issues
with her left foot and ankle. Appellant reported that, Dr. Merritt and Dr. Williams, the ER
physicians, documented her condition and treatment, contrary to Dr. Toman’s assertion that there
were no medical reports from the period of disability claimed. She concluded that the claims

5

examiner took too long to issue a decision over the course of 135 days when the decision should
have been issued within 90 days.
By decision dated February 12, 2016, OWCP denied appellant’s request for
reconsideration finding that she neither raised substantive legal questions, nor included relevant
and pertinent new evidence.
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 Section 10.608(b) of OWCP
regulations provide that when an application for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.5
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim, pursuant to 5 U.S.C. § 8128(a).6
In her January 22, 2016 request for reconsideration, appellant did not establish that
OWCP erroneously applied or interpreted a specific point of law. She argued that the claims
examiner overlooked and misinterpreted information by failing to fully review Dr. Toman’s
report in conjunction with her work limitations. Appellant explained that Dr. Toman’s report
provided support for disability as he explained that if she had been able to remain sedentary at
work, it was unlikely she would have been totally disabled. She noted that she did not have a
sedentary position and no work was available within her medical restrictions. Appellant further
argued that the second opinion physician did not have a complete and accurate record as he
incorrectly stated that she did not seek medical treatment during the period of disability claimed,
making reference to prior medical reports of record.
The Board notes that OWCP properly reviewed the reports of Dr. Toman, as well as the
additional medical reports of record, in its January 15, 2016 decision and found that the evidence
of record failed to establish disability from June 30 through October 4, 2014 as a result of her
accepted work-related conditions. Appellant did not establish an error on a specific point of law

4
5
6

D.K., 59 ECAB 141 (2007).
20 C.F.R. § 10.608(b); K.H., 59 ECAB 495 (2008).
D.L., Docket No. 16-0342 (issued July 26, 2016).

6

or advance a relevant legal argument.7 As such, she was not entitled to a review of the merits of
her claim based on the first and second above-noted requirements under section 10.606(b)(3).8
The Board notes that the underlying issue in this case was whether appellant was disabled
from work for the period June 30 through October 4, 2014 as a result of her accepted workrelated conditions.9 That is a medical issue which must be addressed by relevant medical
evidence.10 A claimant may obtain a merit review of an OWCP decision by submitting relevant
and pertinent new evidence. In this case, appellant failed to submit any relevant and pertinent
new evidence addressing disability and causal relationship in support of her claim.11
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

7

A.T., Docket No. 14-417 (issued June 25, 2014).

8

20 C.F.R. § 10.606(b)(3).

9

L.J., Docket No. 14-523 (issued August 7, 2014).

10

See Bobbie F. Cowart, 55 ECAB 746 (2004).

11

C.B., Docket No. 08-1583 (issued December 9, 2008).

7

ORDER
IT IS HEREBY ORDERED THAT the February 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 21, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Newark, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1062
Issued: April 17, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 26, 2016 appellant, through counsel, filed a timely appeal from a February 25,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective April 10, 2013 as his accepted
lumbosacral sprain/strain had ceased without residuals; and (2) whether appellant established
continuing residuals or associated disability due to the accepted lumbosacral sprain/strain on and
after April 10, 2013.
FACTUAL HISTORY
This case has previously been before the Board. The facts relevant to the present appeal
are set forth below.
OWCP accepted that on June 5, 2007 appellant, then a 61-year-old lead security screener,
sustained a lumbosacral sprain/strain when he lifted a suitcase from a conveyor belt. Appellant
stopped work that day and did not return. He received compensation for total disability on the
supplemental rolls beginning July 21, 2007 and on the periodic rolls as of September 30, 2007.3
In 2007 and 2008, appellant was followed by several physicians for a severe lumbosacral
sprain with L3-4 disc herniation and degeneration, an L3-4 annular tear, L3-4 disc bulge, lumbar
facet arthropathy, bradykinesia and increased muscle tone. Dr. John Dellorso, a Board-certified
internist consulting to the employing establishment, submitted reports from June 6 to 27, 2007
diagnosing a severe lumbosacral sprain with L3-4 disc herniation and degeneration caused by the
June 5, 2007 lifting incident. Dr. Scott L. Gottlieb, an attending Board-certified anesthesiologist,
administered lumbar nerve block injections in February 2008 to address an L3-4 disc bulge and
lumbar facet arthropathy.
On March 25, 2008 OWCP obtained a second opinion from Dr. David Rubinfeld, a
Board-certified orthopedic surgeon. On examination, Dr. Rubinfeld noted bilaterally positive
straight leg raising tests, restricted lumbar motion, decreased sensation in “the foot” and that
appellant was unable to heel walk. Appellant diagnosed a lumbosacral strain. Dr. Rubinfeld
found no current disability from other nonoccupational, preexisting, or subsequent conditions.
He opined that appellant could perform full-time restricted duty. Dr. Rubinfeld limited pushing,
pulling, and lifting to 40 pounds and no more than four hours a day, squatting and kneeling to
three hours a day, and climbing to two hours a day.
In an April 16, 2008 report, Dr. Daniel R. Van Engel, an attending Board-certified
neurologist, opined that appellant’s lower extremity dysesthesias, masked facies, slow walk, and
cogwheel rigidity all supported a diagnosis of Parkinson’s disease. In a June 18, 2008 report,
Dr. Van Engel opined that appellant’s back pain was caused by degenerative lumbar facet
disease.

3

Appellant submitted medical records regarding preexisting musculoskeletal conditions. He underwent a C4-5
anterior fusion due to a fracture in 1965. A March 6, 2006 magnetic resonance imaging (MRI) scan showed a large
annular bulge at C6-7 with bilateral neural foraminal narrowing and ventral flattening of the spinal cord. Dr. Lee
Berman, an attending Board-certified internist, treated appellant for arthritis of the left knee in August 2006.

2

On October 7, 2008 the employing establishment offered appellant a limited-duty
assignment as a lead transportation security officer. Duties to be performed while standing
included monitoring exit points, inspecting passengers, and directing passengers through
detection equipment. The physical requirements matched Dr. Rubinfeld’s restrictions.
In an October 17, 2008 letter, OWCP advised appellant that the October 7, 2008 job offer
was suitable work within Dr. Rubinfeld’s March 25, 2008 restrictions. Appellant was afforded
30 days to accept the offer or provide good cause for refusal.
In a November 1, 2008 letter, appellant explained that he neither accepted nor rejected
the job offer. He submitted August 13 and October 28, 2008 reports from Dr. James C. Farmer,
an attending Board-certified orthopedic surgeon, noting absent Achilles’ reflexes bilaterally and
restricted lumbar motion. Dr. Farmer reviewed a May 8, 2008 MRI scan showing a left-sided
L2-3 herniation with compression of the left L3 nerve root and significant disc degeneration at
L4-5. He diagnosed discogenic back pain and recommended a lumbar fusion.
In a November 18, 2008 letter, OWCP advised appellant that he had not provided
sufficient reasons for refusing the offered position. It noted that it would not consider any
further reasons to justify his refusal of the job offer. Appellant provided December 2, 2008
letters, explaining that he had retired from the employing establishment effective May 31, 2008.
Dr. Carl W. Heise, an attending Board-certified neurologist, submitted a December 2,
2008 report noting an old C4-5 wedge fracture with fusion and spinal cord atrophy and a
protruding C5-6 disc with moderate-to-severe stenosis. He noted that appellant’s Parkinson’s
disease had progressed in the right leg.
By decision dated December 24, 2008, OWCP terminated appellant’s monetary
compensation benefits effective December 16, 2008, finding that he refused an offer of suitable
work under 5 U.S.C. § 8106(c)(2).
In a January 13, 2009 letter, appellant requested a telephonic hearing, held before an
OWCP hearing representative on May 14, 2009. At the hearing, he asserted that OWCP had
failed to consider his cervical fusion and Parkinson’s disease when it determined the offered
transportation security officer position was suitable work. Following the hearing, appellant
submitted a May 27, 2009 report from Dr. Heise noting worsening Parkinson’s disease, severe
spinal stenosis at C6-7 and a complex situation at C4-5 due to the old fracture.
By decision dated August 5, 2009, OWCP’s hearing representative affirmed the
December 24, 2008 decision.
On September 28, 2009 appellant requested reconsideration.
He submitted a
September 21, 2009 report from Dr. Heise finding that, as of November 18, 2008, he was unable
to stand more than 10 to 15 minutes due to severe discogenic pain
By decision dated December 17, 2009, OWCP denied modification, finding that the new
medical evidence failed to establish that appellant was medically incapable of performing the
offered position.

3

On December 23, 2009 counsel requested reconsideration, contending that Dr. Rubinfeld
was biased and unqualified. OWCP denied reconsideration by a March 4, 2010 nonmerit
decision, finding that the evidence and arguments submitted were irrelevant to the medical issue
in the claim.
Appellant appealed to the Board on April 26, 2010. By order issued June 23, 2010,4 the
Board dismissed his appeal at counsel’s request.
Counsel requested reconsideration on May 20, 2010. He submitted an April 28, 2010
operative report of appellant’s L3-4 fusion and L4-5 interbody cage placement.
By decision dated August 3, 2010, OWCP denied modification of the December 17, 2009
decision, finding that the April 28, 2010 operative report failed to establish that appellant was
disabled from performing the offered transportation security officer position. Appellant appealed
to the Board.
By decision issued August 23, 2011,5 the Board reversed OWCP’s August 3, 2010
decision, finding a conflict of medical opinion between Dr. Rubinfeld, for the government, and
appellant’s physicians, regarding appellant’s physical work capacity. The Board found that
OWCP should have complied with section 8123(a) of FECA6 by appointing an impartial medical
examiner to resolve the conflict. As OWCP did not do so, the suitable work termination was
reversed.7
To resolve the outstanding conflict of medical opinion between Dr. Rubinfeld, for the
government, and appellant’s physicians, OWCP utilized the Physicians Directory System (PDS).
It identified four physicians in appellant’s zip code cluster, but determined that either there was
no current contact information or that the physicians were not neurosurgeons.8 As there was no
Board-certified neurosurgeon available within appellant’s residence zip code cluster, OWCP
increased the search radiance to 14 miles outside the cluster. Using the new search parameter, it
identified Dr. Alonso Corea, in zip code 07503, and Dr. David Segal, in zip code 10901. As
there was no current contact information for either physician, OWCP selected Dr. Jeffrey
Oppenheim, a Board-certified neurosurgeon, as the impartial medical specialist.
Dr. Oppenheim’s medical office was in Suffern, New York, zip code 10901, 13.82 miles outside
of appellant’s residential zip code cluster. The case record contains a November 11, 2012
referee medical examiner referral form noting that Dr. Oppenheim was selected using the PDS,
and a November 19, 2012 Form ME023 Appointment Schedule Notification reflecting same.

4

Docket No. 10-1387 (issued June 23, 2010).

5

Docket No. 10-2087 (issued August 23, 2011).

6

5 U.S.C. § 8123(a).

7

On return of the case OWCP reinstated appellant’s monetary compensation benefits.

8

OWCP identified Drs. Arthur Canerio, Kenneth Levitsky, and Ram Setia, Board-certified orthopedic surgeons.
There was no current contact information for Dr. Chester Kosarek in Wayne, NJ.

4

Dr. Oppenheim submitted a February 7, 2013 report reviewing the medical record and a
statement of accepted facts (SOAF). He related appellant’s complaints of back pain with
prolonged standing. Dr. Oppenheim noted that appellant had Parkinson’s disease and had
undergone placement of a deep brain stimulator in the past year, and had previously undergone
lumbar surgery. He reviewed imaging studies provided by appellant that were previously of
record. On examination Dr. Oppenheim observed bilaterally positive straight leg raising signs at
75 degrees, an intact sensory examination in all dermatomes of both lower extremities, normal
reflexes throughout both legs, no paraspinal spasm or tenderness, normal gait, and a full range of
lumbar motion in all planes. He commented that appellant had masked facies and rigidity of
movement, but no evidence of tremor. Dr. Oppenheim found that appellant had no focal
neurologic deficit on examination. The medical record did not identify any structural
abnormalities of the spine that “related to any specific neurological findings.” Appellant’s
physicians did not identify any persistent, reproducible neurologic deficit related to a structural
injury. Dr. Oppenheim explained that appellant’s lumbar stiffness and bilateral lower extremity
symptoms were due to the muscular rigidity of Parkinson’s disease, and not the accepted lumbar
sprain which had resolved within weeks of the injury. He found appellant totally and
permanently disabled for work due to Parkinson’s disease. Dr. Oppenheim emphasized that the
transient lumbosacral sprain no longer affected appellant in any way. He found that appellant
had reached maximum medical improvement regarding the lumbar sprain, as it had resolved
without residuals.
By notice dated March 5, 2013, OWCP advised appellant that it proposed to terminate his
medical and wage-loss compensation benefits as the accepted conditions had ceased without
residuals, based on Dr. Oppenheim’s opinion as impartial medical examiner.
In response, appellant submitted his March 22, 2013 statement, contending that he
remained disabled for work due to herniated lumbar discs and not Parkinson’s disease. Counsel
asserted in a March 23, 2013 letter that Dr. Oppenheim’s opinion was not sufficiently
rationalized to represent the special weight of the medical evidence.
By decision dated April 10, 2013, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective that day, based on Dr. Oppenheim’s opinion that the accepted
lumbosacral sprain had ceased without residuals.
In an April 22, 2013 letter, counsel requested a telephonic hearing. At the hearing, held
September 12, 2013, appellant noted a remote history of cervical traction following a wrestling
injury. He noted that the April 28, 2010 lumbar fusion improved his back and lower extremity
symptoms. Counsel contended that appellant remained disabled for work due to herniated
lumbar discs that he believed were occupationally related. He submitted a duplicate copy of the
April 28, 2010 operative note.
By decision dated December 4, 2013, an OWCP hearing representative affirmed
OWCP’s April 10, 2013 decision, finding that Dr. Oppenheim’s report resolved the conflict of
medical opinion regarding appellant’s work capacity.
In a December 2, 2014 letter, counsel requested reconsideration, reiterating that
Dr. Oppenheim’s report was insufficiently rationalized to represent the special weight of the

5

medical evidence. He submitted a September 21, 2009 letter from Dr. Heise, summarizing his
2008 clinical findings of severe discogenic lumbar pain, a history of an old cervical spine
fracture, and Parkinson’s disease. Counsel also provided a December 28, 2011 letter from
Dr. Noel I. Perin, an attending Board-certified neurosurgeon who performed the April 2010
lumbar fusion, noting a history of a C5 fracture that remained symptomatic, causing radicular
symptoms in the right upper extremity. In a May 19, 2014 letter, Dr. Perin noted that appellant’s
cervical spine symptoms had improved. Appellant continued to have lumbar pain with
occasional radiation to the right hip. Dr. Perin characterized appellant’s Parkinson’s disease as
“well-controlled with the deep brain stimulation.”
By decision dated February 25, 2016, OWCP denied modification, finding that the
additional medical evidence did not discuss the accepted lumbar injury or whether it continued to
disable appellant for work.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden of proof to
justify modification or termination of benefits.9 Having determined that an employee has a
disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing either that the disability has ceased or that it is no longer
related to the employment.10 Its burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.11
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.12 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.13
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.14 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.15 In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
9

Bernadine P. Taylor, 54 ECAB 342 (2003).

10

Id.

11

J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

12

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

13

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

14

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

15

Delphia Y. Jackson, 55 ECAB 373 (2004).

6

the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.16
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a lumbosacral sprain/strain on June 5, 2007
when he lifted a heavy suitcase in the course of his employment. Appellant did not return to
work following the injury. His attending physicians and Dr. Dellorso, for the employing
establishment, diagnosed a L3-4 disc bulge or herniation. They found appellant disabled for
work. Dr. Rubinfeld, a second opinion physician, attributed appellant’s symptoms to
Parkinson’s disease. He found appellant able to perform limited duty. The employing
establishment offered appellant a limited-duty position on October 7, 2008 which OWCP
determined to be suitable work. OWCP terminated appellant’s monetary compensation effective
December 16, 2008, based on his refusal of suitable work. It affirmed the termination on
August 3, 2010. Pursuant to the first appeal, the Board reversed OWCP’s August 3, 2010
decision, finding that OWCP improperly terminated appellant’s wage-loss benefits as there was a
conflict of medical opinion regarding his work capacity between Dr. Rubinfeld, for the
government, and appellant’s physicians.
Pursuant to the present appeal, OWCP selected Dr. Oppenheim as impartial medical
specialist to resolve the conflict between Dr. Rubinfeld and appellant’s physicians.
Dr. Oppenheim provided a February 7, 2013 report reviewing the medical record and a SOAF.
He noted detailed findings on examination, including that appellant had no neurologic
impairment of either lower extremity. Dr. Oppenheim explained that appellant’s lumbar pain
and bilateral leg symptoms were attributable to the muscular rigidity of Parkinson’s disease. He
opined that the accepted lumbosacral sprain/strain had resolved within weeks of the injury.
Based on Dr. Oppenheim’s opinion, OWCP issued an April 10, 2013 decision terminating
appellant’s wage-loss and medical compensation benefits effective that day. Following a
telephonic hearing that did not involve the submission of new medical evidence, OWCP affirmed
the termination on December 4, 2013.
The Board finds that OWCP properly accorded Dr. Oppenheim’s opinion the special
weight of the medical evidence. Dr. Oppenheim’s report was based on the medical record and a
SOAF. He presented detailed clinical findings showing no neurologic abnormality of either leg.
Dr. Oppenheim provided a comprehensive explanation supporting that appellant’s continuing
lumbar and bilateral lower extremity symptoms were related to Parkinson’s disease. As his
opinion is sufficiently rationalized and based on a complete medical and factual background, his
report is entitled to special weight.17 Therefore, OWCP’s February 25, 2016 decision is proper
under the law and facts of this case.

16

Anna M. Delaney, 53 ECAB 384 (2002).

17

Id.

7

LEGAL PRECEDENT -- ISSUE 2
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden of proof for reinstating compensation benefits shifts to the claimant. In
order to prevail, the claimant must establish by the weight of reliable, probative and substantial
evidence that he or she had an employment-related disability that continued after termination of
compensation benefits.18
ANALYSIS -- ISSUE 2
As found above, OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective April 10, 2013, and affirmed the termination on December 4, 2013,
based on the opinion of Dr. Oppenheim, a Board-certified neurosurgeon and impartial medical
examiner, who opined that the lumbosacral sprain/strain ceased without residuals. The burden
then shifted to appellant to demonstrate that he continued to be disabled for work on and after
April 10, 2013 due to the accepted injuries.19
In support of a request for reconsideration, counsel submitted a September 21, 2009 letter
from Dr. Heise, an attending Board-certified neurologist, summarizing his 2008 clinical findings
of discogenic lumbar pain, an old cervical spine fracture, and Parkinson’s disease. He also
submitted December 28, 2011 and May 19, 2014 letters from Dr. Perin, an attending Boardcertified neurosurgeon, noting a history of a C5 fracture, lumbar pain, and Parkinson’s disease
“well-controlled with the deep brain stimulation.” By decision dated February 25, 2016, OWCP
denied modification, as the reports of Dr. Heise and Dr. Perin did not address the accepted
lumbar injury.
The Board finds that OWCP properly found that Dr. Oppenheim’s opinion should
continue to represent the special weight of the medical evidence. His report was comprehensive,
well-rationalized, and based on a complete and accurate history. In contrast, Dr. Heise and
Dr. Perin did not address the accepted lumbar injury or provide medical rationale explaining why
that injury would continue to affect appellant’s condition. They are insufficient to establish
continuing disability or residuals following OWCP’s termination of appellant’s wage-loss
compensation and medical benefits. Therefore, OWCP’s February 25, 2016 decision is proper
under the law and facts of this case.
On appeal, counsel contends that OWCP should have accepted an L3-4 disc herniation,
based on the opinion of Dr. Dellorso, a Board-certified internist consulting to the employing
establishment. The Board notes, however, that while Dr. Dellorso provided conclusory support
for causal relationship, he did not provide sufficient medical rationale to support that theory.
Counsel also contended that OWCP did not properly select Dr. Oppenheim as impartial
medical examiner as his office was in Suffern, New York, which he characterized as “upstate
New York.” The Board notes, however, that the record contains numerous, detailed screen
18

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101 (1992).

19

Id.

8

captures and memoranda documenting OWCP’s appropriate use of the PDS to select
Dr. Oppenheim. OWCP provided bypass screen captures demonstrating that the neurosurgeons
in appellant’s zip code cluster did not have current contact information in the system. It
explained that the lack of Board-certified neurosurgeons in his zip code cluster necessitated
expanding the search parameter into a neighboring cluster where Dr. Oppenheim had his medical
practice.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective April 10, 2013 as his accepted lumbosacral
sprain/strain had ceased without residuals. The Board further finds that he failed to establish
continuing residuals or associated disability due to the accepted lumbosacral sprain/strain on and
after April 10, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 25, 2016 is affirmed.
Issued: April 17, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9