United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pleasanton, CA, Employer
__________________________________________

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

Docket No. 14-690
Issued: August 27, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 6, 2014 appellant filed a timely appeal from an August 13, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish entitlement to
compensation for wage loss for various periods November 9 and 10, November 13 through 26,
and November 27 through December 14, 2012 and December 17, 2012 through January 3, 2013.

1
2

5 U.S.C. §§ 8101-8193.

Appellant also provided new evidence on appeal. The Board’s jurisdiction, however, is limited to evidence that
was before OWCP at the time it issued its August 13, 2013 decision. Because this evidence was not before OWCP
at the time it issued its August 13, 2013 decision, the Board may not consider this evidence for the first time on
appeal. 20 C.F.R. § 501.2(c); Sandra D. Pruitt 57 ECAB 126 (2005).

FACTUAL HISTORY
On August 30, 2010 appellant, then a 58-year-old city carrier, filed a traumatic injury
claim alleging that on August 27, 2010 she got scared when a snake sitting in front of a box
jumped on a curb landing on her heel. She alleged immediate pain in her left heel and ankle.
Appellant stated that she sprained her left sole of foot/heel. OWCP initially accepted that she
sustained left foot sprain. It subsequently accepted a left calcaneus fracture, peroneal tendinitis
left foot, left plantar fasciitis, left tarsal tunnel syndrome and a consequential left ankle ulcer. On
December 4, 2012 appellant underwent authorized tenosynovitis neuritis fasciitis joint
derangement. On February 28, 2013 she underwent an authorized external neurolysis with tarsal
tunnel, plantar fascial release of the left foot and a postoperative nerve block release of the left
foot.
Appellant stopped work following the injury and returned to work on August 30, 2010.
She stopped working again on May 7, 2011 and returned to work eight hours a day on
November 3, 2011. On November 8, 2012 appellant stopped work due to chronic pain in her left
heel. She returned to work six hours a day on November 12, 2012 and worked in this capacity
until December 4, 2012, when she again stopped work. On or about January 15, 2013 appellant
developed a full thickness ulcer on the left medial ankle, which resulted in a strep infection. She
returned to full-time work on April 1, 2013. Appellant stopped working and OWCP determined
that she was totally disabled on January 15, 2013 due to her consequential left ankle ulcer.
OWCP paid disability compensation benefits for most of the periods claimed.
On November 29, 2012 appellant filed a Form CA-7 claim for compensation and Time
Analysis Form CA-7a requesting total disability compensation benefits from November 9 and
10, 2012 for 16 hours of leave without pay (LWOP) and partial disability compensation benefits
for the period November 13 through 26, 2012 for 20.25 hours of LWOP for working part time.
Evidence received in support of the claim included: two prescription pad notes, one
dated November 8, 2012 stating that appellant was off work from November 8 to 12, 2012 due to
foot injury and another one dated November 12, 2012 restricting her to six-hour shifts due to foot
injury flare up from November 12 to December 12, 2012.
In a November 12, 2012 report, Dr. Lisa Breuner, DPM, a podiatrist, noted that appellant
could not walk during her Maui trip. Left tarsal tunnel syndrome and left peroneal tendinitis
were diagnosed.
In a December 3, 2012 report, Dr. Breuner noted the history of injury of appellant
stepping out of her vehicle, when she saw a snake and, in an effort to avoid stepping on it,
jumped out of the way, sustaining blunt trauma injury to her left heel. She noted appellant’s
treatment and that she was placed on temporary total disability effective May 9, 2011. Appellant
returned to work but has not been able to reach preinjury capacity and was restricted to six-hour
per day shifts. Dr. Breuner noted appellant’s complaints of moderate to severe, sharp, aching
pain, involving the plantar medial left heel was worst with walking, prolong periods of walking
and standing and only partially relieved by rest. She opined that appellant’s clinical presentation
and complaints were consistent with a blunt trauma to the heel, which occurred when she landed
hard on her left foot while jumping out of the way of a snake. Appellant’s injury failed to

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resolve and she requested surgical release of the tarsal tunnel and plantar fascial ligament.
Dr. Breuner opined that appellant was able to work with the restriction of six-hour shifts per day.
She further opined that appellant’s symptoms were the result of the industrial incident and are
100 percent due to work-related exposure.
By letter dated December 13, 2012, OWCP advised appellant that she was paid nine
hours LWOP for the period September 7 to November 8, 2012. However, the medical evidence
of record was insufficient to support her claim for compensation for the periods November 9 and
10, 2012 and for November 13 to 26, 2012 for 20.25 hours. Appellant was accorded 30 days to
submit additional medical information with a narrative, which explained how her accepted
work-related condition worsened such that she could no longer perform the duties of her position
when she stopped work on November 9, 2012.
On December 15, 2012 appellant filed a CA-7 claim form for compensation and CA-7a
time analysis form requesting total disability benefits and partial disability benefits for the period
November 27 through December 14, 2012. On January 7, 2013 she filed a CA-7 claim form for
compensation and CA-7a time analysis form requesting total disability and partial disability
compensation benefits for the period December 17 to 31, 2012.
In a January 15, 2013 report, Dr. Breuner noted the history of injury and appellant’s
treatment and that she was temporarily totally disabled effective May 9, 2011. She indicated that
appellant returned to work but has not been able to reach preinjury capacity and was restricted to
six-hour per day shifts. Due to a flare-up on November 8, 2012, appellant was again placed on
temporary total disability from November 9 to 12, 2012. Reevaluation on November 12, 2012
demonstrated a continued flare-up and she was restricted to six-hour shifts until
December 12, 2012. Appellant was seen for further evaluation on December 4, 2012, at which
time, it was determined that she was unable to return to work and she was placed on total
temporary disability. Dr. Breuner noted that appellant was scheduled to undergo a surgical
release of the plantar fascial and tarsal tunnel on January 17, 2013, but developed a strep
infection. As a result appellant’s surgery has been postponed to January 24, 2013. She was
expected to require eight weeks of additional temporary total disability from that date for
postoperative healing. Dr. Breuner presented examination findings and opined that appellant’s
symptoms were consistent with a blunt trauma to the heel, which occurred when she landed hard
on her left foot while jumping out of the way of a snake. She noted that appellant’s symptoms
are worst with walking and are also stimulated by prolonged periods of standing or walking and
only partially relieved by rest. Dr. Breuner opined that appellant was not able to perform her
job-related duties and was precluded from walking or standing for more than six hours per shift.
She further opined that appellant’s symptoms and complaints were the result of the industrial
incident and were 100 percent due to the work-related exposure.
By letter dated January 24, 2013, OWCP advised appellant that the medical evidence did
not support her claims for compensation for the periods November 27 through December 14,
2012 and December 17 through 31, 2012. Appellant was accorded 30 days to submit medical
evidence to establish her claims for disability compensation benefits.

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On January 24, 2013 appellant filed a CA-7 claim form for compensation and CA-7a
time analysis form requesting total disability compensation benefits for the period January 1
through 14, 2013.
In a January 23, 2013 report, Dr. Breuner stated that appellant had an injury, which was
aggravated by cumulative repetitive stress, which occurs in the course of performing her regular
work-related duties. At the time of her flare up, appellant had returned to work but has not been
able to reach preinjury capacity and was restricted to six hours per day shifts. She continued to
experience worsening pain, despite this restriction and on her November 2012 evaluation, she
was placed on temporary total disability due to the fact that no modified duty was available.
Dr. Breuner stated that appellant can perform semi-sedentary duty if such work is available. She
listed appellant’s objective physical findings and discussed why surgical release of the tarsel
tunnel and plantar fascial ligament was necessary. Dr. Breuner also opined that the ulceration
occurred most likely due to weakening of the skin from the use of topical medications, ankle
wraps and braces and cortisone injection and was the result of the treatment for tarsel tunnel
syndrome and plantar fasciitis and was a work-related injury. She stated that appellant could not
undergo surgical release at this time as she has an ongoing infection.
By decision dated February 5, 2013, OWCP denied appellant’s claim for disability
compensation for the period November 9 and 10, 2012 for 16 hours and for the period
November 13 to 26, 2012 for 20.25 hours. It found that none of Dr. Breuner’s medical reports
discussed how appellant’s total/partial disability which began on November 9, 2012 was related
to the August 27, 2010 work injury.
Also by letter dated February 5, 2013, OWCP referenced appellant’s claim for
compensation for the period January 1 to 19, 2013. It noted that Dr. Breuner made several
general statements about appellant’s injury being aggravated by cumulative repetitive stress from
the performance of her regular work duties, but the physician did not cite any specific work
duties and which occurred on or about November 9, 2012, which worsened her condition to the
point that she was totally/partially disabled from work. OWCP also noted that appellant was on
annual leave from October 8 to 31, 2012 and that Dr. Breuner noted in her November 12, 2012
report that appellant was unable to walk during her Maui trip, which indicated that her condition
worsened prior to November 9, 2012. It advised appellant that it was unclear what occurred
between November 7 and 9, 2012, which worsened her condition and whether her current
condition was related to the accepted work-related injury or whether it was nonindustrial.
In her February 11, 2013 report, Dr. Breuner stated in relevant part: that appellant had an
injury which was aggravated by cumulative repetitive stress, which occurred in the course of
performing her regular work-related duties. These duties are specifically standing and walking
while delivering mail, which creates increased blood flow to the arteries of the lower extremities,
thereby increasing pressure within the tarsal tunnel and impinging on the posterior tibial nerve.
The treatment to address the above symptoms, specifically cortisone injection and use of topical
elector and liboderm patches most likely created sufficient weakening of the skin making her
more likely to develop ulceration. The ulceration is a result of the treatment for the work-related
diagnosis and is therefore related to the industrial exposure.

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By decision dated April 8, 2013, OWCP denied appellant’s claim for disability
compensation benefits for the period November 27 through December 14, 2012 and
December 17, 2012 through January 14, 2013.
Appellant disagreed with the February 5 and April 8, 2013 decisions and requested an
oral hearing, which was held June 19, 2013. Several reports were received from Dr. Breuner.
In an April 19, 2013 report, Dr. Breuner noted that the date of injury regarding the ulcer
was January 4, 2013 and that disability would commence on that date. She indicated that
appellant was undergoing treatment for a postoperative wound infection and that, once she has
recovered from that infection and completed physical therapy, she would be released to work at
four-hour shifts for two weeks, extending to six-hour shifts for the subsequent two weeks and
then resuming full duties in the subsequent two weeks after that.
In her July 5, 2013 report, Dr. Breuner related the following: In June 2012, appellant
received a series of cortisone injections to alleviate pain related to plantar fasciitis and tarsal
tunnel syndrome, which were directly related to the calcaneal fracture, which she sustained in the
course of performing her job-related duties on the date of injury. Appellant was informed that, if
the injections did not alleviate her symptoms, she would require surgery and that it may take
several months after the series of injections to make that determination. Dr. Breuner stated that,
when appellant was evaluated on November 8, 2012, she was still experiencing pain, which
precluded her ability to resume her work-related duties and that surgery was indicated. On
November 12, 2012 appellant was placed on temporary total disability pending her surgery to
avoid sustaining further injury from her altered gait pattern and further damage to the nerve or
ligament. She felt, however, that she could work six-hour shifts. However, due to the fact that
appellant’s job required that she walk several hours per day, carrying 15 to 20 pounds and
repeatedly step up and down curbs, she experienced a flare-up and was placed on temporary
disability on December 4, 2012. She was scheduled to undergo surgery in January 2013, but due
to a skin ulceration at the surgical site, her procedure had to be delayed resulting in her
temporarily total disability to be extended to March 13, 2013. Due to the delayed healing and a
postoperative infection, appellant’s disability has been extended. She is currently undergoing
physical therapy with an anticipated return to work date of August 2013.
By decision dated August 13, 2013, OWCP’s hearing representative affirmed OWCP’s
February 5, 2013 decision, which found that appellant did not meet her burden to establish a
temporary total disability for the period November 9 and 10, 2012 and for partial disability for
the period November 13 to 26, 2012. The hearing representative also affirmed in part OWCP’s
April 8, 2013 decision, which denied her claim for compensation for the period November 27 to
December 14 and December 17 to 31, 2012 and January 1 to 3, 2013, but reversed in part
OWCP’s April 8, 2013 decision, which denied her claim for compensation for the period
January 4 to 14, 2013 as her disability was caused by her accepted consequential injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee must establish that he or she was disabled for work as a result of the

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accepted employment injury. Whether a particular injury causes an employee to become
disabled for work and the duration of that disability are medical issues that must be proved by a
preponderance of reliable, probative and substantial medical opinion evidence.3 Such medical
evidence must include findings on examination and the physician’s opinion, supported by
medical rationale, showing how the injury caused the employee disability for his or her particular
work.4
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.5 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force.6
OWCP’s procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
That change must result from a previous injury or occupational illness rather than an intervening
injury or new exposure to factors causing the original illness. It does not include a condition that
results from a new injury, even if it involves the same part of the body previously injured.7
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable and
probative evidence that the disability for which she claims compensation is causally related to
the accepted injury. This burden of proof requires that a claimant furnish medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history, concludes
that, for each period of disability claimed, the disabling condition is causally related to the
employment injury and supports that conclusion with medical reasoning.8 Where no such
rationale is present, the medical evidence is of diminished probative value.9
Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.10 The Board will not
3

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

4

Dean E. Pierce, 40 ECAB 1249 (1989).

5

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
6

Id.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).
Kenneth R. Love, 50 ECAB 193, 199 (1998).
8

Ronald A. Eldridge, 53 ECAB 218 (2001).

9

Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004).

10

Laurie S. Swanson, 53 ECAB 517, 520 (2002). See also Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

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require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.11
ANALYSIS
OWCP accepted appellant’s claim for left foot sprain, a left calcaneus fracture, peroneal
tendonitis left foot, left plantar fasciitis, left tarsal tunnel syndrome and a consequential left ankle
ulcer. Appellant filed several claims for wage-loss compensation for the period November 9,
2012 through January 3, 2013, which OWCP denied. She has the burden to provide medical
evidence establishing that she was partially or totally disabled on and after November 9, 2012
through January 3, 2013 due to a worsening of her accepted work-related conditions or a change
in her job duties such that she was unable to perform her modified work.
The Board finds that appellant has not submitted medical evidence in support of a change
in her injury-related condition for the period November 9, 2012 through January 3, 2013. The
record indicates that appellant returned to work but had not been able to reach preinjury capacity
and was restricted to six hours per day shifts. Several reports were received from Dr. Breuner.
Of relevance to this claim are February 11 and July 5, 2013 reports whereby she addresses the
cause or aggravation of appellant’s accepted medical conditions. Dr. Bruner’s earlier reports
provided only general statements that appellant experienced flare-ups of left heel pain and her
injury was aggravated by cumulative repetitive stress over the course of performing her work
duties, but failed to cite any specific work duties occurring on or about November 9, 2012, which
worsened her condition to the point that she was totally or partially disabled from work. Thus,
those reports are insufficient to establish appellant’s claim.
In her February 11, 2013 report, Dr. Breuner stated that appellant’s injury was aggravated
by cumulative repetitive stress, which occurred in the course of performing her regular
work-related duties of standing and walking while delivering the mail. She further indicated in
her July 5, 2013 report that appellant was placed on total temporary disability on November 12,
2012 pending her surgery to avoid sustaining further injury from her altered gait pattern and
further damage to the nerve or ligament. However, appellant felt that she could work six-hour
shifts but, due to the fact her job requires that she walk several hours a day, carrying 15 to 20
pounds and repeatedly stepping up and down curbs, she experienced a flare-up and was placed
on total temporary disability on December 4, 2012. Dr. Breuner does not relate the worsening of
appellant’s condition and resulting disability during the claimed period directly to the August 27,
2010 injury. Rather, she relates the worsening of appellant’s condition and the cause of
disability to a work-related aggravation of her accepted work-related injuries. The Board notes a
recurrence of disability means an inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.12 OWCP’s procedures state that a recurrence of disability includes a work
11

Amelia S. Jefferson, supra note 3.

12

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525, 531 (2008).

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stoppage caused by a spontaneous material change in the medical condition demonstrated by
objective findings. That change must result from a previous injury or occupational illness rather
than an intervening injury or new exposure to factors causing the original illness. It does not
include a condition that results from a new injury, even if it involves the same part of the body
previously injured.13 As the evidence supports that appellant had new exposure in the work
environment following her return to work, this does not support her claim of total disability for
the claimed period of November 9, 2012 through January 3, 2013.
Appellant failed to submit any medical reports from a physician who, on the basis of a
complete and accurate factual and medical history, concluded that she sustained a recurrence of
disability for the period claimed November 9, 2012 through January 3, 2013 due to residuals of
her accepted injury. Accordingly, she has not met her burden of proof to establish that she
sustained a recurrence of her employment-related disability and is entitled to wage-loss
compensation for the claimed period.
On appeal, appellant argues that the medical evidence supports that she was partially or
totally disabled as a result of the work injury during the relevant period. However, for the
reasons given, the medical evidence is insufficient to support her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established entitlement to wage-loss benefits for
periods of disability claimed from November 9, 2012 through January 3, 2013.

13

See supra note 7 at Chapter 2.1500.3(c)(5) (October 2009).

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ORDER
IT IS HEREBY ORDERED THAT the August 13, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 27, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Virginia Beach, VA,
Employer
__________________________________________

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

Docket No. 09-1025
Issued: March 8, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On March 4, 2009 appellant filed a timely appeal from a September 26, 2008 decision of
the Office of Workers’ Compensation Programs denying his claim for a recurrence of disability.
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 sustained a recurrence of disability causally related to his
May 11, 2005 accepted bilateral ankle sprains.
FACTUAL HISTORY
On June 9, 2005 appellant, then a 58-year-old utility man, filed a traumatic injury claim
for an ankle and knee injury on May 11, 2005 when he fell down a stairway onboard a ship. The
Office accepted his claim for bilateral ankle sprains and strains.
By letter dated November 15, 2007, the Office advised appellant that recent medical
evidence in his separate file for a right knee injury on December 14, 2005 indicated that he was

experiencing inflammatory arthropathy of his lower extremities that was not causally related to
the December 14, 2005 employment injury. The Office noted that, at the time of his accepted
May 11, 2005 bilateral ankle strain, he was already being treated for bilateral bursitis of the
ankles. A June 2005 computerized tomography (CT) scan revealed advanced degenerative
changes that preexisted the May 11, 2005 employment injury. The Office provided appellant
with a recurrence of disability form to complete if he wished to file a recurrence claim regarding
the May 11, 2005 injury. On November 22, 2007 appellant filed a claim for a recurrence of
disability causally related to his May 11, 2005 accepted bilateral ankle sprains and strains. He
indicated that he was unable to work and required medical treatment due to headaches and pain
in his feet, ankles, knees and back.
In a September 14, 2007 report, Dr. Michael K. Vandenberg, an attending
rheumatologist, stated that he had treated appellant for several months for arthritis of the knees,
ankles and feet. He advised that appellant was temporarily totally disabled because of the
severity of his arthritic symptoms. In a January 31, 2008 report, Dr. Vandenberg noted that
appellant experienced low back pain after slipping on a wet floor at work in 2003. He slipped on
stairs and fell in 2004, injuring his knees, and he injured his right knee again in 2005 when he
struck it against a rail. Dr. Vandenberg provided findings on physical examination and
diagnosed osteoarthritis of the knees, possible CPPD (calcium pyrophosphate dehydrate
deposition disease), synovitis of the knees, ankles and metatarsal joints and lumbar spinal
stenosis. Dr. Vandenberg opined that the work injuries in 2003, 2004 and 2005 caused a portion
of appellant’s current pain syndrome and therefore his condition was employment related.
By decision dated September 26, 2008, the Office denied appellant’s claim for a
recurrence of disability, finding that the medical evidence failed to establish that his disability
was causally related to the May 11, 2005 accepted bilateral ankle sprains and strains.1
By letter postmarked December 22, 2008, appellant requested an oral hearing. He filed
this appeal with the Board on March 4, 2009.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”2 An employee who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for he or she claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and

1

The Office referred to a May 11, 2008 employment injury in the latter portion of its September 26, 2008
decision. It is clear that the Office meant to refer to appellant’s May 11, 2005 employment injury.
2

R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

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supports that conclusion with sound reasoning.3 Where no such rationale is present, medical
evidence is of diminished probative value.4
ANALYSIS -- ISSUE 1
Appellant has the burden to provide medical evidence establishing that he sustained a
recurrence of disability causally related to his May 11, 2005 accepted bilateral ankle sprains.
In a September 14, 2007 report, Dr. Vandenberg stated that he had treated appellant for
several months for arthritis of the knees, ankles and feet. He indicated that appellant was
temporarily totally disabled because of the severity of his arthritic symptoms. In a January 31,
2008 report, Dr. Vandenberg noted that appellant slipped on a wet floor at work in 2003 and
experienced low back pain, slipped on stairs and fell in 2004, injuring his knees, and injured his
right knee again in 2005 when he struck it against a rail. He provided findings on physical
examination and diagnosed osteoarthritis of the knees, possible CPPD, synovitis of the knees,
ankles and metatarsal joints and lumbar spinal stenosis. Dr. Vandenberg opined that the work
injuries in 2003, 2004 and 2005 caused a portion of appellant’s current pain syndrome and
therefore his condition was employment related. He did not provide a history of any injury that
precipitated the claimed recurrence of disability or explain how appellant’s disability was
causally related to his May 11, 2005 employment injury. Dr. Vandenberg did not explain his
opinion that appellant’s disability was caused, in part, by the May 11, 2005 employment injury in
light of the fact that she had a preexisting bilateral arthritis ankle condition documented by a CT
scan. Due to these deficiencies, the reports of Dr. Vandenberg are not sufficient to establish that
appellant sustained a recurrence of disability causally related to his accepted May 11, 2005
bilateral ankle sprains. Appellant also attributed his recurrence of disability to knee pain, foot
pain, back pain and headaches. A claim for a recurrence of disability or need for medical
treatment cannot be considered for medical conditions that have not been accepted by the Office
as work related. For these reasons, the medical evidence does not establish that appellant had a
recurrence of disability causally related to his accepted May 11, 2005 employment injury.
On appeal, appellant contends that certain medical records are missing from the file, but
he did not specify the dates of the missing medical reports and the names of the physicians.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he had a
recurrence of disability causally related to his May 11, 2005 bilateral ankle sprains.

3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

See Ronald C. Hand, 49 ECAB 113 (1957); see also Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 26, 2008 is affirmed.
Issued: March 8, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, St. Louis, MO,
Employer
__________________________________________

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

Docket No. 20-1678
Issued: April 20, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 29, 2020 appellant filed a timely appeal from a May 7, 2020 merit decision
and September 8, 2020 nonmerit 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.
ISSUES
The issues are: (1) whether appellant has greater than 21 percent permanent impairment
of the left lower extremity (knee) for which she received a schedule award; and (2) whether OWCP
properly denied her request for a review of the written record as untimely filed pursuant to 5 U.S.C.
§ 8124(b).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 4, 2015 appellant, then a 59-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on that date she sustained abrasions and scratches on both
knees when she fell on a wet or icy surface. She stopped work on February 5, 2015. OWCP
accepted the claim for bilateral knee contusions and a medial meniscal tear of the left knee.2 On
February 16, 2016 appellant underwent an OWCP-authorized partial medial meniscectomy of the
left knee. She returned to modified employment on May 13, 2016. Appellant stopped work again
on February 12, 2018 and subsequently resumed work with restrictions on August 13, 2018. On
February 16, 2018 Dr. Crystel D. Knierim, a Board-certified orthopedic surgeon, performed an
authorized left total knee arthroplasty.
In a report dated May 9, 2019, Dr. Knierim diagnosed status post left total knee arthroplasty
with continued weakness. She found that appellant had reached maximum medical improvement
(MMI).
On June 20, 2019 appellant filed a claim for a schedule award (Form CA-7).
In a July 3, 2019 development letter, OWCP requested that appellant submit a report from
a physician addressing whether she had reached MMI and rating any employment-related
permanent impairment in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A. Guides).3
On September 8, 2019 Dr. Eric M. Orenstein, a Board-certified orthopedic surgeon serving
as a district medical adviser (DMA), advised that Dr. Knierim had provided insufficient
information for him to perform an impairment rating. He recommended that OWCP refer appellant
for a second opinion examination.
On October 3, 2019 OWCP referred appellant to Dr. Frank V. Thomas, a Board-certified
orthopedic surgeon, for a second opinion evaluation regarding the extent of any permanent
impairment of the left lower extremity.
In a report dated October 24, 2019, Dr. Thomas discussed appellant’s complaints of
continued left knee pain and numbness along one side. He noted that x-rays showed a cemented
total knee arthroplasty with a prosthesis in good position. On examination Dr. Thomas measured
range of motion (ROM) as 0 to 120, 115, and 122 degrees on the left and found no laxity or
effusion. He determined that appellant’s knee was functional normally. Dr. Thomas diagnosed
pain after a 2018 left total knee arthroplasty. Utilizing Table 16-3 on page 511 of the A.M.A.,
Guides, he identified the class of diagnosis (CDX) as a class 2 total knee arthroplasty, which
yielded a default value of 25 percent. Dr. Thomas applied a grade modifier for functional history
2
By decision dated October 4, 2016, OWCP denied appellant’s claim for compensation on June 8, 2016. By
decision dated May7, 2018, it denied her claim for wage-loss compensation from August 1 through 2, 2017,
September 22, 2017, and January 15 to 17, 2017. By decision dated July 23, 2018, OWCP denied appellant’s claim
for wage-loss compensation from December 6 through 8, 2017, by decision dated February 27, 2019, it denied her
claim for wage-loss compensation from December 3 through 6, 2018 and, by decision dated August 13, 2019, it denied
her claim for wage-loss compensation from April 24 through 29, 2018.
3

A.M.A., Guides (6th ed. 2009).

2

(GMFH) of zero, a grade modifier for physical examination (GMPE) of zero, and a grade modifier
for clinical studies (GMCS) of zero, which he found yielded 21 percent permanent impairment of
the left lower extremity.
On May 5, 2020 Dr. Orenstein concurred with Dr. Thomas’ finding of a class 2 total knee
arthroplasty, using Table 16-3 of the A.M.A., Guides, for a default impairment rating of 25 percent.
He found a GMFH of zero based on appellant’s normal gait, a GMPE of zero for no consistent
examination findings, and found that a GMCS was inapplicable as it was used to determine the
CDX. Dr. Orenstein applied the net adjustment formula, which yielded a 21 percent permanent
impairment of the left lower extremity. He found that appellant had reached MMI on
October 24, 2019.
By decision dated May 7, 2020, OWCP granted appellant a schedule award for 21 percent
permanent impairment of the left lower extremity (knee). The period of the award ran for 60.48
weeks from October 24, 2019 to December 20, 2020.
On an appeal request form signed and dated July 30, 2020, received by OWCP on
August 17, 2020, appellant requested a review of the written record before a representative of
OWCP’s Branch of Hearing and Review. She submitted two partial pages from a medical report.
There was no evidence of an envelope with an accompanying postmark.
By decision dated September 8, 2020, OWCP denied appellant’s request for a review of
the written record as untimely filed. It determined that she was not entitled to a review of the
written record as a matter of right under section 8124(b) because her request was dated more than
30 days after it had issued its May 7, 2020 decision. OWCP considered whether to grant a
discretionary hearing/review of the written record and determined that the matter could equally
well be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA,4 and its implementing federal regulation,5 set forth
the number of weeks of compensation payable to employees sustaining permanent impairment
from loss, or loss of use, of scheduled members or functions of the body. FECA, however, does
not specify the manner in which the percentage loss of a member shall be determined. The method
used in making such a determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of the
A.M.A., Guides, published in 2009.6 The Board has approved the use by OWCP of the A.M.A.,

4

Supra note 1.

5

20 C.F.R. § 10.404.

6
For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).

3

Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment CDX, which
is then adjusted by GMFH, GMPE, and GMCS.9 The net adjustment formula is (GMFH - CDX)
+ (GMPE - CDX) + (GMCS - CDX).10 Evaluators are directed to provide reasons for their
impairment choices, including the choices of diagnoses from regional grids and calculations of
modifier scores.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has no greater than 21 percent permanent impairment of the
left lower extremity (knee) for which she received a schedule award.
On May 9, 2019 Dr. Knierim found that appellant was status-post left TKA with continued
weakness. She did not, however, provide an impairment rating and, thus, her report is insufficient
to establish entitlement to a schedule award.12
OWCP referred appellant to Dr. Thomas for an impairment evaluation. In a report dated
October 24, 2019, Dr. Thomas found that x-rays showed a cemented total knee arthroplasty with
a prosthesis in good position. On examination he measured ROM of 0 to 120, 115, and 122 degrees
on the left. Dr. Thomas opined that appellant’s knee was functioning normally with no laxity or
effusion. Dr. Thomas diagnosed pain after a 2018 left total knee arthroplasty. He identified the
CDX as a class 2 total knee replacement, applicable to results with good position, stability, and
functionality, according to Table 16-3 on page 511. Dr. Thomas found that the GMFH, GMPE,
and GMCS were all zero, which he indicated moved the default impairment value of 25 percent
two places to the left, for 21 percent permanent impairment under Table 16-3 on page 511 of the
A.M.A., Guides.
On May 5, 2020 Dr. Orenstein reviewed Dr. Thomas’ findings and concurred that the
applicable CDX was a class 2 total knee arthroplasty, with a default value of 25 percent. He found
a GMFH of zero based on appellant’s normal gait, a GMPE of zero due to the lack of consistent
examination findings, and found a GMCS was inapplicable as it was used to determine the CDX.
Utilizing the net adjustment formula discussed above, (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX), or (0-2) + (0-2), yielded an adjustment of two places to the left, or 21 percent impairment
7

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

8

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
9

Id. at 494-531.

10

Id. 411.

11

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

12

J.C., Docket No. 20-1071 (issued January 4, 2021); T.D., Docket No. 17-1495 (issued January 4, 2018).

4

of the left lower extremity. The Board has reviewed the clinical findings and report of Dr. Thomas
and Dr. Orenstein’s opinion and finds that they conform to the provisions of the A.M.A., Guides.
They properly reviewed the medical evidence and evaluated appellant’s impairment of the lower
extremities in accordance with the A.M.A., Guides.13 There is no medical evidence in
conformance with the A.M.A., Guides showing a greater impairment.14
On appeal appellant asserted that OWCP failed to consider that one of her legs was shorter
than the other and that she walked with a limp, and that Dr. Thomas had advised her to wear her
insoles. She has the burden of proof, however, to submit medical evidence utilizing the appropriate
tables of the sixth edition of the A.M.A., Guides demonstrating a greater percentage of impairment
of the left lower extremity. Appellant has not submitted such evidence and, thus, has not met her
burden of proof to show greater permanent impairment.15
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”16
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary.17 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by the
postmark or other carrier’s date marking and before the claimant has requested reconsideration.18
Although there is no right to a review of the written record or an oral hearing, if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for a review of the written
record as untimely filed pursuant to 5 U.S.C. § 8124(b).

13

See A.C., Docket No. 18-1306 (issued October 18, 2019); F.K., Docket No. 18-1700 (issued May 9, 2019).

14

See L.D., Docket No 19-0495 (issued February 5, 2020).

15

See S.C., Docket No. 20-0769 (issued January 12, 2021); R.A., Docket No. 19-1798 (issued November 4, 2020).

16

5 U.S.C. § 8124(b)(1).

17

20 C.F.R. §§ 10.615, 10.617, 10.618.

18

Id. at § 10.616(a).

19

See O.R., Docket No. 20-0743 (issued January 28, 2021).

5

OWCP’s regulations provide that the hearing request must be sent within 30 days of the
date of the decision for which a hearing/review of the written record is sought as determined by
the postmark date or other carrier’s marking showing when the request was sent to OWCP.20 On
August 17, 2020 OWCP received appellant’s July 30, 2020 request for a review of the written
record. As her request was signed and dated July 30, 2020, more than 30 days after OWCP’s
May 8, 2020 merit decision, it was untimely filed.21 Therefore, OWCP properly denied appellant’s
request for review of the written record as a matter of right.22
OWCP has the discretionary power to grant a review of the written record even if the
claimant is not entitled to a review as a matter of right. The Board finds that OWCP, in its
September 8, 2020 nonmerit decision, properly exercised its discretion by indicating that it had
considered the matter and had denied appellant’s request for a review of the written record because
her claim could be equally well addressed through a reconsideration application. Because
reconsideration exists as an alternative appeal right to address the issue raised by OWCP’s May 7,
2020 decision, the Board finds that OWCP has not abused its discretion in denying appellant’s
untimely request for a review of the written record.23
CONCLUSION
The Board finds that appellant has no greater than 21 percent permanent impairment of the
left lower extremity (knee) for which she received a schedule award. The Board further finds that
OWCP properly denied her request for a review of the written record as untimely filed pursuant to
5 U.S.C. § 8124(b).

20

See supra note 18.

21
See generally D.R., Docket No. 19-1885 (issued April 24, 2020); G.S., Docket No. 18-0388 (issued
July 19, 2018).
22

S.A., Docket No. 19-0613 (issued August 22, 2019).

23

See J.N., Docket No. 18-0646 (issued January 28, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the September 8 and May 7, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 20, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
OVERTON BROOK VETERANS MEDICAL
CENTER, Shreveport, LA, Employer
__________________________________________

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

Docket No. 08-2415
Issued: July 15, 2009

Case Submitted on the Record

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

JURISDICTION
On September 4, 2008 appellant filed a timely appeal from the March 21 and April 29,
2008 merit decisions of the Office of Workers’ Compensation Programs denying disability
compensation and the August 4, 2008 decision denying merit review.
Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant established that she was totally disabled during the
period January 10 through 22, 2008 due to her November 2, 2007 employment injury; and
(2) whether the Office properly denied her request for reconsideration of the merits of her claim
pursuant to 20 C.F.R. § 8128(a).

FACTUAL HISTORY
On November 2, 2007 appellant sustained injury to her lower back and left leg when a
confused patient became violent and attacked a nurse. She was injured while helping to restrain
the patient. The Office accepted appellant’s claim for aggravation of lumbosacral radiculitis.1
On January 2, 2008 appellant underwent a left S1 joint injection for treatment of her
lumbosacral radiculitis. In a January 4, 2008 operative report, a treating physician noted that
appellant tolerated the procedure well, that there were no postoperative complications and that
she was to follow up as scheduled. On January 22, 2008 appellant filed a claim for lost wages
(Form CA-7) for the period January 10 through 22, 2008.
By letter dated February 20, 2008, the Office requested that appellant submit medical
documentation supporting her total disability from work for the period claimed.
Appellant submitted employee medical worksheets dated December 10 through 17, 1999
and November 14, 2007 through January 18, 2008 providing work restrictions.
On
December 28, 2007 Dr. Justine Dela Rosa DeCastro, a family practitioner, evaluated appellant’s
lower back and left leg injuries from November 2, 2007. She provided work restrictions
effective until January 18, 2008, including full restrictions on all lifting, pushing and pulling,
carrying, reaching and working above the shoulder and pushing and pulling with her hands. Dr.
DeCastro stated that appellant should not sit, stand or walk for prolonged periods and that she
should not drive because her pain medications may cause dizziness, drowsiness or blurred vision.
On January 18, 2008 a physician’s assistant indicated that appellant did not have any work
restrictions due to the November 2, 2007 injury.
Appellant also submitted a notice for a January 2, 2008 medical procedure with a followup appointment on January 18, 2008. A medication assessment history report dated January 2,
2008 stated that she should not participate in any strenuous activity for 24 hours.
By decision dated March 21, 2008, the Office denied appellant’s claim for total disability
compensation from January 10 to 22, 2008 on the grounds that she did not submit sufficient
medical evidence supporting total disability.
On March 24, 2008 appellant filed a request for reconsideration. She stated that she
submitted the wrong medical documents due to administrative error. Appellant resubmitted
medical evidence previously of record.
By decision dated April 29, 2008, the Office denied modification, finding that the
medical records did not address the claimed period of disability and were not signed by a
physician.
On June 9 and 26, 2008 appellant filed requests for reconsideration. She again provided
duplicate copies of the medical evidence of record.
1

By decision dated January 23, 2008, the Office initially denied appellant’s claim on the grounds that there was
no medical evidence containing a firm diagnosis that could be connected to the accepted work events.

2

By decision dated August 4, 2008, the Office denied further merit review on the grounds
that appellant did not raise a substantive legal question or include new and relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including that any disability or specific
condition for which compensation is claimed is causally related to the employment injury.3
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.4 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.5 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.6
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained an aggravation of lumbosacral radiculitis on
November 2, 2007. The issue is whether appellant established that she was totally disabled from
January 10 through 22, 2008 due to this employment injury. The Board finds that she did not
meet her burden of proof in establishing disability.
The record shows that appellant underwent a left S1 joint injection for treatment of her
lumbosacral radiculitis on January 2, 2008. The operative report noted that she tolerated the
procedure well and that there were no postoperative complications. The medication assessment
history report of January 2, 2008 stated that appellant should not participate in any strenuous
activity for 24 hours, but did not provide any continuing restrictions or indicate that she could
not return to work. The notice noted that she was scheduled for a follow-up appointment on
January 18, 2008. This medical evidence does not establish that appellant was totally disabled
from January 2 to 18, 2008. There is no medical report from an attending physician addressing

2

5 U.S.C. §§ 8101-8193.

3

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

4

See Fereidoon Kharabi, 52 ECAB 291 (2001).

5

Id.

6

Id.

3

her disability during this period. As this evidence does not explain why appellant was totally
disabled from January 10 through 22, 2008, it is insufficient to establish her claim for disability.7
In an employee medical worksheet dated December 28, 2007, Dr. DeCastro evaluated
appellant’s lower back and left leg injuries. She prescribed full restrictions until January 18,
2008 on all lifting, pushing, pulling and carrying, reaching and working above the shoulder and
that she should not stand, walk or sit for prolonged periods. While Dr. DeCastro noted that
appellant was restricted during part of the period of disability claimed she did not state that she
found appellant totally disabled from performing any work. The Board finds that this worksheet
is insufficient to establish total disability from January 10 through 18, 2008.8
Appellant did not submit any other evidence addressing her claimed period of disability.
Therefore, the Board finds that she did not establish that she was totally disabled as claimed.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act9 does not entitle a claimant to a review of an Office decision
as a matter of right. This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.10 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under section 8128(a).11
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,12 the Office’s regulations provide that the evidence or argument submitted by a claimant
must show: (1) that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.13 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.14 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.15

7

Id.

8

See G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008).

9

5 U.S.C. §§ 8101-8193.

10

Id. at § 8128(a).

11

Annette Louise, 54 ECAB 783, 789-90 (2003).

12

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
13

20 C.F.R. § 10.606(b)(2).

14

Id. at § 10.607(a).

15

Id. at § 10.608(b).

4

ANALYSIS -- ISSUE 2
In support of her reconsideration request, appellant submitted duplicate copies of her
January 2, 2008 medication assessment history report, the notice for her January 2, 2008
procedure and the January 18, 2008 employee medical worksheet from the physician’s assistant.
As this evidence was previously submitted and considered by the Office, it does not constitute
relevant and pertinent new evidence.16 Appellant did not submit any other evidence, nor did she
advance a relevant legal argument or show that the Office erroneously interpreted or applied a
specific point of law. Therefore, the Board finds that the Office properly denied her request for
reconsideration of the merits.17
CONCLUSION
The Board finds that appellant did not establish that she was totally disabled during the
period January 10 through 22, 2008 due to her November 2, 2007 employment injury. The
Board also finds that the Office properly denied her request for reconsideration pursuant to 20
C.F.R. § 8128(a).

16

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case. Richard Yadron, 57 ECAB 207 (2005); Eugene Butler, 36 ECAB
393 (1984).
17

The Board notes that, on appeal, appellant provided additional evidence and contended that she was not
submitting new evidence but rather supporting medical documents not included with her reconsideration request.
Pursuant to 20 C.F.R. § 501.2(c), the Board is precluded from reviewing evidence for the first time on appeal.
However, appellant may resubmit evidence to the Office with a written request for reconsideration under
5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

5

ORDER
IT IS HEREBY ORDERED THAT the August 4, April 29 and March 21, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 15, 2009
Washington, DC

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

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

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

6


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

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

Docket No. 12-394
Issued: July 10, 2012

Case Submitted on the Record

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

JURISDICTION
On December 14, 2011 appellant filed a timely appeal from a November 29, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying authorization for
requested medical treatment. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s request for
surgical authorization.
FACTUAL HISTORY
On September 18, 2009 appellant, then a 53-year-old housekeeping aid, filed a traumatic
injury claim alleging that he sustained lower back strain while lifting a pallet at work on
1

5 U.S.C. § 8101 et seq.

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

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

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

3

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

4

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

5

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

6

Id.

3

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

7

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

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 29, 2011 is affirmed.
Issued: July 10, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
CLEMENT J. ZABLOCKI MEDICAL CENTER, )
Milwaukee, WI, Employer
)
__________________________________________ )
S.S., Appellant

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

Docket No. 10-2314
Issued: June 9, 2011

Case Submitted on the Record

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

JURISDICTION
On September 10, 2010 appellant filed a timely appeal from an August 19, 2010 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her bilateral knee
condition was causally related to a July 30, 1999 employment incident.
FACTUAL HISTORY
On June 9, 2010 appellant, then a 56-year-old food service worker, filed an occupational
disease claim alleging that she sustained a knee injury as a result of falling on the sidewalk in
1

5 U.S.C. § 8101 et seq.

front of the Veterans Affairs (VA) building entrance. She stated that she first became aware of
her condition and realized that it was related to her employment on July 30, 1999. Appellant
explained that she did not file a claim for compensation within 30 days because she was on pain
medication for other medical conditions, which masked her knee pain.
Appellant provided a traumatic injury claim form submitted on August 5, 1999 alleging
that on July 30, 1999 she sustained a contusion to both knees when she fell on the ground while
walking into building 111 to report for duty. In a June 7, 2010 supplemental statement, she
explained that in 1999 she fell down on both her knees as she was walking into the front door of
the VA office. Since then, appellant’s knee swelled up from time to time, but in March 2010 her
knee swelled up and the pain no longer went away with medication.
In a June 9, 2010 accident incident report, the employing establishment reported that
appellant sustained a contusion in both her knees and complained of significant swelling and
pain as a result of a fall. It also stated that she submitted a July 30, 1999 accident report
documenting a fall at the front entrance of building 111.
In a June 7, 2010 medical report, Dr. Patricia Hago, a Board-certified family practitioner,
stated that appellant complained of persistent and worsening pain over her left knee since 1999
when she fell down at work. Appellant reported that it was difficult to stand up for a long time,
support her weight with her left leg and to get up from a seated position. Upon examination,
Dr. Hago observed that appellant’s left knee was tender on the suprapatellar, but had no
instability, crepitus, or erythema. Her anterior drawer was negative and showed very mild
edema/effusion over the superior border of the patella. Appellant was diagnosed with left knee
pain and hypertension. Dr. Hago also provided a June 7, 2010 work excuse slip confirming that
appellant was seen that same day for left knee pain secondary to a fall and noted that appellant
should wear a knee brace during work hours.
In a June 10, 2010 magnetic resonance imaging (MRI) scan report, Dr. Eric Dorn, a
Board-certified radiologist, observed an oblique undersurface tear in the posterior horn of
appellant’s medial meniscus and a horizontal tear throughout the lateral meniscus. He also noted
a moderate patellofemoral effusion, small mild edema and fluid in the anterior fat pad and a
small chondral fissure in the central patella. Dr. Dorn diagnosed appellant with a medial and
lateral meniscus tear.
On June 18, 2010 the Office advised appellant that the evidence submitted was
insufficient to establish her claim and requested additional information. It specifically requested
for a comprehensive medical report from her treating physician including a history of her
condition, symptoms, results of examinations and tests, a firm diagnosis, treatment provided,
effect of treatment, and a physician’s opinion, with medical reasons, explaining how the
diagnosed condition was caused or aggravated by her employment.
In a July 1, 2010 signed personal statement, appellant noted that she reported her July 30,
1999 injury to her supervisor but was not sure if witness reports were completed. She further
described the employment incident. Appellant came in the building and went down the stairs to
her locker. When she returned her knees were bleeding and she sat down with the program
manager. Appellant stated that she took pain medication to alleviate her symptoms when her

2

knees swelled up from time to time, but in March 2010 she noticed that the pain and stiffness
were not going away. After she underwent an MRI scan, her doctor recommended surgery.
In a decision dated August 19, 2010, the Office denied appellant’s claim on the grounds
that the medical evidence failed to establish that her knee condition was causally related to her
federal employment. It determined that, although the record demonstrated that the employment
incident occurred and provided a diagnosis, the medical evidence failed to establish that
appellant’s condition resulted from the accepted work event.
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative and substantial evidence2
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.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 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
specified employment factors or incident.6 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.7 The mere fact that work activities may produce symptoms revelatory of an
underlying condition does not raise an inference of an employment relation. Such a relationship
must be shown by rationalized medical evidence of a causal relation based upon a specific and
accurate history of employment conditions which are alleged to have caused or exacerbated a
disabling condition.8

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued
November 25, 2010).
4

Michael E. Smith, 50 ECAB 313 (1999); D.B., Docket No. 10-1495 (issued March 9, 2011).

5

D.I., 59 ECAB 158 (2007); Roy L. Humphrey, 57 ECAB 238 (2005); I.R., Docket No. 09-1229 (issued
February 24, 2010); W.D., Docket No. 09-658 (issued October 22, 2009).
6

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

7

B.B., 59 ECAB 234 (2007); D.S., Docket No. 09-860 (issued November 2, 2009).

8

Patricia J. Bolleter, 40 ECAB 373 (1988).

3

A traumatic injury is defined as a condition of the body caused by a specific event or
incident, or series of events or incidents, within a single workday or shift. Such condition must
be caused by external force, including stress or strain, which is identifiable as to the time and
place of occurrence and member or function of the body affected.9 An occupational disease or
illness is defined as a condition produced by the work environment over a period longer than a
single workday or shift.10
ANALYSIS
Appellant filed an occupational disease claim on June 9, 2010 claiming that she first
became aware of her knee condition and realized it resulted from her employment on
July 30, 1999. She stated that she fell on the sidewalk at the front entrance of her work and
experienced increased swelling and pain in both her knees since that incident. Although
appellant indicated that her condition was an occupational disease by filing a Form CA-2, she
described a traumatic injury in her claim and subsequent narrative statements. Thus, the Board
will treat this claim as a traumatic injury case because it appears that she is alleging an injury
resulting from a single occurrence within a single workday.11
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a knee injury on July 30, 1999. The Office accepted that the employment incident
occurred as alleged and that she sustained a knee condition. The medical evidence, however,
fails to establish that appellant’s knee condition was causally related to the accepted incident.
In a June 7, 2010 medical report and work excuse slip, Dr. Hago examined appellant for
left knee pain secondary to a fall at work. She stated that appellant’s pain began in 1999 after
she fell down at work. The Board finds however that Dr. Hago’s report is of limited probative
value. Dr. Hago did not relate a significant history of injury as she did not describe any details
of appellant’s fall, such as whether she actually fell on her knee or whether she fell on steps,
concrete or carpet. Upon examination, she observed that appellant’s left knee was tender on the
suprapatellar, but had no instability, crepitus or erythema. Dr. Hago diagnosed appellant with a
history of trauma and left knee pain. Pain, however, is a symptom, not a compensable medical
diagnosis.12 Thus, Dr. Hago’s report fails to provide a diagnosed condition sufficient to meet
appellant’s burden of proof. Furthermore, while she implied that appellant’s knee pain resulted
from a fall at work, she did not provide any medical rationale explaining how falling at work,
some eleven years previously, resulted in the current knee condition. Such explanation is
especially important as there is no evidence of record documenting appellant’s condition since
1999. Medical evidence is of limited probative value on the issue of causal relationship if it

9

20 C.F.R. § 10.5(ee).

10

Id. at § 10.5(q).

11

See S.H., Docket No. 10-1697 (issued April 15, 2011).

12

Robert Broome, 55 ECAB 339, 342 (2004).

4

contains a conclusion regarding causal relationship which is unsupported by medical rationale.13
Thus, Dr. Hago’s report fails to establish causal relationship.
Appellant also submitted a June 10, 2010 MRI scan report interpreted by Dr. Dorn who
observed an oblique undersurface tear in the posterior horn of appellant’s medial meniscus and a
horizontal tear throughout the lateral meniscus. Appellant was diagnosed with a medial and
lateral meniscus tear. While Dr. Dorn’s report provides a firm medical diagnosis, it does not
offer any opinion regarding the cause of appellant’s knee condition. The Board has held that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.14
On appeal, appellant contends that she provided sufficient medical evidence from
Dr. Hago and Dr. Shivaram, a Board-certified orthopedic surgeon, to support causal relationship.
As previously noted, however, Dr. Hago’s medical report is of diminished probative value to
establish causal relationship. The Board’s jurisdiction is limited to evidence that was before the
Office at the time it issued its final decision. The Board may not consider Dr. Shivaram’s
medical report on appeal.15 As appellant failed to submit sufficient probative medical evidence
explaining how her knee condition was causally related to the July 30, 1999 employment
incident, she did not meet her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to the Office within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an injury on July 30, 1999 as alleged.

13

Albert C. Brown, 52 ECAB 152 (2000); T.M., Docket No. 08-975 (issued February 6, 2009).

14

K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997).

15

Sandra D. Pruitt, 57 ECAB 126 (2005); see also 20 C.F.R. § 501.2(c)(1).

5

ORDER
IT IS HEREBY ORDERED THAT the August 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 9, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.A., Appellant
and
U.S. POSTAL SERVICE, FLORENCE
PROCESSING & DISTRIBUTION CENTER,
Florence, SC, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 20-1324
Issued: March 1, 2021

Case Submitted on the Record

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

On June 23, 2020 appellant, through counsel, filed a timely appeal from an April 29, 2020
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Board assigned Docket No. 20-1324.2
On July 12, 2008 appellant, then a 32-year-old automation clerk, filed an occupational
disease claim (Form CA-2) alleging that he developed swollen feet and knees and a back condition
due to factors of his federal employment, including walking, standing, pushing, and pulling. He
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

The Board notes that following the April 29, 2020 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.

indicated that he first became aware of his condition and realized that his condition was caused or
aggravated by his federal employment on February 22, 2008. On the reverse side of the claim
form, the employing establishment indicated that appellant stopped work on March 23, 2008 and
returned to work on June 28, 2008 with restrictions. OWCP accepted the claim for a temporary
aggravation of preexisting right foot pes planus (flat foot) and aggravation of right talar neck
fracture. It paid appellant wage-loss compensation on the supplemental rolls commencing
April 26, 2008 and on the periodic rolls commencing June 7, 2009. On May 1, 2013 OWCP
terminated his wage-loss compensation and medical benefits.
On May 30, 2018 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated June 12, 2018, OWCP informed appellant that additional
evidence was needed in support of his claim, and afforded him 30 days to submit the necessary
evidence. No additional evidence was received.
By decision dated July 19, 2018, OWCP denied appellant’s schedule award claim, finding
that the evidence of record was insufficient to establish a permanent impairment of a scheduled
member due to his accepted employment injury.
On July 27, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. On December 11, 2018 an OWCP
hearing representative conducted an oral hearing. By decision dated February 15, 2019, an OWCP
hearing representative affirmed OWCP’s July 19, 2018 decision.
On May 6, 2019 appellant, through counsel, requested reconsideration. By decision dated
May 13, 2019, OWCP denied appellant’s reconsideration request.
On March 9, 2020 appellant, through counsel, again filed a claim for a schedule award
(Form CA-7). Appellant attached a February 13, 2020 narrative medical report from Dr. Robert
Macht, a general surgeon, who reviewed appellant’s history of injury, conducted a physical
examination, and used the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides)3 to determine that appellant sustained a
32 percent permanent impairment of his right lower extremity. Dr. Macht also related that
appellant had reached MMI on February 6, 2020.
In a development letter dated March 13, 2020, OWCP informed appellant that additional
evidence was needed in support of his claim, and provided him 30 days to submit the requested
evidence.
On April 1, 2020 OWCP sent appellant’s medical records and a statement of accepted facts
(SOAF) to a district medical adviser (DMA) to review for schedule award purposes.

3

A.M.A., Guides (6th ed. 2009).

2

On April 28, 2020 OWCP received an April 11, 2020 medical report from Dr. Arthur
Harris, a Board-certified orthopedic surgeon serving as OWCP’s DMA. Dr. Harris concluded that
appellant had 33 percent permanent impairment of his right lower extremity.
By decision dated April 29, 2020, OWCP denied appellant’s reconsideration request.4 It
did not reference or address the report of Dr. Macht’s February 13, 2020 report, or the DMA’s
report dated April 11, 2020.
The Board has duly considered the matter and finds that the case is not in posture for
decision and must be remanded to OWCP. In the case of William A. Couch,5 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued.
In its April 29, 2020 decision, OWCP failed to consider the February 13, 2020 report from
Dr. Macht and the April 11, 2020 report from the DMA. Whether OWCP receives relevant
evidence on the date of the decision or days before, such evidence must be considered.6
As the Board’s decisions are final as to the subject matter appealed, it is crucial that all
evidence relevant to the subject matter of the claim properly submitted to OWCP be reviewed and
addressed.7 For this reason, the case will be remanded to OWCP to enable it to properly consider
all the evidence submitted at the time of the April 29, 2020 decision. Following such further
development as OWCP deems necessary, it shall issue a de novo decision on the claim.
Accordingly,

4

Supra note 2.

5

41 ECAB 548 (1990); T.G., Docket No. 19-1930 (issued January 8, 2021).

6
See G.A., Docket No. 19-1080 (issued January 2, 2020); T.J., Docket No. 14-1854 (issued February 3, 2015); J.J.,
Docket No. 12-1062(issued December 12, 2012); William McKennon, 51 ECAB 145 (1999); Linda Johnson, 45
ECAB 439 (1994) (applying Couch where OWCP did not consider a medical report received on the date of its
decision).
7

See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004).

3

IT IS HEREBY ORDERED THAT the April 29, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 1, 2021
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 12-331
Issued: January 14, 2013

Case Submitted on the Record

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

On December 5, 2011 appellant, through his attorney, filed a timely appeal from a
September 6, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) that
affirmed his schedule awards for 10 percent impairment of each of his upper extremities. The
Board docketed the appeal as No.12-331.
The Board finds that this case is not in posture for decision and agrees with the argument
on appeal that OWCP has not established that Dr. Howard Zeidman, a Board-certified orthopedic
surgeon, was properly selected as the impartial medical specialist.
Appellant requested schedule awards on July 6, 2004 and June 3, 2005. In support of his
claim, he submitted a report dated February 17, 2004, from Dr. David Weiss, an osteopath,
finding 48 percent impairment of the right upper extremity and 8 percent impairment of the left
upper extremity. On January 24, 2008 OWCP granted appellant a schedule award for 10 percent
impairment of each of his upper extremities.
Appellant requested an oral hearing. The Branch of Hearings and Review remanded the
case for OWCP to combine appellant’s injury claims and for recalculation of appellant’s
permanent impairment for schedule award purposes. An OWCP medical adviser reviewed
appellant’s claim on July 14, 2008 and determined that appellant had 35 percent impairment due
to thumb abduction deficit and 6 percent impairment due to right C6 nerve root deficit to reach

41 percent impairment of the right upper extremity and 9 percent impairment of the left upper
extremity due to left C6 nerve root impairment and 3 percent for pain.
OWCP found a conflict of medical opinion evidence between Dr. Weiss and OWCP’s
medical adviser. It referred appellant for an impartial medical examination and Dr. Samuel E.
Epstein, an osteopath, who found on September 22, 2008 that appellant had 20 percent
impairment of his right upper extremity and 5 percent impairment of the left upper extremity
under the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment.1
There was no activity in the case between December 23, 2008 and July 6, 2009 at which
time OWCP informed appellant that the schedule award requirements had changed.2 On
October 9, 2009 OWCP referred appellant for a second impartial medical examination with
Dr. Zeidman regarding the extent of his permanent impairment for schedule award purposes.
The record contains an iFECS report ME023 indicating that Dr. Zeidman was selected as the
impartial medical examiner. After further development, OWCP determined that appellant had no
more than 10 percent impairment of each of his upper extremities for which he had received
schedule awards on February 4, 2011. On September 6, 2011 an OWCP hearing representative
affirmed the schedule award decision.
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of the impartial medical specialists
designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial
medical specialists will be selected on a strict rotating basis in order to negate any appearance
that preferential treatment exists between a particular physician and OWCP.3
OWCP has an obligation to verify that it selected Dr. Zeidman in a fair and unbiased
manner. It maintains records for this very purpose.4 The current record includes an OWCP
referral form, and an ME023 iFECS report which states that appellant’s referee appointment was
scheduled with Dr. Zeidman. The record does not contain iFECS screen shots substantiating the
selection of Dr. Zeidman.
The Board has placed great importance on the appearance as well as the fact of
impartiality, and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an

1

A.M.A., Guides (5th ed. 2001).

2

On August 7, 2009 OWCP requested an additional impairment rating under the sixth edition of the A.M.A.,
Guides from Dr. Epstein. He did not respond.
3

Raymond J. Brown, 52 ECAB 192 (2001).

4

M.A., Docket No. 07-1344 (issued February 19, 2008).

2

impartial specialist. OWCP has not met its affirmative obligation to establish that it properly
followed its selection procedures.5
The Board will remand the case to OWCP for selection of another impartial medical
specialist. After such further development as necessary, OWCP shall issue an appropriate
decision.
IT IS HEREBY ORDERED THAT the September 6, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: January 14, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5

C.P., Docket No. 10-1247 (issued September 28, 2011).

3