United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Barstow, CA,
Employer
__________________________________________

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

Docket No. 10-1805
Issued: May 10, 2011

Case Submitted on the Record

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

JURISDICTION
On June 29, 2010 appellant filed a timely appeal of a January 21, 2010 Office of
Workers’ Compensation Programs’ merit decision denying his claim for an additional schedule
award. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant has more than 10 percent impairment of his left leg
for which he has received schedule awards; and (2) whether appellant has reached maximum
medical improvement and can be considered for an additional schedule award.
On appeal appellant contends that the second opinion report should be removed from the
record as the physician’s license was revoked in West Virginia within the last five years.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On October 7, 2000 appellant, then a
57-year-old boiler plant operator, alleged that he developed hallux valgus deformity and a bunion
on the toe of his left foot due to wearing steel-toed boots as required by his employer. On
December 21, 2000 the Office accepted his claim for bunion on the first toe of his left foot.
Dr. Nicholas C. Crismali, a podiatrist, performed an offset-V bunionectomy with Akin
osteotomy and K-wire stabilization on appellant’s left foot on May 2, 2001. He performed
additional surgery on May 30, 2001 consisting of an excision of deep implant left foot and open
reduction and internal fixation of the first metatarsal fracture in appellant’s left foot. By decision
dated July 19, 2004, the Office granted appellant a schedule award for nine percent impairment
of the left lower extremity, or 25.92 weeks of compensation. In a December 22, 2004 decision,
an Office hearing representative affirmed the July 19, 2004 decision.
Appellant requested an additional schedule award on February 18, 2006. The Office
medical adviser reviewed the medical evidence and accepted appellant’s claim for the additional
condition of post-traumatic degenerative joint disease of the left first metatarsal phalangeal joint.
He found appellant had 8 percent impairment of his left leg as a result of developing moderate to
severe post-traumatic degenerative joint disease in his first metatarsal phalangeal joint and 2
percent impairment for loss of range of motion of the great toe or a combined impairment of 10
percent to his left lower extremity. The Office medical adviser stated, “It should be noted that
the claimant’s impairment has increased as compared to July 19, 2004 as he now has increasing
problems as a result of post-traumatic arthritis in his left metatarsal phalangeal joint.” By
decision dated May 19, 2006, the Office granted appellant a schedule award for an additional 10
percent impairment of his left lower “extremity/foot.” It awarded him 20.5 weeks of
compensation. The Office then found that appellant had received an overpayment of
compensation based on his dual schedule awards totaling 19 percent impairment as he was only
entitled to an additional one percent of the left lower extremity. The Branch of Hearings and
Review affirmed this decision on March 21, 2007. By decision dated August 10, 2007, the
Office found that appellant had no more than 10 percent total impairment of his left lower
extremity. Appellant appealed these decisions to the Board. The Board remanded the case,
finding that the medical evidence was not correlated with the A.M.A., Guides and that the Office
medical consultant did not explain why the additional conditions diagnosed by appellant’s
physician were not considered.2 The facts and circumstances of the case as set out in the Board’s
prior decisions are adopted herein by reference.
Dr. Arthur S. Harris, the Office’s orthopedic consultant, reviewed the medical evidence
on July 16, 2008. He found that appellant had two percent impairment of his left lower
extremity due to loss of ankle dorsiflexion citing to the A.M.A., Guides.3 Dr. Harris further
found that appellant had post-traumatic arthritis in the first metatarsophalangeal joint resulting in
eight percent impairment.4 He found that appellant had 10 percent total impairment of the left
2

Docket No. 08-365 (issued June 11, 2008).

3

A.M.A., Guides 537, Table 17-14 (5th ed. 2001).

4

Id. at 544, Table 17-31.

2

lower extremity. Dr. Harris also stated that appellant’s neurologic deficits with increasing
weakness of his tibialis anterior, extensor hallucis longus and flexor hallucis longus, toe flexors
and gastrocsoleus muscles with increased diminished sensation diagnosed by Dr. Crismali were
not related to his accepted employment injury.
By decision dated September 25, 2008, the Office denied appellant’s claim for an
additional schedule award.5
Appellant’s attending physician, Dr. Crismali, a podiatrist, completed a note on
October 13, 2008 and diagnosed drop foot, left and hallux valgus. He found dysesthesia
associated with the metatarsal heads, two, three and four on the left foot and limited dorsiflexion
range of motion for the first metatarsal to 30 degrees as well marked deficit for the tibialis
anterior and extensors of the foot and metatarsophalangeal joint. Dr. Crismali examined
appellant on January 7, 2009. He found dysesthesia associated with the fourth and fifth toes of
the left foot. Dr. Crismali noted dislocation of the second metatarsal with slight dorsiflexion and
limited range of motion. He found that appellant’s first metatarsal was limited to 20 degrees of
dorsiflexion and was developing a dorsomedial bump. Dr. Crismali found that appellant had
mild drop foot on the left side and deficit in motor function with the tibialis aneroid tendon at
4/5.
On June 1, 2009 Dr. Crismali found a neuroma in the second and third interspace of the
left foot and numbness in the second web space. Appellant had increase in the size of the first
metatarsophalangel joint of the left foot where he had a developing bone spur.
On September 25, 2009 appellant requested reconsideration on the September 25, 2008
Office decision. He alleged that the Office had accepted that he had an additional 10 percent
impairment of his left lower extremity and that therefore he was entitled to additional
compensation for 28.8 weeks rather than the 20.5 weeks of compensation that he received.
Appellant requested the additional 8.3 weeks of compensation plus interest.
The Office referred appellant for a second opinion evaluation with Dr. Bunsri T. Sophon,
a Board-certified orthopedic surgeon, on October 16, 2009. In a report dated November 10,
2009, Dr. Sophon reviewed appellant’s history of injury and medical history. He found that
appellant had a normal gait but was unable to stand on his heels or toes. In regard to appellant’s
feet, Dr. Sophon found enlargement deformity at the dorsal head of the left first metatarsal, with
no motion of the metatarsophalangeal joint or the IP joint of the left great toe. He found
tenderness in the second webspace of the left foot and nontender clawing deformity of the left
second and third toes. Dr. Sophon stated that appellant’s motor strength was within normal
limits. He found that appellant was not at maximum medical improvement as he required
removal of the pin fixation and neurectomy of the Morton’s neuroma.
The Office referred this report to Dr. Crismali on November 30, 2009.
By decision dated January 21, 2010, the Office reviewed the merits of appellant’s claim
and denied modification of its prior decision. It found that Dr. Sophon found that appellant
5

At the time of the appeal to the Board, the Office has not again developed the issue of overpayment.

3

required additional treatment including fixation of the proximal phalanx of the left great toe and
neurectomy of the Morton’s neuroma. The Office noted that Dr. Crismali had not responded to
the request to review Dr. Sophon’s report, but that his reports were consistent with a worsening
of appellant’s condition. It found that as appellant had not reached maximum medical
improvement and required additional medical treatment of his accepted condition, an additional
schedule award was not currently appropriate.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions of the body. The Act, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of the Office. 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. The Office evaluates
the degree of permanent impairment according to the standards set forth in the specified edition
of the A.M.A., Guides. As of May 1, 2009, any decision regarding a schedule award must be
based on the sixth edition.8 For decisions issued prior to May 1, 2009, the fifth edition of the
A.M.A., Guides was appropriate.
ANALYSIS -- ISSUE 1
The Office’s September 25, 2008 decision found that appellant had no more than 10
percent impairment of his left lower extremity for which he had received schedule awards. The
record establishes that he received a schedule award on July 19, 2004 for nine percent
impairment of the left lower extremity or 25.92 weeks of compensation. On May 19, 2006 the
Office granted appellant a schedule award for an additional 10 percent impairment of his left foot
and 20.5 weeks of compensation. Appellant requested reconsideration and argued that his
May 19, 2006 schedule award should have been for an additional 10 percent impairment of his
left lower extremity or 28.8 weeks of compensation and requested that the Office provide him
with the additional 8.3 weeks of compensation.
The Board previously remanded the case because the medical evidence did not clearly
establish the percent of appellant’s permanent impairment for schedule award purposes as the
Office’s orthopedic consultant, Dr. Harris, did not correlate appellant’s physical findings with
the A.M.A., Guides and did not explain why he excluded additional left lower extremity
conditions diagnosed by Dr. Crismali. Following the Board’s decision, the Office requested a
supplemental report from Dr. Harris who correlated his findings with the fifth edition of the
A.M.A., Guides reaching an impairment rating of 10 percent impairment of the left lower
6

5 U.S.C. §§ 8101-8193, 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.a (January 2010).

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extremity and again stated that appellant’s neurologic deficit with increasing weakness of his
tibialis anterior, extensor hallucis longus and flexor hallucis longus, toe flexors and gastrocsoleus
muscles with increased diminished sensation were not related to his accepted employment injury.
Dr. Harris provided citations to the A.M.A., Guides to support his conclusion that appellant had
no more than 10 percent impairment of his left lower extremity entitling him to a schedule
award.
The Board finds that there is no medical evidence correlated with the A.M.A., Guides
which establishes that appellant has more than 10 percent impairment of his left lower extremity.
Dr. Harris’ most recent report provided citation to the A.M.A., Guides in rating impairment of 10
percent of the left leg due to loss of range of motion of the ankle for two percent impairment and
eight percent impairment due to arthritis. Appellant previously received schedule awards
totaling 46.42 weeks of compensation, while the medical evidence does not currently establish
that he is entitled to more than 28.8 weeks of compensation, or 10 percent impairment of the left
lower extremity. The Board finds that the medical evidence in the record does not establish that
he is entitled to additional compensation.
LEGAL PRECEDENT -- ISSUE 2
In the case of James Kennedy, Jr.,9 the Board found that the period covered by a schedule
award commences on the date that the employee reaches maximum medical improvement from
the residuals of her employment injury. Maximum improvement means that the physical
condition of the injured member of the body has stabilized and will not improve further. The
determination of maximum medical improvement is not to be based on surmise or prediction of
what may happen in the future. A schedule award is appropriate where the physical condition of
an injured member has stabilized, despite the possibility of an eventual change in the degree of
functional impairment in the member.10 The question of when maximum medical improvement
has been reached is a factual one which depends on the medical findings in the record and the
determination of such date is made in each case upon the basis of submitted medical evidence.11
ANALYSIS -- ISSUE 2
Appellant claims a worsening of his left lower extremity condition. The Office
developed the medical evidence by referring the claim to Dr. Sophon, who found on
November 10, 2009 that appellant required additional treatment due to his accepted employment
injury and had not reached maximum medical improvement. Dr. Sophon recommended
additional medical treatment including the required removal of the pin fixation and neurectomy
of the Morton’s neuroma.
Appellant’s attending physician, Dr. Crismali submitted additional medical reports,
diagnosing drop foot, left and hallux valgus. He indicated that appellant’s range of motion of the
9

40 ECAB 620, 626 (1989).

10

Id.

11

Eugenia L. Smith, 41 ECAB 409, 413 (1990).

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first metatarsal was decreasing finding 30 degrees on October 13, 2008 and 20 degrees on
January 7, 2009. On June 1, 2009 Dr. Crismali diagnosed a neuroma in the second and third
interspace of the left foot as well as an increase in the size of the first metatarsophalangel joint of
the left foot where he had a developing bone spur.
Both physicians who examined appellant in 2008 reported increasing symptoms and a
worsening of his condition. Dr. Sophon recommended additional medical treatment. As
appellant is not at maximum medical improvement and has not specifically informed the Office
that he does not desire the additional medical treatment, the case is not in posture for an
additional permanent impairment rating.
On appeal appellant alleged that Dr. Sophon’s report should be excluded from the record
due to sanctions and submitted a document from an internet site alleging that Dr. Sophon
surrendered his medical license in West Virginia. Office procedures provide an exclusion of a
medical report is required if the physician selected for the referee examination regularly
performs fitness-for-duty examinations, a second referee is selected before the Office has
attempted to clarify the original referee’s report, a report is obtained through telephone contact or
leading questions have been posed to the physician.12 The facts of this case, do not require the
medical report to be excluded. Furthermore, appellant did not submit a copy of any official
decision that Dr. Sophon’s medical license had been revoked with the reasons for the revocation.
He did not discuss whether any alleged incompetence by Dr. Sophon would make his report in
this case unreliable and not entitled to any weight as a second opinion report.13 Appellant,
therefore, has not submitted any evidence and argument to support his request to strike
Dr. Sophon’s report from the record.
CONCLUSION
The Board finds that the medical evidence does not currently establish that appellant has
more than 10 percent impairment of his left lower extremity for which he has received schedule
awards. The Board further finds that the current medical evidence establishes that he has not
reached maximum medical improvement and that his claim is not in posture for an additional
schedule award.

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.6
(September 1995)
13

Roger D. Girouard, Docket No. 04-1220 (issued November 18, 2004).

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ORDER
IT IS HEREBY ORDERED THAT the January 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, INDIAN SCHOOL
STATION, Phoenix, AZ, Employer
__________________________________________

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

Docket No. 09-2294
Issued: June 10, 2010

Case Submitted on the Record

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

JURISDICTION
On September 15, 2009 appellant filed a timely appeal of an August 21, 2009 Office of
Workers’ Compensation Programs’ nonmerit decision denying her request for reconsideration of
the merits. Because more than 180 days have elapsed between the most recent Office merit
decision dated August 14, 2008 and the filing of this appeal, the Board lacks jurisdiction to
review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606.
FACTUAL HISTORY
On December 22, 2005 appellant, then a 54-year-old mail processing clerk, filed an
occupational disease claim alleging that on August 5, 2005 she first realized that her left shoulder
and arm condition was due to her employment duties requiring that she “perform jobs that

require two arms with just my left arm.” On March 25, 2006 she filed an updated occupational
disease claim attributing her back, arm and left shoulder condition to her employment duties.
Appellant noted on this form that the original claim form had been dated December 22, 2005.1
In support of her claim, appellant submitted medical and factual evidence including her
undated statement, duty status reports2 dated July 13, 2005 and March 13, 2006 providing work
restrictions; and her July 13, 2005 acceptance of a modified job offer. The March 13, 2006 duty
status report noted a diagnosis of left shoulder overuse and left shoulder pain while the July 13,
2005 report diagnosed epicondylitis due to her employment injury and overuse of the right arm.
In a letter dated April 5, 2006, the Office informed appellant that the evidence was
insufficient to support her occupational disease claim and advised her as to the medical and
factual evidence required to support her claim. Appellant was given 30 days to submit the
requested information.
In response appellant submitted medical and factual evidence including an Equal
Employment Opportunity (EEO) complaint she filed for alleged discrimination; disability notes
dated December 6, 2005 and March 31, 2006 by H. Reece, a certified physician’s assistant; a
March 23, 2006 report by John-David Michels, a certified physician’s assistant and Dr. Gary T.
Purcell, a treating Board-certified orthopedic surgeon;3 a September 22, 2005 recurrence claim;
progress notes and report dated January 3, 2006 by Dr. John T. Porter, a treating physician; and a
May 9, 2006 progress note by Dr. Purcell diagnosing left shoulder bursitis.
In his January 3, 2006 progress note, Dr. Porter noted appellant was seen for chronic pain
management. Appellant related she aggravated her left arm because of her job duties. Dr. Porter
reviewed the job duties and concluded she was unable to perform the job due to the repetitive
nature of the duties. Dr. Porter, in his January 3, 2006 report, stated appellant was having
significant bilateral upper extremity problems due to her repetitive job duties. He diagnosed
chronic myofascial pain of both upper extremities.
In the March 3, 2006 progress note by Mr. Michels and Dr. Purcell, the chief complaint
was noted as left arm and shoulder pain which began August 8, 2005 due to overuse. The report
noted appellant had right upper extremity restrictions and provided physical findings of the left
shoulder.
By decision dated May 9, 2006, the Office denied her claim as the evidence was
insufficient to establish that her left shoulder injury was employment related.

1

Appellant stopped work in October 2006 and went on disability retirement in November 2006.

2

The signatures on the duty status reports are illegible.

3

The report contains the names of both Mr. Michels and Dr. Purcell with the signature appearing to be that of
Mr. Michels.

2

On June 24, 2006 appellant requested an oral hearing and a telephone hearing was held
on February 16, 2007. With her request for an oral hearing, she submitted a June 6, 2006 report4
by Mr. Michels and Dr. Purcell diagnosing left shoulder impingement syndrome with tendinitis.
In a July 11, 2006 progress note, Dr. Purcell diagnosed fibroymalgia. He noted appellant
continued to have complaints of a significant amount of left shoulder pain.
Subsequent to the hearing appellant submitted factual and medical evidence including her
statements, evidence from her EEO claim; a March 23, 2006 report by Mr. Michels and
Dr. Purcell; and a March 21, 2007 report by Dr. A. Todd Alijani, an examining Board-certified
orthopedic surgeon.
In his March 21, 2007 report, Dr. Alijani diagnosed left shoulder impingement syndrome
and myofascial syndrome of the upper back and upper rhomboids. Appellant attributed her left
upper extremity condition to her job duties which included extensive lifting and pushing. A
physical examination revealed rhomboid trigger point tenderness, out of proportion tenderness
over the biceps and acromioclavicular joint and full left shoulder range of motion.
By decision dated May 22, 2007, the Office hearing representative affirmed the May 9,
2006 Office decision.
On July 19, 2007 appellant requested reconsideration.
By decision dated July 31, 2007, the Office denied appellant’s reconsideration request
without reviewing the case on the merits.
On August 2, 2007 Dr. Robert B. Ogensen, diagnosed severe emotional stress as a result
of appellant’s inability to perform her light-duty job assigned in August 2005. He opined the
light-duty job was not medically suitable for appellant.
On August 7, 2007 Dr. Purcell opined the light-duty job was not suitable and
recommended a sedentary position with no repetitive use of her shoulders or lower extremity.
In an August 13, 2007 report, Dr. Alijani diagnosed left shoulder impingement syndrome
and myofascial pain of her upper back and upper rhomboids. He attributed her condition to her
employment as “she had no pain prior to the injury and has had pain after, with a degree of
medical certainty that the job resulted in the injury.”
On May 20, 2008 the Office received medical and factual evidence from appellant
including evidence previously submitted, evidence pertaining to her light-duty job offer evidence
concerning an appeal of a grievance; evidence from her EEO claim and her contentions that she
was required to work outside her restrictions and that the modified job was not suitable.
On May 18, 2008 appellant requested reconsideration.

4

The report was unsigned.

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By decision dated August 14, 2008, the Office denied appellant’s request for
modification of the denial of her claim.
By letter dated August 3, 2009, received by the Office on August 7, 2009, appellant
requested reconsideration. In support of her claim, she submitted her statement contending that
she did not elect disability retirement in October 2006 as she had applied in December 2005;
however, the employing establishment delayed the processing of her application because it
“consciously sent erroneous information to the [d]isability office.” Further, appellant contended
that she had proved that her work caused her arm injury. She did not submit any evidence with
her requested.
By decision dated August 21, 2009, the Office denied appellant’s request for
reconsideration on the merits. It noted that appellant did not submit any new evidence with her
request.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,5
the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.6 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.7 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.8
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.9 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.10

5

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that [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.
6

20 C.F.R. § 10.606(b)(2). See J.M., 60 ECAB ___ (Docket No. 09-218, issued July 24, 2009); Susan A. Filkins,
57 ECAB 630 (2006).
7

20 C.F.R. § 10.607(a). See S.J., 60 ECAB ___ (Docket No. 08-2048, issued July 9, 2009); Robert G. Burns, 57
ECAB 657 (2006).
8

20 C.F.R. § 10.608(b). See Y.S., 60 ECAB ___ (Docket No. 08-440, issued March 16, 2009); Tina M. ParrelliBall, 57 ECAB 598 (2006).
9

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

10

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

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ANALYSIS
In support of her August 3, 2009 reconsideration request, appellant submitted her
statement contending that she had proved that her left arm condition was employment related.
Her August 3, 2009 request for reconsideration neither alleged, nor demonstrated that the Office
erroneously applied or interpreted a specific point of law. Additionally, appellant did not
advance a relevant legal argument not previously considered by the Office. She did not submit
any pertinent new and relevant evidence with her request for reconsideration. The issue to be
resolved is a medical one and appellant did not submit any medical evidence with her request.
Consequently, appellant is not entitled to a review of the merits of her claim based on the abovenoted requirements under section 10.606(b)(2). Although she contended that the employing
establishment delayed the effective date of her disability retirement because it did not cooperate,
this argument is irrelevant to the threshold issue of whether she sustained an injury in the
performance of duty causally related to factors of her federal employment. Thus, the Board finds
that such contention is insufficient to warrant a merit review.11
The Board finds that the Office properly determined that appellant was not entitled to
further consideration of the merits of her claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(2), and thus the Office properly denied her August 3, 2009 request for
reconsideration.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

11

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 21, 2009 is affirmed.
Issued: June 10, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 11-1252
Issued: April 16, 2012

Case Submitted on the Record

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

JURISDICTION
On April 27, 2011 appellant, through his attorney, timely appealed the April 4, 2011
merit decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed the
termination of his wage-loss compensation. 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 OWCP properly declined authorization for spinal
manipulation under anesthesia; and (2) whether it properly terminated appellant’s wage-loss
compensation effective September 26, 2009 on the basis that he was no longer disabled from
performing his date-of-injury position.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, a 43-year-old former letter carrier, injured his lower back in the performance
of duty on March 18, 2006.2 He has an accepted claim for left hip strain, acute sciatic neuritis
and herniated disc (L5-S1). OWCP authorized a November 1, 2007 lumbar laminectomy,
discectomy and fusion at L5-S1.3 Appellant was incapacitated following surgery and received
wage-loss compensation beginning October 27, 2007 and was placed on the periodic
compensation rolls.
In November 2008, appellant’s neurosurgeon and his chiropractor agreed that his ongoing
lumbar condition required further treatment, which included transforaminal injections and spinal
manipulation under general anesthesia. OWCP authorized the transforaminal injections, but
referred the request for spinal manipulation to its medical adviser. In a January 23, 2009 report,
the medical adviser indicated that spinal manipulation was beyond his area of expertise, and he
could not offer an opinion on whether the proposed treatment was appropriate. He
recommended that appellant be referred to a chiropractor with experience in performing the
recommended procedure. The medical adviser also noted that appellant would likely benefit
from epidural steroid injections.
In February 2009, OWCP referred appellant to Dr. Manhal A. Ghanma, a Board-certified
orthopedic surgeon, to determine if the proposed spinal manipulation was medically necessary
and causally related to the March 18, 2006 accepted employment injury.
In a report dated March 9, 2009, Dr. Ghanma advised that spinal manipulation was not
medically necessary. He explained that there was insufficient objective medical evidence to
support that such treatment was appropriate considering that the disc herniation at L5-S1 had
been removed and there was no evidence of any recurrent disc herniation based on the most
recent lumbar magnetic resonance imaging (MRI) scan dated October 22, 2008.4 Dr. Ghanma
did not recommend any alternative treatment, and stated that appellant could return to his regular
job, with a 35-pound lifting restriction.
Appellant’s chiropractor, Dr. Bennett, reviewed Dr. Ghanma’s report and expressed his
disagreement. On April 10, 2009 he noted that Dr. Ghanma was not certified in spinal
manipulation. Dr. Bennett explained that spinal manipulation was clinically indicated often
times postsurgery due to fibrotic scar tissue and adhesions that develop around the nerve roots in
spite of the disc being removed. He also indicated that such treatment would help to improve
spinal mobility and reduce radicular-type complaints that appellant presently experienced.

2

Effective September 4, 2007, the employing establishment dismissed appellant for improper conduct.

3

Dr. Peter M. Fragatos, a Board-certified neurosurgeon, performed the November 1, 2007 surgery. OWCP
recognized him as appellant’s treating physician. Dr. Brian L. Bennett, a chiropractor, also treated appellant, and he
often worked in conjunction with Dr. Fragatos concerning appellant’s postsurgery rehabilitation.
4

Dr. Joseph P. Spirnak, a Board-certified radiologist, indicated that appellant’s October 22, 2008 lumbar MRI
scan revealed “L5-S1 findings more suggestive of scar formation rather than disc herniation....” Appellant’s
neurosurgeon reviewed the same MRI scan and continued to diagnose lumbar herniated disc.

2

Dr. Bennett disagreed with Dr. Ghanma’s opinion regarding appellant’s ability to resume his
regular letter carrier duties.
OWCP found a conflict in medical opinion between Dr. Bennett and Dr. Ghanma
regarding the need for spinal manipulation, as well as the extent of any injury-related physical
limitations or restrictions.
In a report dated May 11, 2009, Dr. Ralph J. Kovach, a Board-certified orthopedic
surgeon and impartial medical examiner, stated that spinal manipulation was not medically
necessary. In addition to performing a physical examination and reviewing the medical records,
he viewed two postsurgery MRI scans provided by appellant, which did not show evidence of
spinal surgery having been performed. Appellant had informed Dr. Kovach that the
November 1, 2007 lumbar fusion involved insertion of screws and other hardware, but this was
not evident on the MRI scans. Dr. Kovach further noted that the MRI scans did not reveal any
significant abnormality and there was no evidence of herniated discs. In finding that spinal
manipulation was not medically necessary, he explained that the apophyseal joints appeared
reasonable on the MRI scan and there was no evidence of scar tissue that would be mobilized by
any manipulation. Dr. Kovach also indicated that no alternative medical treatment was
necessary, including transforaminal injection therapy. As to the need for ongoing medical
treatment, he stated that active manual therapy was no longer required, but appellant should be
allowed to continue treatment with his surgeon as necessary. Dr. Kovach found that appellant
was capable of performing his usual job without work restrictions. He noted that appellant had
residual diminished sensation over the lateral left foot and leg, but this did not impair him from
performing his regular duties.
Dr. Bennett reviewed Dr. Kovach’s report and disagreed with his findings. He contended
that Dr. Kovach was not certified or familiar with the recommended procedure. Dr. Bennett
continued to treat appellant on a regular basis and documented ongoing lumbar and lower
extremity complaints. In a report dated July 27, 2009, appellant’s neurosurgeon, Dr. Fragatos,
indicated that appellant was totally disabled and would benefit greatly by acupuncture and
therapy for at least three months.
By decision dated September 23, 2009, OWCP terminated appellant’s wage-loss
compensation effective September 26, 2009.5 Based on Dr. Kovach’s May 11, 2009 report, it
found that he was capable of performing his date-of-injury position as a letter carrier without
restrictions or limitations. The September 23, 2009 decision did not terminate medical benefits.
Appellant requested a hearing, which was held on January 7, 2010. Dr. Bennett
submitted a January 12, 2010 report reiterating his disagreement with Dr. Kovach regarding the
necessity of spinal manipulation. He also disagreed with Dr. Kovach regarding appellant’s
ability to perform his regular letter carrier duties. Dr. Bennett noted that appellant primarily
delivered mail on foot and his job required frequent bending, lifting, rotating, carrying and sitting
for prolonged periods. He believed appellant’s ongoing lumbar condition precluded such
activities. Dr. Bennett addressed Dr. Kovach’s apparent confusion regarding appellant’s
5

OWCP issued a notice of proposed termination of compensation on August 19, 2009. The notice also advised
appellant that OWCP would not authorize spinal manipulation as it was not “medically supported.”

3

November 1, 2007 surgery and the absence of hardware on the latest lumbar MRI scan. He
explained that appellant had undergone a TruFUSE® procedure, which involved the insertion of
bone dowels (allograft). This was a different procedure than interbody fusion and did not
involve metal instrumentation that would otherwise appear on postsurgery imaging studies.
In a decision dated March 26, 2010, OWCP’s hearing representative found that while
OWCP met its burden of proof to terminate appellant’s compensation, Dr. Bennett’s clarification
regarding appellant’s November 1, 2007 surgery warranted further consideration. The hearing
representative set aside the September 23, 2009 decision and instructed OWCP to return the case
to Dr. Kovach for a supplemental report on whether the nature of surgery appellant received
altered his opinion regarding appellant’s ability to perform his date-of-injury job. The hearing
representative also directed OWCP to issue a final decision regarding the requested authorization
for spinal manipulation.
In a supplemental report dated April 27, 2010, Dr. Kovach reviewed Dr. Bennett’s
January 12, 2010 report explaining the type of spinal fusion surgery appellant received. He
commented that while it was a different type of fusion, it was a fusion nonetheless, and the
results were stated to have been solid. Dr. Kovach stated that the additional information
regarding appellant’s fusion did not change his earlier opinion regarding appellant’s ability to
perform his job as a letter carrier. He further noted that the procedure itself would not preclude
appellant from resuming his letter carrier duties and because the fusion was solid, appellant was
able to return to his usual job.
By decision dated July 23, 2010, OWCP found that the residuals from appellant’s
employment injury did not preclude him from performing his date-of-injury job. Thus,
appellant’s compensation benefits remained terminated. OWCP also denied authorization for the
spinal manipulation treatment.
Appellant’s attorney requested another hearing, which was held on January 18, 2011. In
a September 1, 2010 report, Dr. Bennett again reiterated his disagreement with Dr. Kovach
regarding appellant’s ability to resume his date-of-injury job.
On April 4, 2011 the Branch of Hearings and Review issued a decision affirming
OWCP’s July 23, 2010 decision.
LEGAL PRECEDENT -- ISSUE 1
An injured employee is entitled to receive all medical services, appliances or supplies
which a qualified physician prescribes or recommends and which OWCP considers necessary to
treat the work-related injury.6 OWCP has broad discretion in reviewing requests for medical
services under 5 U.S.C. § 8103(a), with the only limitation on its authority being that of
reasonableness.7 Abuse of discretion is generally shown through proof of manifest error, clearly

6

5 U.S.C. § 8103(a); 20 C.F.R. § 10.310(a) (2011).

7

Joseph E. Hofmann, 57 ECAB 456, 460 (2006).

4

unreasonable exercise of judgment or administrative actions which are contrary to both logic and
probable deductions from established facts.8
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the medical expenditure was incurred for treatment
of the effects of an employment-related injury or condition.9 Proof of causal relationship must
include rationalized medical evidence.10 In addition to demonstrating causal relationship, the
injured employee must show that the requested services, appliances or supplies are medically
warranted.11
ANALYSIS -- ISSUE 1
Dr. Bennett recommended that appellant undergo spinal manipulation under general
anesthesia. Dr. Ghanma, a Board-certified orthopedic surgeon and OWCP referral physician,
found that the recommend procedure was not medically necessary because appellant’s L5-S1
disc herniation had been removed and there was no evidence of recurrent disc herniation based
on the most recent lumbar MRI scan. OWCP determined that a conflict in medical opinion
existed, and therefore, properly referred the case to an impartial medical examiner.12
Dr. Kovach did not find that spinal manipulation was medically necessary for treatment
of appellant’s accepted condition. He physically examined appellant, reviewed medical records
provided by OWCP, and he viewed appellant’s postsurgery MRI scans. Dr. Kovach noted that
the MRI scans did not reveal any significant abnormality and there was no evidence of herniated
discs. He further commented that the apophyseal joints appeared reasonable on the MRI scan
and there was no evidence of scar tissue that would be mobilized by any manipulation. Based
upon these findings, Dr. Kovach concluded that spinal manipulation was not medically
necessary.
Where OWCP has referred appellant to an impartial medical examiner to resolve a
conflict in the medical evidence, the opinion of such a specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.13 Dr. Kovach, the
impartial medical examiner, provided a well-rationalized report based on a proper factual and
medical history. He accurately summarized the relevant medical evidence, and relied on the
latest statement of accepted facts, which included a description of appellant’s duties as a letter
8

Id.; Daniel J. Perea, 42 ECAB 214, 221 (1990).

9

Debra S. King, 44 ECAB 203, 209 (1992).

10

Joseph E. Hofmann, supra note 7.

11

Id. at 460-61.

12

FECA provides that if there is disagreement between the physician making the examination for OWCP and the
employee’s physician, OWCP shall appoint a third physician who shall make an examination. 5 U.S.C. § 8123(a);
see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). For a conflict to arise the opposing physicians’
viewpoints must be of “virtually equal weight and rationale.” Darlene R. Kennedy, 57 ECAB 414, 416 (2006).
13

Gary R. Sieber, 46 ECAB 215, 225 (1994).

5

carrier. Dr. Kovach also provided detailed examination findings and medical rationale
supporting his opinion. As such, his opinion as the impartial medical examiner was entitled to
determinative weight.14
Dr. Bennett, appellant’s chiropractor, disagreed with Dr. Kovach regarding the need for
spinal manipulation. He believed there was evidence of scar tissue and that such treatment was
medically necessary. Dr. Bennett also believed that Dr. Kovach was unfamiliar with spinal
manipulation unqualified to render an opinion on its necessity and efficacy. Unlike Dr. Bennett,
Dr. Kovach relied on his own interpretation of appellant’s postsurgery MRI scans and
Dr. Kovach did not see evidence of scar tissue.
Subsequent reports from a physician who was on one side of a medical conflict that had
already been resolved would generally be insufficient to overcome the weight accorded the
impartial medical examiner’s report and/or insufficient to create a new medical conflict.15 The
Board finds that Dr. Bennett’s disagreement with Dr. Kovach is insufficient to create a new
conflict or to overcome the special weight properly accorded Dr. Kovach as the impartial
medical examiner. Accordingly, OWCP properly denied authorization for spinal manipulation
under anesthesia.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.16 Having determined that an employee has a disability
causally related to his federal employment, OWCP may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the
employment.17 The right to medical benefits for an accepted condition is not limited to the
period of entitlement to compensation for disability.18
ANALYSIS -- ISSUE 2
As previously noted, OWCP declared a conflict in medical opinion between appellant’s
physicians and Dr. Ghanma, an OWCP referral physician. The conflict included both the need
for certain medical treatment, as well as the extent of any injury-related physical
limitations/restrictions. Dr. Ghanma believed appellant could return to his regular job with a 35pound lifting restriction, but Dr. Bennett disagreed.
Dr. Kovach found that appellant was capable of performing his usual job without
restriction. Apart from appellant’s subjective complaints of pain, he noted that appellant had
14

Id.

15

I.J., 59 ECAB 408, 414 (2008).

16

Curtis Hall, 45 ECAB 316 (1994).

17

Jason C. Armstrong, 40 ECAB 907 (1989).

18

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

6

residual diminished sensation over the lateral left foot and leg. However, the impartial medical
examiner did not believe that the injury-related residuals affecting appellant’s left lower
extremity precluded him from performing his regular duties. Based on the impartial medical
examiner’s opinion, OWCP terminated wage-loss compensation, but did not disturb appellant’s
entitlement to medical benefits.
Much like his opinion regarding the need for spinal manipulation, Dr. Kovach’s opinion
regarding appellant’s ability to resume his date-of-injury position is well rationalized and entitled
to the deference generally accorded an impartial medical examiner.19 Although there was some
initial confusion about appellant’s November 1, 2007 lumbar fusion, he noted in his
supplemental report that appellant’s fusion was solid and he was able to resume his usual duties
as a letter carrier.
While both Dr. Bennett and Dr. Fragatos submitted subsequent reports finding that
appellant remained disabled, these subsequent reports are insufficient to overcome the weight
properly accorded Dr. Kovach’s opinion.20 These additional reports are also insufficient to
create a new conflict in medical opinion.21 Accordingly, the Board finds that OWCP properly
terminated wage-loss compensation based on the weight of the evidence, as represented by the
impartial medical examiner’s May 11, 2009 and April 27, 2010 reports.
CONCLUSION
OWCP properly denied appellant’s request for authorization of spinal manipulation under
anesthesia. The Board also finds that it properly terminated wage-loss compensation effective
September 26, 2009.

19

Gary R. Sieber, supra note 13.

20

I.J., supra note 15.

21

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the April 4, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 16, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________

M.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
UNITED STATES SECRET SERVICE,
New York, NY, Employer

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

Docket No. 07-1727
Issued: December 19, 2007

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 June 14, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated March 14, 2007, which denied modification of the
Office’s October 13, 2006 decision finding that he failed to establish that he sustained an injury
as alleged. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
issues in this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained an injury in the performance of duty on March 14, 2005.
FACTUAL HISTORY
On March 14, 2005 appellant, then a 37-year-old special agent, filed a traumatic injury
claim alleging that he was stopped at a red light on that date when he was rear-ended while

sitting in his employing establishment vehicle. He alleged that he was thrown forward and
experienced pain in his lower back and neck. Appellant did not stop work.
By letter dated December 5, 2005, the Office informed appellant of the evidence needed
to support his claim and requested that he submit such evidence within 30 days.
In a December 14, 2005 statement, appellant described his injury, noting that at the time
of the accident, he had minor discomfort. Appellant alleged that he exited the vehicle to check
for damage, exchanged information with the other driver, contacted his supervisor to inform him
of what had transpired and completed the traumatic injury claim form. He began to experience
symptoms of back pain during September and October 2005, while assigned surveillance on a
specific case, which required numerous hours of sitting in his vehicle. Appellant stated that his
physician recommended a magnetic resonance imaging (MRI) scan and referred him to a spinal
specialist for cortisone injections and physical therapy. He denied any preexisting symptoms.
In a report dated December 12, 2005, Dr. Joseph Dryer, a Board-certified orthopedic
surgeon, noted that appellant had chronic low back pain that worsened over the prior three
months. He explained that appellant’s work required sitting in his car for six to eight hours a day
and had worsened his situation. Dr. Dryer determined that appellant had low back pain from a
central protrusion at L5-S1 as well as degenerative disc disease.
By decision dated March 8, 2006, the Office denied appellant’s claim. The Office found
that the evidence did not establish that the events occurred as alleged. The Office also found that
the medical evidence did not address the history of how the injury occurred.
On March 24, 2006 appellant requested reconsideration. He explained that he was
uncertain if his injury resulted from the March 14, 2005 car accident or if it resulted from the
long hours of surveillance. Appellant alleged that his back condition was work related.
In a May 18, 2006 report, Dr. Dryer noted that appellant had a history of chronic low
back pain since September 2005. He checked the box “yes” in response to whether appellant had
a history of concurrent or preexisting degenerative disc disease and herniated disc. Dr. Dryer
diagnosed degenerative disc disease and a herniated disc and opined that appellant was partially
disabled from December 12, 2005 to February 1, 2006.
In a decision dated October 13, 2006, the Office modified its March 8, 2006 decision.
The Office found that appellant had established the March 14, 2005 incident. However, the
Office found that the medical evidence was insufficient to establish his claim.
On December 13, 2006 appellant requested reconsideration.
He described the
circumstances related to his injury and his course of medical treatment. Appellant also alleged
that he was concerned that he had not filed the correct form and that had resulted in the denial of
his claim. A December 8, 2005 MRI scan of the lumbar spine read by Dr. Jeffrey Tambor,
Board-certified in internal medicine, revealed a small left foraminal/extrafoaminal disc
herniation at the L2-3 level superimposed upon a diffuse disc bulge and a mild broad based
central disc protrusion at the L5-S1 level. The Office also received several progress notes which
appeared to be for treatment of low back pain; however, the notes were partially illegible and it is
unclear whether they were signed by a physician. The Office also received November 5, 2005
2

diagnostic reports from Dr. Tambor that revealed evidence of mild bilateral polyneuropathy of
the legs.
By decision dated March 14, 2007, the Office denied modification of the October 13,
2006 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act2 and that an injury was
sustained in the performance of duty.3 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury and generally this can
be established only by medical evidence.5 The employee must also submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury.6 The medical evidence required to establish causal relationship is usually
rationalized medical evidence. Rationalized medical opinion evidence is medical evidence
which includes a physician’s rationalized opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, 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 claimant.7

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyet, 41 ECAB 992 (1990).

5

See John J. Carlone, 41 ECAB 354, 357 (1989).

6

Id. for a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

7

Id.

3

ANALYSIS
Appellant alleged that on March 14, 2005 he was rear-ended while sitting in his
employing establishment vehicle in the performance of duty. In its October 13, 2006 decision,
the Office accepted that appellant was rear-ended while in the performance of duty on
March 14, 2005. The Board finds that the evidence supports that the incident occurred as
alleged.
However, the medical evidence is insufficient to establish the second component of fact
of injury, that the employment incident caused an injury. The medical reports of record do not
establish that being rear-ended on March 14, 2005 caused a personal injury on March 14, 2005.
The medical evidence contains no reasoned explanation of how the specific employment incident
on March 14, 2005 caused or aggravated his back condition.8
Appellant submitted several reports from Dr. Dryer. In a December 12, 2005 report,
Dr. Dryer noted that appellant had chronic low back pain, which had worsened in the past three
months. He opined that appellant’s work as a special agent required sitting in his car for six to
eight hours per day and had worsened his situation. Dr. Dryer diagnosed low back pain from a
central protrusion at L5-S1 as well as degenerative disc disease. He did not address the
March 14, 2005 incident. The Board notes that Dr. Dryer did not explain how the March 14,
2005 employment incident caused or aggravated appellant’s condition. This is particularly
important in light of the fact that the record reflects that appellant has degenerative disc disease.
Furthermore, Dr. Dryer did not render his opinion until almost nine months after the March 14,
2005 incident. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, 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 claimant.9 Thus, this report is of limited probative value.
In a May 18, 2006 report, Dr. Dryer noted that appellant had a history of chronic low
back pain since September 2005. He also checked the box “yes” in response to whether
appellant had a history of concurrent or preexisting degenerative disc disease and herniated disc.
Dr. Dryer diagnosed degenerative disc disease and a herniated disc and opined that appellant was
partially disabled from December 12, 2005 to February 1, 2006. Again, he did not provide any
opinion as to whether appellant’s back condition was caused or contributed to by the March 14,
2005 employment incident. The Board has long held that medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.10
8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
9

Gloria J. McPherson, 51 ECAB 441 (2000).

10

Michael Smith, 50 ECAB 313 (1999).

4

The Office also received diagnostic studies dated November 5, 2005 and a December 8,
2005 MRI scan. However, these reports merely reported findings and did not contain an opinion
regarding the cause of the reported condition. Other medical reports submitted by appellant do
not address causal relationship.
Because the medical reports submitted by appellant do not address how the March 14,
2005 employment incident caused or aggravated a low back condition, they are insufficient to
establish that the March 14, 2005 employment incident caused or aggravated a specific injury.11
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty on March 14, 2005.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 14, 2007 is affirmed.
Issued: December 19, 2007
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

11

The Board notes that, if appellant regards the cumulative effect of his history of alleged employment-related
incidents as causing a diagnosed condition and disability, he my wish to contact the Office regarding the filing of a
claim for an occupational disease (Form CA-2).

5


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

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

Docket No. 19-1844
Issued: August 14, 2020

Case Submitted on the Record

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

JURISDICTION
On September 3, 2019 appellant filed a timely appeal from April 23 and August 7, 2019
nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days has elapsed from OWCP’s last merit decision, dated July 12, 2018, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s March 19, 2019 request
for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a); and (2) whether it
properly denied appellant’s July 23, 2019 request for reconsideration, finding that it was untimely
filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 25, 2017 appellant, then a 46-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that factors of his federal employment, including repetitive
movements of culling, ripping, and stripping on a preparation area designed for right-handed
individuals, resulted in discomfort in his left thumb and corresponding tendons in his left arm. He
noted that he first became aware of his conditions on August 25, 2017 and their relationship to
factors of his federal employment on September 22, 2017. On the reverse side of the claim form
the employing establishment reported that appellant was last exposed to the working conditions
alleged to have caused his conditions on September 25, 2017.
In a state workers’ compensation claim form dated October 18, 2017, Dr. Therese K.
White, a Board-certified plastic surgeon, indicated that appellant required a splint for his left hand
for comfort as needed. She advised that he could return to modified employment duties, but did
not assign specific restrictions.
In a statement dated October 20, 2017, appellant explained his employment duties as a mail
handler and described the left thumb condition he had developed. He noted that he was scheduled
to have an ultrasound on his left thumb on October 27, 2017 with Dr. White, per her
recommendation. Appellant also noted employment records and medical reports submitted with
his statement, including the October 18, 2017 report by Dr. White. In that report, Dr. White noted
her physical examination of appellant and the history of pain and inability to extend his thumb
following an injury at work six weeks prior. She noted full range of motion of the hand and digits
with the exception of the thumb, which he was unable to fully extend at the interphalangeal (IP)
joint. Dr. White was unable to elicit any nodule and no triggering was identified upon
manipulation of the thumb. She requested authorization for treatment from OWCP.
An October 27, 2017 left hand ultrasound report from Dr. Elena L. Resnick, a diagnostic
radiologist, was submitted. Dr. Resnick observed a ruptured extensor pollicis longus tendon with
significant retraction resulting in a 7.2 centimeter gap. She noted that the distal tendon remained
visible at the IP, metacarpophalangeal, and carpometacarpal joints. The noted diagnosis was a
spontaneous rupture of the extensor tendon of the left hand. In a report dated November 7, 2017,
Dr. White noted that she reviewed the ultrasound findings and confirmed the diagnosis of
spontaneous rupture of extensor tendons, left hand.
In an attending physician’s report (Form CA-20) dated November 9, 2017, Dr. White noted
that appellant’s left thumb would not straighten out and lacked motion. She also noted that surgery
was possible to treat the diagnosed tendon ruptures which were indicated on the ultrasound testing.
In a letter to OWCP dated November 17, 2017, appellant requested that he be permitted to
submit additional paperwork in support of his claim. He indicated that he was writing as he had
not received return correspondence from OWCP following the submission of records on
October 27, 2017. Appellant explained that he had called and left a voicemail and had still not
received a response. He noted that Dr. White’s office had also attempted to contact OWCP and
they too had not had any cooperation or success. Appellant again explained his employment duties
and noted that he would require surgery on his left thumb. He requested assistance of OWCP to
help him resolve the matter and provide the treatment that he needed immediately.

2

By decision dated November 28, 2017, OWCP denied appellant’s occupational disease
claim, finding that the medical evidence of record was insufficient to establish that his left thumb
rupture was causally related to the accepted factors of his federal employment. It concluded,
therefore, that the requirements had not been met to establish an injury or a medical condition
causally related to the accepted factors of federal employment.
On a fax coversheet dated December 8, 2017, Dr. White’s office noted that it was sending
six pages of documents (including the cover page) regarding appellant’s claim with OWCP. Only
the fax coversheet is of record for that date.
On December 9, 2017 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
OWCP subsequently received a copy of the October 27, 2017 report of Dr. Resnick which
was previously of record. It also received Dr. White’s operative note dated January 30, 2018,
which documented surgery for the diagnosed left hand tendon rupture. In a subsequent January 24,
2018 letter to OWCP, Dr. White noted appellant’s history of injury and her course of treatment for
his diagnosed left thumb condition. She explained that certainly tendon ruptures can be due to
attritional wear, but appellant documented repetitive work duties for eight hours per day for five
days per week on an automated induction system (flat sorter) which created an awkward position
of his left hand. Therefore, Dr. White opined that the diagnosed condition was employment
related.
In a May 7, 2018 addendum to a January 24, 2018 letter, Dr. White noted that she was
responding with regard to the line “tendon ruptures may be due to attritional wear.” She noted
appellant performed tasks which would exacerbate weakness in a tendon and his repetitive work
tasks can ultimately relate to tendon ruptures. Dr. White opined that given the lack of prior trauma
and his repetitive work duties it was more likely than not that his work-related activities either
caused or contributed to his tendon rupture.
In a letter dated May 25, 2017, Dr. White wrote on behalf of appellant, noting his course
of left thumb treatment, his health history, and his employment duties, which she opined caused
the diagnosed condition. She noted three specific employment duties and described photographs
documenting the work location and its ergonomic features, which required appellant’s wrists to be
in an awkward position as appellant is left-hand dominate and “the prep station ledge is not
conducive to left-handed individuals.” Dr. White opined that the repetitive motion in this awkward
position is highly likely to have been the inciting cause of his attritional rupture.
By decision dated July 12, 2018, an OWCP hearing representative affirmed the
November 28, 2017 decision finding that, although appellant had established a diagnosed
condition, he had not met his burden of proof to establish causal relationship.
Appellant requested reconsideration on October 26, 2018.
He indicated that a
September 18, 2018 letter from Dr. White accompanied his reconsideration request. Appellant
provided his contact information in case OWCP needed additional information. The
September 18, 2018 letter was not attached to the reconsideration request in the case record as
presented to the Board.

3

OWCP, by decision dated January 18, 2019, denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a), finding that the request neither raised
substantive legal questions, nor included relevant and pertinent new evidence. It noted that the
September 18, 2018 report referenced in his reconsideration request was not received.
On March 19, 2019 appellant again requested reconsideration. He indicated that
Dr. White’s September 18, 2018 report had accompanied his original reconsideration request, and
noted that he was submitting it again. Appellant explained that Dr. White’s letter provided an
“unequivocal medical narrative that provides a rationalized medical opinion specifying the work
activity and circumstances which resulted in the extensor tendon rupture of [his] left thumb.” He
requested that if additional information was necessary for consideration of his claim that he be
contacted by telephone at a number he provided.
OWCP subsequently received a duplicate copy of Dr. Resnick’s October 27, 2017 left hand
ultrasound report.
In a letter dated April 22, 2019, appellant was notified that his reconsideration request had
been received by OWCP and that the file had been directed to a senior claims examiner who would
review the “petition” and new evidence or argument and issue a decision.
By decision dated April 23, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to section 8128(a) of FECA. The decision was unsigned, but
found that his request had neither raised substantive legal questions, nor included relevant and
pertinent new evidence. It indicated that Dr. White’s September 18, 2018 report was not received
as part of the reconsideration request despite appellant’s statement that it was being submitted as
a part of his request.
Appellant, on July 23, 2019, again requested reconsideration. He again noted that he was
submitting Dr. White’s September 18, 2018 letter. The medical letter was included as an
attachment with this request. In the report, Dr. White opined that appellant’s extensor tendon
rupture of the left thumb was due to the repetitive nature of the work he performed in his mail
handler position. She explained that it was well documented in literature that repetitive activities
can lead to attritional ruptures. Dr. White maintained that this was exactly the scenario for
appellant. She reported that he had been working at a prepping station using his left arm to reach
over a ledge and pressing his left hand, thumb, and wrist in a ﬂexed position with repetitive activity.
Dr. White advised that this type of repetitive activity can certainly lead to attritional ruptures. She
indicated that there was no other activity in appellant’s normal daily routine that would create a
similar strain. Dr. White concluded, therefore, that his injury was causally related to his work.
OWCP, by decision dated August 7, 2019, summarily denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

4

LEGAL PRECEDENT -- ISSUE 1
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.3 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.4
A timely request for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.5 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits.6
OWCP’s procedures provide that each request for reconsideration must be handled by a
senior claims examiner who was not involved in the making of the contested decision. All
reconsideration decisions, whether affirmative or negative, must be issued by a senior claims
examiner or higher authority.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly denied appellant’s March 19, 2019 request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
By decision dated April 23, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to section 8128(a) of FECA, finding that it neither raised
substantive legal questions, nor included relevant and pertinent new evidence. The decision,
however, is unsigned by a senior claims examiner and does not indicate it had been written by a
senior claims examiner. OWCP’s procedures provide that each request for reconsideration must
be handled by a senior claims examiner who was not involved in the making of the contested

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
2

3

20 C.F.R. § 10.607.

4

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b (February 2016).
5

Id. at § 10.606(b)(3).

6

Id. at § 10.608(a), (b).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2(b) (October 2011).

5

decision.8 The record on appeal establishes that the contested decision of April 23, 2019 was
unsigned and does not confirm that it was issued by a senior claims examiner not involved in the
prior decisions. Therefore, the Board finds that OWCP failed to follow its procedures when it
issued its April 23, 2019 decision denying appellant’s request for reconsideration. For these
reasons, the case will be remanded to OWCP for reconstruction and proper assemblage of the
record and to consider all the evidence of record. After such further development as is deemed
necessary, OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s March 19, 2019 request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).9
ORDER
IT IS HEREBY ORDERED THAT the April 23, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: August 14, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees' Compensation Appeals Board

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

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

8

Id.; see Order Remanding Case, H.G., Docket No. 15-1413 (issued December 29, 2015).

9

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 09-1634
Issued: November 16, 2009

Case Submitted on the Record

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

JURISDICTION
On June 8, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 23, 2009 merit decision concerning her recurrence of disability
claim. 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 met her burden of proof to establish that she sustained a
recurrence of total disability commencing May 13, 2008 due to her accepted employment
injuries.
FACTUAL HISTORY
The Office accepted in mid 2006 that appellant, then a 50-year-old mail handler,
sustained bilateral carpal tunnel syndrome due to the repetitive duties of her job, including
lifting, carrying, pulling and pushing mail trays. It also accepted that she sustained left trigger
thumb due to these job duties. Appellant underwent a left carpal tunnel release on May 9, 2006,

a right carpal tunnel release on September 8, 2006 and a left trigger thumb release on
August 2, 2007. These surgical procedures were authorized by the Office. Appellant worked as
a modified mail handler for the employing establishment and she received appropriate
compensation from the Office for periods of disability.
In a February 23, 2007 decision, the Office adjusted appellant’s compensation based on
its determination that her actual wages as a modified mail handler fairly and reasonably
represented her wage-earning capacity. Appellant stopped work after her left thumb surgery and
returned to light-duty work for the employing establishment on September 6, 2007. She stopped
work on May 13, 2008 and filed a claim alleging that she sustained a recurrence of total
disability as of that date due to her accepted employment injuries.
In a May 14, 2008 disability slip, Dr. Timothy J. Marqueen, an attending Board-certified
orthopedic surgeon, stated that appellant was off work until her next medical appointment. In
connection with a May 14, 2008 examination, he stated that appellant complained of pain in her
left arm (primarily the forearm) and had some subjective numbness and tingling in her left hand.
Visual inspection of the left elbow revealed no soft tissue swelling or bony abnormality and that
palpation demonstrated no tenderness over the lateral epicondyle, medial epicondyle or wrist
extensor complex. There was some tenderness to palpation over the mobile wad of the left
elbow, but the elbow was stable and there was no pain with range of motion. Dr. Marqueen
indicated that left arm strength was normal and sensation was intact to light touch. There was an
equivocal Tinel’s sign over the left mobile wad and negative impingement signs in the shoulders.
Examination of the left hand revealed no bony abnormality, no ecchymosis and no edema. The
left carpal tunnel incision was healing well and appellant had full range of motion of the left
wrist and hand, including the digits. Dr. Marqueen stated that there is no tenderness to palpation
at the A1 pulley of the thumb. Appellant was otherwise nontender to palpation in the wrist
region as well as the hand and fingers and there was no instability of the wrist or hand. There
was no triggering of the fingers, Finkelstein test was negative and there was no snuffbox
tenderness. Dr. Marqueen stated that appellant had a full composite fist and there was no
angulation or rotation of the digits. He diagnosed left arm pain and questionable recurrent carpal
tunnel syndrome.
The findings of June 5, 2008 electromyography and nerve conduction velocity testing of
the left arm showed no electrodiagnostic evidence of recurrent carpal tunnel syndrome. The
studies showed significant interval improvement in the left median motor and sensory nerve
conduction latencies as well as amplitude consistent with carpal tunnel release. Left median
motor amplitude was normalized as compared to the nearly absent amplitude prior to the surgery.
Left median sensory nerve conduction studies were prolonged but obtainable as compared to the
absent responses in the previous study.
On June 27, 2008 the Office requested that appellant submit additional factual and
medical evidence in support of her recurrence of disability claim.
In a July 2, 2008 letter, appellant described the modified duties which she had performed
since her return to light-duty work in October 2006. She maintained that her current condition
was related to the initial carpal tunnel syndrome from which she had never fully recovered.

2

Appellant submitted notes from Dr. Marqueen dated May 14 to June 27, 2008.
Dr. Marqueen diagnosed left arm pain and questionable recurrent left carpal tunnel syndrome.
He indicated that appellant chiefly complained of extensive pain in her left hand and wrist.
Dr. Marqueen indicated that she had left wrist intersection syndrome “because of the constant
repetitive motion of the left wrist which caused a lot of the factors of her carpal tunnel.” He
indicated that appellant could return to work after a course of physical therapy. In a June 2, 2008
report, Dr. Marqueen also diagnosed left wrist intersection syndrome.
Appellant also submitted an undated report in which Dr. Marqueen indicated that
appellant reported that her job since October 2006 required lifting bundles of magazines, boxes
and other objects and pulling them on a conveyor belt. She lifted and dumped mail sacks and
dumped mail out of a large mail hamper. Dr. Marqueen stated, “At this time [appellant] is
unable to lift or pull anything and the amount will decrease when she returns to work because the
repetitive lifting and movement of her hands are worsening her ability to use her hands in just
daily activities.”
In an August 1, 2008 decision, the Office denied appellant’s claim on the grounds that
she did not submit sufficient medical evidence to establish that she sustained a recurrence of total
disability on or after May 13, 2008 due to her accepted employment injuries.
Appellant submitted an August 8, 2008 report in which Dr. Marqueen diagnosed left
wrist intersection syndrome. The findings were similar to those contained in his May 14, 2008
report. In a September 16, 2008 decision, the Office awarded appellant a schedule award for a
five percent permanent impairment of her left arm. The award ran from September 7 to
December 2, 2007.
Appellant requested a telephone hearing with an Office hearing representative. The
December 10, 2008 hearing indicated that her claim had also been accepted for the condition of
left wrist tenosynovitis.1 Appellant testified about the modified employment duties she
performed after her October 2006 return to work and explained why she believed her condition
on and after May 13, 2008 was related to these duties. The Office hearing representative advised
appellant of the different requirements for establishing an occupational disease claim and a
recurrence of disability claim.
After the hearing, appellant submitted December 19, 2008 and January 28, 2009 reports
in which Dr. Marqueen diagnosed left wrist intersection syndrome and left de Quervain’s
tenosynovitis. Dr. Marqueen completed certificates dated August 8 and December 19, 2008 and
January 28, 2009 advising that appellant could not lift more than five pounds but that she could
stay in her current job.
In an April 23, 2009 decision, the Office hearing representative affirmed the August 1,
2008 decision.

1

It appears that this condition was accepted under a different claim file.

3

LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability and
show that she cannot perform such light duty. As part of this burden the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and extent
of the light-duty job requirements.2
ANALYSIS
The Office accepted in mid 2006 that appellant sustained bilateral carpal tunnel syndrome
due to her repetitive duties, including lifting, carrying, pulling and pushing mail trays. It later
accepted that she sustained left trigger thumb due to these job duties. Appellant underwent a left
carpal tunnel release on May 9, 2006, a right carpal tunnel release on September 8, 2006 and a
left trigger thumb release on August 2, 2007. She returned to light-duty work on October 21,
2006 but stopped work on May 13, 2008 alleging that she sustained a recurrence of total
disability on that date due to her accepted employment injuries
The Board finds that appellant did not submit sufficient medical evidence to establish that
she sustained a recurrence of total disability on or after May 13, 2008 due to her accepted
employment injuries.
Appellant did not submit any medical evidence indicating that she sustained total
disability on or after May 13, 2008 due her accepted conditions, bilateral carpal tunnel syndrome
and left trigger thumb. In a May 14, 2008 disability slip, Dr. Marqueen, an attending Boardcertified orthopedic surgeon, stated that appellant was off work until her next medical
appointment. However, he did not provide any explanation of the cause of this disability. In
fact, Dr. Marqueen’s examination findings from May 14, 2008 show limited objective findings
and it remains unclear why he recommended disability.
In several reports, dated beginning in June 2008, Dr. Marqueen diagnosed left wrist
intersection syndrome. In a June 27, 2008 report, he suggested that this condition was related to
repetitive wrist motion appellant engaged in after she returned to light-duty work for the
employing establishment.3 However, Dr. Marqueen did not provide any clear opinion on the
cause of this diagnosed condition and whether appellant sustained any new occupational diseases
due to her continuing repetitive work duties is not the subject of the present appeal.4
2

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986).

3

Dr. Marqueen also indicated that appellant could return to work after a course of physical therapy. In an
undated report received by the Office in July 2008, he reported appellant’s complaints of being unable to lift objects.
Dr. Marqueen did not, however, provide a clear opinion that appellant could not engage in lifting at that time.
4

Beginning in December 2008 Dr. Marqueen also diagnosed left de Quervain’s tenosynovitis. It appears that this
condition was accepted under a different claim file, but the question of whether appellant has disability due to this
condition is not the subject of the current appeal.

4

The record does not contain a rationalized medical opinion showing that appellant
sustained total disability on or after May 13, 2008 due to her accepted bilateral carpal tunnel
syndrome and left trigger thumb. Appellant has not shown a change in the nature and extent of
her injury-related condition.5 Therefore, the Office properly denied her recurrence of disability
claim.
CONCLUSION
The Board finds that appellant did not meet met her burden of proof to establish that she
sustained a recurrence of total disability on or after May 13, 2008 due to her accepted
employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 23, 2009 decision is affirmed.
Issued: November 16, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5

Appellant did not allege a change in the nature and extent of her light-duty job requirements.

5