United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Metro, GA, Employer
__________________________________________

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

Docket No. 15-1090
Issued: July 29, 2015

Case Submitted on the Record

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

JURISDICTION
On April 9, 2015 appellant filed a timely appeal from a January 21, 2015 merit decision
and a March 9, 2015 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 met her burden of proof to establish that she
developed right hand carpal tunnel syndrome and right thumb degenerative osteoarthritis as a
result of factors of her federal employment; and (2) whether OWCP properly denied her request
for further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 2, 2014 appellant, then a 60-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed right hand carpal tunnel syndrome and
bone spurs due to repetitively casing and delivering mail and packages.
In a September 17, 2014 report, Dr. Karlene Hart, Board-certified in family medicine,
reviewed x-rays of the right hand which revealed degenerative changes of the first
carpometacarpal joint. She diagnosed right hand carpal tunnel syndrome.
Appellant submitted an official position description for a city carrier in support of her
claim.
By letter dated November 13, 2014, OWCP informed appellant that the evidence of
record was insufficient to support her claim. Appellant was advised of the medical and factual
evidence needed and was directed to submit it within 30 days.
In a December 1, 2014 narrative statement, appellant responded to OWCP stating that she
used her right hand to case mail and to place mail in mailboxes repetitively for eight hours a day,
five days a week. She stated that she had been performing these duties for the last six years.
In reports dated October 7 and November 20, 2014, Amanda Scherger, a physician
assistant (PA), reported that appellant complained of pain in the right thumb and wrist when
working as a postal carrier. She diagnosed right thumb osteoarthritis of the carpometacarpal
joint and bilateral carpal tunnel syndrome.
By decision dated January 21, 2015, OWCP denied appellant’s claim finding that the
medical evidence failed to establish that her carpal tunnel syndrome and degenerative joint
disease of the right thumb was causally related to her accepted federal employment duties.
On February 25, 2015 appellant requested reconsideration of OWCP’s decision. She
explained that she would repetitively use her right hand to case mail and to open/close mail
boxes and separate mail with her right thumb for over seven hours a day. Appellant’s duties also
entailed lifting heavy trays of mail and pushing full hampers. No other evidence was submitted.
By decision dated March 9, 2015, OWCP denied appellant’s request for reconsideration
finding that she neither raised substantive legal questions nor included new and relevant
evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 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 FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the

2

employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.4
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.5 The opinion of the physician must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.6
ANALYSIS -- ISSUE 1
OWCP accepted that appellant engaged in repetitive activities in her employment duties
as a letter carrier. It denied her claim, however, finding that the evidence failed to establish a
causal relationship between those activities and her right hand injuries. The Board finds that the
medical evidence of record is insufficient to establish that appellant developed right hand carpal
tunnel syndrome and right thumb degenerative osteoarthritis causally related to factors of her
federal employment as a letter carrier.
In a September 17, 2014 report, Dr. Hart reviewed x-rays of the right hand which
revealed degenerative changes of the first carpometacarpal joint and she also diagnosed right
hand carpal tunnel syndrome. While Dr. Hart provided a firm medical diagnosis of right hand
carpal tunnel syndrome and degenerative joint disease of the right thumb, she failed to provide
any opinion on the cause of appellant’s conditions.7 She did not provide a detailed medical
history or description of how appellant’s federal employment duties as a city carrier may have
caused her injury, nor did she explain how the movements involved in appellant’s employment
2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

7

D.H., Docket No. 11-1739 (issued April 18, 2012).

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duties caused or contributed to the diagnosed conditions.8 Medical reports without rationale on
causal relationship are of diminished probative value and do not meet an employee’s burden of
proof.9 The opinion of a physician supporting causal relationship must rest on a complete factual
and medical background supported by affirmative evidence, address the specific factual and
medical evidence of record, and provide medical rationale explaining the relationship between
the diagnosed condition and the established incident or factor of employment.10 As Dr. Hart
failed to provide any opinion as to the cause of appellant’s right hand carpal tunnel syndrome
and degenerative joint disease of the right thumb, her medical report fails to establish that
appellant’s injuries are a result of a work-related occupational exposure.11
The remaining medical evidence of record is also insufficient to establish causal
relationship between appellant’s right hand injury and her federal employment duties. The
reports of the physician assistant are insufficient to establish appellant’s claim. Registered
nurses, physical therapists and physician assistants, are not physicians as defined under FECA,
and therefore their opinions are of no probative value.12
Appellant has alleged that her accepted duties as a letter carrier caused her injury. Her
statements however, do not constitute the medical evidence necessary to establish causal
relationship. An award of compensation may not be based on surmise, conjecture, speculation,
or on the employee’s own belief of causal relation.13 In the instant case, the record lacks
rationalized medical evidence establishing a causal relationship between appellant’s federal
employment duties as a letter carrier and her diagnosed right hand carpal tunnel syndrome and
right thumb degenerative osteoarthritis. Thus, appellant has failed to meet her burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under 5 U.S.C. § 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
the OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
8

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014); K.M.,
Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
9

Id.

10

See Lee R. Haywood, 48 ECAB 145 (1996).

11

S.R., Docket No. 12-1098 (issued September 19, 2012).

12

5 U.S.C. § 8102(2) of FECA provides as follows: (2) ‘physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law. FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law.
13

D.D., 57 ECAB 734 (2006).

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argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.14 Section 10.608(b) of OWCP regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.15
ANALYSIS -- ISSUE 2
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In her February 25, 2015 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. She did not advance a new and
relevant legal argument. Appellant argued that her injury was employment related and described
her repetitive employment duties.16 The underlying issue in this case was whether appellant
developed right hand carpal tunnel syndrome and right thumb degenerative osteoarthritis
causally related to her federal employment duties as a letter carrier. That is a medical issue
which must be addressed by relevant medical evidence.17
Appellant’s brief statement in support of her reconsideration request is not relevant to the
issue of causal relationship.18 She failed to provide detailed medical rationale from a physician
to explain and support the medical opinion that her right hand injury was caused or aggravated
by her federal employment duties.19 A claimant may obtain a merit review of an OWCP
decision by submitting new and relevant evidence. In this case, appellant failed to submit any
new and relevant evidence addressing causal relationship in support of her claim.20
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
14

D.K., 59 ECAB 141 (2007).

15

K.H., 59 ECAB 495 (2008).

16

Sherry A. Hunt, 49 ECAB 467 (1998).

17

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

18

The Board has held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case. Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper,
31 ECAB 224 (1979).
19

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. Eugene F. Butler, 36 ECAB 393 (1984).
20

M.H., Docket No. 13-2051 (issued February 21, 2014).

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constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her right
hand carpal tunnel syndrome and right thumb degenerative osteoarthritis were causally related to
factors of her federal employment as a letter carrier. OWCP properly denied appellant’s request
for reconsideration without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated March 9 and January 21, 2015 are affirmed.
Issued: July 29, 2015
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
A.R., Appellant
and
DEPARTMENT OF THE ARMY, CORPUS
CHRISTI ARMY DEPOT, Corpus Christi, TX,
Employer
__________________________________________

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

Docket No. 06-1810
Issued: August 10, 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 August 2, 2006 appellant filed a timely appeal from a December 22, 2005 decision of
the Office of Workers’ Compensation Programs that denied his claim for a low back condition
and a July 13, 2006 decision that denied his request for reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this appeal.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a low back condition causally related to factors of his federal employment; and
(2) whether the Office properly denied his request to reopen his case for further merit review.
FACTUAL HISTORY
On November 4, 2005 appellant, then a 51-year-old instrument mechanic, filed an
occupational disease claim alleging a low back condition which he attributed to his federal
employment. He listed the sitting, stooping, lifting and bending required in his position.

Appellant stopped work from February 17 to April 2, 2004. He noted that he first became aware
of his condition and its relationship to his employment on February 14, 2004.
By letter dated November 10, 2005, the Office advised appellant to submit additional
information in support of his claim. It requested that he provide a medical report from an
attending physician that provided a diagnosis of his condition and a statement as to the causal
relationship with his federal employment.
Appellant submitted a May 14, 2004 report from Dr. Anthony R. Kunce, a chiropractor,
who noted that appellant was initially evaluated on February 17, 2004 for treatment of injuries
sustained in a motor vehicle accident on February 13, 2004. Dr. Kunce diagnosed sprains and
strains of the cervical, thoracic and lumbar spine with post-traumatic cephalgia. He stated that
appellant was treated until April 2, 2004, when he lost contact with him. A March 23, 2004
dispensary note reflected that appellant was under medical care due to an automobile accident of
February 13, 2004. Lumbar x-rays were obtained by Dr. Kenneth D. Matejka, a Board-certified
radiologist, on April 12, 2004, who noted degenerative facet changes with small osteophytes at
all lumbar disc spaces without evidence of fracture or alignment abnormality. A magnetic
resonance imaging (MRI) scan of the lumbar spine, obtained by a Dr. Karl T. Fan on April 20,
2004 diagnosed a central annulus tear at L5-S1 with narrowing of the anterior epidural space.
Foraminal narrowing was also identified at this level. On May 14 and June 11, 2004 Dr. John M.
Borkowski, an orthopedic surgeon, performed right L5 epidural injections for neuropathic pain.
The employing establishment controverted the claim. Appellant’s supervisor noted that
appellant did not describe any back problem until he submitted the occupational disease claim.
He stated that appellant was off work from February 17 through April 2, 2004 following a
February 13, 2004 automobile accident.
In a December 22, 2005 decision, the Office denied appellant’s claim. It found that the
medical evidence of record was insufficient to establish that his low back condition was
employment related.
On June 12, 2006 appellant requested reconsideration. He submitted additional MRI
scans obtained by Dr. Stephen Pomeranz, a Board-certified radiologist, on January 18 and
May 18, 2006. Dr. Pomeranz noted multilevel lumbar disc displacement and an L5-S1 central
protrusion. In treatment notes dated May 8 through 26, 2006, Dr. Borkowski addressed the
diagnostic tests and noted that appellant still experienced low back pain. He noted that surgery
was an option for treatment of the annular tear. Dr. Borkowski also noted that appellant was
seeking a medical retirement.
By decision dated July 13, 2006, the Office denied reconsideration on the grounds that
appellant did not submit new and relevant medical evidence in support of his claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an employee of the United States, that an injury was sustained in the performance of duty as

2

alleged, and that any disability or specific conditions for which compensation is claimed is
causally related to his federal employment.1 An award of compensation may not be based on
surmise, conjecture, speculation or upon a claimant’s own belief that there is a causal
relationship between his claimed injury and his employment.2 Although work activities may
produce symptoms revelatory of an underlying condition, to establish entitlement to
compensation, a claimant must submit probative medical evidence based on an accurate medical
history which attributes the conditions claimed to his employment duties.3 Medical opinions
which are based on an incomplete or inaccurate factual background are of diminished probative
value.4
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that his low back condition is causally
related to his federal employment as a mechanic. He has not submitted medical evidence
sufficient to establish that his low back condition, diagnosed as an L5-S1 disc, was caused or
aggravated by his federal employment.
The record reflects that appellant filed his claim on November 4, 2005, claiming
disability due to his low back condition as of February 17, 2004. The medical evidence reflects,
however, that appellant was involved in a nonemployment-related automobile accident and first
sought medical treatment from a chiropractor on February 17, 2004. The reports of Dr. Kunce
recorded a history of a February 13, 2004 automobile accident and listed sprains and strains of
the cervical, thoracic and lumbar spine. It is noted that the Act includes chiropractors as a
“physician” as defined at section 8101(2) only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.5 As the evidence does not reflect that Dr. Kunce obtained x-rays
of the spine or diagnosed spinal subluxations, his reports do not constitute probative medical
evidence. However, they may still be considered as they pertain to the history of injury provided
by the claimant of an automobile accident on February 13, 2004, immediately preceding the
period of claimed disability.
The medical evidence reflects that diagnostic studies, including x-rays and MRIs, were
obtained of appellant’s lumbar spine. However, as diagnostic studies, the radiologists of record
did not provide any opinion on the causal relationship of the diagnosed conditions to appellant’s
federal employment. Therefore, these reports are of limited probative value on the issue of
causal relationship. Dr. Borkowski, an orthopedic surgeon, performed epidural injections of the
right L5 for neuropathic pain but did not address the issue of causal relationship. The medical
evidence submitted by appellant failed to provide any history of his work activities as a
1

See Elaine Pendleton, 40 ECAB 1143 (1989).

2

See Donald W. Long, 41 ECAB 142 (1989).

3

See Lucrecia M. Nielsen, 42 ECAB 583 (1991).

4

See Daniel J. Overfield, 42 ECAB 718 (1991).

5

5 U.S.C. § 8101(2). See Bruce Chameroy, 42 ECAB 121 (1990).

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mechanic or relate his low back symptoms to his federal employment. Rather, the medical
evidence records a nonemployment-related automobile accident of February 13, 2004, following
which appellant sought medical treatment for his low back.
LEGAL PRECEDENT -- ISSUE 2
Under the implementing federal regulations at section 10.606(b)(2), a claimant may
obtain review of the merits of a case by: (1) showing that the Office erroneously applied or
interpreted a specific point of law; (2) advancing a relevant legal argument not previously
considered by the Office; or (3) constituting relevant and pertinent new evidence not previously
considered by the Office.6 When an application for review of the merits of a claim does not meet
at least one of these three requirements, the Office will deny the application for reconsideration
without reopening the case for a review of the merits.7 When reviewing a decision of the Office
denying further merit review, it is the function of the Board to determine whether the Office
properly applied the standards set forth in the federal regulations to the claimant’s application
and any evidence submitted in support thereof.8
ANALYSIS -- ISSUE 2
The Board finds that the Office properly refused to reopen appellant’s claim for further
review of the merits. In support of his request for reconsideration, appellant submitted additional
diagnostic studies pertaining to his low back. However, as noted, these reports do not constitute
relevant new medical evidence as they do not address the underlying issue in this case, i.e.,
whether appellant’s federal employment caused or contributed to his condition.
As
Dr. Pomeranz did not address causal relationship, the diagnostic studies of January 18 and
May 18, 2006 were not sufficient to require further merit review. Similarly, the 2006 treatment
notes from Dr. Borkowski reviewed the diagnostic studies and indicated that appellant
experienced chronic low back pain. His comment that appellant was seeking a medical
retirement from his employer is not relevant to the underlying issue of causal relationship. The
noted surgical option as a treatment recommendation was not a relevant explanation of the issue
of causal relationship. The evidence submitted by appellant was not sufficient to require the
Office to reopen his case for further merit review.
CONCLUSION
The Board finds that appellant did not establish that his low back condition was caused or
contributed to by his federal employment. The Office properly denied his request for further
merit review.

6

20 C.F.R. § 10.606(b).

7

20 C.F.R. § 10.608(b).

8

See Annette Louise, 54 ECAB 783 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the July 13, 2006 and December 22, 2005 decisions
of the Office of Workers’ Compensation Programs be affirmed.
Issued: August 10, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Havre, MT, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0162
Issued: April 26, 2017

Case Submitted on the Record

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

JURISDICTION
On November 1, 2016 appellant, through counsel, filed a timely appeal from a June 16,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established that the August 12, 2014 wage-earning
capacity determination should be modified.
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances outlined in
the Board’s prior decision are incorporated herein by reference. The facts relevant to this appeal
are set forth below.
On August 4, 2010 appellant, then a 49-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that on that date he injured his knees, neck, back, groin, and
elbow when he was thrown from an all-terrain vehicle. OWCP accepted the claim for multiple
contusions, degeneration of the lumbar intervertebral discs, a sprain of the right foot, a sprain on
the right at an unspecified site, a sprain of the right lateral collateral ligament of the knee, right
chondromalacia patellae, and a tear of the right lateral meniscus.3 Appellant stopped work on
August 5, 2010 and received compensation for total disability beginning November 21, 2010.
Dr. Lowell M. Anderson, a Board-certified orthopedic surgeon and OWCP referral
physician, evaluated appellant on October 10, 2012. He diagnosed lumbar disc degeneration, an
aggravation of preexisting disc pathology, lumbar facet arthropathy, and a permanent
aggravation of preexisting patellofemoral joint chondromalacia due to the August 4, 2010
employment injury. In an October 12, 2012 work restriction evaluation, Dr. Anderson opined
that appellant could work full time, sitting for six hours, walking and standing for two hours, and
pushing, pulling, and lifting up to 25 pounds. He found that appellant could not squat, kneel,
climb, bend/stoop, or twist, required a 10-minute break each hour, and should alternate sitting,
standing, and walking as needed. On February 5, 2013 Dr. Anderson clarified that appellant
could bend while working in a sedentary position and could perform limited squatting, kneeling,
and climbing alternating sitting, standing, and walking as necessary. He marked through the
requirement that he take a 10-minute break each hour.
In a duty status report dated April 16, 2013, Dr. Michael D. Nolan, Board-certified in
family medicine, diagnosed lumbar disease and found that appellant could lift up to 10 pounds,
sit for three hours per day, and stand and walk for two hours per day. In a progress report dated
April 16, 2013, he diagnosed thoracic and lumbosacral neuritis/radiculitis and limb pain.
Dr. Nolan noted that a second opinion physician found that appellant could do activities that he
believed he was unable to perform without pain.4

3

OWCP previously accepted that on December 21, 2009 appellant sustained a partial rupture of the left
quadriceps, left knee and leg sprain, and thoracic or lumbosacral neuritis/radiculitis on December 21, 2009 under
subsidiary File No. xxxxxx260.
4

Dr. Nolan evaluated appellant for back pain on April 23, 2013 and indicated that “he will continue to be
disabled related to his back problem indefinitely.” He advised that sitting for up to six hours straight or standing for
four hours was different from his “understanding of his condition.”4

2

OWCP referred appellant to a vocational rehabilitation counselor for vocational
rehabilitation on April 19, 2013. By letter dated February 14, 2014, it informed appellant that he
was obstructing vocational rehabilitation efforts by failing to complete the rehabilitation plan,
telling the rehabilitation counselor not to work without his approval, verbally abusing the
rehabilitation counselor, and acting in a threatening way.5 OWCP notified appellant of the
penalty for refusing to cooperate with vocational rehabilitation and provided him 30 days to
contact both OWCP and the rehabilitation counselor and agree to participate with good effort. It
advised appellant that if he believed that he had good cause for not participating he should
provide such reasons in writing with supporting documentation. If he did not cooperate with
vocational rehabilitation or show good cause, it would reduce his compensation based on his
prospective wage-earning capacity.
On April 18, 2014 the vocational rehabilitation counselor completed a job classification
form (OWCP-66) for the position of eligibility worker from the Department of Labor’s
Dictionary of Occupational Titles. The position was sedentary and required occasional lifting of
up to 10 pounds. The rehabilitation counselor found that appellant had the vocational ability to
perform the position due to his work history and college degree in psychology, and that there
were sufficient openings for the position in his commuting area at entry-level wages of $486.40
per week, as confirmed by the state employment offices and direct contact with employers.
OWCP’s vocational rehabilitation specialist recommended that OWCP reduce appellant’s
compensation as he could perform the identified position of eligibility worker earning wages of
$486.40 per week.6 He found that the position of eligibility worker was available, suitable, and a
good fit for appellant’s degree in psychology.
On July 9, 2014 OWCP notified appellant of its proposed reduction of his compensation
based on its findings that he had the capacity to earn wages as an eligibility worker. It provided
him 30 days to respond to the proposed reduction of compensation.
By decision dated August 12, 2014, OWCP reduced appellant’s compensation, effective
August 12, 2014, after determining that he had the capacity to earn wages of $486.40 per week
as an eligibility worker. It applied the formula set forth in Albert C. Shadrick7 in calculating his
wage-earning capacity.
In a report dated September 4, 2014, Dr. Wilbert Pino, a Board-certified orthopedic
surgeon, indicated that appellant had a “very convoluted history of a work-related injury dating
5

In a February 14, 2014 letter to OWCP’s vocational rehabilitation specialist, the rehabilitation counselor advised
that appellant made threatening statements, indicated that he carried a concealed weapon, and used intimidating
body language. Appellant also refused to meet with the counselor in a public location or complete the offered
rehabilitation plan.
6

By letter dated May 15, 2014, appellant related that he filed a grievance against the rehabilitation counselor with
his company. He indicated that he provided reasons for not cooperating with vocational rehabilitation within 30
days, noting that the primary reason was that he was unable to work full time. Appellant asserted that his physician
found that he was unable to work eight hours a day.
7

5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.

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back to 2000.” He diagnosed degenerative disc disease of the lumbar spine at multiple levels
and moderate-to-advanced joint disease of both hips. Dr. Pino opined that appellant could lift,
push, and pull up to 20 pounds occasionally and had restrictions on kneeling, squatting, or
stooping.
Dr. Pino, in a December 9, 2014 medical status form, advised that appellant could
occasionally lift up to 20 pounds, could not bend, kneel, squat, or climb, and required breaks. In
a report dated December 9, 2014, he opined that appellant would have difficulty working full
time due to his limitations.
On March 17, 2015 counsel requested reconsideration. He maintained that the reports
from Dr. Pino established that appellant was not able to perform the duties of an eligibility
worker.8
By decision dated June 10, 2015, OWCP denied modification of its August 12, 2014
wage-earning capacity determination. It found that the physical requirements for the position of
eligibility worker did not exceed the limitations set forth by Dr. Pino.
Appellant appealed the June 10, 2015 OWCP decision to the Board.
On October 13, 2015 OWCP referred appellant to Dr. Allen M. Weinert, Jr., a Boardcertified physiatrist, for a second opinion examination. In a report dated January 19, 2016,
Dr. Weinert discussed appellant’s history of back, neck, and right knee pain after work injuries.
He reviewed the diagnostic studies. On examination, Dr. Weinert found reduced motion of the
back with some tenderness, right knee tenderness of the medial more than the lateral joint line,
and normal strength and sensation. He diagnosed a right paracentral disc herniation with facet
arthropathy at L5-S1, right foraminal stenosis at L5-S1, low back pain, and right radiculitis at
L5. Dr. Weinert further diagnosed right knee pain after a repair of the right anterior cruciate
ligament with a partial meniscectomy and lateral release, and mild cervical spondylosis. He
related, “I believe [appellant] is employable in the sedentary to light physical demand
classification restricting lifting to no more than 20 pounds on an occasional basis. Dr. Weinert
should not do any lifting from floor level and should avoid squatting or kneeling.” He further
found that appellant should work at a desk that could be modified so that he could alternate
sitting and standing and advised that he should not stand over 15 minutes at a time or walk more
than 10 minutes occasionally. In a February 8, 2016 work capacity evaluation (OWCP-5c),
Dr. Weinert found that appellant could work for eight hours per day sitting up to six hours,
walking and standing for one to two hours, and pushing, pulling, and lifting up to 20 pounds for
one hour.
On May 18, 2016 appellant, through counsel, requested reconsideration of OWCP’s
June 10, 2015 decision. Counsel submitted Dr. Weinert’s January 19, 2016 report and asserted
8

Dr. Pino, in a March 21, 2015 duty status report, diagnosed lumbar degenerative disc disease and found that
appellant could lift up to 10 pounds, sit and walk for two hours, and stand for one hour. In a March 31, 2015 report,
he diagnosed low back pain with radiculopathy on the right and weakness on ambulation. Dr. Pino found that
appellant should continue with the same work restrictions. In a progress report dated April 20, 2015, he diagnosed
employment-related multilevel degenerative disc and joint disease of the lumbar spine and recommended a
functional capacity evaluation.

4

that OWCP should vacate its wage-earning capacity determination based on the second opinion
physician’s findings.
OWCP, by letter dated May 23, 2016, advised Dr. Weinert of the duties of an eligibility
worker and its physical requirements. It requested that he address whether the position was
medically suitable for appellant.
In a June 7, 2016 response, Dr. Weinert related that he had “reviewed the physical
requirements of the job title of eligibility worker and feel that [appellant] is suitable to perform
this job with an ergonomic variable height workstation that allows him to sit and stand as
necessary.”
In a June 10, 2016 decision, the Board affirmed the June 10, 2015 decision. The Board
determined that the opinion of Dr. Anderson constituted the weight of the evidence and
established that appellant had the capacity to earn wages as an eligibility worker, a sedentary
position requiring lifting of up to 10 pounds.
By decision dated June 16, 2016, OWCP denied modification of its June 10, 2015
decision. It found that the January 19, 2016 report from Dr. Weinert supported that appellant
could perform the position of eligibility worker.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.9 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.10
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.11 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.12
ANALYSIS
The Board finds that appellant has not established that the August 12, 2014 wage-earning
capacity decision should be modified.

9

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

10

Sharon C. Clement, 55 ECAB 552 (2004).

11

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000).

12

Id.

5

On prior appeal, the Board affirmed OWCP’s reduction of appellant’s compensation
effective August 12, 2014 based on his capacity to earn wages in the selected position of
eligibility worker. The Board found that the opinion of Dr. Anderson represented the weight of
the evidence and demonstrated that the sedentary position was medically suitable. The Board
further determined that OWCP properly found the position vocationally suitable.
Appellant has not alleged a change in the nature and extent of his injury-related
condition. Instead, through counsel, he contended that the January 19, 2016 report from
Dr. Weinert established that the selected position was not suitable.
On January 19, 2016 Dr. Weinert diagnosed a right paracentral disc herniation with facet
arthropathy at L5-S1, right foraminal stenosis at L5-S1, low back pain, right radiculitis at L5,
right knee pain following a repair of the right anterior cruciate ligament with a partial
meniscectomy and lateral release, and mild cervical spondylosis. He found that appellant could
perform sedentary to light work occasionally lifting up to 20 pounds with no squatting or
kneeling and no lifting from the floor. Dr. Weinert additionally opined that appellant should sit
and stand alternatively at a modified desk, standing no more than 15 minutes at a time or walking
more than 10 minutes occasionally. In a work capacity evaluation, he found that appellant could
sit for six hours, walk and stand for one to two hours, and push, pull, and lift up to 20 pounds for
one hour.
OWCP requested that Dr. Weinert review the physical requirements and job duties of an
eligibility worker and discuss whether the position was medically suitable. On June 7, 2016
Dr. Weinert determined that the position of eligibility worker was suitable as long as appellant
could sit or stand as necessary with a variable height workstation. As he found that appellant
was capable of performing the duties of the selected position of eligibility worker, Dr. Weinert’s
report does not establish error by OWCP in its original loss of wage-earning capacity
determination. Appellant has thus not met his burden of proof to modify the August 12, 2014
loss of wage-earning capacity determination.13
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence of argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not established that the August 12, 2014 wage-earning
capacity determination should be modified.

13

See W.G., Docket No. 16-0679 (issued June 16, 2016).

6

ORDER
IT IS HEREBY ORDERED THAT the June 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 26, 2017
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Cheyenne, WY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
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)
)
)

Docket No. 20-0627
Issued: November 9, 2020

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On January 27, 2020 appellant filed an appeal from a purported January 22, 2020 decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 20-0627.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
There is no decision of record dated January 22, 2020. The most recent decision of record is dated
September 5, 2018. The case record as transmitted to the Board therefore does not contain a final
adverse decision of OWCP issued within 180 days from the docketing of the current appeal.2
As there is no final adverse decision issued by OWCP over which the Board may properly
exercise jurisdiction, the Board concludes that the appeal docketed as No. 20-0627 must be
dismissed. Accordingly,

1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

2
Id. at § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of
issuance of a decision of OWCP.”

IT IS HEREBY ORDERED THAT the appeal docketed as No. 20-0627 is dismissed.
Issued: November 9, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Dearborn, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Larrissa Parde, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1364
Issued: February 4, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 7, 2019 appellant, through her representative, filed a timely appeal from a
December 14, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 14, 2018 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
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly reduced appellant’s wage-loss compensation to zero
pursuant to 5 U.S.C. § 8113(b), effective November 17, 2014, for failing to cooperate with
vocational rehabilitation.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On October 28, 2011 appellant, then a 60-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that repetitive activity at work resulted in injury to her hands.
She first realized her condition and its relation to her federal employment on February 1, 2006.5
OWCP accepted the claim for disorder of bursae and tendons in the left shoulder and aggravation
of bilateral primary osteoarthritis of both hands. Appellant underwent OWCP-authorized
trapeziectomy and carpometacarpal (CMC) arthroplasty with flexor carpi radialis tendon
interposition of the left thumb on December 21, 2011, and trapeziectomy and flexor carpi radialis
tendon arthroplasty of basilar joint of right thumb on February 29, 2012. She did not return to
work following her February 29, 2012 right thumb surgery. Effective September 10, 2013,
appellant elected to receive FECA benefits. On April 7, 2012 she was placed on the supplemental
rolls and was later transferred to the periodic rolls commencing July 1, 2012.
OWCP assigned appellant to a vocational rehabilitation program from May 22 through
December 3, 2013 and, again, beginning September 10, 2014. The September 10, 2014 referral to
vocational rehabilitation services noted that the weight of the medical opinion rested with the
January 7, 2014 opinion of Dr. Kenneth Sander, a Board-certified orthopedic surgeon and
impartial medical specialist, that appellant was able to work within the limitations outlined in a
February 6, 2013 functional capacity evaluation (FCE).6 The referral also noted that the
employing establishment was unable to accommodate appellant’s restrictions. As the February 6,
2013 FCE was considered outdated, the claims examiner instructed the rehabilitation counselor to
obtain an updated FCE.
On October 3, 2014 appellant underwent an FCE conducted by a licensed/registered
occupational therapist, who found that a true demand level could not be determined due to
inconsistent effort. In an October 8, 2014 letter, OWCP made note of appellant’s inconsistent
4

Docket No. 18-0302 (issued August 13, 2018).

5

Under OWCP File No. xxxxxx888, date of injury February 1, 2006, appellant has an accepted occupational disease
claim for bilateral carpal tunnel syndrome. She underwent a right carpal release on September 26, 2007 and a left
carpal tunnel release on December 12, 2007. OWCP determined that appellant had reached maximum medical
improvement (MMI) on March 4, 2008. It granted her a schedule award for eight percent permanent impairment of
her bilateral upper extremities.
6
OWCP selected Dr. Sanders to resolve a conflict in the medical opinion evidence between appellant’s attending
physician, Dr. Florian Miranzadeh, an osteopath Board-certified in family practice, and a second opinion physician,
Dr. Theodore J. Suchy, an osteopath Board-certified in orthopedic surgery, as to the extent and degree of any
continuing employment-related disability or residuals.

2

effort on the October 3, 2014 FCE and warned her that, if she did not participate with the vocational
rehabilitation effort, her compensation could be reduced. Appellant was provided the opportunity
to comply or show good cause for not complying.
On November 5, 2014 appellant underwent another FCE. The physical therapist who
conducted the FCE noted that, while appellant had demonstrated the ability to perform minimally
at the light physical demand category, her performance was “questionable secondary to varied
effort.”
By decision dated November 17, 2014, OWCP reduced appellant’s compensation to zero,
as of November 16, 2014, based upon its finding that she had failed to cooperate during the early
stages of vocational rehabilitation. It explained that, because she had failed to undergo the
preparatory vocational testing, it assumed that she either would have returned to her date-of-injury
position or would have earned higher wages. OWCP advised that the reduction in benefits would
continue until appellant in “good faith” either underwent vocational testing or showed good cause
for not complying.
In a November 24, 2014 letter, appellant requested that OWCP schedule her for another
FCE, noting that she intended to comply with the examination to the best of her abilities.
On November 25, 2014 OWCP received appellant’s November 22, 2014 election to
receive retirement benefits through the Office of Personnel Management (OPM), effective
November 17, 2014.
On November 25, 2014 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on April 6, 2015. By decision dated July 1, 2015, OWCP’s hearing
representative affirmed OWCP’s November 17, 2014 decision. The hearing representative
determined that OWCP had properly found that there was sufficient basis to reduce appellant’s
compensation benefits as she had failed to cooperate with the early stages of vocational
rehabilitation by putting forth an inconsistent, suboptimal effort in both the October and
November 2014 FCE’s.
On June 20, 2016 appellant, through her representative, requested reconsideration of the
July 1, 2015 decision. By decision dated June 2, 2017, OWCP denied her request for
reconsideration of the merits of the claim. It found that the representative’s argument regarding
putting forth maximum effort during an FCE did not apply to the rules of evaluating medical
evidence and thus was not relevant and was therefore insufficient to warrant a merit review.
On November 27, 2017 appellant, through her representative, filed an appeal with the
Board. By decision dated August 13, 2018, the Board set aside OWCP’s June 2, 2017 decision.7
The Board found that appellant’s representative had advanced a relevant legal argument not
previously considered by OWCP, when he had argued that the opinion of the licensed/registered
occupational therapist and physical therapist lacked probative value and was thus an insufficient

7

See supra note 4.

3

basis to terminate compensation benefits. The case was remanded for OWCP to review the merits
of the claim and to address appellant’s November 24, 2014 request that another FCE be scheduled.
Since OWCP’s June 2, 2017 decision, OWCP received physical therapy notes from
May 24 through September 2018, a July 11, 2018 authorization request for physical therapy, and
a June 1, 2018 x-ray of the left shoulder.
OWCP referred appellant to Dr. Allan Brecher, a Board-certified orthopedic surgeon, for
a second opinion examination, to determine, amongst other matters, whether she had put forth a
maximum effort during the two prior FCE’s, whether he could determine her physical capacity to
perform work and whether she should undergo an additional FCE.
In an October 23, 2018 report, Dr. Brecher noted his review of the records and the
statement of accepted facts (SOAF) and presented examination findings. He provided an
assessment of decreased grip strength after appellant’s interpositional arthroplasty of the CMC
joints and adhesive capsulitis from rotator cuff problems, which he opined were permanently
aggravated by her employment factors. Dr. Brecher also provided comments on her prior FCE’s
and noted that the conclusions drawn regarding the FCE’s were correct. He indicated that appellant
had not cooperated with the administration of the FCE’s as the comments about her inconsistencies
made it appear that she had not given 100 percent effort. Dr. Brecher additionally noted that her
physicians, Drs. Sanders and Miranzadeh, had placed her at MMI and each had provided work
restrictions which were consistent with each other both before and after the October 3, 2014 FCE.
He also noted that, when appellant underwent a June 12, 2014 FCE for a schedule award, both
Dr. Sanders and Dr. Miranzadeh had indicated that appellant had standing grip and span grip
inconsistencies. Dr. Brecher indicated that, when she underwent the November 5, 2014 FCE, it
was noted that she exhibited bilateral grip inconsistencies as well as inconsistencies in static push,
static arm, and static leg differences. He opined that appellant was able to perform a full-time
sedentary job with restrictions on lifting, pushing, and pulling of no more than 10 pounds and no
reaching above her shoulders. Dr. Brecher noted that she was not at MMI as additional treatment
was noted for the left shoulder condition. He further opined, if appellant followed his prescribed
treatment plan of steroid injections to the shoulders, therapy, and possibly surgery, then, within six
months, she would be able to perform her date-of-injury position. Dr. Brecher indicated that there
was nothing more that could be done for her hands.
In a letter dated December 14, 2018, OWCP notified appellant that it had approved her
request to undergo an updated FCE with a physician or medical facility of her own choosing.
By decision dated December 14, 2018, OWCP denied modification of its November 17,
2014 suspension decision. It found that Dr. Brecher’s second opinion evaluation supported the
opinion of the therapists and physicians who had treated appellant that sub-minimal effort was

4

given when undergoing the FCEs and thus she failed to cooperate with the vocational rehabilitation
effort when undergoing the FCEs of October 3 and November 5, 2014.
LEGAL PRECEDENT
Section 8104(a) of FECA provides that OWCP may direct a permanently disabled
employee to undergo vocational rehabilitation.8 Section 8113(b) provides that, if an individual
without good cause fails to apply for and undergo vocational rehabilitation when so directed under
8104, the Secretary, on review under section 8128 and after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have substantially increased,
may reduce prospectively the monetary compensation of the individual in accordance with what
would probably have been his or her wage-earning capacity in the absence of the failure, until the
individual in good faith complies with the direction of the Secretary.9
OWCP regulations, at 20 C.F.R. § 10.519, provide in pertinent part:
“If an employee without good cause fails or refuses to apply for, undergo,
participate in, or continue to participate in a vocational rehabilitation effort when
so directed, OWCP will act as follows -(b) Where a suitable job has not been identified, because the failure or
refusal occurred in the early but necessary stages of a vocational
rehabilitation effort (that is, meetings with OWCP nurse, interviews,
testing, counseling, [FCE], and work evaluations) OWCP cannot determine
what would have been the employee’s wage-earning capacity.
(c) Under the circumstances identified in paragraph (b) of this section, in
the absence of evidence to the contrary, OWCP will assume that the
vocational rehabilitation effort would have resulted in a return to work with
no loss of wage-earning capacity, and OWCP will reduce the employee’s
monetary compensation accordingly (that is, to zero). This reduction will
remain in effect until such time as the employee acts in good faith to comply
with the direction of OWCP.”10
OWCP procedures provide that specific instances of noncooperation include a failure to
appear for the initial interview, counseling sessions, an FCE, other interviews conducted by the
rehabilitation counselor, vocational testing sessions and work evaluations, as well as lack of
response or inappropriate response to directions in a testing session after several attempts at
instruction.11

8

5 U.S.C. § 8104(a); see also J.E., 59 ECAB 606 (2008).

9

Id. at § 8113(b); R.M., Docket No. 16-0011 (issued February 11, 2016).

10

20 C.F.R. § 10.519; see R.H., 58 ECAB 654 (2007).

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.17(b) (February 2011); see Sam S. Wright, 56 ECAB 358 (2005).

5

Regarding the election of OPM benefits during vocational rehabilitation, OWCP
procedures provide:
“A noncooperation sanction under 5 U.S.C. § 8113 may not be initiated once a
claimant has officially elected OPM benefits. It may only be finalized following
an OPM election if the warning letter was issued while the claimant was in receipt
of FECA benefits. If a sanction is applied prior to receipt of the actual election, the
election is at the reduced amount pursuant to the sanction. When a warning is
issued before the claimant elects OPM benefits, and the claimant continues to be
uncooperative up to the point of the election, it is appropriate to issue the final
sanction under 5 U.S.C. § 8113, even if it is issued after the election is signed.”12
(Emphasis in the original.)
ANALYSIS
The Board finds that OWCP properly reduced appellant’s wage-loss compensation to zero
pursuant to 5 U.S.C. § 8113(b), effective November 17, 2014, for failing to cooperate with the
early stages of vocational rehabilitation.
In an October 23, 2018 second opinion report, Dr. Brecher reviewed a SOAF and the
medical record and responded to a series of questions. He commented on the FCEs that appellant
had undergone and concluded that she had set forth minimal effort in undergoing both FCEs. In
support of his conclusion, Dr. Brecher discussed the comments that her attending physicians had
made regarding her inconsistencies, as well as her restrictions contemporaneous to the FCEs. He
also noted that appellant’s physicians had found her at MMI at the time of the first FCE. As
Dr. Brecher’s report was sufficiently rationalized and based on an accurate factual history and the
complete medical record, his opinion constitutes the weight of the medical evidence.13
Thus, based on Dr. Brecher’s findings, the Board finds that appellant failed to cooperate
with the vocational rehabilitation effort when undergoing the FCE’s of October 3, 2014 and
November 5, 2014. Accordingly, OWCP properly reduced appellant’s wage-loss compensation
to zero pursuant to 5 U.S.C. § 8113(b), effective November 17, 2014, for failing to cooperate with
the early stages of vocational rehabilitation.
The Board further finds that OWCP properly issued its sanction determination. On
November 25, 2014 OWCP received appellant’s November 22, 2014 election to receive retirement
benefits through OPM, effective November 17, 2014. As set forth above, OWCP procedures
provide that, if a warning letter was issued while in receipt of FECA benefits, and prior to receipt
of officially-elected benefits from OPM, she was required to cooperate with vocational
rehabilitation until the time of the election.14 Herein, OWCP had issued its warning letter to
appellant on October 8, 2014. It did not receive her election of retirement benefits until
November 25, 2014. Thus, it is found that OWCP properly issued its sanction determination. The
12

Id. at Chapter 2.813.18(c) (February 2011).

13

Id.

14
See supra note 12; see also R.L., Docket No. 17-0670 (issued July 14, 2017); L.O., Docket No. 13-1578 (issued
January 9, 2014).

6

sanction under section 8113 can be utilized irrespective of the brief time period as demonstrated
in this case.
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s wage-loss compensation to zero
pursuant to 5 U.S.C. § 8113(b), effective November 17, 2014, for failing to cooperate with the
early stages of vocational rehabilitation.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF DEFENSE, DECA
)
SOUTHWEST REGION, Fort Lee, VA,
)
Employer
)
__________________________________________ )
P.M., Appellant

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

Docket No. 12-825
Issued: November 6, 2012

Case Submitted on the Record

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

JURISDICTION
On March 5, 2012 appellant filed an appeal of a February 14, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP) denying modification of a February 16,
2007 wage-earning capacity determination.1 Pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant has established that OWCP’s February 16, 2007
loss of wage-earning capacity (LWEC) determination should be modified; and (2) whether
OWCP should expand her claim to include stress, depression and back conditions.
1

On August 29, 2012 the Board received correspondence from appellant indicating her disagreement with an
overpayment decision issued subsequent to the filing of the instant appeal. This matter will proceed before the
Board in a separate appeal.
2

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This is appellant’s second appeal to the Board. By decision dated November 5, 2010, the
Board determined that appellant’s July 3, 2009 claim for total disability compensation
commencing December 20, 2007 should not be treated as a request for reconsideration but
constituted a request for modification of a February 16, 2007 wage-earning capacity
determination, which found that she could work in the selected position of a billing clerk. The
Board set aside OWCP’s October 27, 2009 finding that appellant had filed an untimely request
for reconsideration and remanded the case for OWCP to evaluate whether modification of the
February 16, 2007 wage-earning capacity determination was warranted.3 The facts of the case as
set forth in the Board’s prior decision are incorporated by reference herein.
In an April 14, 2008 report, Dr. Norman Kane, a treating Board-certified orthopedic
surgeon, noted that appellant had bilateral knee pain and that left knee pain worsened. The
examination of bilateral knees was unchanged with tenderness in the left knee medial joint line
and mildly positive Finkelstein’s test. Dr. Kane opined that appellant was totally disabled and
recommended a magnetic resonance imaging (MRI) scan of the left knee. In a July 31, 2008
report, Dr. Kane evaluated appellant’s right wrist and left knee. Examination showed full range
of motion. MRI scan results revealed no meniscal tear, mild medial bursitis and a slight patella
alta with a Grade II patellofemoral cartilage thinning. Right knee arthroscopy was
recommended. Dr. Kane also noted that appellant was having pain and discomfort in the right
forearm, but opined that the symptoms did not warrant any surgery of the right wrist. On
May 29, 2009 appellant underwent a right knee arthroscopy to repair tears of the medial and
lateral menisci.
OWCP began paying appellant total disability compensation as of
May 29, 2009.4
Subsequent reports from Dr. Kane indicated that appellant was totally disabled beginning
May 29, 2009, due to the right knee surgery. In a May 27, 2009 disability report, Dr. Kane
stated that she was totally disabled from December 20, 2007 to June 5, 2009 with a right knee
injury. In his July 21, 2009 report, he reported on appellant’s right knee and right wrist
conditions and reported that she was working from home. In his January 8, 2010 and
February 24, 2011 reports, Dr. Kane continued to report on her right knee symptoms and
ongoing treatment. On January 8, 2010 he opined that there was no change in appellant’s
disability status.
In a January 13, 2010 report, Dr. Andrew P. Hartman, a Board-certified orthopedic
surgeon and associate of Dr. Kane, reported symptoms and examination findings of appellant’s
right wrist condition. He opined that she was capable of returning to modified work with no
3

Docket No. 10-340 (issued November 5, 2010). Appellant had a January 3, 1996 work injury that OWCP
accepted for a right wrist contusion, right de Quervain’s tendinitis, right carpal tunnel syndrome and a consequential
right knee condition. She has not worked since May 2007. In November 2007, appellant requested that her claim be
expanded to include a back condition and on December 3, 2007, she claimed a recurrence of disability. In early
November 2007, she was involved in a nonwork-related motor vehicle accident.
4

On November 13, 2008 OWCP accepted the additional condition of precipitation of right knee degenerative
disease and approved the requested surgery.

2

forceful gripping, grasping, pushing, or pulling with the right hand and no lifting greater than
five pounds. In the January 13, 2010 report and in an April 14, 2010 report, Dr. Hartman
recommended right wrist surgery.
In a March 9, 2011 decision, OWCP denied modification of its February 16, 2007 wageearning capacity decision and consequently denied appellant’s claim for compensation beginning
May 2007.
On June 18, 2011 appellant requested reconsideration of the March 9, 2011 decision. She
stated that her knee was not injured in the November 15, 2007 motor vehicle accident. Appellant
noted that Dr. Hartman placed her in a permanent and stationary status on May 11, 2011 but,
until that date, she was totally disabled while authorization for her right wrist surgery was
pending approval. She stated that due to stress and depression she had to go the emergency room
at Tri-City Hospital and requested that the conditions of stress and depression be included in her
claim. Appellant argued that she could not work at all in any position, including the constructed
billing clerk position, from December 2007 through May 2009, and requested modification of
the wage-earning capacity decision as her accepted work-related injuries had worsened. In a
July 25, 2011 letter, she also requested that OWCP expand her claim to include her neck and
back conditions.
Medical evidence included a November 15, 2007 report from Dr. Michael Alaynick, an
emergency medicine physician from Tri-City Medical Center, who diagnosed acute exacerbation
of chronic sciatica, status post motor vehicle accident. Dr. Alaynick noted that appellant had
preexisting chronic back pain and hypertension and depression. He noted that she stated that her
chronic back pain was aggravated by a motor vehicle accident. In an April 14, 2008 report,
Dr. Kane opined that appellant was totally disabled from April 14 to May 12, 2008 due to right
knee tricompartmental osteoarthritis and right wrist injury. On May 22, 2009 he stated that she
was totally disabled from May 22 to June 5, 2009. Dr. Kane noted that right knee surgery was
scheduled on May 29, 2009. Thereafter, he found appellant disabled from May 29 to
October 16, 2009. On October 15, 2009 Dr. Kane noted that she was permanent and stationary.
On November 4, 2009 Dr. Hartman opined that appellant was partially disabled due to her right
wrist from December 4 to 16, 2009 and could work with restrictions. Dr. Kane reported that she
was totally disabled from February 24 to July 22, 2011. On May 11, 2011 Dr. Hartman opined
that appellant was permanent and stationary with regard to her right wrist and could return to
modified work with restrictions. On May 26, 2011 Dr. Edward Ferrer, a Board-certified family
practitioner, diagnosed cervicalgia and placed appellant off work from May 26 through 27, 2011.
On August 5, 2011 OWCP referred appellant to Dr. William Curran, a Board-certified
orthopedic surgeon, for a second opinion to determine the relationship between her claimed
conditions and factors of employment. Dr. Curran was also asked to address whether she was
capable of working as a billing clerk during the period May 12, 2007 through May 28, 2009 prior
to her May 29, 2009 right knee arthroscopic surgery and also her period of total disability after
her May 29, 2009 right knee arthroscopic surgery. He was provided a copy of the billing clerk
job description.

3

In an August 22, 2011 report, Dr. Curran noted the history of injury and that appellant
last worked May 12, 2007. He stated that, while her records indicate a back injury on May 12,
2007, there was no record of that injury. Dr. Curran provided examination findings and
diagnosed postoperative release of first dorsal compartment, right wrist; postoperative release of
right carpal and canal of Guyon, right wrist; right later epicondylitis; congenital lunotriquetral
coalition, right wrist; postoperative diagnostic and operative arthroscopy, right knee times three;
osteoarthritis, right knee and lumbar strain aggravated by right knee osteoarthritis condition by
gait alteration. He opined that the diagnosed back condition was medically connected by
aggravation due to appellant’s gait alteration due to her right knee osteoarthritis and was
minimally symptomatic and temporary in nature. Dr. Curran noted that her subjective back
complaints were not corroborated by objective findings and that he was unable to state when the
aggravation would cease. He opined that the May 29, 2009 right knee arthroscopy allowed
appellant to return to work during the period May 12, 2007 through May 28, 2009 as she was
working during that time span with her complaints controlled with medical management and
work modifications. Dr. Curran further opined that, after the May 29, 2009 right knee
arthroscopy, she was temporarily and totally disabled from work through July 12, 2011. He
stated that the prognosis to the right wrist was good and, if appellant’s condition should worsen,
the type of surgery should be left to her and her surgeon. Dr. Curran noted that he did not have
the opportunity to review the job description of a billing clerk and therefore was unable to
comment on whether she was capable of performing those duties. In an August 23, 2011 work
capacity evaluation, he opined that appellant was able to work a six-hour day with permanent
restrictions based on the diagnosed osteoarthritis of right knee and torn cartilage of the right
wrist.
Dr. Kane continued to report on the condition of appellant’s right knee, which was noted
to have severe osteoarthritis be totally disabling. A total knee replacement was recommended.
On September 26, 2011 an OWCP medical adviser reviewed the evidence and opined that, while
surgery may be reasonable, another second opinion examiner should review the case given
appellant’s young age for a total knee replacement and the fact that the second opinion examiner
did not address the case regarding future knee surgery in his August 2011 report. On January 9,
2012 Dr. Kane performed a right total knee replacement. Progress reports were submitted
regarding appellant’s condition.
By decision dated February 14, 2012, OWCP denied modification of the March 9, 2011
decision as the evidence failed to establish that appellant sustained a material change in her
accepted work-related conditions during the period December 20, 2007 through May 28, 2009.
It further denied her request to expand her case as the evidence was insufficient to support that
her back, stress and depression conditions were work related.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn

4

wages.5 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
The Board has held that OWCP may accept a limited period of disability without
modifying a standing wage-earning capacity determination. This occurs when there is a
demonstrated temporary worsening of a medical condition of insufficient duration and severity to
warrant modification of a wage-earning capacity determination. This narrow exception is only
applicable for brief periods of medical disability.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a right wrist contusion, right de Quervain’s
tendinitis, right carpal tunnel syndrome and a consequential right knee condition. On
February 16, 2007 it found the constructed position of billing clerk fairly and reasonably
represented her wage-earning capacity. Appellant has not worked since May 2007. She
underwent authorized de Quervain’s release surgery on July 18, 1996, right knee arthroscopy on
May 26 and October 6, 1999, right carpal tunnel release and Guyon’s canal release on
December 22, 2000 and right knee arthroscopy on May 29, 2009.10
Appellant requested compensation for total disability beginning May 2007 asserting that
she was unable to work as a result of her January 3, 1996 work injury. She did not contend and
the evidence does not reflect that the original wage-earning capacity determination was in error
or that she was retrained or otherwise vocationally rehabilitated. OWCP found that, although
appellant was working 34 hours a week as a sales clerk beginning on October 27, 2006, she was
medically capable of working eight hours a day, 40 hours a week in the constructed billing clerk
position. Appellant stopped working entirely in May 2007. The relevant issue, consequently, is
whether she has established that the February 16, 2007 wage-earning capacity determination
should be modified. The medical evidence must establish that appellant sustained a material
change in her condition such that she was unable to perform the constructed billing clerk which
OWCP found represented her wage-earning capacity.
5

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

6

Sharon C. Clement, 55 ECAB 552 (2004).

7

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000).

8

Id.

9

K.R., Docket No. 09-415 (issued February 24, 2010).

10

She also underwent a total right knee replacement on January 9, 2012, which OWCP has not yet authorized.

5

As noted, appellant had authorized right knee surgery on May 29, 2009, in which she
began receiving compensation for total temporary disability caused by the surgery. Thus, she is
seeking compensation for the period May 2007 through May 29, 2009. Appellant did not,
however, submit evidence containing a rationalized medical opinion explaining why she was
unable to work beginning May 2007 in the constructed billing clerk position due to a change in
her January 3, 1996 work injury.
Multiple reports were received from Dr. Kane. In his December 20, 2007 report,
Dr. Kane attributed appellant’s work stoppage to low back pain sustained in a nonwork-related
motor vehicle accident two weeks prior which did not cause injury to her knee. He also noted
that she had a recurrence of her right knee pain and right wrist pain and that her conditions
precluded her from performing the regular duties as a cashier due to prolonged typing and
standing. In other reports, Dr. Kane attributed appellant’s disability status to the combined
effects of her knee, wrist and back conditions, her right knee condition or merely reported that
she was temporarily totally disabled. In his January 8, 2008 report, he opined that the combined
effects of her conditions precluded her from performing the regular duties of a store worker. In
his April 14, 2008 report, Dr. Kane stated that appellant was totally disabled from April 14 to
May 12, 2008 due to right knee osteoarthritis and right wrist injury. In his October 27, 2008
report, he explained why the requested right knee arthroscopy was due to her original injury.
Dr. Kane did not, however, address whether appellant was disabled from performing the selected
billing clerk position from December 20, 2007 through May 29, 2009. In other reports, he
indicated that she was totally disabled prior to and after the knee surgery of May 29, 2009. In his
August 11, 2009 report, Dr. Kane stated that appellant had been totally disabled since
December 2007 as it took almost a year and a half to authorize the right knee surgery and she
was unable to perform her regular duties during that period. In a September 1, 2009 report, he
opined that she remained totally disabled because of the combined effects of appellant’s back,
right wrist, shoulder and right knee conditions. In his October 15, 2009 report, Dr. Kane
reported that appellant could perform her regular duties with restrictions on her right knee but
was not working as a result of her right upper extremity conditions and a nonindustrial back
injury. However, he did not specifically find that she was unable to perform her constructed
position of billing clerk but instead merely noted that she was on permanent disability due to
several conditions. As Dr. Kane did not address whether appellant’s condition materially
changed such that she could not perform the position of billing clerk, his opinion does not
establish a basis for modifying the wage-earning capacity determination.11
In his January 13 and April 14, 2010 reports, Dr. Hartman recommended right wrist
surgery but found appellant capable of returning to modified work with restrictions. He did not
address the period in question or offer any opinion to explain how or why her work restrictions
changed. Medical conclusions unsupported by rationale are of diminished probative value.12

11

See Elbert Hicks, 55 ECAB 151 (2003).

12

Jacqueline L. Oliver, 48 ECAB 232 (1996).

6

While the record contains medical evidence from appellant, none of the medical evidence
contains an opinion on their causal relationship to the accepted work injury or attributes such
conditions to her disability during the period December 20, 2007 through May 29, 2009.
OWCP referred appellant to Dr. Curran to address appellant’s disability status from 2007
through 2009 and to discuss whether she was capable of working as a billing clerk during the
stated period due to her work-related conditions. Dr. Curran, however, failed to offer clear
opinions to OWCP’s questions within the framework of the statement of accepted facts. His
opinion that May 29, 2009 right knee arthroscopy allowed appellant to return to work during the
period May 12, 2007 through May 28, 2009 is not logically explained. Furthermore, contrary to
the medical record and statement of accepted facts, Dr. Curran stated that appellant was working
during the period May 12, 2007 through May 28, 2009. Despite being provided a copy of the
billing clerk job description, he failed to offer an opinion as to whether appellant could perform
her duties as a billing clerk during the period May 12, 2007 through May 28, 2009 as he stated
that he did not have an opportunity to review the billing clerk job description. As OWCP
undertook development of the issues of appellant’s disability status from 2007 through 2009 and
whether she was capable of working as a billing clerk during the stated period due to her workrelated conditions by referring appellant to Dr. Curran for a second opinion, it has the obligation
to secure a report that would resolve the relevant issues in the case.13 For this reason, the Board
finds that the case is not in posture for decision as to whether OWCP’s February 16, 2007 LWEC
decision should be modified as a supplemental opinion is required from Dr. Curran.
LEGAL PRECEDENT -- ISSUE 2
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury.14 To establish a causal relationship between the condition
claimed, as well as any attendant disability, and the employment event or incident, an employee
must submit rationalized medical evidence based on a complete medical and factual background
supporting such a causal relationship.15 Causal relationship is a medical issue and the medical
evidence required to establish a causal relationship is rationalized medical evidence.16
Rationalized medical evidence is evidence which includes a physician’s rationalized medical
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
13

See Melvin James, 55 ECAB 406 (2004) (once OWCP undertakes to develop the medical evidence further, it
has the responsibility to do so in the proper manner). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Developing and Evaluating Medical Evidence, Chapter 2.810.9(j) (September 2010) (OWCP has a duty to seek
clarification from a second opinion physician where the second opinion physician does not address the specified
medical issues). See also Mae Z. Hackett, 34 ECAB 1421 (1983) wherein the Board has held that, once OWCP
begins to develop the medical evidence, it has the responsibility to obtain an evaluation which will resolve the issue
involved in the case.
14

Jaja K. Asaramo, 55 ECAB 200 (2004).

15

Jennifer Atkerson, 55 ECAB 317 (2004).

16

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by rationalized medical evidence explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.17 Neither the fact that a disease or condition manifests itself during a
period of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.18
ANALYSIS -- ISSUE 2
Appellant requested that OWCP expand her claim to include her back, stress and
depression conditions.
While some medical reports mention stress and depression, there is no medical opinion
supporting that stress and depression are causally related to appellant’s accepted conditions.
Thus, appellant has not established the conditions of stress and depression should be included in
her claim.
Regarding the claimed back condition, Dr. Alaynick’s November 15, 2007 report
diagnosed acute exacerbation of chronic sciatica, status post motor vehicle accident. However,
the medical record makes no mention of a back condition before Dr. Alaynick’s report.
Additionally while Dr. Kane mentions in his notes that appellant was being treated for a back
condition, the record does not contain medical evidence regarding her treatment of a back
condition before the November 2007 motor vehicle accident or the May 29, 2009 right knee
arthroscopic surgery.
Dr. Curran opined in his August 22, 2011 report that appellant’s lumbar strain was
medically connected by aggravation due to her gait alteration due to her right knee osteoarthritis
and was minimally symptomatic and temporary in nature. While he offers some support for
claim expansion on the back condition, he also stated that her back complaints were not
corroborated by objective findings and he was unable to state when the aggravation would cease.
A supplemental report from Dr. Curran is needed to clarify his conflicting statements.19 Thus,
the case is not in posture to determine whether appellant’s claim can be expanded to include a
back condition.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether OWCP’s
February 16, 2007 LWEC decision should be modified and the claim expanded to include a back
condition as further development is needed. The case is affirmed as to the denial of claim
expansion for the conditions of stress and depression.

17

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

18

Ernest St. Pierre, 51 ECAB 623 (2000).

19

See supra note 13.

8

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 14, 2012 is affirmed in part and set aside in part.
Issued: November 6, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________________________________________ )
P.T., Appellant

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

Docket No. 07-936
Issued: August 3, 2007

Case Submitted on the Record

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

JURISDICTION
On February 21, 2007 appellant timely appealed the November 17, 2006 nonmerit
decision of the Office of Workers’ Compensations Programs, which denied her request for
reconsideration. The latest merit decision was issued on September 16, 2005, which is more than
one year prior to the filing of the instant appeal. As such, the Board does not have jurisdiction
over the merits of the claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board can only
exercise jurisdiction over the November 17, 2006 decision denying reconsideration.
ISSUE
The issue is whether the Office properly denied further merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 19, 2004 appellant, then a 51-year-old tool and parts attendant, filed a claim
for job-related stress, anxiety and depression.
Her condition reportedly arose on
August 11, 2003. Appellant first realized that her condition was employment related on

August 13, 2003. She last worked on August 12, 2003.1 Appellant alleged that, on August 11,
2003, a coworker, Sholanda Adane, violated her work space and threw away items from her
desk. She also claimed to have been subjected to constant verbal abuse from her coworker.
Prior to the alleged incident, appellant was diagnosed with severe major depression with
psychotic features. Her physician, Dr. Boyd K. Lester, indicated that the August 11, 2003
incident exacerbated her condition, resulting in an acute stress disorder.
In challenging the claim, the employing establishment noted that the alleged incident
between appellant and Ms. Adane did not occur on August 11, 2003 but on August 12, 2003.
The employing establishment also provided a different account of the incident. On the morning
of August 12, 2003, appellant reportedly entered the work area making obscene and threatening
statements to her coworker. In response, the coworker notified the supervisor and security
personnel. Following the incident, appellant’s supervisor escorted her from the work area and
placed her on nonduty status. On October 16, 2003 the employing establishment issued a notice
of proposed removal for inappropriate comments. The effective date of the removal was
December 9, 2003, which coincided with the date of appellant’s OPM disability retirement. The
employing establishment also noted that appellant previously received a 10-day suspension in
September 2002 for, among other things, inappropriate behavior and making threatening
comments to an employee.
In a March 28, 2004 supplemental statement, appellant expanded the list of employment
incidents that allegedly caused her emotional condition. Additional employment factors included
alleged hostile working conditions, improper supervision and an April 12, 2002 assault by a
coworker, James Crone.2
In a decision dated August 31, 2004, the Office denied the claim because appellant failed
to implicate a compensable employment factor as the cause of her claimed emotional condition.
At appellant’s request, an oral hearing was held on May 25, 2005. In addition to the
previously identified incidents involving Ms. Adane and Mr. Crone, appellant testified about a
third employment incident that reportedly contributed to her emotional condition. She claimed
that she had been tied to a chair with duct tape and pushed through the aisles of the shop, while
her coworkers watched and laughed. A coworker, Joe, was allegedly responsible for the duct
tape incident. Appellant testified that Joe repeatedly kicked the chair as she rolled up and down
the aisle. She also stated that a supervisor witnessed the incident and he ordered someone to
untie appellant. Appellant claimed to have reported this incident to her supervisor, Lonnie West.
Following the hearing, the employing establishment declined to address the alleged duct tape
incident because appellant had not previously raised the issue.
By decision dated September 16, 2005, the Office hearing representative denied
appellant’s emotional condition claim. She found that appellant failed to establish any
1

Effective December 9, 2003, appellant received a disability retirement annuity from the Office of Personnel
Management (OPM).
2

The alleged April 12, 2002 incident involving Mr. Crone was the subject of a prior claim (16-2037232), which
the Office denied on July 15, 2002, April 7, 2003 and February 13, 2004.

2

compensable employment factors. As to the duct tape incident, the hearing representative
specifically found that appellant did not establish that the incident occurred as alleged. The
hearing representative explained that appellant did not provide an approximate date of when this
incident allegedly occurred and she did not provide any evidence to substantiate her allegation.
Appellant requested reconsideration on September 13, 2006. Included with her request
were documents regarding prior disciplinary actions, copies of email messages, personnel
records, an April 30, 2004 sworn statement concerning an unattended tool crib and excerpts from
testimony provided by Terri O’Reilly on May 17, 2004.3
In a decision dated November 17, 2006, the Office denied appellant’s request for
reconsideration. The Office found that appellant’s request had not raised substantive legal
questions nor “included new and relevant evidence….” Therefore, the Office declined to review
the prior merit decision dated September 16, 2005.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act, the Office has the
discretion to reopen a case for review on the merits.4 Section 10.606(b)(2) of Title 20 of the
Code of Federal Regulations provides that the application for reconsideration, including all
supporting documents, must set forth arguments and contain evidence that either: (i) shows that
the Office erroneously applied or interpreted a specific point of law; (ii) advances a relevant
legal argument not previously considered by the Office; or (iii) constitutes relevant and pertinent
new evidence not previously considered by the Office.5 Section 10.608(b) provides that when an
application for reconsideration does not meet at least one of the three requirements enumerated
under section 10.606(b)(2), the Office will deny the application for reconsideration without
reopening the case for a review on the merits.6
ANALYSIS
The Office erred in finding that appellant had not submitted new and relevant evidence
with her September 13, 2006 request for reconsideration. One of the alleged employment
incidents that the Office found had not been factually established involved appellant reportedly
being duct taped to an office chair by a coworker. Ms. O’Reilly addressed this particular
incident in her May 17, 2004 testimony regarding appellant’s EEO claim. She testified that she
witnessed this incident along with a lot of other people at work. The Office hearing
representative previously found that appellant had “provided no evidence to substantiate her
allegation.” The Board finds that Ms. O’Reilly’s May 17, 2004 testimony regarding the duct
tape incident constitutes relevant and pertinent new evidence not previously considered by the
3

Ms. O’Reilly testified at an Equal Employment Opportunity (EEO) Commission hearing regarding a complaint
appellant filed against the employing establishment.
4

5 U.S.C. § 8128(a) (2000).

5

20 C.F.R. § 10.606(b)(2) (2007).

6

20 C.F.R. § 10.608(b).

3

Office. Because appellant has satisfied at least one of the criteria under 20 C.F.R.
§ 10.606(b)(2), the case is remanded to the Office for further consideration of the merits of her
emotional condition claim.
CONCLUSION
The Office improperly denied further merit review of the claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 17, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to the Office for further
action consistent with this decision.
Issued: August 3, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4