United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, 99TH
MEDICAL GROUP, NELLIS AIR FORCE
BASE, NV, Employer
__________________________________________

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

Docket No. 21-1165
Issued: March 1, 2022

Case Submitted on the Record

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

JURISDICTION
On July 19, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated May 27, 2020, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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 denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 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 March 10, 2015 appellant, then a 63-year-old nurse educator, filed an occupational
disease claim (Form CA-2) alleging that she sustained an aggravation of her degenerative disc
disease due to constant sitting, staring at a computer screen, and inputting data while in the
performance of duty.
In a July 22, 2014 report, Dr. Shirley Rodriguez, an osteopath, recounted appellant’s
complaints of mid-thoracic, left-sided pain medial to the scapular area. She reported physical
examination findings of abnormal edema bilaterally in appellant’s extremities. Dr Rodriguez
assessed hypertension, osteoarthritis, gastroesophageal reflux disease, thoracic region strain, and
venous insufficiency.
In an October 28, 2014 report, Dr. Wesley Johnson, a Board-certified orthopedic surgeon,
recounted that appellant had worked for the employing establishment for a number of years and
complained of chronic pain issues in her neck and back. On physical examination, he noted
tenderness and mild swelling in her left wrist and some tenderness over the tuberosity of her right
shoulder. Dr. Johnson indicated that appellant had a chronic condition that may have been
exacerbated through her primary care.
Appellant resigned from the employing establishment, effective March 13, 2015.
In a letter dated May 12, 2015, the employing establishment controverted appellant’s claim
alleging that she had not submitted medical evidence of the alleged injury. It also noted that she
had previous fall injuries in 2013 and 2014.
In statements dated October 22, 2014 and May 2, 2015, appellant explained that she was
diagnosed with degenerative disc disease before she began working for the employing
establishment in 2012. She reported that she was exposed to constant sitting, staring at screens,
and inputting data at work and experienced painful, cramping hands, eye strain, headaches, and
back pain.
By decision dated June 16, 2015, OWCP denied appellant’s occupational disease claim,
finding that she had not established that her diagnosed thoracic and lumbar spine conditions were
causally related to the accepted factors of her federal employment.

3

Docket No. 18-1280 (issued March 12, 2019).

2

On June 29, 2015 appellant requested reconsideration.
In reports dated November 6, 2014 through April 20, 2015, Dr. Rodriguez provided
examination findings and assessed right shoulder pain, cervicalgia, degenerative joint disease,
osteoarthritis, thoracic strain, cervical strain, tenosynovitis of the thumb, and right shoulder
supraspinatus tendon tear.
In a June 12, 2015 attending physician’s report (Form CA-20), Dr. Rodriguez noted
appellant’s history of lumbar degenerative joint disease and diagnosed supraspinatus tendon tear
and degeneration of the cervical, thoracic and lumbar spine. She checked a box marked “Yes”
indicating that the diagnosed conditions were caused or aggravated by appellant’s employment
and explained that appellant worked at a desk job, which placed a strain on her spine, shoulders,
and wrist.
By decision dated September 25, 2015, OWCP denied modification of the June 16, 2015
decision.
On November 20, 2015 appellant requested reconsideration.
Appellant submitted reports dated July 16 through October 29, 2015 from Dr. John M.
Baldauf, a Board-certified orthopedic surgeon, who indicated that he treated her for complaints of
right shoulder pain after a slip and fall injury approximately seven months prior. On initial
examination of the right shoulder, Dr. Baldauf observed positive Neer and Hawkins signs and no
pain or swelling. He diagnosed shoulder impingement syndrome, bilateral shoulder tendinitis, and
bilateral shoulder joint pain.
By decision dated February 9, 2016, OWCP denied modification of the September 25,
2015 decision.
On March 21, 2016 appellant requested reconsideration.
In a May 11, 2016 statement, appellant indicated that she continued to be in pain on a level
of 7 to 10 on most days. She alleged that it was common for a person with mild-to-moderate
degenerative joint disease that was previously not problematic to experience a major exacerbation
of her condition from a sedentary job and a hard fall onto cement.
By decision dated June 17, 2016, OWCP denied modification of the February 9, 2016
decision.
On September 7, 2016 appellant requested reconsideration. She contended that she had
submitted all required medical documents from her physicians. Appellant asserted that her federal
employment temporarily aggravated her preexisting degenerative joint condition and that the
October 2014 fall made the aggravation permanent.
In a February 22, 2016 report, Dr. Archie C. Perry, a Board-certified orthopedic surgeon,
indicated that he treated appellant for complaints of low back pain radiating into her bilateral legs.
He discussed her diagnostic reports and provided examination findings. Dr. Perry diagnosed
lumbar degenerative disc disease, lumbar spinal stenosis, and acquired lumbar spondylolisthesis .

3

In March 16 and 30, 2016 reports, Dr. Baldauf discussed appellant’s history of injury and
provided physical examination findings. He diagnosed right hip joint pain, lumbosacral
degenerative disc disease with radiculopathy, lumbar spinal stenosis, acquired lumbar
spondylolisthesis, and lumbago.
In an April 27, 2016 report, Dr. Willis Y. Wu, Board-certified in anesthesiology and pain
medicine, noted lumbar examination findings of mildly limited range of motion and tenderness in
the lumbosacral junction. He diagnosed lumbar intervertebral disc degeneration, lumbar
radiculopathy, lumbar spondylosis without myelopathy, and hip osteoarthritis. Dr. Wu continued
to treat appellant and provided medical reports dated May 13 and June 23, 2016.
By decision dated April 20, 2018, OWCP denied modification of the June 17, 2016
decision.
Appellant appealed to the Board. By decision dated March 12, 2019, the Board affirmed
OWCP’s April 20, 2018 decision, finding that she had not met her burden of proof to establish
causal relationship between her diagnosed medical conditions and accepted factors of her federal
employment.
On October 7, 2019 appellant requested reconsideration. She submitted various articles
about injuries that result from sitting for long periods of time.
By decision dated May 27, 2020, OWCP denied modification.
On January 22, 2021 appellant requested reconsideration. She indicated that she continued
to have pain and suffering due to sitting for six hours a day on a poorly prepared workstation.
Appellant explained that she was diagnosed with degenerative joint disease in 2000, but her
condition was not problematic until she started to work for the employing establishment. She
asserted that her sedentary job duties temporarily aggravated her degenerative joint disease and
her fall in October 2014 permanently aggravated her condition.
By decision dated February 11, 2021, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

4

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one y ear of the date of
OWCP’s decision for which review is sought. 6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With her January 22, 2021 request for reconsideration, appellant submitted a statement
alleging that she did not experience problems with her degenerative joint disease until she began
to work for the employing establishment. She asserted that her sedentary job duties temporarily
aggravated her degenerative joint disease and her fall in October 2014 permanently aggravated her
condition. Appellant’s reconsideration request does not advance a new legal argument not
previously considered nor does it show that OWCP erroneously applied or interpreted a specific
point of law. Her argument is substantially similar to that which was previously considered and
discussed in OWCP’s April 20, 2018 decision. 9 Consequently, appellant is not entitled to further
review of the merits of her claim based on either the first or second above-noted requirements
under 20 C.F.R. § 10.606(b)(3). 10

5

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued
October 9, 2020); Eugene F. Butler, 36 ECAB 393, 398 (1984).
10

20 C.F.R. § 10.606(b)(3)(i) and (ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No.
18-1697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).

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Furthermore, the Board finds that appellant has not provided any relevant and pertinent
new evidence not previously considered. 11 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3).12
As appellant has not met any of the regulatory requirements under 20 C.F.R.
§ 10.606(b)(3), pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
11

T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

12

20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535
(issued July 25, 2019).
13

S.M., Docket No. 21-0392 (issued August 12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R.,
Docket No. 16-1416 (issued April 10, 2017); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006)
(when a request for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE ARMY, PUBLIC
WORKS DEPARTMENT, NAVAL AIR
STATION, Marietta, GA, Employer
__________________________________________

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

Docket No. 20-0934
Issued: July 12, 2021

Case Submitted on the Record

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

JURISDICTION
On March 13, 2020 appellant filed a timely appeal from a September 17, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. § 501.3(e)(f). One hundred and eighty days from September 17, 2019, the date of OWCP’s decision, was March 15, 2020. Since
using March 20, 2020, the date the appeal was received by the Clerk of the Appellate Boards would result in the loss
of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark
is March 13, 2020, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective September 17, 2019, as he no longer had residuals or
disability causally related to his accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On September 20, 2000 appellant, then a 45-year-old maintenance mechanic, filed a
traumatic injury claim (Form CA-1) alleging that day he sustained a deep cut to his right forearm
when a piece of plate glass broke and fell on his arm while in the performance of duty. On
February 9, 2001 OWCP accepted this claim for laceration of the right forearm. Appellant
underwent surgical repair of the right brachioradialis tendon on February 28, 2001. He returned
to work on April 9, 2001 at a different duty station.
On February 4, 2002 appellant filed an occupational disease claim (Form CA-2) alleging
that he had developed carpal tunnel syndrome due to factors of his federal employment, including
his new employment duties. On April 5, 2002 OWCP accepted the claim for aggravation of carpal
tunnel syndrome.4 On October 19, 2003 appellant returned to work as a procurement technician
for the Department of the Navy.
Appellant filed a second occupational disease claim (Form CA-2) for carpal tunnel
syndrome on December 24, 2003. On January 9, 2004 OWCP accepted the claim for aggravation
of left carpal tunnel syndrome.
By decision dated June 25, 2007, OWCP issued a formal loss of wage-earning capacity
determination. It found that appellant’s procurement technician position effective October 19,
2003, with wages of $649.56 per week, fairly and reasonably represented his wage-earning
capacity and was vocationally suitable. OWCP reduced his wage-loss compensation to net
compensation of $867.00 every 28 days, effective October 19, 2003.5

3
Docket No. 10-2093 (issued June 9, 2011); Docket No. 08-0658 (issued November 4, 2008); Docket No. 05-1391
(issued March 10, 2006).
4

On February 5, 2004 OWCP administratively combined appellant’s claims in OWCP File Nos xxxxxx264 and
xxxxxx454, with the latter serving as the mater file.
5

By decision dated November 15, 2007, OWCP granted appellant a schedule award for nine percent permanent
impairment of the right upper extremity and four percent permanent impairment of the left upper extremity. Appellant
appealed this decision to the Board and on November 4, 2008, the Board found that there was an unresolved conflict
of medical opinion evidence and remanded the claim for referral to an impartial medical examiner. In its June 9, 2011
decision, the Board found that appellant had no more than nine percent permanent impairment of his right upper
extremity for which he had previously received a schedule award. Docket No. 08-0658 (issued November 4, 2008).

2

Appellant continued to seek treatment with his attending physician. In a note dated
August 1, 2011 Dr. Scott D. Gillogly, a Board-certified orthopedic surgeon, diagnosed right
forearm work-related laceration with persistent brachioradialis weakness, dysesthesias, numbness
involving the median nerve and cutaneous dermatome, status post brachioradialis tendon repair,
and left wrist carpal tunnel syndrome documented by electromyogram and nerve conduction
velocity (EMG/NCV) studies secondary to work-related overuse, intermittently symptomatic. He
noted that appellant’s condition was stable and that he had sought treatment due to an OWCP
request. Dr. Gillogly found that there were no changes in appellant’s condition or work restrictions
and indicated that he would see him annually or as needed. He completed similar notes on July 26,
2012 June 28, 2013, and July 7, 2014.
On July 31, 2015 Dr. Gillogly diagnosed right forearm work-related laceration with
persistent brachioradialis weakness, dysesthesias, and numbness involving the median nerve and
cutaneous dermatome, and work-related left carpal tunnel syndrome. He noted that appellant
continued to do well without changes or concerns. Dr. Gillogly reported that appellant was
working in an office environment and that he had no acute complaints. On physical examination
he found good two-point discrimination and pincher grasp as well as negative Phalen’s test and
Tinel’s sign.
On August 5, 2015 OWCP referred appellant, a statement of accepted facts (SOAF), and a
series of questions to Dr. Eric S. Furie, a Board-certified orthopedic surgeon, for a second opinion
evaluation regarding whether the appellant’s condition had resolved and whether he could perform
his date of injury job.
In his August 25, 2015 report, Dr. Furie noted appellant’s history of injury and accepted
conditions. He performed a physical examination and found no thenar wasting. Dr. Furie reported
decreased sensation to light tough at the thumb as well as the region of the wrist. Sensation was
intact to light touch in the small finger. He found a positive Tinel’s sign and a positive Phalen’s
test bilaterally. Dr. Furie determined that appellant’s bilateral carpal tunnel syndrome had not
resolved. He further opined that appellant could perform his date-of-injury position as
maintenance mechanic emergency shift, if he could avoid repetitive motion.
In June 24, 2016 CA-110 notes, appellant reported that his attending physician had retired
and requested approval to see another physician.
On October 2, 2017 OWCP referred appellant, a SOAF, and a series of questions for a
second opinion examination with Dr. Howard B. Krone, a Board-certified orthopedic surgeon
regarding whether the appellant had and disability as the result of his accepted condition, and
whether he was able to perform his date of injury job or any type of light duty.
In his October 25, 2017 report, Dr. Krone reviewed the SOAF, appellant’s date-of-injury
job requirements, and his medical history. He performed a physical examination and found full
range of motion and strength in both wrists. Dr. Krone noted that motor power in the small joints
of the hand was 5/5 and that appellant’s sensory examination in both hands was normal. He found
a negative Tinel’s sign over the median nerve at both hands and a negative Phalen’s test. Dr. Krone
reported a well-healed surgical scar over the dorsal radial aspect and excellent strength of the
brachial radialis. He found no evidence of brachial radialis weakness, sensory, or motor changes

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in the right upper extremity. Dr. Krone concluded that appellant had no disability remaining as a
result of his September 20, 2000 traumatic injury and no evidence of any objective findings on
examination for carpal tunnel syndrome. He determined that appellant could perform his date-ofinjury position as a maintenance mechanic. Dr. Krone completed a work capacity evaluation
(Form OWCP-5c) indicating that appellant had no work restrictions.
On August 1, 2019 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits because he no longer had disability or medical residuals causally related to his
accepted employment injuries. It found that the weight of the medical evidence established that
his work-related disability had ceased based on Dr. Krone’s second opinion report. OWCP
afforded appellant 30 days to submit additional evidence or argument in writing if he disagreed
with the proposed termination of his wage-loss compensation and medical benefits.
On September 4, 2019 appellant submitted copies of medical records from Dr. Gillogly
and Dr. James C. McIntosh, Jr., a Board-certified orthopedic surgeon, dated September 21, 2000
through February 13, 2004.
By decision dated September 17, 2019, OWCP finalized the termination of appellant’s
wage-loss compensation and medical benefits effective that date, finding that the medical evidence
of record failed to support continued disability or residuals related to the accepted work injuries.
It relied upon the report of the second opinion physician, Dr. Krone.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.6 It may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the employment.7
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.8 The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability compensation.9 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition which require further medical treatment.10

6
See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
7

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
8

See R.P., supra note 7; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

9

See R.P., supra note 7; T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No.
08-1822 (issued August 5, 2009). Furman G. Peake, 41 ECAB 361, 364 (1990).
10
See R.P., supra note 7; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002);
Furman G. Peake, id.

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ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective September 17, 2019, as he no longer had residuals or
disability causally related to his accepted employment injury.
On October 2, 2017 OWCP referred appellant for a second opinion examination with
Dr. Krone.11 In his October 25, 2017 medical report, Dr. Krone noted review of appellant’s
medical history, diagnostic testing, and findings on physical examination. He opined that appellant
was no longer disabled due to the accepted work-related injury. The Board has reviewed the
opinion of Dr. Krone and finds that it has reliability, probative value, and convincing quality with
respect to its conclusions regarding the relevant issue in the present case. 12 His opinion is based
on a proper factual and medical history and he thoroughly reviewed the SOAF and medical
records.13 Dr. Krone provided medical rationale for his opinion by stating that appellant’s physical
findings including negative Tinel’s sign and Phalen’s test, muscle and sensory testing revealed no
continuing deficits. Given the above findings, he opined that appellant’s disability had ceased and
he had no limitations as a result of his accepted employment injuries. Dr. Krone based his opinion
on a proper factual and medical history and physical examination findings and provided medical
rationale. The Board, thus, finds that OWCP properly relied on Dr. Krone’s second-opinion report
in terminating his wage-loss compensation and medical benefits.14
Following the preliminary determination of termination, OWCP received copies of medical
records from Drs. Gillogly and McIntosh dated September 21, 2000 through February 13, 2004.
However, as these records predate the termination, they do not offer an opinion regarding
appellant’s residuals or disability as of September 17, 2019.15 Thus, these records from Drs.
Gillogly and McIntosh are insufficient to overcome the weight accorded to Dr. Krone or create a
conflict.
Thus, the Board finds that OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 17, 2019, as he no longer had
residuals or disability due to his accepted employment injury.

11

See 20 C.F.R. § 10.320.

12
C.E., Docket No. 19-0661 (issued October 1, 2019); see also R.W., Docket No. 12-0375 (issued
October 28, 2013).
13

M.H., Docket No. 17-0210 (issued July 3, 2018); Melvina Jackson, 38 ECAB 443 (1987).

14

L.B., Docket No. 19-1380 (issued February 11, 2020); K.W., Docket No. 19-1224 (issued November 15, 2019).

15

L.V., Docket No. 17-1260 (issued August 1, 2018).

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CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective September 17, 2019, as he no longer had residuals or
disability causally related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 12, 2021
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

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

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

Docket No. 18-1500
Issued: May 1, 2019

Case Submitted on the Record

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

JURISDICTION
On August 1, 2018 appellant filed a timely appeal from a June 7, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted November 26, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

FACTUAL HISTORY
On December 4, 2017 appellant, then a 64-year-old laborer/custodian, filed a traumatic
injury claim (Form CA-1) alleging that, on November 26, 2017, she sustained a chest wall muscle
spasm when pulling a shampooer through a confined space while in the performance of duty. She
stopped work on November 26, 2017 and returned on December 4, 2017. On the reverse side of
the claim form, appellant’s supervisor contended that the injury was caused by willful misconduct.
In a November 26, 2017 narrative statement, appellant’s supervisor, D.W., explained that,
on November 26, 2017, appellant complained of foot pain and asserted that she was unable to push
the scrubber to the work site as required. He explained that he demonstrated the proper way to use
the machine and how to push the scrubber to the job site.
In a November 30, 2017 duty status report (Form CA-17), Dr. Natalie Ronshaugen, a
family medicine specialist, noted that appellant was pulling a shampoo machine and pulled a
muscle. She diagnosed chest wall muscle spasm. Dr. Ronshaugen indicated that appellant could
return to light-duty work on December 4, 2017.
In a development letter dated December 29, 2017, OWCP informed appellant that
additional factual and medical information was required to establish the claim. It advised her of
the type of factual and medical evidence needed and provided a questionnaire for her completion.
In a separate development letter, also dated December 29, 2017, OWCP requested that the
employing establishment provide further clarification of the facts of appellant’s claim. It afforded
both parties 30 days to respond.
Thereafter, OWCP received November 26, 2017 hospital records and treatment notes.
Dr. John Lemery, Board-certified in emergency medicine, noted that appellant was “lifting a heavy
shampoo device at work today at 1530.” He diagnosed bilateral low back pain without sciatica of
unspecified chronicity. Dr. Lemery also noted that appellant’s pain radiated to her back, but not
her left arm. He also noted that she had similar symptoms in 2015 with a diagnosis of a pulled
muscle.
In a November 26, 2017 emergency department treatment note, Dr. Alexander Quinones,
an emergency medicine specialist, determined that appellant had bilateral low back pain without
sciatica of unspecified chronicity.
In a January 25, 2018 statement, D.W. provided photographs of the carpet cleaning
machine, which had wheels. He explained that appellant’s duties included moving the carpet
cleaner and cleaning on both November 12 and 26, 2017. D.W. explained that, despite being
instructed on how to push the carpet cleaner, appellant pulled the carpet cleaner.
By decision dated February 1, 2018, OWCP denied appellant’s claim. It found the
evidence of record was insufficient to establish that the event occurred as described. OWCP
explained that appellant claimed that she was “pulling a shampooer at work thru a confined space.”
It explained that despite being provided guidance on how to push the shampoo machine between
job sites, appellant pulled the shampooer instead of using the guidance to push the shampooer,

2

which cast doubt on her claim. OWCP also found that she had not responded to the December 29,
2017 request for additional information.3
In a narrative report dated November 30, 2017, Dr. Ronshaugen indicated that appellant
was seen for “severe chest wall muscle spasm from pulling a shampooer at work.” She
recommended physical therapy and light duty until appellant’s pain resolved, at which time she
could resume full[-]duty activity at work.”
In a February 1, 2018 statement, appellant explained that she had to pull the carpet cleaner
through the doors because they were not automatic doors. She explained that she could not push
the machine without assistance.
In a February 1, 2018 report, Dr. Susan Piggot, a family medicine specialist, noted
appellant was seen on November 30, 2017 for an injury. She diagnosed “chest wall muscle spasm”
and recommended physical therapy.
OWCP received a February 22, 2018 duty status report (Form CA-17) with an illegible
signature. The diagnosis was chest pain and muscle spasm.
On March 7, 2018 OWCP’s Branch of Hearings and Review received a request for a review
of the written record before an OWCP hearing representative.
By decision dated June 7, 2018, OWCP’s hearing representative affirmed the February 1,
2018 decision, as modified. He accepted that the claimed incident occurred as alleged, but found
that appellant had not established a medical condition causally related to the accepted
November 26, 2017 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

3

On January 17, 2018 appellant sought an appeal from a purported decision of OWCP dated December 29, 2017.
The Board assigned Docket No. 18-0521. However, the Board found that there was no final adverse OWCP decision
at the time appellant filed her appeal. The Board determined that the purported December 29, 2017 decision was, in
actuality, an initial development letter from OWCP advising appellant of the deficiencies in her claim and requesting
specific factual and medical evidence. The Board concluded that the appeal must be dismissed. Order Dismissing
Appeal, Docket No. 18-0521 (issued February 16, 2018).
4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

3

employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.7 The second component is whether the employment incident caused a personal
injury.8
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed medical condition and the specific employment
incident.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted November 26, 2017 employment incident.
OWCP received November 26, 2017 hospital records and treatment notes from
Dr. Lemery. Dr. Lemery described the November 26, 2017 employment incident, noted
appellant’s history of similar symptoms in 2015, when she was diagnosed with a pulled muscle.
He indicated that appellant’s current diagnosis was bilateral low back pain without sciatica of
unspecified chronicity. The Board notes that pain is a symptom, not a compensable medical
diagnosis.10 Dr. Lemery did not diagnose an actual medical condition causing the pain.11 His
report is therefore of limited probative value.
Appellant was also treated on November 26, 2017 by Dr. Quinones. His treatment notes
similarly are of limited probative value because he also diagnosed bilateral low back pain without

5
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

9

S.S., Docket No. 18-1488 (issued March 11, 2019).

10

C.M., Docket No. 18-0146 (issued August 16, 2018).

11

See D.K., Docket No. 17-1186 (issued June 11, 2018).

4

sciatica of unspecified chronicity. As previously noted, pain is a symptom, not a compensable
medical diagnosis.12
Dr. Ronshaugen saw appellant on November 30, 2017 for “severe chest wall muscle spasm
from pulling a shampooer at work.” In a February 1, 2018 report, Dr. Piggot also diagnosed “chest
wall muscle spasm.” A muscle spasm has also been found to be a symptom, not a diagnosis.13
The Board has held that a medical report is of no probative value if it does not provide a firm
diagnosis of a particular medical condition, or offer a specific opinion as to whether the accepted
employment incident caused or aggravated the claimed condition.14 As neither Dr. Ronshaugen
nor Dr. Piggot diagnosed an actual medical condition causing appellant’s symptoms, their reports
lack probative value and are insufficient to establish the claim.15
OWCP received a February 22, 2018 duty status report (Form CA-17) with an illegible
signature. A report that is unsigned or bears an illegible signature lacks proper identification and
cannot be considered probative medical evidence.16
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish a diagnosed medical condition causally related to her employment incident
of November 26, 2017.17 Appellant, therefore, has not met her burden of proof.
On appeal appellant questions her supervisor’s controversion of her claim, contending that
he did not witness the injury. The Board notes, however, that the November 26, 2017 employment
incident has already been accepted as having occurred as alleged. For the reasons set forth above,
the claim is denied because the medical evidence of record is insufficient to establish a diagnosed
medical condition causally related to the accepted November 26, 2017 employment incident.
Therefore, appellant has not met her burden of proof to establish an employment-related injury.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted November 26, 2017 employment incident.

12

Id.

13

See J.G., Docket No. 17-1382 (issued October 18, 2017).

14

See M.J., Docket No. 18-1114 (issued February 5, 2019).

15

See supra note 11.

16

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

17

See D.S., Docket No. 18-0061 (issued May 29, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the June 7, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 1, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq. for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 21-1248 and 220171
Issued: March 11, 2022

Case Submitted on the Record

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

On August 17, 2021 appellant, through counsel, filed a timely appeal from a July 26, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx905. The Clerk of the Appellate Boards docketed the appeal as No. 21-1248. On
November 15, 2021 appellant, through counsel, filed a timely appeal from an October 5, 2021
merit decision of OWCP under OWCP File No. xxxxxx284. The Clerk of the Appellate Boards
docketed the appeal as No. 22-0171.
On July 20, 2020 appellant, then a 44-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 9, 2020 she experienced a left shoulder muscle strain when
attempting to stop the contents from falling out of a broken 50-pound package while in the
performance of duty. She stopped work on July 10, 2020. OWCP assigned that claim OWCP File
No. xxxxxx905.

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.

Appellant had previously filed an October 10, 2019 notice of recurrence (Form CA-2a)
alleging that on August 15, 2019 she sustained a recurrence of her previously accepted medical
conditions when she injured her left shoulder lifting a heavy package while in the performance of
duty.2 She asserted that, upon returning to work following her previously accepted February 22,
2010 employment injury, she continued to work with ongoing back and shoulder pain related to
her accepted medical conditions and that on August 15, 2019 she experienced a sharp shooting
pain in her left shoulder radiating into her neck when she picked up a heavy package. OWCP
subsequently converted appellant’s recurrence claim under OWCP File No. xxxxxx560 to a new
traumatic injury claim for a left shoulder condition assigned OWCP File No. xxxxxx284.
Appellant did not stop work.
By decisions dated December 3, 2019, March 18 and September 16, 2020, and October 5,
2021, OWCP denied appellant’s October 10, 2019 traumatic injury claim under OWCP File No.
xxxxxx284, finding that the evidence of record was insufficient to establish causal relationship
between her diagnosed left shoulder condition and the accepted August 15, 2019 employment
incident.
By decision dated January 12, 2021, OWCP denied appellant’s traumatic injury claim
under OWCP File No. xxxxxx905, finding that the medical evidence of record was insufficient to
establish that her left shoulder condition was causally related to the accepted July 9, 2020
employment incident. It found, therefore, that she had not met the requirements to establish an
injury or medical condition causally related to the accepted employment incident.
On January 26, 2021 appellant, through counsel, timely requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review with regard to the denial of
her claim under OWCP File No. xxxxxx905.
By decision dated July 26, 2021, OWCP’s hearing representative affirmed the January 12,
2021 decision, noting that appellant had another traumatic injury claim under OWCP File No.
xxxxxx284 and referenced a January 22, 2021 medical report from Dr. Sami E. Moufawad, a spine
and pain medicine and physical medicine and rehabilitation specialist, that was submitted in
support of that other claim.
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files. For example, if a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. has filed separate traumatic injury
claims for left shoulder conditions under OWCP File Nos. xxxxxx905 and xxxxxx284. The Board
further notes that, in OWCP’s July 20, 2021 decision in OWCP File No. xxxxxx905, the hearing
representative referenced her claim under OWCP File No. xxxxxx284 . Therefore, for full and
fair adjudication, the cases must be remanded to OWCP to administratively combine OWCP File
2

Appellant’s recurrence claim was filed in relation to OWCP File No. xxxxxx560, which was a prior claim for a
February 22, 2020 traumatic injury accepted for a contusion of chest and cervical strain.

2

Nos. xxxxxx905 and xxxxxx284, along with any other of appellant’s relevant claim files, so that
it can consider all relevant claim files and accompanying evidence in adjudicating appellant’s
traumatic injury claims.
Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.
IT IS HEREBY ORDERED THAT the July 26 and October 5, 2021 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: March 11, 2022
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF AGRICULTURE, RURAL
HOUSING SERVICE, St. Louis, MO, Employer
__________________________________________

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)
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)

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

Docket No. 09-561
Issued: December 11, 2009

Case Submitted on the Record

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

JURISDICTION
On December 23, 2008 appellant, through her attorney, filed a timely appeal from a
November 5, 2008 nonmerit decision of the Office of Workers’ Compensation Programs denying
her request for reconsideration. As there is no merit decision within one year of the filing date of
this appeal, the Board lacks jurisdiction to review the merits of this case pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for further merit
review of her claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
On June 12, 2007 appellant, then a 51-year-old payment assistant processor, filed an
occupational disease claim alleging that she sustained pain radiating from her upper body and
neck into her lower back and left leg due to factors of her federal employment. She related that
she experienced the pain after prolonged sitting.

By decision dated September 19, 2007, the Office denied appellant’s claim on the
grounds that she did not establish a medical condition due to the accepted work factors. It noted
that the medical evidence did not address the issue of whether she sustained a diagnosed
condition causally related to her federal employment duties.
On October 14, 2007 appellant requested reconsideration. She argued that her
nonergonomic workstation caused pain and physical stress and described the problems with her
workstation.
By decision dated November 28, 2007, the Office denied modification of its
September 19, 2007 decision. It noted that the issue was medical in nature and concluded that
the medical evidence did not show that she sustained a condition due to her work duties.
On October 10, 2008 appellant again requested reconsideration.1 She described the
medical evidence that she submitted with her request for reconsideration. Appellant argued that
sitting, answering the telephone, data entry and twisting aggravated her preexisting condition as
her workstation was not ergonomic. She submitted January 24, 2005 and August 8, 2008
magnetic resonance imaging (MRI) scan studies of her cervical spine and August 5, 2008 x-rays
of her thoracic and lumbar spine. Appellant also submitted reports dated June 25 and
September 28, 2007 from Dr. Michael Butler, a chiropractor. On June 25, 2007 Dr. Butler
diagnosed disc degeneration. On September 28, 2007 he diagnosed fasciitis and facet syndrome.
In a report dated October 6, 2008, Dr. Nadim T. Masrallah, a chiropractor, diagnosed cervical
disc displacement, lumbar disc syndrome, carpal tunnel syndrome and brachial
neuritis/radiculitis.
In a statement dated June 24, 2008, appellant described a work injury on May 14, 2008.
In a form report dated May 28, 2008, Dr. Michael J. Spezia, an osteopath, listed the date of
injury as May 15, 2008. He diagnosed neck sprain and checked “yes” that the condition was
caused or aggravated by employment.2
Appellant further submitted the results of a September 27, 2007 workstation evaluation.
In progress reports dated March 7 and April 11, 2005, Dr. Daniel J. Scodary, a Board-certified
neurosurgeon, discussed her L5-S1 discectomy.
By decision dated November 5, 2008, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant reopening
her case under section 8128 for further merit review.

1

The record indicates that on May 20, 2008 appellant filed a claim for a traumatic injury to her neck and back
occurring on May 14, 2008.
2

Dr. Spezia’s form report is largely illegible.

2

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) submit relevant and
pertinent new evidence not previously considered by the Office.4 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.5 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.6
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.7 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.8 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.9
ANALYSIS
Appellant filed a claim alleging that prolonged sitting at work caused pain from her neck
and upper body radiating into her back and leg. The Office accepted as factual the identified
work factor but denied her claim after finding that the medical evidence was insufficient to
establish that she sustained a diagnosed condition causally related to her employment duties.
On October 10, 2008 appellant requested reconsideration. She submitted the results of
diagnostic studies including x-rays of her lumbar and thoracic spine and cervical MRI scan
studies. Appellant also submitted progress reports dated March 7 and April 11, 2005 from
Dr. Scodary relevant to her L5-S1 discectomy. The progress reports and diagnostic studies,
however, are not relevant to the pertinent issue of whether she sustained a diagnosed condition

3

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

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

8

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

9

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

3

causally related to the performance of her work duties. Evidence that does not address the
particular issue involved does not warrant reopening a case for merit review.10
Appellant further submitted reports from two chiropractors, Dr. Butler and Dr. Masrallah.
Section 8101(2) of the Act provides that the “term ‘physician’” includes chiropractors 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….”11 A
chiropractor cannot be considered a physician under the Act unless it is established that there is a
subluxation as demonstrated by x-ray evidence.12 Neither, Dr. Butler nor Dr. Masrallah
diagnosed a subluxation as demonstrated by x-ray and thus are not considered “physicians”
under the Act. Their reports, consequently, are insufficient to warrant reopening appellant’s case
for merit review.
In a form report dated May 28, 2008, Dr. Spezia diagnosed neck sprain and checked
“yes” that the condition was caused or aggravated by work. He referred to the date of injury,
however, as May 15, 2008 and thus his opinion is not relevant to the question of whether
appellant sustained an occupational disease.
Appellant submitted a statement dated June 24, 2008 regarding an alleged traumatic
injury on May 14, 2008 and the results of a September 27, 2007 workstation evaluation. The
question of whether she sustained a diagnosed condition due to factors of her federal
employment, however, is medical in nature. As discussed, evidence that does not address the
particular issue involved does not warrant reopening a case for merit review.13
In her October 10, 2008 request for reconsideration, appellant argued that sitting and
performing her job duties at a workstation that was not ergonomic aggravated her condition. Her
lay opinion, however, is not relevant to the medical issue in this case, which can only be resolved
through the submission of probative medical evidence from a physician.14
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit new
and relevant evidence not previously considered. As she did not meet any of the necessary
regulatory requirements, she is not entitled to further merit review.

10

Johnnie B. Causey, 57 ECAB 359 (2006).

11

5 U.S.C. § 8101(2); see also Michelle Salazar, 54 ECAB 523 (2003).

12

The Office’s regulations, at 20 C.F.R. § 10.5(bb), defines subluxation to mean an incomplete dislocation,
off-centering, misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrated on x-ray.
See Mary A. Ceglia, 55 ECAB 626 (2004).
13

Freddie Mosley, 54 ECAB 255 (2002).

14

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

4

CONCLUSION
The Board finds that the Office properly denied appellant’s request for further merit
review of her claim under 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 5, 2008 is affirmed.
Issued: December 11, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
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U.S. POSTAL SERVICE, POST OFFICE,
)
Macon, GA, Employer
)
___________________________________________ )
O.C., Appellant

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

Docket No. 07-1369
Issued: December 21, 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 April 25, 2007 appellant filed a timely appeal of a February 22, 2007 decision of the
Office of Workers’ Compensation Programs which denied his request for a review of the written
record. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the
February 22, 2007 decision. Because more than one year elapsed between the last merit decision
of the Office dated May 27, 2004 and the filing of this appeal, the Board lacks jurisdiction to
review the merits of appellant’s claim.
ISSUE
The issue is whether the Office properly denied appellant’s request for a review of the
written record.
FACTUAL HISTORY
On June 17, 1997 appellant, then a 38-year-old mail processor, filed a traumatic injury
claim alleging that, on June 8, 1997, he felt swelling and sharp pain in his right hand while
pulling trays. On August 26, 1997 the Office accepted his claim for right extensor tenosynovitis
and mild carpal tunnel syndrome. Appellant underwent a right wrist carpal tunnel release and

dorsal carpal ganglion excision on December 17, 1988. He was disabled from work from
December 17, 1998 to January 21, 1999, when he returned to light duty with restrictions.1
On August 12, 2003 appellant filed a Form CA-7 claim for compensation alleging a
recurrence of disability on or after July 10, 2003.
In a report dated October 22, 2003, Dr. Jeffrey Fried, an orthopedic surgeon and a second
opinion physician, opined that appellant was capable of performing limited duty with limitations
on repetitive movements. In a January 12, 2004 supplemental report, he noted that appellant
underwent a functional capacity evaluation (FCE) and provided restrictions for appellant’s right
hand. Dr. Fried opined that appellant was capable of performing his limited-duty position.
In a January 29, 2004 decision, the Office denied appellant’s claim for compensation for
the period on or after July 10, 2003.
By letter dated April 7, 2004, the Office advised appellant that he was offered a modified
position as a mail processing clerk which was found to be suitable. Appellant refused the
position and the Office advised appellant that his reasons for refusal were unacceptable.
By decision dated May 27, 2004, the Office terminated appellant’s entitlement to wageloss benefits effective May 26, 2004 because the evidence established that he refused to accept
suitable work.
On April 5, 2004 appellant filed a CA-7 form for disability from July 10, 2003 to the
present. On June 28 and October 3, 2005 he requested reconsideration. In a letter dated
November 16, 2005, the Office advised appellant that his request for reconsideration was
unclear. The Office advised him that it was unclear which decision he was requesting the Office
to reconsider.
On December 15, 2005 appellant requested reconsideration of the Office’s January 29,
2004 decision.
By decision dated January 25, 2006, the Office denied appellant’s request for
reconsideration. The Office found that his request for reconsideration was untimely as it was not
made within a year of the January 29, 2004 decision. The Office further found that appellant had
not presented clear evidence of error.
In a letter dated November 21, 2006, the Office advised appellant that he was not entitled
to monetary compensation as he had refused to accept suitable employment. Appellant was also
advised that the Office had received his request for authorization for a physical performance test;
however, the requested treatment did not appear to be medically necessary.
On January 19, 2007 the Office’s Branch of Hearings and Review received a letter from
appellant requesting that it review the record and reinstate his benefits. He alleged that he
accepted the modified job offer. Appellant requested that his benefits be reinstated.

1

On February 25, 2002 appellant received a schedule award for an 11 percent permanent impairment of the right
arm.

2

By decision dated February 22, 2007, the Office denied appellant’s request for a review
on the grounds that he had previously requested reconsideration and that the case could equally
well be addressed through the reconsideration process.
LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that before
review under section 8128(a) of this title, a claimant for compensation not satisfied with a
decision of the Secretary ... is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.2
Section 10.615 of the federal regulations implementing this section of the Act provides that a
claimant shall be afforded a choice of an oral hearing or a review of the written record.3 The
Office’s regulations provide that the request must be sent within 30 days of the date of the
decision for which a hearing is sought and also that the claimant must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision.4
Additionally, the Board has held that the Office, in its broad discretionary authority in the
administration of the Act,5 has the power to hold hearings in certain circumstances where no
legal provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.6 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of the Act and Board precedent.7 Moreover, the
Board has held that the Office has the discretion to grant or deny a hearing when the request is
for a second hearing on the same issue.8
ANALYSIS
The Board finds that the Office properly denied appellant’s request for a review of the
written record. Section 8124(b) provides that, “before review under section 8128(a),” a claimant
for compensation is entitled to a hearing on her claim on a request made within 30 days after the
date of issuance of the decision.9 Office regulations provided that a claimant must not have

2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.615.

4

20 C.F.R. § 10.616(a).

5

5 U.S.C. §§ 8101-8193.

6

Marilyn F. Wilson, 52 ECAB 347 (2001).

7

Teresa M. Valle, 57 ECAB ___ (Docket No. 06-438, issued April 19, 2006). See Federal (FECA) Procedure
Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).
8

See Steven A. Anderson, 53 ECAB 367, 369-70 (2002); Johnny S. Henderson, 34 ECAB 216, 219 (1982).

9

See 5 U.S.C. § 8124(b).

3

previously submitted a reconsideration request (whether or not it was granted) on the same
decision.10
Appellant submitted a request for reconsideration on December 15, 2005. The Office
denied his request for reconsideration in a January 25, 2006 decision. Appellant then requested a
review of the written record on January 19, 2007. However, as he had previously requested
reconsideration, he was not entitled to a review of the written record as a matter of right.11 The
Board finds that the Office also properly exercised its discretion in denying appellant’s request
for a review of the written record and determining that his case could be addressed equally well
by requesting reconsideration and submitting evidence not previously considered
An abuse of discretion is generally shown through proof of manifest error or a clearly
unreasonable exercise of judgment.12 The Office properly advised appellant that he could seek
reconsideration with additional evidence. It did not abuse its discretion in denying his request
for an examination of the written record.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for an examination of
the written record.
ORDER
IT IS HEREBY ORDERED THAT the February 22, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 21, 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
10

20 C.F.R. § 10.616(a) (2002).

11

See supra note 4.

12

See Delmont L. Thompson, 51 ECAB 155 (1999).

4


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

)
)
)
)
)
)
)
)

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

Docket No. 19-0863
Issued: November 4, 2019

Case Submitted on the Record

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

JURISDICTION
On March 15, 2019 appellant, through counsel, filed a timely appeal from a February 21,
2019 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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the February 21, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish conditions causally
related to the accepted November 6, 2015 employment incident.
FACTUAL HISTORY
On November 16, 2015 appellant, then a 57-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that, on November 6, 2015, he sustained pain in his low back and right
buttocks when repairing damaged mail while in the performance of duty. He stopped work on
November 6, 2015.
OWCP received a November 19, 2015 note from Dr. Khyber Khan, a Board-certified
family practitioner, who indicated that appellant was “[o]ut of work until further notice.”
In a development letter dated December 9, 2015, OWCP informed appellant that he had
not submitted sufficient factual or medical evidence to establish his claim. It advised him of the
type of factual and medical evidence needed and provided a questionnaire for his completion.
OWCP afforded appellant 30 days to respond.
OWCP received a January 7, 2016 return to work notice (Form CA-3) advising that
appellant returned to full-time work without restrictions on December 22, 2015.
By decision dated January 11, 2016, OWCP denied the claim, finding that appellant had
not provided sufficient evidence to support the factual aspects of his claim. It noted that he did
not respond to the development questionnaire or provide a detailed description regarding the
alleged employment incident. OWCP concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA.
A November 7, 2015 hospital discharge summary from Dr. Prajesh Ghimire, a Boardcertified family practitioner, diagnosed back pain.
In a December 18, 2015 duty status report (Form CA-17), Dr. Khan diagnosed sciatica and
a bulging lumbar disc. He indicated that appellant could return to work on December 21, 2015.
In a December 31, 2015 report, Dr. Richard Jackson, a neurologist, noted that he saw
appellant for right leg pain. He diagnosed double crush syndrome of S1 radiculopathy and
piriformis syndrome.
On January 12, 2016 OWCP received appellant’s response to the development
questionnaire. Appellant noted that he reported his injury on November 10, 2015, four days after
the incident, because he had been in the hospital on medication. He explained that, while he was
working the damaged mail on November 6, 2015, he picked up a full tray of damaged flats and
turned to put them in a hamper. At that time, something “felt weird” in his lower back and his
back hurt. Appellant explained that it was close to quitting time, there was no supervisor present,
and he went home. He also noted that two individuals witnessed that he was in pain on
November 6, 2015, and asked him about his injury. Additionally, appellant indicated that one of
the individuals, D.U., helped him leave the building and walk to his car. He explained the

2

immediate effects of his injury included a sharp and severe pain in his lower back and right
buttocks.
On June 8, 2016 appellant, through counsel, requested reconsideration. In support thereof,
OWCP received diagnostic tests and hospital records from November 7 to 15, 2015, some of which
were illegible. In a November 7, 2015 note, Dr. Christopher Barsotti, an emergency medicine
specialist, noted that appellant presented with mild-to-moderate lower back pain which began the
prior day. He explained that appellant worked at the employing establishment, engaged in
moderate lifting of boxes, and his back pain worsened with movement. Dr. Barsotti found
intractable pain secondary to sciatica and diagnosed acute sciatica.
In a November 7, 2015 note, Dr. Khan advised that appellant presented to the emergency
room after having severe, right side lower back pain, which started the prior night. He indicated
that appellant related that he was at work when he felt a sharp pinch in his right lower back area
which radiated down his right leg. Dr. Khan diagnosed severe sciatica.
In a November 12, 2015 report, Dr. Jackson noted that appellant presented to the
emergency room with severe right side lower back pain, which began the prior night. He indicated
that appellant related that he was at work when he felt a sharp pain in his right buttock, which
radiated down his right leg. Dr. Jackson assessed classic pain syndrome associate with S1 nerve
root of gluteus maximus spasm and medial gastroc spasm. In a November 13, 2015 note, he
indicated that appellant was hospitalized for low back pain.
A November 8, 2015 computerized tomography (CT) scan of appellant’s lumbar spine,
read by Dr. Leonides T. Fernando, a Board-certified radiologist, revealed a L2-3 right paracentral
disc herniation, a suspected L4-5 central disc protrusion, L5-S1 degenerative disc disease, facet
arthrosis, and slightly narrowed left neural foramen.
OWCP also received physical therapy notes dated November 15, 2015, and nurses’ notes
dated November 7 and 15, 2015. It also received statements from appellant’s coworkers who
observed that he was in pain after the incident.
In a November 19, 2015 report, Dr. Khan noted that appellant was admitted to the hospital
on November 7, 2015, and discharged eight days later. He explained that appellant presented to
the emergency room following significant lower back discomfort “after bending over at work to
remove an item.” Dr. Khan saw appellant on December 3, 2015, and diagnosed sciatica. He saw
appellant again on December 18, 2015, and January 15, 2016 and diagnosed lumbago with sciatica
and related that appellant “acquired this injury at work while lifting a mail tray.”
By decision dated February 21, 2019, OWCP affirmed the January 11, 2016 OWCP
decision, as modified. It found that appellant had established that the November 6, 2015
employment incident occurred in the performance of duty as alleged, and that a medical condition
was diagnosed in connection with the employment injury. However, OWCP denied the claim,
finding that the medical evidence of record was insufficient to establish causal relationship. .

3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
In order to determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established.8
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.9 Second, the employee must submit evidence, generally
only in the form of probative medical evidence, to establish that the employment incident caused
a personal injury.10
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.11 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish conditions
causally related to the accepted November 6, 2015 employment incident.

4

See supra note 2.

5

See D.C., Docket No. 19-0363 (issued July 18, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

9

D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

10
B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB
354 (1989).
11

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

M.K., Docket No 19-0428 (issued July 15, 2019; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).

4

Dr. Khan provided December 18, 2015 and January 15, 2016 reports in which he noted that
appellant “acquired this injury at work while lifting a mail tray.” He diagnosed lumbago with
sciatica. While Dr. Khan generally attributed the diagnosed conditions to the employment
incident, the Board has held that a physician must provide a reasoned opinion as to whether the
employment incident caused or contributed to appellant’s diagnosed medical conditions.13 He did
not explain how the mechanism of the accepted incident would have physiologically caused the
diagnosed condition.14 Dr. Khan’s December 18, 2015 and January 15, 2016 reports are therefore
insufficient to establish the claim.
None of Dr. Khan’s remaining medical reports of record offered an opinion regarding the
cause of appellant’s low back condition. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition is of no probative value on the
issue of causal relationship.15 As such these reports are insufficient to establish causal relationship.
In reports dated November 12 and 13, 2015, Dr. Jackson related that appellant was at work
when he felt a sharp pain in his right buttock. He assessed classic pain syndrome with spasm and
low back pain. The Board has held that “pain” and “spasm” are symptoms and not diagnoses.16
As these reports do not diagnose an actual medical condition causing appellant’s symptoms, they
lack probative value and are insufficient to establish appellant’s claim.
The November 7, 2015 reports from Drs. Ghimire and Barsotti, and the December 31, 2015
report from Dr. Jackson provided diagnoses, but did not offer a rationalized medical opinion
regarding the cause of the diagnosed conditions and are therefore insufficient to establish
appellant’s claim.17
The Board notes that OWCP also received reports from nurses and physical therapists in
support of appellant’s claim. These reports, however, are of no probative value as nurses and
physical therapists are not considered physicians as defined under FECA.18
Finally, appellant submitted diagnostic testing reports in support of his claim. The Board
has held that diagnostic reports lack probative value as they do not provide an opinion on causal
relationship between appellant’s employment duties and a diagnosed condition.19 As such, these
reports are also insufficient to establish appellant’s claim.

13

See D.C., Docket No. 19-0363 (issued July 18, 2019); John W. Montoya, 54 ECAB 306 (2003).

14

C.C., Docket No. 19-0059 (issued May 29, 2019).

15

R.Z., Docket No. 19-0408 (issued June 26 2019); P.S., Docket No. 18-1222 (issued January 8, 2019).

16

V.B., Docket No. 19-0643 (issued September 6, 2019).

17

See supra note 12.

18

See S.S., Docket No. 18-1356 (issued May 21, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.6 (2006) (lay
individuals such as nurses, physician assistants, and physical therapists are not competent to render a medical opinion
under FECA). See also M.M., Docket No. 16-1617 (issued January 24, 2017).
19

See S.G., Docket No. 17-1054 (issued September 14, 2017).

5

Therefore, as the medical evidence of record is insufficient to establish that appellant’s
conditions were causally related to the accepted November 6, 2015 employment incident, the
Board finds that appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish conditions
causally related to the accepted November 6, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 4, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE NAVY, ALAMEDA
)
NAVAL AIR STATION, Alameda, CA, Employer )
__________________________________________ )
C.H., widow of W.H., Appellant

Appearances:
Lauren Shine, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0729
Issued: August 3, 2017

Case Submitted on the Record

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

JURISDICTION
On February 14, 2017 appellant, through counsel, filed a timely appeal from an
August 18, 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 the claim.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 record provided the Board includes evidence received after OWCP issued its August 18, 2016 decision.
The Board’s review is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the
Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant met her burden of proof to establish that the employee’s
May 23, 2012 death was causally related to his Federal employment.
FACTUAL HISTORY
On December 11, 1979 the employee, then a 39-year-old sheet metal worker, sustained
injuries in a work-related fall. He was climbing into an aircraft window, felt a pop in his back,
and landed on his right side. The employee stopped work on the date of injury and never
returned. OWCP accepted the claim for cervical sprain, lumbar sprain, sacroiliac ligament
sprain, lumbar radiculopathy, cervical intervertebral disc degeneration, lumbar intervertebral disc
displacement without myelopathy, prolonged depressive reaction, and pain disorder related to
psychological factors. The employee remained on the periodic compensation rolls until his death
at age 71 on May 23, 2012.
OWCP learned of the employee’s death on May 31, 2012 and, accordingly, terminated
wage-loss compensation for temporary total disability. It also informed appellant of the
availability of survivor benefits for eligible dependents where death resulted from either a jobrelated injury or a medical condition caused by hazardous exposure on the job. Appellant filed a
claim for survivor benefits (Form CA-5) in April 2015.
The employee’s June 21, 2012 death certificate identified respiratory failure as the
immediate cause of death. The underlying causes of death included cervical spinal cord
compression and end-stage renal disease.
The employee had been hospitalized on several occasions during the months and weeks
preceding his May 23, 2012 death.
On March 19, 2012 Dr. Christopher J. Rosko, a Board-certified emergency medicine
specialist, indicated that the employee was hospitalized with weakness, neck/back pain, urinary
tract infection and left foot dry gangrene. The employee also developed hypoxemia with
increasing nasogastric tube output. He was found to have a large sacral decubitus ulcer with gas
and Fournier’s gangrene.
In a March 20, 2012 report, Dr. William Donnellan, a hematology oncology fellow,
provided a consultation regarding cervical amyloidosis. He noted that the employee had fallen at
home on February 7, 2012 and had progressive neurological decline due to spinal cord injury.4
Dr. Donnellan noted that the employee was essentially unable to move his left upper extremity
and left lower extremity after that fall.
On March 25, 2012 Dr. Fawaz Habeeb, an internist, diagnosed C3-4 amyloid osteopathyrelated spinal cord compression.

4

Appellant fell at home on or about February 7, 2012.

2

On May 21, 2012 Dr. Colleen Adkins, a Board-certified internist, noted the employee had
C3-4 spinal cord compression due to dialysis-related amyloid, that he was status post Fournier’s
gangrene, and that the hospital course was complicated by respiratory failure likely secondary to
progression of high spinal cord injury.
As noted, the employee died due to respiratory failure on May 23, 2012.
In a May 24, 2012 autopsy report, Dr. Silvio H. Litovsky, a pathologist, indicated that the
employee was a 71-year-old male with a history of multiple medical problems. These included
diabetes, hypertension, end-stage renal disease on hemodialysis since 2002, coronary artery
disease status post coronary artery bypass grafting (2000), chronic obstructive pulmonary
disease, and known C3-4 cervical spinal cord compression with focal myelopathy. Magnetic
resonance imaging scan of spine showed degenerative changes a C3-4 with underlying
hemodialysis-related arthropathy or neuropathic joint and stable severe canal narrowing with
cord compression. Dr. Litovsky opined that the immediate cause of death was bilateral acute
pneumonia. The underlying causes of death included end-stage renal disease and the employee’s
clinical history of hemodialysis associated with cervical spine arthropathy with spinal cord
compression.
On May 6, 2015 OWCP informed its district medical adviser (DMA) of the employee’s
accepted conditions and requested that the medical evidence of record be reviewed to determine
whether there was causal relationship between the employee’s death and the accepted conditions.
In a May 11, 2015 report, Dr. Eric Puestow, a Board-certified internist and OWCP DMA,
indicated that the employee had a history of diabetes, hypertension and artherosclerosis in
addition to his accepted work-related conditions. He indicated that the employee had end-stage
kidney disease consequential to his diabetes and that he had been on maintenance dialysis since
2002. Also, since early 2012 the employee had been falling and had become nonambulatory.
Dr. Puestow summarized the employee’s last hospital course, noting that he was admitted
to the hospital with cervical myelopathy caused by spinal cord compression due to hemodialysisrelated arthropathy. He also noted that the death certificate and the autopsy report indicated that
the immediate cause of death was pneumonia with the underlying cause of death was diabetic
kidney failure, which resulted in hemodialysis-related cervical spine arthropathy with spinal cord
compression. Dr. Puestow indicated that while the employee had cervical degenerative disc
disease as an accepted condition this was not related to the spinal cord compression that
ultimately caused the employee’s death. Thus, he opined that there was no causal relationship
between the employee’s death and the accepted employment-related conditions.
By decision dated October 28, 2015, OWCP denied appellant’s claim for survivor
benefits because the weight of the medical evidence did not support that the employee’s death
was causally related to his employment.
Appellant timely requested a hearing before an OWCP hearing representative, which was
held on July 11, 2016. She stated that she felt the employee’s death was work related because a
spinal injury was noted on both the death certificate and the autopsy report. Counsel argued that

3

the accepted work injuries had contributed to the employee’s death as his spine had
decompressed to the point where he was paralyzed and wheelchair bound.
By decision dated August 18, 2016, the hearing representative affirmed OWCP’s
June 19, 2013 decision.
LEGAL PRECEDENT
FECA5 provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.6 Appellant
has the burden of proving by the weight of the reliable, probative, and substantial evidence that
the employee’s death was causally related to his or her employment.7 This burden includes the
necessity of furnishing rationalized medical opinion evidence demonstrating a causal
relationship.8 The physician’s opinion must be based on a complete factual and medical
background, must be expressed in terms of a reasonable degree of medical certainty, and must be
supported by medical rationale explaining the relationship between the employee’s death and his
or her previous employment.9
The mere showing that an employee was receiving compensation for total disability at the
time of his or her death does not establish that the employee’s death was causally related to the
previous employment.10 The Board has held that it is not necessary that there is a significant
contribution of employment factors to establish causal relationship.11 If the employment
contributed to the employee’s death, then causal relationship is established.12
ANALYSIS
The Board finds that appellant has not established that the employee’s accepted workrelated conditions either caused or contributed to his May 23, 2012 death due to respiratory
failure. The employee’s accepted conditions included cervical sprain, lumbar sprain, sacroiliac
ligament sprain, lumbar radiculopathy, cervical intervertebral disc degeneration, lumbar
intervertebral disc displacement without myelopathy, prolonged depressive reaction, and pain
disorder related to psychological factors. Appellant believed that her husband’s death was
employment related because the June 21, 2012 death certificate listed cervical spinal cord
compression as an underlying cause of death.
5

Supra note 2.

6

5 U.S.C. §§ 8102(a) and 8133.

7

L.R., 58 ECAB 369, 375 (2007).

8

Id.

9

Id.

10

Edna M. Davis (Kenneth L. Davis), 42 ECAB 728 (1991).

11

See T.H. (M.H.), Docket No. 12-1018 (issued November 2, 2012).

12

Id.

4

Dr. Adkins, who completed the death certificate, identified cervical spinal cord
compression and end-stage renal disease as the underlying causes of death. However, she
offered no medical rationale as to how the spinal cord compression was work related or how an
accepted employment-related condition caused or contributed to the employee’s death.13
OWCP had its DMA, Dr. Puestow, review the medical evidence of record to determine
whether the decedent’s death was work related. Dr. Puestow noted that the employee’s last
admission to the hospital was due to a cervical myelopathy caused by spinal cord compression
due to hemodialysis-related arthroplasty. He also noted that the death certificate and the autopsy
report indicated that the immediate cause of death was pneumonia with the underlying cause of
death of diabetic kidney failure which resulted in hemodialysis-related cervical spine arthropathy
with spinal cord compression. Dr. Puestow indicated that, while the employee had cervical
degenerative disc disease as an accepted condition, this was not related to the spinal cord
compression that ultimately caused the employee’s death. Thus, he opined that there was no
causal relationship between the employee’s death and his employment-related condition(s).
Dr. Litovsky opined in his autopsy report that the immediate cause of death was bilateral
acute pneumonia. The underlying causes of death included end-stage renal disease and the
employee’s clinical history of hemodialysis associated with cervical spine arthroplasty with
spinal cord compression.
The Board notes that there is no disagreement between the autopsy findings and the
medical adviser’s opinion that the employee’s cervical cord compression was a consequence of
hemodialysis. Thus, the Board finds that appellant failed to establish that the accepted
employment-related conditions were a contributing cause of the employee’s death.14
As no further relevant and probative medical evidence was submitted, appellant has
failed to meet her burden of proof to establish her right to survivor’s benefits.15
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that the
employee’s death was causally related to his federal employment.

13

See Edna M. Davis (Kenneth L. Davis), 42 ECAB 728 (1991); Christine T. McAtee (Charles M. McAtee), 36
ECAB 390 (1984).
14

See F.V. (R.V.), Docket No. 15-0717 (issued July 8, 2015); see also D.L. (R.L.), Docket No. 11-1993 (issued
July 13, 2012); Roger W. Griffith, 51 ECAB 491 (2000); Glenn C. Chasteen, 42 ECAB 493 (1991); Arnold
Gustafson, 41 ECAB 131 (1989); Beth P. Chaput, 37 ECAB 158 (1985).
15

See Marian Tobin (John J. Tobin), Docket No. 95-2201 (issued November 24, 1997).

5

ORDER
IT IS HEREBY ORDERED THAT the August 18, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 3, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6