United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Fresno, CA,
Employer
__________________________________________

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

Docket No. 12-1389
Issued: January 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 4, 2012 appellant filed a timely appeal from a May 11, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which denied his claim for
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he was totally
disabled from June 6 to October 9, 2010 causally related to his accepted left elbow condition.
FACTUAL HISTORY
On April 19, 2010 appellant, then a 50-year-old letter customer service representative,
filed a traumatic injury claim alleging that on April 15, 2010 he turned a handle on a door and
1

5 U.S.C. §§ 8101-8193.

injured his left elbow. He stopped work on April 27, 2010. On June 1, 2010 OWCP accepted
appellant’s claim for left lateral epicondylitis.2 Appellant received continuation of pay from
April 27 to June 6, 2010.
Appellant was treated by Dr. Sanjay J. Chauhan, a Board-certified neurologist, on
April 27, 2010 for left elbow pain occurring after turning a heavy knob at work. Dr. Chauhan
diagnosed left lateral epicondylitis, possible torn extensor communis tendon, bruising of the left
upper arm and medial elbow and left forearm extensor and flexor tendinitis. He advised that
appellant was totally disabled for two to three weeks. In an attending physician’s report dated
April 27, 2010, Dr. Chauhan made diagnoses and checked a box “yes” that appellant’s condition
was work related. He noted that appellant was totally disabled from April 27 to May 12, 2010.
Dr. Chauhan submitted a magnetic resonance imaging (MRI) scan of the left forearm dated
May 4, 2010 which was normal. An MRI scan of the left elbow revealed a nondisplaced fracture
involving the radial head with evidence of edema and fluid in the radiocapitellar joint space
consistent with lateral epicondylitis. May 4 and June 4, 2010 x-rays revealed a possible
nondisplaced radial head fracture.
Beginning June 24, 2010, appellant filed CA-7 forms, claiming compensation for total
disability for the period June 6 to October 9, 2010. An attached time analysis form indicated that
claimed wage loss began on June 14, 2010.
In letters dated July 12 and 26, 2010, OWCP requested that appellant submit medical
evidence establishing that he was totally disabled due to the accepted condition for the period
claimed.
Appellant submitted reports from Dr. Chauhan dated May 12 to September 2, 2010.
Dr. Chauhan noted that appellant reported left lateral elbow pain, left forearm pain and tingling
in the digits. He diagnosed left lateral epicondylitis with possible fracture of the radial head and
left forearm extensor and flexor tendinitis. Dr. Chauhan noted that causation was due to the
April 15, 2010 injury when appellant turned a heavy doorknob. Because of the dysfunction and
pain of the left elbow, as well as x-rays showing a possible fracture of the radial head, appellant
was totally disabled from May 12 to June 15, 2010. In the July 21, 2010 report, Dr. Chauhan
advised that appellant was unable to do light duty because of the pain from the fracture which
might take weeks or months to subside. He noted that stress from pain caused an inability to
perform any activities, even modified duties, using the affected limb. Dr. Chauhan stated that
appellant was totally disabled since the April 15, 2010 injury through September 10, 2010. In
work status notes dated July 20 and September 2, 2010 he noted that appellant remained totally
disabled from July 20 to October 6, 2010. On September 3, 2010 Dr. Chauhan noted that
appellant presented with pain in the left lateral elbow with electric sensation, left forearm pain
and tingling digits. He diagnosed left lateral epicondylitis with fracture of the radial head and
left forearm extensor and flexor tendinitis. Dr. Chauhan noted causation was due to the April 15,
2010 injury and opined that appellant would be totally disabled through October 6, 2010.
2

Appellant had previously filed an occupational disease claim on April 28, 2004, which was accepted for
bilateral carpal tunnel syndrome, bilateral medial epicondylitis and bilateral wrist sprains, File No. xxxxxx164. On
July 27, 2009 he filed an occupational disease claim which was accepted for bilateral tenosynovitis of the hand and
wrist, File No. xxxxxx755.

2

On August 31, 2010 OWCP referred appellant for a second opinion to Dr. Alice
Martinson, a Board-certified orthopedic surgeon. It provided her with the medical records, a
statement of accepted facts and a detailed description of his work duties. In a report dated
September 20, 2010, Dr. Martinson reviewed the records provided to her and performed an
examination of appellant. She noted a history of his condition. Dr. Martinson found no swelling
or deformity of the left elbow, a full range of motion, no deep tenderness over the radial head, no
clicking or localized tenderness of the synovial folds or triceps, no pain or weakness with wrist
or finder extension, some hypesthesia over the left ring and little fingers, with negative Tinel’s
and Phalen’s signs, normal grip strength and no atrophy. She diagnosed a hyperextension strain
of the left elbow, resolved, without residuals and left cubital tunnel syndrome. Dr. Martinson
opined that appellant’s radial head finding was not caused by the April 15, 2010 injury as the
imaging evidence identified this as an old fracture without hemorrhage or edema. She opined
that there was no evidence that his recent elbow injury would prevent him from returning to the
preinjury job without restrictions. Dr. Martinson recommended a repeat electromyogram
(EMG). In a work capacity evaluation, she noted that appellant could return to work full time
with restrictions.
OWCP referred appellant for a diagnostic testing. An October 1, 2010 EMG revealed
very mild right carpal tunnel syndrome involving the median nerve and radiculopathies along the
left cervical spine at C8 and T1 nerve roots.
In an October 11, 2010 supplemental report, Dr. Martinson reviewed the EMG and noted
that it showed no conduction abnormalities of the ulnar nerves on either side, only mild right
median sensory delays. She advised that nothing in the study would preclude appellant from
returning to work at his previous job using the modifications made for him in the past.
Dr. Martinson diagnosed left C8 radiculopathy, etiology unknown, unrelated to the April 15,
2010 injury. She opined that appellant fully recovered from the mild elbow injury and was
capable of performing his job and no further treatment is required. In response to OWCP’s
question as to periods of total disability due to the work-related condition, Dr. Martinson stated
that, “at best” appellant would have been “totally disabled by this injury for a maximum of five
days” and anything after that time was unnecessary.
In an October 5, 2010 report, Dr. Chauhan noted that appellant had presented with pain in
the left lateral elbow with electric sensation, left forearm pain and tingling digits. Dr. Chauhan
diagnosed left lateral epicondylitis with fracture of the radial head and left forearm extensor and
flexor tendinitis and opined that appellant was totally disabled until November 20, 2010.
In a decision dated October 29, 2010, OWCP denied appellant’s claim for compensation
for total disability beginning June 6 to October 9, 2010 on the grounds that the evidence did not
establish that his total disability was due to his accepted work injury.
Appellant requested an oral hearing which was held on March 8, 2011. In a November 5,
2010 report, Dr. Chauhan diagnosed left lateral epicondylitis with fracture of the radial head and
left forearm tendinitis. He noted that appellant was returned to modified duties without keyboard
use. Dr. Chauhan disagreed with Dr. Martinson’s opinion and indicated that appellant had a
significant sprain injury affecting the elbow and the period of total disability was appropriate.
He noted that Dr. Martinson did not see or treat appellant at the time of injury when he was

3

dysfunctional and believed that he was totally disabled from the date of injury to
November 4, 2010. In reports dated November 19, 2010 to April 13, 2011, Dr. Chauhan
diagnosed left lateral epicondylitis with fracture of the radial head, left forearm tendinitis and
cervical symptoms causally related to the April 15, 2010 work injury. He stated that appellant
was returned to modified duties without keyboard use. On March 16, 2011 Dr. Chauhan opined
that appellant reached maximum medical improvement. In a November 2, 2010 report, Dr. Toby
Johnson, a Board-certified orthopedist, diagnosed cervical radiculopathy, cubital tunnel
syndrome and carpal tunnel syndrome. He recommended a splint and arm brace.
In a decision dated May 12, 2011, an OWCP hearing representative affirmed the
October 29, 2010 decision.
On August 3, 2011 appellant requested reconsideration. He submitted reports from
Dr. Jacob E. Tauber, a Board-certified orthopedic surgeon, dated April 28 to June 23, 2011.
Dr. Tauber diagnosed bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome and
cervical radiculopathy. He opined that appellant performed repetitive motion duties at work that
caused lateral epicondylitis, bilateral carpal tunnel syndrome and bilateral cubital tunnel
syndrome. Dr. Tauber further noted that, with regard to the cervical spine, appellant performed
extensive duties that caused wear and tear leading to cervical radiculopathy. On June 23, 2011
he reviewed Dr. Martinson’s report and disagreed with her findings. Dr. Tauber indicated that
the April 15, 2010 sprain/strain of the elbow was not resolved and that by protecting his left arm
appellant aggravated other conditions of the left arm and caused a consequential injury to the
right arm. He opined that appellant was totally disabled from June 6 to October 9, 2010 from the
April 15, 2010 injury. Also submitted were reports from Dr. Chauhan dated June 7 to
August 19, 2011 who diagnosed left lateral epicondylitis with fracture of the radial head and left
forearm extensor and flexor tendinitis. He opined that appellant was returned to modified duties.
In a decision dated November 2, 2011, OWCP denied modification of the prior decision.
On February 9 and February 13, 2012 appellant requested reconsideration. He submitted
reports from Dr. Chauhan dated October 27, 2011 to March 30, 2012. Dr. Chauhan noted that
appellant was totally disabled from April 15 to November 3, 2010 so that the fracture of the left
radial head would heal. Appellant had delayed healing with severe left elbow pain from the
fracture. Dr. Chauhan opined that the period of disability due to the April 15, 2010 injury was
reasonable and appropriate and that appellant could not have performed modified work because
of the pain. In a January 9, 2012 report, Dr. Tauber asserted that appellant’s elbow did not
resolve and that he sustained a consequential injury to his right upper extremity by protecting his
left arm.
In a decision dated May 11, 2012, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for

4

each period of disability claimed.3 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.4 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.5 To meet this burden, a claimant must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition and the accepted injury.6
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. For each period of disability claimed, the employee has the burden
of establishing that he or she was disabled for work as a result of the accepted employment
injury.7
ANALYSIS
OWCP accepted appellant’s claim for left lateral epicondylitis. Appellant stopped work
on April 27, 2010. He received continuation of pay and then claimed wage-loss compensation
from June 6 to October 9, 2010. The Board finds that the medical evidence is insufficient to
establish that disability beginning June 6, 2010 was caused or aggravated by the accepted left
lateral epicondylitis.8
Dr. Chauhan, in reports from May 12 to September 3, 2010, noted appellant’s symptoms
and diagnosed left lateral epicondylitis with possible fracture of the radial head and left forearm
extensor and flexor tendinitis. He noted causation was due to the April 15, 2010 injury and
opined that, because of the dysfunction and pain of the left elbow as well as x-rays showing a
possible fracture of the radial head, appellant was totally disabled through October 6, 2010. On
July 21, 2010 Dr. Chauhan advised that appellant was unable to perform any activities using the
left arm due to pain from the fracture. Although these notes indicated that appellant was
disabled, Dr. Chauhan failed to provide a reasoned opinion explaining why appellant was
disabled for any particular period due to the accepted work injury of left lateral epicondylitis. As
noted, part of appellant’s burden of proof includes submitting rationalized medical evidence
which supports a causal relationship between the alleged disabling condition and the accepted
injury. Other reports from Dr. Chauhan dated November 4, 2010 to March 30, 2012 noted
3

See Fereidoon Kharabi, 52 ECAB 291 (2001).

4

Id.

5

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

6

C.S., Docket No. 08-2218 (issued August 7, 2009).

7

Sandra D. Pruitt, 57 ECAB 126 (2005).

8

As records from the employing establishment indicate that appellant received continuation of pay from April 27
to June 10, 2010, he would be precluded by OWCP regulations from receiving wage-loss compensation from June 6
to 10, 2010, as he may not received wage-loss compensation for a period in which he also received continuation of
pay. See 20 C.F.R. § 10.401(a).

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diagnoses and periods of disability. He noted that appellant was returned to modified duties
without keyboard use. Dr. Chauhan disagreed with Dr. Martinson’s opinion and indicated that
appellant had a significant sprain injury affecting the elbow and he was totally disabled during
the period at issue. In a December 13, 2011 report, he noted that appellant was placed on
temporary total disability from April 15 to November 3, 2010 due to the fracture of the left radial
head. Dr. Chauhan opined that the period of disability given to appellant in relation to the
April 15, 2010 injury was reasonable and he could not have performed modified work because of
the pain. However, he did not provide any medical rationale9 explaining the reasons why
appellant was totally disabled on or after June 9, 2010 because of his accepted left lateral
epicondylitis. Additionally, the Board notes that OWCP did not accept appellant’s claim for a
fractured left radial head. Therefore, these reports are insufficient to meet his burden of proof.
Reports from Dr. Tauber dated April 28, 2011 to January 9, 2012 diagnosed bilateral
carpal tunnel syndrome, bilateral cubital tunnel syndrome and cervical radiculopathy. He opined
that appellant performed repetitive motion duties in the course of employment which caused the
lateral epicondylitis, bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome. On
June 23, 2011 Dr. Tauber indicated that the April 15, 2010 sprain/strain of the elbow had not
resolved; rather, appellant continued to have residuals and by protecting his left arm, aggravated
other conditions of the left upper extremity and caused a consequential injury to the right upper
extremity. He opined that appellant was temporarily totally disabled from June 6 to October 9,
2010 as a result of the injury of April 15, 2010. Although Dr. Tauber noted appellant’s
symptoms of left lateral epicondylitis and advised that appellant was unable to work beginning
June 6, 2010, he did not specifically explain why appellant had any employment-related
disability beginning June 6, 2010 causally related to his accepted left lateral epicondylitis. Other
medical reports submitted by appellant are insufficient as they do not specifically address how
the accepted left lateral epicondylitis caused the claimed disability.
To further develop the claim OWCP referred appellant to Dr. Martinson for a second
opinion examination. It asked her to address the period of disability caused by the accepted
condition. On September 20, 2010 Dr. Martinson opined that appellant’s radial head finding was
not caused by the April 15, 2010 injury as the imaging evidence showed that this was an old
fracture. She opined that there was absolutely no indication that appellant’s recent accepted
elbow injury would have prevented him from returning to the preinjury job. In an October 11,
2010 supplemental report, Dr. Martinson reviewed an EMG and indicated that nothing in the
study showed anything that would preclude him from returning to work at his previous job using
the modifications made for him in the past. She opined that appellant had fully recovered from
the mild elbow injury and was capable of performing his job with no further treatment required.
Dr. Martinson indicated that at the most appellant would have been totally disabled for a
maximum of five days due to the accepted condition.
The Board finds that Dr. Martinson’s reports represents the weight of the medical
evidence and that OWCP properly relied on her reports when they denied appellant’s claim for
compensation for the period of June 6 to October 9, 2010. Dr. Martinson’s opinions are based on
9

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

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proper factual and medical history as she reviewed a statement of accepted facts and his prior
medical treatment and test results. She also related her comprehensive examination findings in
support of her opinion that at best appellant would have been totally disabled from this injury for
a maximum of five days. Dr. Martinson indicated that appellant did not have residuals from the
accepted left lateral epicondylitis. There is no contemporaneous medical evidence of equal
weight supporting total disability from June 6 to October 9, 2010 due to the accepted work
injury.
On appeal, appellant asserts that the matter should be referred to an impartial specialist as
there is a conflict of opinion between Dr. Martinson and Drs. Chauhan and Tauber with regard to
whether he was totally disabled for the period at issue.10 As noted above, Drs. Chauhan or
Tauber failed to provide any medical rationale11 explaining why appellant was totally disabled
on or after June 9, 2010 because of his accepted left lateral epicondylitis.12
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 failed to establish that his disability for the period of
June 6 to October 9, 2010 is causally related to the accepted employment injury.

10

See 5 U.S.C. § 8123.

11

Supra note 9.

12

See John D. Jackson, 55 ECAB 465 (2004) (a simple disagreement between two physicians does not, of itself,
establish a conflict; to constitute a conflict of medical opinion, the opposing physicians’ reports must be of virtually
equal weight and rationale).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 11, 2012 is affirmed.
Issued: January 10, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Ann Arbor, MI, Employer
__________________________________________

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

Docket No. 09-1475
Issued: January 27, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 26, 2009 appellant filed a timely appeal from the April 21, 2009 decision of the
Office of Workers’ Compensation Programs denying her claim for a June 10, 2008 work injury.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on June 10, 2008.
FACTUAL HISTORY
On July 31, 2008 appellant, then a 52-year-old practical nurse, filed a traumatic injury
claim (Form CA-1) alleging that on June 10, 2008 she sustained injury to her back and legs while
assisting a patient who had fallen onto one knee. She stated that she told the patient that he
should stand on the count of three, but that he sat on the floor when she attempted to lift him.

Appellant stopped work on July 19, 2008. Tracie Sockow, appellant’s supervisor, indicated on
the same form that she could not say whether the claimed injury occurred in the performance of
duty because appellant did not report the incident until July 31, 2008 after unrelated disciplinary
action had been instituted against her.1
The employing establishment noted that appellant had been notified on July 3, 2008 of a
proposed removal action for failing to properly care for a patient and for being absent without
leave. On August 29, 2008 appellant was advised that she would be terminated from the
employing establishment. On August 28, 2008 the Office requested that she submit additional
factual and medical evidence in support of her claim.
Appellant submitted an August 27, 2008 report of Dr. Alexandra Theisen, an attending
Board-certified physical medicine and rehabilitation physician, stated that appellant was a poor
historian who reported having slight low back pain for years which was aggravated if she did
something strenuous. She stated that another physician told her that she had arthritis in her back
secondary to carrying twins 20 years ago. Dr. Theisen indicated that appellant then stated that
her current complaints were related to a work incident on June 10, 2008 when a gentleman had
gone down to the ground and she had her arm under his armpit to assist him back up. Appellant
told the patient that he should stand on the count of three, but on the count of three he purposely
sat down. Dr. Theisen stated that upon asking appellant to characterize her back pain prior to
June 10, 2008 she had a hard time describing it. She noted that appellant showed her the report
of a July 28, 2008 magnetic resonance imaging (MRI) scan which indicated that the July 28,
2008 report stated that there was previous MRI scan testing on April 18, 2007 but that the
radiologist did not comment as to whether there was a difference between the two test findings.
Dr. Theisen concluded by stating that appellant had a history of anxiety and low back pain and
that she presented with worsening back pain after trying to move a patient at work. She noted
that she would not alter appellant’s medications as she was not certain how honest appellant was
about her medication intake. Appellant also submitted a July 16, 2008 work excuse slip from a
nurse practitioner which requested that her time off work be extended until her appeal meeting
had occurred.
In an October 1, 2008 decision, the Office denied appellant’s claim that she sustained a
work injury on June 10, 2008. It found that she established the occurrence of a work incident in
that she helped to lift a patient on June 10, 2008, but determined that she did not submit
sufficient medical evidence to establish that she sustained a specific condition due to that
incident.
Appellant submitted various documents: including a December 4, 2006 report from
Dr. Jayson Greenberg, an attending Board-certified otolaryngologist; prescription refill requests
from 2006 to 2008; diagnostic testing from 2007; clinic notes dated between November 2006 and
September 2008 (including those dated June 5, July 7, 16 and 31 and August 15, 2008) of

1

On July 31, 2008 appellant also filed an occupational disease claim (Form CA-2) in which she alleged that she
sustained depression and stress from harassment. This claim was denied under a separate claim file and is not the
subject of the present appeal.

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Dr. Stephen Arntz, an attending Board-certified family practitioner;2 May 2, 2007 and July 23,
2008 reports from Dr. Harish Rawal, an attending Board-certified neurosurgeon; and an
October 8, 2008 report from Dr. Theisen which mentioned the claimed June 10, 2008 injury.
Appellant also submitted a December 5, 2008 statement in which she further described the
June 10, 2008 incident.
Appellant requested a hearing before an Office hearing representative. At the
February 18, 2009 hearing, she testified that she had another back injury at work in 2007 but that
she did not report it. Appellant indicated that prior to 2007 she was taking medication for
intermittent back pain. She testified that she did not immediately report her claimed June 10,
2008 injury because she thought that she would lose her job and she also claimed that she told
Dr. Arntz and Dr. Rawal about her June 10, 2008 injury. Appellant asserted that she did not file
the present claim in response to the discipline actions that the employing establishment was
taking. She asserted that a coworker witnessed her June 10, 2008 injury and alleged that
Ms. Sokoff tended to make allegations that were untrue.
In an April 21, 2009 decision, the Office hearing representative affirmed the Office’s
October 1, 2008 decision as modified to reflect that appellant’s claim for a June 10, 2008 work
injury was denied because she did not establish the occurrence of a work incident on
June 10, 2008. The Office hearing representative found that inconsistencies in appellant’s
reporting of the incident cast doubt on the validity of her claim.
LEGAL PRECEDENT
An employee who claims benefits under the Federal Employee’s Compensation Act3 has
the burden of establishing the occurrence of an injury at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.4 An injury does
not have to be confirmed by eyewitnesses in order to establish the fact that an employee
sustained an injury in the performance of duty, but the employee’s statements must be consistent
with the surrounding facts and circumstances and his or her subsequent course of action.5 An
employee has not met her burden of proof of establishing the occurrence of an injury when there
are such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.6
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury, and failure to obtain medical
treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in
2

In his reports, Dr. Arntz mostly discussed appellant’s feelings of depression and stress and an injury to her
forearm. Appellant later indicated that she sustained a forearm injury on April 23, 2008 which she did not report to
the employing establishment. Dr. Arntz made no mention of a June 10, 2008 injury. In the July 31, 2008 report, he
provided the diagnosis of “chronic low back pain, radiculopathy.”
3

5 U.S.C. §§ 8101-8193.

4

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

5

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

6

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

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determining whether a prima facie case has been established.7 However, an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.8
ANALYSIS
On July 31, 2008 appellant filed a traumatic injury claim alleging that on June 10, 2008
she sustained injury to her back and legs while assisting a patient that had fallen onto one knee.
The Board finds that appellant has not established the occurrence of an employment incident on
June 10, 2008 as alleged and therefore has not established that she sustained a work injury on
that date. There are such inconsistencies in the record as to cast doubt on the validity of
appellant’s claim. Appellant’s account is refuted by strong and persuasive evidence, including
late reporting to the employing establishment and medical personnel.9
Appellant did not file her claim until more than a month and a half after the claimed
June 10, 2008 injury, at which point she had been notified of the proposal to terminate her from
employment for cause.10 Her course of action after the claimed injury was inconsistent. While
appellant claimed that she was injured on June 10, 2008, she did not seek medical attention for
the claimed injury until August 27, 2008 when she saw Dr. Theisen, an attending physical
medicine and rehabilitation physician. Therefore, she did not seek medical care until two and a
half months after the claimed injury. Appellant did not adequately explain this long delay. She
saw Dr. Arntz, an attending family practitioner, on July 7, July 15, July 31, and August 15, 2008,
and Dr. Rawal, an attending neurosurgeon, on July 23, 2008, but neither of these doctors
mentioned that she injured her back on June 10, 2008.11 Moreover, appellant continued to work
regular duty from the date of the claimed injury until she stopped work over a month later on
July 19, 2008. She testified that her claimed injury was witnessed, but no witness statement was
received to verify appellant’s account.
For these reasons, appellant has not established that she sustained a work injury on
June 10, 2008 as alleged and the Office properly denied her claim.

7

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

8

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

9

See supra notes 5 through 8.

10

Moreover, appellant filed the present claim simultaneously with a claim for alleged harassment against the
employing establishment.
11

Appellant alleged that she told both Dr. Arntz and Dr. Rawal about the claimed injury, but there is no evidence
in the record to support this assertion. In a July 31, 2008 report, Dr. Arntz provided the diagnosis of “chronic low
back pain, radiculopathy. However, he made no mention of a June 10, 2008 injury in any of his reports and the
record reveals that appellant had degenerative disease of the back and experienced back pain for some time prior to
June 10, 2008.

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on June 10, 2008.
ORDER
IT IS HEREBY ORDERED THAT the April 21, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 27, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF THE ARMY,
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Fort Jackson, SC, Employer
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___________________________________________ )
J.S., Appellant

Appearances:

Docket No. 07-633
Issued: June 8, 2007

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

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

JURISDICTION
On January 3, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated June 30 and November 1, 2006 which denied
appellant’s claim for a neck injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue on appeal is whether appellant has met her burden of proof in establishing that
she sustained a neck injury in the performance of duty.

FACTUAL HISTORY
On April 27, 2007 appellant, then a 53-year-old medical support assistant, filed a
traumatic injury claim alleging that on the same date a coworker shook her chair causing her to
experience neck pain. She stopped work on April 27, 2006 and returned on May 4, 2006.1
Appellant was treated in the emergency room on April 27, 2006 for neck pain and spasm.
She reported that she was shaken in her chair by a coworker. Appellant was treated by Dr. Betty
Varghese, a Board-certified family practitioner, who noted that appellant’s history was
significant for neck fusion, bilateral shoulder surgery, carpal tunnel release and low back
surgery. Dr. Varghese diagnosed cervicalgia and noted that appellant’s muscle spasms in her
neck were most likely secondary to trauma. She advised that appellant could return to work on
May 4, 2006.
By letter dated May 17, 2006, the Office asked appellant to submit additional information
including a comprehensive medical report from her treating physician which included a reasoned
explanation as to how the specific work factors or incidents identified by her had contributed to
her claimed back injury.
Appellant submitted an undated statement and indicated that her coworker, Craig Haught,
was aware of her neck condition and recent neck fusion and proceeded to shake her chair on
approximately 12 to 13 occasions during the month of April which caused additional injury to
her neck. A magnetic resonance imaging (MRI) scan of the cervical spine dated May 1, 2006
revealed a cervical fusion from C4 to C7 without complication and a right parecentral
disc/osteophyte complex at C3-4. Appellant submitted a report from Dr. Brett C. Gunter, a
Board-certified neurosurgeon, dated May 3, 2006, who noted that on May 4, 2005 he performed
a complete cervical corpectomy at C5, partial surgical corpectomy at C4 and C6 and an anterior
cervical discectomy at C6-7. Appellant reported that her coworker shook her chair numerous
times in April causing right neck, shoulder and arm pain. Dr. Gunter diagnosed large central and
right parecentral disc herniation at C3-4 and recommended a corpectomy at C3-4.
The employing establishment submitted a statement from Mr. Haught, appellant’s
coworker, dated May 1, 2006, who noted that he and appellant enjoyed a friendly relationship
and he did on occasion gently shake her chair. Mr. Haught noted that appellant never indicated
that her neck hurt as a result of this activity.
In a decision dated June 30, 2006, the Office denied appellant’s claim on the grounds that
the medical evidence was not sufficient to establish that her condition was caused by the factors
of employment as required by the Federal Employees’ Compensation Act.2
In an undated statement, appellant requested reconsideration and again asserted that
Mr. Haught shook her chair throughout the month of April 2006 causing her neck pain.
1

Appellant filed an occupational disease claim on September 24, 1997 which was accepted by the Office for
bilateral carpal tunnel syndrome.
2

5 U.S.C. §§ 8101-8193.

2

Appellant submitted a report from Dr. Subhash J. Patel, a Board-certified orthopedist, dated
February 28, 2000, who treated appellant for bilateral carpal tunnel syndrome. An MRI scan of
the cervical spine dated February 1, 2005 revealed central C3-4 and C5-6 disc osteophyte
complexes along with a right paracentral C6-7 disc osteophyte complex which produced
significant cord mass effect and broad-based diffuse disc protrusions at C4-5. Appellant
submitted a report from Dr. Gunter dated February 15, 2005, who treated her for spinal cord
compression. She presented with right-sided neck pain which radiated into her right arm.
Dr. Gunter diagnosed cervical spinal stenosis as a result of a narrow spinal canal, a component
which was congenital and degenerative cervical disc disease. In an operative report dated
March 4, 2005, he performed a complete cervical corpectomy of C5, partial cervical corpectomy
of C4 and C6 and an anterior cervical discectomy at C6-7, decompression of the cervical spinal
cord, anterior interbody arthrodesis, C4-5, C5-6 and C6-7, anterior interbody device placement at
C4-5 and C5-6 and anterior interbody arthrodesis at C4-5, C5-6 and C6-7. Dr. Gunter diagnosed
severe cervical spinal stenosis, cervical spondylosis at C4-5, C5-6 and C6-7 and status post
decompression. Also submitted was a report from Dr. Christopher T. McCarty, a Board-certified
orthopedist, dated February 21, 2005, who performed a cervical myelogram which revealed no
obvious high grade central spinal stenosis. Appellant submitted x-rays of the cervical spine
dated April 5 and May 31, 2005 which revealed status post corpectomy with strut graft in place
at C5 and an anterior fusion at C6-7. An x-ray of the cervical spine dated August 30, 2005
revealed status post corpectomy at C5 with strut graft in place and no change in vertebral body
alignment. An x-ray of the cervical spine dated November 22, 2005 revealed a stable
postoperative radiographic appearance of the cervical spine. Also submitted were reports from
Dr. Thomas Ewart, a Board-certified orthopedist, dated February 2 to March 21, 2006, who
treated appellant for carpal tunnel syndrome. An x-ray of the cervical spine dated May 1, 2006
revealed a radiographically stable cervical spine with no evidence of subluxation. A report from
Dr. Benjamin Massey, a Board-certified internist, dated May 25, 2006, noted treating appellant
for abdominal pain secondary to marked hypertriglycerideia.
In a decision dated November 1, 2006, the Office denied modification of the prior
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
3

Gary J. Watling, 52 ECAB 357 (2001).

3

established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.5
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.7
ANALYSIS
The Office properly found that the April 27, 2006 incident occurred as appellant alleged.
The Board finds, however, that the medical evidence is insufficient to establish that appellant
sustained a neck injury causally related to the April 27, 2006 incident.
Appellant submitted emergency room records dated April 27, 2006 where she was treated
by Dr. Varghese for neck pain and spasm. She reported that her neck pain began after a
coworker shook her chair. Dr. Varghese indicated that appellant’s history was significant for
neck fusion, bilateral shoulder surgery, carpal tunnel release and low back surgery. She
diagnosed cervicalgia and noted that appellant’s muscle spasms in her neck were “most likely”
secondary to trauma. However, at best, this report provides only speculative support for causal
relationship as the physician qualifies her support by noting that the shaking incident at work
“most likely” caused her condition.8 Dr. Varghese provided no medical reasoning to support her
opinion on causal relationship. In light of appellant’s prior history of neck and shoulder
conditions, the need for medical rationale explaining why the employment incident caused or

4

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

5

Id.

6

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

7

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
8

See Jennifer Beville, 33 ECAB 1970 (1982) (where the Board found a physician’s statement that appellant’s
complaints “could have been” related to an employment incident to be speculative and of limited probative value).

4

aggravated her diagnosed condition is especially important. Therefore, this report is insufficient
to meet appellant’s burden of proof.
Appellant submitted a report from Dr. Gunter dated February 15, 2005, who treated
appellant for cervical spinal stenosis and on March 4, 2005 performed cervical surgery.
However, this report is of no value in establishing the claimed neck injury since it predates the
time of the claimed injury of April 27, 2006. Another report from Dr. Gunter dated May 3,
2006, noted appellant’s history was significant for a complete cervical corpectomy at C5, partial
surgical corpectomy at C4 and C6 and an anterior cervical discectomy at C6-7 which was
performed on March 4, 2005. He related that appellant reported that her coworker shook her
chair numerous times in April 2006 causing right neck, shoulder and arm pain. Dr. Gunter
diagnosed large central and right parecentral disc herniation at C3-4 and recommended a
corpectomy at C3-4. However, he appears merely to be repeating the history of injury as
reported by appellant without providing his own opinion regarding whether appellant’s condition
was work related. To the extent that Dr. Gunter is providing his own opinion, the doctor failed
to provide a rationalized opinion regarding the causal relationship between appellant’s condition
and the factors of employment believed to have caused or contributed to such condition.9
The remainder of the medical evidence either predates the claimed injury or does not
offer an opinion on the causal relationship between appellant’s job and her diagnosed neck
condition. For this reason, this evidence is not sufficient to meet appellant’s burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.10
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a neck injury causally related to her April 27, 2006 employment incident.

9

Jimmie H. Duckett, supra note 7.

10

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

5

ORDER
IT IS HEREBY ORDERED THAT the November 1 and June 30, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 8, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


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

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Docket No. 11-1714
Issued: May 23, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On July 18, 2011 appellant, through her representative, filed a timely appeal from a
June 6, 2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for further merit review of her claim. The Board assigned Docket No.
11-1935 to this appeal. As more than 180 days elapsed from the last merit decision of
December 28, 2010 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 only has jurisdiction
over the nonmerit decision.
On February 10, 2010 appellant, then a 49-year-old city carrier, filed an occupational
disease claim alleging that as a result of excessive walking in her federal employment, she
developed tendinitis. Evidence submitted included medical notes by Dr. Brett Martin, an
osteopath, dated April 5 through May 7, 2010.
By decision dated June 2, 2010, OWCP denied appellant’s claim as the medical evidence
did not demonstrate that the claimed medical condition was related to the established
employment factors.

1

5 U.S.C. § 8101 et seq.

A hearing was held, at appellant’s request, on October 13, 2010. After the hearing,
appellant submitted a November 22, 2010 report by Dr. Martin. Dr. Martin reported that
appellant had been under his care since April 5, 2010 and that he rated appellant for hip pain
which began on January 23, 2010 that was correlated to a change in her work position from that
of a clerk to that of a walking route. He noted that appellant was diagnosed with femoral
acetabular impingement (FAI) with associated degenerative labral tear. Dr. Martin stated that
appellant had continued to try to work her walking route job, but had continued difficulty with
the hip. He noted that appellant’s job required prolonged walking and climbing of stairs, both
which can increase stress to the labrum, which can produce inflammation and resulting pain.
Dr. Martin further noted that on multiple reevaluations, appellant had been consistent with her
examination isolating her difficulties to her FAI and labral tear and that she consistently
indicated poor core stability as a result of and also contributing to her current complaints.
By decision dated December 28, 2010, the hearing representative affirmed the June 2,
2010 decision denying appellant’s claim. The hearing representative noted that although the
record was left open for the submission of additional evidence for 30 days, no additional
evidence was received.
On March 2, 2011 appellant, through her counsel, requested reconsideration. In support
thereof, appellant’s counsel submitted return to work notes dated February 21 and May 23, 2011
wherein Dr. Martin stated that she could return to work with restrictions.
By decision dated June 6, 2011, OWCP declined appellant’s request for reconsideration
without conducting a merit review.
OWCP denied appellant’s claim as it found that the medical evidence did not establish
that appellant sustained a medical condition causally related to the accepted factors of her federal
employment. As the Board does not have jurisdiction to review the merits of the case, the sole
issue on appeal is whether OWCP properly denied appellant’s timely filed reconsideration
request.
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
of an OWCP 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.4 When a claimant fails to

2

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

2

meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.5
In requesting reconsideration, appellant did not argue that OWCP erroneously interpreted
a specific point of law nor did she advance a relevant legal argument not previously considered.
However, the Board notes that the record contains a report that was not previously considered by
OWCP, i.e., the November 22, 2010 report by Dr. Martin. In the reconsideration decision,
OWCP found that this report was repetitive in nature and previously considered. Although this
report was before OWCP at the time the hearing representative issued her decision, the hearing
representative did not address this report. In fact, she incorrectly indicated that no new evidence
had been received after the hearing. Furthermore, Dr. Martin further discussed his treatment of
appellant and the relationship between appellant’s FAI and her work activities. In this regard,
Dr. Martin stated that appellant’s job required prolonged walking and climbing stairs which
could lead to stress of the labrum, resulting in inflammation accompanied by pain. The Board
concludes that his report constitutes pertinent new and relevant evidence, with regard to causal
relationship, that was not considered by OWCP. The Board finds, therefore, that OWCP abused
its discretion by denying appellant’s request for reconsideration.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 6, 2011 is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: May 23, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5

Id. at § 10.608(b).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Lauderdale, FL, Employer
__________________________________________

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Appearances:
Joanne Wright, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1313
Issued: January 5, 2012

Case Submitted on the Record

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

JURISDICTION
On May 10, 2011 appellant, through her representative, filed a timely appeal from a
March 1, 2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Because more than 180 days elapsed since the most recent merit decision of April 22, 2010 to the
filing of this appeal on May 10, 2011, the Board lacks jurisdiction to review the merits of the
claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 18, 2009 appellant, then a 49-year-old carrier, filed an occupational
disease claim alleging that his cervical condition worsened while performing his letter carrier
1

5 U.S.C. §§ 8101-8193.

duties. He became aware of his condition on March 6, 2004 and realized that it was causally
related to his work duties on July 2, 2008. OWCP accepted the claim for aggravation of cervical
sprain and strain and aggravation of cervical radiculitis.2 Appellant stopped work on January 27,
2009 and returned to light duty on April 9, 2009.
Appellant was treated by Dr. Lucky Flores, a Board-certified family practitioner. In duty
status reports dated March 22 to July 22, 2009, Dr. Flores diagnosed cervical sprain with
radiculitis and returned appellant to work full time with restrictions. He opined that the
cumulative effect of violations of appellant’s medical restrictions was the primary cause of the
aggravation of his diagnosed cervical condition. Dr. Flores diagnosed cervical sprain/strain,
cervical radiculopathy, cervical spondylosis and cervical disc herniation. He recommended
physical therapy and returned appellant to work with restrictions. Appellant submitted a
magnetic resonance imaging (MRI) scan dated March 25, 2009, which revealed disc herniations
at C6-7, C5-6, C2-3, C4-5 and mild cervical spondylosis.
On October 29, 2009 appellant filed a Form CA-7, claim for compensation, for the period
February 18 to April 8, 2009. The employing establishment submitted a CA-7a, time analysis
form.
In a February 4, 2009 report, Dr. Kevin McGrath, a chiropractor, diagnosed exacerbation
of chronic cervical work-related injury, cervicalgia, myospasm and somatic dysfunction. In
notes dated February 6 to December 4, 2009, he treated appellant for stiffness and pain in the
upper back at C5-6. Dr. McGrath performed spinal adjustments on the cervical spine,
ultrasound, infrared heat and therapeutic exercise. In work status reports dated November 5
to 24, 2009, he diagnosed cervical sprain and strain and returned appellant to work light duty.
On November 20, 2009 OWCP requested that appellant submit additional information
regarding his claim for compensation. It requested that he submit a medical narrative addressing
how he was totally disabled due to his accepted condition for the period claimed.
Appellant submitted progress notes from Dr. McGrath dated November 16, 2009 to
January 20, 2010 who treated him for pain and stiffness in the right shoulder and neck.
Dr. McGrath diagnosed chronic cervical radiculopathy and left shoulder sprain/strain and
returned appellant to work light duty. Also submitted was a November 20, 2009 prescription
note from Dr. Flores who diagnosed cervical sprain, cervical radiculitis and trapezius sprain. On
December 16, 2009 Dr. Flores noted that appellant was undergoing a physical therapy treatment
plan and would be totally disabled until April 8, 2009.
By decision dated February 1, 2010, OWCP denied appellant’s claim for compensation
for the period February 18 to March 17, 2009 finding that the medical evidence did not establish
that his total disability was due to his accepted work injury. It found that Dr. McGrath, a

2

Appellant filed a claim for a cervical injury which occurred on March 6, 2004. OWCP accepted appellant’s
claim for aggravation of cervical degenerative disc disease. This claim was consolidated with the current claim
before the Board.

2

chiropractor, could not be considered as a physician because he did not diagnose a spinal
subluxation demonstrated by x-ray.3
On February 16, 2010 appellant requested reconsideration and submitted a prescription
slip from Dr. Flores previously of record. On February 10, 2010 Dr. Flores reviewed the medical
records from Dr. McGrath’s office and agreed with his assessment of appellant’s condition and
treatment plan. He noted that appellant was totally disabled from February 4 to April 8, 2009.
On February 10, 2010 Dr. Flores diagnosed cervical sprain and referred appellant for physical
therapy evaluation and treatment. Appellant submitted progress notes from Dr. McGrath dated
December 28, 2009 to February 10, 2010, who treated him for neck pain, left-sided
radiculopathy and left shoulder weakness.
In a decision dated April 22, 2010, OWCP denied modification of the February 1, 2010
decision.
On December 13, 2010 appellant requested reconsideration. On December 10, 2010
appellant, through counsel, noted that he initially sought treatment from Dr. Miriam Feliz;
however, she was not accepting new patients. He referenced intake notes from Dr. Feliz who
listed appellant’s symptoms of tenderness on palpitation of the trapezius, muscle tightness and
left shoulder pain. Appellant referenced a January 23, 2009 report of Dr. Feliz, indicating that it
was attached to his reconsideration request; however, no such report was submitted. Counsel
advised that appellant subsequently sought treatment from Dr. Flores who was listed on an
OWCP website. Appellant asserted that Dr. Flores found him to be totally disabled from
February 18 to March 17, 2009 even though he was showing improvement from physical therapy
as authorized by OWCP on February 4, 2009. Appellant asserted that Dr. Flores provided a
reasonable opinion with regard to his disability which was not speculative.
In a March 1, 2011 decision, OWCP denied appellant’s reconsideration request finding
that the request was insufficient to warrant review of the prior decision.
LEGAL PRECEDENT
Under section 8128(a) of FECA,4 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or

3

See 5 U.S.C. § 8101(2).

4

5 U.S.C. § 8128(a).

3

“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”5
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.6
ANALYSIS
On April 22, 2010 OWCP denied modification of a February 1, 2010 decision denying
appellant’s claim for compensation for total disability for the period February 18 to
March 17, 2009. It found that the medical evidence did not establish that appellant’s total
disability was due to his accepted injury. On March 1, 2011 OWCP denied appellant’s
December 10, 2010 reconsideration request, without a merit review. The issue is whether
appellant met any of the requirements of 20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen
the case for review of the merits of the claim.
The Board does not have jurisdiction over the April 22, 2010 OWCP decision. In his
December 10, 2010 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not identify a specific point of
law or show that it was erroneously applied or interpreted. Appellant did not advance a new and
relevant legal argument. He asserted that the opinion of Dr. Flores was not speculative and
supported total disability for the period claimed. Appellant noted originally seeking treatment
from Dr. Feliz and referenced intake notes from him but no such reports are presently of record.
Appellant subsequently sought treatment from Dr. Flores who advised that he was totally
disabled from work from February 18 to March 17, 2009. He contended that OWCP authorized
physical therapy as of February 4, 2009. Appellant’s general statements and allegations are not
sufficient to establish that OWCP erroneously applied or interpreted a point of law or advance a
point of law or fact not previously considered by OWCP. Consequently, appellant is not entitled
to a review of the merits of his claim based on the first and second above-noted requirements
under section 10.606(b)(2).
The underlying issue in this case, whether appellant had disability during the period of
February 18 to March 17, 2009 causally related to his accepted work injury, is a medical issue
which must be addressed by relevant medical evidence.7 A claimant may be entitled to a merit
review by submitting new and relevant evidence, but appellant did not submit any new and
relevant medical evidence in this case. Rather, he submitted business cards from his treating
physicians, his chiropractor and an acupuncturist. This material does not constitute new and
relevant evidence.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.608(b).

7

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

4

submit relevant and pertinent evidence not previously considered.
§ 10.608, OWCP properly denied merit review.

Pursuant to 20 C.F.R.

On appeal appellant reiterated his assertion that he was treated by Dr. McGrath without
knowledge that he was a chiropractor or that he was not an appropriate physician to render
medical treatment under FECA. He indicated that Dr. McGrath was a doctor who was listed
with OWCP as a caregiver and that he believed he was an approved doctor. Appellant indicated
that he was subsequently treated by Dr. Flores who reviewed Dr. McGrath’s notes and supported
his disability from February 18 to March 17, 2009. The Board notes, however, that it only has
jurisdiction over whether OWCP properly denied a merit review of the claim. As explained,
appellant did not submit any evidence or argument in support of his reconsideration request that
warrants reopening of his claim for a merit review under 20 C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the March 1, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 5, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5