United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Roseburg, OR, Employer
__________________________________________

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

Docket No. 08-2482
Issued: May 18, 2009

Case Submitted on the Record

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

JURISDICTION
On September 17, 2008 appellant filed a timely appeal from a nonmerit decision of the
Office of Workers’ Compensation Programs dated August 12, 2008 and a merit decision dated
June 27, 2008. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a right ankle injury in the performance of
duty on March 7, 2008; and (2) whether the Office properly refused to reopen appellant’s case for
reconsideration of her claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
Appellant, a 39-year-old nursing assistant, filed a claim for benefits on March 13, 2008,
alleging that she experienced pain in her right ankle on March 7, 2008 while lifting a patient who

had fallen from his wheelchair into a Hoyer lift. She submitted a March 8, 2008 report from
Dr. James Daskalos, an osteopath, stated:
“[Appellant] apparently was at work last night at [the employing establishment]
when she was squatting doing some type of lifting and felt and heard a sudden
severe popping in her right ankle and foot area. She had immediate onset of acute
pain. [Appellant] is unable to bear weight. She initially was seen at [the
employing establishment] [e]mergency [r]oom. Per patient’s report, x-rays were
taken at that time, but [appellant] is uncertain of the outcome. She is here today
because she is having marked increase in pain. [Appellant] is unable to sleep.
She is unable to place any weight on the ankle.
“On exam[ination] today [appellant] is alert, cooperative. She did appear in
moderate distress. Initially [appellant] was in a right ankle air cast splint. She is
having a lot of pain in the splint. The splint was removed. [Appellant] was found
to have significant lateral foot swelling without obvious evidence of ecchymosis
as yet. She had a lot of tenderness over the lateral malleolus as well as into the
joint line medially. [Appellant] had no gross instability, but her ankle was painful
and was difficult to do a full and adequate evaluation. There was no forefoot
tenderness. There was no tenderness of the knee region or upper leg.
After an initial evaluation it was felt that x-rays were indicated. These were done.
I found no evidence of acute fracture, however there was evidence of some old
calcific deposits, particularly medial. There did not appear to be any acute
ligamentous tear or signs of any bony disease.”
Dr. Daskalos diagnosed acute ankle sprain with significant ligamentous stretching. He
advised that appellant was unable to work due to the significance of her pain and her inability to
bear weight.
In a March 8, 2008 report from appellant’s family clinic, it was noted that she had injured
her right ankle and had heard a popping sound in her ankle while lifting a patient on
March 7, 2008.
In reports dated March 16 and 17, 2008 report, Dr. Mathew Driver, a general surgeon and
specialist in direct patient care, stated that he had treated appellant for right ankle pain. He stated
that appellant had sustained an injury consistent with either hematoma or a small inflammatory
fluid sac. Dr. Driver diagnosed right Achilles tendinitis.
Dr. Daskalos submitted progress reports dated March 20 and 24, 2008, which he
essentially reiterated his previous findings and conclusions. In an April 9, 2008 report, he noted
that appellant had exacerbated her right ankle injury the day before in a twisting incident.
In a report dated March 19, 2008, Dr. Thomas H. Thompson, Board-certified in
orthopedic surgery, stated:
“[Appellant’s] history is that of injuring her right ankle when she was lifting a
patient using a Hoyer lift at [the employing establishment] on
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March 7, 2008. She has worked there as a [nursing assistant] for one year.
[Appellant] complains of generalized pain about the anterior, lateral and posterior
right ankle and, more specifically along the Achilles tendon radiating up into the
gastrocnemius. When last seen by Dr. Driver she had had an ultrasound of the
Achilles area that I will describe below. He had released [appellant] for light[]duty work and she was told she would have to sit in a wheelchair and not put
weight on her right lower extremity.”
Dr. Thompson noted minimal swelling of the right ankle on examination, with tenderness
across the anterior ankle and the anterior talofibular ligament area. He stated that appellant had
trouble actively dorsiflexion the ankle, although he was able to passively dorsiflexion the ankle
above neutral with no crepitus noted. Dr. Thompson stated that appellant was tender along the
right Achilles tendon up into the gastrocnemius. He related that appellant’s Achilles tendon was
palpably intact and not swollen, with no ecchymosis or swelling in the hindfoot area.
Dr. Thompson stated:
“I reviewed x-rays of the ankle from March 8, 2008, which demonstrate
preexisting degenerative changes with anterior spurring at the distal tibia, traction
spur at the Achilles insertion on the calcaneus and what appears to be soft tissue
swelling about the lateral ankle. Interestingly, [appellant] had a prior x-ray of her
right ankle following an ankle injury in July 2007 that was done at [the employing
establishment] and that is here for my review. It is identical to the x-ray from
March 8, 2008. The ultrasound appears to demonstrate a small cyst adjacent to
the Achilles tendon and according to Dr. Driver’s report the cyst is approximately
one centimeter in diameter medial to the Achilles tendon. I think it is an
incidental finding and not related to [appellant’s] present symptoms.”
Dr. Thompson diagnosed a minor right ankle sprain, morbid obesity and preexisting
degenerative arthritis of the right ankle. He advised appellant that her overall weight status put
her joints, particularly the lower extremity joints, at significant risk for arthritis and failure over
time. Dr. Thompson opined that appellant’s overall condition was likely to progressively
deteriorate over time and stated that the primary cause of her ankle condition was attributable to
weight rather than work activities.
On May 22, 2008 the Office advised appellant that it required additional factual and
medical evidence to determine whether she was eligible for compensation benefits. It further
requested that appellant describe in detail how the injury occurred and when she initially sought
medical treatment for her alleged employment injury. The Office informed her that she had 30
days to submit the requested information. Appellant did not respond to this request within 30
days.
By decision dated June 27, 2008, the Office denied appellant’s claim, finding that she
failed to submit sufficient evidence to support her claim, that she sustained an injury in the
performance of duty on March 7, 2008.
On July 11, 2008 appellant requested reconsideration.

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Appellant submitted a July 8, 2008 report from Dr. Driver in which he essentially
reiterated his previous findings and conclusions. She related that she was much improved and
believed that she was entirely capable of full use of the ankle; she demonstrated full, active range
of motion, full strength and displayed no visible bruising or swelling in her right ankle.
Dr. Driver indicated that appellant’s right ankle sprain had resolved and released her to return to
work without restrictions.
By decision dated August 12, 2008, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require it to review its prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the 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.2 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.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
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.4 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.5
In order to determine whether an employee actually sustained an injury in the performance
of her duty, the Office begins with an analysis of whether fact of injury has been established.
Generally, fact of injury consists of two components, which must be considered, in conjunction
with one another.6
The first component to be established is that the employee actually experienced the
employment incident, which is alleged to have occurred. An alleged work incident does not have
to be confirmed by eyewitnesses in order to establish that an employee sustained an injury in the
1

5 U.S.C. § 8101 et seq.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

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

5

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

6

Caroline Thomas, 51 ECAB 451 (2000).

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performance of duty, but the employee’s statement must be consistent with the surrounding facts
and circumstances and her subsequent course of action. A consistent history of the injury as
reported on medical reports, to the claimant’s supervisor and on the notice of injury can also be
evidence of the occurrence of the incident. 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 cast doubt on an employee’s statements in
determining whether she has established a prima facie case. The employee has the burden of
establishing the occurrence of the alleged injury at the time, place and in the manner alleged, by a
preponderance of the reliable, probative and substantive evidence.7 An employee has not met this
burden when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim.8 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.9
ANALYSIS -- ISSUE 1
In the present case, the Office found that the record contained insufficient, conflicting and
inconsistent evidence which cast doubt on whether the claimed event occurred at the time, place
and in the manner alleged. It noted that, although appellant stated on her Form CA-1 that she
injured himself on March 7, 2008 while lifting a patient into a Hoyer lift, she told a claims
examiner during a June 5, 2008 telephone conversation that she twisted her ankle at home. The
claims examiner also noted that the Office did not receive a response to the May 22, 2008
development letter and stated that the reports from Dr. Daskalos did not contain an accurate
history.
The Board, however, finds that appellant presented sufficient evidence to establish that the
incident to her right ankle occurred at the time, place and in the manner alleged.10 Although she
did not provide a witness statement from a person who observed the March 7, 2008 incident first
hand, she sought medical attention from Dr. Daskalos and from her family clinic one day after the
alleged March 7, 2008 work incident. Further, all of the accounts of the March 7, 2008 work
incident appellant submitted are consistent with the statement she made in her March 13, 2008
Form CA-1, on which she asserted that she experienced pain in her right ankle on March 7, 2007
while lifting a patient who had fallen from his wheelchair into a Hoyer lift. The March 8, 2008
reports from Dr. Daskalos and appellant’s family clinic all indicated that she was at work the
previous night when she was squatting, doing some type of lifting and felt a severe popping and
twisting in her right ankle and foot area. Dr. Thompson stated in his March 19, 2008 report that
appellant injured her right ankle when she was lifting a patient using a Hoyer lift at the
employing establishment on March 7, 2008.

7

John J. Carlone, supra note 4.

8

Louise F. Garrett, 47 ECAB 639, 643-644 (1996).

9

Constance G. Patterson, 41 ECAB 206 (1989); Thelma S. Buffington, 34 ECAB 104 (1982).

10

Id.

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The Board finds that the totality of this evidence, which includes three reports indicating
that appellant was examined and treated for a March 7, 2008 right ankle injury one day after the
alleged employment incident, is sufficient to establish that she sustained the incident in the
performance of duty on March 7, 2008. The claims examiner’s statement that appellant told him
she twisted her right ankle while at home is of diminished probative value because the record does
not contain a verified transcript of the June 5, 2008 telephone conversation between appellant and
the claims examiner. The record contains no contemporaneous factual evidence indicating that the
claimed March 7, 2008 work incident did not occur as alleged.11 Under the circumstances of this
case, therefore, the Board finds that appellant’s allegations have not been refuted by sufficiently
strong or persuasive evidence. The Board finds that the evidence of record is sufficient to establish
that the incident in which appellant injured her right ankle on March 7, 2008 occurred at the time,
place and in the manner alleged.
The Board finds, however, that appellant failed to submit rationalized medical opinion
evidence to sufficiently describe or explain the medical process by which the March 7, 2008 work
incident would have been competent to cause the claimed injury. In this regard, the Board has
held that the mere fact that a condition manifests itself during a period of employment does not
raise an inference that there is a causal relationship between the two.12
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 is
the belief that his condition was caused, precipitated or aggravated by his employment sufficient
to establish causal relationship.13 Causal relationship must be established by rationalized
medical opinion evidence and she failed to submit such evidence. Appellant submitted reports
from Drs. Daskalos, Driver and Thompson. Dr. Daskalos submitted several reports from March
and April 2008 in which he stated findings on examination, noted appellant’s complaints of pain,
diagnosed acute ankle sprain with significant ligamentous stretching and placed appellant on
temporary disability from work. Dr. Driver stated that he treated appellant for right ankle pain,
advised that she had sustained an injury consistent with either hematoma or a small inflammatory
fluid sac and diagnosed right Achilles tendinitis. In his March 19, 2008 report Dr. Thompson
reviewed the medical record and the history of injury and noted minimal swelling and tenderness
of the right ankle on examination. Dr. Driver reviewed x-rays of the ankle from March 8, 2008
which demonstrated preexisting degenerative changes with anterior spurring at the distal tibia,
traction spur at the Achilles insertion on the calcaneus and soft tissue swelling about the lateral
ankle, he stated that an ultrasound appeared to demonstrate a small cyst adjacent to the Achilles
tendon. Dr. Thompson diagnosed right ankle sprain and concluded that the primary cause of her
ankle condition was obesity as opposed to work activities.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided the care of analysis manifested and the medical rationale expressed
11

See Thelma Rogers, 42 ECAB 866 (1991).

12

See Joe T. Williams, 44 ECAB 518, 521 (1993).

13

Id.

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in support of stated conclusions.14 Although the physicians of record did present diagnoses of
appellant’s condition, right ankle sprain, right Achilles tendinitis, they did not indicate whether
these conditions were causally related to the March 7, 2008 employment injury. There is no
indication in the record, therefore, that the diagnosed conditions were work related. Appellant
failed to provide a rationalized, probative medical opinion relating her current condition to any
factors of her employment. Therefore, she failed to provide a medical report from a physician
that the work incident of March 7, 2008 caused or contributed to the claimed left shoulder injury.
The Office advised appellant of the evidence required to establish her claim. However,
appellant failed to submit such evidence. She did not provide a medical opinion which describes
or explains the medical process through which the March 7, 2008 work accident would have
caused the claimed injury. Accordingly, appellant did not establish that she sustained a right
ankle injury in the performance of duty. The Office properly denied her claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
Pursuant to 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or
her claim by showing that the Office erroneously applied or interpreted a specific point of law;
by advancing a relevant legal argument not previously considered by the Office; or by submitting
relevant and pertinent evidence not previously considered by the Office.15 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.16
ANALYSIS -- ISSUE 2
In the present case, appellant has not shown that the Office erroneously applied or
interpreted a specific point of law, she has not advanced a relevant legal argument not previously
considered by it and she has not constituted relevant and pertinent evidence not previously
considered by the Office. The evidence appellant submitted is not pertinent to the issue on
appeal. The Board has held that the submission of evidence which does not address the
particular issue involved in the case does not constitute a basis for reopening the claim.17 The
July 8, 2008 report from Dr. Driver indicated that appellant’s right ankle sprain had fully
resolved and contains no opinion on causal relationship to the accepted injury. Appellant has not
submitted any new medical evidence which addresses the relevant issue of whether her claimed
right ankle sprain was causally related to factors of her federal employment. Her reconsideration
request failed to show that the Office erroneously applied or interpreted a point of law nor did it
advance a point of law or fact not previously considered by the Office. It did not abuse its
discretion in refusing to reopen appellant’s claim for a review on the merits.

14

See Anna C. Leanza, 48 ECAB 115 (1996).

15

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

16

Howard A. Williams, 45 ECAB 853 (1994).

17

See David J. McDonald, 50 ECAB 185 (1998).

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CONCLUSION
The Board finds that appellant has failed to establish that she sustained a right ankle
injury in the performance of duty. The Board finds that the Office properly refused to reopen
appellant’s case for reconsideration on the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 12 and June 27, 2008 decisions of the
Office of Workers’ Compensation Programs be affirmed as modified.
Issued: May 18, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Clive, IA, Employer
__________________________________________

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

Docket No. 13-1456
Issued: November 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 31, 2013 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated December 6, 2012. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than one percent impairment to his left leg.
FACTUAL HISTORY
Appellant, a 61-year old letter carrier, injured his left leg in April 2011 when he turned to
catch a loose dog while delivering mail. He filed a claim for benefits on April 27, 2011, which
OWCP accepted for rupture of the left quadriceps tendon.

1

5 U.S.C. § 8101 et seq.

Appellant underwent x-ray testing on April 21, 2011 which showed a 13 millimeter,
calcified loose body in the suprapatellar bursa. The sunrise view revealed lateral subluxation of
the patella and narrowing of the lateral patellofemoral joint space with osteoarthritis.
On April 22, 2011 Dr. David A. Vittetoe, Board-certified in orthopedic surgery,
performed arthroscopic surgery to repair appellant’s ruptured left quadriceps tendon. The
procedure was authorized by OWCP.
In an August 23, 2012 report, Dr. Vittetoe advised that appellant ambulated with a
nonantalgic gait. On examination of the left leg, motor and sensory examinations are distally
intact and appellant’s foot was well perfused. Dr. Vittetoe noted a mild effusion of the left leg
and stated that he had a range of motion of 0 degrees to 120 degrees. He has 00 extensor lag and
his knee was stable to varus and valgus stress testing.
On September 24, 2012 appellant filed a claim for a schedule award based on a partial
loss of use of his left leg.
In a report dated November 9, 2012, Dr. Daniel D. Zimmerman, an OWCP medical
adviser, reviewed Dr. Vittetoe’s August 23, 2012 report. He rated a one percent impairment of
the left leg pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (sixth edition) (A.M.A., Guides). Dr. Zimmerman stated that, under
Table 16-3 at page 509 of the A.M.A., Guides,2 Knee Regional Grid, Lower Extremity
Impairments, the section pertaining to muscle/tendon impairments, appellant’s ruptured
quadriceps tendon yielded a Class 1 rating for strain, which had a default impairment of one to
three percent, with a grade C default value of two percent left lower extremity impairment based
on “palpatory findings and/or radiographic findings.”3 Utilizing Section 16.3a, the Adjustment
Grid, Functional History at Table 16-6, page 516 of the A.M.A., Guides,4 functional history
adjustment for the lower extremities, Dr. Zimmerman determined that appellant had a functional
history grade modifier of zero, noting that he had a nonantalgic gait and did not wear modified
footwear. With regard to physical examination, he assigned a grade modifier of one based on the
finding of mild effusion, pursuant to Table 16-7, Section 16.3b, page 517 of page 509 of the
A.M.A., Guides. Dr. Zimmerman found no grade modifier for clinical studies pursuant to
Section 16.3c and Table 16-8, page 519 of the A.M.A., Guides5 as the x-ray changes were used
to place the diagnostic criteria in Class 1.
Dr. Zimmerman applied the net adjustments from the functional history and physical
examination grade modifiers of one at the net adjustment formula at page 521 of the A.M.A.,
Guides. He subtracted one from zero for minus one; and one from one which equaled zero, for
an adjusted grade of 1. The medical adviser stated that a grade of minus one required that the B
value of one percent be allowed a one percent impairment rating.6
2

A.M.A., Guides 509.

3

Id. at 509.

4

Id. at 516.

5

Id. at 519.

6

Id. at 521.

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By decision dated December 6, 2012, OWCP granted appellant a schedule award for a
one percent impairment of the left leg. The period of the award ran from August 23 to
September 12, 2011, for a total of 2.88 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.10
ANALYSIS
OWCP accepted the condition of ruptured left quadriceps tendon. It granted appellant a
schedule award for a one percent impairment of the left leg, relying on the rating from its
medical adviser.
The Board notes that the A.M.A., Guides directs examiners to rate diagnosis-based
impairments for the lower extremities pursuant to Chapter 16, which states at page 497, Section
16.2a that impairments are defined by class and grade.11 The examiner is instructed to utilize the
net adjustment formula outlined at pages 521-22 of the A.M.A., Guides,12 to obtain the proper
impairment rating. In a November 9, 2012 report, Dr. Zimmerman reviewed the August 23,
2012 report of Dr. Vittetoe, appellant’s attending physician and the surgeon who performed
surgery on April 22, 2011 to repair the ruptured left quadriceps tendon.13 He found that
appellant had a one percent impairment of the left leg based on the Knee Regional Grid, Lower
Extremity Impairments at Table 16-3, page 509 of the A.M.A., Guides. Dr. Zimmerman applied
the section on muscle/tendon impairments and found that appellant had a Class 1 rating for a
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

9

Id.

10

Veronica Williams, 56 ECAB 367, 370 (2005).

11

A.M.A., Guides 497.

12

Id. at 521-22.

13

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580, 585
(2005) (the Board notes that Dr. Beebe provided differing impairment ratings in several reports, which further
diminished the probative weight of his opinion).

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ruptured left quadriceps tendon, a default score of one percent lower extremity impairment based
on palpatory findings and/or radiographic findings, for a grade C default value of two percent left
lower extremity impairment. He then utilized the net adjustment formula, applying the grade
modifiers of one for functional history and physical examination and no grade modifier for
clinical studies. Dr. Zimmerman applied the net adjustments to rate the diagnosis as Class 1 of
minus one for a grade B, equal to one percent lower extremity impairment.
The Board notes that Dr. Zimmerman calculated the impairment rating based on the
applicable protocols and tables of the sixth edition of the A.M.A., Guides. He initially applied a
grade C rating of two percent and, based on the net adjustment formula of -1, concluded that
appellant was grade B. Table 16-3 at page 509, provides a lower extremity impairment rating of
two percent, rather than one percent, for grade B. The Board therefore finds that appellant has
two percent impairment of the left lower extremity.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has two percent permanent impairment of his left leg.
ORDER
IT IS HEREBY ORDERED THAT the December 6, 2012 decision of the Office of
Workers’ Compensation Programs be affirmed, as modified.
Issued: November 6, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
4


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

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-954
Issued: November 15, 2010

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 February 23, 2010 appellant, through his attorney, filed a timely appeal of a
January 21, 2010 decision of the Office of Workers’ Compensation Programs denying further
merit review. Because over 180 days elapsed between the most recent merit decision of
January 14, 2009 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s 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 reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant’s attorney argued that the Office’s failure to perform a merit review
in the face of new and relevant legal arguments constituted an abuse of discretion.
FACTUAL HISTORY
On May 13, 2004 appellant, then a 39-year-old mail handler, filed a traumatic injury
claim alleging that he injured both hands and shoulders on May 12, 2004 lifting a bag of mail in

the performance of duty. He also worked for the Department of Homeland Security beginning in
2002 as a transportation supervisor screener. The Office accepted appellant’s claim for bilateral
shoulder sprain. Appellant’s attending physician, Dr. Frank Carr, a Board-certified orthopedic
surgeon, diagnosed torn rotator cuff of the right shoulder with impingement syndrome and
indicated that appellant could perform sedentary work only. Appellant returned to full-time light
duty with the Department of Homeland Security on August 19, 2004.
The Office referred appellant for a second opinion evaluation with Dr. Salvatore Corso, a
Board-certified orthopedic surgeon. In a report dated December 20, 2007, Dr. Corso found that
appellant could return to full duty without restrictions.
The Office found a conflict in medical opinion arose between Dr. Carr and Dr. Corso as
to appellant’s residuals and work capacity. It selected Dr. Richard M. Savino, a Board-certified
orthopedic surgeon, to resolve the conflict. In a September 25, 2008 report, Dr. Savino found
that appellant could not return to full duty due to his rotator cuff tear and provided work
restrictions. He advised that appellant could not perform his usual job but could work eight
hours a day with restrictions. Dr. Savino recommended that appellant could sit, stand, walk,
twist, bend, stoop, squat and kneel for eight hours a day. He found that appellant could reach
above the shoulder, perform repetitive movements, push, pull and lift for two hours a day.
Dr. Savino indicated that appellant should not lift more than 15 pounds.
The limited-duty position offered by the employing establishment included: lifting up to
15 pounds for two hours, no reaching above the shoulder, no climbing or operating machinery,
pushing and pulling up to 5 pounds for two hours and repetitive movements of the wrists and
elbows for two hours.
In a letter dated November 17, 2008, the Office advised appellant that the employer had
offered him suitable work as a modified mail handler and allowed him 30 days to accept or offer
his reasons for refusal. Appellant responded on December 15, 2008. He stated that he had not
received a job offer from the employing establishment. Appellant contended that the offered
position would worsen the nerve damage in his neck, arms and hands while the required lifting
would increase pain and numbness. In a letter dated December 22, 2008, the Office notified
appellant that the reasons for refusing the job were inadequate and allowed an additional 15 days
for him to accept the offered position.
By decision dated January 14, 2009, the Office terminated appellant’s monetary
compensation benefits effective January 12, 2009 based on his refusal to accept the suitable work
position.
Appellant requested an oral hearing on February 4, 2009. In a letter dated May 28, 2009,
appellant’s attorney withdrew his request for an oral hearing and requested reconsideration. The
Branch of Hearings and Review accepted the withdrawal of appellant’s hearing request on
June 11, 2009.
Appellant, through counsel, requested reconsideration on October 29, 2009 and asserted
that this request was based on new legal argument, medical evidence and the Office’s
interpretation of the medical evidence of record. Counsel contended that the Office failed to

2

properly develop the evidence by failing to accept the conditions of partial rotator cuff tear,
bilateral carpal tunnel syndrome and bilateral ulnar neuropathy. This failure rendered the reports
from Drs. Corso and Savino of little probative value. Counsel further argued that the Office
improperly determined the need for a second opinion physician creating the appearance of doctor
shopping. He alleged that there was no conflict of medical opinion evidence and that
Dr. Savino’s report was not entitled to special weight. Appellant further alleged that the offered
position was not consistent with Dr. Savino’s work restrictions. Counsel also asserted that
appellant was entitled to additional compensation benefits due to his dual employment.
By decision dated January 21, 2010, the Office declined to reopen appellant’s claim for
consideration of the merits on the grounds that the arguments submitted were not relevant to the
issue under consideration.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides in section 8128(a) that the Office
may review an award for or against payment of compensation at any time on its own motion or
on application by the claimant.1 Section 10.606(b) of the Code of Federal Regulations provide
that a claimant may obtain review of the merits of the claim by submitting in writing an
application for reconsideration which sets forth arguments or evidence and shows that the Office
erroneously applied or interpreted a specific point of law; or advances a relevant legal argument
not previously considered by the Office; or includes relevant and pertinent new evidence not
previously considered by the Office.2 Section 10.608 of the Office’s regulations provide that
when a request for reconsideration is timely, but does meet at least one of these three
requirements, the Office will deny the application for review without reopening the case for a
review on the merits.3
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. The Board has also
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.
ANALYSIS
The Board finds that the Office properly denied appellant’s request for reconsideration as
the arguments submitted were not substantiated by the facts and circumstances of the case.
Appellant’s attorney argued that there was no conflict of medical evidence, that the report of
Dr. Savino was not entitled to special weight, that there was evidence of “doctor shopping,” that
appellant was entitled to additional compensation because of dual compensation and that the
offered position was not suitable. These arguments are not supported by the factual and medical
evidence in the record. While the reopening of a case may be predicated solely on a legal
1

5 U.S.C. §§ 8101-8193, 8128(a).

2

20 C.F.R. § 10.606.

3

Id. at § 10.608.

3

premise not previously considered, such reopening is not required where the arguments are not
supported by the evidence of record.4 Counsel further argued that appellant had established
additional medical conditions and that he was entitled to additional compensation benefits. The
Board finds that these arguments are not relevant to the issue of whether appellant refused an
offer of suitable work. As appellant failed to submit any new evidence to support his arguments
and as he relied solely on legal arguments which were either not relevant to the central issue or
without a sound basis in fact and law, the Board finds that the Office properly determined that
appellant was not entitled to further review of the merits of his claim.
CONCLUSION
The Board finds that the arguments submitted by appellant were not sufficient to require
the Office to reopen his claim for consideration of the merits.
ORDER
IT IS HEREBY ORDERED THAT January 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 13, 2010
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

4

M.E, 58 ECAB 694 (2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.Z., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 13-1480
Issued: November 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 10, 2013 appellant, through her attorney, filed a timely appeal from the April 24,
2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration. Because more than 180 days elapsed from the most recent merit
decision dated June 17, 2011 to the filing of this appeal, the Board lacks jurisdiction to review
the merits of this case 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).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 24, 2010 appellant, then a 49-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on September 19, 2010 she slipped on a wet floor in a
hallway, causing her legs to move into a split position and pulling her right groin.
On October 7, 2010 OWCP requested additional factual and medical evidence from
appellant and to respond to its inquiries, on the grounds that she had not submitted any factual or
medical evidence apart from her Form CA-1. It afforded appellant 30 days to submit additional
evidence.
In a narrative statement dated October 24, 2010, appellant described the events alleged to
have caused her injury. She stated that, when exiting a room in the medical center after washing
its bed, she slipped on a puddle of water, causing her right leg to slide in front and the left one to
slide back, in a split position. Appellant noted that she grabbed onto a railing so that her split did
not reach the floor but that it came close. After the incident, she stated that her coworkers helped
her to the emergency room, where she was given a shot for the pain and a crutch.
In a report of employee treatment dated September 19, 2010, Dr. Wanda Pons, an
internist, checked a box indicating that appellant was being treated or examined for a workrelated injury and recommended a work restriction of no weight bearing. An unsigned report
from the same day from Pittsburgh, Pennsylvania Veterans Administration Medical Center,
described very mild degenerative changes present within the inferomedial aspect of each hip and
no evidence of a fracture or dislocation.
Appellant submitted records containing illegible signatures dated September 29,
October 6, 19 and 29 and November 12, 2010. In a report dated October 6, 2010, the author
diagnosed sciatica of the right gluteus and noted that appellant had reached maximum medical
improvement. In a report dated October 19, 2010, the author notes under the heading “history”
that appellant slipped and fell, injuring her right groin and hip. In a report dated October 29,
2010, the author recommended that appellant be off work until further notice.
By decision dated December 13, 2010, OWCP denied appellant’s claim. On January 7,
2011 appellant requested an oral hearing by an OWCP hearing representative.
In a trauma report from the department of emergency medicine at University of
Pittsburgh Medical Center dated November 21, 2010, Dr. Alain Corcos, a Board-certified
surgeon, described an event that occurred on the same night in which appellant presented to the
emergency department with acute onset of shortness of breath at home after a fall in which she
hit the side of the stairs to her right side with her right chest wall. He noted that a chest x-ray
revealed a large right-sided pneumothorax with a probable component of tension and extensive
subcutaneous emphysema. In a radiology report dated November 21, 2010, Dr. Martin Gill
Christian, M.D., stated that he found no traumatic abnormalities as a result of a computerized
tomography scan with regard to appellant’s pelvis and abdomen.
On December 21, 2010 Dr. Irina E. Vinarski, a Board-certified physician of internal
medicine, stated that her impression from the magnetic resonance imaging (MRI) scan of

2

appellant’s lumbar spine was degenerative change with multiple disc bulges, most prominent at
L4-5, and that there was no evidence of significant spinal stenosis or disc herniation.
In a report dated January 27, 2011 bearing an illegible signature, the author opined that
appellant was involved in a work-related fall with pain in the right hip that radiated to the low
back as well as the right leg. The author stated that he or she had a “strong suspicion that
appellant had a herniated disc of the left spine” and that this was causing radiculopathy of the
right leg. The author further stated that “the cause of her fall at home could certainly have been
linked to her low back issues,” but that he or she could not say that it was the direct cause.
By letter dated March 11, 2011, Dr. Vinarski stated that appellant had been under her
care since December 20, 2010. She noted that appellant had fallen at work on September 19,
2010, and stated “The fall on November 21, 2010 was due to a previous accident at work [of]
September 19, 2010, which caused lower back pain and right leg and foot numbness.
In a form report dated March 16, 2011, Dr. Vinarski related that appellant’s condition
commenced on September 19, 2011. She also noted that appellant had fallen at work on
September 19, 2011, and stated that appellant began treatment on December 21, 2011.
In a report dated March 27, 2011, Dr. D. A. Provenzano, a Board-certified
anesthesiologist and physician of pain medicine, stated that appellant had a fall at work in
September 2010 that resulted in a back injury, and that she had been dealing with progressively
worsening back and leg symptoms since the fall. Furthermore, he noted that appellant had an
episode of numbness and weakness in the right leg in November 2010 that resulted in a second
fall at home. Dr. Provenzano diagnosed appellant with chronic obstructive pulmonary disease
exacerbation, lumbar disc displacement most significant at L4-5 with right lower extremity
radicular symptoms in an L5 and S1 dermatomal distribution and cervicalgia.
On a medical slip dated December 13, 2010, Dr. Vinarski stated that appellant had been
under her care for a medical condition and should be off work from November 21, 2010 until
further notice.
In a telephonic hearing held on April 20, 2011, appellant stated that her injury occurred
on September 19, 2010, and described the mechanism alleged to cause her condition in
substantially the same terms as in her narrative statement dated October 24, 2010. She further
described the event occurring on November 21, 2010, stating that she got up to go to the
bathroom in the middle of the night, her right leg and groin went numb, and her foot dropped,
causing her to fall down about six steps, hitting her right side on a railing and puncturing a lung.
Appellant stated that she missed an appointment to get an MRI scan due to this event. She stated
that the fall at home on November 21, 2010 was related to the original fall at work on
September 19, 2010 and that she had no history of low back problems prior to the September 19,
2010 fall. The hearing representative informed appellant that she would need a written statement
from a doctor confirming that the November 21, 2010 injury was a consequential injury.
In reports dated May 11, 2011, Dr. Vinarski relayed appellant’s history of treatment. She
stated that appellant sustained a work injury hurting her groin area, and stated that appellant fell
at home on November 21, 2010 when her foot became numb causing her to fall down the stairs,

3

which caused her to hit her right side on the railing and punctured a lung. In one letter,
Dr. Vinarski stated, “It is unclear at this time, if the fall on September 19, 2010 is the direct
cause of the fall on November 21, 2010.” In the other letter, she stated, “In my professional
opinion, the fall on September 19, 2010 might be the direct cause of the fall on
November 21, 2010.” In the fax cover sheet for the second letter, Dr. Vinarski wrote that there
was a medical terminology error in the previous copy.
By decision dated June 17, 2011, the hearing representative denied appellant’s claim,
finding that the medical evidence was not sufficient to support her claim for compensation
because it did not establish that her medical conditions were causally related to a work-related
event. The hearing representative noted that no physician had given a firm diagnosis or medical
opinion relating any condition to the employment incident on September 19, 2010. Furthermore,
the hearing representative noted that, while Dr. Vinarski initially stated that the November 21,
2010 fall was a consequence of the earlier fall, in her later report she stated that it was unclear.
By letter dated May 25, 2012, appellant, through her representative, requested
reconsideration of OWCP’s June 17, 2011 decision. In support of her request, appellant
submitted a duplicate of Dr. Vinarski’s March 11, 2011 report and a narrative statement dated
October 20, 2010. The narrative statement dated October 20, 2010 was almost identical to
appellant’s narrative statement dated October 24, 2010. The only difference was that the
following sentences were missing from the letter dated October 20, 2010 but present in the letter
dated October 24, 2010: “Now I have missed three more days of work due to my fall. I have
contacted the Union. I spoke with Larry the PA today October 29th and he has set up an x-ray
and a MRI for today.”
By decision dated April 24, 2013, OWCP declined appellant’s request for reconsideration
on the grounds that she had not provided any new argument or evidence in support of her claim.
It noted that she submitted only a duplicate of the March 11, 2011 report from Dr. Vinarski and a
narrative statement dated October 20, 2010 that was almost identical to another statement dated
October 24, 2010, containing no new arguments in support of her claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), 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.2 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for

2

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007).

4

reconsideration without reopening the case for a review on the merits.3 The Board has found that
evidence that repeats or duplicates evidence already in the case record has no evidentiary value.4
ANALYSIS
On May 25, 2013 appellant requested reconsideration of OWCP’s June 17, 2011
decision, which affirmed the decision denying her claim for compensation of December 13,
2010, on the grounds that she had not provided sufficient evidence to demonstrate a causal
relationship between a work-related event and a diagnosed condition. Her request for
reconsideration neither alleged nor demonstrated that OWCP erroneously applied or interpreted a
specific point of law. Appellant did not advance a relevant legal argument not previously
considered by OWCP. The narrative statement dated October 20, 2010 that was submitted along
with her request for reconsideration was almost identical to a narrative statement dated
October 24, 2010 that had already been received by OWCP on November 2, 2010 and April 18,
2011, and the difference between the two statements did not contain an argument that OWCP
erroneously applied or interpreted a specific point of law or a legal argument not previously
considered by OWCP. Thus, appellant is not entitled to a review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(2).
Appellant also did not submit relevant and pertinent new evidence not previously
considered by OWCP. Dr. Vinarski’s report dated March 11, 2011 was previously of record,
having been first received on April 18, 2011. Submitting additional evidence that repeats or
duplicates information already in the record does not constitute a basis for reopening a claim.5
Therefore, this report is insufficient to require a merit review of appellant’s claim.
The evidence submitted did not show that OWCP erroneously applied or interpreted a
specific point of law; advance a relevant legal argument not previously considered; or constitute
relevant and pertinent new evidence not previously considered by OWCP. As appellant did not
meet any of the necessary regulatory requirements, the Board finds that she is not entitled to
further merit review.6
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

3

Id. at § 10.608(b); K.H., 59 ECAB 495, 499 (2008).

4

See Daniel Deparini, 44 ECAB 657, 659 (1993).

5

Id.; James W. Scott, 55 ECAB 606, 608 n.4 (2004).

6

M.E., 58 ECAB 694, 698 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits).

5

ORDER
IT IS HEREBY ORDERED THAT the April 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2013
Washington, DC

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

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

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

6


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

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

Docket No. 16-0156
Issued: August 16, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 3, 2015 appellant filed a timely appeal of a September 8, 2015 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)(1) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than one percent impairment of his right lower
extremity for which he received a schedule award.
On appeal appellant alleged that Dr. Kevin Komes, a Board-certified physiatrist, properly
evaluated his left ankle for schedule award purposes.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 16, 2014 appellant, then a 57-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 14, 2014 he stepped off a porch, missing the stair
and landing on his right foot while delivering mail. He noted that he had previously broken his
right ankle on June 26, 2012. Appellant was off work starting January 15, 2014.
Dr. Thomas R. Turnbaugh, a Board-certified orthopedic surgeon, examined appellant on
January 16, 2014 and described his history of injury. He noted that appellant had a previous
right ankle injury. Dr. Turnbaugh reported that appellant’s foot was swollen, painful, and
ecchymotic. He diagnosed probable partial rupture of the right anterior talofibular ligament and
injury to the midfoot. Appellant underwent a magnetic resonance imaging (MRI) scan of his
right ankle on January 27, 2014 which demonstrated tenosynovitis and a bone bruise with mild
effusion along the posterior talotibial and subtalar articulations. On January 30, 2014
Dr. Turnbaugh diagnosed bony injury to the right hindfoot and talus.
On March 12, 2014 OWCP accepted appellant’s claim for contusion of the right foot and
ankle. Appellant returned to light duty on March 20, 2014. Dr. Turnbaugh reported continuing
pain and weakness of the peroneal tendons on the lateral side of appellant’s right hindfoot on
June 5, 2014.
Appellant filed a claim for compensation (Form CA-7) on September 12, 2014 requesting
a schedule award. In a report dated September 4, 2014, Dr. Turnbaugh diagnosed evolving
subtalar arthritis of the right hindfoot due to the January 2014 employment injury. He found that
appellant had pain with varus and valgus stress to his heel and the tip of his fibula.
Dr. Turnbaugh opined that appellant had 10 percent disability of his hindfoot as a result of his
employment injury.
In a letter dated September 24, 2014, OWCP requested additional medical evidence in
support of appellant’s claim for a schedule award. Dr. Turnbaugh completed an additional note
on September 12, 2014 and again opined that appellant had post-traumatic arthritis of the
subtalar joint of the right foot due to his accepted employment injury. He indicated that
appellant’s “disability” was 10 percent due to this condition.
Appellant filed a second Form CA-7 requesting a schedule award on October 18, 2014.
OWCP accepted unspecified arthropathy of the right foot and ankle as resulting from his
employment injury on January 14, 2014. OWCP’s medical adviser reviewed Dr. Turnbaugh’s
notes on December 12, 2014 and found that they were insufficient to meet appellant’s burden of
proof. He requested a second opinion evaluation to determine appellant’s permanent impairment
for schedule award purposes.
OWCP referred appellant for a second opinion evaluation with Dr. Komes on
January 2, 2015. In a report dated January 28, 2015, Dr. Komes described appellant’s history of
injury and noted an ankle MRI scan had been scheduled. He found no swelling in appellant’s
right ankle, with no fluid in the subtalar space. Appellant demonstrated normal strength, but pain
at the ankle with resisted eversion on the right. His range of motion was 20 degrees of flexion

2

and 40 degrees of extension, 20 degrees of varus hindfoot movement and 30 degrees of valgus
hindfoot movement. Dr. Komes found no sensory deficits and intact reflexes. He diagnosed
arthritis of the ankle and utilized Table 16-2 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment2 to find a class 1 impairment due to mild osteophytes with
impingement. Dr. Komes noted that the clinical studies grade modifier was not applicable as
these were used to make the diagnosis. He reported that the physical examination grade modifier
was normal or zero, appellant’s functional history grade modifier was zero as he had discomfort,
but was able to ambulate up to eight miles without difficulty and there was no evidence of
antalgia on examination. Dr. Komes determined that appellant had grade A lower extremity
impairment of one percent of the lower extremity. He determined that appellant reached
maximum medical improvement on April 18, 2014.
OWCP’s medical adviser reviewed the report of Dr. Komes on February 4, 2015 and
agreed with his findings and conclusions.
By decision dated March 12, 2015, OWCP granted appellant a schedule award for one
percent of his right leg. Appellant requested a review of the written record from OWCP’s
Branch of Hearings and Review on March 17, 2014. He argued that his condition would likely
worsen in the future based on Dr. Turnbaugh’s reports requiring ankle fusion. Appellant further
objected to Dr. Komes’ characterization of his ankle condition. He stated that he walked only six
miles a day when he returned to work rather than eight, and was in constant pain. Appellant
attributed his retirement to the pain and weakness in his ankle.
By decision dated September 8, 2015, OWCP’s hearing representative found that
Dr. Komes’ report was entitled to the weight of the medical evidence, that OWCP’s medical
adviser agreed with this impairment rating and that appellant had no more than one percent
impairment of his left lower extremity for which he received a schedule award. She noted that if
appellant’s ankle condition worsened he could file for an additional schedule award and affirmed
OWCP’s March 12, 2015 decision.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of

2

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

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

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permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.5
The protocol and formula of the sixth edition of the A.M.A., Guides requires that the
physician determine the Class of Diagnosis (CDX) for the lower extremity and apply the
appropriate grade modifiers for Functional History (GMFH), Physical Examination (GMPE), and
Clinical Studies (GMCS) and apply the following formula (GMFH-CDX) + (GMPE-CDX) +
(GMCS–CDX) to reach the appropriate grade within the CDX.6
ANALYSIS
The Board finds this case not in posture for a decision.
OWCP accepted appellant’s claim for contusion of the right foot and ankle as well as
unspecified arthropathy of the right foot and ankle. Appellant requested a schedule award. In
support of his schedule award claim, he submitted reports from Dr. Turnbaugh. The Board finds
that these reports are insufficient to support appellant’s claim for an additional schedule award as
Dr. Turnbaugh did not provide his findings and conclusions in accordance with the standards of
the A.M.A., Guides. As Dr. Turnbaugh did not use the A.M.A., Guides to rate appellant’s right
lower extremity impairment, his opinion is of diminished probative value.7
OWCP referred appellant for a second opinion evaluation with Dr. Komes due to the
deficiencies in Dr. Turnbaugh’s report. Dr. Komes applied the A.M.A., Guides formula to his
findings and utilized a diagnosis-based estimate based on arthritis to determine appellant’s
permanent impairment. The Board notes that this diagnosis of ankle arthritis is dependent on
x-ray studies demonstrating a cartilage interval of more than three millimeters as well as mild
osteophytes with impingement.8 The only clinical study in the record is the January 27, 2014
MRI scan which demonstrated tenosynovitis and a bone bruise with mild effusion along the
posterior talotibial and subtalar articulations. Neither Dr. Komes nor the medical adviser
explained how the diagnosis of subtalar or ankle arthritis under the A.M.A., Guides was selected.
The Board further finds the reports not sufficiently well rationalized to support the diagnosis
upon which impairment has been based. On remand OWCP should further develop the medical
evidence by obtaining clarification of what clinical studies constitute the basis of the diagnosisbased estimate.9 After this and such other development, OWCP should issue a de novo schedule
award decision.

5

For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
6

A.M.A., Guides 521.

7

L.C., Docket No. 15-0512 (issued July 13, 2015).

8

A.M.A., Guides 506, Table 16-2.

9

R.B., Docket No. 13-2072 (issued September 19, 2014).

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CONCLUSION
The Board finds that this case is not in posture for a decision regarding appellant’s lower
extremity impairment.
ORDER
IT IS HEREBY ORDERED THAT the September 8, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: August 16, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 17-1389
Issued: April 6, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 8, 2017 appellant filed a timely appeal from January 25, 2017 merit decisions 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.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for authorization
of a lumbar spinal fusion; and (2) whether she has met her burden of proof to establish a recurrence
of disability beginning June 6, 2016 causally related to her accepted employment injury.

1

Appellant timely requested an oral argument before the Board pursuant to 20 C.F.R. § 501.5(b). By order dated
February 1, 2018, the Board exercised its discretion and denied her request for oral argument as the issues on appeal
could be properly adjudicated by a review of the evidence of record. Order Denying Request for Oral Argument,
Docket No. 17-1389 (issued October 12, 2017).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 23, 2012 appellant, then a 44-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she experienced progressively worsening back pain due
to repetitive lifting in the course of her federal employment. She stopped work on
October 18, 2012. OWCP accepted the claim for lumbar radiculopathy and a large central disc
protrusion at L5-S1.
On September 9, 2013 appellant underwent a right and left lumbar microdiscectomy and
laminotomy at L5-S1. OWCP paid her wage-loss compensation for total disability until August 8,
2014, when she returned to her usual employment.
Dr. Robert A. Rovner, a Board-certified orthopedic surgeon, evaluated appellant on
January 5, 2016 for low back pain radiating into the lower extremities. He obtained a history of
the October 4, 2012 work injury, noting that she worked full duty but experienced pain, burning,
and numbness through the lower extremities into the feet. Dr. Rovner diagnosed disc protrusions
at L4-5 and L5-S1, stenosis, and sciatica bilaterally after lumbar surgery. He recommended a
magnetic resonance imaging (MRI) scan study. Dr. Rovner indicated that x-rays obtained on that
date revealed findings suggesting instability at L4-5.
A January 18, 2016 MRI scan study of the lumbar spine interpreted by Dr. Yurria Lobato,
a radiologist, revealed status post right laminotomy at L3-4 with bilateral posterolateral bulges
without significant stenosis, a large central disc protrusion at L4-5 resulting in severe stenosis of
the spine and compression of the proximal nerve roots at L5, and annular bulging at L5-S1 without
significant stenosis.
Dr. Matthew D. Johnson, an attending osteopath, advised that appellant initially
experienced back pain in October 2012 due to repetitive strain and trauma performing her work
duties. He noted that she was working full time and that an MRI scan study showed a large
herniated disc at L5-S1. In a work status form, Dr. Johnson found that appellant could perform
her usual employment.
On February 8, 2016 Dr. Rovner reviewed the findings from the January 18, 2016 MRI
scan study and discussed appellant’s complaints of pain in her back radiating into both legs. He
found a normal neurological examination and a negative straight leg raise and reviewed x-rays
obtained January 5, 2016 showing instability from flexion to extension at L4-5 and L5-S1 disc
degeneration. Dr. Rovner diagnosed spondylosis from L4 to S1, instability at L4-5, and a prior
discectomy at L4-5 with a “recurrent large midline L4-5 disc herniation and severe stenosis.” He
concluded:
“[Appellant] has symptoms that I believe are secondary to a large recurrent disc
herniation at L5-S1 in the midline with almost complete obliteration of the spinal
canal. Given the fact that she has had previous surgery at this level and the
instability on x-ray, I would recommend revision decompression with fusion and I
think this should be done anteriorly… Because the L5-S1 disc below this is so
collapsed, that level should be included as well….”
Dr. Rovner requested that OWCP authorize an anterior interbody fusion at L4-5 and L5-S1.

2

In a February 24, 2016 progress report, Dr. Johnson diagnosed thoracic radiculopathy and
noted that appellant had requested modified duty due to increased pain. He provided work
restrictions, including lifting 10 to 15 pounds with medication and 5 pounds without medication.
An OWCP medical adviser, on April 4, 2016, reviewed the medical evidence and noted
that the neurological examination performed by Dr. Rovner on February 8, 2016 yielded normal
neurological findings. He indicated that OWCP had accepted the claim for thoracic or lumbosacral
neuritis or radiculitis and displacement of a lumbar intervertebral disc without myelopathy.
OWCP’s medical adviser opined that surgery at L4-5 and L5-S1 was not medically necessary as
appellant did not meet the criteria for a lumbar spinal fusion set forth by the Official Disability
Guidelines, noting that she had no focal neurological signs, a demonstrated failure of conservative
treatment, objective evidence of instability, or “clear evidence of spinal cord compression, spinal
infection and spine fracture.”
On April 11, 2016 Dr. Rovner noted that appellant’s surgical request was denied. He
discussed her symptoms of back pain radiating into the legs. On examination, Dr. Rovner found
no loss of lower extremity sensation, motor strength, or reflexes. He diagnosed instability at L45 with a recurrent large disc herniation and severe stenosis at L4-5, and spondylosis at L4 to S1.
Dr. Rovner related, “I cannot imagine the real reason for denial of surgery.” He advised that
appellant should “continue on temporary disability.”
Dr. Johnson, on April 20, 2016, found that appellant could work modified duty with
restrictions that included lifting no more than 20 pounds.
In a June 3, 2016 work status report, Dr. Johnson indicated that appellant was temporarily
totally disabled pending the next appointment. On June 29, 2016 he again found that appellant
was totally disabled until further evaluation.
On June 27, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for total
disability from June 6 to 17, 2016.
By letter dated July 6, 2016, OWCP informed appellant that it was adjudicating her claim
for wage-loss compensation as a notice of recurrence of disability. It requested that she submit a
detailed report from her attending physician with clinical findings supporting that she sustained a
worsening of her accepted work injury without intervening cause.
In a narrative report dated June 3, 2016, received by OWCP on July 12, 2016, Dr. Johnson
evaluated appellant for increased low back pain and radiculopathy. On examination he found
limited lumbar motion due to pain and hypertonicity, tenderness, and spasms of the paravertebral
muscles. Dr. Johnson found a positive straight leg raise bilaterally and positive lumbar facet
loading with decreased sensation over the lateral foot bilaterally. He indicated that appellant
stopped work on June 3, 2016 due to significant pain such that she was unable to work even with
restrictions. Dr. Johnson noted that the requested fusion at L4-5 and L5-S1 was denied and that
she was placed off work for three months. He found that appellant was totally disabled beginning
June 3, 2016 as she “could not continue to tolerate modified duty due to severe pain. She is
awaiting surgery with Dr. Rovner.”
Dr. Rovner, on June 13, 2016, diagnosed a recurrent large disc herniation at L4-5 with
stenosis, spondylosis at L4 to S1, and L4-5 instability. He noted that he was awaiting authorization
3

for the lumbar fusion and indicated that appellant should “continue on temporary disability per
Dr. Johnson….”
In work status reports dated June 29 and July 22, 2016, Dr. Johnson advised that appellant
remained totally disabled from employment.
By decision dated August 1, 2016, OWCP found that appellant had not established a
recurrence of disability beginning June 6, 2016 causally related to her accepted work injury. It
determined that the medical evidence was insufficient to demonstrate a material worsening of her
employment injury.
In a July 22, 2016 report, received by OWCP on August 12, 2016, Dr. Johnson discussed
appellant’s symptoms of increased pain. He reviewed the letter from OWCP regarding her
disability from employment. Dr. Johnson discussed appellant’s history of a disc herniation with
impingement and radiculopathy due to cumulative trauma at work. He indicated that she had low
back pain radiating into the right lower extremity with objective examination findings of reduced
motor strength and sensation, reduced ankle reflexes, and tenderness of the lumbar spine.
Dr. Johnson noted that a lumbar MRI scan study showed a “lumbar disc herniation with foraminal
impingement.” He diagnosed lumbar radiculopathy. Dr. Johnson found that appellant had a disc
herniation and radiculopathy caused by nerve impingement and had “worked through the pain for
many years but [her] herniation and pain have worsened. She can no longer complete her job
duties.” He recommended spinal surgery and found that appellant was totally disabled beginning
June 3, 2016 as a result of severe pain. Dr. Johnson advised that she could not lift over 10 pounds,
perform repetitive movements, or stand, walk, or sit over four hours per day.
On August 17, 2016 Dr. Johnson indicated that a 2016 MRI scan study showed “a
herniation and foraminal stenosis worse than what was present in the past.”3 He asserted that
appellant “previously had worked through her pain but in late 2015 and early 2016 the pain became
unbearable necessitating referral to [an] orthopedic spine surgeon.” Dr. Johnson questioned why
her claim was denied and related, “There is clear physical exam[ination] evidence and diagnostic
evidence of ‘material worsening.’” On September 14, 2016 he noted that appellant now used a
cane for walking and had been unable to work for three months. Dr. Johnson reiterated that she
was disabled from work and listed restrictions.
Appellant, on October 31, 2016, requested reconsideration.
In November 23 and December 21, 2016 progress reports, Dr. Johnson noted that appellant
continued to await surgical authorization.
By decision dated January 25, 2017, OWCP denied modification of its August 1, 2016
decision. It determined that Dr. Johnson provided light-duty restrictions on August 17,
September 14, and November 23, 2016, but also found that appellant was totally disabled. OWCP
further found that Dr. Johnson indicated that she was off work due to pain, which was not sufficient
to support a disability finding.

3
In a progress report dated October 12, 2016, Dr. Rovner again noted that he was awaiting approval for an anterior
fusion at L4-5 and L5-S1.

4

In another decision dated January 25, 2017, OWCP denied authorization for the lumbar
spinal fusion requested by Dr. Rovner. It noted that OWCP’s medical adviser found that the
surgery was not medically necessary as there was no clear evidence of compression of the spinal
cord or lumbar instability.
On appeal appellant contends that her physician advised her that she should not work and
that her supervisor did not properly advise her regarding how to file a claim with OWCP.
LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of FECA states in pertinent part: The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers likely
to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of
the monthly compensation.4
The Board has found that OWCP has great discretion in determining whether a particular
type of treatment is likely to cure or give relief.5 The only limitation on OWCP’s authority is that
of reasonableness.6 Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgments, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.7
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained lumbar radiculopathy and a large central disc
protrusion at L5-S1. Appellant underwent a lumbar discectomy and laminotomy at L5-S1 on
September 9, 2013.
A January 18, 2016 MRI scan study interpreted by Dr. Lobato showed a large central disc
protrusion at L4-5 causing severe stenosis of the spine and compression of the proximal nerve
roots at L5 and annular bulging at L5-S1 with no significant stenosis. On February 8, 2016
Dr. Rovner reviewed the MRI scan study, discussed appellant’s complaints of back pain with
bilateral lower extremity radiculopathy, and diagnosed a large recurrent disc herniation at L4-5 as
demonstrated by MRI scan study causing “almost complete obliteration of the spinal canal.” He
further noted that x-rays obtained on January 5, 2016 showed instability at L4-5. On examination,
Dr. Rovner found normal neurological findings and a negative straight leg raise. He noted that
appellant previously underwent surgery at this level and recommended a revision decompression
and fusion at L4-5 and L5-S1, noting that that L5-S1 disc had also collapsed.

4

5 U.S.C. § 8103(a).

5

See B.J., Docket No. 15-1961 (issued September 7, 2016); Vicky C. Randall, 51 ECAB 357 (2000).

6

See Lecil E. Stevens, 49 ECAB 673, 675 (1998).

7

Rosa Lee Jones, 36 ECAB 679 (1985).

5

An OWCP medical adviser reviewed the evidence on April 4, 2016 including the report of
Dr. Rovner dated February 8, 2016. He noted that Dr. Rovner indicated that appellant’s
examination yielded normal neurological findings. OWCP’s medical adviser opined that the
proposed surgery was not medically necessary as she had no neurological symptoms, had not failed
conservative treatment, did not have objective evidence of instability, and had no evidence of
compression of the spinal cord.
The Board finds that the case is not in posture for decision regarding authorization for a
lumbar fusion at L4-5 and L5-S1 because OWCP’s medical adviser provided insufficient rationale
for his determination. The medical adviser indicated that appellant did not demonstrate evidence
of instability or compression of the spinal cord, but he did not explain this finding in light of the
objective diagnostic testing. Both the interpreting radiologist, Dr. Lobato and Dr. Rovner found
the January 18, 2016 lumbar MRI scan study to show a large recurrent disc herniation at L4-5
causing severe spinal stenosis and compression of the L5 nerve root. Additionally, Dr. Rovner
noted that x-ray studies obtained on January 5, 2016 revealed instability at L5-5 of the lumbar
spine. OWCP’s medical adviser did not substantiate his findings in contradiction of the diagnostic
results for which he reviewed that appellant had no documented evidence of lumbar instability or
nerve root compression. Therefore, his opinion is unreasonable and therefore is insufficient to
support OWCP’s denial of surgical authorization.8
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.9 On remand, OWCP
should obtain a reasoned opinion regarding whether the proposed surgery should be authorized.
Following such further development as deemed necessary, it shall issue a de novo decision.
LEGAL PRECEDENT -- ISSUE 2
A “recurrence of disability” means an inability to work after an employee has returned to
work caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.10
Appellant has the burden of establishing by the weight of the substantial, reliable, and
probative evidence a causal relationship between her recurrence of disability and his employment
injury.11 This burden includes the necessity of furnishing medical evidence from a physician who,
on the basis of a complete and accurate factual and medical history, concludes that the disabling

8

See D.B., Docket No. 14-0830 (issued August 22, 2014).

9

See W.W., Docket No. 15-1130 (issued August 7, 2015); Phillip L. Barnes, 55 ECAB 426 (2004).

10

20 C.F.R. § 10.5(x).

11

Carmen Gould, 50 ECAB 504 (1999).

6

condition is causally related to employment factors and supports that conclusion with sound
medical reasoning.12
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility to see that justice is done.13 The nonadversarial policy of proceedings under FECA
is reflected in OWCP’s regulations at section 10.121.14
ANALYSIS -- ISSUE 2
OWCP paid appellant compensation for total disability subsequent to her September 9,
2013 lumbar surgery until August 8, 2014, when she resumed her regular employment. Appellant
stopped work and filed a claim for wage-loss compensation beginning June 6, 2016, which OWCP
adjudicated as a notice of recurrence of disability.
The Board finds that the case is not in posture for decision. On June 3, 2016 Dr. Johnson
noted that OWCP had denied appellant’s request for a lumbar fusion at L4-5 and L5-S1. On
examination he found reduced lumbar motion and spasm and tenderness of the paravertebral
muscles with a positive straight leg raise bilaterally and a bilateral loss of sensation over the foot.
Dr. Johnson opined that appellant was totally disabled beginning June 3, 2016 due to severe pain.
Dr. Rovner, in a June 13, 2016 report, diagnosed a recurrent disc herniation and instability
at L4-5 and spondylosis from L4 to S1. He advised that appellant was temporarily disabled as
found by Dr. Johnson.
In a report dated July 22, 2016, Dr. Johnson reviewed OWCP’s letter requesting additional
information from appellant supporting disability. He provided objective findings of reduced
sensation and motor strength, a loss of ankle reflexes, and lumbar spine tenderness. Dr. Johnson
reviewed MRI scan findings, diagnosed lumbar radiculopathy, and opined that appellant was
unable to work, noting that she could not lift more than 10 pounds. On August 17, 2016
Dr. Johnson advised that appellant’s lumbar MRI scan study from 2016 showed worsening
herniation and foraminal stenosis and opined that the findings on physical examination and
diagnostic studies demonstrated a material worsening of her condition.
The Board finds that, although the opinion of Dr. Johnson is not sufficiently rationalized
to establish that appellant sustained a recurrence of disability beginning June 6, 2016 due to her
accepted work injury, it is of sufficient probative value to warrant additional development.15
Dr. Johnson evidenced knowledge of her work injury and based his opinion that she was unable to
work on examination findings and the current diagnostic studies. OWCP, however, did not

12

Mary A. Ceglia, 55 ECAB 626 (2004).

13

See S.M., Docket No. 16-0990 (issued February 8, 2017); Jimmy A. Hammons, 51 ECAB 219 (1999).

14

20 C.F.R. § 10.121.

15

See R.M., Docket No. 17-1652 (issued January 5, 2018).

7

undertake further development of the medical record, such as referring the record to an OWCP
medical adviser or referring appellant for a second opinion examination.16
As noted, while the claimant has the burden of proof to establish entitlement to
compensation, OWCP shares responsibility in the development of the evidence. It has the
obligation to see that justice is done.17 On remand, OWCP should further develop the medical
evidence by referring appellant to an appropriate specialist to determine whether she sustained a
recurrence of disability beginning June 6, 2016 due to her accepted work injury. Following this
and any other development deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether OWCP
properly denied appellant’s request for authorization for a lumbar spinal fusion. The Board further
finds that the case is not in posture for decision regarding whether she met her burden of proof to
establish a recurrence of disability beginning June 6, 2016 causally related to her accepted
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 25, 2017 decisions of the Office of
Workers’ Compensation Programs are set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: April 6, 2018
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
16

See S.S., Docket No. 17-0705 (issued November 9, 2017).

17

Marco A. Padilla, 51 ECAB 202 (1999).

8