United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Temple, GA, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1314
Issued: September 18, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 9, 2016 appellant, through counsel, filed a timely appeal from a March 24, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.3
1

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

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 24, 2016 decision, OWCP received additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. Thus,
OWCP is precluded from reviewing this evidence for the first time on appeal. See 20 C.F.R. §§ 501.2(c)(1); M.B.,
Docket No. 09-0176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007);
Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective March 24, 2016.
FACTUAL HISTORY
On December 19, 2014 appellant, then a 46-year-old temporary rural carrier associate,
filed a traumatic injury claim (Form CA-1) alleging that on December 13, 2014 she sustained a
lower back and neck injury when she fell. She stopped work on December 13, 2014. OWCP
accepted the claim for an L4-5 herniated disc/displacement of lumbar disc without myelopathy
and paid supplemental wage-loss compensation for intermittent periods.
In a July 16, 2015 status report, Dr. Eric I. Francke, a treating Board-certified orthopedic
surgeon, indicated that appellant was capable of performing full-duty work and diagnosed
pseudoarthrosis. He diagnosed cervical pain/cervicalgia, coccyx pain, low back pain/lumbago,
lumbar radiculopathy, unspecified thoracic or lumbosacral neuritis or radiculitis, and
pseudoarthrosis. Physical examination findings were unchanged and he noted that in prior visits
that appellant’s presentation was somewhat dramatic.
In an August 13, 2015 report, Dr. Francke reported that appellant was seen for a follow
up examination.
He reported normal electromyogram and nerve conduction velocity
(EMG/NCV) scan studies.
Dr. Francke, in a September 3, 2015 report, noted an injury date of December 13, 2014
and that appellant’s physical examination was unchanged. A review of a magnetic resonance
imaging (MRI) scan showed L5-S1 spondylosis with left-sided L4-5 protrusion and bilateral L45 foraminal stenosis. He reported cervical, coccyx, and low back pain, lumbar radiculopathy,
and pseudoarthrosis. Diagnoses included cervicalgia and cervical pain. In a September 3, 2015
form report, Dr. Francke indicated that appellant was capable of performing full-duty work.
In a September 30, 2015 report, Dr. Yong S. Lee, a Board-certified physiatrist, noted an
injury date of December 13, 20154 and that appellant was seen in follow-up for her lumbar
radiculopathy. He provided physical examination and neurological findings and diagnosed
cervicalgia and cervical pain. In an attached form report, Dr. Lee indicated that appellant was
capable of performing full-duty work.
On October 26, 2015 appellant was referred by OWCP for a second opinion evaluation
with Dr. Alexander N. Doman, a Board-certified orthopedic surgeon, to determine her work
restrictions, and the status of her accepted L4-5 herniated disc condition. The attached statement
of accepted facts (SOAF) noted that appellant’s claim was accepted for an L4-5 herniated
nucleus pulposus and provided a description of her job duties.

4

Dr. Lee’s report incorrected lists the date of injury as December 13, 2015, when the correct date is
December 13, 2014.

2

In a November 30, 2015 report, Dr. Doman reported that appellant was examined on
November 19, 2015. He noted her medical history, reviewed the SOAF, and performed a
physical examination. Appellant related complaints of mild headaches and some low back pain
radiating into her left leg. A physical examination revealed no acute distress, negative straight
leg testing, and no signs of muscular atrophy. Dr. Doman related that x-rays of her lumbar spine
showed mild L5-S1 disc space narrowing, but appellant’s nerve conduction studies were normal.
A review of a March 16, 2015 MRI scan of the lumbar spine showed evidence of a lumbar
herniated disc and age-related degenerative changes of the lumbar and thoracic spines.
Dr. Doman diagnosed age-related lumbar degenerative disc disease based on x-ray and MRI scan
interpretations. Next, he opined that appellant’s cervical condition had not been caused or
aggravated by the accepted December 13, 2014 work injury. Dr. Doman related that it was his
firm belief that appellant’s subjective complaints were unsupported by the objective evidence.
He also opined that he believed appellant had symptom magnification in her subjective
complaints. Dr. Doman concluded that appellant had no disability due to her accepted
employment injury and that he had no recommendations for further treatment.
In reports dated December 10 and 18, 2015, Dr. Francke reported that appellant was seen
for a follow-up visit for her December 13, 2014 employment injury and that her physical
examination was unchanged. He reported that appellant continued to work her usual job and
complained of low back pain. Dr. Francke reported normal EMG/NCV studies of the bilateral
upper and lower extremities while an MRI scan suggested L4-S1 spondylosis with L4-5 leftsided protrusion and bilateral L5-S1 foraminal stenosis. He recommended physical therapy for
her low back pain and provided a prescription. Diagnoses included low back pain and lumbar
radiculopathy. An attached form report indicated that appellant was capable of performing fullduty work and ordered four weeks of physical therapy.
On February 4, 2016 OWCP issued a notice proposing to terminate her wage-loss
compensation and medical benefits. It advised appellant that its proposal to terminate her
benefits was based on the opinion of Dr. Doman, the second opinion physician, who concluded
that her accepted condition had resolved with no residuals or disability. Appellant was afforded
30 days to respond.
Dr. Francke, in a February 4, 2016 report, noted that appellant continued to complain of
low back pain radiating into her right posterior thigh. He reported EMG/NCV testing did not
support a finding of lumbar radiculopathy while her March 16, 2015 MRI scan showed
intervertebral disc degeneration with mild stenosis caused by mild disc protrusions. Dr. Francke
reported that appellant complained of low back pain with bilateral leg raising and lumbar range
of motion and noted that she had difficulty ambulating. He diagnosed low back pain, lumbar
radiculopathy, cervicalgia, coccyx pain, and pseudoarthrosis and recommended physical therapy.
In an attached form report, Dr. Francke indicated that appellant was capable of full-duty work,
but recommended four weeks of physical therapy.
In a letter dated February 19, 2016, counsel disagreed with OWCP’s proposal to
terminate appellant’s compensation benefits based upon Dr. Doman’s opinion. He noted that the
SOAF provided Dr. Doman was flawed as it failed to accurately state the accepted condition.
Counsel also argued that Dr. Doman went outside the framework of the SOAF when rendering
his opinion.

3

On a March 10, 2016 visit status report, Dr. Francke indicated that appellant was capable
of performing full-duty work.
By decision dated March 24, 2016, OWCP finalized the termination of appellant’s
compensation benefits for her accepted lumbar condition effective March 24, 2016. It found the
report of Dr. Doman constituted the weight of the evidence establishing that her lumbar
condition had resolved with no continuing residuals or disability. OWCP found the argument
that Dr. Doman had deviated from the SOAF to be invalid and explained that Dr. Doman had
based his opinion on a review of the entire medical record and appellant’s examination findings.
OWCP also noted that medical evidence from her treating physician reported normal EMG
findings and a diagnosis of mild lumbar degenerative disc disease.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying the
modification or termination of an employee’s benefits.5 After it has determined that an
employee has disability causally related to her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.6 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.7
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.8 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.9
ANALYSIS
OWCP accepted appellant’s claim for L4-5 herniated disc/displacement of lumbar disc
without myelopathy. By decision dated March 24, 2016, it terminated her wage-loss
compensation and medical benefits for her accepted lumbar condition as it found she no longer
had any disability or required further medical treatment due to this condition. The Board finds
that OWCP met its burden of proof to terminate appellant’s wage-loss compensation benefits.
Appellant’s treating physician, Dr. Francke, continually noted in his reports dated
July 16, 2015 through March 10, 2016 that appellant was able to perform full-duty work.
Dr. Lee, appellant’s physiatrist, also noted in his September 30, 2015 report that appellant was
capable of performing full-duty work.
5

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

6

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

7

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

8

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

9

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

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OWCP referred appellant to Dr. Doman for a second opinion evaluation. In a report
dated November 30, 2012, Dr. Doman noted that appellant was evaluated on November 19, 2015
to determine whether she had any disability due to her accepted L4-5 herniated disc. He noted
normal nerve conduction studies, x-rays showed mild L5-S1 disc space narrowing, and a
March 16, 2015 MRI scan showed age-related lumbar and thoracic degenerative changes and a
lumbar herniated disc. Dr. Doman opined that there was no disability due to the accepted
employment injury. He provided detailed findings on examination and reached conclusions
regarding appellant’s condition which comported with his physical examination findings.10
Dr. Doman pointed to findings of malingering during his physical examination to support his
opinion that appellant’s accepted lumbar condition was no longer disabling.
Dr. Doman’s opinion is based on a proper factual and medical history and a review of
medical records. He provided medical rationale for his opinion that the work-related condition
no longer disabled appellant.11 Thus, the medical opinion of record from Drs. Francke, Lee, and
Doman concur in the conclusion that appellant was no longer disabled due to the accepted workrelated condition. The Board therefore finds that OWCP met its burden of proof to terminate
appellant’s wage-loss compensation benefits.
As previously noted, the right to medical benefits for an accepted condition is not limited
to the period of entitlement for disability.12 OWCP must establish that appellant no longer has
residuals of an employment-related condition, which would require further medical treatment.13
5 U.S.C. § 8103 provides that 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 OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.
The accepted condition in this case was L4-5 herniated disc/displacement of disc without
myelopathy. Appellant’s treating physician, Dr. Francke, and OWCP’s second opinion
physician, Dr. Doman, both continued to report that appellant’s March 16, 2015 MRI scan
showed continued evidence of the herniated lumbar disc. Dr. Francke continued to recommend
physical therapy, while Dr. Doman related that no treatment recommendations were necessary.
Dr. Doman, however, offered no rationalization to support his finding that “the additional
medical treatment was warranted in this case, as recommended by Dr. Francke. Prognosis is
excellent and no treatment recommendations are necessary,” other than to attribute all of her
complaints to be symptom magnification.14 In light of the contrary findings of the treating
physician who recommended further physical therapy and the lack of rationalization for the
10

See Michael S. Mina, 57 ECAB 379 (2006).

11

See L.G., Docket No. 15-1334 (issued January 28, 2016).

12

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, supra note 8.

13

Kathryn E. Demarsh, supra note 8; James F. Weikel, supra note 9.

14

See T.F., 58 ECAB 128 (2006).

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finding of no residuals, the Board finds that OWCP has failed to meet its burden of proof to
terminate medical benefits.15
It is OWCP’s burden of proof to establish with well-rationalized medical opinion
evidence that appellant’s accepted conditions had resolved without residuals requiring further
medical treatment.16 A medical opinion that is conclusory and unrationalized on the issue of
whether further treatment or therapy is warranted is not dispositive.17
The Board, therefore, finds that OWCP met its burden of proof to terminate appellant’s
wage-loss compensation as of March 24, 2016. It further finds that OWCP did not meet its
burden of proof to terminate appellant’s medical benefits.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective March 24, 2016. OWCP did not meet its burden of proof to terminate
appellant’s medical benefits

15

As there is no clear, well-rationalized medical opinion evidence establishing that appellant’s accepted
conditions had resolved without residuals requiring further medical treatment, OWCP has not met its burden of
proof to terminate appellant’s medical benefits. J.J., Docket No. 16-0984 (issued November 17, 2016); see also
J.S., Docket No. 15-0872 (issued September 28, 2016). See also Mark P. Parkes, Docket No. 04-1546 (issued
December 3, 2004) (wherein the Board found that OWCP had met its burden of proof to terminate medical benefits
as the impartial medical examiner determined within a reasonable degree of medical probability that no further
treatment was necessary in relation to the accepted employment injury. Enough time had passed and enough
treatment was given).
16

See J.J., id.

17

See I.V., Docket No. 10-1026 (issued April 22, 2011).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 24, 2016 is affirmed in part and reversed in part.
Issued: September 18, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Sheridan, OR,
Employer
__________________________________________

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

Docket No. 07-2242
Issued: February 12, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 4, 2007 appellant filed a timely appeal from a July 25, 2007 merit decision
of the Office of Workers’ Compensation Programs denying a recurrence of disability and an
August 24, 2007 nonmerit decision denying his request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a recurrence of a medical condition causally related to his December 1, 1997
employment injury; and (2) whether the refusal of the Office to reopen his case for further
consideration on the merits of his claim pursuant to 5 U.S.C. § 8128(a) constituted an abuse of
discretion.

FACTUAL HISTORY
On December 1, 1997 appellant, then a 37-year-old electrical supervisor, sustained
injuries to his left knee while running to an emergency in the performance of duty. The Office
accepted his traumatic injury claim for left knee sprain and subsequent arthroscopic surgery
performed on June 18, 1998, in which a loose body was removed from the popliteal fossa.1
Appellant returned to work on July 13, 1998. On November 6, 1998 Dr. Mas Yamanaka, a
Board-certified orthopedic surgeon, opined that his condition had stabilized. On March 25, 1999
appellant was granted a schedule award for a 17 percent permanent impairment of his left leg.
In a report dated February 10, 2004, Dr. Peter Van Patten, an orthopedic surgeon,
provided diagnoses of left knee anterior cruciate ligament (ACL) deficiency and osteoarthritis.
Relating the history of injury, he stated that appellant injured his left knee while playing football
at age 17 and underwent an arthroscopy at that time for a torn meniscus. The record contains
numerous treatment notes from Dr. Van Patten for the period February 17 through
August 9, 2004. On August 25, 2004 he performed an unauthorized left knee arthroscopy, with
ACL reconstruction.
On April 27, 2007 appellant filed a recurrence of disability claim of his December 1,
1997 injury. In a memorandum to the Office dated April 30, 2007, he stated that surgery was
required to address his degenerative arthritis related to his 1996 knee surgery. In a letter dated
May 2, 2007, appellant asked that his claim be reopened so that he could have partial knee
replacement surgery. He stated that he ruptured the anterior cruciate ligament in his left knee in
a 1996 work-related injury (File No. 140329587) and later discovered that his ACL had been
removed in a related surgery. Appellant indicated that in 2004, he sustained another left knee
injury, which required additional surgery.
Appellant submitted an April 30, 2007 report from Dr. Van Patten who diagnosed “left
knee status post-ACL reconstruction with severe medial compartment osteoarthritis.”
Dr. Van Patten stated that on August 25, 2004 when he underwent ACL reconstruction, appellant
had Grade 4 chondromalacia to an extensive degree in the medial compartment. His physical
examination of appellant revealed 5/5 strength; 5 degrees of varus angulation to the left knee;
laxity at the posterolateral corner; and 1+ Lachman’s with a negative pivot shift. Dr. Van Patten
found medial joint line tenderness. Range of motion was from 5 degrees to 125 degrees.
Appellant had three percent of valgus on the right and three percent of varus on the left. X-rays
showed that the medial compartment collapsed completely 40 degree PA view. They further
revealed large osteophyte along the medial aspect of the femur and tibia, as well as along the
medial aspect and the inferior and superior poles of the patella. There was evidence of
subchondial cysts in the medial femoral condyle and a posterior ridge of osteophyte in the lateral
compartment and along the lateral femoral condyle. Dr. Van Patten recommended unicondylar
knee replacement arthroplasty, but stated that appellant wanted to “get this recognized as a
progression of disease from his injury in 1996. At that time it was accepted as an ACL tear and
treated by Kaiser Health Insurance.”
1

In its letter of acceptance dated March 1, 1999, the Office recognized that appellant had nonwork-related,
preexisting degenerative joint disease of the left knee.

2

By letter dated May 7, 2007, the Office informed appellant that it had received his notice
of recurrence but that the information submitted was insufficient to establish his claim. The
Office requested that he submit a statement describing why he believed his current disability or
need for medical care was due to his December 1, 1997 employment injury and to provide copies
of medical reports documenting any treatment of his left knee since 1997. The Office further
notified appellant that he should obtain a narrative report from his attending physician addressing
his need for continuing medical treatment, the extent of any disability and its relationship to his
accepted employment injury. The Office provided appellant 30 days to submit the requested
information.
Appellant submitted a position description for an electrical worker supervisor. On
May 14, 2007 he reiterated his request that the Office reopen his case for medical treatment
related to his 1997 injury. Appellant again stated that he reinjured his knee in 2004. He
submitted largely illegible physicians’ notes from Dr. John Nelson, a Board-certified internist,
for the period May 15 through June 6, 2006. In a statement dated May 15, 2007, Dr. Nelson
indicated that appellant was “having left knee problems brought on by an OTJ [on the job] injury
from a torn ACL in his left knee in 1997.” He stated that he needed a partial knee replacement
due to this injury. In an April 30, 2007 report, Dr. Van Patten stated that he first treated
appellant on March 7, 2003. Appellant submitted additional notes dated December 5, 2005
through May 15, 2007 from Dr. Nelson. On March 29, 2006 Dr. Nelson stated that appellant
twisted his left knee that morning.
By decision dated July 25, 2007, the Office denied appellant’s claim on the grounds that
the evidence did not establish that the claimed recurrence resulted from his accepted left knee
sprain. The Office noted that appellant’s physicians had failed to address his prior knee injuries
that occurred in high school and predated his federal employment.
On August 7, 2007 appellant requested reconsideration. In an accompanying letter dated
July 30, 2007, he stated that he sprained his left knee when he was 17 years old; that appellant
underwent surgery in 1985 to remove loose pieces of meniscus; that he ruptured his ACL in
1997; that pursuant to appellant’s accepted 1997 injury, he underwent surgery, but was never
told that his ACL was removed; that he tried to reopen his case in 2004, but that his request was
denied; that appellant paid privately for an allograft; and that he now needs partial knee
replacement surgery.
By decision dated August 24, 2007, the Office denied appellant’s request for merit
review finding that the evidence submitted did not address the issue of causal relationship and
was, therefore, irrelevant.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of a medical condition is defined as a documented need for further medical
treatment after release from treatment for the accepted condition or injury.2 Continuous
treatment for the original condition or injury is not considered a recurrence of a medical
2

20 C.F.R. § 10.5(y).

3

condition, nor is an examination without treatment.3 As distinguished from a recurrence of
disability, a recurrence of a medical condition does not involve an accompanying work
stoppage.4 It is the employee’s burden to establish that the claimed recurrence is causally related
to the original injury.5
The Office’s procedure manual defines a recurrence of medical condition as the
documented need for further medical treatment after release from treatment of the accepted
condition when there is no work stoppage. Continued treatment for the original condition is not
considered a renewed need for medical care, nor is examination without treatment.6
The Office’s procedure manual further provides that, after 90 days of release from
medical care (based on the physician’s statement or instruction to return PRN, or computed from
the date of last examination), the claimant is responsible for submitting an attending physician’s
report which contains a description of the objective findings and supports causal relationship
between the claimant’s current condition and the previously accepted work injury.7
ANALYSIS -- ISSUE 1
The Board finds that appellant has failed to establish a recurrence of his accepted medical
condition. The Office accepted appellant’s claim for left knee sprain and subsequent
arthroscopic surgery which occurred on June 18, 1998. The Office recognized that appellant had
nonwork-related, preexisting degenerative joint disease of the left knee. Appellant returned to
full duty on July 13, 1998. He has not submitted any medical evidence showing that he was
disabled from work. Appellant contends, however, that he requires partial knee replacement
surgery for his continuing employment-related condition.
The record reflects that appellant was treated for his accepted condition by Dr. Yamanaka
until November 6, 1998. There is no evidence of record establishing that he received medical
treatment for his accepted condition between November 6, 1998 and February 10, 2004, when he
was seen by Dr. Van Patten. As computed from the date of Dr. Yamanaka’s last examination on
November 6, 1998 his treatment on February 10, 2004 was rendered more than 90 days after
appellant’s release from medical care. Therefore, appellant is responsible for submitting an
attending physician’s report containing a description of the objective findings and supporting
causal relationship between his current condition and the previously accepted work injury.8 He
had the burden of submitting sufficient medical evidence to document the need for further

3

Id.

4

Id.; 20 C.F.R. § 10.5(x).

5

See 20 C.F.R. § 10.104; Mary A. Ceglia, 55 ECAB 626, 629 (2004).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(a) (January 1998).

7

Id. at Chapter 2.1500.5(b) (September 2003).

8

Id.

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medical treatment.9 Appellant did not submit the evidence required and thus, failed to establish a
need for continuing medical treatment.10
On February 10, 2004 Dr. Van Patten provided diagnoses of left knee ACL deficiency
and osteoarthritis. On April 30, 2007 he diagnosed “left knee status post ACL reconstruction
with severe medial compartment osteoarthritis” and recommended unicondylar knee replacement
arthroplasty. However, none of his reports contain a reasoned opinion supporting the causal
relationship between appellant’s current condition and the previously accepted work injury, as
required by Office procedures.11 Although he gave findings on examination, Dr. Van Patten
provided an inaccurate history of injury, stating that appellant’s 1996 injury was accepted as an
ACL tear. Additionally, he failed to address the relationship between the knee injury appellant
sustained in high school, his preexisting degenerative joint disease and his current diagnosed
condition. For these reasons, Dr. Van Patten’s reports are of diminished probative value.
Dr. Nelson’s reports do not support the existence of a causal relationship between
appellant’s current diagnosed condition and his accepted December 1, 1997 injury. On May 15,
2007 Dr. Nelson stated that appellant was “having left knee problems brought on by an OTJ
injury from a torn ACL in his left knee in 1997.” The Board notes that appellant’s claim was
accepted for a left knee sprain, not for a torn ACL. Dr. Nelson not only provided an inaccurate
history of injury, but also has failed to explain how appellant’s current condition developed as a
result of the accepted knee sprain. Without such rationale, his opinion is of diminished probative
value.12 The Board notes that on March 29, 2006 Dr. Nelson stated that appellant twisted his left
knee that morning. He did not address how that intervening injury affected appellant’s current
condition.
Stating that the pain in his left knee had continued to worsen since the 1997 injury,
appellant contended that his current condition was causally related to his accepted condition and
attendant surgery. However, the mere fact that a disease manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.
Neither the fact that the disease became apparent during a period of employment, nor appellant’s
belief that the disease was caused or aggravated by employment conditions, is sufficient to
establish causal relation.13 The Board notes that appellant alleged that the approved June 18,
1998 left knee surgery resulted in the removal of his ACL. However, the record reflects that the
arthroscopic surgery performed on that date involved the removal of a loose body from the
popliteal fossa, not the removal of his ACL. Appellant also stated on at least two occasions that
he reinjured his knee in 2004. He has failed to present evidence establishing that his current
condition resulted from his accepted 1997 injury.

9

20 C.F.R. § 10.5(y).

10

See J.F., 58 ECAB ___ (Docket No. 06-186, issued October 17, 2006).

11

Id.

12

Mary A. Ceglia, supra note 5; Albert C. Brown, 52 ECAB 152 (2000).

13

Froilan Negron Marrero, 33 ECAB 796 (1982).

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The Office informed appellant of the type of evidence necessary to establish his claim by
letter dated May 7, 2007. The evidence submitted was insufficient to establish that appellant
sustained a recurrence of a medical condition and the Office properly denied his claim.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b)(2), a claimant may obtain review of the merits of his claim
by written request to the Office identifying the decision and specific issue(s) within the decision
which the claimant wishes the Office to reconsider, and the reasons why the decision should be
changed and by:
“(i) Showing that the Office erroneously applied or interpreted a point of law; or
“(ii) Advancing a point of law or fact not previously considered by the Office; or
“(iii) Constituting relevant and pertinent evidence not previously considered by
the Office.”14
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 paragraphs 10.606(b)(2)(i) through
(iii) of that section will be denied by the Office without review of the merits of the claim.15
ANALYSIS -- ISSUE 2
In his August 7, 2007 request for reconsideration, appellant neither alleged, nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office. 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 Board also finds that appellant did not submit relevant and pertinent evidence not
previously considered by the Office. On July 25, 2007 the Office denied appellant’s recurrence
claim on the grounds that he failed to submit a rationalized medical opinion explaining the causal
relationship between his diagnosed condition and the accepted work incident. Appellant did not
submit any relevant and pertinent evidence not previously considered by the Office in support of
his request for reconsideration. He merely submitted a personal statement reiterating the history
of injury and his request for authorization for surgery. Therefore, the Office properly determined
that this evidence did not constitute a basis for reopening the case for a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under
section 10.606(b)(2) and properly denied his August 7, 2007 request for reconsideration .

14

20 C.F.R § 10.606.

15

Id. at § 10.608(b).

6

CONCLUSION
The Board finds that appellant failed to establish that he sustained a recurrence of a
medical condition causally related to his December 1, 1997 employment injury. The Board
further finds that the Office did not abuse its discretion in refusing to reopen appellant’s case for
further consideration on the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 24 and July 25, 2007 are affirmed.
Issued: February 12, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0975
Issued: March 10, 2022

Case Submitted on the Record

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

JURISDICTION
On June 11, 2021 appellant filed a timely appeal from a June 4, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish stress-related
conditions in the performance of duty, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 11, 2019 appellant, then a 50-year-old paralegal specialist, filed an occupational
disease claim (Form CA-2) alleging that she sustained a series o f conditions due to workrelated stress, including bipolar disorder, hypertension, incontinence/flatulence, elevated
cholesterol, and diabetes. She indicated that she started working as a paralegal specialist for
the employing establishment on October 20, 2014. Appellant maintained that her supervisor,
L.M., created a stressful and hostile work environment over time, and indicated that there were
“Equal Employment Opportunity Commission (EEOC) issues.” She asserted that L.M. did not
like the way she communicated and asked her if she would quit her job. Appellant noted that
she first became aware of her claimed conditions on October 20, 2014 and first realized their
relation to her federal employment on July 31, 2018. She stopped work on July 17, 2017.
In a June 10, 2019 statement, appellant further discussed her claimed employment-related
conditions and again claimed that her work environment aggravated her health. She maintained
that L.M. intentionally exposed her to a hostile work environment and asked if she was going to
quit “due to circumstances surrounding my employment.”
Appellant submitted medical evidence in support of her claim, including reports of
Dr. Huong T. Dang, a Board-certified psychiatrist, and Dr. Oladapo Olarinde, a Board-certified
family practitioner. She also submitted time and attendance summary reports from July and
September 2018.
In a June 25, 2019 development letter, OWCP notified appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary
evidence. In response, appellant asserted that L.M. treated her differently on purpose due to her
race and that the harassment was continuous. She claimed that L.M. retaliated against her for
filing an EEOC complaint in 2016.
Appellant submitted documents relating to the EEOC complaint she filed in 2016. In
the complaint, she claimed that in October 2015 she was improperly instructed not to take sick
leave for the rest of the year and that in December 2015 she was denied compensatory time.
Appellant also alleged that on December 24, 2015 L.M. accused her of “gaming the system” when
she tried to change her schedule and that on February 15, 2016 she wrongly did not receive holiday
pay. She further claimed that on March 1, 2016 she was approved for reasonable
accommodation that did not address her needs and that on March 30, 2016 L.M. called her
“stupid.” Appellant alleged that on September 8, 2016 she was given an improper verbal
reprimand when L.M. asked her if she was going to quit her job and that on an unspecified date
her work duties were wrongly reduced and her work was delegated to another employee.
2

Docket No. 20-1271 (issued March 9, 2021).

2

Appellant submitted an April 16, 2019 final EEOC decision, which addressed her appeal
of a September 28, 2017 final decision denying her claims of discrimination. In this decision,
an EEOC official addressed each of her above-noted claims and found that it had been properly
determined in the prior decision dated September 28, 2017 that the employing establishment
did not subject her to discrimination or other wrongdoing. The official found that the employing
establishment provided reasonable accommodation to appellant for her bipolar disorder by
allowing her to change her schedule and that it appropriately handled matters relating to sick leave,
holiday pay, and compensatory time. The official indicated that the evidence revealed that L.M.
denied that she called appellant stupid on March 30, 2016 after appellant improperly sent out a
draft in portable document format (PDF), but that she indicated she might have commented that
it would be stupid to put a draft into PDF. The official noted that it was confirmed that L.M.
told appellant that she was “gaming the system” on December 24, 2015, when appellant attempted
to change her schedule in the middle of a pay period to get more holiday time. She noted it was
established that on September 8, 2016 L.M, told appellant that she should be careful about what
she said to people. In addition, it was established that L.M. asked appellant whether she intended
to quit and that, when appellant stated that she did not, L.M. responded by saying, “Good.” The
official concluded that, when considering L.M.’s comments and actions in context, it had not been
shown that L.M. subjected appellant to discrimination or created a retaliatory or hostile work
environment. 3
By decision July 31, 2019, OWCP denied appellant’s claim for an employment-related
emotional condition. It determined that she had not established a compensable employment factor.
On August 5, 2019 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. During the hearing held on January 16, 2020, she testified that
L.M. threw a stapler at her on October 20, 2014. Appellant indicated that L.M. asked her whether
she was going to quit and asserted that her working conditions caused or worsened her medical
conditions.
After the hearing, additional documents were added to the case record, including the
employing establishment’s January 24, 2020 proposed removal due to appellant’s excessive
absences, a February 14, 2018 notice of response deadline, August 4, 2016 and January 9, 2017
affidavits that L.M. produced in conjunction with appellant’s EEOC complaints, and August 10,
2016 and January 13, 2017 statements appellant produced in response to L.M.’s EEOC affidavits.
In her August 4, 2016 affidavit, L.M. indicated that she provided reasonable accommodation to
appellant by approving appellant’s request regarding telework days. She noted that the human
resources office advised her that she could not approve appellant’s request to change appellant’s
schedule on short notice in order to receive pay for federal holidays. L.M. indicated that in
December 2015 appellant sent out a draft document as a PDF document despite the fact that such
documents are normally sent out in Microsoft Word format. She noted that she had a conversation
with appellant, who indicated that she had intentionally sent the document as a PDF document
because she thought it was a good idea. L.M. reported that she did not call appellant stupid
but might have stated that it would be stupid to send the draft in the wrong format. With regard to
appellant’s allegation that she was accused of “gaming the system” with respect to her request to
3

Appellant also submitted additional medical evidence in support of her claim.

3

change her work schedule, L.M. explained that she told appellant that it would be improper and
gaming the system, to change her schedule in the middle of a pay period in order to receive pay
for a holiday. She claimed that she treated appellant fairly with respect to leave matters.
In an August 10, 2016 affidavit produced in response to L.M.’s August 4, 2016 affidavit,
appellant contested L.M.’s assertions with respect to schedule changes. She claimed that L.M.
did, in fact, call her stupid with respect to the matter involving the PDF document, and expressed
her belief that L.M. was accusing her of theft when she stated that she was gaming the system.
Appellant also generally contested L.M.’s assertions that she had properly handled matters relating
to leave usage and work assignments.
In her January 9, 2017 affidavit, L.M. indicated that she recalled meetings with appellant
on September 8 and 15, 2016 and denied that she acted improperly. She noted that during the
September 15, 2016 meeting she advised appellant that she needed to be careful about what she
stated to people and consider their points of view. L.M. indicated that this comment was made
in the context of the other paralegal having felt that appellant made various accusations against her.
She also noted that, during this meeting, she asked appellant if she was considering quitting
because of the communication issues and overlapping schedule problems among the clerks.
When appellant indicated that she was not quitting, L.M. noted that she replied, “Good.” She
noted that she later apologized to appellant and told appellant that she was trying to speak
openly and plainly. L.M. indicated that she did not recall telling appellant that a certain work
assignment was none of her business.
In a January 13, 2017 statement, appellant asserted that L.M. did, in fact, tell appellant that
a work assignment involving redaction of information was none of her business. She restated her
belief that L.M. unfairly reprimanded her during the September 15, 2016 meeting and that she
made improper comments about her communication skills.
The case record was also supplemented to include the original September 28, 2017 final
EEOC decision on appellant’s complaint. In this decision, an EEOC official determined that the
full evidentiary record did not establish that L.M. subjected appellant to discrimination or created
a retaliatory or hostile work environment. She found that the employing establishment provided
reasonable accommodation to appellant for appellant’s bipolar disorder and appropriately handled
matters relating to sick leave, holiday pay, and compensatory time. The official noted that L.M.
explained that she reassigned some of appellant’s tasks to another employee because the work
schedule of that employee made it more suitable for her to perform those tasks. She indicated that
the evidence revealed that L.M. denied that she called appellant stupid on March 30, 2016 after
appellant improperly sent out a draft in PDF, but that L.M. had indicated that she might have stated
that it would be stupid to put a draft into PDF. The official noted that it was confirmed that L.M.
told appellant that she was gaming the system, and that she should be careful about what she stated
to people. In addition, the EEOC decision established that L.M. asked appellant whether she
intended to quit and that, when appellant stated that she did not, L.M. responded by saying,
“Good.” The official concluded that, when considering L.M.’s comments and actions in context,
no improper actions were committed.

4

By decision dated April 1, 2020, OWCP’s hearing representative affirmed the July 31,
2019 decision. Appellant appealed to the Board and, by decision dated March 9, 2021,4 the Board
affirmed the April 1, 2020 decision.
On March 9, 2021 appellant requested reconsideration of the denial of her emotional
condition claim. In support of her reconsideration request, she submitted two e-mails from the
Office of Personnel Management (OPM), a February 16, 2021 e-mail advising her that a disability
earnings survey had opened and a February 28, 2021 e-mail informing her that it had received her
response to an OPM disability eligibility survey. Appellant also submitted a March 11, 2020
notification of personnel action (Standard Form (SF) 50) memorializing her retirement from the
employing establishment on disability retirement. In an accompanying statement, she argued that
the fact that she retired on disability proved that managers committed wrongdoing and that she
was subjected to a hostile work environment.
By decision dated June 4, 2021, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury. 6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 7
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition. 8
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
4

Supra note 2.

5

Supra note 1.

6

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

7

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
8

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).

5

reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA. 9 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position. 10
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors. 11 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors. 12
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered. 13 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, it must base its decision on an analysis of the medical evidence. 14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
The Board preliminarily notes that it is unnecessary to consider the evidence appellant
submitted prior to the issuance of OWCP’s April 1, 2020 decision, which was considered by the
Board in its March 9, 2021 decision. Findings made in prior Board decisions are res judicata
absent further merit review by OWCP under section 8128 of FECA. 15
Appellant alleged that she sustained an emotional condition due to various incidents and
conditions at her place of work. Therefore, the Board must initially review whether these alleged
9

Lillian Cutler, 28 ECAB 125 (1976).

10

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

11

B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).

12

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

13

See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

14

Id.

15

C.M., Docket No. 19-1211 (issued August 5, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

6

incidents and conditions are covered employment factors under the terms of FECA. The Board
notes that appellant’s claim does not directly relate to her regular or specially assigned duties
under Lillian Cutler.16 Rather, appellant claimed that her supervisor, L.M., committed error and
abuse with respect to various administrative/personnel matters. She also claimed that L.M.
subjected her to harassment and discrimination.
With respect to administrative or personnel matters, appellant claimed that L.M.
mishandled matters related to sick leave, holiday pay, compensatory pay, reasonable
accommodation requests, and the assignment of work tasks. The Board has held that
administrative and personnel matters, although generally related to the employee’s employment,
are administrative functions of the employer rather than the regular or specially assigned work
duties of the employee and are not covered under FECA.17 However, the Board has also held that,
where the evidence establishes error or abuse on the part of the employing establishment in what
would otherwise be an administrative matter, coverage will be afforded.18 In determining whether
the employing establishment has erred or acted abusively, the Board will examine the factual
evidence of record to determine whether the employing establishment acted reasonably. 19
The Board finds that appellant has not submitted sufficient evidence to establish the abovenoted claims about administrative/personnel matters. Appellant submitted two e-mails from
OPM, a February 16, 2021 e-mail advising her that a disability earnings survey had opened, and a
February 28, 2021 e-mail informing her that it had received her response to an OPM disability
eligibility survey. She also submitted a March 11, 2020 SF 50 memorializing her disability
retirement from the employing establishment on disability retirement. Appellant argued that the
fact that she retired on disability retirement proved that managers committed wrongdoing.
However, this evidence would not in any way show that management committed error or abuse
with respect to administrative or personnel matters. Appellant has not otherwise presented
evidence, such as a final decision of an administrative body, to show that L.M. or other managers
committed error or abuse with respect to administrative or personnel matters.20 In addition, the
mere fact that appellant retired on disability retirement would not support her claims regarding
administrative/personnel matters. Although appellant expressed dissatisfaction with the actions of
L.M., the Board has held that mere dislike or disagreement with certain supervisory actions will
not be compensable absent error or abuse on the part of the supervisor. 21 Therefore, she has not
established a compensable employment factor with respect to administrative or personnel matters.
Appellant also alleged harassment and discrimination by L.M. and claimed that she created
a stressful hostile work environment. She asserted that L.M. treated her differently on purpose
16

See supra note 9.

17

T.L., Docket No. 18-0100 (issued June 20, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen,
41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
18

M.S., Docket No. 19-1589 (issued October 7, 2020); William H. Fortner, 49 ECAB 324 (1998).

19

J.W., Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).

20

See generally M.R., Docket No. 18-0304 (issued November 13, 2018).

21

T.C., Docket No. 16-0755 (issued December 13, 2016).

7

due to her race and retaliated against her for filing an EEOC complaint in 2016. Appellant also
claimed that L.M. made comments and engaged in actions that rose to the level of harassment and
discrimination. To the extent that disputes and incidents alleged as constituting harassment are
established as occurring and arising from an employee’s performance of his or her regular duties,
these could constitute employment factors. 22 The Board has held that unfounded perceptions of
harassment do not constitute an employment factor.23 Mere perceptions are not compensable
under FECA and harassment can constitute a factor of employment if it is shown that the
incidents constituting the claimed harassment actually occurred.24
As noted above, appellant submitted February 16 and 28, 2021 e-mails from OPM and
a March 11, 2020 SF 50. She argued that the fact that she retired on disability retirement proved
that she was subjected to a hostile work environment. However, these docum ents do not
support appellant’s claims of harassment and discrimination and the mere f act that she
retired on disability retirement also would not support her claims of harassment/
discrimination . Appellant has not submitted sufficient documentary evidence to show that
L.M. subjected her to harassment or discrimination. 25 Therefore, she has not established a
compensable employment factor with respect to the claimed harassment and discrimination. As
the Board finds that appellant has not established a compensable employment factor, it is not
necessary to consider the medical evidence of record. 26
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.

22

D.B., Docket No. 18-1025 (issued January 23, 2019); David W. Shirey, 42 ECAB 783, 795-96 (1991).

23

See F.K., Docket No. 17-0179 (issued July 11, 2017).

24

See id.

25

See B.S., Docket No. 19-0378 (issued July 10, 2018).

26

See B.O., Docket No. 17-1986 (issued January 18, 2019) (finding that it is not necessary to consider the medical
evidence of record if a claimant has not established any compensable employment factors). See also Margaret S.
Krzycki, 43 ECAB 496, 502-03 (1992).

8

ORDER
IT IS HEREBY ORDERED THAT the June 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 10, 2022
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
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U.S. POSTAL SERVICE, POST OFFICE,
)
New York, NY, Employer
)
___________________________________________ )
A.G., Appellant

Appearances:

Docket No. 09-1599
Issued: May 11, 2010

Case Submitted on the Record

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

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 8, 2009, appellant filed a timely appeal from an April 30, 2009 decision of the
Office of Workers’ Compensation Programs that affirmed the termination of his compensation
for refusing suitable work. 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 the Office properly terminated appellant’s compensation effective
April 13, 2008 on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
On July 26, 2004 appellant, then a 55-year-old letter carrier, filed a traumatic recurrence
of disability claim for which he stopped work on July 23, 2004. He alleged a recurrence of a
January 23, 2003 injury and that he was unable to perform his normal duties due to pain in his
right arm and shoulder. The Office adjudicated the claim as a new injury and accepted an

aggravation of cervical radiculopathy, closed cervical dislocation and neck sprain.1 Appellant
was placed on the periodic rolls and received appropriate compensation.2
Appellant received treatment from Dr. Lyzette Velazquez, a Board-certified psychiatrist
and neurologist, Dr. Dudley K. Angell, a Board-certified physiatrist, and Dr. Sireen Gopal, a
Board-certified physiatrist. He also received chiropractic treatment from Dr. James R. McGee, a
chiropractor. On November 24, 2004 Dr. Velazquez advised that appellant’s condition was
employment related and that he was totally disabled. In a report dated March 10, 2006,
Drs. Gopal and Angell, diagnosed cervical disc herniation with radiculopathy and recommended
cervical injections, which he later received.
On February 12, 2007 the Office referred appellant to Dr. Robert M. Israel, a Boardcertified orthopedic surgeon, for a second opinion regarding the extent of his residuals and
ability to work. In a March 6, 2007 report, Dr. Israel reviewed appellant’s history of injury and
treatment. He examined appellant and determined that the C5-6 disc herniation was resolved.
Dr. Israel explained that there were no objective findings and no aggravation. He explained that
appellant’s injury-related condition resolved and that he was capable of performing the full
duties of his job as a letter carrier without restrictions. Dr. Israel found that appellant had
reached maximum medical improvement.
On March 30, 2007 the Office determined that a conflict in medical opinion arose
between Dr. Velasquez the treating physician, and Dr. Israel the second opinion physician,
regarding appellant’s residuals and capacity for work.
On June 12, 2007 the Office referred him, together with a statement of accepted facts and
the medical record, to Dr. Martin Barschi, a Board-certified orthopedic surgeon, for an impartial
medical evaluation. In a July 3, 2007 report, Dr. Barschi reviewed appellant’s history of injury
and medical treatment. On examination of the cervical spine, appellant had normal flexion,
extension and lateral rotation. Dr. Barschi noted that there was no paraspinal muscle spasm but
tenderness to palpation in the left trapezius area. He noted that appellant had tenderness to
palpation in the right scapulothoracic border. Dr. Barschi found that the shoulders did not abduct
past 100 degrees with complaint of pain. He noted that appellant had normal rotation and no
tenderness in the subacromial space area in either shoulder. There was no thenar or hypothenar
atrophy in the hands. Dr. Barschi’s examination of the back and lower extremities revealed no
positive relevant orthopedic findings. He advised that appellant had symptoms consistent with
cervical spine radiculopathy and chronic degenerative changes in his cervical spine. Dr. Barschi
reviewed a July 11, 2007 magnetic resonance imaging (MRI) scan from Dr. Andre Khoury, a
Board-certified diagnostic radiologist, which revealed no evidence of any acute disc herniation.
He opined that appellant had not recovered from the aggravation of his cervical radiculopathy
which occurred on July 23, 2004. Dr. Barschi explained that there was no necessity for any
further physical therapy or chiropractic treatment as appellant could begin a program of home
exercise. Regarding any neurologic or psychiatric care, he recommended evaluation by an
appropriate specialist. Dr. Barschi advised that appellant could return to work with permanent
1

Both claims were combined into a master claim file. The 2003 claim was accepted for cervical radiculopathy.

2

The record reflects that appellant was being treated for a preexisting spinal condition prior to his injury.

2

restrictions, which were a result of his accepted condition and included no overhead activities or
any heavy lifting or carrying. He specified that appellant should do no more than one to two
hours of reaching, no reaching above the shoulder, one to two hours of twisting and operating a
motor vehicle, no more than two to four hours of repetitive movements of the wrists and elbows,
pushing of no more than 15 pounds, pulling and lifting of no more than 10 pounds and no
climbing.
A July 11, 2007 MRI scan, read by Dr. Khoury, revealed degenerative disc disease with a
central and bilateral disc herniation at C5-6 and C6-7 and a bulging disc at C4-5. He advised
that the herniation reached the spinal cord at C5-6 and C6-7.
In an August 3, 2007 report, Dr. Velazquez opined that appellant was disabled from
January 23, 2003 to October 8, 2007. She diagnosed cervical and lumbar radiculopathy.
Dr. Velazquez continued to treat appellant and find that he was totally disabled. In an
August 21, 2007 work capacity report, she advised that he was unable to perform his usual job.
Dr. Velazquez stated that appellant could only work 1 to 2 hours per day and prescribed
restrictions, which included less than 1 hour of sitting, walking, standing, twisting, bending or
stooping, less than 10 minutes of reaching, no reaching above the shoulder, operating a motor
vehicle at work or to and from work for less than five miles, no more than 30 minutes of
repetitive movements of the wrists, elbows, pushing, pulling, lifting, squatting, kneeling,
climbing and 20 to 30 minute breaks every 1 to 2 hours. She also noted that appellant could only
push, pull or lift one to two pounds every one to two hours. Dr. Velazquez indicated that
appellant’s restrictions were permanent.
In a November 20, 2007 report, Dr. Nathaniel L. Tindel, a Board-certified orthopedic
surgeon to whom appellant was referred by Dr. Velazquez, diagnosed chronic neck pain with
bilateral cervical radiculopathy. He recommended additional physical therapy.
On January 11, 2008 the employing establishment offered appellant a modified limitedduty letter carrier assignment based on Dr. Barschi’s restrictions. The duties consisted of
delivering express and drop mail for two hours, maintaining books and mail for one hour,
separating mail for two hours and carrier pickups and delivery for one and a half hours. The
physical requirements included pushing of no more than 15 pounds, pulling and lifting up to
10 pounds, repetitive movements of the wrist and elbow for up to four hours per day on an
intermittent basis, reaching, twisting and driving to work for no more than two hours per day,
intermittently and no reaching above the shoulder or climbing.
By letter dated January 23, 2008, the Office advised appellant that the modified letter
carrier position was suitable to his capabilities and available. It found that his work restrictions,
as provided by Dr. Barschi, were consistent with the offered position. Appellant was advised
that he should accept the position or provide an explanation for refusing the position within
30 days. The Office informed him that if he did not accept the offered position and his refusal
was not justified, his compensation would be terminated.
On February 8, 2008 appellant refused the modified job offer. He contended that he was
unable to work and would be having surgery on his spine. Appellant also provided a January 16,

3

2008 report from Dr. Velazquez, who reiterated her previous opinion and noted that he was in
need of surgery.
In reports dated January 16 and 29, 2008, Dr. Tindel noted that appellant had ongoing
symptoms in his neck and both arms. Appellant’s range of cervical motion was diminished by
30 percent with flexion and extension. Dr. Tindel noted intact sensory findings with deep tendon
reflexes normal and symmetrical. He diagnosed chronic neck pain with bilateral cervical
radiculopathy, cervical stenosis with multi-level degenerative disc disease C4-5, C5-6 and C6-7.
Dr. Tindel noted that appellant was considering surgery, was unable to return to work and
remained totally disabled. He further noted that appellant could not push up to 15 pounds or
perform any type of repetitive movement. Dr. Tindel advised that appellant could not do any
reaching, twisting or driving or any reaching over the shoulder due to his cervical stenosis.
By letter dated February 11, 2008, the Office informed appellant that his reasons for
refusing the position were not supported and allowed an additional 15 days for him to accept the
position. Regarding pending surgery, it advised appellant that surgery had not been authorized.
He was advised that no further reason for refusal would be considered.
On February 15 and 21, 2008 appellant contacted the Office and was advised to submit
any reasons for refusal in writing.
In a letter dated February 22, 2008, appellant stated he was surprised that Dr. Barschi
found that he was able to work. He noted that Dr. Barschi ordered an MRI scan on July 11,
2007, but he was never given the opportunity to refute his findings. Appellant informed the
Office that Dr. Tindel had submitted a request for surgery on his cervical spine, but that he had
not received any response. On February 25, 2008 he advised the Office that his physician would
submit a report shortly.
In a February 25, 2008 report, Dr. Velazquez stated that appellant underwent
conservative treatment that included chiropractic manipulation, physical therapy and cervical
epidurals with minimal response. On February 15, 2008 appellant remained symptomatic with
neck pain radiating to both shoulders. Dr. Velazquez advised that he was considering surgery.
She stated that appellant’s neurological examination showed “2+” cervical spine tenderness and
spasms with limited range of motion, flexion of 40/45 degrees, extension of 10/30 degrees, right
lateral flexion of 45/65 degrees and left lateral flexion of 35/65 degrees. Dr. Velazquez found
weakness of the left triceps and the left handgrip and decreased sensation to pinprick and
temperature over the left arm. She diagnosed post-traumatic cervical radiculopathy due to a
herniated disc with cord impingement, chronic cervical neck stenosis with multiple level
degenerative disc disease at C4-5, C5-6 and C5-7 that was due to the July 23, 2004 injury.
Dr. Velazquez agreed with Dr. Tindel that appellant needed an anterior cervical discectomy and
fusion of C4 through C7 and possible posterior spinal fusion with instrumentation. She stated
that he was totally disabled since 2004. Dr. Velazquez noted that appellant was unable to lift,
push or pull more than 5 to 10 pounds. She also advised that he was unable to do repetitive
movement of the wrist and elbow for more than 10 to 15 minutes or reach, twist and drive for
more than 30 to 45 minutes. Dr. Velazquez also advised that he could not work an eight-hour
day or do any above the shoulder repetitive activities due to his cervical spinal stenosis with
nerve entrapment, especially in the left arm. She explained that appellant had weakness of the

4

left arm that would endanger his condition if he lifted more than 5 to 10 pounds in a repetitive
motion. In a separate report of the same date, Dr. Velazquez opined that he was totally and
permanently disabled and could not work eight hours a day and could not push up to 15 pounds.
In an April 7, 2008 telephone call memorandum, the Office confirmed that the proposed
job offer remained available.
By decision dated April 9, 2008, the Office terminated appellant’s monetary
compensation benefits effective April 13, 2008. It found that he refused suitable work and that
the report of Dr. Barschi, the impartial medical examiner, represented the weight of the
evidence.3
Appellant’s representative requested reconsideration on February 3, 2009. He contended
that the Office did not sufficiently develop the medical evidence and that the conditions resulting
from the accepted injury were improperly identified, which resulted in the second opinion and
impartial examiners not having appropriate information. Appellant’s representative contended
that the Office improperly referred appellant for a second opinion physician, which constituted
physician shopping. He asserted that the second opinion report was not rationalized or sufficient
to create a conflict. Appellant’s representative also argued that the report of the impartial
medical examiner was deficient and not entitled to special weight.
In a November 1, 2008 report, Dr. Tindel listed appellant’s history and findings on
examination. He advised that the July 11, 2007 MRI scan showed multilevel changes at C4-5,
C5-6 and C6-7 with loss of disc space height, degeneration and herniated discs with spinal
stenosis, but no significant spinal cord compression. Dr. Tindel diagnosed chronic neck pain
with bilateral cervical radiculopathy and cervical stenosis with multilevel degenerative disc
disease at C4-5, C5-6 and C6-7 with disc herniation. He explained that, prior to the injury,
appellant had no neck pain or cervical spine symptoms. Immediately, after the injury, appellant
developed neck pain and neurological symptoms consistent with injury, which included spinal
cord compression due to the herniated discs. Dr. Tindel noted that appellant’s examination was
notable for symmetric but hyperreflexic reflexes and marked limitation of the cervical spine,
which was in contrast to the findings of Dr. Israel, who reported “no objective findings at this
time.” He agreed with Dr. Israel, who noted symmetrical deep tendon reflexes; however,
Dr. Israel did not document the grade of reflex (0, 1, 2 or 3), only that they were the same on
both sides (symmetric). Dr. Tindel explained that appellant was “in fact, symmetrically
hyperreflexic,” which was consistent with spinal cord compression. He also noted that
Dr. Barschi had recommended a neurological evaluation. Dr. Tindel reviewed the offer of
limited duty and opined that appellant could not perform the job duties. He advised that
appellant was permanently disabled from employment as a result of conditions causally related
to the injury of July 23, 2004.
By decision dated April 30, 2009, the Office denied modification of the April 9, 2008
decision.
3

On December 8, 2008 the Office denied authorization for anterior cervical discectomy and fusion. In the
April 9, 2009 decision, it vacated this decision and directed appellant to submit a new request for the surgery from
his physician.

5

LEGAL PRECEDENT
Once the Office accepts a claim it has the burden of justifying termination or
modification of compensation benefits.4 This includes cases in which the Office terminates
compensation under section 8106(c)(2) of the Federal Employees’ Compensation Act for refusal
to accept suitable work.5 The issue of whether an employee has the physical ability to perform a
modified position offered by the employing establishment is primarily a medical question that
must be resolved by medical evidence.6
Section 8106(c)(2)7 of the Act provides that a partially disabled employee who refuses or
neglects to work after suitable work is offered to, procured by or secured for the employee is not
entitled to compensation. Section 10.517(a)8 of the Office’s regulations provide that an
employee who refuses or neglects to work after suitable work has been offered or secured for
him or her has the burden to show that this refusal or failure to work was reasonable or justified
after providing the two notices described in section 10.516,9 the Office will terminate the
employee’s entitlement to further compensation under 5 U.S.C. § 8105, 8106-07, as provided by
5 U.S.C. § 8106(c)(2). However, the employee remains entitled to medical benefits as provided
by 5 U.S.C. § 8103 or justified. To justify termination, the Office must show that the work
offered was suitable10 and must inform appellant of the consequences of refusal to accept such
employment.11
ANALYSIS
The Office accepted that appellant sustained an aggravation of cervical radiculopathy,
closed dislocation cervical and neck sprain. It terminated his compensation effective April 13,
2008 based on his refusal of suitable work.
The Office properly found that a conflict was created between the treating physician,
Dr. Velazquez, a Board-certified neurologist, who opined that appellant was totally disabled and
Dr. Israel, a Board-certified orthopedic surgeon and second opinion physician, who opined that
appellant could return to full duty without restrictions on March 6, 2007. Section 8123(a) of the
Act provides, in pertinent part: “If there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
4

Betty F. Wade, 37 ECAB 556, 565 (1986); Ella M. Garner, 36 ECAB 238, 241 (1984).

5

See Y.A., 59 ECAB ___ (Docket No. 08-254, issued September 9, 2008).

6

T.T., 58 ECAB 296 (2007).

7

5 U.S.C. § 8106(c)(2).

8

20 C.F.R. § 10.517(a).

9

Id. at § 10.516.

10

See Carl W. Putzier, 37 ECAB 691 (1986); Herbert R. Oldham, 35 ECAB 339 (1983).

11

See Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992). See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.5(d)(1).

6

a third physician who shall make an examination.”12 Where a case is referred to an impartial
medical specialist for the purpose of resolving a conflict, the opinion of such specialist, if
sufficiently well rationalized and based on a proper factual and medical background, must be
given special weight.13 Thus, the Office properly referred appellant to Dr. Barschi to resolve the
medical conflict.
The Board finds that the medical evidence does not establish that appellant was capable
of performing the job requirements of the offered position. Dr. Barschi’s July 3, 2007 report,
noted appellant’s history and findings but did not explain apparent inconsistencies within his
report or provide sufficient medical rationale for certain findings.14 In reviewing the July 11,
2007 MRI scan from Dr. Khoury’s record, Dr. Barschi noted that the scan showed central and
bilateral disc herniation at C5-6 and C6-7 and a bulging disc at C4-5 but he also found no
evidence of acute disc herniation. This is in contrast to the findings in Dr. Khoury’s report,
which noted that the herniation at C5-6 and C6-7 reached the spinal cord. Dr. Barschi did not
address this apparent inconsistency. Concluding that appellant had no relevant objective
orthopedic findings of the back, the physician concluded that appellant had symptoms consistent
with a cervical spine radiculopathy and chronic degenerative changes in his cervical spine and
advised that appellant had not recovered from the aggravation of his cervical radiculopathy
which occurred on July 23, 2004. He recommended a return to work with permanent restrictions
and explained that they were due to the accepted condition, he did not explain his reasoning in
how he arrived at this conclusion, since also indicated there were limited relevant orthopedic
findings. Dr. Barschi also did not explain why appellant required no further treatment, other than
a home exercise program, for these continuing symptomatic conditions. Additionally, the Board
also notes that Dr. Barschi recommended that appellant be referred to an appropriate specialist
for his neurological or psychiatric symptoms.
The Office did not seek further clarification of these matters. It also did not refer
appellant for a neurological or psychiatric evaluation as suggested by Dr. Barschi. This is
important since the medical record indicates that there may be neurological components to
appellant’s condition and since, to terminate benefits under 5 U.S.C. § 8106(c), the Office must
consider both preexisting and subsequently acquired conditions in determining the suitability of
an offered position.15 The Board has held that, when the Office obtains an opinion from an
impartial medical specialist for the purpose of resolving a conflict in the medical evidence and
the specialist’s opinion requires clarification or elaboration, the Office must secure a
supplemental report from the specialist to correct the defect in his original report.16
12

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan),
45 ECAB 207, 210 (1993).
13

See Roger Dingess, 47 ECAB 123, 126 (1995); Juanita H. Christoph, 40 ECAB 354, 360 (1988); Nathaniel
Milton, 37 ECAB 712, 723-24 (1986).
14

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).
15

E.H., 60 ECAB ___ (Docket No. 08-1862, issued July 8, 2009).

16

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

7

The Board finds that the medical conflict remains unresolved. Consequently, the Office
has not met its burden of proof to terminate appellant’s monetary compensation on the grounds
that he refused an offer of suitable work.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation effective April 13, 2008 on the grounds that he refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the April 30, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 11, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-451
Issued: April 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 22, 2014 appellant, through counsel, filed a timely appeal of a
November 20, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) which denied her request for reconsideration. The most recent merit decision is a
Board decision dated November 19, 2013, which became final after 30 days of issuance,1 and is
not subject to further review.2 Pursuant to the Federal Employees’ Compensation Act3 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board only has jurisdiction over the nonmerits of this
case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
1

20 C.F.R. § 501.7(a); see R.M., Docket No. 14-1213 (issued October 15, 2014).

2

Id. at § 501.6(d); see R.M., id.

3

5 U.S.C. § 8101 et seq.

On appeal, counsel contends that OWCP’s decision was contrary to fact and law.
FACTUAL HISTORY
This case was previously before the Board.4 On January 16, 2007 appellant, a 37-yearold city carrier, filed a traumatic injury claim (Form CA-1) alleging that she injured her head,
neck, and back as a result of stepping out of a vehicle and slipping on ice. By decision dated
April 7, 2011, OWCP accepted the claim for neck sprain. On March 31, 2011 appellant, through
counsel, filed a claim for a recurrence of disability (Form CA-2a). In a December 9, 2011
decision, OWCP denied the recurrence claim on the basis that the medical evidence was
insufficient to establish that appellant sustained a recurrence of her medical condition
commencing March 30, 2011 causally related to the January 16, 2007 employment injury. By
decision dated May 8, 2012, an OWCP hearing representative affirmed the December 9, 2011
decision. Appellant requested reconsideration. By decision dated April 19, 2013, OWCP denied
modification of its prior decision. By decision dated November 19, 2013, the Board affirmed the
April 19, 2013 OWCP merit decision which denied appellant’s recurrence claim. The facts of
the case, as set forth in the prior decision, are hereby incorporated by reference.
On December 11, 2013 appellant, through counsel, requested reconsideration and
submitted an April 14, 2011 report from Dr. Harold Hess, a Board-certified neurosurgeon, who
diagnosed cervical pain and opined that the condition was causally related to appellant’s
employment injury when she slipped at work in January 2007. Dr. Hess indicated that, if
appellant’s pain did not improve after a full course of conservative treatment, he would
recommend further diagnostic testing, including a cervical myelogram followed by a
computerized axial tomography (CAT) scan.
By decision dated January 9, 2014, OWCP denied appellant’s request for reconsideration
of the merits finding that she did not submit pertinent new and relevant evidence and did not
show that OWCP erroneously applied or interpreted a point of law not previously considered by
OWCP.
On November 4, 2014 appellant, through counsel, requested reconsideration and
submitted an October 24, 2014 report from Dr. Hess who indicated that his opinion remained the
same as his last visit with appellant on February 14, 2013, which was that she was suffering from
cervical discogenic pain and he recommended a cervical discogram of C3-7.
By decision dated November 20, 2014, OWCP denied appellant’s request for
reconsideration of the merits finding that she did not submit pertinent new and relevant evidence
and did not show that OWCP erroneously applied or interpreted a point of law not previously
considered by OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
4

Docket No. 13-1430 (issued November 19, 2013).

2

an award for or against compensation.5 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).6
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP 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.7 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.8 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.9
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record10 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.11
ANALYSIS
In support of her November 4, 2014 reconsideration request, appellant submitted an
October 24, 2014 report from Dr. Hess who indicated that his opinion remained the same as his
last visit with appellant on February 14, 2013, which was that she was suffering from cervical
discogenic pain and he recommended further diagnostic testing. The Board finds that
submission of this report did not require reopening appellant’s case for merit review. As OWCP
denied her claim based on the lack of supportive medical evidence and this report repeats
evidence already in the case record, it is cumulative and does not constitute relevant and
pertinent new evidence. Therefore, it is not sufficient to require OWCP to reopen the claim for
consideration of the merits.
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advanced a relevant legal argument not previously
considered by OWCP. Because she only submitted cumulative evidence with her request for

5

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
6

See Annette Louise, 54 ECAB 783, 789-90 (2003).

7

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

8

Id. at § 10.607(a).

9

Id. at § 10.608(b).

10

See A.L., supra note 7. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

11

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

3

reconsideration, the Board finds that she did not meet any of the necessary requirements and she
is not entitled to further merit review.12
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds counsel’s arguments are not
substantiated.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 13, 2015
Washington, DC

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

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

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

12

See L.H., 59 ECAB 253 (2007).

4