United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN DIEGO VA MEDICAL CENTER,
San Diego, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1065
Issued: March 30, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 9, 2021 appellant filed a timely appeal from a May 3, 2021 merit decision and a
July 1, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as Docket No. 21-1065.
On August 6, 2008 appellant, then a 31-year-old vocational nurse, filed an occupational
disease claim (Form CA-2) alleging that she sustained right upper extremity injuries as a result of
factors of her federal employment including repetitive use of a computer, keyboarding, and
extensive dressing changes for patients. She indicated that she first became aware of her condition
and its relationship to her federal employment on March 3, 2008. OWCP accepted the claim for
right-sided thoracic outlet syndrome, also known as brachial plexus lesions.
On November 18, 2009 appellant underwent a right first rib resection with right anterior
scalenectomy to treat her diagnosed right thoracic outlet syndrome.
In a report dated May 8, 2010, Dr. Christopher Chisholm, a pain medicine specialist,
diagnosed reflex sympathetic dystrophy (RSD), also known as complex regional pain syndrome
(CRPS), of the upper right limb, and myofascial myalgia and myositis.

In a report dated October 11, 2010, Dr. Marilyn Carlin, an internist, diagnosed RSD
secondary to thoracic outlet syndrome despite surgical intervention.
Dr. Carlin, in a report dated April 4, 2011, diagnosed thoracic outlet syndrome with failed
response to surgery, right upper extremity chronic pain syndrome, possibly RSD, and right
hemidiaphragm paralysis as a complication of thoracic outlet syndrome, causing dyspnea on
exertion.
In a report dated October 10, 2011, Dr. Carlin diagnosed thoracic outlet syndrome,
myofascial pain syndrome versus RSD secondary to thoracic outlet syndrome and right
diaphragmatic paralysis secondary to thoracic outlet surgery.
In a report dated June 10, 2013, Dr. Carlin diagnosed thoracic outlet syndrome with
increasing pain following surgical intervention, RSD, myofascial pain syndrome, diaphragmatic
paralysis causing dyspnea on exertion, and recurrent major depression exacerbated by chronic
pain. She opined that factors of appellant’s federal employment caused appellant’s increased pain.
Dr. Carlin recommended work restrictions.
In a report dated June 25, 2014, Dr. Carlin diagnosed cervicalgia, diaphragmatic paralysis,
myofascial pain syndrome, recurrent major depression in full remission, RSD of the right upper
extremity, and thoracic outlet syndrome. In a report dated September 22, 2014, she diagnosed
thoracic outlet syndrome with poor results after surgical intervention , flare-up of chronic
cervicalgia and myofascial pain syndrome, RSD of the right upper extremity, also in flare-up, and
recurrent major depression in remission. Dr. Carlin again diagnosed these conditions in progress
notes dated August 22, 2014.
In a letter dated February 2, 2015, Dr. Carlin requested that the acceptance of appellant’s
claim be expanded to include fibromyalgia. She explained that it had developed as a result of
appellant’s chronic neck, chest wall, and right arm pain, secondary to failed surgery for thoracic
outlet syndrome and secondary RSD.
In a report dated June 25, 2015, Dr. Carlin explained that appellant continued to suffer from
thoracic outlet syndrome with increased pain following failed surgical intervention, along with
RSD and a postsurgical right partially paralyzed diaphragm. She noted that appellant had been
diagnosed with fibromyalgia as a result of her chronic myofascial pain. Dr. Carlin stated that
appellant’s conditions continued to be medically present and disabling and that appellant was
permanently disabled from all work. She reiterated appellant’s diagnoses and disability status in
narrative medical reports dated June 27, 2016 and July 17, 2017.
In progress notes dated August 24, 2016, Dr. Carlin noted, as part of appellant’s history of
present illness, that appellant had been diagnosed with fibromyalgia, failed surgery for thoracic
outlet syndrome, and development of RSD of the right upper extremity.
In a report dated July 13, 2018, Dr. Carlin again diagnosed thoracic outlet syndrome with
increased pain following surgical intervention, RSD of the right upper extremity, which began
after the failed surgery, fibromyalgia, secondary to chronic pain, diaphragmatic paralysis causing
some dyspnea on exertion, also a result of the failed surgery , and recurrent major depression
exacerbated by her chronic pain syndromes. She stated that appellant’s conditions continued to be
2

medically present and disabling, noting that appellant’s physical restrictions were extensive and
unlikely to allow her to work effectively in any job. Dr. Carlin reiterated these diagnoses and
opinions in a letter dated August 20, 2019.
In progress notes dated February 10, 2021, Dr. Peter Weis, a Board-certified
rheumatologist, examined appellant to evaluate her for fibromyalgia. He diagnosed left hip
trochanteric bursitis, pain syndrome related to complications of thoracic outlet s urgery with
chronic neck pain, and CRPS of the right upper extremity, refractory to surgery.
In a development letter dated March 24, 2021, OWCP advised appellant that it had received
notification of a possible consequential condition of CRPS of the right upper extremity. It noted
receipt of Dr. Weis’ February 10, 2021 report, but indicated that it required a detailed description
of the newly diagnosed condition. OWCP afforded appellant 30 days to submit additional medical
evidence. No additional evidence was received by OWCP.
By decision dated May 3, 2021, OWCP denied appellant’s request to expand the
acceptance of her claim to include CRPS of the right upper extremity. It again referenced
Dr. Weis’ February 10, 2021 report. By appeal request form dated June 2, 2021, postmarked on
June 3, 2021 and received by OWCP on June 9, 2021, appellant requested an oral hearing before
a representative of OWCP’s Branch of Hearings and Review. By decision dated July 1, 2021,
OWCP denied her request for an oral hearing, as the request was untimely filed. It noted that
appellant’s case had been considered in relation to the issues involved and that the issues could be
equally well addressed by requesting reconsideration and submitting evidence not previously
considered establishing that she sustained a consequential injury due to her accepted injury of
March 3, 2008.
The Board has duly considered the matter and finds that th is case is not in posture for
decision.
In the case of William A. Couch,1 the Board held that when adjudicating a claim OWCP is
obligated to consider all evidence properly submitted by a claimant and received by OWCP before
the final decision is issued. As detailed above, OWCP received a report from Dr. Chisholm dated
May 8, 2010, containing a diagnosis of RSD, also known as CRPS. It also received numerous
reports, letters, and progress notes from Dr. Carlin beginning October 11, 2010 containing
diagnoses of RSD. OWCP, however, did not review this evidence in its May 3, 2021 merit
decision. It, thus, failed to follow its procedures by not considering all of the relevant evidence of
record.2

1

41 ECAB 548 (1990); see also K.B., Docket No. 20-1320 (issued February 8, 2021); R.D., Docket No. 17-1818
(issued April 3, 2018).
2

OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision.
Evidence received following development that lacks probative value also should be acknowledged. Whenever
possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Denials, Chapter 2.1401.5(b)(2) (November 2012).

3

As Board decisions are final with regard to the subject matter appealed, it is crucial that
OWCP address all relevant evidence received prior to the issuance of its final decision. 3 On
remand shall review and consider all evidence properly submitted by appellant prior to the issuance
of the May 3, 2021 OWCP decision. Following other such further development as deemed
necessary, OWCP shall issue an appropriate decision.
IT IS HEREBY ORDERED THAT the May 3, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board. 4
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

E.D., Docket No. 20-0620 (issued November 18, 2020); see also L.B., Docket No. 21-0140 (issued August 25,
2021); C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); William A.
Couch, supra note 1.
4

As this case is remanded for further proceedings, the July 1, 2021 denial of appellant’s request for an oral hearing
before an OWCP hearing representative is rendered moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
UNIVERSITY, MAXWELL AIR FORCE BASE,
AL, Employer
__________________________________________

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

Docket No. 15-681
Issued: June 17, 2015

Case Submitted on the Record

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

JURISDICTION
On February 10, 2015 appellant filed an application for review of a January 23, 2015
nonmerit decision by the Office of Workers’ Compensation Programs (OWCP). Because more
than 180 days elapsed from August 15, 1990, the date of the most recent merit decision, to the
filing of this appeal, and pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s
claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for further
review of the merits as it was untimely filed and failed to show clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 14, 1990 appellant, then a 32-year-old clerk typist, filed an occupational disease
claim (Form CA-2) alleging that on February 28, 1990, she realized that she sustained an anxiety
disorder as a result of factors of her federal employment.
By decision dated August 15, 1990, OWCP denied appellant’s claim for compensation.
It noted that appellant had claimed that her condition had been caused by harassment from her
supervisor as a result of a proposed removal action. The proposed removal action was initiated
by the employing establishment, was based on excessive use of leave, which was changed to a
60-day suspension on appeal. OWCP found that personnel matters are not compensable factors
of employment in regard to the acceptance of a claim for benefits.
By letter dated October 20, 2014, appellant requested reconsideration of her claim. She
stated that the hostile work environment of the employing establishment contributed to her
illness and that the damage done was irreparable. Appellant noted that she should have returned
to work after a 60-day suspension, and that after 2 months, they “lured [her] back with deception
by stating that [she] would be returning to [her] same position,” but that the position was not
actually the same one. With her reconsideration request, she submitted several forms and
documents relating to the proposed removal action initiated by the employing establishment.
By decision dated January 23, 2015, OWCP declined appellant’s request for
reconsideration. It found that her request was not timely filed and failed to present clear
evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
an application for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought.2 The Board has found that the imposition of the one-year
limitation does not constitute an abuse of the discretionary authority granted OWCP under
section 8128(a) of FECA.3
OWCP may not deny an application for review solely because the application was
untimely filed. When an application for review is untimely filed, it must nevertheless undertake
a limited review to determine whether the application establishes clear evidence of error.4

2

20 C.F.R. § 10.607(a).

3

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

4

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

2

OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the
claimant’s application for review shows clear evidence of error on the part of OWCP.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.6 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.7 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.9 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.10
The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.11 In order to establish clear evidence of error, the evidence
submitted must not only be of sufficient probative value to create a conflict in medical opinion or
establish a clear procedural error, but must be of sufficient probative value to shift the weight of
the evidence in favor of the claimant and raise a substantial question as to the correctness of
OWCP’s decision.12
ANALYSIS
In its January 23, 2015 decision, OWCP determined that appellant failed to file a timely
application for review. The one-year time period for requesting reconsideration of an OWCP
decision begins on the date of that original decision.13 Appellant’s request for reconsideration
was filed on October 20, 2014, over 24 years after OWCP’s August 15, 1990 decision.
Therefore, she must show clear evidence of error on the part of OWCP in issuing this decision.
5

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a)
(October 2011). OWCP’s procedure manual further provides, “The term ‘clear evidence of error’ is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made a
mistake. For example, a claimant provides proof that a schedule award was miscalculated, such as a marriage
certificate showing that the claimant had a dependent but the award was not paid at the augmented rate.”
6

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

7

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

8

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

9

See Leona N. Travis, supra note 7.

10

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

11

See Pete F. Dorso, 52 ECAB 424, 427 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

12

See Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

13

20 C.F.R. § 10.607(a).

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Appellant has not demonstrated clear evidence of error on the part of OWCP in issuing
its August 15, 1990 decision. She did not submit the required positive, precise, and explicit
evidence which shows on its face that OWCP committed an error.
Appellant’s request for reconsideration, submitted along with documents related to her
proposed removal action from the employing establishment that was later modified into a 60-day
suspension, merely restated the arguments of her original claim and gave a history of her
condition. The basis for the rejection of her original claim was that the claimed factors of
employment did not occur in the performance of her duty.
The evidence submitted on reconsideration deals with an administrative action dealing
with a personnel matter related to excessive use of leave. This evidence does not establish clear
error. Appellant also alleged harassment, but provided only records of the administrative action
related to her dispute with the employing establishment. These documents, in themselves, are
not the type of probative and reliable evidence sufficient to shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s August 15,
1990 decision.
For these reasons, the evidence submitted by appellant does not raise a substantial
question concerning the correctness of OWCP’s August 15, 1990 decision, and OWCP properly
determined that appellant did not demonstrate clear evidence of error in that decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim as her request was untimely filed and failed to demonstrate
clear evidence of error.

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ORDER
IT IS HEREBY ORDERED THAT the January 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 17, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION, MEDICAL
CENTER, Bronx, NY, Employer
__________________________________________

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

Docket No. 17-1197
Issued: November 1, 2017

Case Submitted on the Record

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

JURISDICTION
On May 10, 2017 appellant filed a timely appeal from a January 17, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The most recent merit
decision was a Board decision dated May 29, 2013. A decision of the Board is final upon the
expiration of 30 days from the date of that decision.2 OWCP has not issued a merit decision
since the Board’s May 29, 2013 merit decision. As the January 17, 2017 nonmerit decision is the
only decision issued within 180 days of this appeal, pursuant to the Federal Employees’

1

Appellant timely requested an oral argument before the Board pursuant to section 501.5(b) of the Board’s Rules
of Procedure, 20 C.F.R. § 501.5(b). After exercising its discretion, by order dated September 8, 2017, the Board
denied the request for oral argument as the Board did not have jurisdiction over the merits of the case and oral
argument would further delay issuance of a decision. Order Denying Request for Oral Argument, Docket No. 171197 (issued September 8, 2017).
2

20 C.F.R. § 501.6(d).

Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction
over the merits of this case.4
ISSUE
The issue is whether OWCP properly determined that appellant’s December 6, 2016
request for reconsideration was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. The facts as set forth in the Board’s
prior decision are incorporated herein by reference.5 The relevant facts are as follows.
On October 28, 2011 appellant, then a 56-year-old program support assistant, filed a
traumatic injury claim (Form CA-1) alleging an injury to her low back on October 26, 2011
during the course of her federal employment. She alleged that she was the victim of an assault
and battery that occurred when an elderly man punched her from behind as she was leaving the
employing establishment cafeteria. Appellant stopped work on October 28, 2011.
In a decision dated December 19, 2011, OWCP denied appellant’s claim, finding that the
assault did not occur as alleged. On December 28, 2011 appellant requested a hearing before an
OWCP hearing representative. By decision dated May 17, 2012, a hearing representative
affirmed the denial of appellant’s claim.
On June 12, 2012 appellant appealed to the Board. By decision dated May 29, 2013, the
Board affirmed the hearing representative’s May 17, 2012 decision. The Board determined that
appellant had not established that the incident occurred as alleged, noting inconsistencies in her
statements, the video evidence, the lack of eyewitnesses despite numerous individuals in and
around the area where the incident allegedly occurred, and her behavior subsequent to the
alleged incident.6
By letter dated December 1, 2016, received by OWCP on December 6, 2016, appellant
requested reconsideration. She alleged that she had been wrongfully terminated from her place
of employment and wrongfully accused of not providing information.7 Appellant alleged that

3

5 U.S.C § 8101 et seq.

4

Appellant submitted new evidence on appeal. However, since the Board’s jurisdiction is limited to evidence
that was before OWCP at the time it issued its final decision, the Board may not consider the evidence for the first
time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).
5

Docket No. 12-1353 (issued May 29, 2013).

6

Id.

7

Appellant’s letter also appears to be a request for reconsideration of her claim for a consequential injury for
hepatitis due to a needle stick on July 11, 2001 in File No. xxxxxx949. OWCP is developing this case separately.
File No. xxxxxx949 is not presently before the Board.

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three employees witnessed the assault, but that they later recanted their stories. She alleged that
a witness was willing to take a polygraph examination that would clear her name.
In support of her request, appellant submitted medical statements with regard to her
separate hepatitis C claim. She also continued to submit medical evidence noting continuing
treatment for persistent neck and lower back pain.
By decision dated January 17, 2017, OWCP denied appellant’s reconsideration request as
it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.8
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.9 The one-year
period begins on the next day after the date of the contested decision. For merit decisions issued
on or after August 29, 2011, a request for reconsideration must be received by OWCP within one
year of OWCP’s decision for which review is sought.10 Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the
integrated Federal Employees Compensation System (IFECS).11
OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is untimely filed, it must nevertheless
undertake a limited review to determine whether the application demonstrates clear evidence of
error.12 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review demonstrates clear evidence of error on the part of
OWCP.13
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.14 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.15 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
8

20 C.F.R. § 10.607(a).

9

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).

11

Id. at Chapter 2.1602.4b.

12

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

13

Id. at § 10.607(b); supra note 10 at Chapter 2.1602.3d (January 2004).

14

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

15

See Leona N. Travis, 43 ECAB 227, 240 (1991).

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demonstrate clear evidence of error.16 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.17 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.18 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.19
ANALYSIS
The last decision on the merits of the claim was the Board’s May 29, 2013 decision.
Appellant’s request for reconsideration was dated and received on December 6, 2016, which was
more than one year after the last merit decision of May 29, 2013.20 As appellant’s request was
untimely filed, she must demonstrate clear evidence of error on the part of OWCP in its denial of
her traumatic injury claim.21
The Board finds that appellant has not demonstrated clear evidence of error. The
underlying issue is whether appellant established that the October 26, 2011 incident occurred as
she alleged and that she was in fact assaulted and punched from behind in the employing
establishment cafeteria. The Board finds that the arguments and evidence submitted by appellant
in support of her request for reconsideration did not raise a substantial question as to the
correctness of the denial of her claim.
The term clear evidence of error is intended to represent a difficult standard, and the
argument appellant provided on reconsideration, that she had been wrongfully terminated from
employment, and that witnesses to her assault had recanted their initial statements, is not the type
of positive, precise, and explicit argument which manifested on its face that OWCP committed
an error.22 Appellant’s argument is of insufficient probative value to shift the weight in her favor
and raise a substantial question as to the correctness of OWCP’s May 17, 2012 merit decision.23

16

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

17

See supra note 15.

18

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

19

Leon D. Faidley, Jr., supra note 9.

20

J.M., Docket No. 15-1586 (issued March 23 2016) (the Board explained that, according to OWCP procedures,
the received date is determine by the document received date into the iFECS system).
21

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

22

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

23

See J.P., Docket No. 17-0053 (issued March 23, 2017).

4

In order to demonstrate clear evidence of error, a claimant must submit evidence relevant
to the issue which was decided by OWCP.24 The only evidence submitted on reconsideration
was medical evidence. However, appellant’s claim was not denied for medical reasons. Rather,
her claim was denied because she failed to establish that the employment incident occurred as
alleged. The Board finds that appellant’s argument and evidence submitted with her untimely
request for reconsideration does not rise to the level of clear evidence of error.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s reconsideration request
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 17, 2017 is affirmed.
Issued: November 1, 2017
Washington, DC

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

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

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

24

B.C., Docket No. 16-1404 (issued April 14, 2017).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bainbridge, GA, Employer
__________________________________________

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Appearances:
Tim Griffin, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1081
Issued: May 9, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 26, 2016 appellant, through her representative, filed a timely appeal from an
October 29, 2015 merit decision and a February 23, 2016 nonmerit decision of the Office of
Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
benefits effective November 6, 2013 pursuant to 5 U.S.C. § 8106(c); and (2) whether OWCP
1

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

5 U.S.C. § 8101 et seq.

properly denied appellant’s request for reconsideration of the merits of her claim pursuant to
5 U.S.C. § 8128(a).
On appeal appellant, through her representative, contends that, Dr. Nicodemo Macri, a
physiatrist, advised that, as she could not lift, due to a urological condition that was not
employment related, she was unable to perform the duties of the offered position. The
representative related that appellant saw a urologist on September 27, 2013, who also indicated
that she could not lift from September 27 to 29, 2013, but could return to full duty on
September 30, 2013. He continued that she reported for work at 7:55 a.m. on Saturday,
September 28, 2013 and was told to leave.
FACTUAL HISTORY
This case has previously been before the Board. In an October 19, 2009 decision, the
Board found that OWCP had not met its burden of proof to terminate appellant’s compensation
benefits effective March 15, 2008 pursuant to 5 U.S.C. § 8106(c) because the offered position
was not suitable. The Board observed that the opinion of a referee physician did not clearly
demonstrate that appellant could perform the duties of the offered position and that OWCP had
not considered her diagnosed emotional condition when terminating her compensation.3 The
facts of the prior appeal are incorporated herein by reference.
Subsequent to the Board’s October 19, 2009 decision, appellant received retroactive
compensation beginning March 16, 2008 and was returned to the periodic compensation rolls.
In August 2010 OWCP referred appellant to Dr. Robert S. Pilcher, a Board-certified
orthopedic surgeon, for a second opinion evaluation.4 In an August 27, 2010 report, Dr. Pilcher
noted the history of injury, appellant’s medical and surgical history, her complaints of left
shoulder girdle pain with numbness of the little and ring fingers, and his review of the medical
records. He found appellant diffusely tender about the left shoulder with excellent grip and
rotator cuff strength and some giveaway weakness. Tinel’s, Phalen’s, and Finkelstein’s tests
were negative. Dr. Pilcher diagnosed left shoulder girdle pain, cervical strain with left
radiculopathy, ulnar nerve neuropathy, and left acromioclavicular joint arthritis. He advised that
appellant’s employment-related left shoulder condition had not resolved, noting limited motion
and pain on elevation of the arm. Dr. Pilcher reviewed a job description and advised that, from a
work point of view, she could return to regular duty with permanent restrictions, including lifting
no more than 20 pounds with the left arm and no reaching above the shoulder.

3

Docket No. 09-384 (issued October 19, 2009). On April 28, 2000 appellant, a city carrier, tripped and fell
exiting her postal vehicle. OWCP accepted the claim for left shoulder strain/contusion and left shoulder
impingement, and appellant underwent arthroscopic left shoulder repair on December 7, 2007. Adhesive capsulitis
of the left shoulder was also accepted. Appellant worked limited duty until 2005 when she rejected a limited-duty
job offer and did not return to work. She was placed on the periodic compensation rolls effective March 3, 2005.
4

For many years appellant was seen by Dr. Wilton B. Reynolds, Jr., a general practitioner. Appellant was also
seen by Gary W. Smith, Ph.D., a psychologist, beginning in February 2006. Dr. Smith diagnosed major depression
and anxiety disorder due to her work. An April 15, 2008 report from Dr. Reynolds is the last medical evidence of
record, before the referral to Dr. Pilcher in June 2010.

2

The employing establishment subsequently offered appellant modified positions that she
refused.
Beginning in April 2011, Dr. Macri provided treatment notes describing examination
findings. He diagnosed left chronic, persistent acromioclavicular joint separation pain and
tenderness, left upper extremity lymphedema, and post-traumatic stress depression and sleep
disorder secondary to the above, all of which was caused by the work injury. On May 14, 2012
Dr. Macri advised that appellant could not return to work and was most likely permanently
disabled.
In November 2012 OWCP referred appellant to Dr. Raymond Derry Crosby, a Boardcertified osteopath specializing in orthopedic surgery, for a second opinion evaluation. In a
December 4, 2012 report, Dr. Crosby described the history of injury and appellant’s medical and
surgical history. He described complaints of a burning sensation over the anterior medial aspect
of the left shoulder radiating to the left elbow and pain with left shoulder range of motion.
Physical examination demonstrated painful left shoulder range of motion, and tenderness on
examination over the acromioclavicular joint. Left shoulder x-ray demonstrated no appreciable
abnormalities. Dr. Crosby reviewed the functional capacity evaluation (FCE) and advised that,
although appellant’s complaints were subjective, they were consistent with irritation to the
anterior capsular area of the left shoulder, noting that her previous surgery had not been
completely successful in alleviating her discomfort. He concluded that appellant had residuals of
the employment injury. While she could not return to regular city carrier duties, appellant could
perform light-duty work. Dr. Crosby advised that appellant could work eight hours daily with
permanent restrictions of two hours of reaching above the shoulder and operating a motor
vehicle, with pushing, pulling, and lifting below chest height limited to 20 pounds.
OWCP forwarded Dr. Crosby’s report to Dr. Macri for review. Dr. Macri continued to
submit bimonthly reports describing appellant’s condition. On February 8, 2013 Dr. Macri
advised that he agreed with all of Dr. Crosby’s recommendations except that he would limit
appellant’s lifting to 15 pounds and lifting should only be allowed between the waist and axillary
regions.
In a February 15, 2013 internal memorandum, OWCP found the weight of the medical
evidence rested with Dr. Crosby as Dr. Macri had not provided rationale for his opinion.
In brief correspondence dated February 2013, Dr. Smith diagnosed severe depression and
severe anxiety. He opined that she was totally disabled and that he did not expect that she could
return to work.
On March 13, 2013 OWCP forwarded a modified carrier job offer to appellant.
Appellant refused the position on April 3, 2013, referring to Dr. Macri’s February 8, 2013 report.
In May 2013 OWCP referred appellant to Dr. Karuna Reddy, a Board-certified
psychiatrist, for a second opinion evaluation. In a June 14, 2013 report, Dr. Reddy described the
employment injury, and appellant’s medical history and appellant’s pain symptoms plus sleep
impairment, low energy, poor concentration, and some anxiety. She performed a mental status
examination and diagnosed major depressive disorder, recurrent, of moderate severity, and
moderately severe stresses relating to her physical and emotional problems. Dr. Reddy
3

completed a psychiatric/psychological work capacity evaluation (OWCP Form 5a). She advised
that appellant could work eight hours a day in a job that was less physically demanding than
regular mail carrier duties such as sorting stamp mail and doing any mail corrections or anything
else in the office.
On June 27, 2013 OWCP accepted major depressive disorder, recurrent.
continued to submit treatment notes.

Dr. Macri

On July 13, 2013 the employing establishment offered appellant a modified city carrier
position for four hours a day, 8:00 a.m. to 10:00 a.m., and 4:00 p.m. to 6:00 p.m., effective
July 27, 2013. The job duties were: distribute, box, and case mail less than 20 pounds for no
more than two hours per day; prepare evening dispatches -- includes emptying collection boxes,
sorting mail by type into tubs, trays, hampers, and other general purpose containers, pushing,
pulling, and lifting were limited to 20 pounds for no more than two hours per day, and no
reaching with left arm greater than two hours per day, not greater than 20 pounds below the area
of the upper chest surrounding the axilla, lateral to the pectoral region. She was to grasp mail
less than 20 pounds at a time and place the mail in cases, post office boxes and other mail
transportation equipment. Reaching with the left arm was restricted to 20 pounds, two hours per
day. The offer indicated that the position was in compliance with appellant’s medical
restrictions which were no lifting greater than 20 pounds for more than two hours per day below
the area of the upper chest surrounding the axilla, lateral to the pectoral region, no pushing or
pulling with the left arm greater than 20 pounds for more than two hours per day, no reaching
with the left arm for more than two hours per day below the chest, no reaching above the left
shoulder for more than two hours per day with a 20-pound weight limit, and no climbing.
Appellant refused the position on July 19, 2013, stating that the requirements exceeded
her medical limitations, based on her doctor’s recommendations. On July 30, 2013 the
employing establishment informed OWCP that a search had been made within a 50-mile radius
for a full-time position within appellant’s restrictions and none were found.
By letter dated August 6, 2013, OWCP advised appellant that the position offered was
suitable. She was notified that if she failed to report to work or failed to demonstrate that the
failure was justified, pursuant to section 8106(c)(2) of FECA, her right to compensation for wage
loss or a schedule award would be terminated. She was given 30 days to respond.
In an undated response, appellant stated that the offered position was outside her
restrictions and that, as she would have to work alone on Saturday, she could not perform the
duties of the offered position. Appellant provided an August 22, 2013 report from Dr. Macri
who noted that she was right-hand dominant and described her complaint of severe, radiating left
shoulder pain. Following physical examination, the physician advised that, regarding her left
shoulder, she should avoid wear and tear, overuse or lifting, and was to stay within her
limitations of 15 to 18 pounds, and that she was restricted to not lifting above the axilla area.
Also submitted was a June 20, 2013 treatment note in which Dr. Macri described appellant’s
condition that day and indicated that she should avoid left shoulder wear and tear.
On September 12, 2013 OWCP ascertained that the offered position was still available.
In a September 12, 2013 letter, it advised appellant that her reasons for refusing the offered
position were not valid. Appellant was given an additional 15 days to accept and report to the
4

position, and advised that if she did not report to the job within 15 days of the date of the letter,
her entitlement to wage-loss and schedule award benefits would be terminated.
In September 16, 2013 correspondence, an employing establishment health resource
management specialist forwarded photographs representing the type of work and areas where
appellant would work. The letter indicated that appellant could utilize a rest bar as needed, and
she could seek assistance of fellow employees and management if any package appeared to be in
excess of 20 pounds.
Appellant telephoned OWCP on September 26, 2013 requesting an extension of time to
submit additional medical evidence. OWCP returned the call on September 27, 2013 and left her
a voicemail message stating that the September 12, 2013 letter did not provide an opportunity to
submit further medical evidence, just to report to work. On September 27, 2013 the employing
establishment notified OWCP that appellant had submitted medical evidence the previous day
indicating that she was totally disabled due to a urological condition. On September 30, 2013 the
employing establishment contacted OWCP, stating that appellant had reported to work on
Saturday, September 28, 2013 but when assigned tasks described on the job offer, stated that she
could not perform the tasks and left.
On October 2, 2013 Dr. Macri forwarded a September 26, 2013 duty status report (Form
CA-17) which advised that appellant could not work, stating, “please see dictated office visit
note of today.” On October 7, 2013 he forwarded a revised version of the September 26, 2013
duty status report, as of September 30, 2013. This report indicated that appellant had a lifting
limit of 12 to 15 pounds, that she could occasionally lift for less than four hours daily from the
waist to axilla area but not over her head. On October 23, 2013 Dr. Macri forwarded a
September 26, 2013 treatment note in which he again described appellant’s left shoulder pain.
The report also stated that a review of systems was negative for urinary frequency, urinary
incontinence, and urinary retention. Dr. Macri diagnosed rotator cuff syndrome of the right
shoulder, stating that despite right shoulder surgery her symptoms persisted and rendered her
unable to do any over the shoulder activity or lift, carry, or grasp anything greater than 15
pounds. He further advised that at the present time appellant was not able to lift any weight due
to urologic problems that might necessitate bladder surgery and was to see an urologist the
following day. Dr. Macri opined that she should apply for permanent disability, maintaining that
functionally and physically she could not return to the type of work she previously performed.
On November 6, 2013 the employing establishment advised that appellant had not
returned to work.
In a November 6, 2013 decision, OWCP terminated appellant’s wage-loss and schedule
award benefits because she refused an offer of suitable work. It found that the weight of medical
evidence rested with the opinions of Dr. Crosby and Dr. Reddy.
Appellant timely requested a hearing before a representative of OWCP’s Branch of
Hearings and Review. On December 20, 2013 the employing establishment again offered
appellant a part-time modified position. This included similar duties as those of the July 13,
2013 job offer except that the weight restriction was changed to 15 pounds. Appellant returned
to this position on December 20, 2013 for four hours per day.
5

Appellant thereafter submitted claims for compensation (CA-7 forms) for four hours
daily beginning December 20, 2013. OWCP informed her that the claims could not be processed
until hearings and review rendered its decision.
In correspondence dated January 9, 2014, appellant’s representative asserted that she had
not refused the job offer, maintaining that she reported for work and was willing to work within
her medical limitations, but the postmaster refused to modify the job based on a nonwork-related
condition.5 E-mail correspondence was attached in which the representative reiterated that since
appellant’s supervisor would not accommodate temporary restrictions he had technically
withdrawn the limited-duty offer at that time. Dr. Macri also submitted bimonthly treatment
notes.
At the hearing, held on June 11, 2014, appellant and her representative maintained that
she accepted the offered job on September 28, 2013 but the postmaster sent her home because no
work was available within Dr. Macri’s lifting restrictions. Appellant testified that she saw a
urologist on September 27, 2013, had a procedure, and went to work on September 28, 2013.
The hearing representative advised that she could submit evidence from the urologist.
Appellant thereafter submitted evidence previously of record, including the duty status
report revised by Dr. Macri on September 30, 2013. A June 27, 2014 disability slip indicated
that appellant had been seen by Dr. Joseph C. Clements, a Board-certified urologist, on
September 27, 2013 and had a cystoscopy. In a September 27, 2013 letter, faxed to the
postmaster, appellant noted that she tried to telephone him that day, indicating that she would
accept the job offer under protest and would report to work on Saturday, September 28.
On June 26, 2014 an employing establishment health management specialist with the
employing establishment maintained that when appellant reported to work she presented
restrictions for a nonwork-related medical condition which indicated that she was unable to lift
anything.6
By decision dated August 28, 2014, OWCP’s hearing representative affirmed the
November 6, 2013 decision. She noted that the evidence submitted by Dr. Clements merely
indicated that appellant was seen for a cystoscopic procedure of September 27, 2013 and
contained no diagnosis and did not provide work restrictions.
On February 2, 2015 appellant’s representative requested reconsideration. He asserted
that on September 27, 2013 appellant faxed a duty status report, stating that she had accepted the
offered position and that she had reported for work on September 28, 2013, but that she was sent
home. He further asserted that there was a difference in the weight restriction between
appellant’s physician (15 pounds) and OWCP’s referral physician (20 pounds) that required an
impartial medical examination for resolution. He forwarded a “work excuse” note dated
September 27, 2013 stating that appellant had a work restriction from September 27 to 29, 2013
5

At that time appellant was represented by Jeff Siciunas of the National Association of Letter Carriers.

6

Although the June 26, 2014 correspondence indicated that appellant reported for work on Friday, September 27,
2013, the 15th day following OWCP’s 15-day letter, she did not report to work until Saturday, September 28, 2013,
when she indicated she was restricted to no lifting.

6

of no lifting and that she could return to full duty on September 30, 2013. Also submitted was an
employing establishment time card noting that on September 28, 2013 appellant clocked in at
7:55 a.m. and left at 7:58 a.m.
Dr. Macri continued to treat appellant. On December 3, 2014 he advised that, to the best
of his knowledge, she had never denied any type of suitable job offered her and that, after having
a urologic procedure on Friday, she returned to work on Saturday, but could not lift anything
until the following Monday, when her supervisor sent her home. On January 28, 2015 he
diagnosed pain in joint involving shoulder region; osteoarthrosis, unspecified; neuralgia, neuritis,
and radiculitis; myofascial pain; muscle spasticity; insomnia, disorder unknown; depression; and
obesity.
In a merit decision dated April 9, 2015, OWCP denied modification of the prior
decisions. It explained that on September 12, 2013 appellant was given 15 days to accept the
modified position and did not do so.
On June 10, 2015 appellant’s representative requested reconsideration. He asserted that
appellant was unable to report for the offered position on September 27, 2013 because she had a
scheduled urological procedure that day, which Dr. Macri addressed in his September 26, 2013
treatment note. The representative maintained that, on September 26, 2013, appellant provided a
duty status report to the employing establishment which was within the 15-day time limitation to
accept the offered position, but that when she reported for work on September 28, 2013, she was
sent home because she had a two-day restriction on lifting and not because she refused the
offered position. He continued that on September 28, 2013 appellant inquired whether she
should report for work on September 30, 2013 and was told not to do so and to await further
instructions. The representative also reiterated that a conflict remained regarding the medical
restrictions and this required an impartial medical examination.
Appellant forwarded a brief form report dated September 27, 2013 from Dr. Clements,
stating that appellant could return to work on September 28, 2013 with no lifting for two days
following cystoscopy.
In August 4, 2015 correspondence, the employing establishment noted that appellant
initially refused the offered position on July 19, 2013. OWCP found the position suitable and
issued a 30-day letter on August 6, 2013 and a 15-day letter on September 12, 2013. The
employing establishment maintained that appellant failed to report to work on September 27,
2013 and failed to provide any explanation as to why she did not report. It described the duties
of the offered position and maintained that these were not outside appellant’s restrictions.
On August 12, 2015 appellant’s representative disagreed with the employing
establishment’s August 4, 2015 letter, arguing that under OWCP procedures, if the medical
evidence documents a condition that disables an employee, the job will be considered unsuitable.
Dr. Macri continued to submit reports. On July 14, 2015 he advised that appellant was not
refusing work and would return to work within her limitations.
In a merit decision dated October 29, 2015, OWCP denied modification of its prior
decisions. It reviewed the newly submitted evidence and found that the medical evidence
7

supported that the offered position was medically suitable at the time offered, and that
appellant’s monetary benefits were properly terminated.
Appellant’s representative requested reconsideration on January 29, 2016. He reiterated
his argument that appellant had timely accepted the offered position, alleging that by letter dated
September 27, 2013 she had accepted the offered position, and that the record contained
numerous documents supporting her position. In support of reconsideration she resubmitted her
letter dated September 27, 2013, and the June 27, 2014 disability slip from Dr. Clements. In a
November 5, 2015 treatment note, Dr. Macri noted that appellant had been unable to return to
work for two years because the employing establishment did not have a position that
accommodated her restrictions.
In a nonmerit decision dated February 23, 2016, OWCP denied review of the merits of
appellant’s claim. It noted that the evidence and argument submitted were duplicative or
repetitious and insufficient to warrant merit review.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”7
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.8 The implementing regulations provide
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.9 To justify termination, OWCP must show that the
work offered was suitable and that appellant was informed of the consequences of his refusal to
accept such employment.10 In determining what constitutes “suitable work” for a particular
disabled employee, OWCP considers the employee’s current physical limitations, whether the
work is available within the employee’s demonstrated commuting area, the employee’s
qualifications to perform such work and other relevant factors.11 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.12

7

5 U.S.C. § 8106(c).

8

Joyce M. Doll, 53 ECAB 790 (2002).

9

20 C.F.R. § 10.517(a).

10

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
11

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

12

Gayle Harris, 52 ECAB 319 (2001).

8

OWCP procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer or medical evidence of inability to do the work or travel to the job.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits on November 6, 2013 pursuant to section 8106(c) of FECA. OWCP
accepted left shoulder strain/contusion, left shoulder impingement, and left shoulder adhesive
capsulitis.14 The claim was later expanded to include major depressive disorder, recurrent.
On July 13, 2013 the employing establishment offered appellant a modified job. The
described job duties were: distributing, boxing and casing mail less than 20 pounds for no more
than two hours per day; preparing evening dispatches -- includes emptying collection boxes; and
sorting mail by type into tubs, trays, hampers and other general purpose containers. Pushing,
pulling, and lifting were limited to 20 pounds for no more than two hours per day and there was
to be no reaching with left arm greater than two hours per day, not greater than 20 pounds below
the area of the upper chest surrounding the axilla, lateral to the pectoral region. Appellant was to
grasp mail less than 20 pounds at a time and place the mail in cases, post office boxes, and other
mail transportation equipment. The job offer indicated that appellant was to begin work at 8:00
a.m. The Board finds the weight of the evidence establishes that appellant could perform the
offered job.
In brief correspondence dated February 2013, Dr. Smith, an attending psychologist,
diagnosed severe depression and severe anxiety. He opined that appellant was totally disabled
and that he did not expect that she could return to work. Dr. Smith, however, provided no
rationale or explanation to support his conclusion. His report is, therefore of diminished
probative value.15
Dr. Reddy, an OWCP referral psychiatrist, performed a mental status examination on
June 14, 2013 and reported her findings and conclusions. While the physician diagnosed a major
depressive disorder, she advised that appellant could work eight hours a day in a job that was less
stressful and less physically demanding than a letter carrier position.
As to her left shoulder condition, appellant, who is right-hand dominant, had left upper
extremity restrictions provided by both her attending physician Dr. Macri and Dr. Crosby, the
OWCP referral physician. In a comprehensive report dated December 4, 2012, Dr. Crosby
described appellant’s complaints, his review of the medical record, and physical examination
findings. He advised that, while appellant could not return to regular duties, she could perform
light-duty work for eight hours daily. Dr. Crosby placed restrictions on two hours of reaching
above the shoulder and operating a motor vehicle, with pushing, pulling, and lifting below chest
height limited to 20 pounds. On February 8, 2013 Dr. Macri agreed with Dr. Crosby’s
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Refusal of Job Offer, Chapter 2.814.5 (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
14

Supra note 3.

15

See Charles W. Downey, 54 ECAB 421 (2003).

9

recommendations with the exception that he would limit appellant’s lifting between the waist
and axillary region to 15 pounds. He later advised that appellant could lift 15 to 18 pounds. The
July 13, 2013 job offer comports with the 20-pound restriction provided by Dr. Crosby.
Dr. Macri did not explain why he disagreed with the 20-pound lifting limitation. The Board
therefore concludes that the weight of the evidence establishes that appellant could perform the
physical duties of the modified position at the time it was offered.
Appellant refused the position on July 19, 2013, stating that the requirements exceeded
her medical limitations. By letter dated August 6, 2013, OWCP advised her that the position
offered was suitable and notified her of the penalty provisions of section 8106(c)(2) of FECA.
She was afforded 30 days to respond. In an undated response, appellant maintained that the
offered position was outside her restrictions and attached August 22, 2013 reports from
Dr. Macri who advised that, for her left shoulder, she should stay within her limitations of 15 to
18 pounds, and lifting nothing above the axilla area. In a September 12, 2013 letter, OWCP
advised appellant that her reasons for refusing the offered position were not valid. It allowed her
an additional 15 days to accept and report to the position, and advised that if she did not do so
within 15 days of the date of the letter, her entitlement to benefits would be terminated.
The 15th day following the September 12, 2013 letter in which OWCP informed her that
she had 15 days to accept the offered position was September 27, 2013. Appellant telephoned
OWCP on September 26, 2013 for a time extension. OWCP returned the call on September 27,
2013 and left her a voicemail message telling her that the September 12, 2013 letter did not
provide an opportunity to submit further evidence, just to report to work. On September 27,
2013 the employing establishment notified OWCP that appellant had submitted medical
evidence the previous day indicating that she was totally disabled due to a urological condition.
On September 30, 2013 the employing establishment contacted OWCP, stating that appellant had
reported to work on Saturday, September 28, 2013, but when assigned tasks described on the job
offer, stated that she could not perform the tasks and left.
In October 2013 Dr. Macri forwarded various reports dated September 26, 2013. A
September 26, 2013 duty status report advised that appellant could not work. On a treatment
note dated September 26, 2013 the physician indicated that a review of systems was negative for
urinary frequency, urinary incontinence, and urinary retention. Dr. Macri advised that appellant
could not lift any weight due to urologic problems that might necessitate a bladder surgery. He
forwarded another copy of the September 26, 2013 duty status report, noting that it was revised
on September 30, 2013. This report indicated that appellant had a lifting limit of 12 to 15 pounds
and could occasionally lift, for less than four hours daily, from the waist to axilla area and not
over her head.
The Board has long held that OWCP must consider preexisting and subsequentlyacquired conditions in evaluation of suitability of an offered position.16 While Dr. Macri
indicated that appellant could not lift any weight on September 26, 2013 due to a urological
condition, his treatment note that day advised that a review of systems was negative for urinary
frequency, urinary incontinence, and urinary retention. Medical opinions which are speculative

16

Supra note 11.

10

or equivocal in character have little probative value.17 Likewise, a medical opinion not fortified
by medical rationale is of little probative value.18 As Dr. Macri’s September 26, 2013 reports are
contradictory and contain a conclusory explanation, they are insufficient to establish that
appellant could not perform the duties of the offered position on September 27, 2013 and provide
a sufficient reason to support that she could not report for work that day. Although appellant
reported for work on September 28, 2013, this was after the 15-day period and she immediately
left, indicating that she could not perform the duties.
The Board thus finds that OWCP properly terminated appellant’s wage-loss
compensation and schedule award benefits on November 6, 2013 because she refused an offer of
suitable work. At that time there was nothing in the record documenting that she had a
urological condition other than Dr. Macri’s contradictory report described above.
As the offered position was suitable at that time, where OWCP shows that an offered
limited-duty position was suitable based on the claimant’s work restrictions at that time, the
burden shifted to appellant to show that her refusal to work in that position was justified.19
Evidence subsequently submitted included a work excuse dated September 27, 2013
stating that appellant was seen by Dr. Clements that day and had a work restriction from
September 27 to 29, 2013 of no lifting and that she could return to full duty on
September 30, 2013. A second brief form report from Dr. Clements, dated September 27, 2013,
noted that appellant could return to work on September 28, 2013 with no lifting for two days
following cystoscopy. Also submitted was an employing establishment time card noting that on
September 28, 2013 appellant clocked in at 7:55 a.m. and left at 7:58 a.m. A June 27, 2014
disability slip indicated that appellant was seen in Dr. Clements’ office on September 27, 2013
and had a cystoscopy. Dr. Macri also continued to submit reports describing appellant’s
treatment. On December 3, 2014 the physician advised that, to the best of his knowledge,
appellant had never refused any type of suitable job offered her and that, after having a urologic
procedure on Friday, she returned to work on Saturday but could not lift anything until the
following Monday, when her supervisor sent her home.
The Board finds that none of this evidence is of sufficient rationale to establish that
appellant could not perform the duties of the offered position. There is no treatment note or any
report from Dr. Clements regarding the necessity for the cystoscopic procedure. The brief
disability slips contain no medical diagnosis or explanation as to why appellant could not lift.
The Board concludes that this evidence is of insufficient rationale to establish that appellant
could not perform the duties of the offered position on September 27, 2013.
Therefore, the Board finds that appellant’s reasons for refusing the offered position were
not acceptable, and OWCP properly terminated her wage-loss compensation based on her refusal

17

Frank Luis Rembisz, 52 ECAB 147 (2000).

18

Charles W. Downey, supra note 15.

19

Gloria J. Godfrey, 52 ECAB 421 (2003).

11

to accept a suitable work position.20 Also, as noted above, OWCP complied with its procedural
requirements in advising appellant that the position was suitable.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.21 Section 10.608(a) of OWCP’s regulations provides that a timely
request for reconsideration may be granted if OWCP determines that the employee has presented
evidence and/or argument that meet at least one of the standards enumerated in section
10.606(b)(3).22 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that OWCP
erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new
evidence not previously considered by OWCP.23 Section 10.608(b) provides that when a request
for reconsideration is timely but fails to meet at least one of these three requirements, OWCP
will deny the application for reconsideration without reopening the case for a review on the
merits.24
ANALYSIS -- ISSUE 2
Appellant’s representative requested reconsideration on January 29, 2016. He reiterated
his contentions that appellant had, by letter dated September 27, 2013, accepted the offered
position and that the record contained numerous documents supporting her position. As the
representative did not assert that OWCP erroneously applied or interpreted the law or advance a
relevant legal argument not previously considered by OWCP, appellant was 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)(3).25
With respect to the third above-noted requirement under section 10.606(b)(3), appellant
submitted copies of a September 27, 2013 letter and a June 27, 2014 disability slip. This
evidence, however, was initially submitted to OWCP on July 1, 2014 and had previously been
reviewed by OWCP’s hearing representative in the decision dated August 28, 2014.
Appellant also submitted a November 5, 2015 treatment note from Dr. Macri. He
indicated that appellant had been unable to return to work for two years because the employing

20

See Sandra R. Shepherd, 53 ECAB 735 (2002).

21

5 U.S.C. § 8128(a).

22

20 C.F.R. § 10.608(a).

23

Id. at § 10.608(b)(3).

24

Id. at § 10.608(b).

25

Id. at § 10.606(b)(3); see R.M., 59 ECAB 690 (2008).

12

establishment did not have a position that accommodated her restrictions. Dr. Macri, however,
had rendered this opinion in previous reports that had been reviewed by OWCP.
Evidence or argument that repeats or duplicates evidence previously of record has no
evidentiary value and does not constitute a basis for reopening a case.26
As appellant did not show that OWCP erred in applying a point of law, advance a
relevant legal argument not previously considered, or submit relevant and pertinent new
evidence not previously considered by it, OWCP properly denied her reconsideration request.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation benefits
effective November 6, 2013 pursuant to 5 U.S.C. § 8106(c), and that it properly denied her
request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 23, 2016 and October 29, 2015
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 9, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

26

J.P., 58 ECAB 289 (2007).

13


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

)
)
)
)
)
)
)
)

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

Docket No. 13-1960
Issued: February 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On August 28, 2013 appellant filed a timely appeal from June 19 and August 14, 2013
merit decisions 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 OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective June 29, 2013 as she had no further residuals causally related to her
November 28, 2011 employment injury.
FACTUAL HISTORY
On November 28, 2011 appellant, then a 43-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that she sustained multiple injuries when she was
1

5 U.S.C. § 8101 et seq.

involved in a motor vehicle accident (MVA) when the front of her long life vehicle hit a vehicle
on the right hand side, while delivering mail. By decisions dated January 18 and April 9, 2012,
OWCP accepted her claim for right contusion of the knee and lower leg, sprain of back thoracic
region, sprain of back lumbar region and sprain of neck.
Appellant sought treatment with her treating physician, Dr. Brad Prybis, a Board-certified
orthopedic surgeon. By letter dated September 19, 2012, OWCP provided him with questions
regarding her injury and requested an updated report regarding her continued treatment. It noted
that it had been 10 months since the injury and strains typically resolved within 6 to 8 weeks. No
response was received from Dr. Prybis but progress notes were provided from nurse practitioners
and physician’s assistants via his office.
On October 29, 2012 OWCP referred appellant, the case record and a series of questions
to Dr. Alexander Doman, a Board-certified orthopedic surgeon, for a second opinion
examination.
In a December 10, 2012 report, Dr. Doman reviewed the statement of accepted facts
(SOAF) and medical record. He noted that appellant was in an MVA on November 28, 2011 and
also had a history of a 2009 work-related MVA. Dr. Doman reported that she complained of
continued neck and low back pain. X-rays of the lumbar and cervical spine were taken, as well
as nerve conduction studies of the upper right extremity. Diagnostic testing revealed cervical
and lumbar degenerative disc disease. Dr. Doman stated that the thoracic sprain had resolved
and that appellant had subjective complaints of cervical and lumbar pain consistent with a
condition of degenerative disc disease of the cervical and lumbar spine. He reported that
appellant no longer suffered from a strain of the cervical, thoracic and lumbar areas. Dr. Doman
further stated that the degenerative disc disease developed over many years and was not related
to the November 28, 2011 MVA. He concluded that appellant’s mild degenerative disc disease
of the cervical spine may have been aggravated by the MVA but was temporary in nature and
would have ceased within three months.
On December 17, 2012 OWCP notified appellant of a proposal to terminate her
compensation benefits based on Dr. Doman’s opinion that she was not experiencing any
residuals or disability connected to her November 28, 2011 employment injury as her conditions
had ceased. It further noted that her current diagnosis of degenerative disc disease was not
related to her November 28, 2011 injury. Appellant was provided 30 days to submit additional
information.
Medical reports were submitted dated September 17, 2012 to May 9, 2013 from
Dr. Prybis. In a November 9, 2012 medical report, Dr. Prybis reported that appellant’s current
diagnosis was cervical spondylotic pain, myofasciitis and radiculitis with objective findings. He
reported that her current symptoms were related to the November 28, 2011 injury because she
did not experience these symptoms prior to her injury. Dr. Prybis further noted that appellant’s
acute strain had resolved but she continued to have chronic myofasciitis involving the
cervicothoracic region. In a February 6, 2013 report, he reported that her cervical strain and disc
degeneration with neck and shoulder pain were due to cervical radiculitis. In a May 1, 2013
medical report, Dr. Prybis provided a diagnosis of cervical sprain, cervical radiculopathy,

2

cervical intervertebral disc degeneration, lumbar strain and lumbosacral spondylosis. He noted
that appellant’s symptoms were aggravated with lifting, twisting, sitting and neck movements.
In medical reports dated January 21 through May 8, 2013, Dr. Carlos Pulido, a Boardcertified anesthesiologist, reported that appellant complained of pain beginning in 2011. Upon
physical examination and review of diagnostic testing, he diagnosed cervical disc degeneration,
cervical spondylosis without myelopathy, cervical facet arthropathy cervical radiculopathy and
headache syndrome. Appellant was treated with steroid injections.
OWCP referred appellant, a SOAF, the case file, a medical conflict statement and a series
of questions to Dr. Howard Krone, a Board-certified orthopedic surgeon, for an impartial referee
medical examination to resolve the conflict between Dr. Prybis and Dr. Doman regarding
whether appellant’s accepted conditions had resolved.
In his April 10, 2013 medical report, Dr. Krone provided a summary of appellant’s past
medical reports, reviewed previously taken diagnostic studies and provided findings on physical
examination. He noted that she was involved in an MVA on November 28, 2011 when she Tboned another vehicle. Appellant struck her right knee at the time and complained of pain in her
neck, thoracic and lower back regions. She had a prior work-related MVA in 2009 for which she
had mild low back pain and responded well to physical therapy. Dr. Krone noted that
examination of the knees and neurologic examination of the left upper and lower extremities was
normal. He noted preexisting degenerative osteoarthritic changes of the cervical spine, primarily
at C6-7 and of the lumbar spine at L5-S1, which predated her work-related accident. Dr. Krone
agreed with the opinion of Dr. Doman and found no objective findings of any disability related
to the November 28, 2011 MVA. He opined that appellant did not continue to suffer from a
strain to the cervical, thoracic or lumbar spine and that her symptoms should have resolved with
treatment after 6 to 8 weeks. Dr. Krone further concluded that the November 28, 2011 incident
did not aggravate the preexisting degenerative disc disease at C6-7.
In a June 11, 2013 diagnostic report, Dr. Darin Brummett, a Board-certified diagnostic
radiologist, reported that a magnetic resonance imaging (MRI) scan of the cervical spine
revealed small disc bulge osteophyte complexes C3-4, C4-5, C5-6 and C6-7, mild canal
narrowing at C6-7, mild left C5-6 neural foraminal stenosis and mild right and moderate left C67 neural foraminal stenosis.
By decision dated June 19, 2013, OWCP terminated appellant’s compensation benefits
effective June 29, 2013 on the grounds that the weight of the medical evidence rested with
Dr. Krone who found that she did not continue to experience residuals of her work-related injury.
It noted that her current conditions were preexisting and not related to the November 28, 2011
work injury.
Appellant requested reconsideration of OWCP decision on July 29, 2013. In support of
her request, she submitted a November 29, 2011 police accident report, third-party letters
concerning her accident dated January 6, 2012 through February 8, 2013 and a July 30, 2013
report from Dr. Prybis.

3

In the July 30, 2013 report, Dr. Prybis reported that appellant’s current condition was
right C7 radiculopathy and that her current symptoms and condition were related to the
November 28, 2011 work injury. He noted that she had this condition since November 28, 2011
with no preexisting symptoms of radiculopathy including no pain, numbness or weakness in her
neck or arm. Dr. Prybis stated that appellant had stenosis which was degenerative at C6-7.
Despite her degenerative MRI scan findings, appellant had no symptoms prior to her injury and
continued to experience pain, numbness and weakness in the neck and arm and right C7
radiculopathy. Dr. Prybis concluded that her current conditions and symptoms were secondary
to the November 28, 2011 work injury.
By decision dated August 14, 2013, OWCP affirmed the June 19, 2013 decision
terminating compensation benefits. It noted that the weight of the medical evidence rested with
Dr. Krone’s report which had established that the injury and related residuals had resolved.2
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.6 Its burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.8 In situations where there are opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
2

The Board notes that OWCP initially issued a decision affirming the June 19, 2013 decision terminating benefits
on August 9, 2013. Because Dr. Prybis’ July 30, 2013 report was not reviewed in the August 9, 2013 decision,
OWCP reissued a decision on August 14, 2013 affirming the June 19, 2013 decision after review of the medical
report.
3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Id.

5

Roger G. Payne, 55 ECAB 535 (2004).

6

Pamela K. Guesford, 53 ECAB 726 (2002).

7

T.P., 58 ECAB 524 (2007); Furman G. Peake, 41 ECAB 351 (1975).

8

5 U.S.C. § 8123(a).

4

sufficiently well rationalized and based on a proper factual background, must be given special
weight.9
ANALYSIS
OWCP accepted that appellant sustained a right knee and leg contusion, thoracic back
sprain, lumbar back sprain and neck sprain as a result of the November 28, 2011 work-related
injury. The issue is whether it properly terminated her medical benefits effective June 29, 2013,
as she was not experiencing any residuals or disability of the November 28, 2011 injury. The
Board finds that OWCP properly terminated appellant’s compensation benefits.
In a December 10, 2012 report, Dr. Doman, an OWCP second opinion physician,
reported that x-rays of the cervical and lumbar spine revealed cervical and lumbar degenerative
disc disease. He stated that appellant no longer suffered from a strain of the cervical, thoracic
and lumbar areas and noted that her degenerative disc disease developed over many years and
was not related to the November 28, 2011 MVA. Dr. Doman further stated that her mild
degenerative disc disease of the cervical spine may have been aggravated by the MVA but was
temporary in nature and would have ceased within three months.
In medical reports dated September 17, 2012 to May 9, 2013, Dr. Prybis disagreed with
Dr. Doman’s findings. He diagnosed appellant with cervical spondylotic pain, myofasciitis and
radiculitis. Dr. Prybis noted that her current symptoms were related to the November 28, 2011
injury because she did not experience these symptoms prior to the work injury. He further noted
that appellant’s acute strain had resolved but she continued to have chronic myofasciitis
involving the cervicothoracic region. Dr. Prybis reported that her cervical strain and disc
degeneration with neck and shoulder pain were due to cervical radiculitis. In a May 1, 2013
medical report, he provided a diagnosis of cervical sprain, cervical radiculopathy, cervical
intervertebral disc degeneration, lumbar strain and lumbosacral spondylosis. Dr. Prybis noted
that appellant’s symptoms were aggravated with lifting, twisting, sitting and neck movements.
OWCP found a conflict of medical opinion evidence between Dr. Doman, the second
opinion physician, and Dr. Prybis, appellant’s treating physician, regarding whether her accepted
conditions had resolved. It referred appellant to Dr. Krone for an impartial medical examination
to resolve the conflict, pursuant to 5 U.S.C. § 8123(a).
In his April 10, 2013 medical report, Dr. Krone noted a history of a 2009 work-related
MVA. Following her November 28, 2011 work-related MVA, appellant complained of neck,
thoracic and lower back pain. Dr. Krone noted that examination of the knees and neurologic
examination of the left upper and lower extremities revealed normal. Upon review of diagnostic
testing, he noted preexisting degenerative osteoarthritic changes of the cervical spine, primarily
at C6-7 and of the lumbar spine at L5-S1, which predated appellant’s work-related accident.
Dr. Krone agreed with the opinion of Dr. Doman and found no objective findings of any
disability related to the November 28, 2011 MVA. He opined that appellant did not continue to
suffer from a strain to the cervical, thoracic or lumbar spine and that her symptoms should have
resolved with treatment after six to eight weeks. Dr. Krone further concluded that the
9

Nathan L. Harrell, 41 ECAB 402 (1990).

5

November 28, 2011 incident did not aggravate the preexisting degenerative disc disease at C6-7.
His opinion is sufficient to resolve the question of whether appellant continued to suffer from
any residuals or disability causally related to her accepted November 28, 2011 injury.
The Board finds that, under the circumstances of this case, the opinion of Dr. Krone is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that appellant’s work-related conditions have ceased. Where
there exists a conflict of medical opinion and the case is referred to an impartial specialist for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, is entitled to special weight.10
The Board has carefully reviewed the opinion of Dr. Krone and finds that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue in the present case. Dr. Krone reviewed the SOAF and provided detailed findings
regarding appellant’s prior medical treatment and test results.11 He related his comprehensive
examination findings in support of his opinions. Moreover, Dr. Krone found no objective basis
for residuals from the condition of neck, thoracic and lumbar sprain. These findings were
substantiated by Dr. Doman’s report who noted subjective complaints of cervical and lumbar
pain consistent with a condition of degenerative disc disease of the cervical and lumbar spine.
As there were no objective findings related to appellant’s neck, thoracic and lumbar sprain,
Dr. Krone opined that her disability had ceased and that her preexisting degenerative
osteoarthritic changes of the cervical and lumbar spine predated her work-related accident and
were not aggravated as a result of the November 28, 2011 work injury. He provided medical
rationale for his opinion by explaining that appellant’s neck, thoracic and lumbar sprain would
have ceased after 6 to 8 weeks of the November 28, 2011 injury. Dr. Krone provided support for
his argument noting that she had a preexisting ongoing medical degenerative process, which was
unaltered by the November 28, 2011 injury. His opinion is sufficiently probative, rationalized
and based upon a proper factual background.12 Dr. Krone’s report is entitled to special weight as
the impartial medical examiner and establishes that appellant is not entitled to continued benefits.
Subsequent to Dr. Krone’s report, appellant submitted a July 30, 2013 medical report
from Dr. Prybis, who argued that her current condition of right C7 radiculopathy and symptoms
were related to the November 28, 2011 work injury. Dr. Prybis stated that she suffered from
stenosis which was degenerative at C6-7. Despite her degenerative MRI scan findings, appellant
had no symptoms prior to her injury and continued to experience pain, numbness and weakness
in the neck and arm and right C7 radiculopathy. Dr. Prybis concluded that her current conditions
and symptoms were secondary to the November 28, 2011 work injury.
The Board notes that Dr. Prybis’ medical report was almost identical to his prior reports.
While Dr. Prybis argued that appellant’s right C7 radiculopathy was related to her work injury,
he failed to provide a rationalized opinion that she remained disabled as a result of her accepted
10

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a).

11

See Melvina Jackson, 38 ECAB 443 (1987).

12

L.S., Docket No. 13-716 (issued June 4, 2013).

6

neck, lumbar or thoracic sprain.13 Though he generally supported that her continued symptoms
were a result of the November 28, 2011 injury, his opinion on causal relationship was conclusory
without any additional explanation as to how the conditions caused disability or remained
symptomatic.14 Dr. Prybis only generally stated that appellant’s condition was caused by her
work injury because she did not have symptoms prior to November 28, 2011. This opinion is
vague and speculative and fails to properly address the cause of her condition. Dr. Prybis briefly
noted appellant’s preexisting degenerative condition and failed to address its relation to her
current complaints and symptoms. Moreover, he was on one side of the conflict that gave rise to
the referral to Dr. Krone.15 Dr. Prybis’ reports are insufficient to overcome the opinion of
Dr. Krone or to create a new medical conflict.16
Thus, the Board finds that Dr. Krone’s opinion constitutes the weight of the medical
evidence. There is no other medical evidence contemporaneous with the termination of
appellant’s benefits which supports that she has any continuing residuals or disability related to
her accepted work-related injuries.17 Thus, OWCP properly terminated her compensation
benefits.18
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective June 29, 2013.

13

J.H., Docket No. 12-1848 (issued May 15, 2013).

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

C.B., Docket No. 12-1572 (issued February 21, 2013).

16

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Hoover’s report did not contain new findings or rationale
on causal relationship upon which a new conflict might be based.
17

D.R., Docket No. 12-1697 (issued January 29, 2013).

18

D.M., Docket No. 11-386 (issued February 2, 2012); Marshall E. White, 33 ECAB 1666 (1982).

7

ORDER
IT IS HEREBY ORDERED THAT the August 14 and June 19, 2013 decisions of the
Office of Workers’ Compensation Programs is affirmed.
Issued: February 18, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8