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

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

Docket No. 21-1353
Issued: March 21, 2022

Case Submitted on the Record

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

JURISDICTION
On September 13, 2021 appellant filed a timely appeal from a May 17, 2021 merit decision
and a September 8, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of his federal employment; and

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 8, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

(2) whether OWCP properly denied appellant’s request for a review of the written record as
untimely filed, pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On April 7, 2021 appellant, then a 30-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that he experienced a left knee strain due to factors of his federal
employment, including repetitive walking of 20,000 steps per day, stepping into his van repeatedly,
and climbing many flights of stairs daily. He indicated that he first became aware of his condition
and first realized its relation to his federal employment on April 4, 2021. Appellant stopped work
on April 5, 2021.
In an April 14, 2021 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence required and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary
evidence. It did not receive a response.
An activity prescription form dated April 6, 2021 from Katherine Hester, an advanced
registered nurse practitioner, noted that appellant was examined following an April 4, 2021
workplace incident. She diagnosed left knee sprain and advised that he could return to work.
By decision dated May 17, 2021, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish a diagnosed medical
condition causally related to the accepted factors of his federal employment as it was rendered by
Ms. Hester . It concluded, therefore, that the requirements had not been met to establish an injury
as defined by FECA.
On July 2, 2021 appellant was seen by Dr. Marilyn Nayan, a Board-certified family
medicine physician, with ongoing complaints of lower back and leg pain relating to his official
duties as a mail carrier. She indicated that his current symptoms began on June 27, 2021, but that
he had been experiencing pain for six months. Dr. Nayan diagnosed a strain of the muscle and
tendon of the lower back, and radiculopathy in the lumbar region. In duty status reports (Form
CA-17) dated July 2, 9, 16 and 2021, she provided clinical findings of strain of muscle, fascia and
tendon of the lower back and lumbar radiculopathy related to a June 27, 2021 work injury.
Dr. Nayan advised that appellant could return to work with restrictions.
In a diagnostic report dated July 2, 2021, Dr. Aamer Farooki, a Board-certified radiologist,
performed an x-ray of the lumbar spine, which revealed no acute abnormalities.
On July 9, 2021 appellant presented in follow up to Dr. Nayan and related that his
symptoms had improved with medication.
On August 10, 2021 appellant requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review.
In a July 16, 2021 note, Dr. Nayan noted that appellant’s condition was exacerbated by
prolonged walking or standing while working. She further indicated that he could return to work
with limited duties.
2

An August 6, 2021 follow-up note from Dr. Nayan related appellant’s ongoing symptoms
and improvement with medication. In a Form CA-17 of even date, she indicated that he could
return to work.
On August 20, 2021 appellant was seen by Dr. Nayan in follow up. Dr. Nayan noted that
his pain symptoms increased after returning to full-duty work, and further noted that prolonged
walking and carrying heavy bags aggravated his condition. She diagnosed a lumbar strain without
a herniated disc. In a Form CA-17 of even date, Dr. Nayan indicated that appellant could return
to work with restrictions.
By decision dated September 8, 2021, OWCP denied appellant’s request for a review of
the written record as untimely filed, finding that his request was not made within 30 days of the
May 17, 2021 OWCP decision as it was postmarked on August 10, 2021. It further exercised
discretion and determined that the issue in this case could equally well be addressed by a request
for reconsideration before OWCP along with the submission of new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 4 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury. 5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or con dition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
casually related to the identified employment factors.7

3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

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

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

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Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. Additionally, the physician ’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of his federal employment.
In support of his claim, appellant submitted an activity prescription f orm dated April 6,
2021 from Ms. Hester, an advanced registered nurse practitioner, who diagnosed a left knee sprain
following a workplace incident on April 4, 2021. The Board, however, has held that medical
reports signed solely by a nurse practitioner are of no probative value as such providers are not
considered physicians as defined under FECA. 9 This evidence, therefore, is insufficient to
establish appellant’s burden of proof.
As the medical evidence of record is insufficient to establish a diagnosed medical condition
causally related to the accepted factors of appellant’s federal employment, the Board finds that he
has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”10
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a

8

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

9

Section 8101(2) of FECA provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 5
U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as
physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FEC A); see
also M.C., Docket No. 19-1074 (issued June 12, 2020); S.L., Docket No. 19-0607 (issued January 28, 2020) (nurse
practitioners are not considered physicians under FECA).
10

5 U.S.C. § 8124(b)(1).

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representative of the Secretary. 11 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration. 12
Although there is no right to a review of the written record or an oral hearing if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for a review of the written
record as untimely filed pursuant to 5 U.S.C. § 8124.
OWCP’s regulations provide that the request for a hearing or review of the written record
must be made within 30 days of the date of the decision for which review is sought. 13 Because
appellant’s request was postmarked on August 10, 2021, it post-dated OWCP’s May 17, 2021
decision, by more than 30 days and, therefore, is untimely. Appellant was, therefore, not entitled
to a review of the written record as a matter of right. 14
OWCP, however, has the discretionary authority to grant the request and it must exercise
such discretion. 15 The Board finds that, in the September 8, 2021 decision, OWCP properly
exercised its discretion by determining that the issue in the case could be equally well addressed
through a request for reconsideration before OWCP, along with the submission of additional
evidence.
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.16 In this case, the evidence of record does not indicate that OWCP abused
its discretion by denying appellant’s request for a review of the written record. Accordingly, the
Board finds that OWCP properly denied his request for a review of the written record pursuant to
5 U.S.C. § 8124(b) as untimely filed.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of his federal employment. The Board
11

20 C.F.R. §§ 10.616, 10.617.

12

Id. at § 10.616(a).

13

Supra note 9; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record,
Chapter 2.1601.4(a) (September 2020).
14

See P.C., Docket No. 19-1003 (issued December 4, 2019).

15

Id.

16

Id.

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further finds that OWCP properly denied his request for a review of the written record as untimely
filed pursuant to 5 U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the May 17 and September 8, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 21, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, San Francisco, CA, Employer
__________________________________________

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

Docket No. 15-1631
Issued: June 2, 2016

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 July 27, 2015 appellant filed a timely appeal from a January 27, 2015 merit decision
and a June 19, 2015 nonmerit 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.
ISSUES
The issues are: (1) whether appellant has established that he sustained more than one
percent permanent impairment to his left upper extremity and more than one percent permanent
impairment to his right upper extremity, for which he previously received a schedule award; and
(2) whether OWCP properly refused to reopen appellant’s case for review of the merits pursuant
to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 28, 2007 appellant, then a 55-year-old special agent, filed a traumatic
injury claim (Form CA-1) alleging that on September 27, 2007 he injured his left upper arm
when he bumped against a door while moving boxes.2 OWCP accepted the claim for left elbow
strain and cervicothoracic strain and paid benefits. Appellant stopped work following the injury
and returned to work on December 4, 2007.3 He retired from the employing establishment on
March 31, 2009.
In a November 22, 2010 report, Dr. Joel Weddington, an orthopedic surgeon, noted that
appellant was referred by his treating physician for an impairment rating of the upper
extremities, neck, and back. He diagnosed severe cervical spine degenerative changes with
spondylosis and multilevel disc pathology and herniation; left elbow lateral epicondylitis with
chronic pain; chronic thoracic pain and mild degenerative changes; left shoulder partial rotator
cuff tear and loss of function and motion; and right shoulder impairment with loss of motion,
magnetic resonance imaging (MRI) scan pending. Dr. Weddington concluded that appellant had
reached maximum medical improvement as of the date of his examination. Citing to tables and
figures within the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (A.M.A., Guides), sixth edition, he set forth his calculations and opined that the left
shoulder permanent impairment was five percent, the right shoulder permanent impairment was
four percent, and the permanent impairment of the left elbow was one percent. Dr. Weddington
also indicated that appellant had 20 percent whole person impairment for the cervical spine and 2
percent whole person impairment for the thoracic spine.
On December 3, 2010 and May 23, 2012 appellant filed a Form CA-7 claim for a
schedule award.
In a December 6, 2010 supplemental report, Dr. Weddington determined that appellant
sustained 10 percent right arm permanent impairment due to his shoulder conditions noted that
the November 22, 2010 MRI scan findings of the right shoulder revealed full thickness rotator
cuff tear and acromioclavicular osteoarthritis. He noted that he had rated the cervical spine at 20
percent in his previous report and wished to add the impairment rating for intervertebral disc
herniations at one or more levels with medically documented injury with documented signs of
radiculopathy of a single, chronic, and appropriate level.
2

Appellant filed several prior claims, includes file numbers xxxxxx875, xxxxxx824, xxxxxx405, and xxxxxx564.
Under file number xxxxxx875, OWCP accepted a lumbosacral strain for a May 14, 2002 work injury. It
subsequently accepted a cervical strain, thoracic strain, bilateral knee sprain, bilateral shoulder sprain, and left hip
strain. Appellant returned to his full-duty work position on September 16, 2002. Under file number xxxxxx824,
OWCP accepted that he sustained a temporary aggravation of a cervical strain on June 29, 1992. This claim was
subsequently denied for continued benefits on September 10, 2002. Under file number xxxxxx405, OWCP accepted
that he sustained an aggravation of cervical spondylosis and right shoulder tendinitis on May 24, 1999. This claim
was subsequently closed for medical treatment due to inactivity. Under file number xxxxxx564, OWCP accepted
that appellant sustained a work-related cervical and right shoulder strains on June 28, 2000. This claim was closed
on March 6, 2003.
3

Appellant was on compensation time from October 1 through November 9, 2007 and then was on leave without
pay from November 12 through December 3, 2007.

2

In an April 13, 2011 report, Dr. Ellen Pichey, an OWCP medical adviser, reviewed
Dr. Weddington’s report and opined that the total impairment for the left upper extremity
equaled one percent. Utilizing the sixth edition of the A.M.A., Guides, she noted:
“Impairment due to left elbow strain, history of painful injury, residual symptoms
without consistent objective findings. [A]s per Table 15-4 page 98, class 1,
default position C, one present. Impairment for the clinical studies is not
applicable. Impairment for the physical examination is grade modifier 0, as per
Table 15-8 page 408. Impairment for the functional history is grade modifier 1 as
per Table 15-7 page 406. Using the net adjustment formula, page 411, the default
position is modified by -1, moving to default position B and an impairment of one
percent.
The medical adviser noted that Dr. Weddington gave impairment for the shoulder, which was not
an accepted condition, and that impairment for the cervical spine could only be assessed as
impairment to an extremity, and there appeared to be no neuropathy or other ratable impairment.
On May 5, 2011 OWCP determined that a second opinion examination was necessary to
determine the current status of appellant’s accepted conditions.
In a June 1, 2011 report, Dr. Ramon L. Jimenez, a Board-certified orthopedic surgeon
and OWCP referral physician, opined that appellant continued to have residuals of the neck
sprain with the resultant diagnosis of cervical stenosis secondary to multiple disc protrusions,
which never resolved. He indicated that the left elbow strain had resolved and appellant’s
symptoms were more from his neck and left shoulder. Dr. Jimenez indicated that the MRI scan
evidence of the cervical spine pathology reasonably substantiated causation, as it was objective
medical evidence of the cause of his symptoms. The residuals of the cervical sprain could be
documented by the subjective complaints of pain, particularly of a radicular nature, and the
objective findings of limitation of motion, tenderness, and carpal tunnel like symptoms to the left
and right hands and wrists. Dr. Jimenez indicated that there was no evidence of any
nonindustrial or preexisting disability.
On August 11, 2011 OWCP requested that Dr. Jimenez clarify his opinion that residuals
of the September 27, 2007 neck strain continued. In an August 30, 2011 supplemental report,
Dr. Jimenez advised that appellant had a diagnosis of cervical sprain. Appellant had developed
signs and symptoms of numbness and tingling, while cervical sprain, as well as some underlying
cervical spondylosis, had been present initially, with the persistent symptoms and mechanical
derangement in his neck, it was likely that the underlying condition exacerbated and worsened,
developing into a cervical disc protrusion. Dr. Jimenez further clarified that the cervical disc
protrusions were related to the cervical sprain. He explained that the cervical sprain was the
initial injury, which aggravated the underlying condition on a permanent basis. Thus, the disc
protrusions were consequential to the cervical sprain and represented an aggravation.
By letter dated December 5, 2011, OWCP advised appellant that his claim for schedule
award compensation benefits could not be processed because the medical evidence of record
indicated that his conditions had not reached maximum medical improvement.

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In a January 23, 2012 report, Dr. Fred Blackwell, a Board-certified orthopedic surgeon,
indicated that appellant was considered to be at maximum medical improvement. He explained
that, although appellant was a candidate for surgery based on MRI scan studies for both
shoulders and clinical findings, surgical intervention had been declined. Dr. Blackwell indicated
that there was no other form of treatment that could provide any substantial change in the
mechanical anatomical abnormalities that have been identified and, therefore, appellant is by
definition at maximum medical improvement.
On March 30, 2012 OWCP determined that another second opinion examination was
necessary to determine the status of appellant’s accepted conditions. It updated the statement of
accepted facts (SOAF) to note degenerative diseases of the spine or shoulder were not accepted
as work related under this claim.
In a May 21, 2012 report, Dr. Mohinder Nijjar, a Board-certified orthopedic surgeon and
OWCP referral physician, indicated that appellant had multiple previous injuries to his neck, and
an aggravation of the previous injuries in 2008 when he was undergoing training. He noted that
appellant continued to have neck problems, but that appellant had prior injuries to his neck and
those prior injuries led to the accepted injury of 2007, and later the aggravation of 2008.
Dr. Nijjar found that the left elbow examination had no objective findings of sprain of the elbow
and it appeared that the elbow sprain had resolved. He indicated that the condition most likely
resolved one year after the injury. With regard to the cervical sprain, Dr. Nijjar noted that
appellant had significant pathology as confirmed by the MRI scan and his history of multiple
injuries affecting his cervical spine. He indicated that the cervical sprain should have resolved
within a year or so, but since appellant had significant pathology due to other injuries, at this
time, it is medically impossible to separate other injuries from the cervical sprain. Therefore,
Dr. Nijjar concluded that there was a good likelihood that appellant did not have residuals of the
accepted cervical sprain and his current condition was caused by other injuries.
In its July 11, 2012 notice of proposed termination, OWCP disqualified Dr. Jimenez’
second opinion reports as they were not based upon the SOAF, objective medical evidence, or
rationale.
In a July 24, 2012 report, Dr. Pichey, the OWCP medical adviser, again reviewed the
record and opined that there was no change in her previous calculation of one percent
impairment to the left upper extremity. She noted that the accepted conditions were left elbow
sprain and neck sprain and that appellant was previously found to have one percent impairment
of the left upper extremity. The medical adviser additionally noted that degenerative conditions
affecting the left shoulder or cervical spine were not accepted as work related in this case. As
Dr. Nijjar noted, the elbow sprain had resolved, and the medical adviser indicated that under
Table 15-4, page 398, appellant had class 0 or zero percent impairment. Dr. Nijjar also indicated
that the acute cervical strain related to the initial injury resolved, although appellant remained
symptomatic, but which was related to a chronic degenerative condition. Thus, the medical
adviser indicated that appellant had zero percent permanent impairment of the left upper
extremity.
In a July 21, 2012 report, Dr. Blackwell commented upon Dr. Nijjar’s opinion that there
was a “good likelihood” that appellant did not suffer from residuals of his September 27, 2007

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cervical sprain and that his current cervical condition was related to appellant’s other cervical
injuries and were merely subjective. He noted that Dr. Nijjar provided no medical rationale to
suggest that the neck sprain was resolved. Dr. Blackwell explained that it was common
knowledge in orthopedics that underlying pathology could exist in an asymptomatic fashion only
to be revealed by a specific injury and become a chronic problem. He also opined that, since
chronic sprain findings and the underlying pathology could not be distinguished, it was illogical
on Dr. Nijjar’s part to find that the sprain was no longer a factor. Dr. Blackwell indicated that he
agreed with Dr. Nijjar that appellant no longer had any significant pathology or orthopedic issues
relating to the elbow sprain.
By decision dated September 17, 2012, OWCP terminated appellant’s entitlement for
medical and wage-loss benefits effective September 17, 2012. Also, by decision dated
September 17, 2012, it denied his claim for a schedule award based on the determination that he
had not sustained a measureable impairment due to his accepted September 27, 2007 injury,
which had resolved.
Appellant disagreed with the September 17, 2012 decisions and requested an oral
hearing, which was held on February 19, 2013. By decision dated April 24, 2013, an OWCP
hearing representative affirmed in part OWCP’s September 17, 2012 termination decision,
finding that his work-related left elbow strain had resolved. However, it reversed the termination
decision, with regard to his accepted cervical strain as there remained an unresolved conflict in
medical opinion. The hearing representative noted that appellant had prior claims for accepted
cervical conditions under file numbers xxxxxx875, xxxxxx824, xxxxxx405, and xxxxxx564,
which were not referenced in the SOAF and both second opinion physicians in the instant claim
had referenced appellant’s prior cervical claim injuries, but did not review medical evidence
which pertained to those cases. The hearing representative found that those cases should be
doubled with the current claim and a new SOAF should be issued to reflect relevant medical
history. The hearing representative found that Dr. Blackwell had concurred with OWCP’s
referral physician Dr. Jimenez’ June 1 and August 30, 2011 opinions that appellant’s workrelated cervical injury had not resolved. In his July 21, 2012 report, he did not agree with
Dr. Nijjar’s May 21, 2012 second opinion, which concluded that there was a “good likelihood”
that appellant did not suffer from residuals of his September 27, 2007 cervical sprain and that his
current cervical condition was related to his other cervical injuries. Thus, the hearing
representative found that OWCP had not met its burden of proof to establish that appellant’s
work-related cervical condition had resolved. There remanded an unresolved conflict in medical
opinion between Dr. Blackwell and Dr. Nijjar. The hearing representative set aside OWCP’s
September 17, 2012 decision denying appellant’s entitlement to schedule award compensation
benefits and remanded for resolution of the conflict in medical opinion regarding the degree of
his permanent impairment and date of maximum medical improvement.
OWCP referred appellant, an updated SOAF and list of questions to Dr. Martin Trieb, a
Board-certified orthopedic surgeon, for an impartial medical examination to resolve the conflict
of medical opinion with regard to the percentage of permanent partial impairment to any
extremity affected by the accepted medical conditions of left elbow sprain and neck sprain.

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In a September 2, 2014 report, Dr. Trieb reviewed the case record and noted the history
of injury and provided examination findings.4 Examination demonstrated weakness of the
bilateral intrinsic muscles of the hands as well as abnormal sensation in the median, radial, and
ulnar nerve distribution. Examination of the cervical spine demonstrated limited range of
motion. Dr. Trieb opined that appellant’s left elbow sprain had resolved. He also opined that
appellant’s cervical condition was related to his employment injuries and provided medical
rationale. Based on his review of the record, Dr. Trieb opined that appellant’s cervical
symptoms had plateaued and reached maximum medical improvement on or about
November 22, 2010. While OWCP requested that he provide an impairment calculation using
the sixth edition of the A.M.A., Guides,5 he advised he would continue to use the fifth edition of
the A.M.A., Guides until the California Orthopedic Association directed him to use the sixth
edition. Based on the fifth edition of the A.M.A., Guides, calculated 24 percent whole person
impairment of the cervical spine.
On December 15, 2014 OWCP directed that a different medical adviser review
Dr. Trieb’s September 2, 2014 report and to convert Dr. Trieb’s impairment calculation to the
sixth edition of the A.M.A., Guides for the accepted conditions of left elbow sprain and neck
sprain. In a January 2, 2015 report, an OWCP medical adviser, Dr. Arthur S. Harris reviewed
appellant’s file and noted that OWCP accepted conditions of neck sprain and left elbow sprain.
He advised, based on a review of the medical record, that appellant had degenerative
joint/degenerative disc disease of the cervical spine, cervical disc bulging C4-5 C6-7, and
cervical radiculopathy. Utilizing The Guides Newsletter July/August 2009 to rate spinal nerve
impairments, the medical adviser opined that appellant has one percent permanent impairment of
the right upper extremity for residual problems with mild pain/impaired sensation from right
sided C6 cervical radiculopathy and 1 percent permanent impairment of the left upper extremity
for residual problems with mild pain/impaired sensation from left C6 cervical radiculopathy. He
reported that maximum medical improvement was reached on November 22, 2010 for both the
right upper extremity and the left upper extremity as indicated by Dr. Trieb in his September 2,
2014 report. The medical adviser noted that Dr. Trieb had calculated impairment based on the
fifth edition of the A.M.A., Guides and on the cervical spine grid, which is not the proper
approach utilized by OWCP to rate spinal nerve impairments.
By decision dated January 27, 2015, OWCP issued a schedule award for one percent
impairment to the right upper extremity and one percent impairment to the left upper extremity.
The award ran 6.24 weeks for the period November 22, 2010 to January 4, 2011.
On March 27, 2015 OWCP received appellant’s request for reconsideration of its
January 27, 2015 decision. Appellant sent in several letters concerning the status/failure of
OWCP to expand and/or adjudicate his upper extremities, bilateral shoulders, and back
conditions.

4

Dr. Trieb also provided examination findings of the shoulder which he noted was not part of the accepted facts,
but was important as there was radiating pain from the neck in the shoulders.
5

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

6

In a February 13, 2015 medical report, Dr. Blackwell, a Board-certified orthopedic
surgeon, noted that he had reviewed the medical adviser’s January 2, 2015 report and that the
medical adviser did not provide an explanation of how he determined the impairment rating of “1
percent WPI.” He contended that his report of November 17, 2013 should be used for
calculation of the award.6
By decision dated June 19, 2015, OWCP declined to review the merits of the claim. It
found the reconsideration request was insufficient to warrant further review of the merits of the
claim.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA,7 and its implementing federal regulations,8 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to rate permanent impairment.10
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that FECA allows ratings for
extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments.11 OWCP has adopted this approach for rating impairment to the
upper or lower extremities caused by a spinal injury.12 The impairment is premised on evidence
of radiculopathy affecting the upper and/or lower extremities.13

6

In his November 17, 2013 report, Dr. Blackwell noted that appellant had been permanent and stationary since
November 22, 2010. He noted that page 2 of The Guides Newsletter July/August 2009 rating spinal nerve extremity
impairment stated that cervical spine intervertebral disc herniations were rated per Table 17-2, cervical spine
regional grid. Dr. Blackwell calculated 12 percent upper extremity impairment for sensory peripheral nerve injury
and motor deficits.
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a)
(February 2013).
11

See Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a) (February 2013);
and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010); see also R.M., Docket No.
12-1811 (issued March 14, 2013).
12

Id. at Chapter 3.700, Exhibit 4 (January 2010); see R.M., Docket No. 12-1811 (issued March 14, 2013).

13

Id.

7

Section 8123(a) of FECA 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.14 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.15 When there exist 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 sufficiently well rationalized and based
upon a proper factual background, must be given special weight.16
When OWCP secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting a defect in the original report.17 When the impartial
medical specialist’s statement of clarification or elaboration is not forthcoming or if the specialist
is unable to clarify or elaborate on the original report or if the specialist’s supplemental report is
also vague, speculative, or lacks rationale, OWCP must submit the case record and a detailed
SOAF to a second impartial specialist for a rationalized medical opinion on the issue in
question.18 Unless this procedure is carried out by OWCP, the intent of section 8123(a) will be
circumvented and the impartial medical examiner’s report is insufficient to resolve the conflict in
medical evidence.19
OWCP procedures further provide that, while an OWCP medical adviser may review the
opinion of a referee specialist in a schedule award case, the resolution of the conflict is the
specialist’s responsibility and not that of OWCP’s medical adviser who should not resolve the
conflict of medical opinion or attempt to clarify or expand the opinion of the medical referee. If
clarification is necessary, a supplemental report should be obtained from the referee specialist.20

14

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

15

20 C.F.R. § 10.321.

16

V.G., 59 ECAB 635 (2008).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.11(d)(2) (September 2010).
18

See D.T., Docket No. 14-332 (issued May 14, 2014); Talmadge Miller, 47 ECAB 673 (1996); see also Federal
(FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11(e)
(September 2010).
19

See D.T., id.

20

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(g)(1,2) (February 2013).

8

ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
In his July 21, 2012 report, Dr. Blackwell disagreed with Dr. Nijjar’s May 21, 2012
second opinion which concluded that there was a “good likelihood” that appellant did not suffer
from residuals of his September 27, 2007 cervical sprain and that his current cervical condition
was related to his other cervical injuries. He explained that it was common knowledge in
orthopedics that underlying pathology could exist in an asymptomatic fashion only to be
revealed by a specific injury and become a chronic problem. Dr. Blackwell also opined that
since the chronic sprain findings and the underlying pathology could not be distinguished, it was
illogical on Dr. Nijjar’s part to find that the sprain was no longer a factor. As a conflict in
medical opinion existed as to whether appellant’s work-related neck sprain had resolved, and
whether appellant had a permanent impairment causally related to the accepted injury, OWCP
properly referred appellant to Dr. Trieb for an impartial medical examination to resolve the
conflict of medical opinion with regard to the percentage of permanent partial impairment to any
extremity affected by the accepted medical conditions of left elbow sprain and neck sprain.
Dr. Trieb’s September 2, 2014 report is of diminished probative value. Dr. Trieb opined
that appellant’s left elbow sprain had resolved and provided medical rationale as to why
appellant’s cervical condition was related to his employment injuries. He indicated that the date
of maximum medical improvement was November 22, 2010. Dr. Trieb utilized the fifth edition
of the A.M.A., Guides, to find 24 percent whole person impairment for loss of motion of the
cervical spine as well as neurologic deficit of the upper extremities. OWCP, however, uses the
sixth edition of the A.M.A., Guides to calculate schedule awards.21 A medical opinion based on
an inappropriate edition of the A.M.A., Guides is of diminished probative value in determining
the extent of permanent impairment.22 Furthermore, a rating based upon whole person
impairment is improper under the A.M.A., Guides.23 Consequently, Dr. Trieb’s opinion is
insufficient to resolve the conflict in medical opinion.
OWCP medical adviser Dr. Harris reviewed Dr. Trieb’s September 2, 2014 report. He
noted that the date of maximum medical improvement was November 22, 2010. The medical
adviser also noted that Dr. Trieb had documented appellant’s ongoing problems with the cervical
spine, but did not calculate impairment based on the sixth edition of the A.M.A., Guides.
Although he properly referenced The Guides Newsletter July/August 2009, he did not discuss
specific tables or procedures, nor provide any explanation for his conclusion that appellant had
one percent impairment of the right upper extremity and one percent impairment of the left upper
extremity.24

21

See supra note 7.

22

See F.T., Docket No. 14-553 (issued August 11, 2014); Fritz A. Klein, 53 ECAB 642 (2002).

23

See Tania R. Keka, 55 ECAB 354 (2004); James E. Millis, 43 ECAB 215 (1991) (neither FECA nor
implementing regulations provide for a schedule award for impairments to the body as a whole).
24

See C.K., Docket No. 14-1861 (issued January 2, 2015).

9

When OWCP secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting a defect in the original report.25 On remand, it should ask
Dr. Trieb to provide an impairment opinion based on the sixth edition of the A.M.A., Guides, as
to whether appellant has sustained permanent impairment causally related to the accepted
employment injuries. Following such further development as deemed necessary, OWCP should
issue a de novo decision on appellant’s entitlement to a schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision on the extent of permanent
impairment to appellant’s upper extremities.26
ORDER
IT IS HEREBY ORDERED THAT the June 19 and January 27, 2015 decisions of the
Office of Workers’ Compensation Programs are set aside and the case remanded for further
proceedings consistent with this decision.
Issued: June 2, 2016
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

25

See K.C., Docket No. 14-791 (issued August 8, 2014); Guiseppe Aversa, 55 ECAB 164 (2003).

26

In light of the disposition of this case, issue 2 is hereby rendered moot.

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cappell, TX, Employer
__________________________________________

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

Docket No. 08-2547
Issued: June 12, 2009

Case Submitted on the Record

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

JURISDICTION
On September 22, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision concerning an overpayment dated August 18, 2008. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment in the amount of $1,034.75 for the period May 29, 2008 through June 7, 2008; and
(2) whether the Office properly found that appellant was at fault in creating the overpayment.
FACTUAL HISTORY
Appellant, a 51-year-old distribution clerk, filed a claim for benefits on July 14, 2005,
alleging that she injured her left shoulder and lower back in the performance of duty on
June 4, 2005. The Office accepted the claim for sprain/strain of the left shoulder, sprain/strain of
the lumbar region and sprain/strain of her left hip/thigh. Appellant returned to work for
intermittent periods.

Appellant stopped work on December 3, 2007, when she underwent left rotator cuff
repair surgery. The Office commenced her appropriate compensation for temporary total
disability.
In the January 15, 2008 letter advising appellant that she would be paid temporary total
disability compensation, the Office stated:
“OVERPAYMENTS. To minimize the possibility of an overpayment of compensation,
NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU GO BACK TO WORK. Each
payment shows the period for which payment is made. If you have worked for any
portion of this period, return the payment to this office, even if you have already advised
the [Office] that you are working.” (Emphasis in the original).
On May 29, 2008 appellant returned to work on light duty.
On June 24, 2008 the Office issued a preliminary determination that an overpayment had
occurred in the amount of $1,034.75 for the period May 29 through June 7, 2008 because
appellant received compensation to which she was not entitled. It found that appellant was at
fault in the matter because she continued to receive compensation for temporary total disability
when she should have been aware, after returning to work on May 29, 2008, that the payments
she had been receiving were incorrect. The Office calculated the amount of the overpayment by
taking appellant’s net monthly, 28-day compensation payment from May 29 to June 7, 2008,
$2,897.30, dividing it by 28 days, which amounted to $103.48 and multiplying this figure by 10
days, the period for which she received the overpayment. This created an overpayment of
$1,034.75. The Office advised appellant that, if she disagreed with the fact or amount of the
overpayment she could submit new evidence in support of her contention. It further advised
appellant that when she was found without fault in the creation of the overpayment, recovery
might not be made if it could be shown that such recovery would defeat the purpose of the law or
would be against equity and good conscience. The Office informed appellant that if she
disagreed with the decision she could, within 30 days, submit evidence or argument to the Office
or request a prerecoupment hearing with the Branch of Hearings and Review on the matter of the
overpayment and that any response she wished to make with regard to the overpayment should
be submitted within 30 days of the May 18, 2005 letter. Appellant did not respond to this letter
within 30 days.
In a decision dated August 18, 2008, the Office finalized the preliminary determination
regarding the overpayment of $1,034.75.
LEGAL PRECEDENT -- ISSUE 1
Compensation for total disability under the Federal Employees’ Compensation Act is
payable when the employee starts to lose pay.1 Compensation for wage loss due to disability is

1

20 C.F.R. § 10.401(a) (2003).

2

available only for any periods during which an employee’s work-related medical condition
prevents him from earning the wages earned before the work-related injury.2
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $1,034.75 for the period May 29 through
June 7, 2008. The record shows that appellant received an overpayment during the period in
question because she continued to receive temporary total disability compensation after she
returned to work on May 29, 2008. The Office calculated the $1,034.75 overpayment by totaling
the amount of temporary total disability compensation appellant received during the period
May 29 through June 7, 2008, $1,034.75, in accordance with the procedure outlined above.
Based on this determination, the Office properly found that appellant received an overpayment of
compensation in the stated amount during that period.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act3 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”
No waiver of an overpayment is possible if the claimant is not “without fault” in helping to
create the overpayment.4
In determining whether an individual is with fault, section 10.433(a) of the Office’s
regulations provides in relevant part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect….5

2

Id. at § 500(a) (2003).

3

5 U.S.C. § 8129(a)-(b).

4

Bonnye Mathews, 45 ECAB 657 (1994).

5

20 C.F.R. § 10.433(a).

3

ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment.
Even if the overpayment resulted from negligence on the part of the Office, this does not
excuse the employee from accepting payment which she knew or should have expected to know
she was not entitled.6 Appellant was informed by the Office in its January 15, 2008 letter that
she was required to notify it as soon as she returned to work and to return any payment of
compensation to the Office in order to avoid an overpayment of compensation. She returned to
work on May 29, 2008 but did not return any compensation received after that date, even though
she knew or should have known that an overpayment would be created if she accepted
compensation benefits after her return to work.
The Board has held however that an employee who receives payments from the Office in
the form of direct deposit may not be at fault the first time incorrect funds are deposited into her
account, as the acceptance of the resulting overpayment typically lacks the requisite knowledge.7
After appellant’s receipt of the first direct deposit, for which fault may not be imputed to her, it
could be presumed that she knew the amount of compensation contained in subsequent direct
deposit checks exceeded the amount to which she was entitled. However, the Office became
aware that it was erroneously sending compensation checks to appellant immediately after it sent
her the first direct deposit check following her return to work. Therefore, for receipt of the first
direct deposit, the Board finds that appellant was without fault. While appellant accepted the
overpayment by gaining control of the funds deposited into her checking account pursuant to her
authorization, she did not know that she would receive an incorrect payment on that day. Unlike
the situation in which a claimant receives a paper check and is aware of the amount of the
payment before depositing it into her account, appellant was not on notice of the amount of the
payment until after it was deposited electronically into her account. As the first direct deposit
was the only one containing an erroneously issued compensation payment, appellant is without
fault with regard to the overpayment of $1,034.75 for the period May 29, through June 7, 2008.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $1,034.75 for the period May 29 through
June 7, 2008. The Board finds that appellant was not at fault in creating the overpayment. The
case will therefore be remanded to the Office for evaluation of waiver of the overpayment.

6

See Russell E. Wageneck, 46 ECAB 653 (1995).

7

That Board has found the claimant to be at fault in cases where he or she is receiving compensation checks
through direct deposit which involve a series of payments over several months, with clear knowledge that the
payments are incorrect. See Tammy Craven, 57 ECAB 689 (2006). The Board notes that it is not appropriate to
make a finding that a claimant has accepted overpayment via direct deposit until such time as a reasonable person
would have been aware that this overpayment had occurred. This awareness could be established either through
documentation such as a bank statement or notification from the Office or where a reasonable period of time has
passed during which a claimant could have reviewed independent confirmation of the incorrect payment.

4

ORDER
IT IS HEREBY ORDERED THAT the August 18, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed in part, reversed in part and remanded for a
waiver determination.
Issued: June 12, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, COLLEGE PARK
STATION, Detroit, MI, Employer
__________________________________________

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

Docket No. 19-1897
Issued: April 21, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On September 14, 2019 appellant filed a timely appeal from an April 30, 2019 merit
decision and an August 30, 2019 nonmerit 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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a traumatic
injury causally related to the accepted November 14, 2018 employment incident; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 11, 2019 appellant, then a 32-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on November 14, 2018 she sustained an injury to her feet and toes due
1

5 U.S.C. § 8101 et seq.

to cold weather exposure while in the performance of duty. On the reverse side of the claim form,
appellant’s supervisor asserted that appellant was not injured in the performance of duty and that
the employing establishment was controverting the claim. Appellant did not stop work.
In a March 6, 2019 narrative statement, appellant indicated that on November 14, 2018 she
was walking while delivering mail when her feet started to get cold. She related that, after finishing
the rest of the mail delivery, she went back to her postal truck to warm her feet. Appellant noted
that her feet and socks were wet. She subsequently went to a gas station to get some foot warmers
and resumed working. Appellant indicated that by the time she returned to her workstation her
feet were cold again. She noted that when she got home, her feet started throbbing and tingling
and she felt a burning sensation in her feet. Appellant treated her symptoms with over-the-counter
medication, and put her feet by the heating vent. She asserted that the next day she notified her
supervisor of the pain in her feet and suggested that she might have frostbite. Appellant explained
that her feet began hurting again on the evening of November 15, 2018 and took additional overthe-counter pain medication, which helped mildly with her pain.
Appellant asserted that she told her supervisors multiple times that her feet were hurting
and that she needed medical assistance. She noted that her supervisor gave her the following
Saturday off and thereafter she took vacation time. Appellant indicated that during her vacation,
the pain was coming and going and her feet were numb. She noted that she finally made a doctor’s
appointment during her vacation and when she returned to work on November 23, 2018, she
notified her supervisor again of the pain in her feet and also spoke with her union steward.
Appellant explained that she did not ask for claim forms until December when the temperature
dropped and she started to feel pain again. She indicated that, upon her pain returning, she went
to her manager, notified her of the pain, and ultimately went to see a doctor. Appellant’s doctor
recommended that she see a podiatrist after noting normal results from the examinations. She
reported that she was diagnosed with first-degree frostbite.
A November 20, 2018 medical report from a primary care facility noted that appellant
underwent an ankle brachial index (ABI) procedure and an arterial duplex scan of bilateral foot.
Appellant was diagnosed with foot pain.
In a January 22, 2019 medical report/work note, Joshua A. Ruedisueli, a certified physician
assistant (PA-C), noted that appellant was seen on that day for a complaint of bilateral foot pain.
He excused her from work for the remainder of the day and released her to return to work the next
day without restrictions.
A January 23, 2019 work note from a podiatry office noted that appellant was examined
and treated at the clinic that day.
In a February 28, 2019 certificate of disability, Dr. Alan J. Schram, Board-certified in
podiatric orthopedics and primary podiatric medicine, noted that appellant was treated for frostbite.
He requested that appellant be excused from work from February 28 through March 5, 2019.
In a March 26, 2019 development letter, OWCP informed appellant of the deficiencies in
her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a factual questionnaire for completion. OWCP afforded appellant 30 days to
respond.

2

By decision dated April 30, 2019, OWCP denied appellant’s claim finding that the medical
evidence of record failed to establish a causal relationship between her diagnosed frostbite and the
accepted November 14, 2018 employment incident.
On June 6, 2019 appellant requested reconsideration.
In support of her request, appellant submitted a February 12, 2019 medical report by
Dr. Schram which noted that appellant presented with a complaint of foot pain and indicated that
she may have frostbite. Dr. Schram noted that appellant’s pain started in November 2018 and that
an x-ray of her feet revealed moderate hammertoe and mallet toe deformities. He concluded that
the burning, pain, and clinical changes in her foot tissue were consistent with a history of first
degree frostbite sustained three to four months prior.
In February 27 and 28, 2019 medical notes, Dr. Schram indicated that appellant was seen
in the emergency room on February 27, 2019 due to continued pain in her feet and toes. He
discussed treatment and noted that she should continue with over-the-counter medications and
soaking her feet in warm water daily.
In an April 1, 2019 response to OWCP’s questionnaire, received on June 6, 2019, appellant
noted that she had no other injury between the accepted November 14, 2018 employment incident
and the date she notified the employing establishment. She indicated that she had throbbing pain
and a burning sensation in her toes, and that she frequently took Motrin for pain, which worsened
every day. Appellant explained that she could not see her doctor on November 20, 2018 because
the employing establishment ignored her request. She asserted that she had no other disability or
symptoms prior to the accepted November 14, 2018 employment incident.
By decision dated August 30, 2019, OWCP denied appellant’s request for reconsideration
of the merits of her claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5
2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence. 6
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury causally related to the accepted November 14, 2018 employment incident.
In support of her claim, appellant submitted a January 23, 2019 work note from a podiatry
clinic noting that she was examined and treated at the clinic that day. Lacking a firm diagnosis
and rationalized medical opinion regarding causal relationship, this report is of no probative value. 9
Accordingly, this report is insufficient to satisfy appellant’s burden of proof to establish her
claim.10
In a February 28, 2019 certificate of disability, Dr. Schram diagnosed frostbite. However,
he did not provide a medical opinion explaining why appellant’s condition was due to the accepted
November 14, 2018 employment incident. The Board has held that medical evidence that does
not offer an opinion regarding the cause of an employee’s condition is of no probative value on
the issue of causal relationship. 11 Thus, the Board finds that the certificate of disability from
Dr. Schram is insufficient to establish appellant’s claim for compensation.
In addition, OWCP received an unsigned November 20, 2018 medical report from primary
care facility which noted that appellant underwent an ABI procedure and an arterial duplex scan
of bilateral foot. A report that is unsigned or bears an illegible signature, however, lacks proper
6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
9

P.C., Docket No. 18-0167 (issued May 7, 2019).

10

T.G., Docket No. 19-0904 (issued November 25, 2019); L.D., Docket No. 17-1581 (issued January 23, 2018);
Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

4

identification and cannot be considered probative medical evidence as the author cannot be
identified as a physician. 12
Appellant also submitted a January 22, 2019 medical report from Joshua Ruedisueli, a
certified physician assistant (PA-C), who noted that appellant was seen on that day for a complaint
of bilateral foot pain. Certain healthcare providers such as physician assistants are not considered
“physician[s]” as defined under FECA. 13 Consequently, the report of Mr. Ruedisueli’s opinion
will not suffice for purposes of establishing entitlement to FECA benefits. 14
As appellant has not submitted a rationalized medical opinion supporting that she sustained
a traumatic injury causally related to the accepted November 14, 2018 employment incident, she
has not met her burden of proof to establish an employment-related traumatic injury.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 15
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.16

12

See I.M., Docket No. 19-1038 (issued January 23, 2020); Thomas L. Agee, 56 ECAB 465, 468 (2005).

13

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); K.W., 59 ECAB
271, 279 (2007).
14

15

5 U.S.C. § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued
February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
16

20 C.F.R. § 10.606(b)(3); see also E.W., Docket No. 19-1393 (issued January 29, 2020); L.D., id.; B.W., Docket
No. 18-1259 (issued January 25, 2019).

5

A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 17 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 18 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
The Board finds that appellant has not alleged or demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Moreover, appellant has not advanced a relevant
legal argument not previously considered. Consequently, she is not entitled to a review of the
merits of her claim based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).20
The Board further finds that appellant has not provided relevant and pertinent new evidence
in support of her request for reconsideration. The underlying issue in this case is the medical
question of whether appellant sustained a frostbite injury causally related to her accepted
November 14, 2018 employment incident. That is a medical issue which must be addressed by
relevant medical evidence not previously considered. On reconsideration appellant submitted
medical reports from Dr. Schram dated February 12, 27, and 28, 2019 diagnosing frostbite and
noting her symptoms of pain and numbness that began in November 2018. While these reports
are new, they are not relevant as they are substantially similar to Dr. Schram’s prior reports already
of record and previously reviewed. Providing additional evidence that either duplicates or is
substantially similar to evidence already in the case record does not constitute a basis for reopening
a case.21 Additionally, while Dr. Schram noted that appellant’s pain began in November 2018, he
still failed to address how appellant sustained a frostbite injury causally related to her accepted
November 14, 2018 employment incident. She also submitted her response to the development
letter, received on June 6, 2019, in which she restated her symptoms, noted that she had no previous
symptoms prior to her claimed injury, and explained how her injury had occurred. However, the
response to the development letter does not contain a physician’s opinion as to the issue of causal
relationship and is therefore not relevant evidence. The Board has held that the submission of

17

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
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. Id. at Chapter 2.1602.4b.
18

Id. at § 10.608(a); see also Y.H., Docket No. 18-1618 (issued January 21, 2020); R.W., Docket No. 18-1324
(issued January 21, 2020); M.S., 59 ECAB 231 (2007).
19
Id. at § 10.608(b); D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., Docket No. 19-0291 (issued
June 21, 2019).
20

M.O., Docket No. 19-1677 (issued February 25, 2020); C.B., Docket No. 18-1108 (issued January 22, 2019).

21

See V.Q., Docket No. 19-1309 (issued January 3, 2020).

6

evidence or argument which does not address the particular issue involved does not constitute a
basis for reopening a case. 22
As appellant did not provide relevant and pertinent new evidence, she is not entitled to a
merit review based on the third requirement under 20 C.F.R. § 10.606(b)(3).23
The Board, accordingly, finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 24
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury causally related to the accepted November 14, 2018 employment incident. The Board
further finds that OWCP properly denied appellant’s request for reconsideration of the merits of
her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 30 and April 30, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 21, 2020
Washington, DC
Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board
Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Janice B. Askin, Judge
Employees’ Compensation Appeals Board

22

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

23

20 C.F.R. § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

24

D.G., Docket No. 19-1348 (issued December 2, 2019).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, SALISBURY POST
OFFICE, Salisbury, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Erik B. Blowers, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1167
Issued: November 8, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 30, 2019 appellant, through counsel, filed a timely appeal from a February 4,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction 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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 4, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
causally related to the accepted October 18, 2017 employment incident.
FACTUAL HISTORY
On November 21, 2017 appellant, then a 44-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 18, 2017 he pushed a loaded parcel buggy and injured
his back while in the performance of duty. He stopped work on November 21, 2017. In a
November 21, 2017 statement, appellant described a popping sensation in his low back with pain
radiating into the lower extremities while pushing a parcel buggy to his delivery vehicle earlier
that day. He noted that he sustained a prior occupational lumbar injury on September 4, 2015,
accepted by OWCP for an aggravation of lumbar spondylosis without myelopathy or
radiculopathy.4 A.D., appellant’s supervisor, confirmed that appellant had sustained a prior
accepted back injury in September 2015, but chose to claim a new traumatic injury.
Dr. Paul Alan Withers, a Board-certified physiatrist, in his November 21, 2017 report,
restricted appellant to sedentary duty with no driving, and lifting limited to five pounds. Appellant
accepted a modified-duty position on November 25, 2017.
In a November 29, 2017 development letter, OWCP advised appellant of the deficiencies
of his claim. It requested additional factual and medical evidence from appellant and afforded him
30 days to respond. No additional evidence was received.
By decision dated January 8, 2018, OWCP denied appellant’s claim finding that he had not
met his burden of proof to provide evidence sufficient to establish that the incident occurred as
alleged. It concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.
On March 12, 2018 appellant, through counsel, requested reconsideration, asserting that
the evidence of record was sufficient to establish that the October 18, 2017 employment incident
occurred, as alleged. Counsel submitted a February 22, 2018 statement from appellant describing
the claimed October 18, 2017 employment incident, and witness statements by coworkers T.G.
and S.M.
In a report dated November 21, 2017, Dr. Withers noted appellant’s history of an L3 disc
herniation with radiculopathy in 2012, which resolved and remained stable until a 2015 incident
while bending to put down a box caused a recurrence of lumbar pain and radiculopathy. A lumbar
magnetic resonance imaging (MRI) scan in 2015 demonstrated lumbar facet arthropathy without
spinal stenosis or disc pathology. Appellant underwent bilateral medial branch blocks at L3, L4,
and L5 on June 6, 2017, radiofrequency ablation at L3, L4, and L5 on the right on June 26, 2017,
L3, L4, and L5 on the left on July 11, 2017, and a series of lumbar epidural injections on October 3
and November 14, 2017. He recently complained of bowel incontinence without bladder issues.
Dr. Withers diagnosed low back pain with possible lumbar or thoracic stenosis. He noted that this
4

On June 22, 2017 under File No. xxxxxx499, OWCP accepted that on September 4, 2015, appellant squatted to
place a parcel on a porch while in the performance of duty and sustained an aggravation of lumbar spondylosis without
myelopathy or radiculopathy.

2

was an “aggravation of his prior injury and not a new injury.” In a March 6, 2018 addendum,
Dr. Withers clarified that appellant had reported “a new injury at work” on October 18, 2017 with
increased pain.
In a January 4, 2018 report, Dr. Withers noted that a recent MRI scan showed “continued
severe facet arthropathy and L5-S1 bilateral neuroforaminal stenosis,” and multilevel thoracic disc
bulging causing spinal stenosis. He diagnosed severe lumbar facet arthropathy, bilateral L5-S1
neuroforaminal stenosis, multilevel thoracic disc bulging causing mild spinal stenosis, and lumbar
pain with bilateral radiculopathy. Dr. Withers recommended a neurosurgical consultation.
In a report dated March 26, 2018, Dr. Tuan Huynh, a Board-certified family practitioner,
noted a September 4, 2015 employment injury, and the October 18, 2017 employment incident in
which appellant “injured his low back by pushing a parcel cart.” He diagnosed lumbar spondylosis
without radiculopathy, and lumbosacral disc degeneration. Dr. Huynh opined that appellant
injured his low back on October 18, 2017 by pushing a parcel mail cart at work.5
By decision dated June 29, 2018, OWCP modified its prior decision finding that appellant
had established the October 18, 2017 employment incident occurred as alleged. However, it
continued to deny the claim as he had not met his burden of proof to establish causal relationship
between his lumbar conditions and the accepted October 18, 2017 employment incident.
On July 24, 2018 appellant, through counsel, requested reconsideration. He submitted
additional medical evidence.
In a July 12, 2018 report, Dr. Huynh provided a detailed history of the accepted
September 4, 2015 employment injury and the accepted October 18, 2017 employment incident.
He noted that appellant’s duties as a rural carrier required repetitive heavy lifting, causing
compression of the lumbar vertebrae over time, superimposed on age-related dehydration and
degradation of the disc substance. Dr. Huynh explained that spondylosis was a term used to
describe degenerative change in the intervertebral discs and adjacent structures. Lumbar
spondylosis denoted “the natural deterioration of the lower spine due to compression and age.”
Appellant’s preexisting lumbar spondylosis, including dehydrated lumbar discs with diminished
elasticity, resulted in disc space narrowing and nerve root impingement. Dr. Huynh explained that
pushing the loaded parcel buggy on October 18, 2017 caused a direct “strenuous injury” to the
previously asymptomatic degenerated disc and lumbar spondylosis, resulting in radiculopathy and
lumbar pain.
By decision dated October 19, 2018, OWCP denied modification finding that causal
relationship had not been established.
On November 14, 2018 appellant, through counsel, requested reconsideration.
submitted additional medical evidence.

He

A March 25, 2018 lumbar MRI scan demonstrated L5-S1 facet osteoarthritis producing a
grade 1 anterolisthesis, bilateral foraminal stenosis at L5-S1, and segmental instability.

On its face, Dr. Huynh’s March 26, 2018 report refers to the year of the October 18th employment incident as 2018
rather than 2017. This appears to be a harmless typographical error.
5

3

By decision dated February 4, 2019, OWCP denied modification as the evidence of record
did not contain sufficient medical rationale supporting causal relationship to meet appellant’s
burden of proof.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.9 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.10 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.11 An employee may establish that an injury
occurred in the performance of duty as alleged, but fail to establish that the disability or specific
condition for which compensation is being claimed is causally related to the injury.12
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident.13
In any case where a preexisting condition involving the same part of the body is present and the
issue of causal relationship therefore involves “aggravation, acceleration, or precipitation,” the

6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
10

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB
137 (2005).
11
A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 9.
12

Shirley A. Temple, 48 ECAB 404, 407 (1997).

13

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

4

physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.14
ANALYSIS
The Board finds that this case is not in posture for a decision.
In support of his claim, appellant provided a July 12, 2018 report from Dr. Huynh
indicating that he was aware of appellant’s underlying lumbar conditions as the result of the
accepted September 4, 2015 employment injury, including lumbar spondylosis. He found that the
accepted October 18, 2017 employment incident caused a new strain injury to a previously
asymptomatic degenerated lumbar disc, resulting in lumbar pain and radiculopathy.
Dr. Huynh provided a detailed explanation of lumbar spondylosis and degenerative disc
disease. He explained that lumbar spondylosis described the natural process of disc degeneration
and dehydration due to compression and age. The degenerated discs had lost elasticity, causing
disc space narrowing with nerve root impingement. Dr. Huynh also explained that pushing the
parcel buggy at work on October 18, 2017 caused a direct strain injury to degenerated, but
previously asymptomatic, lumbar discs and lumbar spondylosis, resulting in lumbar pain and
radiculopathy. He thus presented a detailed biomechanical explanation of how appellant’s lumbar
condition resulted from the accepted October 18, 2017 employment incident. Although
Dr. Huynh’s reports are insufficient to discharge appellant’s burden of proving that his current
lumbar condition(s) was caused or aggravated by the October 18, 2017 employment incident, his
opinion is of sufficient probative quality to require further development of the case record by
OWCP, and is uncontroverted in the record.15
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done.16
On remand OWCP should refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts. Its referral physician should provide an evaluation and a
rationalized medical opinion as to the relation of the claimed lumbar condition(s) to the accepted
October 18, 2017 employment incident. Any contribution from the September 4, 2015
employment injury should also be discussed. After such further development of the case record
as OWCP deems necessary, including administratively combining OWCP File Nos. xxxxxx499
and xxxxxx037, it shall issue a de novo decision.

14
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
R.A., Docket No. 19-0423 (issued August 7, 2019); D.S., Docket No. 17-1359 (issued May 3, 2019).
15

R.A., supra note 14; D.S., supra note 14.

16

Id.; X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019);
William J. Cantrell, 34 ECAB 1223 (1983).

5

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 4, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: November 8, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6