United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., claiming as widow of J.G., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
WEAPONS STATIONS, China Lake, CA,
Employer
__________________________________________

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

Docket No. 20-0815
Issued: December 10, 2020

Case Submitted on the Record

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

JURISDICTION
On March 3, 2020 appellant filed a timely appeal from a November 8, 2019 merit decision
and a February 12, 2020 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 her burden of proof to establish that the
employee’s death on July 14, 2018 was causally related to his accepted employment injury; and
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 12, 2020 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.

(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
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decisions and orders are incorporated herein by reference. The
relevant facts are set forth below.
On February 15, 1984 the employee, then a 30-year-old fireman, filed a traumatic injury
claim (Form CA-1) alleging that on January 14, 1984 he fell and injured his neck when pulling a
fire hose while in the performance of duty. OWCP accepted his claim for a cervical strain,
dislocation of lumbar vertebra, displacement of cervical intervertebral disc, herniated disc at C5-6
and later accepted a permanent aggravation of paranoid schizophrenia. It authorized a cervical
laminectomy and a fusion, which was performed on February 17, 1984. The employee stopped
work on January 17, 1984 and returned to light duty on May 6, 1984.
By decision dated May 13, 1991, OWCP reduced the employee’s wage-loss compensation
based on its finding that his actual earnings as an accounting technician fairly and reasonably
represented his wage-earning capacity. On May 6, 1994 he stopped work completely and was
hospitalized due to a psychiatric episode. The employee was granted disability retirement effective
July 25, 1994. He later elected to receive wage-loss compensation benefits under FECA.
The record indicates that, in the years preceding his passing, the employee was not in active
treatment for the orthopedic conditions, but was seen by a psychologist. In a May 7, 2013 report,
Dr. Lawrence J. Coates, a psychologist, noted treating the employee since 1994 for schizophrenia
as a result of a work-related injury. He reported that he continued to have significant periods of
confusion, paranoia, and depression and required an attendant as he had signs of decompensation.
In a report dated March 25, 2014, Dr. Coates noted providing continuing psychological care since
the employee experienced a schizophrenic break in 1994 associated with a work-related condition.
He opined that the employee was gravely disabled and required assistance with his activities of
daily living as provided by his wife.
On July 18, 2018 appellant notified OWCP that the employee had passed away on
July 14, 2018.
In a death certificate dated July 26, 2018, Dr. Kain Kumar, a Board-certified internist,
noted the employee’s immediate cause of death as cardiorespiratory failure. The underlying cause
of the cardiorespiratory failure was listed as myocardial infarction and coronary artery disease. In
a box marked “other significant conditions contributing to death, but not resulting in the underlying
cause” was listed metastatic lung cancer.

3

Docket No. 15-0863 (issued August 12, 2015); Docket No. 15-0842 (issued April 16, 2015); Docket No. 14-1491
(issued September 25, 2014); Docket No. 13-1542 (issued March 12, 2014); Docket No. 12-1688 (issued February 13,
2013); Docket No. 11-366 (issued September 28, 2011); Docket No. 09-1947 (issued May 18, 2010); Docket No.
06-0201 (issued November 28, 2006).

2

In a letter dated August 27, 2019, OWCP advised appellant of the type of medical evidence
needed to establish that the employee’s accepted employment injury contributed to his death. It
provided her with a claim form for compensation by widow, widower, and/or children (Form
CA-5) for requesting survivor’s benefits.
On September 2, 2019 appellant filed a Form CA-5 requesting survivor’s benefits. She
noted the nature of injury, which caused the employee’s death, was neck spinal fusion in 1984 and
mental breakdown in 1994. The medical portion of the CA-5 form was not completed. Appellant
submitted a marriage certificate dated February 5, 1973, funeral expenses dated July 16, 2018, and
the employee’s death certificate dated July 26, 2018.
OWCP received various medical reports from Dr. Coates dated June 3, 1994 through
January 30, 2008, who noted treating the employee since 1994 for schizophrenia as a result of a
work-related injury. It also received a June 3, 1994 report from Dr. Joseph Ezra, a Board-certified
psychiatrist, who treated the employee for depression, delusion, and paranoia. Appellant
submitted other evidence including a March 1, 1991 letter from the employee to his congressional
representative, an OWCP memorandum dated November 17, 1994 regarding the employee’s stress
claim, and letters from the employee to OWCP dated August 12, 2010 and June 4, 2012, asserting
that he was entitled to an attendant allowance and total disability for his accepted conditions dating
back to 1994.
In a development letter dated October 2, 2019, OWCP informed appellant of the
deficiencies of her survivor benefits claim and requested additional factual and medical
information. It specifically requested that she submit a comprehensive medical report that gave a
qualified physician’s opinion, with medical reasons, on the direct cause of the employee’s death.
In response to OWCP’s development letter, appellant submitted emergency medical
treatment notes dated January 9 and 14, 1984 for a neck strain and cervical strain. OWCP received
a Form CA-1 dated January 10, 1984 alleging exposure to toxic acid and fumes on January 9,
1984, while working as a firefighter and an accident/injury notification, dated January 14, 1984,
diagnosing cervical strain.
In a letter dated October 11, 2019, appellant asserted that the employee’s death was caused
by his accepted neck injury on January 13, 1984 and an emotional breakdown in 1994.
By decision dated November 8, 2019, OWCP denied appellant’s claim for survivor’s
benefits finding that the medical evidence of record was insufficient to establish a causal
relationship between the employee’s death and his accepted employment injuries. It indicated that
none of the medical evidence submitted provided a rationalized medical opinion that related the
cause of death to his work-related injuries.
OWCP received medical records from Palmdale Regional Medical Center dated June 16,
2018, where the employee was treated by Dr. Kumar for extensive metastatic lung disease to the
spine. The employee reported chronic neck pain secondary to trauma. An admission record from
the Ellison John Transitional Care Center dated July 7, 2018 diagnosed malignant neoplasm of
bronchus or lung, muscle weakness, abnormality of gait and mobility, abnormal posture,

3

dysphagia, chronic obstructive pulmonary disease, pneumonia, anemia, acute embolism, and
altered mental status.
On December 16, 2019 appellant requested reconsideration. She submitted various reports
previously of record.4
In a letter dated January 31, 2020, the employing establishment asserted that appellant’s
request for reconsideration did not provide any relevant new evidence or legal argument proving
causal relationship between the employee’s accepted employment-related conditions of sprain of
the neck, disclosed dislocation of lumbar vertebra, displacement of cervical intervertebral disc
without myelopathy or paranoid schizophrenia, and the cause of his death.
By decision dated February 12, 2020, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that she had
not raised an argument or submitted evidence sufficient to warrant reopening her case for further
merit review.
LEGAL PRECEDENT -- ISSUE 1
The United States shall pay for compensation for the death of an employee resulting from
personal injury sustained while in the performance of duty.5 Appellant has the burden of proof to
establish by the weight of the reliable, probative, and substantial evidence that the employee’s
death was causally related to his federal employment.6 This burden includes the necessity of
furnishing medical opinion evidence, based upon a complete and accurate factual and medical
background, showing causal relationship between the employee’s death and an accepted
employment injury or factors of his or her federal employment.7
The mere showing that an employee was receiving disability compensation at the time of
death does not establish that the employee’s death was causally related to his or her federal
employment.8 The Board has held that it is not necessary that there is a significant contribution of

4

In support of her request, she resubmitted various reports previously of record including a January 10, 1984 Form
CA-1, a safety program office report dated January 14, 1984, a dispensary permit dated March 1, 1984, an April 15,
1994 form leaving hospital against medical advice, a May 12, 1994 medical report aid to families with dependent
children, reports from Dr. Coates dated June 3, 1994 through March 25, 2014, a 1994 report from Dr. Ezra, an
August 8, 1994 response from the employee to an OWCP questionnaire, a November 17, 1994 OWCP memorandum
regarding appellant’s stress claim, an OWCP conference memorandum dated January 17, 1995, a May 29, 2008 letter
from OWCP approving attendant services for one year, a May 12, 2010 employing establishment memorandum, and
a copy of a Board remand order dated September 28, 2011.
5

5 U.S.C. § 8102(a).

6

L.W. (K.W.), Docket No. 19-0569 (issued August 16, 2019).

7

M.L., Docket No. 19-0020 (issued May 2, 2019); L.R. (E.R.), 58 ECAB 369 (2007).

8
Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001); Edna M. Davis (Kenneth L. Davis), 42 ECAB
728 (1991).

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employment factors to establish causal relationship.9 If the employment contributed to the
employee’s death, then causal relationship is established.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that the
employee’s death on July 14, 2018 was causally related to his accepted January 14, 1984
employment injury.
In support of her claim, appellant submitted several reports from Dr. Coates, dated June 3,
1994 through March 25, 2014, who treated the employee since 1994 for schizophrenia as a result
of a work-related injury. Also submitted was a June 3, 1994 report from Dr. Ezra who treated the
employee for depression, delusion, and paranoia. Likewise, emergency medical notes, dated
January 9 and 14, 1984, note treatment for a neck strain and cervical strain. The medical
documents provided by appellant predate the employee’s death and they have no probative value
because they do not offer an opinion regarding the cause of the employee’s death. Without an
opinion on the cause of the employee’s death, these reports, therefore, are insufficient to meet
appellant’s burden of proof.11
Dr. Kumar signed the employee’s death certificate dated July 26, 2018. On the death
certificate he listed the cause of death as cardiorespiratory failure, myocardial infarction, and
coronary artery disease with other significant conditions contributing to death, but not resulting in
the underlying cause of death, of metastatic lung cancer. However, Dr. Kumar did not provide a
rationalized medical opinion relating the employee’s death to his accepted employment injuries.12
Therefore, the certificate is insufficient to establish the claim.
Appellant also submitted various evidence including a March 1, 1991 letter from the
employee to his congressional representative, an OWCP memorandum dated November 17, 1994,
letters from the employee to OWCP dated August 12, 2010 and June 4, 2012, a Form CA-1 dated
January 10, 1984, and an accident/injury notification, dated January 14, 1984, diagnosing cervical
strain. However, this evidence is of no probative value to support a claim for compensation under
FECA as it is not medical evidence, which is necessary to establish the claim.13 Appellant must
submit medical evidence in the form of rationalized opinion by a qualified physician based on a
complete and accurate medical and factual history.14

9

T.H. (M.H.), Docket No. 12-1018 (issued November 2, 2012).

10

J.P. (E.P.), Docket No. 18-1739 (issued May 3, 2019).

11
See W.C. (R.C.), Docket No. 18-0531 (issued November 1, 2018); J.P. (T.P.), Docket No. 17-0563 (issued
June 20, 2018).
12

See J.P. (T.P.), id.

13

S.G., Docket No. 17-1054 (issued September 12, 2017).

14

Id.; see also John D. Baskette, 30 ECAB 761 (1979).

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As appellant has failed to submit medical evidence containing a rationalized medical
opinion that the employee’s accepted conditions contributed to his July 14, 2018 death, she has
not met her burden of proof.
On appeal appellant alleges that OWCP improperly denied her claim for survivor’s
benefits. As explained above, however, appellant has not submitted medical evidence containing
a rationalized medical opinion that the employee’s accepted conditions contributed to his July 14,
2018 death. Accordingly, the Board finds that she has not met her burden of proof to establish her
claim.15
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.16
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.17
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.18 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.19 If the request is timely, but fails to meet at least one of the

15

See W.C. (R.C.), supra note 11; Docket No. 18-0531 (issued November 1, 2018); J.P. (T.P.), supra note 11.

16

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).
17

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).
18
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 (iFECS). Id. at Chapter 2.1602.4b.
19
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).

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requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.20
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant filed a timely request for reconsideration on December 16, 2019. She did not
show in her request for reconsideration that OWCP erroneously applied or interpreted a specific
point of law, nor did she advance a new and relevant legal argument not previously considered by
OWCP. Consequently, the Board finds that she was not entitled to a review of the merits based
on the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).21
The Board further finds that appellant has not provided relevant and pertinent new evidence
not previously considered. Appellant resubmitted evidence previously of record and reviewed.
The Board has held that evidence which repeats of duplicates evidence already in the case record
has no evidentiary value and 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
Appellant also submitted medical records from Dr. Kumar dated June 16, 2018 who treated
the employee for extensive metastatic lung disease. Similarly, she submitted an admission record
dated July 7, 2018, which diagnosed malignant neoplasm of bronchus or lung, muscle weakness,
abnormality of gait and mobility, abnormal posture, dysphagia, chronic obstructive pulmonary
disease, pneumonia, anemia, acute embolism and altered mental status. However, the underlying
issue on reconsideration was whether appellant had met her burden of proof to establish that the
employee’s death was causally related to his accepted employment conditions. This is a medical
question that requires rationalized medical opinion evidence to resolve the issue.24 Dr. Kumar did
not, however, offer an opinion regarding the cause of the employee’s death. Without an opinion
on the cause of the employee’s death, these reports, therefore, are insufficient to meet appellant’s
burden of proof.25

20

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).
21

D.B., Docket No. 19-1963 (issued July 1, 2020); M.O., Docket No. 19-1677 (issued February 25, 2020); C.B.,
Docket No. 18-1108 (issued January 22, 2019).
22

See H.A., Docket No. 18-1253 (issued April 23, 2020); Richard Yadron, 57 ECAB 207 (2005).

23

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

24

B.O., Docket No. 20-0156 (issued May 13, 2020); E.T., Docket No. 14-1087 (issued September 5, 2014).

25

See W.C. (R.C.), supra note 11; J.P. (T.P.), supra note 11.

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The Board, accordingly, finds that appellant did not meet 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.26
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
employee’s death on July 14, 2018 was causally related to his accepted January 14, 1984
employment injury. 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 February 12, 2020 and November 8, 2019
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 10, 2020
Washington, DC

Christopher J. Godfrey, Deputy 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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D.G., Docket No. 19-1348 (issued December 2, 2019).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BLACK HILLS HEALTH CARE SYSTEM,
Fort Meade, SD, Employer
__________________________________________

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

Docket No. 17-1163
Issued: November 22, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 5, 2017 appellant filed a timely appeal from an April 14, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from the last merit decision, dated January 15, 2016, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the Board
lacks jurisdiction to review the merits of the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence after OWCP rendered its April 14, 2017 decision. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore,
the Board lacks jurisdiction to review this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On January 12, 2015 appellant, then a 50-year-old medical support assistant, filed a
traumatic injury claim (Form CA-1) alleging that, at 6:21 a.m. on January 8, 2015, she slipped
and fell on ice and rocks in the parking lot of the Rapid City Community Based Outpatient Clinic
injuring her lower back, left knee, and left foot. Appellant’s supervisor indicated that her tour of
duty began at 6:30 a.m. and that she was not in the performance of duty at the time her injury
occurred. She further indicated that the clinic building was leased property.
Dr. Lee Hanson, an internist, examined appellant at the employing establishment and
diagnosed low back strain and multiple contusions. He noted that she had fallen on ice on
January 8, 2015. Appellant underwent back x-rays on January 9, 2015 which did not
demonstrate fracture, scoliosis, spondylolisthesis, or disc space narrowing.
Dr. Jaceza Barker, a family practitioner, completed a form report on January 8, 2015
diagnosing lumbar strain as well as foot and hand contusion. Appellant also submitted a series
of form reports and notes from Dr. Daniel T. Lecy, a chiropractor, diagnosing cervical, thoracic,
and lumbar sprains and subluxations from January 9 through June 26, 2015. Dr. Lecy reviewed
x-rays taken on January 9, 2015 at the employing establishment and found rotation subluxation
at L4 on the left. He described appellant’s history of injury as slipping and falling on ice at work
on January 8, 2015. Dr. Lecy noted that she landed on her lower back in some landscaping,
while her knee landed on the curb, and her arm twisted as she tried to control the landing.
Appellant submitted reports from Dr. Jared C. Shippee, a podiatrist, dated January 28,
and May 6, 2015 diagnosing capsulitis and tendon trauma in the left foot. Dr. Shippee noted that
she slipped on ice on January 8, 2015 and fell. Appellant braced herself with her left arm and
she hit on her left knee and left first metatarsophalangeal joint (MPJ).
In a letter dated June 15, 2015, OWCP requested additional factual and medical evidence
from appellant and the employing establishment to determine if her injury occurred in the
performance of duty. It noted that her claim initially appeared to be for a minor injury that
resulted in minimal or no lost time from work and that payment of a limited amount of medical
expenses was administratively approved. OWCP reopened appellant’s claim for consideration
because she requested additional medical treatment.
On July 10, 2014 appellant noted that on January 8, 2015 at approximately 6:30 a.m. she
slipped and fell on ice in the parking lot of her work building. She injured her left foot, left knee,
hand, and lower back. Appellant noted that she was required to park in that parking lot and that
employees did not pay for parking.
By decision dated July 20, 2015, OWCP denied appellant’s traumatic injury claim
finding that she had not submitted sufficient medical opinion evidence to establish causal
relationship between her accepted employment incident and the claimed employment injury.
On October 27, 2015 appellant requested both a review of the written record from
OWCP’s Branch of Hearings and Review and reconsideration from OWCP. She had undergone
lumbar and left foot and ankle magnetic resonance imaging (MRI) scans on September 1 and

2

October 14, 2015, respectively. Appellant’s lumbar MRI scan demonstrated minimal early
degenerative changes of the lumbar spine. Her left foot MRI scan demonstrated degenerative
changes in the joints and partial tearing of the medical capsule of the first metatarsal joint.
Appellant submitted additional notes from Dr. Lecy dated June 16 through September 2,
2015, which diagnosed closed dislocations of the cervical, thoracic, and lumbar vertebra, as well
as sprain of the foot, knee, and leg. Dr. Lecy continued to rely on the January 9, 2015 x-rays.
In a letter dated October 29, 2015, OWCP requested that appellant clarify her appeal
request. On November 2, 2015 appellant again requested both a review of the written record and
reconsideration. She responded to OWCP on December 28, 2015 and requested reconsideration
of the July 20, 2015 decision.
In a January 15, 2016 decision, OWCP denied modification of appellant’s traumatic
injury claim finding that she failed to submit medical evidence sufficient to establish causal
relationship between her diagnosed condition and her accepted employment incident.
On November 1 and 4, and December 7 2016, Dr. Dale R. Anderson, an orthopedic
surgeon, examined appellant’s left knee due to crunching and grinding with flexion and
extension. On March 8, 2017 he reported her continuing bilateral knee pain.
Appellant provided a detailed description of her January 8, 2015 incident on
December 19, 2016. She noted that, as she opened the rear door of her car, she started sliding
backwards on snow and ice. Appellant tried to turn her body to the left to catch herself. Her
knee hit the packed ice and snow on the curb and her left palm hit the landscaping rocks as well
as the ice and snow. The tip of appellant’s foot became wedged under the ice and snow
hyperextending her foot. She asserted that this caused impingement capsulitis arthritis and a tear
in the tendon and required fusion of her left foot.
Appellant underwent an additional lumbar MRI scan on December 27, 2016 which
demonstrated minimal early degenerative changes of the lumbar spine. Dr. Edward L. Seljeskog,
a Board-certified neurosurgeon, examined her on December 28, 2016 due to low back pain. He
opined that appellant’s problem developed in January 2015 when she fell on some ice and
twisted her back. Dr. Seljeskog noted that she continued to experience back discomfort without
any real clear cut radiculopathy. He diagnosed lumbar degenerative disc disease with low back
pain.
Dr. Kent E. Renaud, a podiatrist, examined appellant on December 29, 2015 and noted
that she reported that her foot was jammed up into some snow and ice when she fell. He
diagnosed osteoarthritis of the left foot, sprained tarsometatarsal ligament, and chronic left first
MPJ pain and degeneration following an injury.
On January 11, 2016 appellant underwent left first MPJ fusion due to pain and arthritis.
In a note dated January 4, 2017, Dr. Shippee opined that it was plausible that her left foot
findings on MRI scan could be a result from her fall. He noted that the trauma to the first MPJ
could result in hyperextension and tearing of the joint capsule as well as the flexor tendons.

3

On March 17, 2017 Dr. Peter E. Vonderau, a physiatrist, noted that appellant fell in
January 2015 and sustained low back and left foot injuries. He diagnosed bilateral L5-S1
radiculopathies.
Appellant requested reconsideration on April 10, 2017. In an accompanying letter, she
again described her employment incident on January 8, 2015. Appellant reported that she
continued to receive medical treatment and requested wage-loss compensation for lost time from
work.
By decision dated April 14, 2017, OWCP denied appellant’s report for reconsideration
finding that it was untimely filed and failed to demonstrate clear evidence of error on the part of
OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA3 does not entitle a claimant to a review of an OWCP decision
as a matter of right.4 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.5 OWCP, through regulations has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is timely.
In order to be timely, a request for reconsideration must be received by OWCP within one year
of the date of OWCP’s merit decision for which review is sought. Timeliness is determined by
the document receipt date of the reconsideration request the “received date” in the Integrated
Federal Employee’s Compensation System (iFECS).6 The Board has found that the imposition
of this one-year time limitation does not constitute an abuse of the discretionary authority
granted OWCP under 5 U.S.C. § 8128(a).7 The one-year period begins on the date of the
original decision. However, a right to reconsideration within one year accompanies any
subsequent merit decision on the issues. This includes any hearing or review of the written
record decision, any denial of modification following reconsideration, any merit decision by the
Board, and any merit decision following action by the Board.8
In those cases where requests for reconsideration are untimely filed, the Board has held
that OWCP must nevertheless undertake a limited review of the case to determine whether the
claimant has demonstrated clear evidence of error.9 OWCP’s procedures state that OWCP will
3

5 U.S.C. § 8128(a).

4

Thankamma Mathews, 44 ECAB 765, 768 (1993).

5

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

6

20 C.F.R. § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b)
(February 2016). G.F., Docket No. 15-1053 (September 11, 2015).
7

Supra note 4 at 769; Jesus D. Sanchez, supra note 5 at 967.

8

Supra note 6 at Chapter 2.1602.4(a) (February 2016).

9

Supra note 4 at 770.

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reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth
in OWCP’s regulations, if the claimant’s request for reconsideration demonstrates clear evidence
of error on the part of OWCP.10
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.11 To demonstrate clear
evidence of error, a claimant must submit evidence relevant to the issue which was decided by
OWCP.12 The evidence must be positive, precise, and explicit and must be manifest on its face
that OWCP committed an error.13 Evidence which does not raise a substantial question
concerning the correctness of OWCP’s decision is insufficient to demonstrate clear evidence of
error.14 It is not enough merely to show that the evidence could be construed so as to produce a
contrary conclusion.15 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.16 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
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.17
The Board must make an independent determination of whether a claimant has
demonstrated clear evidence of error on the part of OWCP such that OWCP abused its discretion
in denying merit review in the face of such evidence.18
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
The most recent merit decision of OWCP is dated January 15, 2016. As appellant
requested reconsideration of this decision on April 10, 2017, more than one year after the

10

See A.J., Docket No.17-0302 (issued June 26, 2017); supra note 6 at Chapter 2.1602.5 (February 2016).

11

Id.

12

Supra note 5.

13

Leona N. Travis, 43 ECAB 227, 241 (1991).

14

Jesus D. Sanchez, supra note 5 at 968.

15

Supra note 13.

16

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

17

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

18

Nancy Marcano, 50 ECAB 110 (1998).

5

January 15, 2016 decision, the request for reconsideration is untimely filed.19 Consequently, she
must demonstrate clear evidence of error by OWCP in denying her traumatic injury claim.20
The Board further finds that appellant has failed to demonstrate clear evidence of error on
the part of OWCP in issuing its January 15, 2016 decision. Appellant did not submit the
necessary positive, precise, and explicit evidence manifesting on its face that OWCP committed
an error.
Following the January 15, 2016 OWCP merit decision, appellant submitted additional
medical evidence addressing the issue of causal relationship between her diagnosed conditions
and the January 8, 2015 employment incident. Appellant submitted medical reports from
Drs. Renaud and Vonderau diagnosing medical conditions and mentioning her January 8, 2016
fall. However, these reports do not address the central issue in appellant’s claim, the causal
relationship between her employment injury and her diagnosed conditions, as they do not clearly
describe any causal relationship between the injury and the diagnosed condition. To demonstrate
clear evidence of error, a claimant must submit evidence relevant to the issue which was decided
by OWCP.21 For these reasons, these reports fail to demonstrate clear evidence of error on the
part of OWCP.22
Appellant submitted two reports addressing causal relationship between her diagnosed
conditions and the employment incident. In his January 4, 2017 report, Dr. Shippee opined that
it was plausible that her left foot findings on MRI scan could be a result from her fall. He noted
that the trauma to the first MPJ could result in hyperextension and tearing of the joint capsule as
well as the flexor tendons. Dr. Shippee did not offer a clear opinion that appellant’s left foot
condition was causally related to the January 8, 2015 employment incident. An award of
compensation may not be based on surmise, conjecture, or speculation.23 Dr. Seljeskog on
December 28, 2016 diagnosed lumbar degenerative disc disease. While he opined that
appellant’s back condition developed in January 2015 when she fell on some ice and twisted her
back, this note is not sufficient to establish causal relationship between her back condition and
her employment incident as he did not explain how or why the diagnosed degenerative condition
arose. Furthermore, under the clear evidence of error standard, the evidence submitted must not
only be of sufficient probative value to create a conflict in medical opinion or demonstrate 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.24

19

20 C.F.R. § 10.607.

20

Supra note 9.

21

Supra note 4.

22

S.G., Docket No. 17-0175 (issued June 15, 2017).

23

D.W., Docket No. 16-0639 (issued August 5, 2016); D.U., Docket No. 10-0144 (issued July 27, 2010); L.D.,
Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB 559 (2006);
Robert Broome, 55 ECAB 339 (2004); Anna C. Leanza, 48 ECAB 115 (1996).
24

Supra note 17.

6

The Board therefore finds that neither Dr. Shippee’s January 4, 2017 report nor Dr. Seljeskog’s
December 28, 2016 report demonstrate clear evidence of error on the part of OWCP.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT April 14, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 22, 2017
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 13-1908
Issued: May 23, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 16, 2013 appellant filed a timely appeal from the March 1 and April 15, 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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that she
has reached maximum medical improvement (MMI) regarding her accepted condition of
bilateral carpal tunnel syndrome, warranting consideration of a schedule award pursuant to
5 U.S.C. § 8107; and (2) whether OWCP properly suspended appellant’s compensation benefits
effective April 7, 2013 due to her failure to submit a Form CA-1032 when requested.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 17, 1998 appellant, then a 52-year-old distribution clerk, filed an occupational
disease claim alleging that she sustained carpal tunnel syndrome in the performance of duty. By
decision dated October 9, 1998, OWCP accepted the claim for bilateral carpal tunnel syndrome
and carpal tunnel release. Appellant underwent surgery for her condition on January 20 and
June 16, 1999.
OWCP terminated appellant’s wage-loss compensation on November 15, 2000. It noted
that the medical evidence of record indicated that she was capable of performing the duties of her
position as a distribution clerk, as she had returned to limited-duty work.
In an attending physician’s report dated November 20, 2000, Dr. Hampton Jackson, a
Board-certified orthopedic surgeon, noted that he advised appellant to return to light-duty work
on November 17, 2000. He stated that it was undetermined at that time whether there were any
permanent effects as a result of her condition.
Appellant requested a schedule award on March 6, 2001.
By report dated April 13, 2001, Dr. Jackson stated that appellant had reached MMI on
that date. He recommended an impairment rating of 30 percent of her right and left upper
extremities. Dr. Jackson noted that there was additional impairment of the right and left arms
due to weakness, atrophy, pain or discomfort, which he rated bilaterally at 60 percent, stating
that it was grade 2 and referring to Table 16-10 and Table 16-15 of the American Medical
Association, Guides to Evaluation of Permanent Impairment, (A.M.A., Guides) fifth edition.
On June 15, 2001 OWCP informed appellant that the evidence of record was insufficient
to support her claim for a schedule award. It stated that she should submit a detailed narrative
medical report giving findings and an explanation as to how her permanent impairment resulted
from her employment injury, as well as a completed impairment evaluation sheet.
Described in an impairment evaluation sheet dated July 13, 2001, Dr. Jackson noted that
appellant had grade 2 sensory deficits or pain and using the A.M.A., Guides, fifth edition, he
calculated a 25.4 percent bilateral upper extremity impairment. He stated that she had normal
range of motion with both wrists. Dr. Jackson calculated appellant’s bilateral impairment due to
weakness or atrophy to be 30 percent. He asserted that her date of MMI was July 13, 2001.
Dr. Jackson reiterated these results in a narrative report of the same date.
On November 5, 2001 OWCP forwarded appellant’s case to a district medical adviser
(DMA) to determine whether she had reached MMI; whether she was eligible for a schedule
award; which part of her body was impaired; and the percentage of impairment. The DMA
responded on November 7, 2001, noting that an updated electromyogram (EMG) nerve
conduction velocity (NCV) from an independent examiner was required.
Dr. Jackson continued to submit progress reports regarding appellant’s condition.
Dr. Salim Y. Mansoor, a physician of physical medicine and rehabilitation, reported on
August 16, 2002 that he had performed an EMG/NCV test on appellant. He noted that there was
no history of any specific injury: she had work-related numbness and tingling in her hands since
2

1993, which became worse in 1995. Dr. Mansoor diagnosed appellant with status-post
decompression of the median nerve at the wrist bilaterally for carpal tunnel syndrome, with
normal distal motor and sensory latencies for the median nerve at the wrist bilaterally.
By report dated December 31, 2002, Dr. Jackson noted that appellant had weakness and
dysesthesias in her hands and that she had developed proximal radiation as well as distal
radiation. On examination, he noted a positive Tinel’s sign on the left and right. Dr. Jackson
diagnosed appellant with classical residual carpal tunnel syndrome, greater on the left than the
right and recommended that she see a hand surgeon for evaluation, followed by another
EMG/NCV test. On May 23, 2003 Dr. Jackson noted that appellant had no progressive atrophy
of the tendons, but that she was very weak both in pinch and grip. He noted progressing
tenosynovitis and Dupuytren’s fasciitis.
On October 17, 2003 a claims examiner documented a conversation she had with
appellant regarding her schedule award, after appellant had arrived at the office with
Dr. Jackson’s July 13, 2001 evaluation of permanent impairment. The claims examiner
explained to appellant that she could not receive a schedule award and regular compensation at
the same time, advising her that she could elect the Office of Personnel Management (OPM)
benefits, at which time OWCP could pay a schedule award. Appellant indicated that she did not
want to process her schedule award at that time and that she had heard that the employing
establishment would be reopening, so that she hoped to return to work. The claims examiner
noted that her schedule award would remain pending on the file until appellant decided to pursue
it.
By report dated March 3, 2006, Dr. Jackson stated that appellant had been back to work
for five weeks and that her symptoms had worsened. He stated that she had tingling and
dysesthesias in both hands. On examination, Dr. Jackson noted a positive Tinel’s sign and a
positive Phalen’s test, but no worsening atrophy in either thenar eminence.
In a claim for compensation dated March 21, 2006, appellant requested a schedule award.
By letter dated April 6, 2006, OWCP requested that Dr. Jackson provide an assessment of
appellant’s permanent impairment, including the date of MMI.
On June 30, 2006 Dr. Jackson provided an assessment of appellant’s permanent
impairment. He stated that she had reached her MMI for bilateral carpal tunnel syndrome, but
did not specify a date. Dr. Jackson calculated appellant’s permanent impairment under the
A.M.A., Guides at 38 percent bilaterally.
In a Form CA-110 dated December 12, 2006, a claims examiner noted that appellant’s
schedule award claim would be reviewed as soon as possible.
On August 30, 2007 Dr. Jackson stated that appellant’s symptoms had worsened.
Following appellant’s physical examination he noted a very active positive Tinel’s sign.
Dr. Jackson treated appellant by blocking the median nerve of the left wrist. In a report dated
September 27, 2007, Dr. Jackson noted improvement on the left carpal tunnel, but a positive
Tinel’s sign on the right carpal tunnel. He treated appellant by blocking the median nerve of the
right wrist.

3

By report dated April 17, 2009, Dr. Jackson noted a positive Tinel’s sign and weak pinch
and grip. He stated that appellant’s symptoms were stable. In a report dated November 18,
2009, Dr. Jackson noted increased symptoms and worsening of appellant’s Tinel’s signs.
On March 22, 2010 a claims examiner noted that appellant’s schedule award claim would
be reviewed as soon as possible.
In a report dated June 3, 2010, Dr. Jackson stated that appellant still had significant
symptoms and that she complained of left elbow pain. He noted that there was tendinitis and
epicondylitis related to her carpal tunnel syndrome.
Appellant filed a notice of recurrence of disability on November 18, 2010 in which she
noted continuing pain in both arms and low back. On December 31, 2010 she filed a revised
notice of recurrence in which she related that since November 18, 2010 she had been unable to
perform her usual work duties because she had been sent home due to the National Reassessment
Process.
In a supplemental rolls payment report dated January 4, 2011, OWCP noted that
appellant was sent home by the employing establishment due to inability to accommodate her
modified-duty assignment. It noted that it accepted her carpal tunnel syndrome recurrence
effective November 18, 2010. The case record reflects that appellant received compensation
benefits from November 20, 2010 until April 6, 2013.
On May 10, 2011 Dr. Jackson noted that appellant’s symptoms remained, noting a strong
Tinel’s sign on the left and an unchanged Phalen’s test. He stated that there was exacerbation of
her carpal tunnel syndrome on the left. By report dated June 23, 2011, Dr. Jackson noted that
appellant had a permanent nerve injury to her hands, making her incapable of gainful
employment, because repeated use of her hands would increase her pain and aggravate her
condition. He noted that there was no local Tinel’s sign in the area of her surgical incisions.
In a work capacity evaluation sheet dated July 27, 2011, Dr. Jackson stated that appellant
was permanently totally disabled from work. He checked a box indicating that MMI had not
been reached. On October 20, 2011 Dr. Jackson noted that he had met with appellant’s assigned
nurse and that her condition was permanent. He related that it was improbable that she could
return to full duties, but that he would send her to Dr. Ignacio for treatment by parenteral vitamin
therapy. By report dated December 6, 2011, Dr. Jackson noted that appellant’s condition
remained stable. He stated that she did not want to have another surgery and explained to her
that surgery could not reverse any nerve damage to her hands, but may prevent further
worsening. Dr. Jackson found appellant fit for light duty, but noted that the employing
establishment would not accommodate her.
On May 14, 2012 Dr. George H. Drakes, a Board-certified physician of physical
medicine and rehabilitation, noted that appellant had carpal tunnel syndrome and scheduled an
EMG/NCV of the upper extremities.
In a diagnostic report dated July 12, 2012, Dr. Ai Huong Phu stated his impression that
the EMG/NCV testing revealed no evidence of carpal tunnel syndrome or peripheral neuropathy.
The testing did reveal evidence of mild chronic C5 right radiculopathy.

4

By Form CA-1032 dated February 22, 2013, OWCP requested that appellant provide
information regarding any employment for which she had received a salary in the last 15 months,
any volunteer work she had performed in the same period, information about dependents, other
federal benefits, payments, third-party settlements or fraud offenses.
OWCP denied appellant’s claim for a schedule award by decision dated March 1, 2013.
It found that she had not submitted evidence supporting a finding that her condition had reached
MMI.
By decision dated April 15, 2013, OWCP suspended appellant’s compensation. It noted
that she had not replied to a CA-1032 form dated February 22, 2013.2
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.6
It is a well-settled rule that MMI arises at the point at which the injury has stabilized and
will not improve further. This determination is factual in nature and depends primarily on the
medical evidence.7 The determination of MMI is not to be based on surmise or prediction of
what may happen in the future.8 A schedule award is appropriate where the physical condition
of an injured member has stabilized, despite the possibility of an eventual change in the degree
of functional impairment in the member.9

2

Appellant elected to receive benefits from OPM effective April 7, 2013 in lieu of compensation benefits under
FECA.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id.

6

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
7

Peter C. Belkind, 56 ECAB 580 (2005).

8

See Delmer Jones, 28 ECAB 39, 41 (1976).

9

See Santo Panzica, 15 ECAB 458, 460-61 (1964).

5

ANALYSIS -- ISSUE 1
On March 1, 2013 OWCP denied appellant’s claim for a schedule award on the basis that
she had not established that her condition had reached a fixed and permanent state. The Board
affirms that the evidence of record does not establish MMI.
Appellant first requested a schedule award on March 6, 2001. On October 17, 2003 she
indicated that she did not want to process her schedule award at that time, after being informed
that she could not receive both regular compensation and a schedule award at the same time.
However, in the interim period, appellant submitted reports from Dr. Jackson containing dates of
MMI. In a report dated April 13, 2001, Dr. Jackson stated that she had reached MMI on that
date. In an impairment evaluation sheet dated July 13, 2001, he asserted that this was the date of
MMI. Appellant requested a schedule award again on March 21, 2006. By letter dated June 30,
2006, Dr. Jackson provided an assessment of her permanent impairment and stated that she had
reached MMI. However, in a report dated July 27, 2011, he checked a box indicating that
appellant had not reached MMI. Thus while Dr. Jackson in his earlier reports dating from 2001
to 2006 indicated that MMI had been reached, in a work capacity evaluation sheet dated July 27,
2011 he stated that she was permanently totally disabled from work, but checked a box
indicating that MMI had not been reached. The most recent medical evidence received from him
therefore did not support a finding of MMI. The other medical evidence of record, while
substantiating a waxing and waning of appellant’s condition, does not address the issue of MMI.
The Board concludes that OWCP properly determined that the medical evidence of
record does not establish MMI.
LEGAL PRECEDENT -- ISSUE 2
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.10
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.11 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested
report.12 At that time, OWCP will reinstate compensation retroactive to the date of suspension if
the employee remains entitled to compensation.13

10

5 U.S.C. § 8106(b).

11

20 C.F.R. § 10.528.

12

See N.G., Docket No. 12-981 (issued December 4, 2012); Lucille A. Pettaway, 55 ECAB 228, 232 (2004);
Demetrius Beverly, 53 ECAB 305, 307 (2002).
13

Id.

6

ANALYSIS -- ISSUE 2
OWCP requested that appellant submit a CA-1032 form with respect to any employment
activity performed for the prior 15 months. It requested the information by letter dated
February 22, 2013 and advised her to submit the form within 30 days or her compensation could
be suspended. The record established that appellant did not respond prior to the April 15, 2013
decision.
Based on the evidence of record, the Board finds that OWCP properly suspended
appellant’s compensation effective April 15, 2013 pursuant to 20 C.F.R. § 10.528.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she reached MMI regarding her
accepted condition of bilateral carpal tunnel syndrome, warranting consideration of a schedule
award pursuant to 5 U.S.C. § 8107. The Board further finds that OWCP properly suspended her
compensation for failure to submit a CA-1032 form when requested.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 15 and March 1, 2013 are affirmed.
Issued: May 23, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
ST. BERNARD BRANCH, Cincinnati, OH,
Employer
__________________________________________

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 08-2317
Issued: July 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 22, 2008 appellant filed a timely appeal from an October 3, 2007 decision of
the Office of Workers’ Compensation Programs that found an overpayment in compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant was at fault in the creation of the overpayment and
therefore not entitled to waiver.1
1

Appellant is not challenging the amount of the overpayment in compensation. The Board, however, notes that
the prohibition against an employee receiving both benefits under the Federal Employees’ Compensation Act
(FECA) and from the Department of Veterans Affairs (DVA) for the same injury includes any increase in a serviceconnected disability award where the increase is brought about by an injury sustained while in civilian employment.
Kelvin L. Davis, 56 ECAB 404 (2005). While in the Army in 1973, appellant sustained left arm injuries and burns
to his chest and was rated for these conditions by the DVA in 1974 and for service-related post-traumatic stress
disorder (PTSD) effective March 24, 1995. He began work at the employing establishment in 1983 and, beginning
in 1995, due to changed procedures, he began having difficulty performing his job duties due to left upper extremity
limitations.

FACTUAL HISTORY
On August 29, 1997 appellant, then a 49-year-old letter carrier, filed an occupational
disease claim alleging that factors of employment caused a PTSD. He stopped work that day and
did not return. On March 25, 1998 the Office accepted that appellant sustained employmentrelated aggravation of PTSD. It informed him that it was aware he may have been rated by the
DVA for the same disability, noted that information was requested from the DVA, and that, if his
DVA rating was raised based on the accepted condition, he would be asked to make an election
of benefits between the two agencies. Appellant was placed on the periodic rolls effective
September 7, 1997.
On March 25, 2008 the Office requested that the DVA provide updated information
regarding DVA benefits for a service-related stress condition. A DVA rating decision dated
April 17, 1997 indicated that, effective March 24, 1995, appellant received a 10 percent rating
for PTSD that was raised to 30 percent effective June 28, 1996.2 A February 11, 1998 DVA
rating decision found that the VA rating for PTSD was raised from 30 to 50 percent, effective
September 5, 1997, for a combined rating of 70 percent.3
Appellant submitted Office EN1032 forms on April 14, 2001, May 20, 2002, April 21,
2003 and March 1, 2005. In each of these, he advised that he was receiving DVA benefits for
multiple conditions including PTSD. On May 3, 2002 the DVA informed the Office that on
February 13, 1987, March 31, 1995, June 28, 1996, September 5, 1997, August 26, 1998 and
January 26, 2001 he had filed claims for increases in his DVA benefits.
By letter dated May 12, 2006, the Office requested that the DVA provide information
regarding appellant’s DVA benefit for PTSD. In a June 5, 2006 response, the DVA stated that,
by decision dated January 22, 1999, appellant’s rating for PTSD was increased from 50 percent
to 100 percent. In a July 17, 2006 letter, the Office noted appellant’s DVA claim history and
advised him that he must make an election between the entire amount of compensation received
from the Office since September 21, 1997 and the amount of the increase he had received from
the DVA since September 21, 1997, over the original percentage. It advised appellant that an
overpayment existed that continued to grow and that it was imperative to make an election of
benefits within 30 days.
On August 1, 2006 appellant responded that he did not have sufficient information to
make an informed election, and asked a number of questions that were answered by the Office in
a November 17, 2006 letter. The Office advised him that the amount of the overpayment would
be calculated after it had received his complete compensation history. By letter dated
November 29, 2006, it provided appellant an election of benefits form and advised that he had
2

Appellant received additional DVA ratings of 20 percent for residuals of a cervical spine fracture, 20 percent for
a residual chest burn scar, 10 percent for a residual tracheotomy scar, and 10 percent for the amputation of the tip of
his right little finger, for a combined rating of 60 percent.
3

When appellant filed his FECA claim on August 29, 1997, he was receiving benefits from the DVA for 30
percent due to service-related PTSD. On September 5, 1997 he filed a claim with the DVA for an increase in
benefits, and his rating was increased to 50 percent effective that day and to 100 percent effective
September 21, 1997. Appellant’s FECA claim was accepted on August 25, 1998, and he received FECA benefits
beginning on September 7, 1997. Thus, his FECA benefits and increase in DVA benefits occurred almost
simultaneously.

2

received a total of $283,736.45 in wage-loss compensation from the Office for the period
September 5, 1997 through December 23, 2006 and $139,454.00 from DVA for the period
September 5, 1997 through December 31, 2006, which constituted a prohibited dual benefit. The
Office advised him to make an election within 30 days. Appellant elected to receive DVA
benefits, effective December 24, 2006.
On January 17, 2007 the Office issued a preliminary finding that an overpayment in
compensation in the amount of $278,776.45 had been created. It explained that the overpayment
occurred because appellant received a prohibited dual benefit, receiving compensation under the
FECA4 and from DVA for his PTSD condition. The Office found appellant at fault in the
creation of the overpayment. On February 14, 2007 appellant requested a prerecoupment
hearing, and submitted an overpayment recovering questionnaire in which he provided
information regarding his income and expenses, and that he had $15,000.00 in stocks and bonds.
At the June 12, 2007 hearing, appellant’s union representative stated that the amount of
the overpayment was not in dispute but argued that appellant was not at fault and the
overpayment should be waived.
In an October 3, 2007 decision, an Office hearing representative affirmed the finding that
an overpayment in compensation had been created and that appellant was at fault. The hearing
representative compromised the amount of the overpayment, creating a new debt of $108,512.43
and required repayment in the amount of $350.00 a month.
LEGAL PRECEDENT
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office 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.”5
Section 10.433(a) of the Office’s regulations provides that the Office:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in 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
4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8129; see Joan Ross, 57 ECAB 694 (2006).

3

(3) Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).”6
The fact that the Office was negligent in making payments to a claimant does not relieve
the claimant of fault in accepting the incorrect payments.7 A recipient who has accepted a
payment which he or she knew or should have known to be incorrect will be found at fault with
respect to creating the overpayment.8 Each recipient of compensation benefits is responsible for
taking all reasonable measures to ensure that payments he or she received from the Office are
proper. The recipient must show good faith and exercise a high degree of care in reporting
events which may affect entitlement to or the amount of the benefits.9 In applying the tests to
determine fault, the Office applies a “reasonable person” test.10 In determining whether a
claimant is at fault in creating an overpayment, the Office will consider the circumstances
surrounding the overpayment. The degree of care expected by a recipient of compensation may
vary with the complexity of the circumstances and the individual’s capacity to realize that he or
she is being overpaid.11
ANALYSIS
The Board finds that the Office properly determined that appellant was at fault in the
creation of the overpayment in compensation because he accepted payments he knew or should
have known to be incorrect. In applying the third standard in determining that appellant was at
fault, the issue is whether, at the time of acceptance of the compensation payment, appellant
knew or should have known that it was incorrect.12 Appellant was put on notice of the potential
for dual benefits by the March 25, 1998 letter from the Office. This letter noted that, while the
condition of aggravation of PTSD with disability beginning on or about August 29, 1997, was
accepted as related to his civilian employment, he had also been rated for the same disability by
the DVA for a service-related condition. It noted that if his rating increased he would have to
make an election of benefits. In a DVA rating decision dated February 11, 1998, for PTSD from
30 to 50 percent, effective September 5, 1997. Thus, when the DVA raised appellant’s disability
rating from 30 to 50 percent, the increase in DVA benefits was due to the same employment
injury which formed the basis for entitlement under the Act.13 The Board finds that, on
March 25, 1998, when appellant’s claim was accepted by the Office for aggravation of PTSD, he

6

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

7

Ricky Greenwood, 57 ECAB 462 (2006).

8

Tammy Craven, 57 ECAB 689 (2006).

9

J.S., 58 ECAB ____ (Docket No. 06-2113, issued May 10, 2007).

10

L.D., 59 ECAB ____ (Docket No. 08-678, issued August 7, 2008).

11

20 C.F.R. § 10.433(b); see Neill D. Dewald, 57 ECAB 451 (2006).

12

See D.R., 59 ECAB ____ (Docket No. 07-823, issued November 1, 2007).

13

See Kelvin L. Davis, supra note 1. The Board also notes that appellant continued to seek increases in his DVA
rating, filing claims on August 26, 1998 and January 26, 2001. Appellant also submitted a number of EN1032 forms
acknowledging that he received DVA benefits for PTSD.

4

knew or reasonably should have known that he was in the receipt of prohibited dual benefits.14
Appellant accepted payments he knew or should have known to be incorrect. He was therefore
at fault in the creation of the overpayment in compensation that ensued.15 Under section
10.433(a) of the Office’s regulations, and section 8129 of the Act, as appellant was at fault in the
creation of the overpayment, he is not entitled to waiver. With respect to recovery of the
overpayment, the Board’s jurisdiction is limited to reviewing those cases where the Office seeks
recovery from continuing compensation payments under the Act, and appellant elected DVA
benefits in December 2006.16
CONCLUSION
The Board finds that the Office properly found appellant at fault in the creation of the
overpayment in compensation and was thus not entitled to waiver.
ORDER
IT IS HEREBY ORDERED THAT the October 3, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 7, 2009
Washington, DC

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

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

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

14

Tammy Craven, supra note 8.

15

See Neill D. Dewald, supra note 11.

16

Ricky Greenwood, supra note 7.

5


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

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-181
Issued: June 13, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 23, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 24, 2007 which denied appellant’s claim for
a recurrence of disability commencing February 26, 2005. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability commencing February 26, 2005 causally related to her accepted
employment condition.
FACTUAL HISTORY
On November 10, 2004 appellant, then a 47-year-old distribution clerk, filed an
occupational disease claim alleging that she developed bilateral plantar fasciitis in the
performance of duty. She noticed the condition in June 2004 and stopped work on
November 10, 2004.

In support of her claim, appellant submitted a report from Dr. Joseph M. DeMayo, a
Board-certified family practitioner, dated November 6, 2004, who treated appellant for pain in
the heel and plantar area of both feet and diagnosed plantar fasciitis. Dr. DeMayo opined that
appellant’s symptoms were work related as her position required her to stand and walk for
prolonged periods of time which increased her symptoms. In a return to work certificate dated
December 15, 2004, he noted that appellant could return to work on December 18, 2004 subject
to restrictions of limited standing and ambulation. Appellant submitted a statement dated
January 12, 2005, and noted that her job duties required her to stand and walk for long periods of
time feeding labels into a delivery bar coder machine and controlling mail intake.
The record indicates that appellant returned to a light-duty position on December 24,
2004 and stopped completely on February 26, 2005. On March 3, 2005 the Office accepted
appellant’s claim for bilateral plantar fasciitis and heel spurs. It advised appellant that the
medical evidence did not show that she was totally disabled after December 17, 2004. The
Office informed appellant of the type of medical evidence needed to support disability.
On March 20, 2005 appellant filed a CA-2a, notice of recurrence of disability. She noted
that on February 26, 2005 she had pain in her feet and heels that was due to her accepted work
injury. Appellant indicated that at the time of her recurrence she was working a limited-duty
position and stopped work on February 26, 2005.
By letter dated May 13, 2005, the Office advised appellant of the type of evidence needed
to establish her claim for a recurrence of disability on February 26, 2005 and particularly
requested that she submit a physician’s reasoned opinion addressing the relationship of her
claimed recurrent disability and the original work injury.
On May 17, 2005 the Office referred appellant for a second opinion to Dr. Iqbal Ahmad,
a Board-certified orthopedist. The Office provided Dr. Ahmad with appellant’s medical records,
a statement of accepted facts and a detailed description of appellant’s duties. In a June 7, 2005
report, Dr. Ahmad noted reviewing the records provided and performed a physical examination
of appellant. He noted that examination revealed pain over both feet, increased pain over the
plantar aspect of both feet, no evidence of atrophy or inflammation, no edema and satisfactory
circulation and reflexes. Dr. Ahmad stated that appellant had bilateral flat feet, she had no
difficulty in squatting and standing on her toes and heels and there was no discoloration or
changes in temperature of her feet. He opined that appellant’s accepted conditions of sprain of
both feet, plantar fasciitis and heel spurs resolved and appellant did not currently have an acute
orthopedic condition. Dr. Ahmad noted that appellant reached maximum medical improvement
and could return to her regular job, full time without restrictions. He indicated that there was no
need for further treatment or therapy.
In a statement dated May 23, 2005, appellant indicated that she went back to work on
December 26, 2004, but she still experienced pain in both feet. She stated that on February 26,
2005 her condition worsened and she could not continue to work.
In a decision dated June 14, 2005, the Office denied appellant’s claim for a recurrence of
disability commencing February 26, 2005.
2

By letter dated June 24, 2005, appellant requested an oral hearing which was held on
December 20, 2005. She submitted a report from Dr. DeMayo dated December 20, 2005.
Dr. DeMayo noted that appellant had been under his care for severe plantar fasciitis and heel
spurs and experienced severe pain while standing and walking at work. He advised that
appellant returned to work on December 26, 2004 but experienced worsening pain when standing
and walking and stopped on February 26, 2005 and remained permanently disabled.
The employing establishment submitted a fitness-for-duty examination performed by
Dr. Francis W. Meo, a Board-certified orthopedist, dated August 23, 2005. Dr. Meo noted a
history of appellant’s condition and diagnosed plantar fasciitis and heel spurs. He noted that
appellant was morbidly obese. Dr. Meo indicated that during the examination on August 23,
2005, appellant was unable to accomplish anything with regard to the physical examination;
however, in a June 2005 second opinion examination, appellant was able to squat and stand on
her toes. He concluded that appellant was not fully forthcoming and her symptoms were
exaggerated. Dr. Meo indicated that appellant did not sustain a recurrence of disability on
February 26, 2005 causally related to her work injury; rather, he attributed her current condition
to morbid obesity and opined that appellant could return to work full time without restrictions.
In a decision dated March 1, 2006, the hearing representative affirmed the Office
decision dated June 14, 2005.1
By letter dated February 21, 2007, appellant requested reconsideration. In a brief dated
February 1, 2007, she asserted that Dr. DeMayo’s report of December 20, 2005 supported that
she sustained a recurrence of disability on February 26, 2005 causally related to her work injury
and created a conflict in opinion with the report of the Office referral physician. Appellant
submitted a September 6, 2005 statement from a union representative who noted that, on
August 23, 2005, he accompanied her to a fitness-for-duty examination and offered his opinion
on her condition.
Appellant also provided medical evidence. In a June 28, 2005 prescription note,
Dr. DeMayo reported treating appellant for painful feet and he diagnosed plantar fasciitis and
heel spurs. He noted that standing, walking and bearing weight caused pain and advised that
appellant would be off work from August 10 to September 30, 2005. On September 1, 2005
Dr. DeMayo noted that appellant’s severe plantar fasciitis and heel spurs prevented her from
working. In a report dated December 20, 2006, he noted that appellant was diagnosed with
bilateral plantar fasciitis and heel spurs in November 2004 and returned to a restricted-duty
position in December 2004. Dr. DeMayo noted that the medical documentation restricted
appellant to very limited standing and ambulation with breaks to sit down. Upon returning to
work, appellant reported that her job required her to case and carry mail of different shapes and
sizes to other areas in the mail facility and entailed walking and standing. Dr. DeMayo noted
that after a few months appellant’s condition worsened and she stopped work. He asserted that
appellant’s position did not conform to her medical documentation and her occupational duties
1

On February 8, 2007 appellant appealed to the Board. In a letter dated February 21, 2007, she asked to
withdraw her appeal. In an order dated June 8, 2007, the Board granted appellant’s request to dismiss the appeal.
Docket No. 07-862 (issued June 8, 2007).

3

caused her condition to worsen. Appellant submitted a magnetic resonance imaging (MRI) scan
of the left foot dated August 12, 2005, which revealed plantar fasciitis and minimal degenerative
changes. An MRI scan of the right foot dated August 16, 2005, revealed mild degenerative
changes, evidence of mild Achilles tendinitis and mild plantar fasciitis.
In a decision dated May 24, 2007, the Office denied modification of the June 14, 2005
decision which determined that appellant failed to establish that her recurrence of disability on or
after February 26, 2005 was causally related to the accepted conditions.
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.2
Causal relationship is a medical issue,3 and the medical evidence required to establish a
causal relationship is rationalized medical evidence. Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.4
ANALYSIS
The Office accepted appellant’s claim for bilateral plantar fasciitis and heel spurs.
Appellant returned to a light-duty position on December 24, 2004, as a distribution clerk. She
stopped work on February 26, 2005 and filed a claim for a recurrence of disability alleging that
she experienced pain in both feet causally related to her accepted work injury. In the instant
case, appellant has not submitted sufficient evidence to support a change in the nature and extent
of the injury-related condition or a change in the nature and extent of the light-duty requirements.
Appellant submitted notes dated June 28 and September 1, 2005 from Dr. DeMayo who
indicated that appellant was treated for painful feet and he diagnosed plantar fasciitis and heel
spurs. He noted that standing, walking and bearing weight caused appellant pain and advised
that she would be totally disabled from August 10 to September 30, 2005. However, none of
2

Terry R. Hedman, 38 ECAB 222 (1986). See 20 C.F.R. § 10.5(x) for the definition of a recurrence of disability.

3

Mary J. Briggs, 37 ECAB 578 (1986).

4

Gary L. Fowler, 45 ECAB 365 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

4

Dr. DeMayo’s reports, most contemporaneous with the recurrence of disability, noted a specific
date of a recurrence of disability nor did he note a particular change in the nature of appellant’s
physical condition, arising from the employment injury, which prevented appellant from
performing her light-duty position.5 The Board has found that vague and unrationalized medical
opinions on causal relationship have little probative value.6 In a report dated December 20,
2005, Dr. DeMayo noted that appellant returned to work on December 26, 2004 but experienced
worsening pain when standing and walking and stopped on February 26, 2005 and remained
permanently disabled. He failed to provide a rationale medical opinion explaining why
appellant’s recurrent condition was due to the accepted work injury when appellant has other
nonwork-related conditions affecting her feet including morbid obesity.
In a December 20, 2006 report, Dr. DeMayo noted appellant’s conditions and her return
to a restricted-duty position in December 2004. Appellant advised Dr. DeMayo that her position
required her to case and carry mail to other areas in the mail facility which entailed walking and
standing. Dr. DeMayo noted that after a few months appellant’s condition worsened and she
stopped work. He asserted that appellant’s position did not conform to her medical
documentation and appellant’s occupational duties caused her condition to worsen. However,
Dr. DeMayo’s report is conclusory and insufficient to establish appellant’s claim as he did not
provide a rationalized opinion explaining the reasons appellant’s recurrent condition and
disability was due to the accepted work injury.7 Additionally, he failed to note a specific date of
a recurrence of disability nor did he note a particular change in the nature of appellant’s physical
condition, arising from the employment injury, which prevented appellant from performing her
light-duty position.
To further develop the claim, the Office referred appellant to Dr. Ahmad for a second
opinion. In a June 7, 2005 report, Dr. Ahmad diagnosed sprain of both feet, resolved, plantar
fasciitis and heel spurs, resolved. He noted that examination revealed that appellant had bilateral
flat feet, there was increased pain over the plantar aspect of both feet, no evidence of atrophy,
inflammation or edema, satisfactory circulation and reflexes, she experienced no difficulty in
squatting and standing on her toes and heels and there was no discoloration or changes in
temperature of her feet. Dr. Ahmad opined that appellant’s accepted conditions of sprain of both
feet, plantar fasciitis and heel spurs resolved and that appellant reached maximum medical
improvement and could return to her regular job, full time without restrictions.
The employing establishment referred appellant for a fitness-for-duty examination which
was performed by Dr. Meo on August 23, 2005. Dr. Meo noted an essentially unremarkable
physical examination and advised that appellant was morbidly obese. He indicated that appellant
was unable to accomplish anything with regard to the physical examination and opined that
appellant was not fully forthcoming and her symptoms were exaggerated. Dr. Meo opined that

5

See Katherine A. Williamson, 33 ECAB 1696 (1982); Arthur N. Meyers, 23 ECAB 111 (1971) (where the Board
has consistently held that contemporaneous evidence is entitled to greater probative value than later evidence).
6

See Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

See id.

5

appellant did not sustain a recurrence of disability on February 26, 2005 causally related to her
work injury, rather, he attributed appellant’s current condition to morbid obesity.
Finally, the Board finds that there is no credible evidence which substantiates that
appellant experienced a change in the nature and extent of the light-duty requirements or was
required to perform duties which exceeded her medical restrictions.
Dr. DeMayo’s
December 20, 2006 report noted that when appellant returned to a limited-duty position in
December 2004 the employer did not follow the light-duty restrictions as set forth in the medical
documentation. However, he appears merely to be repeating appellant’s assertions regarding her
work duties. The record does not establish that appellant’s work exceeded her light-duty
restrictions. The record contains no evidence substantiating that there was a change in the nature
and extent of the light-duty requirements or that she was required to perform duties which
exceeded her medical restrictions.
Appellant has not met her burden of proof in establishing that there was a change in the
nature or extent of the injury-related condition or a change in the nature and extent of the lightduty requirements which would prohibit her from performing the light-duty position she assumed
after she returned to work.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a recurrence of disability on February 26, 2005 causally related to her accepted
bilateral plantar fasciitis and heel spurs in both feet.
ORDER
IT IS HEREBY ORDERED THAT the May 24, 2007 decision of the Office of
Worker’ Compensation Programs is affirmed.
Issued: June 13, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
6