United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.Y., Appellant
and
U.S. POSTAL SERVICE, ERIE GENERAL
MAIL FACILITY, Erie, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2308
Issued: June 8, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 19, 2008 appellant filed a timely appeal from a May 20, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration. There is no merit decision within one year of the filing of this appeal. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
The Office accepted that on or before May 1, 2004 appellant, then a 49-year-old city
carrier, sustained right lateral epicondylitis in the performance of duty. On September 28, 2006
she filed a claim to buy back 945.4 hours of leave used from March 21, 2005 to April 15, 2006
for work absences related to the accepted condition. In a February 22, 2007 letter, the Office
advised appellant of the medical evidence needed to establish her claim for leave buyback.

Dr. Robert A. Lupo, an attending Board-certified orthopedic surgeon, diagnosed a
common extensor tendon tear at the right elbow with a possible tear of the radial collateral
ligament. He held appellant off work beginning November 1, 2005.1 Dr. John M. Hood, an
attending Board-certified orthopedic surgeon, held appellant off work from November 16, 2005
to April 3, 2006 due to right lateral epicondylitis. In a March 8, 2006 report, Dr. Hood stated
that repetitive grasping and manipulating with the right arm created significant extensor tendon
force, leading to tendon damage at the right elbow over a period of years.2
By decision dated March 26, 2007, the Office denied appellant’s claim for leave buyback
for the period March 21, 2005 to April 15, 2006. It found that she submitted insufficient medical
evidence to establish total disability for the claimed period.
In a letter dated February 17, 2008, appellant requested reconsideration. She asserted that
Dr. Hood held her off work from October 31, 2005 to June 12, 2006, encompassing a portion of
the claimed period.
In a May 29, 2007 report, Dr. Hood explained that six months of rest allowed appellant’s
tendinosis to improve such that she was subsequently able to return to full duty for a year. In an
October 30, 2007 report, he explained that he held appellant off work from October 31, 2005 to
June 12, 2006 due to right lateral epicondylitis. The time off allowed inflammation and scar
tissue to mature so that appellant could sustain daily work activities. Immobilization and
physical therapy were necessary components of the treatment plan.
By decision dated May 20, 2008, the Office denied reconsideration on the grounds that
appellant did not submit new, relevant evidence or substantive legal questions. It found that
appellant’s February 17, 2008 letter and accompanying evidence were irrelevant to the claimed
period March 21, 2005 to April 15, 2006 as they discussed the period October 31, 2005 to
June 12, 2006.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,3
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.4 Section 10.608(b)
provides that, when an application for review of the merits of a claim does not meet at least one
1

Appellant submitted physical therapy notes for December 27, 2005 and the following dates in 2006: January 3,
9, 13, 18, 20, 23, 26, 27 and 30; February 2, 13, 16, 20, 22 and 27; March 1, 2, 6, 8, 13, 15, 21 and 23; May 9
and 10.
2

Appellant also consulted Dr. Anthony M. Ruffa, an osteopathic physician Board-certified in orthopedic surgery.
In a March 9, 2006 report, Dr. Ruffa explained that repetitive upper extremity motion while sorting mail irritated the
lateral epicondyle, leading to right lateral epicondylitis.
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

2

of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.5
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.6 The claimant need
only submit relevant, pertinent evidence not previously considered by the Office.7 When
reviewing an Office decision denying a merit review, the function of the Board is to determine
whether the Office properly applied the standards set forth at section 10.606(b)(2) to the
claimant’s application for reconsideration and any evidence submitted in support thereof.8
ANALYSIS
Appellant claimed leave buyback for the period March 21, 2005 to April 21, 2006. The
Office denied the claim on March 26, 2007 due to insufficient medical evidence. Appellant
requested reconsideration on February 17, 2008. She submitted new reports from Dr. Hood,
including an October 30, 2007 report explaining why he held appellant off work from
October 31, 2005 to June 12, 2006 due to the accepted condition.
The Office denied reconsideration on May 20, 2006, finding Dr. Hood’s new reports
irrelevant as they did not address the claimed period. However, Dr. Hood’s October 30, 2007
report did address a portion of the claimed period, October 31, 2005 to April 15, 2006. This
interval was part of the March 21, 2005 to April 21, 2006 period denied by the March 26, 2007
decision. Because this evidence is new and goes directly to the basis of the Office’s March 26,
2007 merit denial, the Board finds that appellant’s February 17, 2008 request for reconsideration
satisfies the third standard for obtaining a merit review of her claim.9 The Board will set aside
the Office’s decision denying reconsideration and remand the case for an appropriate final
decision on the merits of appellant’s claim for leave buyback for the period March 21, 2005 to
April 21, 2006.
CONCLUSION
The Board finds that the Office improperly denied appellant’s request for reconsideration.

5

20 C.F.R. § 10.608(b). See also T.E., 59 ECAB ___ (Docket No. 07-2227, issued March 19, 2008).

6

Helen E. Tschantz, 39 ECAB 1382 (1988).

7

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

8

Annette Louise, 54 ECAB 783 (2003).

9

V.B., 58 ECAB ___ (Docket No. 07-1320, issued September 26, 2007).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 20, 2008 is set aside, and the case remanded to the Office for
further action consistent with this decision.
Issued: June 8, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Capitol Heights, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1154
Issued: July 29, 2013

Case Submitted on the Record

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

JURISDICTION
On April 12, 2013 appellant filed a timely appeal from a January 3, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. The most recent merit decision of record is dated October 26, 2011. There is no
merit decision within 180 days of April 12, 2013, the date appellant filed her appeal with the
Board. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
On appeal, appellant contends that the medical evidence of record establishes that she
sustained a low back and left hip condition on or before December 30, 1987, with continuous
exposure to injurious work factors through mid-July 2007.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated July 1, 2010,2 the
Board set aside OWCP’s July 13, 2009 nonmerit decision denying reconsideration. The Board
remanded the case for clarification of the legal and factual basis of the determination. The facts
of the case as set forth in the Board’s prior decision are incorporated by reference.
During the pendency of the first appeal, appellant submitted chart notes from 1989 to
2007 diagnosing left hip arthralgia. She also provided position descriptions and work
restrictions. Dr. William L. Burner, an attending Board-certified orthopedic surgeon, noted on
May 8, 2007 that appellant’s left hip pain with radiation into the left foot remained unchanged
over the prior 20 years.
By decision dated December 3, 2010, OWCP denied modification of its prior decision on
the grounds that appellant did not submit sufficient medical evidence to establish that her work
caused the claimed lumbar or left hip conditions.
In a May 9, 2011 letter, appellant requested reconsideration. She asserted that she had
multiple episodes of severe left-sided sciatica since December 30, 1987. Appellant attributed
these episodes to a December 30, 1987 occupational injury.
By decision dated October 26, 2011, OWCP denied modification on the grounds of
insufficient evidence. It found that the medical evidence did not establish that her duties as a
mail handler caused the claimed low back or left hip condition.
In an October 25, 2012 letter, appellant requested reconsideration. She submitted
documents from File No. xxxxxx785, noting that OWCP accepted a left hip strain that resolved
by July 13, 1988. In that case, OWCP terminated appellant’s benefits in an October 17, 1989
decision as the medical evidence demonstrated that the accepted left hip strain resolved without
residuals. Appellant asserted that the documents established her entitlement to continuing
medical treatment for left-sided sciatica. She asserted that she was disabled for work
commencing July 25, 2007 due to her low back and left hip symptoms.
By decision dated January 3, 2013, OWCP denied reconsideration on the grounds that the
evidence submitted in support of appellant’s October 25, 2012 request was irrelevant to the
critical issue of causal relationship. It further found that she did not advance a new legal
argument or provide relevant new evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by it; or (3) constitute relevant and pertinent

2

Docket No. 09-1991 (issued July 1, 2010).

3

5 U.S.C. § 8128(a).

2

new evidence not previously considered by OWCP.4 Section 10.608(b) provides that when an
application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.5
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.6 Appellant need only
submit relevant, pertinent evidence not previously considered by OWCP.7 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.8
ANALYSIS
OWCP issued a December 3, 2010 decision finding that appellant did not establish that
she sustained a claimed lumbar and left hip condition causally related to her work duties.
Appellant requested reconsideration on May 9, 2011 asserting that she remained disabled for
work due to left-sided sciatica. OWCP denied modification by decision issued October 26,
2011, finding that the medical evidence was insufficient to establish a causal relationship
between the claimed low back and left hip condition and factors of her federal employment.
Appellant again requested reconsideration on October 26, 2012, asserting that she
remained entitled to medical treatment as OWCP previously accepted a left hip strain under
another claim. OWCP denied reconsideration by January 3, 2013 decision, finding that the
documents from the other claim were irrelevant to the medical issue of causal relationship.
The Board does not have jurisdiction over the October 26, 2011 decision. The issue is
whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(2), requiring OWCP to
reopen the case for review of the merits of the claim. In her October 26, 2012 application for
reconsideration, appellant did not show that OWCP erroneously applied or interpreted a specific
point of law. She did not identify a specific point of law or show that it was erroneously applied
or interpreted. Appellant did not advance a new and relevant legal argument. Her argument was
that OWCP’s acceptance of a left hip strain under a separate claim and the termination of her
compensation benefits in October 1989, established her entitlement to ongoing medical treatment
for left-sided sciatica under the present claim.
The underlying issue in this case concerns the medical issue of causal relationship. To be
relevant to the claim, the evidence submitted on reconsideration must address this issue. The
documents from File No. xxxxxx785 do not address causal relationship under the facts in the

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

6

Helen E. Tschantz, 39 ECAB 1382 (1988).

7

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

8

Annette Louise, 54 ECAB 783 (2003).

3

present claim. The Board has held that evidence which does not address the particular issue
involved is insufficient to warrant reopening a claim for merit review.9
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(2). She did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, appellant asserts that the medical evidence of record establishes that she
sustained a low back and left hip condition on or before December 30, 1987, with continuous
exposure to injurious work factors through mid-July 2007. Her contentions concern the merit
issue of causal relationship, but the Board does not have jurisdiction over the merits of the claim
on the present appeal.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the January 3, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 29, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9

D.K., 59 ECAB 158 (2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Belle Plain, IA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Bruce Gettman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1105
Issued: December 1, 2008

Case Submitted on the Record

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

JURISDICTION
On March 4, 2008 appellant filed a timely appeal of a January 28, 2008 merit decision
from the Office of Workers’ Compensation Programs, which denied modification of a
November 28, 2006 decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue on appeal is whether appellant met his burden of proof to establish a recurrence
of disability beginning July 12, 2006 causally related to his March 19, 2004 employment injury.
FACTUAL HISTORY
On March 19, 2004 appellant, then a 38-year-old rural carrier, filed a traumatic injury
claim alleging that on March 19, 2004 he hurt his back while lifting a heavy parcel from the back
of his postal vehicle in the performance of duty.1 He did not stop work; however, he initially
1

The record reflects that appellant has nonwork-related conditions, which include a vertebral fracture at L3 in
1999, Grave’s disease, a blood clot in 1997, obesity and thyroid problems.

returned to modified duty.2 The Office accepted the claim for herniated disc at L5-S1 and left
lower extremity, radiculopathy and appellant received appropriate compensation benefits.
Appellant was released to regular duty with no restrictions on August 1, 2005 by Dr. Brian
Rafferty, Board-certified in family medicine.
In an August 22, 2006 disability certificate, Dr. Rafferty indicated that appellant was
currently under his care for a disc herniation in his back and was unable to work from August 12,
2006 until he could be seen by a neurosurgeon.
On September 13, 2006 appellant filed a notice of recurrence (Form CA-2a) alleging that
on July 12, 2006 he had a recurrence of his March 19, 2004 employment injury. He alleged that
his condition never healed or been 100 percent and that he had increased problems with the disc
in his lower back. Appellant stopped work on August 22, 2006. The employing establishment
alleged that he indicated that his back and legs were hurting after completing his route in a
borrowed postal vehicle. The postmaster indicated that the “change in vehicle size and the left
hand drive controls vs. his right hand drive jeep caused him to stretch, turn and twist excessively
while straddling the front seat to deliver his route.”
On September 25, 2006 the Office advised appellant of the type of medical evidence
needed to establish his claim for a recurrence of disability. It explained that a recurrence was
defined as a “spontaneous return or increase of disability due to a previous injury or occupational
disease without intervening cause.” The Office advised appellant that, if he had a new injury or
exposure, he should file a new notice of injury.
Appellant submitted reports from Dr. Russell Buchanan, a neurosurgeon, and reports of
diagnostic studies. In a September 14, 2006 report, Dr. Buchanan diagnosed advanced
degeneration with subligamentous disc herniation, L5-S1, with displacement of the left S1 nerve
root. He advised that surgery might be needed but first recommended an electromyography scan
and nerve conduction studies. On October 2, 2006 report Dr. Buchanan noted appellant’s history
of injury and treatment. He indicated that appellant had a “fall without injury last week.”
Dr. Buchanan diagnosed L5-S1 disc degeneration with S1 radiculopathy left and recommended a
“simple laminectomy for his left lower extremity pain and work on strengthening of the low
back.” He provided a disability certificate in which he diagnosed back pain and advised that
appellant could not work. In an August 22, 2006 report, Dr. Jeffrey Magnuson, a Board-certified
diagnostic radiologist, advised that a magnetic resonance imaging (MRI) scan showed a small
broad-based left paracentral disc herniation at L5-S1 that had increased in size since June 2, 2005
and seemed to cause mild impingement on the left S1 root. In a September 14, 2006 report,
Dr. Donald Breit, a Board-certified diagnostic radiologist, stated that an x-ray revealed mild disc
space narrowing at L5-S1 with mild progression from an earlier study. In a September 28, 2006
report and a nerve conduction study, Dr. Brian Sires, a Board-certified neurologist, diagnosed
minor left S1 lumbar radiculopathy.
In a letter dated October 5, 2006, Richard A. Jellen, the postmaster, indicated that
appellant returned to work but “had limited range of motion and moved very slow.” He also
noted that appellant complained about “pain in his back and legs and walked by dragging one of
2

Appellant was released to clerical work with restrictions of no lifting or twisting.

2

his legs.” Mr. Jellen indicated that appellant underwent therapy in 2005, which made a “big
difference in his performance, mobility and the pain from the original injury.” He advised that
appellant rebounded and had no noticeable problems until July 12, 2006, when he reported that
his back was hurting him again.
In an October 19, 2006 report, Dr. Buchanan recommended a laminectomy and opined
that it was “the most efficient way of achieving a decompression along the involved nerve roots,
the left L5 and left S1 nerve root.” He noted that appellant had a work injury from March 19,
2004 and opined that it “has been getting somewhat worse overtime and never achieving a return
to his baseline.” In a report received by the Office on October 30, 2006, Dr. Buchanan noted that
the diagnostic testing showed an abnormality in the left S1 nerve root distribution. He diagnosed
left L5-S1 degenerative disc with foraminal stenosis causing left S1 clinical radiculopathy.
Dr. Buchanan opined that the “continuous lifting on a disc that was already injured, has led to a
progression of his symptoms.” He opined that appellant was a clear candidate for surgery and
that his current complaints stemmed from his April 19, 2004 injury.
In an October 19, 2006 report, Dr. Rafferty noted that appellant had several years of
chronic back problems. He noted that appellant “developed significant discomfort in his low
back this fall, which was an exacerbation of his chronic underlying medical problem.”
Dr. Rafferty opined that “[a]s far as the original injury, [appellant] has never fully recovered.”
He noted that appellant was able to return to regular employment, but on an intermittent basis.
Dr. Rafferty opined that appellant had an exacerbation of his chronic underlying medical
problems and that there were not “any recent significant precipitating factors known to cause this
exacerbation.” The Office also received a physical therapy report.
By decision dated November 8, 2006, the Office denied appellant’s claim for a
recurrence of disability beginning July 12, 2006. It also denied authorization for removal of
spinal lamina. The Office found that the evidence was insufficient to establish that the claimed
recurrence of disability was due to the accepted work injury.
In a November 21, 2006 operative report, Dr. Buchanan performed a lumbar
laminectomy at L5-S1 and decompression of the left S1 nerve root, with a discectomy on the left
L5-S1. The Office received several treatment notes dating from December 20, 2006 to May 22,
2007 from Dr. James Lesniewski, a Board-certified surgeon. These treatment notes were for
hernias, pain in the groin, cholecystectomy for acute cholecystitis, a gall bladder infection and
abdominal pain. The Office also received additional information which included copies of
disability certificates from June to July 2005, evidence previously of record and a November 23,
2004 report from Dr. Keith W. Riggins, a Board-certified orthopedic surgeon, who diagnosed a
herniated nucleus pulposus at L5-S1 with radiculopathy. Dr. Riggins opined that appellant’s
restrictions were permanent and persistent since March 2004.
The Office received an April 1, 2007 letter from Mary Ohms, a health and resource
manager and injury compensation specialist from the employing establishment. Ms. Ohms
indicated that appellant fell and hurt both his knees while walking across his driveway after the
latest ice storm.

3

In a July 18, 2007 operative report, Dr. Robert Federhofer, an osteopath, Board-certified
in anesthesiology, indicated that appellant underwent a bilateral L5-S1 facet joint injection with
C-arm guidance.
On October 25, 2007 Dr. Buchanan completed a form from the Office, in which he
indicated that appellant sustained a recurrence of disability and opined that the need for lumbar
spine surgery by appellant in 2006 was directly related to his March 19, 2004 injury.3
On October 25, 2007 appellant requested reconsideration. In an October 31, 2007 letter,
he and his representative submitted additional arguments and medical evidence. They alleged
that appellant had presented evidence to show that his recurrence arose from his original injury.
In a separate statement, appellant alleged that, on July 10, 2006, his vehicle broke down. He
indicated that his jeep was a specially built right hand drive vehicle, which enabled him to
perform his duties without inflicting more pain and discomfort to his low back. Appellant
indicated that he completed his shift on that date with severe lower back pain which radiated to
his legs. He alleged that on July 11, 2006 he was given a loaner vehicle, which was so
uncomfortable, that he could not come into work the next day. Appellant also alleged that he
had never fully recovered and that his recurrence was a spontaneous return of disability without
any specific intervening cause or events. He also alleged that he had no other injuries since the
original injury. The Office also received a copy of Dr. Buchanan’s October 19, 2006 report.
The Office received an undated work capacity evaluation from Dr. Kevin Eck, a Boardcertified orthopedic surgeon, who advised that appellant had radiculopathy of the left lower
extremity, a herniated disc at L5-S1 and had reached maximum medical improvement. It also
received an earlier work capacity evaluation from November 23, 2004.
In a December 5, 2007 statement, Ms. Ohms indicated that the June 1, 2005 emergency
room report revealed that appellant was brought in by ambulance after pulling out nails from a
floor in preparation for new carpeting and developed a sudden onset of pain. She also noted that
the report revealed that appellant was crawling on his hands and knees for approximately 15
minutes, removing nails from the floor and upon standing developed severe pain. Ms. Ohms
noted that appellant had refurbished a home during the course of his March 19, 2004 injury and
subsequent recovery. Additionally, she noted that appellant drove a school bus, when he was
unable to return to work.
In a January 28, 2006 decision, the Office denied modification of its prior decision. It
advised appellant that his statement revealed that he was exposed to new work factors following
his return to work and that he should consider filing a new occupational disease claim if he
believed that new work factors caused or contributed to his disability.
LEGAL PRECEDENT
Section 10.5(x) of the Office’s regulations provides that a recurrence of disability means
an inability to work after an employee has returned to work, caused by a spontaneous change in a

3

The report actually indicates April 19, 2004; however, this appears to be a typographical error.

4

medical condition, which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.4
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.5
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.6
ANALYSIS
The Office accepted that appellant sustained a herniated disc at L5-S1 and left lower
extremity radiculopathy in the performance of duty on March 19, 2004. Appellant did not stop
work. He filed a notice of recurrence of disability on September 13, 2006 alleging disability
beginning July 12, 2006. Appellant, however, did not submit sufficient reasoned medical
evidence to establish that his present condition was causally related to his accepted injury. For
example, he did not submit a medical report in which his treating physician explained why any
disability beginning July 12, 2006 would be related to the accepted injury.
Appellant submitted several reports from Dr. Buchanan. They included an October 2,
2006 report, in which Dr. Buchanan noted that appellant had a “fall without injury last week.”
Dr. Buchanan diagnosed L5-S1 disc degeneration with S1 radiculopathy left and recommended a
“simple laminectomy for his left lower extremity pain and work on strengthening of the low
back.” He also diagnosed back pain and indicated that appellant could not work. However,
Dr. Buchanan did not provide any further opinion regarding why appellant could not work. To
establish that a claimed recurrence was caused by the accepted injury, medical evidence of
bridging symptoms between the present condition and the accepted injury must support his
conclusion of a causal relationship.7 Although Dr. Buchanan noted that appellant had a recent
fall, appellant did not allege that he sustained a fall at work. Further, he did not specifically
address the cause of the diagnosed conditions or relate the conditions to appellant’s May 19,
2004 employment injury and thus his report is of little probative value.8
4

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 ( 2004).

5

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.104.

6

Walter D. Morehead, 31 ECAB 188 (1986).

7

Ricky S. Storms, 52 ECAB 349 (2001).

8

Linda I. Sprague, 48 ECAB 386 (1997) (medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship).

5

In an October 19, 2006 report, Dr. Buchanan recommended a laminectomy. While he
noted that appellant had a work injury on March 19, 2004 that had worsened overtime, he did not
provide any reasoning for this opinion. For example, appellant alleged that he sustained a
recurrence on July 12, 2006, while using a loaner vehicle instead of his specially built right hand
vehicle which had broke down and was being repaired but Dr. Buchanan did not note this or
explain how this was part of a spontaneous change in the original injury. Additionally, the
employing establishment indicated that appellant fell and injured his knees after walking across
his driveway after an ice storm. However, Dr. Buchanan did not provide any indication that he
was aware of this or provide any other reasoned explanation as to how he arrived at his
conclusion that appellant’s condition from March 19, 2004 worsened overtime as a result of the
original injury. This is especially important in light of the intervening factors such as the fall in
his driveway at home, as well as the fact that appellant was released to unrestricted duty on
August 1, 2005. The Board has held that medical opinions not containing rationale on causal
relation are entitled to little probative value and are generally insufficient to meet an employee’s
burden of proof.9 Likewise, in a report received by the Office on October 30, 2006 and an
October 25, 2007 report, Dr. Buchanan noted that the “continuous lifting on a dis[c] that was
already injured, has led to a progression of his symptoms.” He opined that appellant had
sustained a recurrence of disability and opined that the need for lumbar spine surgery by
appellant in 2006 was directly related to his March 19, 2004 injury. However, as noted above,
Dr. Buchanan did not provide any rationale to explain how he arrived at this conclusion.
Appellant also submitted an October 19, 2006 report, from Dr. Rafferty, who opined that
“[a]s far as the original injury, the [appellant] has never fully recovered.” Dr. Rafferty opined
that appellant had an exacerbation of his chronic underlying medical problems and that there
were not “any recent significant precipitating factors known to cause this exacerbation.”
However, he did not provide any explanation to support his opinion that appellant had an
exacerbation of his underlying symptoms attributable to the original accepted injury.
Dr. Rafferty also did not appear to have a complete history such as the fall on ice at appellant’s
home nor did he appear to have any knowledge regarding the breakdown of appellant’s vehicle.
The Board has held that medical opinions based upon an incomplete history have little probative
value.10
Other medical reports submitted by appellant, including diagnostic reports, are
insufficient to establish he claim for a recurrence of disability as they do not specifically address
how any condition on or after July 12, 2006 is causally related to the original employment
injury.11 Likewise, medical reports submitted by him that predated the alleged recurrence are
insufficient to establish the claim for a recurrence of disability.

9

Albert C. Brown, 52 ECAB 152 (2000).

10

See Vaheh Mokhtarians, 51 ECAB 190 (1999).

11

Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of diminished probative value on the issue of causal relationship).

6

The Office also received several physical therapy reports. However, the reports of
therapists have no probative value on medical questions because a therapist is not a physician as
defined by 5 U.S.C. § 8101(2) and, therefore, is not competent to render a medical opinion.12
Consequently, appellant has not met his burden of proof in establishing his claim for a
recurrence of disability beginning July 12, 2006 causally related to the work injury of
March 19, 2004.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

See Barbara J. Williams, 40 ECAB 649, 657 (1988) (physical therapist); 5 U.S.C. § 8101(2) (the term
“physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by state law).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU MCA REGIONAL OFFICE
NEW YORK, New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1220
Issued: March 17, 2022

Case Submitted on the Record

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

JURISDICTION
On August 9, 2021 appellant filed a timely appeal from a July 15, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2

1

5 U.S.C. § 8101 et seq.

2

The Board notes that, following the July 15, 2021 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.

1

ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted February 27, 2021 employment incident.
FACTUAL HISTORY
On March 2, 2021 appellant, then a 59-year-old miscellaneous clerk, filed a traumatic
injury claim (Form CA-1) alleging that on February 27, 2021 she bruised her right knee and
overextended her right arm when she slipped and fell on ice when she leaned over to place a notice
on the door, while in the performance of duty. On the reverse side of the claim form, appellant’s
supervisor acknowledged that she was injured in the performance of duty. Appellant stopped work
on February 27, 2021 and returned to work on February 28, 2021.
In a development letter dated March 5, 2021, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of additional evidence was necessary to establish her claim
and provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the
necessary evidence.
On March 25, 2021 appellant submitted a March 22, 2021 response to OWCP’s
development questionnaire. She attested that she was placing a notice on the garage door when
she slipped and fell on ice. Appellant felt a sharp pain in her right kneecap and right upper arm
and subsequently notified her supervisor and sought medical care. She also attested that she did
not have similar disability or symptoms prior to her fall.
Appellant submitted a medical report dated February 27, 2021 from Dr. Julie Stein, a
Board-certified family medicine specialist. Dr. Stein related that appellant was seen for knee pain
after a fall.
OWCP received two x-ray reports dated February 27, 2021 from Dr. Reed Thomas, an
internist and pulmonary disease specialist, which found no fracture in appellant’s knees or right
humerus.
Appellant submitted the first page of a four-page after-visit summary dated March 8, 2021,
which reflected that she was seen that day by Dr. Cyril Kozak, a Board-certified family practice
specialist. The document indicated that “issues were addressed: contusion of right knee,
subsequent encounter; and muscle strain of right upper arm, subsequent.”
By decision dated April 6, 2021, OWCP accepted that the February 27, 2021 employment
incident occurred, as alleged, but denied appellant’s claim, finding that she had not submitted
medical evidence containing a medical diagnosis in connection with her accepted employment
incident. It concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.
On April 12, 2021 appellant requested reconsideration of OWCP’s April 6, 2021 decision.
In support of her claim, she submitted a report dated February 27, 2021 from Dr. Joyce Burton, an
osteopath specializing in internal medicine. Dr. Burton related that appellant slipped on ice and
fell on her right knee with her arm out in front of her. She diagnosed knee pain.
2

By decision dated July 15, 2021, OWCP denied modification of its April 6, 2021 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 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 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 determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
There are two components involved in establishing fact of injury. The first co mponent to be
established is that the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time and 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.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 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. 9

3

Id.

4

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).
5

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).
6

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).
7

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).
8

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).
9

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).

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted February 27, 2021 employment incident.
In support of her claim, appellant submitted February 27, 2021 reports from Dr. Stein and
Dr. Burton, who diagnosed right knee pain. The Board has held that pain is a symptom and not a
compensable medical diagnosis. 10 These reports are, therefore, insufficient to establish a diagnosis
causally related to the accepted employment incident.
The first page of four-page after-visit summary dated March 8, 2021 indicated that
Dr. Kozak addressed appellant’s issues of right knee contusion and muscle strain of the right upper
arm. It, however, did not offer a diagnosis. The Board has held that medical evidence lacking a
firm diagnosis is of no probative value.11 Therefore, this document has no probative value and is
insufficient to establish a diagnosis causally related to the accepted employment incident.
OWCP also received diagnostic test reports. The Board has held, however, that diagnostic
test reports, standing alone, lack probative value as they do not provide an opinion on causal
relationship between the employment incident and a diagnosed condition.12 These reports are,
therefore, insufficient to establish appellant’s claim.
As there is no medical evidence of record establishing a diagnosed medical condition
causally related to the accepted February 27, 2021 employment incident, the Board finds that
appellant has not met her 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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted February 27, 2021 employment incident.

10

A.G., Docket No. 20-1319 (issued May 19, 2021); T.S., Docket No. 20-0343 (issued July 15, 2020).

11

L.T., Docket No. 20-0582 (issued November 15, 2021); W.G., Docket No. 20-0439 (issued July 13, 2020); R.L.,
Docket No. 20-0284 (issued June 30, 2020); P.C., Docket No. 18-0167 (issued May 7, 2019).
12

See W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

4

ORDER
IT IS HEREBY ORDERED THAT the July 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 17, 2022
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, HARVEST POST
OFFICE, Harvest, AL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-0585
Issued: March 11, 2022

Case Submitted on the Record

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

On March 5, 2021 appellant filed a timely appeal from a November 13, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 21-0585.
On May 7, 2018 appellant, then a 58-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 4, 2018,1 at approximately 8:30 a.m., he strained his back when
picking up a delivery point sequence (DPS) tray while in the performance of duty. He stopped
work on the alleged date of injury. OWCP assigned the claim OWCP File No. xxxxxx463.2

1

Appellant indicated on his claim form that the injury occurred on May 5, 2018. In a June 11, 2018 letter, however,
appellant clarified that the correct date of injury was May 4, 2018. In a June 13, 2018 letter, the employing
establishment notified OWCP that the correct date of injury was May 4, 2018. In a June 19, 2018 letter, OWCP
notified appellant that his date of injury was changed to May 4, 2018.
2

The record reflects that appellant has a prior cla im for a February 4, 2009 traumatic injury, that was accepted for
lumbar sprain under OWCP File No. xxxxxx873. Appellant also has a prior claim for a June 7, 2011 traumatic injury
accepted for shoulder and upper arm sprains; abrasions/friction burn; contusion; face, neck, and scalp
abrasions/friction; neck sprain; lumbar sprain; and concussion under OWCP File No. xxxxxx378. Additionally, he
filed a Form CA-1 on September 29, 2017 alleging that he sustained a work-related back and neck injury on that date
under OWCP File No. xxxxxx574. Appellant subsequently filed a nother Form CA-1 alleging that on November 16,
2017 he strained his mid-back under OWCP File No. xxxxxx665.

By decision dated January 14, 2019, OWCP accepted that the May 4, 2018 incident
occurred as alleged, but denied appellant’s claim as the medical evidence of record was insufficient
to establish causal relationship between a diagnosed medical condition and the accepted
employment incident.
OWCP received additional medical evidence.
On September 21, 2019 appellant requested reconsideration.
By decision dated November 8, 2019, OWCP modified the January 14, 2019 decision to
find that appellant had not established the factual component of his claim.
On February 4, 2020 appellant requested reconsideration and submitted additional medical
evidence.
By decision dated March 23, 2020, OWCP denied modification.
On June 19, 2020 appellant requested reconsideration. By decision dated September 11,
2020, OWCP denied modification of the March 23, 2020 decision.
On October 1, 2020 appellant requested reconsideration and submitted additional evidence.
By decision dated November 13, 2020, OWCP denied modification.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files. 3 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required. 4 In the present claim,
appellant alleged injuries to his back, shoulders, and neck. He has prior claims before OWCP
alleging neck, shoulder, and back injuries, including previously accepted claims under OWCP File
Nos. xxxxxx873 and xxxxxx378. However, OWCP has not administratively combined appellant’s
claims.
For a full and fair adjudication of appellant’s current claim, the case must be remanded to
OWCP to administratively combine the current case record with OWCP File Nos. xxxxxx873,
xxxxxx378, xxxxxx574, and xxxxxx665.5 Following this and other such further development as
OWCP deems necessary, it shall issue a de novo decision.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; L.M., Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

5

Id.

2

IT IS HEREBY ORDERED THAT the November 13, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 11, 2022
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1458
Issued: December 22, 2015

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 June 26, 2015 appellant filed a timely appeal from a December 29, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since the last merit decision dated August 22, 2014 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 this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely.
1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested an oral argument before the Board. After exercising its discretion, by order dated
October 15, 2015, the Board denied appellant’s request for oral argument as the arguments on appeal could be
adequately addressed in a decision based on review of the case record. Order Denying Request for Oral Argument,
Docket No. 15-1458 (issued October 15, 2015).

FACTUAL HISTORY
On May 30, 2014 appellant, then a 58-year-old engineering technician, submitted a claim
for traumatic injury (Form CA-1). He alleged that on May 11, 2014 he injured his right shoulder
and left lower knee when a loader fell on him.
By decision dated August 22, 2014, OWCP denied appellant’s claim, noting that the only
evidence received along with his claim was a request for authorization of an outpatient visit.
By letter dated November 10, 2014 and received by OWCP on November 19, 2014,
appellant requested an oral hearing before an OWCP hearing representative.3 With his request,
he included a narrative statement regarding his reason for requesting a hearing.
By decision dated December 29, 2014, the Branch of Hearings and Review denied
appellant’s hearing request as untimely. A hearing representative noted that OWCP had issued
its decision on August 22, 2014, while appellant’s hearing request was dated November 10,
2014, which was more than 30 days after OWCP’s decision. He noted that the postmark date
used in this decision was the date of the letter, as the postmark was illegible. Consequently, the
hearing representative found that appellant was not entitled to a hearing as a matter of right, as
the request was submitted more than 30 days after OWCP’s decision. He also considered
whether to grant appellant a discretionary hearing, but decided that the question of appellant’s
entitlement to compensation benefits could equally well be addressed by a request for
reconsideration before OWCP.
LEGAL PRECEDENT
A claimant, injured on or after July 4, 1966, who has received a final adverse decision by
OWCP may obtain a hearing by writing to the address specified in the decision.4 The hearing
request must be sent within 30 days (as determined by postmark or other carrier’s date marking)
of the date of the decision for which a hearing is sought. The claimant must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision. If the
request is not made within 30 days, a claimant is not entitled to a hearing as a matter of right.
However, the Branch of Hearings and Review may exercise its discretion to either grant or deny
a hearing.5
ANALYSIS
Appellant’s November 10, 2014 hearing request was date stamped as received on
November 19, 2014. The hearing representative noted that appellant’s form was dated
3

The record includes an imaged copy of the envelope that contained the hearing request. However, the postmark
date is illegible. The request was properly addressed to the Branch of Hearings and Review in accordance with the
instructions on the appeal request form.
4

20 C.F.R. § 10.616(a).

5

5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33
ECAB 140 (1981).

2

November 10, 2014, which was more than 30 days after OWCP’s August 22, 2014 decision. He
further noted that the postmark on the request was illegible, and thus the date of the letter was
used to determine timeliness in lieu of the postmark.
The Board notes that the imaged copy of the envelope does not have a legible postmark
date. Where the postmark is not legible, the hearing request will be deemed timely unless
OWCP has kept evidence of date of delivery on the record reflecting that the request is
untimely.6 As noted, the appeal request form was date stamped as having been received by the
Branch of Hearings and Review on November 19, 2014. Accordingly, the evidence regarding
date of delivery, as well as the date of the request itself, were more than 30 days after OWCP’s
August 22, 2014 decision. Appellant’s request was thus untimely and he was not entitled to a
hearing as a matter of right.
The Branch of Hearings and Review also reviewed appellant’s request and denied it as
his claim could be addressed by requesting reconsideration before OWCP. The Board finds that
the hearing representative properly exercised her discretionary authority in denying appellant’s
request for a hearing.7
CONCLUSION
The Board finds that the Branch of Hearings and Review properly denied appellant’s
request for an oral hearing as untimely.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.4a (October 2011). Where the hearing request is mailed directly to the Branch of Hearings and Review, the
request will be date stamped, and both the envelope and request will be scanned into the case file. Id. at Chapter
2.1601.3a.
7

Mary B. Moss, 40 ECAB 640, 647 (1989). 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 known facts. See André Thyratron, 54 ECAB 257, 261 (2002).

3

ORDER
IT IS HEREBY ORDERED THAT the December 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 22, 2015
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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 19-0882
Issued: November 6, 2019

Case Submitted on the Record

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

JURISDICTION
On March 11, 20191 appellant filed a timely appeal of the September 13, 2018 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 over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish back conditions
causally related to the accepted factors of her federal employment.

1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from September 13, 2018, the date of OWCP’s last decision was
March 12, 2019. Since using March 18, 2019, the date the appeal was received by the Clerk of the Appellate Boards,
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is March 11, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 16, 2016 appellant, then a 48-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained right-sided sciatica and degenerative disc disease
due to carrying a satchel filled with mail, papers, and packages while in the performance of duty.
She explained that her satchel aggravated her back muscles and spine, causing her to experience
two slipped discs in her back. Appellant first became aware of her conditions on July 15, 2015
and realized they were caused by factors of her federal employment on June 10, 2016. On the
reverse side of the claim form appellant’s supervisor noted that she stopped work on June 10, 2016
and had not returned.
In a statement dated June 16, 2016, appellant provided additional details of her claimed
injury. She indicated that she first began experiencing back issues in July 2015 and was seen by
Dr. Debora Radder, Board-certified in family medicine. Appellant underwent x-rays performed
in October 2015 that revealed narrowing of her spine, as well as degenerative disc disease in her
lumbar area. She stated that she continued to work 8 to 10 hours per day. Appellant contended
that she had not experienced back pain previously, but now has trouble moving up and down the
stairs and bending down.
In a report and release-from-work slip both dated June 10, 2016, Dr. Radder held appellant
off work from June 10 to 21, 2016 and diagnosed right-sided sciatica, lumbar degenerative disc
disease, and generalized anxiety disorder.
In a development letter dated June 23, 2016, OWCP notified appellant of the deficiencies
of her claim. It advised her of the factual and medical evidence necessary to establish her claim
and also provided questionnaires for appellant and her supervisor to complete. OWCP afforded
appellant and her supervisor 30 days to submit the necessary factual and medical evidence.
On June 27, 2016 appellant submitted the signed questionnaire page without responding to
OWCP’s specific inquiries.
A June 30, 2016 lumbar spine magnetic resonance imaging (MRI) scan, interpreted by
Dr. Dale Stevens, a Board-certified radiologist, revealed grade 1 anterolisthesis, multiple disc
desiccation with defused disc bulges and degenerative disc disease. Dr. Stevens noted that
appellant presented with low back pain radiating down her right hip and legs related to carrying
heavy mailbags.
Appellant also submitted progress notes from Dr. Radder, dated June 10 and 16, 2016.
Dr. Radder’s June 10, 2016 assessment provided that appellant’s conditions were likely caused by
overuse and repetitive activity at work and recommended rest, hot and cold applications, and an
x-ray moving forward. In her June 16, 2016 progress note, she made reference to appellant’s
increased right hip pain and indicated that a June 15, 2016 x-ray revealed no injury to her right
hip.
In a July 6, 2016 medical report, Dr. Radder stated that appellant’s MRI scan showed spinal
stenosis and spinal cord compression at several levels. She provided that, even with limited to
extremely light activities, appellant’s symptoms continued to worsen. Dr. Radder opined that
appellant would be unable to work and referred her to pain management and neurosurgery.

2

In a July 13, 2016 statement provided by S.C., appellant’s supervisor, she noted that none
of appellant’s supervisors were aware of her condition until she called out sick on June 13, 2016.
S.C. noted that appellant performed well as a carrier assistant, but once she became a regular
carrier, she had multiple Family and Medical Leave Act (FMLA) cases. She explained that
appellant arrived at work at 8:00 a.m., cased her route and carried the mail and made deliveries
accordingly. Appellant carried potentially up to 70 pounds, walked six hours per day on her route
and pushed hampers full of mail up a ramp to her vehicle. To the best of S.C.’s knowledge,
appellant never made a request for light or limited duty.
On August 3, 2016 appellant consulted with Dr. Gregory Bowden, a Board-certified
neurosurgeon. Dr. Bowden reviewed her medical history and discussed performing a lumbar
laminectomy and fusion at L3-L4 to relieve the pain in her leg and improve her walking, which
was performed on August 11, 2016.
In an August 19, 2016 medical report, Dr. Radder provided that, because appellant was
young and demonstrated no prior history of back problems, there was no reason to assume she had
degenerative disc disease prior to her job as a mail carrier. She explained that strenuous physical
activity, such as the work appellant performs as a mail carrier, could have caused her injury.
By decision dated September 15, 2016, OWCP denied appellant’s claim, finding that the
evidence submitted was insufficient to establish that the events causing her injuries occurred as
described. As appellant had not established the factual element of her claim, it found that she had
not met the requirements for establishing an injury as defined by FECA.
On October 7, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
OWCP continued to receive medical evidence from appellant. Appellant submitted a
June 15, 2016 evaluation note from Dr. Peter Intrieri, Board-certified in emergency medicine.
Also submitted was a June 15, 2016 radiology report from Dr. Antonio Pena, a Board-certified
radiologist, both of which noted appellant’s right hip pain and indicated that her x-rays found no
injury to her hip.
Appellant also submitted Dr. Bowden’s operative report detailing her August 11, 2016
L3-L4 laminectomy and lumbar fusion surgery.
In a December 8, 2016 medical note, Dr. Radder opined that appellant’s spinal stenosis and
degenerative disc disease developed during her federal employment. She provided that carrying a
heavy mailbag places mechanical stress on the spine, which could over time, along with normal
wear and tear and aging, lead to appellant’s problems. Dr. Radder also noted that there was no
specific injury event, as appellant’s back problems developed gradually over time and that
appellant had back pain prior to her federal employment. Finally, she stated that because she did
not have x-rays of appellant’s back prior to her federal employment, she could not rule out
appellant’s work duties as the cause of her injuries, but also could not state with certainty that her
work duties were the cause of her injuries.
A telephonic hearing was held before an OWCP hearing representative on May 10, 2017.
Appellant provided testimony and the hearing representative held the case record open for 30 days
for the submission of additional evidence. No additional evidence was received.
3

By decision dated June 23, 2017, OWCP’s hearing representative modified OWCP’s
September 15, 2016 decision to accept that appellant had established the implicated employment
factors; however, it found that the evidence submitted was insufficient to establish that her
conditions were causally related to the accepted factors of her federal employment.
On June 20, 2018 appellant requested reconsideration of OWCP’s June 23, 2017 decision.
She submitted a new narrative medical report from Dr. Bowden dated May 22, 2018, which had
not previously been submitted or reviewed.
In a May 22, 2018 narrative medical report, Dr. Bowden noted appellant’s employment
history and noted that she had a documented history of lumbar back pain dating at least from 2013,
a span of time that includes the time she was employed with the employing establishment. He
explained that appellant’s duties included carrying a heavy mailbag and walking a significant
distance on a regular basis. Dr. Bowden opined that appellant’s grade 1 spondylolisthesis was
likely previously present as a slow degenerative process and that her “repetitive lifting and
sustained off-center load of a 50+ pound mailbag would almost certainly have accelerated the
degenerative changes leading to a neurological decline and subsequent need for operative
management.” He provided that her repetitive lifting and carrying were more likely larger
components of her condition, as opposed to a previously unmentioned January 27, 2016 fall on
ice. Dr. Bowden also explained how the forward slippage of one vertebrae on another is a
biomechanical area of weakness and can result in back pain, radicular pain, spinal stenosis and
neurological dysfunction. Finally, he explained how this abnormal strain can eventually result in
stenosis.
By decision dated September 13, 2018, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
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 the following: (1) medical evidence establishing the
3

Supra note 2.

4

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

S.C., id.; 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
S.C., id.; 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).

4

presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 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 employee.9
Neither the mere fact that a disease or condition manifests itself during a period of employment
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her back
conditions are causally related to accepted factors of her federal employment.
In support of her claim, appellant submitted a May 22, 2018 report from Dr. Bowden which
discussed the relationship between appellant’s employment history and her diagnosed condition
of lumbar spinal stenosis. Dr. Bowden explained how the forward slippage of one vertebrae on
another, placed under repetitive stress can result in stenosis. He opined that appellant’s previously
unmentioned January 27, 2016 fall on ice could have been a factor; that repetitive lifting and
carrying was more likely larger components; and that her lumbar condition was likely present
previously as a slow degenerative process. Dr. Bowden’s report however, was couched in
speculative terms and was thus insufficient to establish appellant’s claim.11 The Board has held
that while the opinion supporting causal relationship does not have to reduce the cause or etiology
of a disease or condition to an absolute certainty, the opinion must be one of reasonable medical
certainty and not speculative or equivocal in character.12

7

C.D., Docket No. 17-2011 (issued November 6, 2018); Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

8

A.M., Docket No. 18-0685 (issued October 26, 2018).

9

E.V., Docket No. 18-0106 (issued April 5, 2018).

10

B.J., Docket No. 19-0417 (issued July 11, 2019).

11

The Board has held that speculative and equivocal medical opinions regarding causal relationship have no
probative value. R.C., Docket No. 18-1695 (issued March 12, 2019); see Ricky S. Storms, 52 ECAB 349 (2001) (While
the opinion of a physician supporting causal relationship need not be one of absolute medical certainty, the opinion
must not be speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of medical
certainty).
12

M.S., Docket No. 19-0189 (issued May 14, 2019); C.L., Docket No. 18-1379 (issued February 5, 2019).

5

Dr. Bowden’s remaining August 3 and 11, 2016 medical and operative notes are of no
probative value because they do not give an opinion on causal relationship. The Board has held
that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition or disability is of no probative value on the issue of causal relationship.13 As
Dr. Bowden’s notes did not contain an opinion on causal relationship, they are also of no probative
value.
In Dr. Radder’s July 6, August 19 and December 8, 2016 medical notes she opined that
appellant’s spinal stenosis and degenerative disc disease were due to overuse and repetitive activity
associated with her work duties. She stated that because she did not have x-rays of appellant’s
back prior to her federal employment, she could not rule out appellant’s work duties as the cause
of her injuries but also could not state with certainty that her work duties were the cause of her
injuries. Dr. Radder also noted that carrying a heavy mailbag “could” have caused appellant’s
injuries. Her notes attempt to address causal relationship, however, they were also couched in
speculative terms and were thus insufficient to establish appellant’s claim.14
Dr. Radder’s remaining June 10 and 16, 2016 medical reports made reference to appellant’s
pain and the difficulty she experiences in completing her work. However, the documents do not
offer an opinion on the cause of appellant’s condition.15 As Dr. Radder’s medical reports do not
offer an opinion on causal relationship, they are of no probative value.16
OWCP also received evaluation notes dated June 15, 2016 from Dr. Intrieri’s, in which he
made note of the sharp pain in appellant’s right hip but indicated that her x-rays found no injuries
in her hip. The Board has held that under FECA the assessment of pain is not considered a
diagnosis, as pain merely refers to a symptom of an underlying condition.17 As he failed to provide
a firm medical diagnosis and provided no rationalized explanation regarding causal relationship,
Dr. Intrieri’s evaluation notes are insufficient to establish that the employment incident
physiologically caused a diagnosed condition.18
Additionally, appellant also submitted a June 30, 2016 MRI scan study interpreted by
Dr. Stevens. The Board has held that diagnostic tests lack probative value as they do not provide
an opinion on causal relationship between appellant’s employment duties and the diagnosed
conditions.19 Accordingly, the June 30, 2016 MRI study is of no probative value regarding causal
relationship.
13

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

14

Supra note 12.

15

Supra note 14.

16

See id.

17

M.V., Docket No. 18-0884 (issued December 28, 2018). The Board has consistently held that pain is a symptom,
rather than a compensable medical diagnosis). See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket
No. 08-1102 (issued October 10, 2008).
18

J.M., Docket No. 17-1002 (issued August 22, 2017).

19

See J.M., Docket No. 17-1688 (issued December 13, 2018).

6

As appellant has not submitted rationalized medical evidence establishing that her
conditions are causally related to the accepted factors of her federal employment, the Board finds
that she has not met her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish back conditions
causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 6, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate 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
__________________________________________
L.T., Appellant
and
DEPARTMENT OF THE ARMY, MARYLAND
NATIONAL GUARD, Baltimore, MD, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 20-0180
Issued: December 14, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On October 31, 2019 appellant filed a timely appeal from an August 8, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards
assigned Docket No. 20-0180.2
On June 10, 2019 OWCP informed appellant that federal regulations required her to
execute an affidavit regarding any earnings received or employment performed during the previous
15 months and that an EN1032 form was enclosed for that purpose. It advised that she had to
completely answer all questions on the form and that her benefits would be suspended pursuant to

1

The Board notes that appellant submitted additional evidence on appeal. 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

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In light
of the Board’s disposition of this case, oral argument is denied.

20 C.F.R. § 10.528 if a completed form was not received by OWCP within 30 days. OWCP mailed
the letter to appellant’s last known address of record. No response was received.
On July 1, 2019 OWCP received its June 10, 2019 letter, returned by the U.S. Postal
Service as undeliverable and unable to forward.
By decision dated August 8, 2019, OWCP suspended appellant’s wage-loss compensation,
effective August 18, 2019, for failing to submit the EN1032 form as requested. It advised that, if
she completed and returned an enclosed copy of the EN1032 form, it would restore her wage -loss
compensation retroactive to the date of suspension.
Section 8106(b) of 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. 3
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. 4 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. At that
time, OWCP will reinstate compensation retroactive to the date of suspension if the employee
remains entitled to compensation.5
The mailbox rule provides that proper and timely mailing of a document in the ordinary
course of business raises a rebuttable presumption of receipt by the addressee. 6 As a rebuttable
presumption, receipt will not be presumed, however, when there is evidence of nondelivery, and
the presumption may also be rebutted by other evidence that supports that the addressee did not
receive the correspondence. 7
The record in this case contains direct evidence of nondelivery of the June 10, 2019 letter
and accompanying EN1032 form. Although properly addressed to appellant at her address of
record, the U.S. Postal Service returned the letter to OWCP as undeliverable and unable to forward.

3

5 U.S.C. § 8106(b).

4

20 C.F.R. § 10.528. See also R.B., Docket No. 20-0176 (issued June 25, 2020); A.H., Docket No. 15-0241 (issued
April 3, 2015).
5

Id. See also J.M., Docket No. 20-1310 (issued April 21, 2021); P.M., Docket No. 16-0382 (issued May 19, 2016).

6

S.B., Docket No. 19-0337 (issued February 19, 2020); L.C., Docket No. 19-0320 (issued July 26, 2019); C.Y.,
Docket No. 18-0263 (issued September 14, 2018); Kenneth E. Harris, 54 ECAB 502, 505 (2003).
7

Id.

2

OWCP received the returned envelope on July 1, 2019. Consequently, appellant has rebutted the
presumption of receipt of the June 10, 2019 letter and EN1032 form under the mailbox rule. 8
As appellant did not receive the June 10, 2019 letter, the Board finds that OWCP
improperly issued its suspension decision.9 Accordingly,
IT IS HEREBY ORDERED THAT the August 8, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: December 14, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8

See M.U., Docket No. 09-0526 (issued September 14, 2009) (the Board found that presumption of receipt of a
notice of an oral hearing was rebutted when the envelope enclosing the notice of an oral hearing was returned and
marked return to sender and remanded the case for reissuance of the notice of an oral hearing).
9

V.R., Docket No. 18-1117 (issued June 20, 2019).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1839
Issued: March 15, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 7, 2010 appellant filed a timely appeal from the June 24, 2010 nonmerit decision
of the Office of Workers’ Compensation Programs denying his request for merit review of his
claim on the grounds that his request was untimely filed and failed to demonstrate clear evidence
of error. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this
nonmerit decision. The last merit decision of record was the Board’s July 6, 2004 decision
affirming the denial of appellant’s emotional condition claim. Because more than one year
elapsed between the last merit decision and the filing of this appeal on July 7, 2010, the Board
lacks jurisdiction to review the merits of this claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

1

See 20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
This case has previously been before the Board. In a July 6, 2004 decision, the Board
affirmed the April 3 and December 31, 2003 merit decisions of the Office which denied
appellant’s emotional condition claim.2 The Board found that the Office properly denied his
claim on the grounds that he had not submitted sufficient evidence to establish any compensable
employment factors.3 In a July 5, 2006 decision, the Board found that the Office properly denied
appellant’s April 2005 request for further review of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).4 In August 4, 2008 and June 3, 2009 decisions, the Board found that the Office
properly denied his August 2007 and June 2008 requests for further review of the merits of his
claim on the grounds that his requests were untimely filed and failed to demonstrate clear
evidence of error.5 The facts and the circumstances of the case are incorporated herein by
reference.
In a June 8, 2010 letter, appellant requested reconsideration of his claim. He asserted that
the evidence of record established several employment factors regarding harassment and
administrative error committed by Mr. Gant and Ms. Manies and claimed that the Office did not
adequately consider this evidence. Appellant claimed that his employer did not submit all
relevant evidence in its possession pursuant to the Office regulations at 20 C.F.R. § 10.118(a),
including evidence showing that Ms. Manies threatened and embarrassed him in front of
coworkers during a July 5, 2001 meeting.6 He claimed that testimony by Louis Rubens, a
coworker, established that Mr. Gant improperly showed his medical records to coworkers.
Appellant asserted that he never stated that he was not sure whether he sustained an employment
injury on July 5, 2001 and therefore Mr. Gant lied by indicating on the claim form he filed for
this injury that he made such a statement. He felt that medical evidence of record did in fact

2

Docket No. 04-796 (issued July 6, 2004).

3

On June 13, 2002 appellant, then a 50-year-old mail handler, filed a claim alleging that he sustained depression
and anxiety due to various incidents and conditions at work. He asserted that on July 5, 2001 Mary Ann Manies, a
supervisor, called him into a room in the presence of coworkers and accused him of lying in documents relating to a
claimed July 5, 2001 injury and threatened to report him to the postal inspector for investigation. Appellant alleged
that he was harassed by Benny Gant, a supervisor, who lied on the claim form for the July 5, 2001 injury and
improperly showed his medical records to coworkers. He claimed that on July 6, 2001 Mr. Gant conducted an
investigative interview and told him that it could lead to a disciplinary action. Appellant asserted that he received
unfair disciplinary letters, including a July 19, 2001 letter of warning regarding the July 5, 2001 incident, a
September 5, 2001 letter of warning for unsatisfactory attendance and a May 8, 2002 letter of warning for arriving
late to work. He claimed that he was wrongly prohibited from flossing his teeth in the restroom and from going to
the health clinic and that Mr. Gant discriminated against him by not taking his seniority into consideration when
assigning duties and by talking to coworkers about his health and work habits. Appellant also asserted that Mr. Gant
harassed him by following him into the restroom and questioning him about his breaks.
4

Docket No. 05-1529 (issued July 5, 2006).

5

Docket No. 08-445 (issued August 4, 2008); Docket No. 09-599 (issued June 3, 2010).

6

Under this regulation, the “employer is responsible for submitting to [the Office] all relevant and probative
factual and medical evidence in its possession, or which it may acquire through investigation or other means.”
20 C.F.R. § 10.118(a).

2

show that he sustained a work-related physical injury on July 5, 2001 and therefore the employer
erred by insisting that he did not sustain such an injury.
In a June 24, 2010 decision, the Office denied appellant’s request for further review of
the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file his or his application for review within one year of the date of that decision.7
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted the Office under section 8128(a) of the Act.8
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
establishes “clear evidence of error.”9 Office regulations and procedure provide that the Office
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.10
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.11 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.12 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.13 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.14 This entails a limited review by the Office of how the

7

20 C.F.R. § 10.607(a).

8

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

9

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

10

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). Office procedure further provides, “The term ‛clear evidence of error’ is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the [Office] made an
error (for example, proof that a schedule award was miscalculated).”
11

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

12

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

13

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

14

See Leona N. Travis, supra note 12.

3

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 the Office.15
ANALYSIS
In its June 24, 2010 decision, the Office properly determined that appellant filed an
untimely request for reconsideration. Appellant’s reconsideration request was filed on June 8,
2010, more than one year after the Board’s July 6, 2004 merit decision.16 Therefore he must
demonstrate clear evidence of error on the part of the Office in issuing its prior decisions.
The Board finds that appellant has not demonstrated clear evidence of error on the part of
the Office in issuing its prior decisions concerning his emotional condition claim. Appellant did
not submit the type of positive, precise and explicit evidence which manifests on its face that the
Office committed an error.
In his June 12, 2008 statement, appellant argued that the evidence of record showed that
he was harassed by his supervisors, including Ms. Manies and Mr. Gant. He repeated a number
of his previous claims that certain incidents involving Ms. Manies and Mr. Grant constituted
harassment or administrative error. For example, appellant again claimed that Ms. Manies
threatened and embarrassed him in front of coworkers during a July 5, 2001 meeting and that
Mr. Gant improperly showed his medical records to coworkers and lied on a claim form for a
July 5, 2001 injury by indicating that he was not sure whether he sustained an employment injury
on that date.
Appellant’s emotional condition claim was denied on the basis that he did not submit
sufficient factual evidence to establish that he sustained a compensable employment factor. The
argument alone advanced by him, would not tend to support his claim that he has established a
compensable employment factor. Appellant has simply restated the nature of some of his alleged
employment factors and has generally asserted that the evidence of record (including
administrative documents and statements of coworkers) established his claim. These mere
assertions do not establish error in the previous decisions. Further, the Board has already
considered the relevant evidence of record and determined that it does not show the existence of
any employment factors alleged to have caused an emotional condition. Appellant claimed that
his employer did not submit all relevant evidence in its possession pursuant to the Office
regulations at 20 C.F.R. § 10.118(a).17 However, appellant did not establish that the employer
failed to submit specific documents, per the requirements of 20 C.F.R. § 10.118(a), that would
have established his claim for a work-related emotional condition.
15

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

16

According to Office procedure, the one-year period for requesting reconsideration begins on the date of the
original Office decision, but the right to reconsideration within one year also accompanies any subsequent merit
decision on the issues, including any merit decision by the Board. Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.3b (January 2004).
17

Under this regulation, the “employer is responsible for submitting to [the Office] all relevant and probative
factual and medical evidence in its possession, or which it may acquire through investigation or other means.” 20
C.F.R. § 10.118(a).

4

For these reasons, the evidence submitted by appellant does not raise a substantial
question concerning the correctness of the Office’s prior decisions. The Office properly
determined that appellant did not establish clear evidence of error in those decisions.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5