United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, RICHMOND
CARRIER ANNEX, Richmond, KY, Employer
__________________________________________

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

Docket No. 20-1182
Issued: February 2, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 12, 2020 appellant filed a timely appeal from an April 23, 2020 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
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the April 23, 2020 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On July 17, 2019 appellant, then a 67-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that, as a result of his postmaster addressing him about his work
performance, he suffered occupational stress due to factors of his employment. He reported that
he was in the postmaster’s office and had a panic attack. Appellant noted that he first became
aware of his condition and realized its relation to his federal employment on May 28, 2019. He
stopped work on May 25, 2019.
In a June 15, 2019 statement, appellant described that on May 25, 2019 Postmaster M.B.
informed him that he had 19 parcels that day and that the county advertisers were not counted as
parcels. He reported that when he told Postmaster M.B. that was how they were counted during
their route inspection, Postmaster M.B. instructed him to “go to the office” with R.W., a union
steward. Appellant related that Postmaster M.B. looked up numbers from the September 2018
route inspection and questioned him about why he went over his allotted time for his route earlier
in the week. He reported that Postmaster M.B. then asked R.W. to inform appellant that he could
be fired for what he posted on social media. Appellant described how he continued to question
Postmaster M.B. about who informed him about the post and other allegations against him. He
noted that he laid his head in his hands and felt his heart racing. Appellant indicated that R.W.
brought him water and a cold towel to place on his face and neck. He reported that they called his
wife, who took him home. Appellant related that he became calmer, until Monday evening when
he began to think about returning to work on Tuesday and got upset again. He noted that he made
an appointment with a doctor on May 28, 2019 and was prescribed anxiety medication. Appellant
explained that he attended a follow-up appointment on June 12, 2019 and his blood pressure was
still high. He indicated that he was prescribed medication to help him sleep and control his blood
pressure, and that he had never had these medications prescribed before.
Appellant submitted a June 10, 2019 statement from R.W. He related that on May 25, 2019
he was asked to go to Postmaster M.B.’s office to have a talk with appellant. R.W. indicated that
Postmaster M.B. asked appellant about how long it took him to complete his route on specific
dates and also informed appellant that he was going to conduct an office count on his route and
another route next week. He noted that appellant asked Postmaster M.B. why he had a vendetta
against appellant and Postmaster M.B. denied having a vendetta against appellant. R.W. reported
that Postmaster M.B. informed appellant that he could be fired for posting about management on
social media. He noted that appellant and Postmaster M.B. went back and forth about the social
media post. R.W. indicated that appellant asked Postmaster M.B. if he was going to count the
bundles of county advertisers as parcels like they did during the inspection route in
September 2018. He related that Postmaster M.B. initially said “No,” and then said that he would
count them. R.W. noted that appellant also asked about why he was issued a letter of warning for
his attendance instead of a job discussion. He reported that he noticed a change in appellant’s
breathing followed by shaking in his hands and arms. Postmaster M.B. asked appellant if he was
okay, and appellant asked him to call his wife in order to have her pick him up.
In a June 12, 2019 witness statement, B.K. related that on January 28, 2019 he heard
Postmaster M.B. “angrily engaging” appellant on the workroom floor regarding his sick leave
usage. He also explained that on or around May 25, 2019 he heard Postmaster M.B. “angrily
engaging” appellant on the workroom floor because the Postmaster refused to count the county

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advertisers as parcels. B.W. reported that when appellant reminded Postmaster M.B. that this was
not the way they were counted, Postmaster M.B. yelled at appellant to “go to the office.”
OWCP received another witness statement dated June 12, 2019 by J.W. that was identical
to B.K.’s statement.
Appellant submitted letters dated June 12 through July 17, 2019 and a healthcare
certification form dated June 10, 2019 from Dr. Arthur G. Yin, a Board-certified internist. He
indicated that appellant was seen in his office on May 28, June 12 and 28, and July 17, 2019 for
high blood pressure and an anxiety attack on May 28, 2019. Dr. Yin requested that appellant be
excused from work until August 14, 2019.
In a development letter dated July 22, 2019, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the type of medical and factual
evidence necessary to support his claim and provided a questionnaire for his completion. OWCP
afforded appellant 30 days to submit the requested information. A similar letter of even date
requested additional information from the employing establishment. Both parties were allotted 30
days to respond.
Appellant submitted after visit summary reports and letters by Dr. Yin dated May 28
through August 13, 2019. The reports indicated that appellant was evaluated for an anxiety
problem and high blood pressure.
In an August 8, 2019 report, Carrie Koontz, a licensed clinical social worker (LCSW) and
licensed clinical alcohol and drug counselor (LCAD), indicated that appellant was evaluated for
feelings of depression and anxiety. She noted that appellant felt that his job was being threatened.
Ms. Koontz provided examination findings and noted a problem list of anxiety, depression,
employment, sleep, stress, and worry.
In an August 14, 2019 letter, Ms. Koontz indicated that she had evaluated appellant for
counseling services due to recent anxiety and panic that he experienced as a result of increased
work stress. She reported that appellant was also under the care of Dr. Yin for medication
management to assist in managing his symptoms of high blood pressure, increased heart rate, and
heart palpitations. Ms. Koontz noted that appellant was diagnosed with adjustment disorder with
mixed anxiety and depression.
On September 10, 2019 OWCP received a statement from Postmaster M.B.
Postmaster M.B. indicated that on May 25, 2019 he questioned appellant about his work
performance on May 22, 2019. He explained that he reviewed appellant’s time on his route and
mail volumes from September 2018 when a formal inspection was done and noted that it took
appellant longer to complete his route on May 22, 2019, even though he had less mail than in
September 2018 with a route inspector. Postmaster M.B. indicated that appellant could not explain
his work performance, except that he had parcels. He asserted that all actions taken were in
compliance with the collective bargaining agreement and did not violate any of appellant’s
contractual routes. Postmaster M.B. argued that appellant’s claims of disparate treatment and/or
violation of his rights had no merit.

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By a September 20, 2019 decision, OWCP denied appellant’s claim. It found that the
evidence of record was insufficient to establish that he sustained an anxiety attack at work as he
alleged. OWCP concluded, therefore, that the requirements had not been met to establish an injury
as defined by FECA.
On January 24, 2020 appellant requested reconsideration and submitted additional medical
evidence. He explained that Dr. Yin had diagnosed him with an anxiety attack and high blood
pressure as a result of the May 25, 2019 traumatic event at work. Appellant alleged that he was
still suffering from anxiety when he attempted to return to work on July 16, 2019 and R.W. asked
him to sign documents at work. He noted that he signed the documents under stress and was
unable to complete his route due to increased anxiety and blood pressure. Appellant asserted that
R.W. should not have completed a Form CA-2 on his behalf, but that she should have completed
a Form CA-1 for a traumatic emotional experience that occurred on May 25, 2019.
Appellant submitted a letter and after visit summary report dated September 18, 2019 by
Dr. Yin who indicated that appellant was seen in his clinic on that date and should remain out of
work until October 30, 2019.
In a September 12, 2019 letter, Ms. Koontz informed OWCP that appellant was going
through a medication change and should remain off work until October 5, 2019.
In an October 18, 2019 letter, Ms. Koontz indicated that she had treated appellant since
August 2019 for ongoing anxiety related to a work-related event that occurred on May 25, 2019.
She reported that appellant had his first anxiety attack after Postmaster M.B. threatened to fire him.
Ms. Koontz advised that appellant should continue with his prescribed medication and continue
with counseling.
In an October 30, 2019 letter, Dr. Yin explained that appellant had been under his care
since May 28, 2019 due to a traumatic experience that happened on May 25, 2019, while he was
at work. He reported that appellant’s postmaster had threatened to fire him over a post on social
media. Dr. Yin noted that appellant had informed him that, after being threatened, his heart began
to race and began sweating. He reported that he had treated appellant for several years and had
never treated him for an anxiety attack, depression, or high blood pressure. Dr. Yin indicated that,
since May 28, 2019, he had prescribed medication to appellant for all three of these conditions.
In a January 2, 2020 letter, Dr. Saeed Hamid, a Board-certified psychiatrist and neurologist,
indicated that he had examined appellant on December 5 and 19, 2019. He opined that appellant’s
symptoms were attributable to a traumatic experience at his workplace on May 25, 2019.
Dr. Hamid noted that appellant had been diagnosed with anxiety disorder and major depressive
disorder. He reported that appellant had also developed insomnia and difficulty staying focused
since the May 25, 2019 traumatic experience.
In a January 14, 2020 letter, Ms. Koontz indicated that appellant had received regular
counseling sessions since August 2019 and had been approved for another six counseling sessions
related to the traumatic event experienced on May 25, 2019.
By decision dated April 23, 2020, OWCP modified the September 20, 2019 decision. It
accepted the implicated employment factors had occurred as alleged, but denied appellant’s
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emotional condition claim, finding that the evidence of record was insufficient to establish that the
employment factors were compensable. OWCP concluded that appellant had not established an
emotional condition in the performance of duty.
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 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
To establish an emotional condition in the performance of duty, appellant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.7 There are situations where an injury or illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage under FECA. Where the disability results from an employee’s emotional reaction to his
or her regular or specially assigned work duties or a requirement imposed by the employment, the
disability is deemed compensable.8 However, disability is not compensable when it results from
factors such as an employee’s fear of reduction-in-force, or his or her frustration from not being
permitted to work in a particular environment, or to hold a particular position.9
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular

3

Supra note 1.

4

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
See S.K., Docket No. 18-1648 (issued March 14, 2019); G.R., Docket No. 18-893 (issued November 21, 2018);
George H. Clark, 56 ECAB 162 (2004); Kathleen D. Walker, 42 ECAB 603 (1991).
7

L.Y., Docket No. 18-1619 (issued April 12, 2019); L.D., 58 ECAB 344 (2007).

8

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, 28 ECAB 125, 129 (1976).
9

William E. Seare, 47 ECAB 663 (1996); Lillian Cutler, id.

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or specially assigned work duties of the employee and are not covered under FECA.10 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.11 A claimant must support his or her allegations with probative
and reliable evidence. Personal perceptions and feelings alone are insufficient to establish an
employment-related emotional condition.12
Harassment and discrimination by supervisors and coworkers, if established as occurring
and arising from the performance of work duties, can constitute a compensable employment
factor.13 A claimant, however, must substantiate allegations of harassment and discrimination with
probative and reliable evidence.14 Additionally, verbal altercations and difficult relationships with
supervisors, when sufficiently detailed by the claimant and supported by the record, may constitute
factors of employment. This does not imply, however, that every statement uttered in the
workplace will give rise to coverage under FECA.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an emotional
condition in the performance of duty, as alleged.
Appellant has attributed his emotional condition to an incident that occurred with
Postmaster M.B. on May 25, 2019. He indicated that he got into a disagreement with
Postmaster M.B. about how to count county advertisers as parcels and was instructed to go to
Postmaster M.B.’s office with R.W., a union steward. Appellant related that Postmaster M.B.
questioned him about why he went over his allotted time for his route earlier in the week. He
indicated that Postmaster M.B. also informed him that he could be fired for what he posted on
social media. Appellant asserted that his heart began to race and he began to shake. He alleged
that he had experienced anxiety, difficulty sleeping, and high blood pressure since the incident.
The Board finds that appellant’s meeting with Postmaster M.B. on May 25, 2019 regarding
his work performance and his post on social media relate to administrative functions or personnel
matters of the employer and not the regular or specially assigned work duties of the employee.16
10

C.V., Docket No. 18-0580 (issued September 17, 2018); Andrew J. Sheppard, 53 ECAB 170, 171 (2001);
Matilda R. Wyatt, 52 ECAB 421 (2001).
11

C.V., id.; Kim Nguyen, 53 ECAB 127 (2001); William H. Fortner, 49 ECAB 324 (1998). See Thomas D. McEuen,
41 ECAB 387 (1990), reaff’d on recon, 42 ECAB 566 (1991).
12

M.R., Docket No. 18-0305 (issued October 18, 2018); Roger Williams, 52 ECAB 468 (2001).

13
C.B., Docket No. 19-1351 (issued March 25, 2020); E.K., Docket No. 17-0246 (issued April 23, 2018); T.G., 58
ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006).
14

D.W., Docket No. 19-0449 (issued September 24, 2019); C.W., 58 ECAB 137 (2006).

15

Y.B., Docket No. 16-0193 (issued July 23, 2018); Marguerite J. Toland, 52 ECAB 294 (2001).

16
F.W., Docket No. 19-0107 (issued June 10, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
Beverly R. Jones, 55 ECAB 411, 416 (2004).

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For an administrative or personnel matter to be considered a compensable factor of employment,
the evidence must establish error or abuse on the part of the employer.17 The Board finds that
appellant did not submit sufficient evidence to establish that Postmaster M.B. acted unreasonably
or engaged in error or abuse with respect to administrative/personnel matters.18 Appellant
submitted a June 10, 2019 statement from R.W. who confirmed that he met with appellant and
Postmaster M.B. in his office on May 25, 2019. He did not give any indication that
Postmaster M.B. acted erroneously. Additionally, while witness statements from B.K. and J.W.
provide some support that Postmaster M.B. yelled at appellant, they fail to describe an incident
that would demonstrate that Postmaster M.B. acted erroneously.19 The Board has held that mere
dislike or disagreement with certain supervisory actions will not be compensable absent error or
abuse on the part of the supervisor.20 As appellant has not established error or abuse on the part
of Postmaster M.B.’s actions, he has not established a compensable factor of employment.
As the Board finds that appellant has not established a compensable employment factor, it
is not necessary to consider the medical evidence of record.21
On appeal appellant alleges that Postmaster M.B. threatened to fire him. As explained
above, the evidence of record is insufficient to support that Postmaster M.B.’s actions constituted
error or abuse.
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 his burden of proof to establish an emotional
condition in the performance of duty, as alleged.

17

See D.W., supra note 14; Judy Kahn, 53 ECAB 321 (2002).

18

See R.B., Docket No. 19-1256 (issued July 28, 2020); D.J., Docket No. 16-1540 (issued August 21, 2018).

19

See S.K., Docket No. 18-0705 (issued July 29, 2020).

20
F.W., Docket No. 19-0107 (issued June 10, 2020); B.S., Docket No. 19-0378 (issued July 10, 2019); T.C., Docket
No. 16-0755 (issued December 13, 2016).
21

See R.B., Docket No. 19-0434 (issued November 22, 2019); B.O., Docket No. 17-1986 (finding that it is not
necessary to consider the medical evidence of record if a claimant has not established any compensable employment
factors). See also Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the April 23, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 2, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
DEPARTMENT OF DEFENSE, BANGOR
COMMISSARY STORE, Silverdale, WA,
Employer
__________________________________________

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

Docket No. 06-1976
Issued: March 7, 2007

Case Submitted on the Record

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

JURISDICTION
On August 23, 2006 appellant filed a timely appeal of the June 15, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs denying reconsideration. The most
recent decision in the case is dated May 6, 2005. Because appellant filed her appeal more than a
year after the last merit decision, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board does
not have jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly denied further merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 5, 1997 appellant, then a 40-year-old produce clerk, filed an occupational
disease claim, Form CA-2, for “chronic wear and tear,” bone spurs and calcium deposits on her

spine.1 She alleged that this condition was caused by continual lifting and shelving of cases of
produce weighing from 10 to 50 pounds.
By decision dated September 1, 1998, the Office denied appellant’s claim on the grounds
that she had not established that she sustained an injury in the performance of duty. It accepted
that she repetitively lifted up to 50 pounds and extensively used her arms to arrange produce
displays. The Office found that appellant had submitted no evidence of a diagnosis. However, it
also found that she had not submitted medical opinion evidence explaining how any diagnosed
condition was caused by the accepted work factors.
On September 8, 1998 appellant requested an oral hearing and submitted medical reports
related to both her shoulder and her back conditions. In a decision dated July 14, 1999, the
Office hearing representative affirmed the September 1, 1998 decision. She found that the
medical evidence did not establish that the accepted work factors caused the diagnosed medical
conditions.
On May 22, 2000 appellant filed a request for reconsideration of the Office hearing
representative’s decision. She enclosed magnetic resonance imaging (MRI) scan reports for her
thoracic and cervical spine and the report of Dr. Lynn Staker2 dated July 28, 1999. The MRI
scan revealed evidence of degenerative disc disease at the C5-6 and C6-7 levels and probable
central canal stenosis at the T5-6 level caused by spondylosis. Dr. Staker stated that she believed
appellant’s cervical, scapular, anterior chest and lower back pain were related to the repetitive
lifting required by her federal employment. She indicated that appellant’s degenerative disc
disease was aggravated by her employment. Appellant contended that Board precedent related to
compensation for aggravation of underlying conditions imposed a duty on the Office to help
develop the medical evidence required to prove a claim.
By decision dated March 9, 2004, the Office denied modification of the July 14, 1999
decision. It found that Dr. Staker’s medical report did not provide adequate rationale in support
of the physician’s opinion on causal relation. Dr. Staker did not list specific employment factors
that led to the aggravation of appellant’s degenerative disc disease and did not provide objective
findings demonstrating a material change in the underlying disease.
On February 23, 2005 appellant again requested reconsideration. She argued that her
spine condition was caused by or related to her shoulder injury and that all of the evidence from
her shoulder injury file should have been considered in her claim. Appellant enclosed several
reports from physicians involved in her shoulder injury claim. She also contended that the
actions of the employing establishment, which formed the basis for her Equal Employment
Opportunity (EEO) claim, aggravated her conditions by creating stress and keeping her from
working within her restrictions. Appellant provided evidence related to her EEO claim.

1

The Board notes that this claim was initially filed under appellant’s accepted shoulder injury claim, OWCP File
No. 14032587.
2

Dr. Staker’s specialty and Board-certification status could not be ascertained.

2

By decision dated May 6, 2005, the Office denied modification of its March 9, 2004
decision. Although appellant submitted new medical evidence demonstrating degenerative disc
disease of her upper spine and sacroiliitis of her lower spine, it did not establish that these
conditions were caused by the accepted employment factors. While her physicians reported
increased pain associated with employment duties the increase in pain or discomfort did not
constitute a specific diagnosis. The Office also found that claims of stress induced by appellant’s
working conditions could not be considered as part of her spinal claim.
On May 5, 2006 appellant filed a request for reconsideration. She argued that an
employee’s disability was compensable even when federal employment was only one of several
causes contributing to it. Appellant attached medical records from Dr. Julie Carkin, a Boardcertified internist with a specialty in rheumatology, who treated her in 2001 and 2002.
Dr. Carkin noted that appellant did not have musculoskeletal problems prior to her federal
employment, which required a substantial amount of heavy lifting. She diagnosed possible
spondyloarthropathy with thoracic involvement. Dr. Carkin indicated that some of appellant’s
spine pain was likely a combination of inflammatory pain, fibromyalgia-like myofascial pain and
mechanical pain and that it was worsened by severe vicious cycle and secondary depression.
By decision dated June 15, 2006, the Office denied further merit review, finding that the
medical evidence that appellant had submitted was not relevant or material to the issues of
whether she had a diagnosed condition causally related to the accepted employment factors.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act, the Office has the
discretion to reopen a case for review on the merits.3 Section 10.606(b)(2) of Title 20 of the
Code of Federal Regulations provides that an application for reconsideration, including all
supporting documents, must set forth arguments and contain evidence that: (i) shows that the
Office erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal
argument not previously considered by the Office; or (iii) constitutes relevant and pertinent new
evidence not previously considered by the Office.4 Section 10.608(b) provides that, when an
application for reconsideration does not meet at least one 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
ANALYSIS
The Office denied appellant’s claim on the basis that she did not submit sufficient
medical evidence to establish that her spine condition was caused by lifting in her federal
employment. Therefore, the underlying issue in the case is medical in nature.

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

20 C.F.R. § 10.608(b).

3

Appellant’s May 5, 2006 request for reconsideration alleged that the Office had not
considered the legal argument that compensation is payable under the Act when employment
factors contribute to an employee’s condition, even in a minor way. Her contention that the
Office should have assisted in the development of the claim is not relevant to the basis on which
the claim was denied. As the Office has not yet found that employment factors contributed in
any way to appellant’s diagnosed conditions, this legal contention does not require the Office to
conduct a merit review under the second part of section 10.606(b)(2).6
Appellant also submitted new medical evidence from Dr. Carkin who stated that
appellant had a history of heavy lifting at work and that she had possible spondyloarthropathy.
However, Dr. Carkin did not address the underlying issue of causal relationship between the
spondyloarthropathy and any accepted employment factors. Thus, the evidence is not relevant or
pertinent to the underlying issue of whether appellant established an injury in the performance of
duty causally related to factors of her federal employment. Therefore, she was not entitled to
review under the third section of 10.606(b)(2).7
The Board notes that appellant’s May 5, 2006 request for reconsideration did not allege
that the Office erroneously applied or interpreted a specific point of law. She is not entitled to
further review on the merits of her case under the first part of section 10.606(b)(2).8
As appellant did not meet any of the statutory requirements for a review of the merits of
her claim, the Office properly denied the May 5, 2006 request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied further merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b)(2)(ii).

7

20 C.F.R. § 10.606(b)(2)(iii).

8

20 C.F.R. § 10.606(b)(2)(i).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation dated June 15, 2006 is affirmed.
Issued: March 7, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dodge City, KS, Employer
__________________________________________

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

Docket No. 13-317
Issued: June 18, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 3, 2012 appellant, through his attorney, filed a timely appeal of a
November 1, 2012 Office of Workers’ Compensation Programs’ (OWCP) merit decision
denying his occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that his 2011
cervical condition and resulting surgery were causally related to factors of his federal
employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 10, 2006 appellant, then a 56-year-old letter carrier, filed an occupational
disease claim alleging that he developed neck and right shoulder conditions from carrying his
mailbag in the performance of duty. He stated that he had developed spinal stenosis and right
rotator cuff tear.
Based on the November 6, 2006 report from Dr. Alexander Neel, a Board-certified
orthopedic surgeon, OWCP accepted appellant’s claim for sprain of the right shoulder and
rotator cuff as well as cervical spondylosis with myelopathy on December 11, 2006. Appellant
returned to regular work duties on January 7, 2008. He underwent an additional cervical
magnetic resonance imaging (MRI) scan on April 11, 2008 which demonstrated advance
spondylosis changes of the cervical spine.
On March 16, 2011 a cervical MRI scan demonstrated progression of moderate-to-severe
cervical spondylosis with multilevel central and neural foraminal stenosis. In a note dated
April 14, 2011, Dr. Nazih Mourfarrij, a Board-certified neurosurgeon, recommended a threelevel anterior cervical discectomy and fusion. He stated, “There is confusion as to whether his
case is workers’ compensation or not.” Dr. Mourfarrij diagnosed symptomatic degenerative disc
disease with deformation and compression of the spinal cord as well as headache and axial neck
pain due to degenerative disc disease.
OWCP requested additional information from appellant regarding his requested spine
surgery on April 19, 2011 and allowed 30 days for a response. On March 15, 2011 appellant
sought medical treatment due to incoordination and feeling light-headed. Dr. Ulices Perez-Feliz,
an internist, diagnosed spinal stenosis.
OWCP’s medical adviser reviewed the record on May 17, 2011 and opined that spinal
surgery was not established as medically appropriate. He reviewed Dr. Perez-Feliz’s note and
found no symptoms that were suggestive of a cervical spine myelopathy or radiculopathy. The
medical adviser reviewed Dr. Mourfarrij’s April 14, 2011 note and opined that there was
insufficient discussion of findings relevant to appellant’s cervical spine. He stated that
Dr. Mourfarrij did not include Spurling’s test, reverse Spurling’s test or other important tests in
cervical spinal cord or nerve root disease.
By decision dated June 17, 2011, OWCP denied appellant’s request for cervical spine
surgery and recurrence of disability. It found that he had not submitted sufficient medical
opinion evidence to establish that his current condition and requested surgery were causally
related to his accepted employment injuries.
Dr. Mourfarrij performed an anterior cervical discectomy and fusion at C4-5, C5-6 and
C6-7 on April 22, 2011.
Appellant requested a review of the written record by an OWCP hearing representative
on June 30, 2011. He testified at the oral hearing on October 11, 2011. Following the oral
hearing, Dr. Mourfarrij submitted a note dated September 20, 2011 stating, “In my expert
opinion, I believe that carrying mail for 28 years [h]as contributed to aggravating a preexisting

2

degenerative disc disease of the cervical spine. This led to severe symptoms, as well as MRI
[scan] findings, that necessitated a three-level anterior cervical discectomy and fusion.”
In a decision dated December 15, 2011, OWCP’s hearing representative found that
appellant had not met his burden of proof in establishing that his 2011 cervical condition and
surgery was causally related to his employment. He found that there was no rationalized medical
opinion evidence supporting appellant’s claim.
Counsel requested reconsideration on June 21, 2012 and submitted a report from Dr. Neel
dated May 9, 2012. Dr. Neel noted appellant’s work requirement of carrying a mailbag and
stated that wearing a loaded unilateral mail carrying bag caused the mail carrier to lift to one side
with a compensatory deviation of the neck away from the side on which the bag is worn. He
stated, “I believe that this constant strain of the muscles and carrying the neck in a laterally tilted
fashion could certainly lead to accelerated cervical arthritis and arthrosis which in turn can
certainly lead to foraminal encroachment and central stenosis.” Dr. Neel also noted that
appellant had no recreational activities which would contribute to these conditions or major neck
injuries.
By decision dated November 1, 2012, OWCP reviewed the merits of appellant’s claim
and denied modification of its prior decision.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability or aid in lessening the amount of the monthly
compensation.2 While OWCP is obligated to pay for treatment of employment-related
conditions, the employee has the burden of establishing that the expenditure is incurred for
treatment of the effects of an employment-related injury or condition.3
In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under section 8103, with the only limitation on
OWCP’s authority being that of reasonableness.4 Abuse of discretion is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or actions taken
which are contrary to both logic and probable deductions from established facts. It is not enough
to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.5 To be entitled to reimbursement of medical expenses, a claimant has the burden of
establishing that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include
2

5 U.S.C. § 8103; J.H., Docket No. 12-1950 (issued February 13, 2013).

3

Kenneth O. Collins, Jr., 55 ECAB 648 (2004).

4

See D.K., 59 ECAB 141 (2007).

5

Minnie B. Lewis, 53 ECAB 606 (2002).

3

supporting rationalized medical evidence.6 In order for a surgical procedure to be authorized, a
claimant must submit evidence to show that the surgery is for a condition causally related to an
employment injury and that it is medically warranted. Both of these criteria must be met in order
for OWCP to authorize payment.7
ANALYSIS
In order for a surgical procedure to be authorized, a claimant must submit evidence to
show that the surgery is for a condition causally related to an employment injury and that it is
medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment. The accepted conditions in this case are right shoulder strain rotator cuff and cervical
spondylosis with myelopathy in 2006. Prior to his request for cervical fusion surgery in 2011,
appellant last received medical treatment in 2008 for his cervical spine.
Dr. Perez-Feliz examined appellant on March 15, 2011 due to incoordination and
appellant’s feeling light-headed. He diagnosed spinal stenosis. Appellant underwent an MRI
scan in conjunction with this examination which demonstrated progression of moderate-to-severe
cervical spondylosis with multilevel central and neural foraminal stenosis.
Appellant’s attending physicians, Drs. Neel and Mourfarrij have offered opinions that
appellant’s current cervical condition was due to his employment duties and required cervical
fusion. Dr. Neel explained how carrying a mailbag could result in accelerated cervical arthritis
and arthrosis which in turn can certainly lead to foraminal encroachment and central stenosis.
Dr. Mourfarrij examined appellant and recommended a three-level anterior cervical discectomy
and fusion due to symptomatic cervical degenerative disc disease with deformation and
compression of the spinal cord as well as headache and axial neck pain due to degenerative disc
disease. He opined that carrying mail aggravated appellant’s preexisting degenerative disc
disease of the cervical spine necessitating the three-level anterior cervical discectomy and fusion.
OWCP’s medical adviser found on May 17, 2011 that spinal surgery was not established
as medically appropriate. He found that Dr. Perez-Feliz reported no symptoms that were
suggestive of a cervical spine myelopathy or radiculopathy. In regard to Dr. Mourfarrij’s notes,
the medical adviser opined that there was insufficient discussion of findings relevant to
appellant’s cervical spine. He stated that Dr. Mourfarrij did not include Spurling’s test, reverse
Spurling’s test or other important tests in cervical spinal cord or nerve root disease.
The Board finds that OWCP abused its discretion and that this case is not in posture for
decision. The Board finds that, as appellant has requested authorization for an elective spinal
surgery, has submitted medical opinion evidence opining that the surgery was causally related to
his accepted employment injury and as the medical adviser’s opinion was negative. The claims
examiner should refer the file for a second opinion evaluation.8 On remand, OWCP should
6

M.B., 58 ECAB 588 (2007).

7

R.C., 58 ECAB 238 (2006).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.10.c and d(1)(3) (September 2010).

4

request a second opinion report which contains a clinical history, results of a physical
examination, results of any diagnostic tests performed and a reasoned opinion regarding the
appropriateness of the proposed surgery and its relationship to the accepted work condition based
on the statement of accepted facts.9 Following this referral and any necessary further
development, OWCP shall issue a de novo decision on this issue.
CONCLUSION
The Board finds that the case is not in posture for decision as it requires additional
development of the medical opinion evidence.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: June 18, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9

Id. at Chapter 2.819.10d(4).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
San Antonio, TX, Employer
__________________________________________

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Appearances:
1
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 16-1340
Issued: July 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 14, 2016 appellant, through counsel, filed a timely appeal from a May 25, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability on or after May 5, 2005 due to his December 19, 2002 work injury.

1

The Board notes that, after the filing of the present appeal, appellant advised the Clerk of the Appellate Boards
that his counsel would no longer represent him in connection with the present appeal.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 19, 2002 appellant, then a 68-year-old immigration inspector trainee, filed
a traumatic injury claim (Form CA-1) alleging that on December 19, 2002 he sustained injury
when, during a training class at the Federal Law Enforcement Training Center in Glynco, GA, he
was role playing as an assailant fighting two officers.3 He indicated that the two officers grabbed
his arms, twisted them, and forced him down on a mat, where he landed on his left shoulder and
chest.4
On December 21, 2002 appellant was unable to support his right arm with his left arm
during firearms qualification testing required to work as an immigration inspector. He did not
qualify and was terminated from his position with the employing establishment effective
December 26, 2002.
In July 2003 OWCP accepted appellant’s claim for other affections of the left shoulder
region, not elsewhere classified, impingement syndrome of the left shoulder, and left rotator cuff
tear.5 Appellant received continuation of pay from December 26, 2002 to February 9, 2003 and
received wage-loss compensation on the daily roll beginning February 10, 2003.
On August 26, 2003 appellant underwent left shoulder arthroscopy with limited joint
debridement and open rotator cuff repair. The procedure was authorized by OWCP.
On April 4, 2004 appellant returned to full-time work with the employing establishment’s
Citizenship and Immigration Service as a center adjudication officer.6 He stopped work on
May 5, 2005 at the expiration of his one-year term appointment, which the employing
establishment did not extend or renew.7
On July 5, 2005 appellant filed a recurrence claim (Form CA-2a) alleging that on May 5,
2005 he sustained a recurrence of disability due to his December 19, 2002 work injury. He
claimed that his work stoppage on May 5, 2005 was necessitated by residuals of his
December 19, 2002 work injury. Appellant indicated that on May 16, 2005, while on vacation,
he felt a terrible pain in his right shoulder. He reportedly had been knocked over by a wave
while swimming, and when he reached behind to catch himself he experienced right shoulder
3

Appellant was employed as an immigration inspector with a one-year probationary period beginning
October 6, 2002.
4

Appellant did not stop work on December 19, 2002.

5

Appellant’s preexisting conditions include left acromioclavicular joint arthritis and military service-related
bilateral knee degenerative joint disease.
6

Appellant stopped receiving disability compensation on the daily rolls effective April 4, 2004.

7

On June 28, 2004 appellant filed a claim for compensation (Form CA-7) for a schedule award due to his
December 19, 2002 work injury. On December 9, 2004 OWCP granted him a schedule award for two percent
permanent impairment of his left upper extremity. On March 6, 2009 appellant received a schedule award for an
additional 11 percent permanent impairment of his left upper extremity and, on August 1, 2011, he received a
schedule award for 12 percent permanent impairment of his right upper extremity.

2

pain. Appellant expressed his belief that May 16, 2005 incident demonstrated that on
December 19, 2002 he not only tore his left rotator cuff, but also suffered a partial tear in his
right rotator cuff that later became a complete tear.8
On June 3, 2005 appellant underwent a magnetic resonance imaging (MRI) scan of his
right shoulder which showed a complete tear of the rotator cuff tendon and moderate-to-marked
impingement secondary to degenerative changes in the right acromioclavicular joint.
On July 15, 2005 appellant underwent a right shoulder arthroscopy with debridement,
subacromial decompression, and mini-open rotator cuff repair. The surgery was not authorized
by OWCP.
Appellant submitted an attending physician’s report (Form CA-20), completed on
July 18, 2005, in which Dr. Thomas Rivers, an attending Board-certified orthopedic surgeon,
noted under history of injury, “[Right] shoulder injury on May 16, 2005. Falling backwards and
tried to break fall -- rotator cuff tear.” With regard to causal relationship to the December 19,
2002 work injury, he checked a box marked “Yes” and indicated, “Possibly due to length of time
difficult to determine appears to be old injury (tear)….” Dr. Rivers noted that the period of total
disability was from July 15 to August 26, 2005.
In an August 28, 2005 letter to OWCP, appellant again contended that he also sustained
injury to his right shoulder during the December 19, 2002 training exercise.
On September 11, 2007 appellant appeared for an examination by Dr. John W. Ellis, an
attending Board-certified occupational medicine physician. Dr. Ellis noted that appellant
reported that he was having no difficulty with his right shoulder when he injured his left shoulder
on December 19, 2002, and that, as he favored his left shoulder, he began to notice some
symptoms in his right shoulder. He discussed appellant’s data entry job and noted that he was
unable to continue working after May 5, 2005 because of his left shoulder condition. Dr. Ellis
noted that on May 16, 2005 appellant was “sitting down on the beach and he simply put his arms
behind him, put his hands down in the sand and he had a sudden severe pain in his right
shoulder.” He diagnosed internal derangement and rotator cuff tear of the left shoulder and left
brachial and axillary plexus impingement. Dr. Ellis indicated that appellant’s December 19,
2002 work injury caused him to be totally disabled since May 5, 2005.
On July 7, 2009 OWCP expanded the accepted conditions related to the December 19,
2002 work injury to include other affections of right shoulder region, not elsewhere classified.9
In a decision dated August 1, 2011, OWCP denied appellant’s recurrence claim
beginning May 5, 2005 due to his December 19, 2002 work injury. It indicated that the medical
8

On June 30, 2005 appellant filed a claim for compensation (Form CA-7) alleging disability from “May 5, 2005
[to the] present” due to his December 19, 2002 work injury. On April 5, 2011 he filed a Form CA-7 alleging workrelated disability continuing after June 30, 2005.
9

In a July 7, 2009 letter, OWCP advised appellant, without explanation, that his “recurrence has been accepted by
this office.” It produced a similar letter dated October 21, 2010. However, it does not appear that appellant received
disability compensation for any additional period for which he had not already been compensated.

3

evidence of record did not support that he had work-related disability for the claimed period.
OWCP noted, “You are not entitled to wage-loss/compensation due to your termination from
civil service.”10
Appellant disagreed with OWCP’s August 1, 2011 decision and requested an oral hearing
with a representative of OWCP’s Branch of Hearings and Review. Prior to the hearing being
held, OWCP’s hearing representative issued a November 7, 2011 decision setting aside OWCP’s
August 1, 2011 decision and remanding the case to OWCP. He indicated that OWCP failed to
adequately explain why appellant had not established work-related recurrence of disability
beginning May 5, 2005. The hearing representative also noted that OWCP had not adequately
explained why it accepted appellant’s claim for the consequential condition of other affections of
right shoulder region, not elsewhere classified. The case was remanded to OWCP for
consideration of these matters and the issuance of a de novo decision regarding appellant’s
recurrence of disability claim.11
By decision dated January 7, 2013, OWCP denied appellant’s claim for a recurrence of
disability beginning May 5, 2005 due to his December 19, 2002 work injury. It found that
appellant failed to submit rationalized medical evidence establishing his claim for recurrence of
disability. OWCP discussed the reports of attending physicians which found disability on and
after May 5, 2005, including those of Dr. Rivers and Dr. Ellis, and found that they did not
contain adequate explanation of their conclusions on work-related disability.
In May 2013, OWCP referred appellant for a second opinion examination with Dr. James
Hood, a Board-certified orthopedic surgeon. It requested that Dr. Hood indicate whether
appellant’s diagnosed conditions were related to the December 19, 2002 work injury either by
direct cause, aggravation, precipitation, or acceleration. OWCP also asked Dr. Hood to provide
an opinion regarding whether appellant sustained work-related disability on or after
May 5, 2005. It provided Dr. Hood a current statement of accepted facts.
In a report dated June 12, 2013, Dr. Hood discussed appellant’s medical history and
reported the findings of the physical examination he conducted on that date. He detailed the
circumstances of appellant’s December 19, 2002 work injury and his claim that he sustained a
recurrence of disability due to that injury on May 5, 2005. Dr. Hood noted that appellant had 5/5
strength in the muscle groups of his upper extremities and provided range of motion findings for
both shoulders. In response to a question regarding whether appellant’s medical condition was
related to the factors described in the statement of accepted facts, Dr. Hood noted, “The
diagnosed condition in the left shoulder would be related to an aggravation of preexisting
degenerative rotator cuff disease of the left shoulder. I find no valid information that would
document a relationship between his employment and the right shoulder.” He also indicated that
“the aggravation to the left shoulder is permanent and will not cease.” Dr. Hood noted that
appellant would have had work restrictions from May 5, 2005 to July 1, 2010, including no
10

It is unclear from the record why there was a delay between appellant’s filing of his disability claim and
OWCP’s issuance of its August 1, 2011 decision.
11

The hearing representative noted that appellant’s termination from the employing establishment was not a valid
reason for denying disability compensation.

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overhead lifting with the left shoulder and no overhead repetitive work, due to his work-related
left shoulder condition.
In a letter dated November 22, 2013, OWCP informed appellant that it proposed to
rescind its acceptance of his claim for right shoulder injury due to his December 19, 2002 work
injury. It advised that it improperly accepted that he had sustained the condition of other
affections of right shoulder region, not elsewhere classified. OWCP provided appellant 30 days
to submit evidence and argument challenging the proposed rescission action.
Appellant submitted a March 3, 2014 medical report detailing the evaluation of his
bilateral shoulder condition and reports of sessions with his attending chiropractor.
In a decision dated January 29, 2015, OWCP rescinded its acceptance of appellant’s
claim for the condition of other affections of right shoulder region, not elsewhere classified. It
explained the justification for its rescission determination by noting that appellant failed to
submit rationalized medical evidence establishing a right shoulder injury due to the
December 19, 2002 work injury, that the June 12, 2013 report of Dr. Hood showed that he had
not sustained such a work-related condition, and that the description of his fall while swimming
during vacation on May 16, 2005 suggested a nonwork-related cause for his right shoulder
injury.12
In letters to OWCP dated January 19, February 25, and April 19, 2016, appellant’s then
counsel argued that the June 12, 2013 opinion of Dr. Hood, OWCP’s referral physician, showed
that appellant sustained a recurrence of disability on or after May 5, 2005 due to his
December 19, 2002 work injury. He requested that OWCP issue a decision on this matter.
By decision dated May 25, 2016, OWCP found that appellant had not met his burden of
proof to establish a recurrence of disability on or after May 5, 2005 due to his December 19,
2002 work injury.13 It found that appellant failed to submit sufficient medical evidence to
establish a material worsening of his December 19, 2002 left shoulder injury such that he had
disability from work on or after May 5, 2005.14 OWCP discussed its January 29, 2015 decision
rescinding its acceptance of appellant’s claim for the condition of other affections of right
shoulder region, not elsewhere classified, and noted that appellant failed to submit medical
evidence establishing that he sustained a right shoulder condition related to his December 19,
2002 work injury.

12

On March 5, 2015 appellant requested authorization from OWCP to change his treating physician and, in an
April 16, 2015 decision, OWCP denied his request. In an August 19, 2015 decision, the Board affirmed OWCP’s
April 16, 2015 decision.
13

The record contains another May 25, 2016 document which contains essentially the same language as OWCP’s
May 25, 2016 decision. This appears to be a variant draft of OWCP’s May 25, 2016 decision.
14

In rendering its decision, OWCP discussed the June 12, 2013 report of Dr. Hood.

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LEGAL PRECEDENT
An individual who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable, and probative
evidence that the disability for which compensation is claimed is causally related to the accepted
injury.15 This burden includes the necessity of 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 supports that conclusion with sound
medical rationale.16 Where no such rationale is present, medical evidence is of diminished
probative value.17
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.18
ANALYSIS
OWCP accepted that during training for an immigration inspector position on
December 19, 2002 appellant sustained a traumatic injury which caused other affections of the
left shoulder region, not elsewhere classified, impingement syndrome of the left shoulder, and
left rotator cuff tear. On December 21, 2002 appellant was unable support his right arm with his
left arm during firearms qualification testing required to work as an immigration inspector. He
did not qualify and was terminated from his position with the employing establishment effective
December 26, 2002. On April 4, 2004 appellant returned to full-time work with the employing
establishment’s Citizenship and Immigration Service as a center adjudication officer. He
stopped work on May 5, 2005 when his one-year term appointment expired and was not
renewed. In July 2009, OWCP expanded the accepted conditions caused by the December 19,
2002 work injury to include other affections of the right shoulder region, not elsewhere
classified.19 In a January 29, 2015 decision, it rescinded its acceptance of this right shoulder
condition. Appellant alleged that he sustained a recurrence of disability beginning May 5, 2005
due to his December 19, 2002 work injury and, in January 7, 2013 and May 25, 2016 decisions,
OWCP denied his recurrence of disability claim due to his failure to submit adequate medical
evidence in support thereof.

15

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988); Dominic M. DeScala, 37 ECAB 369, 372 (1986). Under 20
C.F.R. § 10.5(x), a recurrence of disability is defined, in part, as “an inability to work after an employee has returned
to work, caused by a spontaneous change in a 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.”
16

L.F., Docket No. 15-1069 (issued August 12, 2015); Mary S. Brock, 40 ECAB 461, 471-72 (1989).

17

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

18

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

19

On August 26, 2003 appellant underwent OWCP-authorized left shoulder arthroscopy with limited joint
debridement and open rotator cuff repair.

6

The Board finds the case is not in posture for decision regarding whether appellant met
his burden of proof to establish a recurrence of disability beginning May 5, 2005 due to his
December 19, 2002 work injury.
As noted above, the case is presently accepted for the left shoulder conditions of other
affections of the left shoulder region, not elsewhere classified, impingement syndrome of the left
shoulder, and left rotator cuff tear. In its May 25, 2016 decision denying appellant’s recurrence
of disability claim, OWCP discussed its January 29, 2015 decision rescinding its acceptance of
appellant’s claim for the condition of other affections of the right shoulder region, not elsewhere
classified, and explained that appellant’s right shoulder condition was unrelated to his
December 19, 2002 work injury. Appellant did not request reconsideration of the January 29,
2015 decision or appeal it to the Board. Since the issuance of this decision, appellant has not
submitted any medical evidence showing that he sustained a right shoulder condition related to
his December 19, 2002 work injury.20
The Board notes that OWCP has not provided an informed determination regarding
whether appellant sustained a recurrence of disability beginning May 5, 2005 due to a worsening
of his accepted left shoulder conditions caused by the December 19, 2002 work injury. In
May 2013, OWCP referred appellant for a second opinion examination to Dr. Hood, a Boardcertified orthopedic surgeon. It asked Dr. Hood to indicate whether appellant’s medical
condition was related to the December 19, 2002 work injury and to provide an opinion regarding
whether he sustained work-related disability on or after May 5, 2005. In his June 12, 2013
report, Dr. Hood noted, in response to a question from OWCP as to whether appellant’s medical
condition was related to the December 19, 2002 work injury, that the diagnosed condition in the
left shoulder would be related to an aggravation of preexisting degenerative rotator cuff disease
of the left shoulder. He also indicated that the aggravation to the left shoulder was permanent
and noted that appellant would have had work restrictions from May 5, 2005 to July 1, 2010 due
to his work-related left shoulder condition.
In its May 25, 2016 decision denying appellant’s recurrence of disability claim, OWCP
mentioned Dr. Hood’s work restrictions necessitated by the left shoulder conditions sustained on
December 19, 2002. Nevertheless, it denied appellant’s claim without discussing whether these
work restrictions would have rendered appellant disabled on or after May 5, 2005. The record
does not contain a position description of the duties and physical requirements of the center
adjudication officer position that appellant held. In the absence of this information, the Board is
unable to render an informed decision regarding whether the work restrictions recommended by
Dr. Hood would disable appellant from the center adjudication officer position.21
Proceedings under FECA are not adversarial in nature nor is OWCP a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
20

See supra note 18.

21

See generally K.W., Docket No. 15-1535 (issued September 23, 2016); J.S., Docket No. 15-1006 (issued
October 9, 2015) (Board remanded case to OWCP for further development because the record was inadequate to
render an informed decision).

7

justice is done.22 Therefore, in order to render an informed decision regarding appellant’s claim
for a work-related recurrence of disability beginning May 5, 2005, the case must be remanded to
OWCP to obtain information about the duties and physical requirements of the center
adjudication officer position, appellant held immediately prior to May 5, 2005 when his termed
appointment ended and to consider whether appellant was disabled from either of these positions
on or after May 5, 2005 due to his December 19, 2002 work injury.
Therefore, the case is remanded to OWCP for further development of the evidence to be
following by a de novo decision regarding appellant’s claim for a recurrence of disability
beginning May 5, 2005 due to his December 19, 2002 work injury.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met his burden of proof to establish a recurrence of disability on or after May 5, 2005 due to his
December 19, 2002 work injury. The case is remanded to OWCP for further development.
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: July 6, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
22

D.B., Docket No. 16-0904 (issued May 2, 2017).

8


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

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Appearances:
John G. Achille, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-0788
Issued: October 19, 2015

Case Submitted on the Record

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

JURISDICTION
On February 25, 2014 appellant, through counsel, filed a timely appeal from a
January 21, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
The last merit decision of record was OWCP’s May 27, 2010 decision. Since more than 180
days has elapsed since May 27, 2010 to the filing of this appeal, and pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that it was untimely filed and failed to demonstrate clear
evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. By decision dated July 2, 2012, the Board
affirmed an August 11, 2011 nonmerit OWCP decision which found that it properly denied
appellant’s May 12, 2011 request for reconsideration under 5 U.S.C. § 8128(a). The Board also
affirmed a September 7, 2011 nonmerit decision denying her request for reconsideration on the
grounds that it was untimely filed and failed to establish clear evidence of error.2
On October 11, 2012 appellant filed a request for reconsideration. By decision dated
October 26, 2012, OWCP denied her reconsideration request as untimely filed and failing to
establish clear evidence of error. Appellant appealed to the Board and by decision dated May 13,
2013, the Board affirmed OWCP’s October 26, 2012 nonmerit decision denying her request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error.3 The findings of fact and conclusions of law from the prior decisions and orders are
hereby incorporated by reference.
By letter dated November 15, 2013, appellant, through counsel, filed a request for
reconsideration before OWCP. Counsel argued that appellant had established clear evidence of
error on the part of OWCP in its May 27, 2010 merit decision. He repeated his assertion that her
May 12, 2011 request for reconsideration was accompanied with new and relevant medical
evidence, with enclosures included. Counsel noted that review of the disc containing appellant’s
case file revealed that OWCP scanned certain documents twice. He argued that this was
evidence of errors made by OWCP and established that the medical evidence submitted with her
May 12, 2011 request for reconsideration was not scanned.
Counsel further repeated arguments previously made. He stated that appellant filed a
timely appeal of the May 27, 2010 merit decision on May 12, 2011. Counsel further noted that
OWCP’s system and scanning process was flawed because there were missing documents and
errors made where certain documents were scanned twice. He also argued that Dr. Bhayani’s
medical reports supported appellant’s traumatic injury claim.
By decision dated January 21, 2014, OWCP denied appellant’s reconsideration request as
untimely filed and failing to establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.4
2

Docket No. 12-90 (issued July 2, 2012). On October 9, 2007 appellant, then a 57-year-old postmaster relief,
filed a traumatic injury claim (Form CA-1) alleging that she developed a left shoulder injury on October 6, 2007
when she picked up an oblong box off the floor with her left arm. By decisions dated March 5, 2008, March 12 and
November 17, 2009 and May 27, 2010, OWCP denied her claim finding that the medical evidence of record failed
to establish that her left shoulder condition was causally related to the October 6, 2007 employment incident.
3

Docket No. 13-470 (issued May 13, 2013).

4

20 C.F.R. § 10.607(a).

2

The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.5
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year
filing limitation, if the claimant’s application for review shows clear evidence of error on the part
of OWCP in its most recent merit decision. To establish clear evidence of error, a claimant must
submit evidence relevant to the issue decided by OWCP. The evidence must be positive, precise,
and explicit, and it must manifest on its face that OWCP committed an error.6
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.7
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.8 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.9 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.10 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of
OWCP.11
ANALYSIS
In its January 21, 2014 decision, OWCP properly determined that appellant failed to file a
timely application for review. An application for reconsideration must be sent within one year of
the date of OWCP’s decision.12 A right to reconsideration within one year also accompanies any
subsequent merit decision on the issues.13 Appellant’s November 15, 2013 request for
reconsideration was submitted more than one year after the last merit decision of record, dated

5

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

6

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

7

Annie L. Billingsley, 50 ECAB 210 (1998).

8

Jimmy L. Day, 48 ECAB 652 (1997).

9

Id.

10

Id.

11

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

12

Supra note 4.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004).

3

May 27, 2010, it was untimely. Consequently, she must demonstrate clear evidence of error by
OWCP in denying her claim.14
The Board finds that appellant has not established clear evidence of error on the part of
OWCP. Appellant’s counsel submitted a reconsideration request dated November 15, 2013. He
argued that appellant established clear evidence of error on the part of OWCP in its May 27,
2010 merit decision. Counsel repeated his assertion that her May 12, 2011 appeal letter was
accompanied with new and relevant medical evidence. He noted that review of the disc
containing appellant’s case file revealed that OWCP scanned certain documents twice. Counsel
argued that this was evidence of errors made by OWCP and established that the medical
evidence submitted with her May 12, 2011 appeal was not scanned.
Appellant has not provided evidence to establish that OWCP received additional medical
evidence which allegedly accompanied her May 12, 2011 reconsideration request, but was not
scanned into the record.15 The Board notes that the fact that OWCP scanned certain documents
twice does not establish that additional medical evidence accompanied the May 12, 2011
reconsideration request. Furthermore, the fact that the May 12, 2011 letter mentions enclosures
also does not establish that additional medical evidence accompanied the letter. Counsel
submitted a sworn affidavit from Paula Kerr, counsel’s secretary, who attested that “nothing that
was sent is missing until sometime in 2011 when things were not scanned.” The affidavit goes
on to describe the documents that she reviewed from the “claimant’s dis[c].” In reviewing the
contents of the disc, appellant attests as to what documents she saw scanned in from six
submissions which consisted of four appeal letters and two requests for reconsideration. She
indicated that portions of these submissions were not on the disc from the documents submitted.
However, appellant did not specifically attest that the documents in their totality were originally
sent.
Counsel’s remaining arguments have previously been addressed by the Board in its
July 2, 2012 and May 13, 2013 decisions.16 The subject matter previously reviewed by the
Board in its May 13, 2013 decision, absent further merit review by OWCP, is res judicata.17 The
Board has also previously reviewed the reports of Dr. Bhayani and found that the medical
evidence failed to establish clear evidence of error.
As noted above, the Board finds that appellant has not provided any evidence to establish
that additional medical evidence was submitted in a timely manner accompanying her May 12,
2011 reconsideration request.18 Moreover, these arguments have been presented on numerous
prior occasions and are not sufficient to establish clear evidence of error.

14

See Debra McDavid, 57 ECAB 149 (2005).

15

J.M., Docket No. 12-1919 (issued February 8, 2013).

16

Supra notes 2 and 3.

17

5 U.S.C. § 8128; see also D.S., Docket No. 14-12 (issued March 18, 2014).

18

G.D., Docket No. 07-1101 (issued September 11, 2007).

4

As none of the evidence raises a substantial question concerning the correctness of
OWCP’s decision, appellant has failed to establish clear evidence of error on the part of OWCP
in denying further merit review.19
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the January 21, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 19, 2015
Washington, DC

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

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

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

19

A.S., Docket No. 11-356 (issued September 16, 2011).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
DEPARTMENT OF LABOR, BUREAU OF
LABOR STATISTICS, Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1237
Issued: February 18, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 14, 2009 appellant filed a timely appeal from the March 12, 2009 decision of
the Office of Workers’ Compensation Programs concerning her wage-earning capacity. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation to zero
effective April 13, 2008 based on her capacity to earn wages as a secretary.
FACTUAL HISTORY
The Office accepted that on July 1, 1999 appellant, then a 61-year-old part-time
economic assistant, sustained aggravation of chondromalacia of her left patella due to stepping
out of a car at work. It authorized arthroscopic surgery of her left knee which was performed on
January 21, 2000. Appellant worked in a secretarial position with the employing establishment
from April 2001 to May 2002. She underwent left total knee replacement on June 4, 2002 and
left knee revision surgery on July 7, 2003. Both procedures were authorized by the Office. It

was also accepted that appellant sustained a right thumb ligament tear as a consequence of the
accepted injury and the Office authorized a surgical repair which was performed on
July 26, 2004. Appellant has not returned to work since May 2002.
On November 2, 2005 Dr. Harold H. Alexander, a Board-certified orthopedic surgeon
serving as an Office referral physician, found that appellant had good range of motion of her
lower extremities and that she complained of left knee pain. He opined that appellant could
return to work in a sedentary position. In several reports from early 2006, Dr. Jon E. Minter, an
attending osteopath, stated that she had medial collateral ligament laxity of her left knee and that
she could not return to work.
The Office determined that a conflict in medical opinion arose between Dr. Alexander
and Dr. Minter regarding appellant’s ability to work. In order to resolve the conflict, the Office
referred her, pursuant to section 8123(a) of the Federal Employees’ Compensation Act, to
Dr. Daniel Kingloff, a Board-certified orthopedic surgeon, for an impartial medical examination.
In a May 19, 2006 report, Dr. Kingloff stated that on examination appellant appeared to
have full extension of her left knee, although it was somewhat difficult to evaluate her secondary
to her obesity. There was a minimal amount of medial lateral rocking of her left knee upon
extension and there did not appear to be any mid-flexion instability. Dr. Kingloff stated that
there did not appear to be any significant anterior or posterior drawer sign in the left knee, but
noted that obesity made this test difficult to assess. An x-ray of the left knee taken on May 19,
2006 did not show any significant medial collateral ligament instability that needed any further
surgery. In July 18, 2006 reports, Dr. Kingloff determined that appellant could perform limitedduty work for eight hours per day in a sedentary type of job. He stated that she could sit, engage
in repetitive motion with her elbows and wrists and reach (including above her shoulders) for
eight hours per day. Dr. Kingloff indicated that appellant could only engage in a minimal
amount of standing and walking and that she could not lift, push, pull, bend, squat, twist or
climb.1
Based on the opinion of Dr. Kingloff, appellant was referred for vocational rehabilitation
services. She underwent training to upgrade her computer skills which was completed in
September 2007.
Appellant received regular care for her lower extremity condition from Dr. Minter. On
December 12, 2006 Dr. Minter advised that her physical examination showed signs of medial
ligament instability of her left knee. He recommended that appellant undergo additional left
knee surgery such as a medial collateral ligament tightening/imprecation and stated, “I do feel
that [appellant] is unable to return to work secondary to her ongoing pain and knee instability.”
On July 3, 2007 Dr. Minter noted that her physical examination continued to show signs of
medial ligament instability of her left knee and provided an opinion that she could only work for

1

Dr. Kingloff stated, “[U]nless there is a problem with her actually getting into her vehicle that transports her and
her wheelchair, I do not see any reason why she should not be able to drive to work.”

2

four hours per day. On October 14, 2007 he noted persistent medial ligament instability of the
left knee and stated, “[Appellant] is still in extremely limited work duty status.”2
In October 2007, appellant’s rehabilitation counselor, Susan Grant, determined that
appellant could work in the constructed position of secretary on a full-time basis. Ms. Grant
indicated that state labor surveys showed that the position was reasonably available in
appellant’s commuting area at a wage of $424.00 per week. The secretary position involved
performing such duties as assisting customers, making copies of printed matter, filing
paperwork, greeting visitors, keeping and preparing records, entering information into a
computer, preparing reports, answering the telephone and coordinating activities. The position
was described as sedentary but the job description did not indicate how much standing and
walking was required. The physical requirements included occasional reaching, handling,
fingering and lifting up to 10 pounds.3
On February 21, 2008 the Office issued a notice proposing to reduce appellant’s wageloss compensation benefits to zero because she had the capacity to work on a full-time basis in
the constructed position of secretary and earn wages of $424.00 per week. It provided appellant
30 days to present evidence and argument challenging this proposed action. The Office found
that the opinion of Dr. Kingloff showed that she was physically capable of performing the
secretary position.
Appellant’s attorney argued that appellant was not physically capable of working in the
constructed position of secretary on a full-time basis and also claimed that she had psychiatric
problems which prevented her from working. Appellant submitted a March 13, 2008 report, in
which Dr. Jennifer Kelly, an attending clinical psychologist, assessed her psychiatric state and
diagnosed such conditions as anxiety, pain and personality disorders.
In an April 11, 2008 decision, the Office reduced appellant’s compensation to zero
effective April 13, 2008 based on her capacity to earn wages as a secretary.
Appellant, through her attorney, requested a telephonic hearing with an Office hearing
representative. At the August 6, 2008 hearing, appellant, through her attorney, argued that her
wage-earning capacity should have been based on her work as a part-time economic assistant
working an average of 18.2 hours per week. She alleged that the duties of the constructed
secretary position exceeded her work restrictions. Appellant asserted that the Office did not
meet its burden of proof to show that a secretarial job existed in her commuting area and was
available within her work restrictions. Following the telephone hearing, the Office received
multiple updated medical reports from appellant’s treating physicians.

2

In a December 7, 2007 report, Dr. Kay Kirkpatrick, an attending orthopedic surgeon, stated that appellant could
only perform limited activities with her right hand due to her right thumb condition.
3

Appellant attempted to find a job as a secretary over a period of more than 90 days but her job search was
unsuccessful.

3

In a March 12, 2009 decision, the Office hearing representative affirmed the Office’s
April 11, 2008 decision. She indicated that the weight of the medical evidence regarding
appellant’s ability to work continued to rest with the opinion of Dr. Kingloff.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.4 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5
Under section 8115(a) of the Act, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity or
if the employee has no actual earnings, her wage-earning capacity is determined with due regard
to the nature of her injury, her degree of physical impairment, her usual employment, her age,
her qualifications for other employment, the availability of suitable employment and other
factors and circumstances which may affect her wage-earning capacity in her disabled
condition.6 Wage-earning capacity is a measure of the employee’s ability to earn wages in the
open labor market under normal employment conditions.7 The job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.8
In determining wage-earning capacity based on a constructed position, consideration is
given to the residuals of the employment injury and the effects of conditions which preexisted
the employment injury.9 In determining wage-earning capacity based on a constructed position,
consideration is not given to conditions which arise subsequent to the employment injury.10
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to her physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
4

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

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

7

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

8

Id.

9

See Jess D. Todd, 34 ECAB 798, 804 (1983).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(d) (December 1995).

4

and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.11
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”12 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.13 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.14
ANALYSIS
The Office accepted that on July 1, 1999 appellant sustained aggravation of
chondromalacia of her left patella. It authorized several surgeries including a left total knee
replacement on June 4, 2002 and left knee revision surgery on July 7, 2003. The Office also
accepted that appellant sustained a right thumb ligament tear as a consequence of the accepted
injury and authorized a surgical repair, which was performed on July 26, 2004. In an April 11,
2008 decision, it reduced her compensation to zero effective April 13, 2008 based on her
capacity to earn wages as a secretary.15
In determining that appellant was physically capable of working as a secretary on a fulltime basis, the Office relied on the May 19 and July 18, 2006 reports of Dr. Kingloff, a Boardcertified orthopedic surgeon who served as an impartial medical specialist.16 In July 18, 2006
11

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953).
12

5 U.S.C. § 8123(a).

13

William C. Bush, 40 ECAB 1064, 1975 (1989).

14

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

15

The secretary position involved performing such duties as assisting customers, filing paperwork, making copies
of printed matter, greeting visitors, keeping and preparing records, entering information into a computer, preparing
reports, answering the telephone and coordinating activities. The position was described as sedentary but the job
description did not indicate how much standing and walking was required. The physical requirements included
occasional reaching, handling, fingering and lifting up to 10 pounds.
16

The Board notes that the Office properly referred the case to Dr. Kingloff after determining that there was a
conflict in the medical opinion between Dr. Alexander, a Board-certified orthopedic surgeon serving as an Office
referral physician, and Dr. Minter, an attending osteopath, regarding appellant’s ability to work. On November 2,
2005 Dr. Alexander opined that she could return to work in a sedentary position. In several reports from early 2006,
Dr. Minter, an attending osteopath, stated that appellant had medial collateral ligament laxity of her left knee and
posited that she could not return to work.

5

reports, he stated that appellant could perform limited-duty work for eight hours per day in a
sedentary type of job. Dr. Kingloff noted that she could sit, engage in repetitive motion with her
elbows and wrists and reach (including above her shoulders) for eight hours per day. He
indicated that appellant could only engage in a minimal amount of standing and walking and that
she could not lift, push, pull, bend, squat, twist or climb. Based on his reports, appellant was
referred for vocational rehabilitation.
The Board finds, however, that the Office did not present sufficient medical evidence to
establish that appellant could work as a secretary on a full-time basis. There is medical evidence
of record which was received after Dr. Kingloff’s assessment in 2006, which indicates that
appellant would not be able to perform the level of work required by the constructed secretary
position.
On December 12, 2006 Dr. Minter indicated that appellant’s physical examination
showed signs of medial ligament instability of her left knee. He recommended that she undergo
additional left knee surgery such as a medial collateral ligament tightening/imprecation and
stated that she was unable to return to work secondary to her ongoing pain and knee instability.
Dr. Minter continued to report persistent left knee instability. On July 3, 2007 he indicated that
appellant could only work for four hours per day and on October 14, 2007 he noted that she was
still in an extremely limited work duty status. As noted above, the Office adjusted appellant’s
compensation based on its determination that she could work on a full-time basis as a secretary.
Moreover, the job description of the constructed secretary position did not clearly indicate how
much standing and walking the job required.17 Therefore, the reports of Dr. Minter, call into
question whether appellant could physically perform the duties of the secretary position.18 The
Office did not request that Dr. Kingloff review these reports or provide any opinion on the
selected position.
The Office did not meet its burden of proof to establish that appellant had the requisite
physical ability to perform the position of secretary on a full-time basis. It did not meet its
burden to reduce appellant’s compensation effective April 13, 2008 based on her capacity to earn
wages as a secretary on a full-time basis.
CONCLUSION
The Board finds that the Office improperly reduced appellant’s compensation to zero
effective April 13, 2008 based on her capacity to earn wages as a secretary.

17

There is some indication that appellant used a wheelchair at times, but the job description failed to indicate that
such a circumstance could be accommodated.
18

Dr. Kirkpatrick, an attending orthopedic surgeon, stated on December 7, 2007 that appellant could only
perform limited activities with her right hand due to her right thumb condition.

6

ORDER
IT IS HEREBY ORDERED THAT the March 12, 2009 decision Office of Workers’
Compensation Programs is reversed.
Issued: February 18, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7