United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

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

Docket No. 11-843
Issued: November 1, 2011

Case Submitted on the Record

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

JURISDICTION
On February 7, 2011 appellant filed a timely appeal from a January 12, 2011 merit
decision of an Office of Workers’ Compensation Programs (OWCP) hearing representative who
denied her claim for a left shoulder condition. Pursuant to the Federal Employees’
Compensation Act (FECA)1 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 her burden of proof to establish that her left shoulder
condition was causally related to the November 18, 2008 employment injury.
FACTUAL HISTORY
On November 18, 2008 appellant, then a 57-year-old letter part-time flexible mail carrier,
filed a traumatic injury claim alleging that she tripped and fell on her left forehead that day. She
1

5 U.S.C. § 8101 et seq.

sustained a hematoma on her forehead and cheek, bruised ribs, and swollen left eye while
delivering mail on a porch when she tripped. Appellant stopped work on November 18, 2008.
She submitted treatment records from the employee health unit dated November 18, 2008, which
noted that appellant fell down in the morning and sustained a swollen and black eye. OWCP
accepted her claim for a black eye, face, scalp, and neck contusions, fracture of her left ankle
medial malleolus, and right closed acromioclavicular (AC) dislocation.
In an August 26, 2009 operative report, Dr. Ben W. Kibler, a Board-certified orthopedic
surgeon, diagnosed right shoulder AC and sternoclavicular (SC) joint arthrosis and noted that
appellant had a history of problems with both joints following trauma. He performed an AC
joint repair and SC joint repair.
In a September 21, 2009 report, Dr. Kibler stated that appellant was recovering well from
surgery and making progress. Appellant described some problems with her left shoulder.
On October 8, 2009 appellant requested authorization for medical treatment for a left
shoulder condition.
In an October 30, 2009 progress report, an OWCP field nurse noted that appellant
underwent surgery on August 26, 2009 and currently attended physical therapy. She still
complained of pain and limited motion in the right and left shoulders.
In a November 9, 2009 report, Dr. Kibler stated that appellant was progressing well and
observed that her SC and AC joints were stable. He advised that appellant’s left shoulder started
bothering her and observed mild impingement in forward flexion and crepitus at the AC joint
with no instability.
In a November 25, 2009 progress report, an OWCP field nurse stated that based on
appellant’s most recent November 9, 2009 examination, she still experienced pain and limited
motion in her right shoulder with some improvement in her left shoulder.
In a December 21, 2009 x-ray examination of appellant’s left shoulder, Dr. Rose Marie
Hackett, a diagnostic radiologist, noted appellant’s complaints of chronic shoulder pain. The
examination revealed moderate degenerative changes of the AC joint and minimal degenerative
change of the greater tuberosity and glenohumeral joint. Dr. Hackett did not observe any acute
bony trauma or evidence of soft tissue calcifications. She advised that appellant suffered from
mild degenerative changes.
In a December 21, 2009 report, Dr. Kibler stated that appellant had better range of motion
and stability in her right shoulder but continued to experience pain with her left shoulder. She
complained of soreness and tenderness with pain, thickening, crepitus, and positive horizontal
adduction weakness. Dr. Kibler pointed out that an x-ray revealed AC joint arthrosis with joint
narrowing and inferior bone spur formation.
In a December 22, 2009 progress report, an OWCP nurse stated that Dr. Kibler
authorized appellant to work temporary limited duty on December 21, 2009 and restricted her to
no overhead activity, no lifting over five pounds, and no repetitive use of the upper extremities.

2

The nurse also pointed out that appellant was claiming a new injury to the left shoulder and
attributed the alleged injury to the November 18, 2008 employment incident.
By letter dated January 21, 2010, OWCP advised appellant that the medical evidence
submitted was insufficient to support her left shoulder claim. It requested she provide a
comprehensive medical report from her treating physician, which included a history of injury,
clinical findings and results, a firm diagnosis, and a physician’s opinion, with stated rationale,
explaining how appellant’s left shoulder condition was causally related to the accepted
November 18, 2008 injury.
In a January 28, 2010 report, Dr. Kibler provided a history of appellant’s left shoulder
injury. He initially treated appellant for a right shoulder condition that she sustained during a
traumatic incident at work. As treatment progressed, appellant began to complain of problems
with her left shoulder, which he first noted on November 9, 2009. On examination, Dr. Kibler
observed impingement with forward flexion in her left shoulder and difficulty using her arm in
the forward flexion position. X-rays also revealed AC joint arthrosis with joint narrowing and
bone spur formation. Dr. Kibler explained that he did not treat appellant’s left shoulder
condition until November 2009 because her right shoulder condition caused her to not put her
left shoulder in a position where it could be symptomatic. He stated that the left shoulder
symptoms “probably were present” after her injury and opined that “these certainly could have
become aggravated with the fall or with any type of trauma, or with overuse with the left arm.”
He explained that the “exact cause and effect relationship for this problem is not totally one-toone.”
In an April 20, 2010 letter, Dr. Kibler stated that he had only treated appellant for her
right shoulder as part of the accepted injuries described. He explained that her current problem
related to her left shoulder and leg and recommended surgery for her left shoulder AC joint
problems.
Appellant submitted various physical therapy reports dated from September 24 to
December 21, 2009.
In a decision dated July 19, 2010, OWCP denied appellant’s request for medical
treatment for her left shoulder condition finding that the medical evidence did not establish it
was causally related to the November 18, 2008 injury. The medical evidence noted that
appellant complained of a left shoulder condition beginning in November 2009, approximately
one year after the date of injury, but did not provide a rationalized medical opinion from a
physician to establish causal relationship.
On July 27, 2010 appellant, through her attorney, requested an oral hearing, which was
held on November 1, 2010. Appellant described the history of the November 18, 2008 fall at
work and subsequent treatment. Appellant sustained a black eye, contusions to her face, scalp,
and neck, a fractured ankle, and a dislocated right shoulder. She later sustained a fracture to her
lower left leg, which was accepted by OWCP. Appellant did not realize that her right shoulder
hurt until January 2009 when she got off crutches and stopped putting all her weight on her
shoulders. Appellant did not notice her left shoulder condition until May 2009 and was informed

3

that it probably resulted from overcompensating for her right shoulder injury. Appellant asserted
her belief that her left shoulder condition resulted from the November 18, 2008 incident.
In a September 9, 2010 report, Dr. Kibler noted that appellant’s current problem was her
left shoulder as she continued to have AC joint findings with soreness and tenderness anteriorly,
positive impingement, and weakness with horizontal adduction. Dr. Kibler recommended she
undergo surgery.
In a December 6, 2010 letter to her attorney, appellant recounted a history of her
November 18, 2008 injury and subsequent treatment. She stated that her left shoulder and arm
were sore during the entire time frame. Appellant informed her doctor about the weakness in her
left shoulder and he told her that it might be due to overcompensating for the right collarbone
injury suffered on November 18, 2008. Prior to her injury she had full range of motion in both
shoulders and arms and was able to complete all her mail clerk duties without assistance.
Appellant also described fainting on November 21, 2008.
By decision dated January 12, 2011, OWCP’s hearing representative affirmed the
July 19, 2010 decision finding insufficient medical evidence to establish that appellant’s left
shoulder condition was causally related to the November 18, 2008 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative, and substantial evidence2
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.3
While the initial employment injury must arise out of and in the course of the claimant’s
federal employment, later nonindustrial injuries may also be compensable. It is an accepted
principle of workers’ compensation law that a second, nonindustrial injury is compensable if it is
the direct and natural result of an earlier compensable injury. Where an accident is sustained as a
consequence of a disabling residual of a previous industrial injury, it is compensable because of
the chain of causation.4
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.5 Rationalized medical opinion evidence is medical evidence which includes
a physician’s rationalized opinion on whether there is a causal relationship between the
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued
November 25, 2010).
4

S.M., 58 ECAB 166 (2006).

5

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

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employee’s diagnosed condition and the specified employment factors or incident.6 The opinion
of the physician must be based on a complete factual and medical background of the employee,
must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.7
ANALYSIS
On November 18, 2008 appellant sustained an injury when she slipped and fell off a
porch when delivering mail at work. OWCP accepted her claim for a black eye, face, scalp, and
neck contusions, fracture of her left ankle medial malleolus, and right closed AC dislocation. On
August 26, 2009 she underwent right shoulder surgery. On October 8, 2009 appellant requested
authorization for medical treatment for a left shoulder condition. OWCP denied appellant’s
claim for compensation for a left shoulder condition finding that the medical evidence did not
adequately explain causal relation. The Board finds that the medical evidence fails to establish
that appellant’s left shoulder condition was causally related to the November 18, 2008 incident.
Dr. Kibler provided an accurate history of injury and conducted surgery on August 26,
2009 on appellant’s right shoulder. The Board notes that appellant first complained of pain to
her left shoulder in a September 21, 2009 report, 10 months after the accepted November 18,
2008 injury. Dr. Kibler’s treatment of appellant until that point related to her right shoulder
condition. He noted appellant’s complaints of pain and discomfort with her left shoulder and
pointed out that an x-ray examination revealed AC joint arthrosis with joint narrowing and
inferior bone spur formation. Dr. Kibler also observed mild impingement in forward flexion and
crepitus at the AC joint with no instability. He did not provide any opinion on the cause of
appellant’s left shoulder condition or address how the November 18, 2008 injury caused or
contributed to her condition. The Board has held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.8
In a January 28, 2010 report, Dr. Kibler explained that he did not treat appellant for her
left shoulder condition until November 2009 because her right shoulder condition caused her to
not put her left shoulder in a position where it could be symptomatic. He noted that the left
shoulder changes “probably were present” at the time of the original injury. Dr. Kibler stated
that appellant’s left shoulder condition could “certainly have become aggravated with the fall or
with any type of trauma, or with overuse with the left arm.” He concluded, however, that the
“exact cause and effect relationship for this problem is not totally one to one.” Dr. Kibler’s
opinion addressing the left shoulder condition is speculative and equivocal. The Board has
generally held that opinions such as a condition is probably related, most likely related, or could

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

7

B.B., 59 ECAB 234 (2007); Victor J. Woodhams, 41 ECAB 345, 352 (1989); D.S., Docket No. 09-860 (issued
November 2, 2009).
8

K.W., 59 ECAB 271 (2007); R.E., Docket No. 10-679 (issued November 16, 2010).

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be related, are of diminished probative value.9 Dr. Kibler’s opinion is speculative in that he
attributed appellant’s condition to several causes, specifically “to the fall, or with any type of
trauma, or with overuse with the left arm.” While the medical opinion of a physician supporting
causal relationship does not have to reduce the cause or etiology of a disease or condition to an
absolute certainty, neither can such opinion be speculative or equivocal.10 Dr. Kibler did not
provide adequate medical rationale for his opinion or how appellant’s November 18, 2008
employment injury caused or contributed to the left shoulder condition almost a year after the
fall at work.11
The additional medical evidence of record is insufficient to meet appellant’s burden of
proof. In a December 21, 2009 x-ray examination, Dr. Hackett noted appellant’s complaints of
chronic shoulder pain and opined that she suffered from mild degenerative changes. She did not
provide a well-rationalized opinion regarding the cause of appellant’s left shoulder condition or
relate her condition to the November 18, 2008 work event. Rather, Dr. Hackett noted that
appellant’s left shoulder condition was a degenerative condition and not the result of a traumatic
incident. Without a well-rationalized medical opinion explaining how the November 18, 2008
incident caused or contributed to appellant’s back condition, this report is insufficient to meet
appellant’s burden of proof.12
Appellant also submitted progress reports from an OWCP field nurse and treatment
records from a physical therapist. Section 8102(2) of FECA, however, provides that the term
“physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by State
law.13 As nurses and physician’s assistants are not “physicians” as defined by FECA, their
medical opinions regarding diagnosis and causal relationship are of no probative medical value.14
In a December 6, 2010 letter and during her telephone hearing, appellant asserted that her
left shoulder condition was due to falling on November 18 and 21, 2008. She stated that her left
shoulder and arm were sore since the accepted event, even though the medical reports do not
record any left shoulder treatments, and pointed out that she did not have any problems with her
left shoulder prior to those falls. The Board finds that the fact that a condition manifests itself
after an injury and was not present before an injury is not sufficient to support causal
relationship.15 Causal relationship is a medical issue that can only be established by the

9

D.D., 57 ECAB 734 (2006); Kathy A. Kelley, 55 ECAB 206 (2004); S.E., Docket No. 08-2214 (issued
May 6, 2009).
10

A.D., 58 ECAB 159 (2006); Samuel Senkow, 50 ECAB 370 (1999).

11

See Robert Broome, 55 ECAB 339 (2004).

12

S.Y., Docket No.11-206, (issued August 9, 2011); J.F., Docket No. 10-1978 (issued May 16, 2011.

13

5 U.S.C. § 8101(2).

14

Roy L. Humphrey, 57 ECAB 238 (2005); E.H., Docket No. 08-1862 (issued July 8, 2009).

15

Michael S. Mina, 57 ECAB 379 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004).

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submission of rationalized medical opinion evidence.16 The record in this case does not contain
such rationalized medical opinion evidence to establish that appellant’s left shoulder condition
was causally related to the November 18, 2008 injury. Thus, appellant did not meet her burden
of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that her left
shoulder condition was causally related to the November 18, 2008 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the January 12, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

Supra note 9.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OFFICE OF INFORMATION &
TECHNOLOGY, Austin, TX, Employer
__________________________________________

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Appearances:
Vanessa Sanders, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1282
Issued: March 12, 2013

Case Submitted on the Record

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

JURISDICTION
On May 24, 2012 appellant filed a timely appeal from a December 7, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP) which denied her reconsideration
request on the grounds that it was untimely filed and failed to establish clear evidence of error.
Because more than one year elapsed from the last merit decision dated October 7, 2010 to the
filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 11, 2010 appellant, a 65-year-old information and technology (IT) security
officer, filed a Form CA-2 claim for benefits alleging an emotional condition causally related to
employment factors. She stated that she had been performing the workload of two to three
people without assistance for several years and worked more than 40 hours almost every week
without breaks or lunch. The excessive workload resulted in stress.
In an accompanying statement, appellant asserted that as the facility information security
officer she was responsible for overseeing 3,000 computer users without assistance. She had
unsuccessfully requested assistance from management despite the fact that other departments
hired employees to help with the information security workload. Appellant asserted that the
department hired interns but declined to assign them to help her with her tasks, despite the fact
that she informed management that she needed help. She submitted numerous e-mails during
2009 and 2010 in support of her allegation of overwork, understaffing and being assigned to
excessive work duties.
In an e-mail dated April 30, 2009, Armando Diaz de Leon, a supervisor, responded to
appellant’s allegations that she was having difficulty meeting her work responsibilities. He
noted that she had contacted management regarding these issues and stated:
“Why did you not seek guidance from me? I [a]m your frontline supervisor and
could have helped with your issue regarding all the projects on your plate. I [a]m
trying to work with you and help out as best I can. I was in the office during that
… week and it was just last week that I was off traveling, so I was around but I do
n[o]t have an e[-]mail from you asking for my guidance. In the future come to me
first and if I [a]m not able to help you then we can go up the chain for further
guidance, but how can I help you when you do n[o]t even come to me? Please do
not add other high level managers to this e[-]mail thread, let’s work this out
amongst us. It [i]s a local issue and we can resolve this.”
In a report dated March 18, 2010, Dr. David Nichol, a psychiatrist, obtained a history that
appellant had been experiencing extreme anxiety and depression for five years, which became
worse in August 2009. At that time, appellant was allegedly subjected to increasing harassment
by her supervisor and had developed a rash, shortness of breath, sleeplessness, headaches, nausea
and abdominal pain. She related an excellent work experience until 2005, when she began
having fears that her supervisor would fire her because she was not completing her work.
Dr. Nichol stated that appellant’s work situation deteriorated because she was unable to satisfy
the demands of her supervisor, despite being overworked. He diagnosed acute stress disorder,
panic disorder with agoraphobia, major depressive disorder and irritable bowel syndrome, which
he attributed to extreme overwork and discord with her supervisor.
In a May 10, 2010 report, Dr. Nichol reiterated his findings and conclusions. He opined
that virtually all of appellant’s symptoms were due to work-related stress and he strongly
recommended that she acquire a new supervisor and an assistant.

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Appellant submitted a copy of an Equal Employment Opportunity (EEO) claim dated
October 19, 2009. She alleged that management discriminated against her due to her ethnic
background, that she was overburdened with work responsibilities and was subjected to a hostile
work environment.
By decision dated October 7, 2010, OWCP denied appellant’s claim for an emotional
condition, finding that she failed to establish a compensable factor of employment. It listed her
allegations that she was performing the workload of two to three people without assistance for
several years, working more than 40 hours a week without breaks or lunch, and that she had
unsuccessfully requested assistance from management. OWCP noted that the employing
establishment had rebutted appellant’s allegations and that she had failed to provided sufficient
evidence to establish administrative error or abuse.
By letter dated October 24, 2011, appellant, through her attorney, requested
reconsideration. Counsel argued that appellant provided sufficient factual and medical evidence
to establish that she sustained an emotional condition causally related to employment factors.
She reiterated appellant’s contentions that she was overburdened by an excessive workload and
received insufficient staffing or support from her supervisor to complete her tasks. Counsel
reiterated that she was the only information security officer at the worksite tasked with
overseeing more than 3,000 computer users, that other departments had hired more than one
information security officer to handle similar responsibilities and that her supervisor had
repeatedly ignored her requests for assistance.
Appellant submitted a copy of a position description form and various e-mails. An
e-mail dated September 30, 2008 from her to management noted that her department had just
hired two interns, January 15, 2009 e-mails between appellant and management noted that an
intern had been hired and discussed the work responsibilities with which he would be tasked. A
March 15, 2009 e-mail from appellant to management stated that she had recently received
instructions which seemed to conflict with her primary duties, that she was being tasked with
overlapping responsibilities, that she had been instructed to cancel a meeting, and that
management had failed to provide her with interns who could assist her in her work duties. In
e-mails dated November 24, 2009, appellant stated that she was unable to attend a meeting
because she was busy with other duties.
Appellant submitted a copy of a three-page memorandum from July 2009 to her
supervisor which noted that she had experienced difficulty training one of the interns that
management had hired. She expressed concern that the intern was underperforming and not
being held to the same standards for which she was responsible as an information security
officer.
By decision dated December 7, 2011, OWCP denied appellant’s request for
reconsideration without a merit review, finding the request had untimely requested
reconsideration and that appellant had not established clear evidence of error.

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LEGAL PRECEDENT
Section 8128(a) of FECA2 does not entitle an employee to a review of an OWCP decision
as a matter of right.3 This section, vesting OWCP with discretionary authority to determine
whether it will review an award for or against compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).4 As one such limitation, it has stated that it
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.5 The Board has found that the imposition of
this one-year time limitation does not constitute an abuse of the discretionary authority granted
by OWCP under 5 U.S.C. § 8128(a).6
In those cases where a request for reconsideration is not timely filed, the Board had held
however that OWCP must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.7 OWCP procedures
state that it will reopen an appellant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607(b), if appellant’s application for review shows “clear
evidence of error” on the part of OWCP.8
To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by OWCP.9 The evidence must be positive, precise and explicit and
2

5 U.S.C. § 8128(a).

3

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).
4

Thus, although it is a matter of discretion on the part of OWCP whether to review an award for or against
payment of compensation, OWCP has stated that a claimant may obtain review of the merits of a claim by
(1) showing that OWCP erroneously applied or interpreted a point of law, or (2) advances a relevant legal argument
not previously considered by OWCP, or (3) constituting relevant and pertinent new evidence not previously
considered by OWCP. See 20 C.F.R. § 10.606(b).
5

20 C.F.R. § 10.607(b).

6

See cases cited supra note 2.

7

Rex L. Weaver, 44 ECAB 535 (1993).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

9

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

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must be manifested on its face that it committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.14 The Board makes an independent
determination of whether an appellant has submitted clear evidence of error on the part of
OWCP such that it abused its discretion in denying merit review in the face of such evidence.15
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
It issued its most recent merit decision in this case on October 7, 2010. Appellant’s request for
reconsideration was dated October 24, 2011; thus, the request is untimely as it was outside the
one-year time limit.
The Board finds that appellant’s request for reconsideration failed to establish clear
evidence of error. In order to establish clear evidence of error, appellant must submit evidence
relevant to the issue which was decided by OWCP. Appellant submitted a copy of the position
description for an IT security officer, which does not constitute evidence relevant to the issue of
whether she established a compensable employment factor. She also submitted e-mails that
noted her complaints to management pertaining to her work assignments and staffing levels.
Appellant alleged being treated in a discriminatory manner. Although these e-mails constitute
new evidence in support of her claim for an emotional condition, they are cumulative of the emails which were considered by OWCP. They are not sufficient to prima facie shift the weight
of the evidence in favor of appellant or raise a substantial question as to the correctness of
OWCP’s decision. Therefore, appellant has failed to demonstrate clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review.

10

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

11

See Jesus D. Sanchez, supra note 2.

12

See Leona N. Travis, supra note 10.

13

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

14

Leon D. Faidley, Jr., supra note 2.

15

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

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CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of OWCP in her reconsideration request dated October 28, 2011 and OWCP properly
denied further review.
ORDER
IT IS HEREBY ORDERED THAT the December 7, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 12, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
MINNEAPOLIS VA MEDICAL CENTER,
Minneapolis, MN, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1159
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On June 7, 2021 appellant, through counsel, filed a timely appeal from a May 26, 2021
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.

1

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

5 U.S.C. § 8101 et seq.

1

ISSUE
The issue is whether appellant has met his burden of proof to establish a right elbow
condition causally related to the accepted March 2, 2020 employment incident.
FACTUAL HISTORY
On March 4, 2020 appellant, then a 48-year-old supply technician, filed a traumatic injury
claim (Form CA-1) alleging that on March 2, 2020 he was maneuvering a cart, which was difficult
to push and steer, when he experienced a shooting pain from his elbow to his fingers, while in the
performance of duty. He stopped work on March 2, 2020 and returned to work on March 4, 2020.
On the reverse side of the claim form appellant’s supervisor acknowledged that appellant was
injured while in the performance of duty.
Appellant submitted a form dated March 6, 2020 from Dr. Fardows Omar Salim, a family
medicine specialist, who noted a March 2, 2020 date of injury and provided work restrictions.
OWCP also received an imaging report dated March 10, 2020 from Dr. Kyle Shipley, a
Board-certified diagnostic radiologist, which related an impression of mild distal biceps and
common extensor tendinopathy.
Appellant submitted a work capacity form dated March 11, 2020 from Dr. Elizabeth
Moorhead, a Board-certified internist. Dr. Moorhead related that appellant was injured on
March 2, 2020 and diagnosed right ulnar neuropathy and right lateral epicondylitis. He noted
appellant’s work restrictions and limited him to four hours of work a day.
In a development letter dated March 23, 2020, OWCP informed appellant of the
deficiencies of his claim. It informed him of the type of factual and medical evidence needed and
provided him with a questionnaire. OWCP afforded appellant 30 days to submit the necessary
evidence.
In response, appellant submitted a medical report dated March 4, 2020 from Dr. Salim.
Dr. Salim related that appellant was pushing and steering a crash cart with bad wheels at work and
reinjured his right elbow. She related that appellant had previously injured the same elbow at work
in April 2019 when he struck his elbow on metal shelving.3 Dr. Salim provided an assessment of
right elbow pain and noted that there concern regarding a fracture versus a nerve injury; therefore,
appellant would undergo an x-ray and magnetic resonance imaging (MRI) scan.
By decision dated May 6, 2020, OWCP accepted that the March 2, 2020 employment
incident occurred, as alleged. However, it denied appellant’s claim, finding that he had not
submitted medical evidence containing a medical diagnosis in connection with his accepted

3

Appellant has a prior claim under OWCP File No. xxxxxx929 alleging that on April 11, 2019 he was stocking a
storeroom, lifting heavy boxes and putting them on shelves, when he struck his elbow against the metal shelves.
OWCP denied that claim by decisions dated August 29 and December 17, 2019. Appellant’s claims have not been
administratively combined by OWCP.

2

employment incident. It concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
On April 13, 2021 appellant, through counsel, requested reconsideration of OWCP’s
May 6, 2020.
In a letter dated March 30, 2021, Dr. Moorhead related that, on April 11, 2019, appellant
was carrying boxes when he struck the posterior side of his elbow on a shelf. She noted that an
electromyogram (EMG) performed on September 3, 2019 showed a mild right ulnar sensory
mononeuropathy, and an MRI scan performed on December 9, 2019 showed mild lateral
epicondylitis. Dr. Moorhead diagnosed lateral epicondylitis, ulnar neuropathy, and right elbow
pain.
By decision dated May 26, 2021, OWCP modified its May 6, 2020 decision and found that
appellant had established a diagnosed medical condition, but denied appellant’s claim as causal
relationship had not been established between the diagnosed right elbow condition and the
accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 5 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. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury. 8

4

Supra note 2.

5

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

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

3

The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right elbow
condition causally related to the accepted March 2, 2020 employment incident.
Appellant was initially seen by Dr. Salim on March 4, 2020 who related appellant’s history
of the alleged March 2, 2020 injury, and noted that appellant had previously injured his right elbow
at work in April 2019 when he struck his elbow on metal shelving. Dr. Salim assessed right elbow
pain. The Board has held that pain is a description of a symptom, not a firm diagnosis of a medical
condition.11 Moreover, Dr. Salim did not provide an opinion with regard to causal relationship.
In a form report dated March 6, 2021, she noted appellant’s work restrictions, but again did not
provide a firm diagnosis or an opinion regarding causal relationship. The Board has held that a
medical report lacking a firm diagnosis or an opinion on causal relationship is of no probative
value.12 As such, these reports are insufficient to meet appellant’s burden of proof.
In a report dated March 11, 2020, Dr. Moorhead related that appellant was injured on
March 2, 2020. She diagnosed right ulnar neuropathy and right lateral epicondylitis. However,
Dr. Moorhead merely repeated the history of injury as reported by appellant without providing her
own opinion regarding whether appellant’s condition was work related. OWCP also received a
March 30, 2021 report wherein Dr. Moorhead related that on April 11, 2019 appellant was
carrying boxes when he struck the posterior side of his elbow on a shelf. Dr. Moorhead related
diagnoses of lateral epicondylitis, ulnar neuropathy, but did not provide an opinion on causal
relationship. As noted, the Board has held that a medical report lacking an opinion on causal
relationship is of no probative value. 13 As such, this evidence is also insufficient to establish the
claim.

9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11

D.R., Docket No. 18-1408 (issued March 1, 2019); D.A., Docket No. 18-0783 (issued November 8, 2018).

12

See J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
13

Id.

4

Appellant also submitted diagnostic studies. The Board has long held that diagnostic
studies, standing alone, lack probative value on the issue of causal relationship as they do not
address whether the employment incident caused a diagnosed condition. 14
As the medical evidence of record is insufficient to establish causal relationship between a
diagnosed right elbow condition and the accepted employment incident, the Board finds that
appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607. 15
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right elbow
condition causally related to the March 2, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 26, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 7, 2022
Washington, DC

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

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

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

14

J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

15

Upon return of the case record, OWCP should consider administratively combining this case record with the prior
record for OWCP File No. xxxxxx929.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LOMA LINDA HEALTHCARE SYSTEM,
Loma Linda, CA, Employer
__________________________________________

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

Docket No. 16-0297
Issued: April 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 7, 2015 appellant, through counsel, filed a timely appeal from the
August 11, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days elapsed between the last merit decision of OWCP dated November 24,
2014 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this
case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on June 17, 2013 appellant, then a 64-year-old nurse, sustained a
left elbow contusion when she slipped and fell on a slippery wet floor at work.
On November 8, 2013 appellant filed a claim for compensation (Form CA-7) for leave
without pay (LWOP) from November 5 to 16, 2013. An October 10, 2013 progress note from
appellant’s physical therapist provided a history of the June 17, 2013 employment injury and
addressed the treatment of appellant’s left shoulder pain.
Also provided were medical reports dated June 20 to September 19, 2013, from
Dr. Michael Oliverio, Jr., a Board-certified family practitioner, who provided a history of the
June 17, 2013 employment injury and appellant’s medical, family, and social background. He
reported findings and assessed, among other things, shoulder, hip, back, and thigh pain, and a
bruising huge hematoma. Dr. Oliverio recommended diagnostic testing of the left shoulder,
lumbar spine, and left lower extremity, and referred appellant to physical therapy. In an
August 5, 2013 report, he extended appellant’s time off work until December 30, 2013.
By letter dated November 22, 2013, OWCP requested that appellant submit
contemporaneous medical evidence explaining the medical necessity for time off work. It noted
that the last medical report received was Dr. Oliverio’s September 19, 2013 report.2
In a November 21, 2013 visit summary report, Dr. Oliverio noted that appellant presented
for a follow-up evaluation of her left shoulder pain. He described a history that her pain started
four months ago due to a fall. Dr. Oliverio noted appellant’s diagnoses which included shoulder,
thigh, and back pain due to a slip and fall at work. He provided her plan of care which included
referral to a neurologist for evaluation of her persistent left shoulder, back, left thigh, and left leg
pain.
In a July 16, 2013 report, Dr. Barney S. Grames, a Board-certified orthopedic surgeon,
provided a history that on June 19, 2013 appellant fell at work. He noted her history and
complaint of sharp aching pain in her left shoulder, elbow, hip, and leg. Appellant was not
currently working. Dr. Grames reported findings on physical examination and diagnostic testing.
He provided an impression of left shoulder adhesive capsulitis, and left shoulder, elbow, and hip
contusions due to the June 19, 2013 work injury, mild degenerative arthritis of the left shoulder
glenohumeral joint and acromioclavicular joint, left elbow contusion and epicondylitis, and left
hip greater trochanteric bursitis and mild degenerative arthritis. Dr. Grames advised that
appellant could perform modified duty with no lifting over 10 pounds and no overhead work. He
opined that her left elbow, left shoulder, and left hip conditions were industrial in nature.

2

The Board notes that it appears OWCP inadvertently stated that Dr. Oliverio’s report was dated September 9,
2013 rather than September 19, 2013. The Integrated Federal Employees’ Compensation System (iFECS) indicates
that Dr. Oliverio’s report was dated September 19, 2013 and was the last report received by OWCP prior to the
issuance of its November 22, 2013 developmental letter.

2

A December 23, 2013 certificate to return to work/school from Oliverio Medical Group
contained an unknown signature and indicated that appellant had a left shoulder injury. Her time
off work was extended to January 30, 2014.
In a February 20, 2014 decision, OWCP denied appellant’s claim for compensation from
November 5 to 16, 2013. It found that she had failed to submit rationalized medical evidence to
establish her disability for work during the claimed period due to her accepted June 17, 2013
employment injury.
By letter dated March 14, 2014, appellant, through counsel, requested a telephone hearing
with an OWCP hearing representative.
In an undated letter and visit summary reports dated June 20, 2013 to February 20, 2014,
Dr. Oliverio diagnosed left shoulder pain spasm, a fall at work, hip and thigh injury, undefined
numbness of the left hip, and muscle spasms. He reiterated diagnoses of left hip, thigh, and back
pain and hematoma of the hip. Physical therapy progress notes addressed the treatment of left
shoulder joint pain and lumbar conditions from August 16, 2013 to April 3, 2014.
In a left hip magnetic resonance imaging (MRI) scan report dated December 20, 2013,
Dr. Greg Peters, a Board-certified radiologist, diagnosed very minimal spurring of the left
femoral head and superolateral acetabulum consistent with very mild osteoarthritis. No
paralabral cyst or subchondral cyst were seen. Dr. Peters advised that the MRI scan was
otherwise negative. In a December 20, 2013 left shoulder MRI report, Dr. Peters found
postsurgical changes from a prior rotator cuff repair. Suture anchors were in the region of the
supraspinatus and its junction of the infraspinatus. There was a fluid cleft compatible with
nonwatertight repair or low-grade partial-thickness tear.
Dr. Peters suspected prior
acromioplasty. He found a small acromioclavicular joint ossicle or tiny unfused os acromiale
without edema. There was very minimal spurring of the glenohumeral joint space.
A January 14, 2014 progress note from Dr. Wesley P. Phipatanakul, a Board-certified
orthopedic surgeon, provided a history of the June 17, 2013 employment injury and examination
findings. He assessed left shoulder pain from the June 17, 2013 injury and status post left
shoulder arthroscopic rotator cuff repair performed by him in September 2007. Dr. Phipatanakul
noted that, since her June 2013 work injury, appellant had been unable to return to work.
In a January 23, 2014 report, Dr. Kenneth G. Jordan, a Board-certified internist, provided
a history of the June 17, 2013 employment injury and examination findings. He diagnosed
“7802”3 and indicated that an MRI scan was needed to rule out radiculopathy. Dr. Jordan
provided an impression of left upper and lower extremity radiating paresthesias following
appellant’s June 17, 2013 fall at work. He recommended diagnostic testing to rule out
radiculopathy. In a March 3, 2014 note, Dr. Jordan placed appellant off work through March 31,
2014 due to a consultation with a spine surgeon. In a February 18, 2014 nerve conduction study
report, he provided an impression of severe right carpal tunnel syndrome and mild left carpal
tunnel syndrome. There was no evidence of radiculopathy or peripheral neuropathy.

3

A diagnosis of 7802 is a syncope and collapse.

3

Certificates to return to work/school dated August 5, 2013 to January 27, 2014 and a
prescription dated June 20, 2014 from Oliverio Medical Group contained the same prior
unknown signature and indicated that appellant had a traumatic left shoulder injury secondary to
a fall, and pain and numbness in her left thigh and left shoulder. She was disabled intermittently
for work from June 20, 2013 to February 7, 2014.
An unsigned report dated February 26, 2014 from Jordan Neuroservices provided
appellant’s history regarding her June 17, 2013 employment injury and examination findings.
Appellant was diagnosed as having “7802.” A consultation with a spine surgeon was
recommended as it was not clear whether surgery was required at that time.
In a March 25, 2014 report, Dr. Baher Nashat Boctor, an employing establishment
physician Board-certified in anesthesiology, referred appellant for physical therapy to treat her
lumbar stenosis, lumbar radiculopathy, and lumbar degenerative disc disease.
In letters dated March 31 to August 28, 2014, Dr. William Wel-Jan Jih, a Board-certified
family practitioner, found that appellant was disabled intermittently for work from March 31 to
December 1, 2014. In an October 27, 2014 progress note, he provided appellant’s history
regarding her June 17, 2013 employment injury and examination findings. Dr. Jih assessed the
need for prophylactic vaccination and inoculation against influenza, bilateral carpal tunnel
syndrome, hypertension, and a preoperative examination.
In an October 7, 2014 progress note, Dr. Subhas Chandra Gupta, a Board-certified
anesthesiologist, provided a history of the June 17, 2013 employment injury, appellant’s medical
background, and findings on physical examination. He provided an impression of bilateral
carpal tunnel syndrome, lumbar radiculopathy, and lumbar spinal stenosis. Dr. Gupta
recommended carpal tunnel release.
In an October 27, 2014 progress note, Dr. Boctor noted appellant’s complaints of low
back and neck pain, and headaches since her June 17, 2013 work-related fall. He provided a
history of her medical background and findings on examination. Dr. Boctor reiterated his
assessment of lumbar stenosis, lumbar radiculopathy, and lumbar degenerative disc disease. He
also assessed lumbar spondylosis, lumbar facet arthropathy, and myofascial neck pain.
Progress notes dated March 18 to October 27, 2014 from Dr. Gupta, Dr. Boctor,
Dr. Farbod Asgarzadie, a Board-certified neurosurgeon, and Dr. Jih provided appellant’s history
and examination findings. The physicians diagnosed, among other things, bilateral carpal tunnel
syndrome, lumbar radiculopathy, lumbar spinal stenosis, cervical spinal stenosis, lumbar
spondylosis, lumbar degenerative disc disease with back pain, lumbar facet arthropathy,
myofascial neck pain, lower extremity symptoms, and left shoulder pain, since the June 17, 2013
employment injury. Physical therapy progress notes from April 3 to August 27, 2014 noted
treatment of appellant’s low back pain. The treatment of her shoulder joint pain, lumbar
stenosis, and lumbar radiculopathy were addressed.
In a November 24, 2014 decision, an OWCP hearing representative affirmed the
February 20, 2014 decision, finding that there was no rationalized medical opinion supporting
appellant’s claimed disability commencing November 5, 2013 due to her accepted work injury.

4

By letter dated May 8, 2015, appellant requested reconsideration of the November 24,
2014 decision. She contended that medical records from her previous primary physician and
specialist physicians, and notes from her rehabilitation physical therapists were not
comprehensively reviewed, correlated, and considered in relation to her fall. Appellant
maintained that all these notes revealed how she was examined and treated and how all of her
symptoms and diagnoses of cervical and lumbar spine stenosis progressively developed and
worsened after her fall. She asserted that both of these major medical problems were confirmed
by MRI scan results. Appellant contended that based on a call from an employing establishment
human resources specialist in January 2015, she realized that since her June 17, 2013 fall she was
inadequately informed about what to do as an injured employee and that she should have seen
workers’ compensation physicians and submitted appropriate documentation related to an
incident report. Appellant noted that she had since submitted a picture that showed where she
fell when she accidently stepped on a wet sign board that had fallen in front of her. The picture
proved that the scratches on her elbow resulted from being thrown to an angular sharp part of the
wall where her coworkers found her on her back with her right hand under her neck. Appellant
claimed that her fall caused a hematoma and bruises on the left side of her body and extremities,
and a right hand and wrist injury which required surgery.
Appellant also claimed that a diagnosis and appropriate treatment were delayed.
Dr. Oliverio wanted to rule out internal injury, but OWCP and appellant’s personal health
insurance carrier refused to authorize an MRI scan. Instead, OWCP personnel advised
Dr. Oliverio to initiate physiotherapy first. Appellant contended that she and Dr. Oliverio had
relentlessly requested guidance in writing from claims examiners, but they did not receive any
help until March 10, 2015 when Whitney Synder provided written documentation about the
guidelines. She concluded that she was still in the same medical condition suffering and
struggling day and night due to all of her worsened symptoms of severe back pain, pedal/leg, and
sharp painful cramps from uncontrolled positions especially while asleep.
In a March 25, 2014 progress note, Dr. Boctor provided a history of appellant’s medical
and social background and noted that she complained about chronic low back pain for years. He
reported findings and reviewed diagnostic test results. Dr. Boctor reiterated his assessment of
lumbar stenosis, lumbar radiculopathy, lumbar spondylosis, lumbar degenerative disc disease,
and lumbar facet arthropathy. In a November 3, 2014 addendum note, he clarified that when
appellant presented to his clinic on March 25, 2014, she reported that her back pain had been
aggravated for the last few months before her visit.
An April 2, 2015 State of California Doctor’s First Report of Occupational Injury or
Illness form signed by Dr. Michael D. Wade, Board-certified in emergency medicine, related that
the June 18, 2013 work injury occurred when appellant accidentally slipped on a wet/waxed
floor wet sign that had been leaning against a wall and fell. Appellant attempted to maintain her
balance by holding onto a wall. Dr. Wade referred to an attached supplemental report regarding
appellant’s subjective complaints and his objective findings and diagnoses. He checked a box
marked “no” to the question of whether his findings and diagnosis were consistent with
appellant’s account of injury or onset of illness. Dr. Wade also checked a box marked “no” to
the question of whether there was any other current condition that would impede or delay
appellant’s recovery. In the accompanying supplemental report, he noted that appellant had
subjective complaints related to her neck, back, wrist, hand, ankle, and lower leg. Dr. Wade

5

reported findings of his April 2, 2015 physical examination. He diagnosed cervicalgia, lumbago,
pain in the joints of the shoulder region, forearm, hand, left ankle, left foot, and soft tissues of the
left lower leg. Dr. Wade recommended a comprehensive evaluation by a different treating
physician as he was an acute and subacute treating physician.
In an August 11, 2015 decision, OWCP denied further merit review of appellant’s claim.
It found that the evidence submitted was irrelevant or immaterial.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.4 Section 10.608(a) of OWCP’s regulations provide that a timely
request for reconsideration may be granted if OWCP determines that the claimant has presented
evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).5 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that OWCP
erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new
evidence not previously considered by OWCP.6 Section 10.608(b) provides that when a request
for reconsideration is timely but fails to meet at least one of these three requirements, OWCP
will deny the application for reconsideration without reopening the case for a review on the
merits.7
ANALYSIS
On May 8, 2015 appellant requested reconsideration of the November 24, 2014 hearing
representative’s decision that she was not entitled to compensation for total disability from
November 5 to 16, 2013 resulting from the June 17, 2013 employment injury. The underlying
issue on reconsideration is medical in nature, whether appellant was totally disabled during the
claimed period due to her accepted June 17, 2013 employment injury.
The Board finds that appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant did not advance a relevant legal
argument not previously considered. In her May 8, 2015 request for reconsideration, she
contended that OWCP ignored the medical evidence from her physicians and physical therapists
which established that her cervical and lumbar spinal stenosis, confirmed by MRI scan results,
and continuing symptoms were related to her accepted employment injury. Appellant expressed
her frustration with the workers’ compensation process, contending that the employing
establishment did not adequately inform her about obtaining medical treatment and submitting
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.608(a).

6

Id. at § 10.606(b)(3).

7

Id. at § 10.608(b).

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appropriate documentation related to an incident report. She maintained that a picture showing
where she fell on June 17, 2013 proved that she sustained a hematoma and bruises on the left
side of her body and extremities, and a right hand and wrist injury which required surgery.
Appellant claimed that her diagnosis and appropriate treatment were delayed and described the
difficulty she and Dr. Oliverio had in obtaining authorization for an MRI scan to rule out an
internal injury as a result of her employment-related fall. The relevant issue, however, is
whether she submitted sufficient medical evidence to establish total disability from November 5
to 16, 2013 due to her accepted June 17, 2013 employment injury, which is a medical question
that can only be resolved through the submission of probative medical evidence from a
physician.8 Appellant’s lay opinion is of no probative value as lay individuals are not competent
to render a medical opinion,9 and her contentions are not relevant to the issue involved and thus
are insufficient to warrant reopening her case for merit review.10
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered. Dr. Boctor’s March 25, 2014 progress note assessed appellant as
having lumbar stenosis, lumbar radiculopathy, lumbar spondylosis, lumbar degenerative disc
disease, and lumbar facet arthropathy. He had previously assessed these same conditions in a
March 25, 2014 report and an October 27, 2014 progress note. Moreover, Dr. Boctor did not
provide an opinion addressing whether appellant was totally disabled from November 5 to 16,
2013 due to the accepted June 17, 2013 work injury. Dr. Boctor’s November 3, 2014 progress
notes and Dr. Wade’s April 2, 2015 State of California Doctor’s First Report of Occupational
Injury or Illness form reports addressed appellant’s lumbar, cervical, shoulder, forearm, hand,
left ankle, left foot, and left lower leg conditions, but did not provide an opinion addressing
disability during the claimed period.
Evidence or argument that repeats or duplicates evidence previously of record has no
evidentiary value and does not constitute a basis for reopening a case.11 Likewise, the
submission of evidence that does not address the particular issue involved does not constitute a
basis for reopening a case.12
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For the
reasons stated above, the Board finds counsel’s arguments are not substantiated.

8

L.G., Docket No. 09-1517 (issued March 3, 2010); Gloria J. McPherson, 51 ECAB 441 (2000).

9

See. R.B., Docket No. 15-1143 (issued January 27, 2016).

10

See J.P., 58 ECAB 289 (2007); Freddie Mosley, 54 ECAB 255 (2002) (evidence that does not address the
particular issue involved does not warrant reopening a case for merit review).
11

J.P., supra note 10.

12

S.J., Docket No. 08-2048 (issued July 9, 2009); D’Wayne Avila, 57 ECAB 642 (2006).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 11, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 27, 2016
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
S.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

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

Docket No. 19-0318
Issued: November 12, 2019

Case Submitted on the Record

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

JURISDICTION
On November 26, 2018 appellant, through counsel, filed a timely appeal from an
October 30, 2018 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 issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $882.71 for the period November 27, 2017 through
January 5, 2018 for which she was not at fault; and (2) whether OWCP properly denied waiver of
recovery of the overpayment.
1

5 U.S.C. § 8101 et seq.

2
The Board notes that following the October 30, 2018 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 October 4, 2017 appellant, then a 53-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on September 19, 2017 she sustained a left elbow contusion, and left
hand, bilateral knee, and right ankle injuries when she fell as she stepped out of her vehicle while
in the performance of duty. OWCP accepted the claim for contusions of the left elbow, left hand,
right knee, right middle finger, and ligament sprain of the right ankle.
In a leave analysis report dated December 8, 2017, appellant claimed eight hours of leave
without pay on November 27, 28, and 29, 2017. She then claimed 8 hours of sick leave on
December 1, 2, 4, 5, and 6, 2017, and 6.52 hours of sick leave and 1.48 hours of annual leave on
December 7, 2017.
In a leave analysis report dated December 22, 2017, appellant claimed eight hours of leave
without pay for each of the following days: December 11 through 16, and December 19
through 22, 2017.
In a leave analysis report dated January 5, 2018, received by OWCP on January 18, 2018,
appellant claimed 8 hours of leave without pay for each of the following days: December 23,
December 26 through 30, 2017, January 1, 2018, and January 3, through January 5, 2018.
On January 18, 2018 appellant submitted a claim for compensation (Form CA-7) for leave
without pay for the period November 27, 2017 through January 5, 2018.
A supplemental rolls payment report dated January 26, 2018 indicates that appellant
received $4,562.72 in compensation from OWCP for the period November 27, 2017 through
January 5, 2018, for a total of 40 days of compensation.
In a letter dated February 8, 2018, the employing establishment indicated that appellant
received compensation for paid leave on November 25, 2017 and from December 1 through 7,
2017, and also received compensation from OWCP for temporary total disability (TTD) for
November 27, 2017 through January 5, 2018. It questioned whether appellant had received dual
compensation for these dates. The employing establishment also informed OWCP that appellant’s
rate of pay, effective October 6, 2017, was $61,201.00 annually.
On August 22, 2018 OWCP advised appellant of its preliminary determination that she had
received an $882.71 overpayment of compensation because she received TTD compensation for
the period November 27, 2017 through January 5, 2018, and also used sick and annual leave during
that same period. It explained that she had received $5,044.03 in gross compensation during the
40-day period in question, which included 7 days of gross wage-loss compensation in the amount
of $882.71 during the period December 1 through 8, 2017. OWCP further found that appellant
was without fault in the creation of the overpayment, advised her that she could request waiver of
recovery of the overpayment, and provided an overpayment recovery questionnaire (Form OWCP20) for her completion. It afforded her 30 days to respond and submit supporting financial
documentation.
On September 11, 2018 OWCP received appellant’s completed Form OWCP-20.
Appellant indicated a total monthly income of $3,934.00 and total monthly expenses of $4,679.28,
and reported assets of $20.00 in her checking account. She further argued that she would suffer
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severe financial hardship in trying to repay the debt, and requested waiver of recovery of the
overpayment.
By decision dated October 30, 2018, OWCP finalized the overpayment determination,
finding that an overpayment of compensation in the amount of $882.71 had been created for the
period November 27, 2017 through January 5, 2018. Specifically, it indicated that appellant
received dual compensation for both sick and annual leave, and TTD, for the period December 1
through 7, 2017. OWCP found that she was not at fault in the creation of the overpayment, but
the evidence received was insufficient to require waiver of recovery because appellant was
receiving income from multiple sources including TTD compensation payments, and income
earned by her spouse. It directed appellant to forward payment for the full amount of $882.71
within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA3 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.5
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.6 The Board has determined that if an employee receives sick leave from the employing
establishment at the same time she is being paid compensation, this will cause an overpayment.7
ANALYSIS -- ISSUE 1
The Board finds that appellant received FECA wage-loss compensation on dates in
December 2017 during which she had already been paid sick leave by the employing
establishment. Therefore fact of overpayment is established.
The Board further finds, however, that this case is not in posture for decision with regard
to the period and amount of overpayment. The evidence of record reflects that leave analysis
records pertaining to the relevant time period document that appellant received 48 hours of sick
leave for 6 days during the period December 1 through 7, 2017, and also received TTD
compensation for those dates. However, the employing establishment has indicated that appellant
3

Supra note 1.

4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 8116(a).

7

T.R., Docket No. 15-1374 (issued September 16, 2016).

3

received 56 hours of sick and annual leave for seven days during this time period. OWCP
calculated the amount of the overpayment based upon appellant’s receipt of 56 hours of sick and
annual leave compensation during this time period. This discrepancy was not resolved prior to
calculation of the amount of the overpayment.
Furthermore, the Board notes that OWCP calculated the amount of overpayment based
upon gross compensation. An overpayment of compensation based upon dual receipt of sick leave
and FECA benefits is based upon net, rather than gross compensation.8
This case therefore must be remanded for OWCP to determine whether appellant received
six or seven days of pay for leave during the period November 27, 2017 through January 5, 2018.
OWCP should thereafter recalculate the amount of the overpayment of compensation based upon
the net wage-loss compensation it paid during this time period. After such further development as
necessary, OWCP shall issue a de novo decision.9

8
9

Id.
In light of the disposition of Issue 1, the issue of waiver of recovery of overpayment, Issue 2, is moot.

4

CONCLUSION
The Board finds that appellant received an overpayment of compensation, but that the case
is not in posture for decision regarding the period and amount of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the October 30, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: November 12, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond Heights, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-763
Issued: July 17, 2007

Case Submitted on the Record

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

JURISDICTION
On January 25, 2007 appellant filed a timely appeal of a February 4, 2007 decision of the
Office of Workers’ Compensation Programs, rescinding acceptance of his claim for a recurrence
of disability on January 13, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether the Office met its burden of proof to rescind acceptance of
appellant’s recurrence of disability claim.
FACTUAL HISTORY
On April 11, 2002 appellant, then a 21-year-old mail carrier, filed a traumatic injury
claim alleging that he injured his right elbow, right shoulder and right side. As he exited his
delivery vehicle he struck his elbow on the door lock hinge. The Office accepted appellant’s
claim for a right elbow strain, sprain and contusion and a right shoulder strain and sprain.
Appellant returned to full duty in August 2002.

On January 11, 2006 Dr. Curtis W. Smith, an attending orthopedic surgeon, provided
findings on physical examination. He stated that appellant experienced an acute exacerbation of
his right elbow pain but no new trauma. Dr. Smith released appellant to return to work the
following day. However, on January 18, 2006 he stated that appellant was disabled from
January 14 to February 15, 2006.
On January 18, 2006 appellant filed a claim for a recurrence of disability commencing
January 13, 2006.
On February 8, 2006 Dr. Smith provided findings on physical examination and indicated
that appellant’s right elbow contusion “could” have produced an osteochondral defect and
effusion as shown on a January 30, 2006 magnetic resonance imaging (MRI) scan. He indicated
that appellant needed arthroscopic surgery.
On April 21, 2006 the Office accepted appellant’s claim for a recurrence of disability on
January 13, 2006.
In a report dated April 19, 2006, received by the Office on May 1, 2006, Dr. Karl V.
Metz, a Board-certified orthopedic surgeon and an Office referral physician, provided findings
on physical examination and a history of appellant’s condition. He stated:
“Examination right shoulder: Range of motion -- flexion 95 degrees, extension
25 degrees, abduction 90 degrees, adduction 0 degrees, external rotation 45
degrees, internal rotation 50 degrees. There was no discoloration, swelling,
scarring or increased warmth of the right shoulder. [Appellant] complained of
moderate tenderness with palpation over the right superior trapezius, as well as
anterior, lateral and posterior subacromial bursa. He also complained of moderate
tenderness over the biceps tendon and the anterior capsule. There was no
crepitation with active range of motion, however, [appellant’s] motion was
guarded and limited.
“The right arm was 0.5 [centimeters] smaller than the left on circumferential
measurement…. Reflex testing of the …. right upper extremity was considered
invalid because of guarding of the shoulder and elbow. Impingement maneuvers
were attempted, but were invalid because of marked guarding of the shoulder.
Motor testing and instability could not be adequately assessed because of
guarding….
“Examination right elbow: Range of motion -- flexion 95 degrees, extension -50
degrees…. There was no discoloration, swelling, scarring, increased warmth or
crepitation of the right elbow. [Appellant] would not permit adequate palpation
of the elbow stating that it was ‘too tender to touch.’ Medial and lateral
epicondyle by visualization, appeared comparable to the left, however, [appellant]
would not permit palpation. On sensory assessment of the right upper extremity,
[appellant] complained of altered sensation from the shoulder to the proximal
forearm, but sensation was intact from that level to his hand. The right forearm

2

was one [centimeter] larger than the left on circumferential measurements. Motor
testing and instability were not able to be assed because of guarding.”
***
“The current definitive diagnos[e]s of [appellant’s] conditions include the allowed
[accepted] conditions -- right elbow strain, right shoulder strain and right elbow
contusion. In addition, it is my opinion that additional conditions exist
concerning [appellant’s] right elbow which are based upon an MRI [scan] done on
[January 30, 2006] and include joint space narrowing (degenerative arthritis), and
osteochondral defect of the capitulum along with subchondral cyst formation of
the capitulum and effusion of the right elbow.
“Radiographic studies revealed extensive degenerative arthritis of [appellant’s]
right AC [acromioclavicular] joint, along with cuff tend[i]nitis. [His] current
right shoulder debility, in my opinion, is related to those chronic conditions.”
***
“The medical record indicates that [appellant] returned to work in a full[-]duty
capacity around [August 1, 2002], although [he] stated that he did not return to
work for a year and a half after his injury. Based upon that information, it is my
opinion, within reasonable certainty, that the [accepted] conditions -- right elbow
strain, right shoulder strain and right elbow contusion had healed and were at
MMI [maximum medical improvement] at the time of his return to work. This
opinion is supported by radiographic studies which revealed no abnormalities of
the right elbow other than a small olecranon spur and a small joint effusion of the
elbow.”
***
“[Appellant’s] inability to return to full[-]duty status, in my opinion, is due to
conditions unrelated to the [accepted] conditions of this claim.”
***
“In view of the fact that [appellant] returned to full duty following his original
injury and radiographic studies failed to reveal any significant bony abnormality
until almost four years following his injury of record, it is my opinion that other
nonallowed [nonaccepted] conditions have evolved which are responsible [for
appellant’s] current and ongoing complaints, as were identified in the MRI [scan]
of [January 30, 2006]. Based upon this data, it is my opinion that the claim
should not be expanded to include an effusion of the [right] elbow with
osteochondral defect involving the capitulum.”
On May 23, 2006 the Office asked Dr. Smith for a report explaining how appellant’s
current problems were causally related to his April 11, 2002 employment injury. On May 31,

3

2006 Dr. Smith diagnosed a contusion and strain of the right elbow and shoulder and stated that
appellant’s conditions were “the direct result of his industrial accident.”
By decision dated June 23, 2006, the Office denied appellant’s claim for a recurrence of
disability on March 4, 2006.
On July 5, 2006 appellant requested a hearing that was held on November 6, 2006.
On February 4, 2007 the Office hearing representative modified the June 23, 2006
decision to find that the Office rescinded acceptance of appellant’s claim for a recurrence of
disability on January 13, 2006. The report of Dr. Metz established that appellant’s right upper
extremity conditions on January 13, 2006 were not causally related to his April 11, 2002
employment-related right elbow strain, sprain and contusion and right shoulder strain and sprain.
The hearing representative affirmed the June 23, 2006 decision and modified it to reflect that the
proper issue was rescission of acceptance of the January 13, 2006 recurrence of disability.1
LEGAL PRECEDENT
The Board has upheld the Office’s authority to reopen a claim at any time on its own
motion under 5 U.S.C. § 8128 and, where supported by the evidence, set aside or modify a prior
decision and issue a new decision.2 The Board has noted, however, that the power to annul an
award is not an arbitrary one and that an award for compensation can only be set aside in the
manner provided by the compensation statute.3 It is well established that once the Office accepts
a claim, it has the burden of justifying termination or modification of compensation.4 This holds
true where the Office later decides that it has erroneously accepted a claim for compensation.5 In
establishing that its prior acceptance was erroneous, the Office is required to provide a clear
explanation of its rationale for rescission.6
ANALYSIS
The Board finds that the Office properly rescinded acceptance of appellant’s claim for a
recurrence of disability on January 13, 2006 on the grounds that the evidence of record did not
establish that the recurrence of disability was causally related to his accepted right upper
extremity conditions sustained on April 11, 2002. In rescinding acceptance of the claim, the
1

Subsequent to the February 4, 2007 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

See Andrew Wolfgang-Masters, 56 ECAB ___ (issued March 22, 2005); Linda L. Newbrough, 52 ECAB 323
(2001); see also 20 C.F.R. § 10.610.
3

Doris J. Wright, 49 ECAB 230 (1997).

4

Linda L. Newbrough, supra note 2.

5

Id.; Gareth D. Allen, 48 ECAB 438 (1997).

6

Delphia Y. Jackson, 55 ECAB 373 (2004); Belinda R. Darville, 54 ECAB 656 (2003).

4

Office provided a clear explanation of its rationale for the rescission. It explained in detail how
the comprehensive and well-rationalized April 19, 2006 report of Dr. Metz established that
appellant’s claimed recurrence of disability on January 13, 2006 was not causally related to the
April 11, 2002 employment injury. The report of Dr. Metz was based upon a complete and
accurate factual and medical background and detailed findings on physical examination. His
report contained substantial medical rationale for his opinion. Dr. Metz stated that the accepted
conditions, right elbow strain, right shoulder strain and right elbow contusion had healed as of
appellant’s return to full duty in August 2002. He explained that his opinion was supported by
the radiographic studies in 2006 which revealed no abnormalities of the right elbow, other than a
small olecranon spur and a small joint effusion of the elbow. Dr. Metz stated that the right elbow
and shoulder conditions revealed in the January 30, 2006 MRI scan and in x-rays, joint space
narrowing (degenerative arthritis) and osteochondral defect of the capitulum along with
subchondral cyst formation of the capitulum and effusion of the right elbow and extensive
degenerative arthritis of the right shoulder AC joint and cuff tendinitis were unrelated to
appellant’s 2002 injury. He stated that in view of the fact that appellant returned to full duty
following his original injury and radiographic studies failed to reveal any significant bony
abnormality until almost four years following his April 11, 2002 employment injury, it was his
opinion that the conditions diagnosed in 2006 were not caused or aggravated by the April 11,
2002 right upper extremity conditions.
In contrast to Dr. Metz’s report, Dr. Smith provided little rationale for his stated opinion.
He stated that appellant’s right elbow contusion “could” have produced an osteochondral defect
and effusion as shown on a January 30, 2006 MRI scan. Dr. Smith stated that appellant’s
continuing problems with his right upper extremity were “the direct result of his industrial
accident” but did not support his opinion with medical rationale explaining the basis for causal
relationship.
The Board finds that the Office met its burden of proof to rescind its acceptance of
appellant’s recurrence of disability on January 13, 2006 based on the thorough and wellrationalized April 19, 2006 report of Dr. Metz which established that appellant’s claimed
recurrence of disability on January 13, 2006 was not causally related to his April 11, 2002
employment injury.
CONCLUSION
The Board finds that the Office met its burden of proof in rescinding its acceptance of
appellant’s January 13, 2006 recurrence of disability.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 4, 2007 is affirmed. The June 23, 2006 decision is
affirmed, as modified, in the February 4, 2007 Office decision.
Issued: July 17, 2007
Washington, DC

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

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

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

6