United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
GARRISON, Fort George G. Meade, MD,
Employer
__________________________________________

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

Docket No. 10-1518
Issued: February 16, 2011

Case Submitted on the Record

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

JURISDICTION
On March 17, 2010 appellant filed a timely appeal from the January 27, 2010 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant’s disability from August 2 to November 7, 2009 was
causally related to her August 8, 2007 right knee injury.
FACTUAL HISTORY
On February 8, 1996 appellant, then a 39-year-old management analyst, filed a claim
alleging that she injured her right knee (and back) in the performance of duty when she tripped

on a telephone cord and fell to the floor. The Office accepted her claim as an uncontroverted notime-lost case.1
Appellant filed a recurrence claim alleging that on August 8, 2007 her right knee gave out
en route to get a new civilian identification card for her work/computer. She stated that she fell
pretty hard. The Office treated this as a new traumatic injury and accepted her claim for
aggravation of osteoarthritis and degenerative joint disease, right knee.2
Appellant appears to have undergone a right medial unicondylar knee replacement on
November 27, 2007.
Radiographs on August 26, 2008 showed a well-placed Oxford
unicompartmental knee replacement functioning normally, although the lateral compartment
seemed to have rapidly progressed with arthritis.
Appellant’s left knee had been giving her problems since at least 2003. X-rays on June 2,
2006 showed only a millimeter of joint space medially on the left.
On June 1, 2009 appellant underwent a total left knee arthroplasty. She saw her
orthopedic surgeon, Dr. Nicholas P. Grosso, on August 27, 2009 for follow up. Appellant was
progressing nicely with some lateral and medial pain. She was to continue working on her
progress with the left knee over the next month and then follow up with reexamination.
Appellant’s right knee was also bothering her, but Dr. Grosso wanted to get her “over the hump”
with her left knee before any further treatment, if necessary, on the right.
Appellant claimed compensation for wage loss from August 2 to November 7, 2009.
On January 20, 2010 Dr. Grosso attributed appellant’s left knee condition in part to her
inability to bear full weight on her right, which significantly impacted the left knee causing it to
degenerate more quickly than it would have otherwise. He reiterated his opinion on
February 25, 2010:
“[Appellant] had seen me with basically knee problems coming from a significant
right knee problem after a unicompartmental knee arthroplasty. [She] was on
assisted ambulation, putting all her weight on her left knee for many months.
This in my opinion caused a left knee to degenerate quicker than it would have in
other instance and ultimately required a total knee arthroplasty. [Appellant] was
significantly disabled after the total knee arthroplasty during recovery.
“I do believe within a reasonable amount of medical certainty that the
exacerbation of her left knee degenerative changes [was] significantly impacted
by her inability to ambulate normally after her right knee surgery.”
In a decision dated January 27, 2010, the Office denied appellant’s claim for wage-loss
compensation from August 2 to November 7, 2009. It noted that it appeared appellant was
claiming compensation because of a total knee replacement on the left, which was not accepted
1

OWCP File No. xxxxxx385 (master file).

2

OWCP File No. xxxxxx837 (subsidiary file).

2

as employment related. The Office found that Dr. Grosso’s rationale was insufficient to warrant
expansion of appellant’s claim to include her left knee condition or her June 1, 2009 left knee
surgery.
On appeal, appellant reiterates Dr. Grosso’s opinion. She explains that she is out of work
indefinitely and that she is having trouble paying her mortgage and monthly bills. Appellant
does not have the funds to pay her daughter’s last year at Howard University. Creditors are
contacting her family members trying to get in touch with her. Appellant explained that
indebtedness problems could affect her security clearance. She noted that the Office approved
compensation for the right knee but nothing for the left and though her right knee and a
neck/back claim were approved, she has never received compensation.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of her duty.3
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.4
A claimant seeking benefits under the Act has the burden of proof to establish the
essential elements of her claim by the weight of the evidence,5 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.6
It is not sufficient for the claimant to establish merely that she has disability for work.
She must establish that her disability is causally related to the accepted employment injury. The
claimant must submit a rationalized medical opinion that supports a causal connection between
her current disabling condition and the employment injury. The medical opinion must be based
on a complete factual and medical background with an accurate history of the employment
injury, and must explain from a medical perspective how the current disabling condition is
related to the injury.7
ANALYSIS
Appellant claims wage-loss compensation from August 2 to November 7, 2009. She
therefore has the burden to establish that her disability during this period was causally related to
her August 8, 2007 employment injury.

3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f).

5

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

6

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

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Dr. Grosso, the orthopedic surgeon, offered an opinion supporting causal relationship.
He believed to a reasonable medical certainty that appellant’s inability to ambulate after her right
knee unicompartmental knee arthroplasty caused her to put all her weight on her left knee for
many months, which in turn caused her left knee to degenerate more quickly, ultimately
requiring a total knee replacement. The claimed disability, Dr. Grosso indicated, was a result of
her recovery from the left knee surgery.
Dr. Grosso thus constructed a rational theory that connects appellant’s August 8, 2007
right knee injury, or at least her June 1, 2009 right knee arthroplasty, to her total left knee
replacement on June 1, 2009 and subsequent disability. The problem with this theory is that he
offered no factual basis for the supposed exacerbation. If placing more weight on the left knee
caused appellant’s left knee to degenerate more quickly, Dr. Grosso should be able to produce
the clinical findings, imaging studies or other documentation demonstrating the accelerated rate
of degeneration. Without that kind of objective proof, and without a sound explanation of how
that evidence shows a degenerative process progressing faster than normal, his opinion amounts
to little more than speculation on what might have happened.
Although the opinion of a physician supporting causal relationship does not have to reduce
the cause or etiology of a disease or condition to an absolute medical certainty, neither can such
opinion be speculative or equivocal.8 Also, if Dr. Grosso were reasonably certain that the
degenerative process he was witnessing on the left was accelerating after the partial right knee
replacement, it is fair to ask whether he noted this at the time, and if not, why.
The medical opinion evidence draws a connection between appellant’s right knee
unicompartmental arthroplasty and her claimed disability from August 2 to November 7, 2009.
That evidence it is not sufficiently rationalized to discharge appellant’s burden to establish causal
relationship. The Board will therefore affirm the Office’s January 27, 2010 decision denying her
disability claim.
Appellant argues on appeal that the Office has not paid compensation after accepting her
right knee injury. It appears the only compensation she has claimed for this injury is
compensation for wage loss from August 2 to November 7, 2009. The record shows that
appellant filed a recurrence claim for her fall on August 8, 2007. She indicated on that form that
she stopped work on August 8, 2007 and returned to work two days later. As the Office accepted
this as a traumatic injury, it should determine whether appellant is entitled to continuation of pay
or to any compensation for wage loss that week. It should also determine whether her
November 2007 right knee surgery was authorized or causally related to the accepted right knee
injury, and if so, whether she is entitled to compensation for any wage loss resulting from that
surgery.

8

Philip J. Deroo, 39 ECAB 1294 (1988); Jennifer Beville, 33 ECAB 1970 (1982) (statement of a Board-certified
internist that the employee’s complaints “could have been” related to her work injury was speculative and of limited
probative value).

4

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
disability from August 2 to November 7, 2009 was causally related to her August 8, 2007 right
knee injury.
ORDER
IT IS HEREBY ORDERED THAT the January 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed. The case is remanded for further action
consistent with this opinion.
Issued: February 16, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 19-0915
Issued: November 22, 2019

Case Submitted on the Record

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

JURISDICTION
On March 25, 2019 appellant, through counsel, filed a timely appeal from a November 8,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a left lower
extremity condition causally related to the accepted June 6, 2013 employment incident.
FACTUAL HISTORY
On June 7, 2013 appellant, then a 54-year-old marine machine mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on June 6, 2013 he sustained an upper left leg (groin) area
injury while in the performance of duty. He indicated that he slipped while descending a ladder at
work and felt a twinge in his left leg. Appellant did not stop work.
Appellant submitted two reports dated June 6, 2013 from Dr. Nicolas L. Schockett3 who
indicated that appellant had tripped while descending a ladder and landed on his left leg. He
presented with complaints of left leg pain around the groin area.
In a separate narrative statement dated June 6, 2013, appellant indicated that at
approximately 7:30 a.m. on June 6, 2013 he was descending the main ladder (stairwell) on the
USS New York when his right foot got stuck. When it became free, his left leg slipped and he
later felt a sharp pain in the groin area of his left leg. Appellant stated that it became very difficult
to put full weight on his left leg.
On May 14, 2014 Dr. Edward W. Lambert, a Board-certified orthopedic surgeon, indicated
that appellant was seen for a preoperative orthopedic examination for a left total hip arthroplasty
which he performed on June 6, 2014. In a duty status report (Form CA-17) dated June 10, 2014,
he advised that appellant was totally disabled from work due to slipping and straining his left hip.
In reports dated June 18 and July 21, 2014, Dr. Jennifer B. Bernstein, a neurologist,
diagnosed osteoarthritis localized primary, left hip.
On July 21, 2014 Dr. Devin Oakes, a general practitioner, advised that appellant would be
working full duty when he returned from leave on August 11, 2014.
In an attending physician’s report (Form CA-20) dated November 3, 2014, Dr. Prashant
Bagalkotkar, a family practitioner, diagnosed osteoarthritis and related that appellant had fallen
down a ladder and injured his left hip. In a duty status report (Form CA-17) dated November 4,
2014, Dr. Bagalkotkar diagnosed “sprain” and released appellant to full-time work as of
June 6, 2013.
On January 5, 2015 Dr. Lambert opined that appellant had fully recovered from his left hip
replacement and provided work restrictions of no ladder climbing, no crawling, no walking on
uneven surfaces, and no heavy lifting/carrying more than 45 pounds.

3

The Board is unable to determine the specialty of Dr. Schockett.

2

In an April 24, 2017 report, Dr. Bagalkotkar opined that appellant had reached maximum
medical improvement (MMI).
On October 23, 2017 counsel requested a schedule award on behalf of appellant and
submitted a report dated October 9, 2017 from Dr. Robert W. Macht, a general surgeon, who
diagnosed status post total left hip replacement surgery and status post total left knee replacement
surgery and opined, based on the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment4 (A.M.A., Guides) that appellant had 74 percent permanent
impairment of the left lower extremity due to his status post total left hip and left knee replacements
surgeries.
In a March 15, 2018 development letter, OWCP indicated that when appellant’s claim was
received it appeared to be a minor injury that resulted in minimal or no lost time from work and,
based on these criteria and because the employing establishment did not controvert continuation
of pay or challenge the case, payment of a limited amount of medical expenses was
administratively approved. It indicated that it had reopened the claim for formal consideration
because a claim for wage-loss compensation had been received. OWCP requested that appellant
provide additional factual and medical information in support of his claim, and afforded him 30
days to respond.5
By decision dated April 19, 2018, OWCP accepted that the June 6, 2013 employment
incident occurred as alleged, but denied appellant’s claim, finding that he had not established a
diagnosed medical condition causally related to the accepted employment incident and, thus, the
requirements had not been met for establishing an injury as defined by FECA.
On April 24, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
A telephonic hearing was held before an OWCP hearing representative on
August 27, 2018. Appellant provided testimony and the hearing representative held the case
record open for 30 days for the submission of additional evidence.
Appellant subsequently submitted a report dated September 20, 2018 from
Dr. Bagalkotkar. He stated that appellant was injured on the job on June 6, 2013 and was evaluated
that same day by another provider who had diagnosed left groin strain as a result of tripping down
a ladder, falling and landing on the left leg. Dr. Bagalkotkar found that an x-ray of the left hip
showed moderate arthritis in both hips, left worse than right. Conservative treatment was
administered with anti-inflammatory medications and appellant eventually underwent a left total
hip replacement in June 2014. Dr. Bagalkotkar indicated that appellant had asymptomatic arthritis
prior to injury and he opined that this injury could have significantly accelerated his arthritis in the
left hip due to his traumatic injury. He stated that it was uncommon for arthritis to progress so
rapidly without other significant contributing factors. Dr. Bagalkotkar concluded that if this injury

4

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

5

On March 16, 2018 appellant filed a claim for a schedule award (Form CA-7).

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had not occurred, appellant’s arthritis would not have progressed so rapidly to require surgery
within one year of his fall.
By decision dated November 8, 2018, OWCP’s hearing representative affirmed OWCP’s
April 19, 2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.7 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.9 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.12 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).13

6

Supra note 2.

7

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
8

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

9

G.C., Docket No. 18-0506 (issued August 15, 2018).

10

Id.

11

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018).

13

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left lower
extremity condition causally related to the accepted June 6, 2013 employment incident. In support
of his claim, appellant submitted several reports from Dr. Bagalkotkar. Dr. Bagalkotar did not
provide an opinion on causal relationship in either his November 4, 2014 duty status report (Form
CA-17) or his April 24, 2107 narrative. As such, the Board finds that these reports are of no
probative value. Medical evidence that does not offer an opinion regarding the cause of an
employee’s condition or disability is of no probative value on the issue of causal relationship.15
In his September 20, 2018 report, Dr. Bagalkotkar explained that appellant had
asymptomatic arthritis prior to the alleged employment incident. He opined that the traumatic
employment incident on June 6, 2013 accelerated appellant’s left hip arthritis, noting that it was
uncommon for arthritis to progress so rapidly without other contributing factors. While he
identified the specific employment incident alleged by appellant, he did not provide a
pathophysiological explanation as to how those activities either caused or contributed to
appellant’s diagnosed condition.16 The Board has consistently held that complete medical
rationalization is particularly necessary when there are preexisting conditions involving the same
body part,17 and has required medical rationale differentiating between the effects of the workrelated injury and the preexisting condition in such cases.18 Thus, the Board finds that the report
from Dr. Bagalkotkar is insufficient to meet appellant’s burden of proof.
Dr. Lambert, in a report dated June 10, 2014, described the June 6, 2013 employment
incident and offered an opinion generally supporting causal relationship. While he opined that
appellant was totally disabled for work due to slipping and straining his left hip, he did not
sufficiently explain how falling off a ladder caused the strain or why employment factors occurring
over the course of only one day caused or contributed to his osteoarthritis and left hip replacement
surgery. As noted, the need for medical rationale is particularly important given that Dr. Lambert
was treating appellant for a preexisting condition.19 Dr. Lambert did not sufficiently explain how
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
15

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

16

Id.

17

K.R., Docket No. 18-1388 (issued January 9, 2019).

18

See, e.g., A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued December 31,
2018); J.B., Docket No. 17-1870 (issued April 11, 2018); E.D., Docket No. 16-1854 (issued March 3, 2017); P.O.,
Docket No. 14-1675 (issued December 3, 2015).
19

Id.

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the accepted work incident altered appellant’s preexisting conditions, and thus his opinion is of
diminished probative value.20
Although Dr. Lambert provided work restrictions in his January 5, 2015 report, he did not
address whether the restrictions were due to the effects of the accepted June 6, 2013 employment
incident. As he did not provide an opinion on causal relationship, his report is of no probative
value.21 Thus, it too is insufficient to establish appellant’s claim.
Appellant was also followed by Drs. Bernstein, Oakes, Schockett, and Macht; however, as
none of these physicians addressed causal relationship, their reports are of no probative value and
insufficient to meet appellant’s burden of proof.22
As appellant has not submitted rationalized medical evidence sufficient to establish an
injury causally related to the accepted employment incident, the Board finds that he has not met
his burden of proof.
On appeal counsel contends that Dr. Bagalkotkar’s report was relevant, probative, and
rationalized; therefore, appellant’s claim should have been accepted. However, as explained
above, Dr. Bagalkotkar’s reports, as well as the other medical reports of record, are insufficient to
meet appellant’s burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left lower
extremity condition causally related to the accepted June 6, 2013 employment incident.

20

K.C., Docket No. 17-1693 (issued October 29, 2018).

21

See supra note 14.

22

T.R., Docket No. 18-1272 (issued February 15, 2019); see also L.B. and D.K., supra note 15.

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ORDER
IT IS HEREBY ORDERED THAT the November 8, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 22, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, CHARLOTTE-DOUGLAS
INTERNATIONAL AIRPORT, Charlotte, NC,
Employer
__________________________________________

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

Docket No. 09-1430
Issued: December 30, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 18, 2009 appellant filed a timely appeal from an April 20, 2009 merit decision of
the Office of Workers’ Compensation Programs affirming an October 1, 2008 merit decision
denying her claim. 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 appellant established that she sustained an injury in the performance
of duty on July 14, 2008 causally related to her employment.

FACTUAL HISTORY
On July 17, 2008 appellant, a 49-year-old transportation security officer, filed a traumatic
injury claim1 (Form CA-1) alleging that, on July 14, 2008, as she was going to an office to speak
with a scheduling officer, she walked into a partition wall, sustaining an aggravated lumbar disc
problem.2
On March 12, 2007 Dr. Chason Hayes, a Board-certified orthopedic surgeon, performed
arthroscopic surgery on appellant’s left shoulder. He diagnosed left shoulder rotator cuff
syndrome and global instability.
Appellant submitted a July 15, 2008 progress note from Ann Watts, a nurse practitioner,
who noted appellant’s history of injury and thereafter assessed her condition as low back pain
with radiculopathy and left shoulder pain.
On July 16, 2008 Dr. Neal M. Goldberger, a Board-certified anesthesiologist, noted
appellant’s history of injury, reported findings on examination and diagnosed nerve root
irritation with radicular pain as well as bilateral sacroiliac joint bursitis.
On July 18, 2008 Dr. Hayes noted appellant’s history of injury, reported findings on
examination and diagnosed recurrent left shoulder instability and acute lumbar strain.
On August 1, 2008 Dr. David Nelson, a radiologist, reported that magnetic resonance
imaging (MRI) scans of appellant’s lumbar spine revealed small disc protrusions at multiple
levels, some degenerative changes in her lumbar spine and sacroiliac joints bilaterally, and a
transitional type vertebral body at the lumbosacral junction.
On August 13 and September 10, 2008 Dr. Goldberger reported that appellant was post
left shoulder arthroscopic surgery. He diagnosed bilateral sacroiliac joint bursitis and lumbar
nerve root irritation.
In a September 10, 2008 note, appellant described the events of July 14, 2008, her
symptoms, medications, her history of injury as well as her other back-related workers’
compensation claims.

1

In addition to several prior shoulder-related traumatic injury claims, appellant has two prior back-related
traumatic injury claims. Under claim number xxxxxx892, on January 29, 2004 appellant allegedly sustained a
pulled low back muscle. This claim was administratively accepted without review for a limited time and medical
expense. Under claim number xxxxxx192, on April 1, 2005 appellant allegedly sustained a traumatic injury. This
claim was accepted for lumbar strain, but all benefits were terminated by decision dated June 13, 2006 because the
Office found that the accepted condition had resolved. This decision was affirmed on appeal after appellant sought
reconsideration.
2

The Board notes that the Office issued a Form CA-16. A properly executed Form CA-16 creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989). The CA-16 issued to
appellant did not authorize either examination or treatment and was therefore not properly executed.

2

By decision dated October 1, 2008, the Office denied the claim. While it accepted that
the incident occurred as alleged, it denied the claim because the medical evidence of record did
not demonstrate that the accepted employment incident caused a medically-diagnosed injury.
On October 6, 2008 appellant, through her attorney, requested an oral hearing.
Following a hearing conducted on February 18, 2009, at which appellant described the
events of July 14, 2008, by decision dated April 20, 2009, the Office affirmed its October 1,
2008 decision because the evidence of record did not establish that the accepted employment
incident caused a medically-diagnosed injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,4
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.5 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.6 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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.8

3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
6

G.T., supra note 5; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

3

ANALYSIS
The Office accepted that the employment incident occurred as alleged. Appellant’s
burden is to establish that the accepted employment incident caused a medically diagnosed
injury. As noted above, causal relationship is a medical issue that can only be proven through
production of rationalized medical opinion evidence.9 Appellant has not submitted sufficient
medical opinion evidence and therefore the Board finds she has not established that she sustained
an injury in the performance of duty on July 14, 2008.
Although Drs. Goldberger and Hayes related appellant’s history of injury and diagnosed
several conditions, they never explained how the accepted employment incident caused or
aggravated any of the conditions they diagnosed.10 Appellant must submit rationalized medical
evidence which based on an accurate history of injury, explains how the employment injury
physiologically caused the diagnosed condition. She did not submit any rationalized medical
evidence in support of her claim. This deficiency reduces the probative value of the medical
opinions such that their reports are insufficient to satisfy appellant’s burden of proof.11
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.12
The Board finds appellant has not established that she sustained an injury in the
performance of duty on July 14, 2008 causally related to her employment.
CONCLUSION
The Board finds appellant has not established that she sustained an injury in the
performance of duty on July 14, 2008 causally related to her employment.

9

Appellant submitted reports signed by a nurse practitioner. Because healthcare providers such as nurses,
acupuncturists, physician’s assistants and physical therapists are not considered physicians under the Act, their
reports and opinions do not constitute competent medical evidence. 5 U.S.C. § 8101(2); see also G.G., 58 ECAB
___ (Docket No. 06-1564, issued February 27, 2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J. Williams,
40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983). Therefore these reports have no evidentiary value.
10

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value). See also Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52
ECAB 332 (2001).
11

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
12

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4

ORDER
IT IS HEREBY ORDERED THAT the April 20, 2009 and October 1, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 30, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


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

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Appearances:
Lenin V. Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 12-922
Issued: October 19, 2012

Case Submitted on the Record

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

JURISDICTION
On March 19, 2012 appellant, through his representative, filed a timely appeal from a
February 16, 2012 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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability commencing March 8, 2011 causally related to his May 30, 2007 accepted work injury.
FACTUAL HISTORY
On May 30, 2007 appellant, then a 55-year-old letter carrier, was lifting a bucket of mail
into a truck for delivery and injured his low back. OWCP accepted lumbar strain and lumbar
radiculitis. Appellant was treated in an emergency room on May 30, 2007 for a low back injury.
1

5 U.S.C. §§ 8101-8193.

A magnetic resonance imaging (MRI) scan of the lumbar spine dated May 30, 2007 revealed no
abnormalities. Appellant stopped work on May 31, 2007 and was released to full-time regularduty work on June 18, 2007.
Appellant was treated by Dr. James Billys, a Board-certified orthopedist, from August 2,
2010 to January 21, 2011, for low back and right leg pain. He reported injuring his back after
picking up a bucket of melons. Dr. Billys noted that appellant was treated with intradiscal
steroid injection and transforaminal epidurals injections. He diagnosed mild foraminal stenosis
at L4-5 and an annual tear at L4-5. An MRI scan of the lumbar spine dated August 11, 2010
revealed mild L4-5 degenerative disc disease with mild canal stenosis.
In a January 21, 2011 report, Dr. Billys noted that appellant had an accident in
December 2010 when he fell off a ladder and sustained a concussion. Appellant was off work
for one month and was due to return to work with no restrictions. X-rays of the cervical and
lumbar spine revealed degenerative changes. Dr. Billys diagnosed spinal stenosis and lumbar
region, pain in the joint involving other sites. In an excuse from work slip dated March 8, 2011,
he noted that appellant was off work until March 17, 2011. In a work capacity evaluation dated
March 17, 2011, Dr. Billys stated that appellant had not reached maximum medical improvement
and was not capable of performing his usual job. Appellant was totally disabled and would
require lumbar surgery. In an excuse from work form of that same date, Dr. Billys noted that
appellant was off work due to pain and needed lumbar surgery.
On March 8, 2011 appellant filed CA-7 forms, claims for compensation, for total
disability for the period beginning March 8, 2011.
In a March 25, 2011 letter, OWCP advised appellant of the evidence needed to establish
his claim for a recurrence of disability. It requested that he submit a physician’s reasoned
opinion addressing the relationship of his present condition to his work injury.
In a March 17, 2011 report, Dr. Billys noted that appellant was five days postlumbar
steroid injections and his back and leg pain returned. The pain medication was not helping and
appellant could not work due to pain. On examination, Dr. Billys noted an antalgic gait, limited
bending, pain on range of motion and lumbar, buttock and trochanter area tenderness. Deep
tendon reflexes were equal and symmetrical and sensory examination was normal. Dr. Billys
diagnosed mild L4-5 degenerative disc disease with mild canal stenosis and recommended
surgery. In a March 22, 2011 report, x-rays showed a grade 1 spondylolisthesis at L4-5 and a
computerized tomography (CT) scan revealed spondylolysis at this level with central canal
stenosis. Dr. Billys opined that conservative care failed and recommended surgery. A
March 21, 2011 CT scan of the lumbar spine revealed L4-5 mild central spinal stenosis, bilateral
spondylolysis at L4-5, diffuse annual bulging at multiple levels and osteophytic change at the
facet joints.
On March 30, 2011 appellant was advised that OWCP could not authorize lumbar spine
fusion as he had intervening injuries in December 2010 due to a fall from a ladder, a May 2010
lifting incident involving a bucket of melons, a January 19, 2010 work incident when he lifted
two trays of mail above his head and a April 14, 2010 work injury while loading a large parcel

2

onto his mail truck. OWCP requested that he submit information showing how the surgery
resulted from the May 30, 2007 work injury.
In an April 11, 2011 report, Dr. William Neese, an osteopath, obtained a history that
appellant injured his back on May 30, 2007 when he fell out of a delivery truck at work.
Appellant also sustained a back injury while in the military. Dr. Neese diagnosed cervical sprain
and strain, lumbar sprain and strain, retrolisthesis at C4-5, herniated disc at C3-4 and C4-5,
osteophyte complex causing C5 nerve root impingement, C6-7 foraminal stenosis at C7 nerve
root and radiculopathy. In work capacity evaluations dated April 26 and May 24, 2011, a nurse
practitioner noted that appellant was temporarily disabled and was scheduled to have back
surgery. In reports dated May 24 and June 28, 2011, Dr. Billys treated appellant in follow up.
He noted examination findings and diagnosed thoracic spondylosis at L4-5, displacement of the
cervical intervertebral disc without myelopathy and degenerative changes.
In a July 12, 2011 decision, OWCP found that appellant did not sustain a recurrence of
disability on March 8, 2011 causally related to his May 30, 2007 work injury.
On July 21, 2011 appellant requested a telephonic hearing, which was held on
November 14, 2011. In an April 26, 2011 report, Dr. Billys treated appellant for low back pain
and weakness with radiation into the right knee. He noted that appellant was not working due to
increased pain. Dr. Billys noted tenderness to palpation of the lower lumbar and buttocks area
with a normal motor and sensory examination. He diagnosed spondylolisthesis at L4-5 and
opined that appellant was unable to return to work. In reports dated May 24 to July 26, 2011,
Dr. Billys diagnosed spinal stenosis of the lumbar region and displacement of the cervical
intervertebral disc without myelopathy. He noted lumbar surgery had been denied. On
October 25, 2011 Dr. Billys noted appellant’s history of ongoing back pain radiating into his
right leg since 2007 when he sustained a work injury. He noted that appellant failed
conservative treatment and was scheduled for lumbar fusion. On October 31, 2011 Dr. Billys
performed an L4-5 anterolateral interbody fusion, placement of anterior interbody device at
L4-5, L5-S1 posterolateral fusion, L5-S1 posterolateral fusion, posterior segmental
instrumentation at L4-S1 and diagnosed spondylolisthesis at L4-5, discogenic back pain and
lateral recess stenosis. On November 7, 2011 he opined that, based on appellant’s history, his
symptoms began with the injury of 2007 and worsened over time while performing trauma-type
activity which resulted in his surgery. Dr. Billys opined that the condition was related to
appellant’s employment as a mail carrier.
Appellant submitted reports from Dr. Samy F. Bishai, a Board-certified orthopedic
surgeon, dated July 12 to August 23, 2011. Dr. Bishai noted a history of injury on May 30, 2007
and indicated that appellant had not worked as a mail carrier since March 8, 2011 because of
severe back and right leg pain. He diagnosed chronic lumbosacral strain, lumbar disc syndrome,
spinal stenosis at L4-5 and diffuse annular bulging discs at multiple levels. Dr. Bishai opined
that appellant injured his back at work on May 30, 2007 and conservative modalities failed. He
recommended surgery to provide stability of the lumbar spine and treat the spondylolysis. An
August 2, 2011 MRI scan of the sacrum and coccyx revealed no abnormalities. Appellant
submitted work capacity evaluations prepared by a nurse practitioner from August 23 to
December 19, 2011, who noted that he was totally disabled. On November 29, 2011 he was
treated by Dr. James R. Shelburne, an osteopath, who noted that appellant injured his back on

3

May 30, 2007 while loading a tub of mail and underwent lumbar surgery on October 31, 2011.
Dr. Shelburne noted minimal postoperative tenderness and diagnosed postoperative surgery
regarding spondylolisthesis of L4 and L5, discogenic back pain and lateral recess stenosis.
In a February 16, 2012 decision, an OWCP hearing representative affirmed the
July 12, 2011 decision.
LEGAL PRECEDENT
A “recurrence of disability” means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or a new exposure to the work environment.2
When an employee claims a recurrence of disability causally related to an accepted
employment injury, he or she has the burden of establishing by the weight of the reliable,
probative and substantial medical evidence that the claimed recurrence of disability is causally
related to the accepted injury.3 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 reasoning.4 An award of compensation may not be made on
the basis of surmise, conjecture, or speculation or on an appellant’s unsupported belief of causal
relation.5
ANALYSIS
OWCP accepted that appellant sustained a lumbar strain and lumbar radiculopathy on
May 30, 2007. He stopped work on May 31, 2007 and returned to regular duty. Appellant filed
claims for compensation for total disability for the period beginning March 8, 2011.
On appeal, appellant asserts that he has submitted sufficient medical evidence to establish
his claim. The Board finds that the medical record lacks a well-reasoned narrative opinion from
appellant’s physicians relating his disability in 2011 to his accepted May 30, 2007 employment
injury.
On November 7, 2011 Dr. Billys opined that appellant’s symptoms began with his 2007
work injury and worsened until he required surgery. He noted that appellant reported bending,
lifting and twisting in his job. Dr. Billys did not specifically address how appellant’s disability
beginning March 8, 2011 was caused or aggravated by the May 30, 2007 work injury that was
accepted for a lumbar strain and radiculitis. Moreover, the record documents that appellant had a
nonwork back injury in 2010 when he picked up a bucket of melons and also sustained a
2

20 C.F.R. § 10.5(x).

3

Alfredo Rodriguez, 47 ECAB 437 (1996); see Dominic M. DeScala, 37 ECAB 369 (1986).

4

See Nicolea Bruso, 33 ECAB 1138 (1982).

5

Ausberto Guzman, 25 ECAB 362 (1974).

4

nonwork injury in December 2010 when he fell off of a ladder. Dr. Billys did not note these
incidents or address how appellant’s condition related to the more recent nonwork injuries
instead of the 2007 work injury. The Board has found that unrationalized medical opinions on
causal relationship have little probative value.6 Dr. Billys noted findings and listed diagnoses but
do not address how any disability or condition beginning March 8, 2011 was caused or
aggravated by the May 30, 2007 work injury. The reports from Dr. Billys are insufficient to
establish appellant’s claim.
Appellant submitted reports from Dr. Neese, who noted appellant’s 2007 work injury and
set forth diagnoses. Reports from Dr. Bishai also listed diagnoses and provided a history of the
injury on May 30, 2007. He advised that appellant worked as a mail carrier and had not worked
since March 8, 2011 because of severe pain in his back and right leg. On November 29, 2011
appellant was treated by Dr. Shelburne, who noted that appellant injured his back on May 30,
2007 while loading a tub of mail and underwent lumbar surgery on October 31, 2011.
Dr. Shelburne diagnosed postoperative surgery regarding spondylolisthesis of L4 and L5,
discogenic back pain and lateral recess stenosis. The histories listed by the physicians are not
complete or adequately address how appellant’s disability beginning March 8, 2011 was causally
related to the May 30, 2007 work injury. The physicians did not explain how there was a
spontaneous change in appellant’s back condition on or about March 8, 2011, due to his accepted
lumbar strain or radiculopathy. The subsequent incidents after the 2007 injury were not
addressed. The reports are insufficient to establish the claim. The reports prepared by the nurse
practitioner are also insufficient. The Board has held that treatment notes signed by a nurse are
not probative as medical evidence as a nurse is not a physician as defined under FECA.7
Appellant did not submit sufficient medical evidence to establish that he sustained a
recurrence of disability beginning March 8, 2011 causally related to his May 30, 2007 work
injury. Therefore, he did not meet 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.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a recurrence of disability causally related to his accepted employment-related injury in
May 30, 2007.

6

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

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under the FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by State law).

5

ORDER
IT IS HEREBY ORDERED THAT the February 16, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 19, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Washington, DC, Employer
__________________________________________
Appearances:
J.C. Watson, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 14-547
Issued: June 4, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On January 13, 2014 appellant, through his attorney, filed an application for review of an
Office of Workers’ Compensation Programs’ (OWCP) decision dated November 7, 2013, which
denied his request for reconsideration without conducting a merit review.
The Board has duly considered the matter and finds that the case is not in posture for
decision and must be remanded to OWCP. In the case of William A. Couch, the Board held that,
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by it before the final decision is issued.1 Following a September 10, 2012
decision that denied an increased schedule award for appellant’s hearing loss, appellant
requested reconsideration on August 9, 2013 and submitted additional medical evidence. This
included a new audiological report, dated August 9, 2013, from Dr. Diane Markva, an
audiologist. This report was received on August 12, 2013. In its November 7, 2013 decision,
OWCP denied appellant’s reconsideration request. It noted that appellant’s request for
reconsideration referenced an audiological report dated August 9, 2013, but stated that the report
had not been enclosed and found that he had not submitted any new medical evidence or
argument that had not been previously considered.
1

41 ECAB 548 (1990).

The Board finds that OWCP, in its November 7, 2013 decision, did not review the
August 9, 2013 report from Dr. Markva that was received by OWCP on August 12, 2013.2 For
this reason, the case will be remanded to OWCP to enable it to properly consider all the evidence
submitted at the time of the November 7, 2013 decision. Following such further development as
OWCP deems necessary, it shall issue an appropriate merit decision on the claim.
IT IS HEREBY ORDERED THAT the November 7, 2013 decision of the Office of
Workers’ Compensation Programs be set aside and the case record remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: June 4, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

2

See Linda Johnson, 45 ECAB 439, 440 (1994) (where the Board held that it is necessary that OWCP review all
evidence submitted by a claimant and received by OWCP prior to issuance of its final decision and noted that this
principle applies with equal force when evidence is received by OWCP the same day a final decision is issued).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greensboro, NC, Employer
__________________________________________

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

Docket No. 11-904
Issued: November 18, 2011

Case Submitted on the Record

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

JURISDICTION
On March 1, 2011 appellant filed a timely appeal from a December 8, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
disability compensation and her request for a subpoena. 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.
ISSUES
The issues are: (1) whether appellant sustained intermittent periods of disability from
August 13, 2006 through August 9, 2007 causally related to her accepted employment injury;
and (2) whether OWCP properly denied her request for a subpoena.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 23, 2007 appellant, then a 42-year-old supervisor of distribution operations,
filed an occupational disease claim alleging that she sustained a bilateral knee inflammation as a
result of overuse performing factors of her federal employment. She stopped work on
July 29, 2007. OWCP accepted the claim for bilateral pes anserinus tendinitis and bilateral plica
syndrome.2
Appellant filed claims for compensation for intermittent disability between January 1,
2006 and November 9, 2007. OWCP paid her compensation for 400 hours lost time from work
from January 1, 2006 through November 9, 2007. It noted that appellant was not entitled to 88
hours claimed until the employing establishment verified that she was off work.
In a treatment note dated October 27, 2006, a physician diagnosed bilateral knee pain
with mild arthritis. On December 6, 2006 he found that appellant was out of work due to left
knee pain. In a certificate of health care provider dated December 13, 2006, a physician
diagnosed bilateral knee pain and found that she should remain off work. In an accompanying
form report, he diagnosed bilateral knee pain and found that appellant should not work until
further notice. On December 27, 2006 the physician determined that she could resume her
regular employment.3 In a note dated July 30, 2007, Dr. Alison P. Toth, a Board-certified
orthopedic surgeon, diagnosed bilateral pes anserinus bursitis of the medial and suprapatellar
plicae and referred appellant for physical therapy.
On October 31, 2007 appellant requested leave buyback for 420.75 hours from January 1,
2006 through November 9, 2007. She indicated that she used intermittent sick leave and annual
leave for the period claimed. The employing establishment confirmed that appellant used
intermittent sick and annual leave from August 13, 2006 through August 9, 2007.
In an October 14, 2008 memorandum, the employing establishment advised that
appellant missed work from August 2 through December 1, 2007. It stated, “Her initial request
was for her own leave (annual/sick) based on her inability to work. Appellant based her leave
requests on her doctor’s diagnosis of osteoarthritis and bursitis. She requested light duty away
from mail processing operations and off the [workroom] floor with limited standing or walking.”
The employing establishment indicated that light duty was not available.
In a letter dated March 19, 2009, OWCP requested that appellant submit medical
evidence to support that she was disabled from January 1, 2006 to November 9, 2007. In a
response received April 17, 2009, appellant advised that she requested compensation beginning
January 1, 2006 as that was the date she “first noticed the problems. I did not go to the doctor
until Oct[ober] 2006…”
2

By decision dated November 9, 2007, OWCP denied appellant’s claim on the grounds that the medical evidence
was insufficient to show that she sustained a diagnosed condition due to work factors. On September 9, 2008 it
vacated its November 9, 2007 decision and accepted the claim for bilateral pes anserinus tendinitis and plica
syndrome.
3

The name of the physician is not legible.

2

By decision dated July 14, 2009, OWCP denied appellant’s claim for leave buyback. It
found that she had not submitted sufficient medical evidence to establish that she was disabled
from work for the period claimed.
On August 3, 2009 appellant requested a telephone hearing. In an undated letter received
August 16, 2010, she requested that her manager be subpoenaed to testify that the employing
establishment could not accommodate her medical restrictions. Appellant stated:
“In short, I was denied the leave buy back because my medical documentation did
not say I was ‘totally incapacitated for duty.’ I am trying to show that although
that is correct, the [employing establishment] would not allow me to work within
the medical restrictions. They would not provide accommodation nor would they
release me to work when I went and found viable work that I could perform on
my own. They prevented me from working and I was forced to use my leave.”
A telephone hearing was held on October 14, 2010. At the hearing, appellant related that
her physician found that she could work limited duty but the employing establishment did not
have work available within her restrictions. She used leave to cover her absence from work and
sought other positions within her limitations. Appellant requested a subpoena for a former
coworker, Roseanne Jefferson, who would support that she tried to work within her limitations.
OWCP’s hearing representative informed her that he was denying her subpoena request and
allowed her 30 days to submit a statement from the coworker.
In a statement dated received November 8, 2010, Ms. Jefferson related that when she
worked as a personnel manager she asked that appellant be detailed to her office but the
employing establishment refused her request. She advised that she could have accommodated
appellant’s work restrictions.
By decision dated December 8, 2010, OWCP’s hearing representative affirmed the
July 14, 2009 decision. He found that appellant failed to establish that the employing
establishment did not provide her work within her restrictions. OWCP’s hearing representative
further found that the medical evidence did not support that she was disabled or seeking medical
treatment during the claimed period. He denied appellant’s request for a subpoena for
Ms. Jefferson as she did not show that the evidence could not be obtained through other means.
On appeal, appellant argues that OWCP already determined that she was disabled due to
her work injuries for periods she used leave without pay. She asserts that she is entitled to
compensation for the periods that she used sick and annual leave. Appellant related that the
employing establishment did not accommodate her restrictions because at the time her claim was
not accepted. She could not afford to use leave without pay for all absences.

3

LEGAL PRECEDENT -- ISSUE 1
The term disability as used in FECA4 means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.5 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.6 When the medical evidence establishes that the
residuals of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in the employment held when injured, the employee is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.7 The Board
will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employee’s to self-certify their disability and entitlement to
compensation.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained bilateral pes anserinus tendinitis and bilateral
plica syndrome due to factors of her federal employment. It paid her wage-loss compensation
for intermittent disability for 400 hours from January 1, 2006 through November 9, 2007.
Appellant filed a claim for leave buyback for 420.75 hours of sick and annual leave used from
August 13, 2006 through November 9, 2007.
On October 27, 2006 a physician diagnosed bilateral knee pain with mild arthritis. In a
report dated December 6, 2006, he found that appellant was out of work due to left knee pain.
On December 13, 2005 the physician diagnosed bilateral knee pain and found that she should not
work until further notice. On December 27, 2006 he advised that appellant could resume her
regular employment. The physician did not, however, address the cause of her knee pain or
relate her disability for work to her employment injury. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of diminished probative value on the
issue of causal relationship.9
In a note dated July 30, 2007, Dr. Toth diagnosed bilateral pes anserinus bursitis of the
medial and suprapatellar plicae. She did not, however, provide any physical findings or address
causation. As she did not address the cause of appellant’s condition or the relevant issue of

4

5 U.S.C. § 8101 et seq; 20 C.F.R. § 10.5(f).

5

Paul E. Thams, 56 ECAB 503 (2005).

6

Id.

7

Id.

8

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Conard Hightower, 54 ECAB 796 (2003).

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whether she was disabled from work for any period from August 13, 2006 through August 9,
2007, Dr. Toth’s opinion is of little probative value.10
OWCP advised appellant that it was her responsibility to submit medical evidence
supporting that she was disabled due to her accepted employment injury for any lost time
claimed between August 13, 2006 and August 9, 2007. Appellant did not provide the requested
information. As there is no probative, rationalized medical evidence addressing disability for the
dates in question, she has not met her burden of proof.11
On appeal, appellant argues that OWCP already determined that she was disabled due to
her work injuries for periods she used leave without pay. She asserts that she is entitled to
compensation for the periods that she used sick and annual leave. Appellant maintains that the
employing establishment did not accommodate her restrictions. She has the burden the proof,
however, to establish that she was disabled from work for the time claimed due to her accepted
employment injury. Neither the fact that the condition became apparent during a period of
employment nor the belief that the condition was caused or aggravated by employment factors is
sufficient to establish causal relationship.12 Appellant has the responsibility to substantiate
causal relationship through the submission of reasoned medical evidence. She did not submit
such evidence and thus 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 and
20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8126 of FECA provides that the Secretary of Labor, on any matter within her
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.13 The implementing regulations provide that a claimant
may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers or other relevant
documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained
by other means and for witnesses only where oral testimony is the best way to ascertain the
facts.14 In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
10

Carol A. Lyles, 57 ECAB 265 (2005) (whether a particular injury caused an employee disability from
employment is a medical issue which must be resolved by competent medical evidence).
11

See R.C., 59 ECAB 546 (2008) (the issue of disability for work must be resolved by competent medical
evidence).
12

See Michael R. Shaffer, 55 ECAB 386 (2004); Joe T. Williams, 44 ECAB 518 (1993).

13

5 U.S.C. § 8126(1).

14

20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001).

5

because there is no other means by which the testimony could have been obtained.15 Section
10.619(a)(1) of the implementing regulations provide that a claimant may request a subpoena
only as a part of the hearings process and no subpoena will be issued under any other part of the
claims process.
To request a subpoena, the requestor must submit the request in writing and send it to
OWCP’s hearing representative as early as possible, but no later than 60 days (as evidenced by
postmark, electronic marker or other objective date mark) after the date of the original hearing
request.16 OWCP’s hearing representative retains discretion on whether to issue a subpoena.
The function of the Board on appeal is to determine whether there has been an abuse of
discretion.17 Abuse of discretion is generally shown through proof of manifest error, a clearly
unreasonable exercise of judgment or actions taken which are clearly contrary to logic and
probable deduction from established facts.18
ANALYSIS -- ISSUE 2
In a letter received August 16, 2010, appellant requested a subpoena for her manager. At
the telephone hearing, she asked that a former coworker, Ms. Jefferson, be subpoenaed to testify
that she requested work within her restrictions. OWCP’s hearing representative denied
appellant’s request after finding that Ms. Jefferson’s testimony could be obtained through the
submission of a written statement or affidavit.
The Board finds that OWCP’s hearing representative did not abuse his discretion in
denying appellant’s subpoena request. In requesting a subpoena, a claimant must explain why
the testimony is relevant to the issue in the case and why it is the best method or opportunity to
obtain such evidence.19 Appellant did not identity why such information could not be obtained
other than through the subpoena process.20 OWCP’s hearing representative thus acted within his
discretion in denying her subpoena request.21
CONCLUSION
The Board finds that appellant has not established that she sustained intermittent periods
of disability from August 13, 2006 through August 9, 2007 causally related to her accepted
employment injury. The Board further finds that OWCP properly denied her request for a
subpoena.
15

Id.

16

20 C.F.R. § 10.619(a)(1).

17

See Gregorio E. Conde, supra note 14.

18

Claudio Vazquez, 52 ECAB 496 (2001).

19

Id.

20

See Janet L. Terry, 53 ECAB 570 (2002).

21

See L.W., 59 ECAB 471 (2008); Jon Louis Van Alstine, 58 ECAB 136 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the December 8, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
E.N., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Lehigh Valley, PA, Employer
)
___________________________________________ )
Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-807
Issued: September 22, 2008

Case Submitted on the Record

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

JURISDICTION
On January 23, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ schedule award decision dated January 10, 2008. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
more than a 25 percent permanent impairment of her right arm, for which she received a
schedule award.
FACTUAL HISTORY
This case has twice previously been on appeal before the Board. In a July 21, 2006
decision, the Board found that the case was not in posture for decision.1 The Board found that
Dr. Salem, a second opinion physician, did not explain how he arrived at his impairment rating.
The Board remanded the case to the Office to further develop the medical evidence to obtain an
1

Docket No. 06-628 (issued July 21, 2006).

opinion in conformance with the American Medical Association, Guides to the Evaluation of
Permanent Impairment as to whether appellant had more than two percent impairment to the
right arm. In a July 16, 2007 decision, the Board found that the case was not in posture for
decision.2 The Board found that the schedule award was premised on ratings not adequately
explained by Dr. Richard J. Mandel, a Board-certified orthopedic surgeon and second opinion
physician. Although the Board noted the rating of four percent for decreased motion was
properly calculated, both physicians provided findings on grip strength. The Board remanded
the case to the Office to further develop the medical evidence on the issue of impairment to
appellant’s upper extremity. The facts and the history contained in the prior appeals are
incorporated by reference.
On December 3, 2007 the Office requested that the Office medical adviser provide an
opinion regarding whether appellant had greater than 25 percent impairment of the right arm.3 In
a report dated December 17, 2007, the Office medical adviser explained that he provided an
award for loss of strength with the full knowledge that it typically was not recommended based
upon page 508 of the A.M.A., Guides, section 16.88, Principles of Strength Evaluation. He
explained that the A.M.A., Guides, provided that loss of strength could be rated separately if
such a deficit could not be evaluated accurately by other rating methods. The Office medical
adviser explained that appellant underwent five surgical procedures. He advised that the
structural loss of the carpal ligamentous structures of the wrist indicated that biomechanical
weakness would be anticipated. The Office medical adviser noted that, although the A.M.A.,
Guides provide that “[d]ecreased strength cannot be rated in the presence of decreased motion
and painful conditions,” appellant had decreased motion and painful condition. He explained
that the five operations to the wrist interrupted the lunate-triangular structures and appellant
required a tendon weave to reconstruct it. The Office medical adviser referred to the example on
page 508 of the A.M.A., Guides which indicated that a weakness calculation for loss of strength
would be justified due to a severe muscle tear which healed and left a palpable muscle defect.
He indicated that in appellant’s case “the lunate-triangular ligament structures were ruptured and
they did leave a palpable or otherwise identifiable defect that required ligamentous
reconstruction.” The Office medical adviser opined that “this would result in weakness
irrespective of decreased range of motion and pain.” He indicated that this would qualify for the
“weakness calculation because the decreased strength cannot be rated with other rating
methods.” The Office medical adviser opined that “the severe injury and multiple operative
procedures resulted in circumstances that were similar to the example given on page 508 where
there was loss of strength due to severe muscle tear that healed with a palpable muscle defect.”
He also indicated that a 4 percent rating for decreased wrist motion would be inadequate and
opined that appellant had 25 percent impairment of the right arm.
By decision dated January 10, 2008, the Office found that appellant did not have more
than 25 percent permanent impairment of her right arm, for which she received a schedule
award.
2

Docket No. 07-605 (issued July 16, 2007).

3

On August 29, 2007 the Office requested that Dr. Mandel provide an addendum to his report. In particular, it
requested that he explain why grip strength findings were appropriate in light of the restrictions set forth in the
A.M.A., Guides. On October 31, 2007 the Office noted that Dr. Mandel had not responded.

2

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act4 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions,
and organs of the body.5 The Act, however, does not specify the manner by which the
percentage loss of a member, function, or organ shall be determined. To ensure consistent
results and equal justice for all claimants under the law, good administrative practice requires the
use of uniform standards applicable to all claimants.6 The Act’s implementing regulation has
adopted the A.M.A., Guides as the appropriate standard for evaluating schedule award losses.7
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
tables in the A.M.A., Guides.8 However, all factors that prevent a limb from functioning
normally should be considered, together with the loss of motion, in evaluating the degree of
permanent impairment.
Regarding loss of strength, the A.M.A., Guides states in relevant part:
In a rare case, if the examiner believes the individual’s loss of strength represents
an impairing factor that has not been considered adequately by other methods in
the A.M.A., Guides, the loss of strength may be rated separately. An example of
this situation would be loss of strength due to a severe muscle tear that healed
leaving a palpable muscle defect. If the examiner judges that loss of strength
should be rated separately in an extremity that presents other impairments, the
impairment due to loss of strength could be combined with the other impairments,
only if based on unrelated etiologic or pathomechanical causes. Otherwise, the
impairment ratings based on objective anatomic findings take precedence.
Decreased strength cannot be rated in the presence of decreased motion, painful
conditions, deformities, or absence of parts (e.g., thumb amputation) that prevent
effective application of maximal force in the region being evaluated.9

4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8107.

6

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

7

20 C.F.R. § 10.404.

8

See William F. Simmons, 31 ECAB 1448 (1980); Richard A. Ehrlich, 20 ECAB 246, 249 (1969) and cases cited
therein.
9

A.M.A., Guides 508.

3

ANALYSIS
The Board notes that the range of motion findings provided by the Office medical adviser
of three percent for dorsiflexion and four percent for radial and ulnar flexion were properly
calculated in accordance with the A.M.A., Guides. The case was remanded to the Office for an
explanation regarding the 20 percent finding based on loss of grip strength.
In a report dated December 17, 2007, the Office medical adviser reviewed appellant’s
history of injury and treatment and the case record. He referred to section 16.8a, Principles, in
the Strength Evaluation subchapter, and explained that appellant’s situation would fall into the
category of rare cases in which an individual would be entitled to a separate rating for loss of
strength that was not considered adequately by other methods.10 The Office medical adviser
referred to the example on page 50811 which indicated that a weakness calculation for loss of
strength would be justified due to a severe muscle tear which healed and left a palpable muscle
defect. He noted that appellant had five surgical procedures and sustained loss of the carpal
ligamentous structures of the wrist which would cause biomechanical weakness. The operations
interrupted the lunate-triangular structures and a tendon weave was performed on appellant. The
Office medical adviser stated that “the lunate-triangular ligament structures were ruptured, and
that they left a palpable or otherwise identifiable defect that required ligamentous
reconstruction.” He opined that “this would result in weakness irrespective of decreased range
of motion and pain.” The Office medical adviser advised that this would qualify for the
“weakness calculation because the decreased strength cannot be rated with other rating
methods.” He explained that “the severe injury and multiple operative procedures resulted in
circumstances that were similar to the example given on page 508 where there was loss of
strength due to severe muscle tear that healed with a palpable muscle defect.” The Office
medical adviser noted that a finding of four percent for decreased wrist motion alone would be
an inadequate award and that appellant should receive 25 percent impairment of the right arm.
The Board finds that the Office medical adviser’s rating for grip strength falls into the rare
category contemplated by section 16.8a of the A.M.A., Guides. Therefore, appellant is entitled
to have the grip findings included in her rating. The medical evidence establishes that she has 25
percent impairment of the upper extremity for which she received a schedule award.
CONCLUSION
The Board finds that appellant has no more than a 25 percent permanent impairment of
her right upper extremity, for which she received a schedule award.

10

Id.

11

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 10, 2008 is affirmed.
Issued: September 22, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 09-829
Issued: October 23, 2009

Case Submitted on the Record

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

JURISDICTION
On February 5, 2009 appellant filed a timely appeal of a September 26, 2008 decision of
the Office of Workers’ Compensation Programs, finding that his request for reconsideration was
untimely and failed to show clear evidence of error. Pursuant to 20 C.F.R. § 501.3, the Board’s
jurisdiction is limited to decisions issued within one year of the filing of the appeal. Since the
most recent merit decision was issued June 13, 2007, the Board does not have jurisdiction over
the merits of this case.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his application for reconsideration was
untimely filed and failed to show clear evidence of error.
FACTUAL HISTORY
On October 3, 2006 appellant, then a 37-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained an injury in the performance of duty on

June 29, 2005. He stated that he reached to grab a letter and felt pain in his back, shoulder and
neck.
By decision dated November 20, 2006, the Office denied the claim for compensation. It
found the factual and medical evidence was insufficient to establish appellant’s claim. Appellant
requested a hearing before an Office hearing representative, which was held on March 22, 2007.
The evidence submitted included treatment notes and a February 9, 2007 report from
Dr. Douglas Kimmel, an osteopath, who stated that appellant had reported severe pain from his
return to work activities and he was taken off work on July 27, 2005.
In a decision dated June 13, 2007, the hearing representative affirmed the November 20,
2006 decision. She found that the June 29, 2005 incident occurred as alleged but that the
medical evidence was insufficient to establish the claim.
By letter dated August 18, 2008, appellant requested reconsideration of his claim. He
submitted an April 18, 2008 report from Dr. Shailen Jalali, a Board-certified pain management
specialist, who advised that he had treated appellant since 2003 and reviewed his medical
treatment. Dr. Jalali stated that on June 29, 2005 “while casing mail,” appellant stated that he
felt pain in the shoulder and neck. He also noted a July 15, 2005 employment incident.1
Dr. Jalali stated:
“I feel it is these incidences, the two occasions, June 29, 2005, when [appellant]
was reaching up as well as on July 15, 2005, when he had worsened his pain
condition as a result of the activities he was doing specifically at work. The
positions that he was asked to place [appellant’s] body in were causing these
exacerbations. I do not feel that this was simply a worsening of his pain
symptoms on its own, I feel that it is these activities at work that led to
[appellant’s] worsening pain symptoms. I feel that he continues to suffer from
brachial plexopathy with associated neuropathic and myofascial pain symptoms.
I also feel he suffers from cervical facet disease and disc degeneration as well.
[Appellant] also has had problems with spinal stenosis in the cervical region as
well.”
By decision dated September 26, 2008, the Office found that appellant’s application for
reconsideration was untimely. It further determined that the application did not show clear
evidence of error by the Office.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision.2 The employee shall exercise this right through a request to
1

Appellant filed a claim for this injury, (OWCP File No. xxxxxx929) which is before the Board on another
appeal (Docket No. 09-830).
2

5 U.S.C. § 8128(a).

2

the district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”3
Section 8128(a) of the Act4 does not entitle a claimant to a review of an Office decision
as a matter of right.5 This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.6 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).7
As one such limitation, the Office has stated that it will not review a decision denying or
terminating a benefit unless the application for reconsideration is filed within one year of the
date of that decision.8 The Board has found that the imposition of this one-year limitation does
not constitute an abuse of the discretionary authority granted the Office under 5 U.S.C.
§ 8128(a).9
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.10 In accordance with this holding the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.11
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.12 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.13 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
3

20 C.F.R. § 10.605 (1999).

4

5 U.S.C. § 8128(a).

5

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

6

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
7

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a specific point of law, (2) advancing a relevant legal
argument not previously considered by the Office, or (3) submitting relevant and pertinent evidence not previously
considered by the Office; see 20 C.F.R. § 10.606(b).
8

20 C.F.R. § 10.607(a).

9

See Leon D. Faidley, Jr., supra note 5.

10

Leonard E. Redway, 28 ECAB 242 (1977).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

12

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

13

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

3

clear evidence of error.14 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.15 This entails a limited review by the Office 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 the Office.16 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 the Office decision.17 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that the Office abused its discretion in denying merit review in the face of such
evidence.18
ANALYSIS
The most recent merit decision in the case was the hearing representative’s June 13, 2007
decision. The application for reconsideration was dated August 18, 2008. Since this is more
than one year after the hearing representative’s decision, it is untimely.
Under the principles noted above, to reopen the case for merit review appellant must
show “clear evidence of error” by the Office. Appellant relies on an April 18, 2008 report from
Dr. Jalali and contends that it establishes an aggravation of his condition by the June 29, 2005
incident. The Board finds that the report from Dr. Jalali does not show clear evidence of error.
A rationalized medical opinion is an opinion based on a complete factual and medical
background, supported by medical rationale explaining the nature of the relationship between a
diagnosed condition and the identified employment incident.19 Dr. Jalali does not provide a
detailed description of the June 29, 2005 employment incident, a medical history discussing the
contemporaneous medical evidence or a clear diagnosis of an injury from the employment
incident. He refers to “these activities at work” that led to worsening pain, without providing
additional explanation. Dr. Jalali does not provide a rationalized medical opinion on causal
relationship between a diagnosed condition and the June 29, 2005 employment incident. As
noted above, the evidence must be of such probative value that it shifts the weight of the
evidence in favor of appellant, he did not submit evidence sufficient to establish clear evidence
of error.

14

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

15

See Leona N. Travis, supra note 13.

16

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

17

Leon D. Faidley, Jr., supra note 5.

18

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

19

See Jennifer Atkerson, 55 ECAB 317 (2004).

4

On appeal, appellant argues that the medical evidence was sufficient to warrant reopening
the case under the standard for a timely application for reconsideration.20 He does not provide
arguments as to why the application for reconsideration should be considered as timely filed.
The August 18, 2008 application for reconsideration was untimely filed with respect to the
June 13, 2007 merit decision. Appellant must establish clear evidence of error and for the
reasons indicated, the Board finds that he did not establish clear evidence of error in this case.
CONCLUSION
The Board finds that appellant’s application for reconsideration was untimely and failed
to show clear evidence of error by the Office.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 26, 2008 is affirmed.
Issued: October 23, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

20

Supra note 7.

5