United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Denver, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0482
Issued: August 4, 2015

Case Submitted on the Record

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

JURISDICTION
On December 30, 2014 appellant, through counsel, timely appealed the July 29, 2014
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 claim.2
ISSUE
The issue is whether appellant sustained a consequential injury on March 24, 2000.

1
2

5 U.S.C. §§ 8101-8193 (2006).

The case record provided to the Board includes evidence received after OWCP issued its July 29, 2014 decision.
The Board is precluded from considering evidence that was not in the case record at the time OWCP rendered its
final decision. 20 C.F.R. § 501.2(c)(1) (2014).

FACTUAL HISTORY
This case was previously before the Board. Appellant, a 60-year-old distribution clerk,
has an accepted claim for post-traumatic stress disorder (PTSD) which arose on July 12, 1999 as
a result of an altercation with her then supervisor.3 In October 1999 she resumed work at another
facility with a different supervisor.
On March 24, 2000 appellant asked Ed Loffredo, an attendance control supervisor, to
sign a note she had written to remind herself which forms she needed to submit for her workers’
compensation claim.4 He refused to sign the note. Appellant alleged that Mr. Loffredo yelled at
her and waved his arms in a threatening manner and allegedly told appellant he did not care
whether her paycheck was correct. She stated that she thought Mr. Loffredo was going to
physically hurt her. Mr. Loffredo indicated that he kept his hands in his pockets and used a
soothing voice as he explained to appellant why he would not sign her note. OWCP accepted
that Mr. Loffredo refused to sign appellant’s personal note. However, appellant failed to
establish that he waved his arms and yelled at her.
A few hours after the March 24, 2000 incident, appellant was treated in the emergency
room for acute anxiety reaction.5 She did not report for work on March 25, 2000. Appellant
filed various claims for wage-loss compensation beginning March 25, 2000. OWCP has
adjudicated the March 24, 2000 incident as both a new traumatic injury and an occupational
disease claim (xxxxxx296). Additionally, the claim has been adjudicated as a recurrence of
appellant’s July 12, 1999 employment injury, and more recently, as a consequential injury of her
employment-related PTSD.6
On two prior occasions, the Board addressed the issue of whether appellant sustained a
consequential injury.7 When the Board last reviewed the merits in August 2012, it affirmed
3

Appellant’s supervisor, Kristine L. Prusak, yelled at her, used profanity and was verbally abusive and
threatening. OWCP accepted that on July 12, 1999 appellant had a heavy load of mail and she requested assistance
from Ms. Prusak, who responded “Too bad.” Appellant later received some assistance, but she did not complete her
assignment until after her lunch break. When Ms. Prusak returned, she yelled at appellant because appellant failed
to advise her of the late dispatches. She also used profanity and verbally threatened appellant. Later that day,
Ms. Prusak continued her verbal assault while appellant waited outside the operations manager’s office to report the
earlier incident. Appellant contacted the postal service police. After taking statements, the police declined to
intervene because they considered the incident an “administrative problem.”
4

Appellant’s March 24, 2000 note stated in relevant part: “I Daniel Kuenz ... along with Ed Lafreydo (sic) ...
have instructed [appellant], she must fill out forms CA-7..., CA-20..., and CA-7a.... This will be done for each pay
period of leave without pay for continuation of pay.”
5

The emergency room attending physician indicated that appellant’s condition was due to “a combination of not
taking her medications ... and having an argument with her boss.”
6

The Board previously affirmed OWCP’s denial of appellant’s claimed recurrence of disability beginning
March 25, 2000. Docket No. 04-1480 (issued December 30, 2005). At the time, counsel also argued that
appellant’s work stoppage was the result of a March 24, 2000 consequential injury. However, OWCP had not yet
issued a decision with respect to that particular issue.
7

Docket No. 08-1872 (issued June 2, 2009); Docket No. 11-1670 (issued August 16, 2012).

2

OWCP’s May 16, 2011 decision denying compensation for a consequential injury. Counsel
argued that the March 24, 2000 incident with Mr. Loffredo reawakened or triggered appellant’s
memory of the July 12, 1999 altercation with her prior supervisor, and thus, aggravated her
PTSD. However, the Board found that the medical evidence failed to establish a causal
relationship between appellant’s original injury and the claimed consequential injury. The
Board’s August 16, 2012 decision is incorporated herein by reference.
Appellant’s counsel subsequently requested reconsideration and submitted additional
evidence including treatment notes from appellant’s therapist, Virginia H. Poor, a licensed
clinical social worker (LCSW). OWCP also received transcripts of two recent depositions. By
decision dated April 23, 2013, it denied further merit review on the basis that evidence submitted
was cumulative. The Board disagreed.8
On reconsideration, counsel had submitted the November 21, 2012 deposition of
Dr. Randolph W. Pock, a Board-certified psychiatrist and OWCP-referral physician, who
previously examined appellant in April 2010. In his deposition, Dr. Pock indicated that
appellant’s interaction with Mr. Loffredo triggered her March 24, 2000 panic attack, which was a
symptom of PTSD. He explained that the incident with Mr. Loffredo evoked memories of
appellant’s initial injury, and under this theory, she suffered a consequential injury.
Counsel also submitted the December 7, 2012 deposition of Dr. Carole S. Kornreich, a
psychiatrist, who first treated appellant in January 2006. Dr. Kornreich indicated that the
incident with Mr. Loffredo was one of several workplace events that reminded appellant of her
prior injury. She explained that, when appellant returned to work, her original injury had not
optimally resolved, and was constantly aggravated to the point where appellant just
decompensated profoundly.
The Board found that the recent depositions of Dr. Pock and Dr. Kornreich were relevant
and pertinent new evidence not previously considered by OWCP. Therefore, appellant was
entitled to merit review pursuant to 20 C.F.R. § 10.608(a). Accordingly, the Board remanded the
case to OWCP for merit review and a determination of whether modification of the May 16,
2011 decision was warranted. The Board’s May 6, 2014 decision is incorporated herein by
reference.
In a July 29, 2014 decision, OWCP found the evidence insufficient to modify its May 16,
2011 decision. The senior claims examiner determined that neither Dr. Pock nor Dr. Kornreich
adequately explained how an ostensibly nonthreatening interaction with a supervisor on
March 24, 2000 resembled or symbolized the July 12, 1999 incident, thus, aggravating
appellant’s PTSD.
LEGAL PRECEDENT
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent

8

Docket No. 13-2183 (issued May 6, 2014).

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intervening cause attributable to claimant’s own intentional misconduct.9 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury.10 The Board has recognized
PTSD as a compensable consequential injury under circumstances where a certain triggering
event has been medically demonstrated to have caused a reawakening or exacerbation of PTSD
symptoms.11
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.12
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.13 A clinical psychologist may serve as a treating physician for a
work-related emotional condition.14
ANALYSIS
On appeal, counsel seeks to relitigate many of the issues and arguments addressed in
prior decisions. As noted by the senior claims examiner, counsel requested that OWCP reverse
all prior decisions denying wage-loss benefits due to a recurrence or consequential or intervening
injury. However, OWCP correctly limited its analysis to the scope of the May 16, 2011 merit
decision and the Board’s May 6, 2014 instructions on remand. Accordingly, the only issue
currently before the Board is whether the latest findings from Drs. Pock and Kornreich
demonstrate that appellant sustained a consequential injury on March 24, 2000.15
At OWCP’s request, Dr. Pock examined appellant on April 23, 2010. At that time, he
diagnosed PTSD and found appellant totally disabled. Based on the information provided,
including the statement of accepted facts (SOAF), Dr. Pock stated that he “[could not] find
grounds for a consequential injury.” He explained that appellant’s ongoing symptoms
represented a continuation of her July 12, 1999 PTSD. Appellant’s counsel deposed Dr. Pock on
July 21, 2010. During the deposition, Dr. Pock did not specifically address whether appellant
sustained a consequential injury on March 24, 2000. He explained that the cumulative effect of
various life stressors, including the incident with Mr. Loffredo, contributed to appellant’s
9

Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson & Lex K. Larson, The Law of Workers’
Compensation, 10-1 (2006).
10

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

11

Charlet Garrett Smith, 47 ECAB 562 (1996).

12

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

13

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

14

See 20 C.F.R. § 10.312; Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(2) (January 2013).
15

As noted, the Board previously affirmed OWCP’s May 16, 2011 decision based on the record as it existed at
the time. Appellant’s counsel has not presented any compelling reasons for revisiting the Board’s prior findings as
set forth in its August 16, 2012 decision.

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March 24, 2000 panic attack.16 However, Dr. Pock did not single out the March 24, 2000
incident with Mr. Loffredo. He indicated that appellant’s adverse reaction to the incident with
Mr. Loffredo was caused by her PTSD; however, the specific incident itself was not sufficient to
cause her PTSD. When counsel deposed him for a second time on November 21, 2012, Dr. Pock
indicated that appellant’s interaction with Mr. Loffredo triggered her March 24, 2000 panic
attack, which was a symptom of PTSD. He noted that the incident with Mr. Loffredo evoked
memories of appellant’s initial injury, and thus, she suffered a consequential injury.
As noted, Dr. Pock had not previously singled out the incident with Mr. Loffredo as a
triggering event of either appellant’s PTSD or her March 24, 2000 panic attack. He previously
included the incident with Mr. Loffredo as one among several life stressors that cumulatively
contributed to appellant’s March 24, 2000 panic attack. The November 21, 2012 deposition does
not clearly explain the evolution of Dr. Pock’s opinion regarding the impact of the March 24,
2000 incident with Mr. Loffredo. Dr. Pock did not explain how Mr. Loffredo’s refusal to sign
appellant’s note evoked memories of her initial injury of July 12, 1999.
Dr. Kornreich similarly failed to explain how the March 24, 2000 incident with
Mr. Loffredo triggered and reminded appellant of her prior injury. It is not readily apparent how
the March 24, 2000 incident was purportedly a triggering event of appellant’s PTSD.
Consequently, the Board finds that Drs. Pock and Kornreich have not adequately explained the
basis for their respective opinions on causal relationship.17
The Board further notes that the August 2012 through April 2014 treatment records from
appellant’s therapist, Virginia Poor, are insufficient to support her claim for FECA benefits.
Ms. Poor is a LCSW, not a physician or psychologist.18

16

Dr. Pock referred to various incidents/events identified in the April 1, 2010 SOAF that OWCP found were not
directly related to appellant’s duties, and therefore, noncompensable. OWCP identified the July 12, 1999 incident
with Ms. Prusak as the sole event considered to be related to appellant’s employment duties. As to the March 24,
2000 incident with Mr. Loffredo, the SOAF indicated that he “refused to sign [appellant’s] personal note used as a
reminder ... of steps required to file FECA forms....” This latter incident fell under the heading of events “NOT”
considered to be directly related to the employee’s duties. According to the SOAF, appellant failed to establish that
Mr. Loffredo “waved his arms and yelled at her when she persistently pursued his signature on personal notes.”
Other noncompensable events included appellant having felt pressure to return to work on October 25, 1999, stress
from completing and filing required OWCP forms, supervisors having lost or failed to submit her timecards, having
been shorted on four paychecks between October 1999 and January 2000, the agency failing to process her
continuation of pay and claims for compensation, inadequate training for new assignments, and management
changing appellant’s work schedule.
17

Causal relationship is a medical question that generally requires rationalized medical opinion evidence to
resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factor(s) must be based on a complete
factual and medical background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). 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). Id.
18

See supra notes 13 and 14.

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Appellant bears the burden of establishing a causal relationship between her original
injury and her claimed consequential injury, which she has failed to satisfy.19 Accordingly, the
Board finds that OWCP properly denied modification of the May 16, 2011 decision.
CONCLUSION
Appellant failed to establish that she sustained a consequential injury on March 24, 2000,
causally related to her July 12, 1999 employment injury. Therefore, her claimed disability
beginning March 25, 2000 is not compensable.
ORDER
IT IS HEREBY ORDERED THAT the July 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 4, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.7a (January 2013).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Jacksonville, FL,
Employer
__________________________________________

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

Docket No. 14-672
Issued: August 7, 2014

Case Submitted on the Record

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

JURISDICTION
On January 29, 2014 appellant, through his attorney, filed a timely appeal of a
December 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that his back condition was causally related to
the accepted January 18, 2013 employment incident.
FACTUAL HISTORY
On April 4, 2013 appellant, then a 51-year-old mail clerk filed a recurrence claim
alleging that on January 18, 2013 he sustained a recurrence of a November 29, 1999 work1

5 U.S.C. § 8101 et seq.

related back injury; OWCP File No. xxxxxx167. He stated that his back began to hurt after
lifting a heavy box that day. OWCP converted the recurrence claim into a new traumatic injury
claim as appellant was alleging a new injury. Appellant stopped work on January 19, 2013 and
returned to work on January 21, 2013.
In a May 31, 2013 letter, OWCP informed appellant that the evidence of record was
insufficient to establish his claim. Appellant was advised as to the medical and factual evidence
required and given 30 days to provide the requested evidence.
By decision dated July 9, 2013, OWCP denied appellant’s claim on the grounds that the
evidence failed to establish that the diagnosed condition was causally related to the January 18,
2013 employment incident.
In a July 1, 2013 report, Dr. Robert Hurford, Jr., appellant’s treating Board-certified
orthopedic surgeon, noted that appellant was evaluated for his lumbar condition on
June 28, 2013. He related that appellant first injured his back at work on November 29, 1999
due to lifting and had intermittent tingling and numbness in his lower extremities since the
injury. Dr. Hurford reviewed x-ray interpretations and magnetic resonance imaging (MRI)
scans, which revealed severe L4-5 spondylosis, mild L3-4 and L5-S1 spondylosis and L4-5
degenerative disc disease. In concluding, he opined that appellant has a permanent aggravation
of his underlying lumbar degenerative disc disease, which he attributed to “the injury.”
By decision dated July 9, 2013, OWCP denied appellant’s claim on the grounds that the
medical evidence was insufficient to establish a causal relationship between the diagnosed
condition and the accepted January 18, 2013 employment incident.
On July 10, 2013 OWCP received a June 28, 2013 report from Dr. Hurford, which
provided a history of appellant’s back pain and physical findings. Diagnoses include low back
pain, lumbar degenerative disc disease and lumbar spondylosis without myelopathy.
In a letter dated November 11, 2013, appellant’s counsel requested reconsideration and
submitted the following evidence in support of his request.
An October 18, 2013 report from Dr. Michael Stephens, a treating Board-certified family
medicine physician, diagnosed chronic back pain and noted that he had treated appellant since
August 29, 2012. A review of an April 8, 2013 lumbar MRI scan revealed signficant disc
disease, bulging discs and disc narrowing at in the lumbar area. Dr. Stephens opined that
appellant suffered an aggravation of his back condition due to the January 18, 2013 employment
incident. In support of this conclusion, he noted that appellant’s back pain worsened following
his lifting a heavy box on January 18, 2013. In concluding, Dr. Stephens opined that appellant’s
chronic back pain had been permanently aggravated by the January 18, 2013 lifting incident at
work.
By decision dated December 9, 2013, OWCP denied modification.

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LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of her claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
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. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.5
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 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.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty

2

Id.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

K.K., Docket No. 13-1205 (issued December 13, 2013); see Elaine Pendleton, 40 ECAB 1143 (1989).

6

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

7

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215 (1997).

8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
9

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

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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.10
ANALYSIS
The Board finds that the medical evidence submitted by appellant is insufficient to
establish that she sustained a diagnosed medical condition due to the accepted January 18, 2013
employment incident. Therefore, appellant has failed to meet her burden of proof.
In support of his claim, appellant submitted reports dated June 28 and July 1, 2013 from
Dr. Hurford. In the June 28, 2013 report, Dr. Hurford provided a medical history, physical
findings and diagnoses of lower back pain, lumbar degenerative disc disease and lumbar
spondylosis without myelopathy. He offered no opinion as to the cause of the back conditions or
any relationship between the accepted January 18, 2013 employment incident and appellant’s
back conditions. Medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value.11 Thus, Dr. Hurford’s June 28, 2013 report is
insufficient to establish appellant’s claim.
In the July 1, 2013 report, Dr. Hurford related that appellant sustained an injury at work
on November 29, 1999 as the result of lifting. He opined that appellant sustained a permanent
aggravation of his lumbar degenerative disc disease due to “the injury.” Dr. Hurford made no
mention of appellant sustaining an injury on January 18, 2013 as the result of lifting a heavy box.
He did not identify the injury. Medical conclusions based on inaccurate or incomplete histories
are also of little probative value.12 Further, Dr. Hurford’s opinion that the condition was due to
an injury at work is unsupported by rationale and is conclusory. Medical opinions which contain
no rationale or explanation are of little probative value.13 Thus, this report is insufficient to
establish appellant’s claim.
The record also contains an October 18, 2013 report from Dr. Stephens diagnosing
chronic back pain. Dr. Stephens opined that appellant suffered an aggravation of his back
condition due to the January 18, 2013 employment incident. In support of this conclusion, he
noted that appellant’s back pain worsened following his lifting a heavy box on January 18, 2013.
This report is not sufficient as Dr. Stephens merely repeated appellant’s complaints of an
increase in his pain symptoms following the lifting of a heavy box. Dr. Stephens did not provide

10

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

11

S.E., Docket No. 08-2214 (issued May 6, 2009); K.W., 59 ECAB 271 (2007); Jaja K. Asaramo, 55 ECAB
200 (2004); Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).
12

M.W., 57 ECAB 710 (2006); James R. Taylor, 56 ECAB 537 (2005) (medical opinions based on an inaccurate
or incomplete factual history are of diminished probative value). See generally Melvina Jackson, 38 ECAB 443,
450 (1987) (addressing factors that bear on the probative value of medical opinions).
13

F.T., Docket No. 09-919 (issued December 7, 2009) (medical opinions not fortified by rationale are of
diminished probative value); Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements
merely asserting causal relationship generally do not discharge a claimant’s burden of proof).

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medical rationale addressing how lifting the heavy box caused or aggravated his diagnosed
medical condition.14
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.15 Causal relationship must be established by
rationalized medical opinion evidence and he failed to submit such evidence.
OWCP advised appellant that it was her responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the
physician’s opinion, with medical reasons, on the cause of his condition. Appellant failed to
submit appropriate medical documentation in response to OWCP’s request. As there is no
probative, rationalized medical evidence addressing how his claimed back condition was caused
or aggravated by the January 18, 2013 employment incident, he has not met his burden of proof
to establish an injury in the performance of duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that his back condition was causally
related to the accepted January 18, 2013 employment incident.

14

T.M., Docket No. 08-975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

15

See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., 59 ECAB 158 (2007); Robert Broome, 55 ECAB
339 (2004); Anna C. Leanza, 48 ECAB 115 (1996).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 9, 2013 is affirmed.
Issued: August 7, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MICHAEL E. DEBAKEY VA MEDICAL
CENTER, Houston, TX, Employer
__________________________________________

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

Docket No. 21-1107
Issued: January 31, 2022

Case Submitted on the Record

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

JURISDICTION
On July 12, 2021 appellant filed a timely appeal from a July 1, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $4,193.19, for which she was without fault,
because she concurrently received FECA wage-loss compensation and Social Security
Administration (SSA) age-related retirement benefits for the period October 1, 2019 through
May 23, 2020, without an appropriate offset; (2) whether OWCP properly denied waiver of
recovery of the overpayment; and (3) whether OWCP properly required recovery of the

1

5 U.S.C. § 8101 et seq.

overpayment by deducting $200.00 from appellant’s continuing compensation payments every 28
days.
FACTUAL HISTORY
This case was previously before the Board on a different issue. 2 The facts and
circumstances as set forth in the Board’s prior order are incorporated herein by reference. The
relevant facts are as follows.
On December 28, 2018 appellant, then a 65-year-old medical technician, filed a traumatic
injury claim (Form CA-1) alleging that on that date she injured her back, left shoulder, left eye,
head, and both legs when she fell over a dolly in the cafeteria doorway while in the performance
of duty.3 She stopped work on December 28, 2018, and did not return. Appellant received
continuation of pay (COP) from December 31, 2018 to January 14, 2019.
OWCP accepted appellant’s claim for lower back, left shoulder and upper arm strains,
bilateral knee contusions, left knee lateral meniscus derangement, tear of the left knee medial
meniscus, other injuries of the left eye and orbit, and other specified injuries of the head. It paid
appellant compensation on the supplemental rolls effective March 30, 2019, and on the periodic
rolls effective October 13, 2019.
The record reflects that appellant elected Office of Personnel Management (OPM)
retirement benefits in preference to FECA benefits on December 30, 2019. The effective date of
her election was December 25, 2019. Consequently, OWCP terminated appellant’s periodic rolls
benefits on March 29, 2020.
On May 12, 2020 appellant elected FECA benefits, effective May 24, 2020. OWCP again
paid her FECA wage-loss compensation on the periodic rolls as of May 24, 2020.
On November 4, 2020 OWCP received from SSA an August 27, 2020 FERS/SSA dual
benefits calculation form which indicated that appellant had been in receipt of SSA age-related
retirement benefits since October 2019. The form showed SSA benefit rates with and without a
FERS offset. Beginning October 2019, the SSA rate with FERS was $1,778.30, and without FERS
was $1,245.50 and beginning December 2019, the SSA rate with FERS was $1,806.50, and
without FERS was $1,265.40.
A FERS offset calculation form was completed on November 4, 2020. It calculated the
amount that should have been offset from appellant’s wage-loss compensation from October 1,
2019 through March 28, 2020. OWCP found that effective October 1, 2019, the monthly offset
was $532.80, or $491.82 every 28 days, effective December 1, 2019, the monthly offset was
$541.10, or $499.48 every 28 days. It divided the 28-day offset amount to find the daily amount,
which it multiplied by the number of days in each period from October 1, 2019 through March 28,
2020, to find the amount that it had overpaid appellant for each period. OWCP found that appellant
2

Docket No. 20-0441 (issued August 19, 2020).

3

Appellant’s retirement was listed as Federal Employees Retirement System (FERS).

2

was overpaid $1,071.45 during the 61-day period from October 1 through November 30, 2019,
and $2,122.78 during the 119-day period from December 1, 2019 to March 28, 2020. It added the
amounts for each period and determined that it should have offset a total of $3,194.23 from
appellant’s wage-loss compensation.
On March 12, 2021 OWCP again contacted the SSA to obtain the appropriate information
to determine whether an offset of compensation benefits was required.
On May 19, 2021 OWCP received from SSA a May 19, 2021 completed FERS/SSA dual
benefits calculation form which indicated that appellant had been in receipt of SSA age -related
retirement benefits since October 2019. The form showed SSA benefit rates with and without a
FERS offset. Beginning October 2019, the SSA rate with FERS was $1,778.30, and without FERS
was $1,245.50; beginning December 2019, the SSA rate with FERS was $1,806.50, and without
FERS was $1,265.40; beginning December 2020 the SSA rate with FERS was $1,830.00, and
without FERS was $1,281.80.
A FERS offset computation was completed on May 17, 2021. It calculated the amount that
it should have offset from appellant’s wage-loss compensation from October 1, 2019 through
May 23, 2020. OWCP found that effective October 1, 2019 the monthly offset was $532.80, or
$491.82 every 28 days, effective December 1, 2019, the monthly offset was $541.10, or $499.48
every 28 days. It divided the 28-day offset amount to find the daily amount, which it multiplied
by the number of days in each period f rom October 1, 2019 through May 23, 2020, to find the
amount that it had overpaid appellant for each period. OWCP found that appellant was overpaid
$1,071.45 during the 61-day period from October 1 through November 30, 2019, and $3,121.73
during the 175-day period from December 1, 2019 through May 23, 2020. It added the amounts
for each period and determined that it should have offset a total of $4,193.19 from her wage -loss
compensation.
On May 25, 2021 OWCP issued a preliminary overpayment determination, f inding that an
overpayment of compensation in the amount of $4,193.19 had been created because it had failed
to reduce appellant’s wage-loss compensation payments for the period October 1, 2019 through
May 23, 2020, to offset her SSA age-related retirement benefits that were attributable to federal
service. It explained that it had reduced her ongoing FECA benefits for the periodic roll cycle
effective May 24, 2020. Therefore, OWCP determined that an overpayment occurred for the
period October 1, 2019 through May 23, 2020.
OWCP further determined that appellant was without fault in the creation of the
overpayment. It requested that she submit a completed overpayment recovery questionnaire (Form
OWCP-20) to determine a reasonable repayment method and advised appellant that she could
request a waiver of the overpayment. OWCP further requested that appellant provide supporting
financial documentation, including copies of income tax returns, bank account statements, bills,
pay slips, and any other records to support income and expenses. Additionally, it provided an
overpayment action request form and further notified her that, within 30 days of the date of the
letter, she could request a telephone conference, a final decision based on the written evidence, or
a prerecoupment hearing.

3

On June 9, 2021 OWCP received a Form OWCP-20 from appellant. Appellant requested
a waiver and noted that she was “unable to make any repayments due to medical and living
expenses, medical insurance, doctor fees, rent, food, and utilities.” She listed monthly income of
$1,700.00 in SSA benefits, and other benefits as $2,100.00, for total monthly income of $3,800.00.
Appellant listed expenses to include rent or mortgage in the amount of $3,100.00, food $500.00,
clothing $300.00, utilities $824.00, and other expenses of $1,150.00. She listed a $12,000.00
medical debt with a monthly payment of $500.00 per month. Appellant indicated that her total
monthly expenses were $6,374.00. In response to a question regarding her assets, she listed $0.00
cash on hand, $100.00 checking account balance, and $200.00 savings account balance, totaling
$300.00. Appellant did not provide the requested accompanying financial documentation.
By decision dated July 1, 2021, OWCP finalized the preliminary overpayment
determination, finding that appellant had received an overpayment of compensation in the amount
of $4,193.19 for the period October 1, 2019 through May 23, 2020, because she concurrently
received SSA age-related retirement benefits and FECA wage-loss compensation benefits without
an appropriate offset. It also found that she was without fault in the creation of the overpayment,
but denied waiver of recovery of the overpayment. OWCP required recovery of the overpayment
by deducting $200.00 every 28 days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 4 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 5
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 6 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit. 7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for which she was without fault, because she concurrently received FECA wageloss compensation and SSA age-related retirement benefits.

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018); L.J., 59 ECAB 264 (2007).

7

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

4

The evidence of record indicates that, while appellant was receiving compensation for
wage-loss under FECA, she also was receiving SSA age-related retirement benefits based upon
her federal service. A claimant cannot receive both compensation for wage loss under FECA and
SSA age-related retirement benefits attributable to federal service for the same period. 8 The
information provided by SSA established that during the period October 1, 2019 through
March 28, 2020, appellant received SSA age-related retirement benefits that were attributable to
federal service, while she also received FECA benefits that were not reduced by the appropriate
offset. Consequently, the fact of overpayment has been established.
The Board finds, however, that OWCP improperly determined the period and amount of
the overpayment.
To determine the amount of the overpayment, the portion of SSA’s benefits that were
attributable to federal service must be calculated. However, to constitute a dual benefit, the record
must also establish that appellant was in receipt of FECA wage-loss benefits during the period in
question. OWCP received documentation from SSA with respect to the specific amount of SSA
age-related retirement benefits that were attributable to federal service. SSA provided its rate with
FERS and without FERS for specific periods from October 1, 2019 through March 28, 2020 in the
amount of $3,194.23. SSA provided a second calculation of its rate with and without FERS
through May 23, 2020. OWCP calculated the overpayment in the amount of $4,193.19 through
May 23, 2020, but the evidence of record establishes that appellant had elected OPM retirement
benefits during a portion of the this time period, and appellant did not receive FECA wa ge-loss
compensation from March 29, 2020 through May 23, 2020.
The Board has held that, in overpayment cases, it is essential that OWCP provide the
recipient of compensation with a clear statement showing how the overpayment was calculated.
Although the record establishes that appellant received SSA age-related retirement benefits, which
were attributable to her federal service, OWCP has not offered an accurate explanation for its
calculations.
Accordingly, the Board finds that the case must be remanded to OWCP. On remand,
OWCP shall clarify the amount of the overpayment of compensation and issue a new preliminary
overpayment determination, with an overpayment action request form, a new Form OWCP-20,
and instructions for appellant to provide updated supporting documentation. Following this, and
other such further development as deemed necessary, it shall issue a de novo decision.9
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation, for which she was without fault, because she concurrently received SSA agerelated retirement benefits while also receiving FECA benefits without an appropriate offset. The

8

20 C.F.R. § 10.421(d); see S.M., supra note 6; L.J., supra note 6.

9

G.R., Docket No. 21-0209 (issued December 20, 2021).

5

Board further finds that the case is not in posture for decision regarding the period and amount of
the overpayment.10
ORDER
IT IS HEREBY ORDERED THAT the July 1, 2021 decision of the Office of Workers’
Compensation Programs is affirmed in part, set aside in part, and remanded for further proceedings
consistent with this decision of the Board.
Issued: January 31, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10

In light of the Board s disposition of Issue 1, Issues 2 and 3 are rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, ROYAL OAK POST
OFFICE, Royal Oak, MI, Employer
__________________________________________

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

Docket No. 20-0356
Issued: February 11, 2022

Case Submitted on the Record

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

JURISDICTION
On December 3, 2019 appellant filed a timely appeal from a November 6, 2019 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 bilateral foot
condition causally related to the accepted November 13, 2015 employment incident.
FACTUAL HISTORY
On November 14, 2015 appellant, then a 47-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that on November 13, 2015 he sustained injuries to both feet
due to prolonged standing without proper floor mats while in the performance of duty. He stopped
work on November 14, 2015 and returned to work on November 23, 2015.
In a November 14, 2015 attending physician’s report, Part B of an authorization for
examination and/or treatment (Form CA-16), Dr. David Pommerening, Board-certified in
preventive occupational and environmental medicine, noted that appellant had sore feet and
diagnosed pes planus. In a work status report of even date, he diagnosed pes planus and advised
that appellant could return to full-time work on November 15, 2015. In a duty status report (Form
CA-17) of even date, Dr. Pommerening opined that prolonged standing without proper floor mats
caused pain in appellant’s feet. He again diagnosed pes planus and provided work restrictions.
In a work status report also dated November 14, 2015, Dr. Naveed Siddique, Boardcertified in emergency medicine, diagnosed foot pain and advised that appellant could return to
work on November 18, 2015 with restrictions. In a November 18, 2015 work status report, he
diagnosed left foot pain and advised that appellant could return to work on November 23, 2015
with restrictions.
In a letter dated November 25, 2015, the employing establishment controverted appellant’s
claim.
In a development letter dated December 1, 2015, OWCP informed appellant of the
deficiencies in his claim. It advised him of the type of factual and medical ev idence needed to
establish his claim and provided a factual questionnaire for completion. OWCP afforded appellant
30 days to submit the necessary evidence.
In a November 14, 2015 medical report, Dr. Pommerening noted that appellant presented
with sore heels and flatfeet. He indicated that appellant had no floor mats at work for the past two
days. Dr. Pommerening conducted a physical examination, which revealed tenderness in
calcaneus and spring ligament. He diagnosed pes planus.
Dr. Timothy Baessler, a podiatrist, noted in a December 3, 2015 medical report that
appellant had untreated flatfeet. He indicated that appellant usually used floor mats at work, but
his feet started to hurt when these were taken away from him. Dr. Baessler noted that appellant
continue to feel pain in both heels. He diagnosed left tendinitis and bilateral plantar fasciitis.
By decision dated January 6, 2016, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish a diagnosed medical condition causally related to
the accepted employment incident.

2

On February 3, 2016 appellant requested reconsideration and submitted additional
evidence.
In a January 21, 2016 letter, Dr. Siddique noted that appellant was seen on November 14
and 18, 2015. He diagnosed bilateral plantar fasciitis and recommended using floor mats for any
prolonged standing at work.
By decision dated April 27, 2016, OWCP denied modification of its January 6, 2016
decision.
In a July 11, 2016 medical report, Dr. Siddique noted that appellant was seen on
November 14, 18, and 24, 2015 for foot pain and bilateral plantar fasciitis. He indicated that
appellant had been referred to a podiatrist and treated with steroid injections. Dr. Siddique
explained that plantar fasciitis occurred when the long fibrous plantar fascia ligament along the
bottom of the foot developed tears in the tissue resulting in pain and inflammation. He further
explained that occupations that kept both feet walking or standing on hard surfaces were risk
factors for plantar fasciitis. Dr. Siddique opined that appellant’s employment could have been a
direct cause of his medical condition due to prolonged standing or walking on hard surfaces.
On February 6, 2017 appellant, through counsel, requested reconsideration.
In August 29, 2016 prescription notes, Dr. Baessler advised appellant to wear tennis shoes
indefinitely due to his foot problems and excused him from work from August 29 to
September 5, 2016.
By decision dated February 15, 2017, OWCP denied modification of its April 27, 2016
decision.
On March 23, 2017 appellant, through counsel, requested reconsideration.
In a March 1, 2017 form report, Dr. Lawrence Brown, a podiatrist, noted appellant’s
history of injury, indicating that appellant injured his foot while in the performance of his duties,
including prolonged standing and walking, without floor mats between November 13
and 14, 2015. He diagnosed bilateral plantar fascial fibromatosis (ICD code M72.2). Dr. Brown
responded “Yes” regarding whether he believed, based on reasonable medical probability, that the
accepted November 13, 2015 employment incident caused appellant’s diagnosed condition.
By decision dated June 20, 2017, OWCP denied modification of its February 15, 2017
decision.
On February 21, 2018 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In an undated letter, Dr. Brown explained that plantar fascia was a firm structure that held
the bones of the arch of the foot. He further explained that with pronation, the plantar fascia
stretched and pulled at its weakest point at the heel. Dr. Brown indicated that appellant had
excessive pronation, which was noted on gait analysis. He opined that being a postal worker had
put appellant more at risk for a foot condition than an average person.
3

By decision dated May 18, 2018, OWCP denied modification of its June 20, 2017 decision.
On October 22, 2018 appellant, through counsel, requested reconsideration.
In a July 13, 2018 medical report form, Dr. Siddique noted that appellant’s feet became
painful, especially in both heels, after prolonged standing on hard surfaces without proper floor
mats in November 2015. He observed pes planus and inflammation in both feet. Dr. Siddique
diagnosed bilateral plantar fasciitis. He responded “Yes” regarding whether he believed that the
accepted November 13, 2015 employment incident caused appellant’s diagnosed condition.
In an October 18, 2018 medical note, Dr. Siddique provided light-duty restrictions.
By decision dated October 31, 2018, OWCP denied modification of its May 18, 2018
decision.
On August 12, 2019 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In an undated medical report, Dr. Siddique noted that an x-ray report revealed bilateral heel
spurs. He also indicated that appellant was born with flatfeet and had to often walk and stand
immensely while at work. Dr. Siddique reported that appellant had been standing without a floor
mat during work between November 13 and 14, 2015 for approximately four to seven hours. He
also detailed appellant’s job duties, which required walking approximately 4 to 12 miles a day.
Dr. Siddique diagnosed bilateral plantar fasciitis. He opined that prolonged standing without an
anti-fatigue floor mat and performing his job duties on November 13, 2015 was the direct and
proximate cause of appellant’s diagnosed condition.
By decision dated November 6, 2019, OWCP denied modification of its October 31, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

3

Id.

4

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

4

employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it 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 and place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence. 7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident
identified by the employee. 9
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. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a bilateral foot
condition causally related to the accepted November 13, 2015 employment incident.
In his July 11, 2016 report, Dr. Siddique opined that appellant’s employment “could have”
been a direct cause of his medical condition due to prolonged standing or walking on hard surfaces.
He further explained that plantar fasciitis occurred when the long fibrous plantar fascia ligament
along the bottom of the foot developed tears in the tissue. Similarly, in an undated report,
Dr. Brown opined that appellant’s profession as a carrier technician had put him more at risk for a
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
N.C., Docket No. 19-1191 (issued December 19, 2019); R.D., Docket No. 18-1551 (issued March 1, 2019).

5

foot condition than an average person. The Board has held that medical opinions that are
speculative or equivocal are of diminished probative value.11 Thus, these reports are insufficient
to meet appellant’s burden of proof to establish his claim.
In his March 1, 2017 form report, Dr. Brown noted appellant’s history of injury and
diagnosed bilateral plantar fascial fibromatosis. He responded “Yes” to whether he believed, based
on reasonable medical probability, that the accepted November 13, 2015 employment incident was
the competent medical cause of appellant’s condition. While Dr. Brown affirmatively supported
causal relationship, he did not offer medical rationale sufficient to explain how or why the accepted
November 13, 2015 employment incident could have resulted in or contributed to the diagnosed
condition. Likewise, in his July 13, 2018 medical report, Dr. Siddique diagnosed bilateral plantar
fasciitis and responded “Yes” to whether he believed that the accepted November 13, 2015
employment incident caused appellant’s diagnosed condition. The Board has held that a
physician’s opinion on causal relationship which consists of answering “Yes” to a form question,
without explanation or rationale, is of diminished probative value and is insufficient to establish a
claim.12 As these reports lack reasoned explanation of how prolonged standing caused or
contributed to appellant’s conditions, Dr. Brown’s March 1, 2017 report and Dr. Siddique’s
July 13, 2018 medical report are also insufficient to establish appellant’s claim.
Dr. Siddique noted in an undated report that x-rays revealed bilateral heel spurs. He also
diagnosed bilateral plantar fasciitis and further indicated that appellant was born with flatfeet.
Dr. Siddique opined that prolonged standing without an anti-fatigue floor mat and performing his
job duties on November 13, 2015 were the direct and proximate causes of appellant’s diagnosed
condition. He, however, did not provide a pathophysiological explanation as to how the accepted
November 13, 2015 employment incident either caused or contributed to his diagnosed
condition.13 A conclusory opinion provided by a physician without the necessary rationale
explaining how or why the incident was sufficient to result in the diagnosed medical condition is
of diminished probative value and insufficient to establish a claim. 14 Moreover, the Board has
consistently held that complete medical rationalization is particularly necessary when there are
preexisting conditions involving the same body part, 15 and has required medical rationale
differentiating between the effects of the work-related injury and the preexisting condition in such
cases.16 Thus, the Board finds that this undated report from Dr. Siddique is insufficient to establish
causal relationship.

11

V.W., Docket No. 19-1537 (issued May 13, 2020); see E.B., Docket No. 18-1060 (issued November 1, 2018).

12

See J.R., Docket No. 18-1679 (issued May 6, 2019); M.C., Docket No. 18-0361 (issued August 15, 2018);
Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).
13

Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.805.3e (January 2013); see R.D., Docket No. 181551 (issued March 1, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).
14

S.B., Docket No. 20-0088 (issued June 4, 2020); J.O., Docket No. 19-0326 (issued July 16, 2019).

15

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

16

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).

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In medical reports, a work status report, and CA-17 forms dated November 14, 2015,
Dr. Pommerening noted that appellant experienced feet pain after prolonged standing without floor
mats at work on November 13, 2015. He diagnosed pes planus and provided work restrictions.
However, Dr. Pommerening did not provide an opinion on the cause of appellant’s diagnosed
condition. Similarly, in his January 21, 2016 letter, Dr. Siddique diagnosed bilateral foot pain and
bilateral plantar fasciitis, advised that appellant could return to work with restrictions, and
recommended using floor mats for any prolonged standing. However, he did not offer an opinion
regarding the cause of appellant’s conditions. The Board has long held that medical evidence that
does not offer an opinion regarding the cause of an employee’s condition is of no probative value
on the issue of causal relationship. 17 Thus, this evidence is insufficient to establish appellant’s
claim.
In a December 3, 2015 report, Dr. Baessler noted that appellant had untreated flatfeet and
after prolonged standing without floor mats became painful. He diagnosed left tendinitis and
bilateral plantar fasciitis. In his August 29 2016 prescription notes, Dr. Baessler advised appellant
to wear tennis shoes indefinitely and excused him from work until September 5, 2016. However,
Dr. Baessler failed to provide an opinion regarding the cause of appellant’s conditions. As noted
above, reports that lack an opinion regarding the cause of appellant’s conditions are of no probative
value and insufficient to establish causal relationship.18 The Board also notes that Dr. Baessler, in
his December 3, 2015 report, indicated that appellant’s bilateral foot condition did not become
symptomatic until November 13, 2015, suggesting that the accepted employment incident caused
his diagnosed conditions. The Board has held that an opinion finding causal relationship simply
because an employee was asymptomatic before the injury, but symptomatic after, is insufficient,
without supporting medical rationale, to establish causal relationship. 19
In his November 14 and 18, 2015 work status reports, Dr. Siddique diagnosed foot pain
and advised that appellant could return to work on November 23, 2015 with restrictions. The
Board has held that pain is a symptom and not a compensable medical diagnosis. 20
As none of the medical evidence submitted constitutes rationalized medical evidence
sufficient to establish causal relationship between the accepted November 13, 2015 employment
incident and appellant’s diagnosed conditions, the Board finds that appellant has not met his
burden of proof. 21

17

See G.L., Docket No. 18-1057 (issued April 14, 2020); J.M., Docket No. 18-0853 (issued March 9, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
18

Id.

19

See J.F., Docket No. 19-1694 (issued March 18, 2020); M.B., Docket No. 19-0840 (issued October 2, 2019);
C.C., Docket No. 17-1841 (issued December 6, 2018); John F. Glynn, 53 ECAB 562 (2002); Thomas Petrylak, 39
ECAB 276, 281 (1987).
20

T.O., Docket No. 19-1291 (issued December 11, 2019); T.G., Docket No. 19-0904 (issued November 25, 2019).

21

R.G., Docket No. 18-0792 (issued March 11, 2020).

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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 bilateral foot
condition causally related to the accepted November 13, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the November 6, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 2022
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, ST. LOUIS
PROCESSING & DISTRIBUTION CENTER,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 10-1891
Issued: April 5, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 13, 2010 appellant filed a timely appeal from the May 13, 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 over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
medical conditions due to his January 6, 2006 employment injury in addition to those already
accepted.
FACTUAL HISTORY
The Office accepted that on January 6, 2006 appellant, then a 37-year-old mechanic,
sustained a lumbosacral sprain/strain, lumbago, sciatica and lumbar radiculopathy while
climbing over a machine he was repairing. Appellant stopped work on January 7, 2006 and later

returned to work for the employing establishment.1 The Office paid him compensation for
various periods of compensation.2
In a February 28, 2008 report, Dr. Faisal J. Albanna, an attending Board-certified
neurosurgeon, diagnosed lumbago, myofascial pain, sciatica and status post lumbar fusion and
microdiscectomy in April 2006. In a February 28, 2008 note, Dr. Albanna stated that appellant
could return to work on March 2, 2008 with restrictions (through April 2, 2008) including no
lifting more than 25 pounds. The Office found that the reports of Dr. Albanna did not contain a
rationalized opinion detailing total disability for the claimed periods. In a July 8, 2008 decision,
it denied appellant’s claim that he sustained total disability for the period February 13 to
March 27, 2008 due to his January 6, 2006 employment injury.3 Appellant submitted additional
reports in which Dr. Albanna described the treatment of his back condition. In a September 12,
2008 decision, the Office affirmed its July 8, 2008 decision.
The findings of an October 31, 2008 magnetic resonance imaging (MRI) scan showed no
evidence of disc herniation or foraminal stenosis at L5-S1. These results were similar to those
found in a February 26, 2008 MRI scan study.
Appellant alleged that he sustained medical conditions due to his January 6, 2006
employment injury in addition to those already accepted, including failed back surgery
syndrome, right leg muscle atrophy and left knee degeneration. In a November 13, 2008 letter,
the Office requested that he submit additional factual and medical evidence in support of his
claim. Appellant responded in a November 18, 2008 letter and argued that scar tissue from
surgery required by his January 6, 2006 employment injury caused him to sustain right leg
muscle atrophy, nerve damage and abnormal posture and gait.
In a November 11, 2008 report, Dr. Albanna noted that appellant presented with
complaints of lumbar pain which radiated into both legs. Appellant also complained of tightness
and weakness in his leg muscles. Dr. Albanna indicated that on physical examination appellant
had some limitation of lumbar range of motion and that he had atrophy of his right leg muscles
and 4/5 strength in his right foot dorsiflexors. He diagnosed lumbago and lumbar degenerative
disc disease. Dr. Albanna also submitted chiropractic notes from October and November 2008.
In a January 20, 2009 decision, the Office denied appellant’s claim on the grounds that he
did not submit sufficient medical evidence to establish that he sustained additional medical
conditions due to his January 6, 2006 employment injury.
In December 8, 22 and 29, 2008 reports, Dr. Albanna diagnosed lumbago and described
his treatment of appellant’s lumbar spine with an epidural steroid injection. In a December 10,
2008 note, he diagnosed lumbago and indicated that appellant was off work on
1

Appellant began working as a electronics technician in April 2007.

2

On April 20, 2006 appellant underwent decompressive lumbar microlaminectomy, bilateral microdiscectomy,
removal of scar and posterior lumbar interbody fusion at L5-S1 with instrumentation. The procedures were
authorized by the Office. Appellant had previously undergone surgery at L5-S1 in 1989.
3

Appellant had filed a claim for this period of total disability on April 30, 2008.

2

December 11, 2008. In June 15, 29, July 13 and 27, 2009 reports, Dr. Gurpreet Padda, an
attending Board-certified physical medicine and rehabilitation physician, diagnosed various
conditions, including lumbosacral spondylolysis without myelopathy, lumbar disc displacement,
degenerative disc disease, postlumbar laminectomy syndrome, lumbar radiculopathy and back
pain/lumbago. He described his treatment of appellant’s low back with selective nerve root
injections, including injections of Depomedrol and Lidocaine.
The findings of July 1, 2009 electromyogram (EMG) and nerve conduction velocity
(NCV) testing showed decreased conduction velocity and amplitude of the right peroneal motor
nerve, increased distal latency of the right peroneal F-wave, increased insertional activity and
abnormal morphology in a predominantly L5 distribution in the right leg suggestive of a
proximal lesion at the L5 root level. It was noted that these findings had to be correlated
clinically.
Appellant again requested reconsideration of his claim alleging that he had failed back
surgery syndrome due to his January 6, 2006 employment injury. In a May 13, 2010 decision,
the Office affirmed its January 20, 2009 decision finding that he did not submit well-rationalized
medical evidence in support of his claim.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.5 The medical
evidence required to establish a causal relationship between a claimed condition or period of
disability and an employment injury is rationalized medical opinion evidence. Rationalized
medical opinion evidence is medical evidence which includes a physician’s rationalized opinion
on the issue of whether there is a causal relationship between the claimant’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 claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.6
ANALYSIS
The Office accepted that on January 6, 2006 appellant sustained a lumbosacral
sprain/strain, lumbago, sciatica and lumbar radiculopathy while climbing over a machine he was
repairing. On April 20, 2006 appellant underwent decompressive lumbar microlaminectomy,
4

5 U.S.C. §§ 8101-8193.

5

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

6

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

3

bilateral microdiscectomy, removal of scar and posterior lumbar interbody fusion at L5-S1 with
instrumentation. The procedures were authorized by the Office. Appellant had previously
undergone surgery at L5-S1 in 1989. He alleged that he sustained medical conditions due to his
January 6, 2006 employment injury in addition to those already accepted, including failed back
surgery syndrome, right leg muscle atrophy, left knee degeneration, nerve damage and abnormal
posture and gait. In January 20, 2009 and May 13, 2010 decisions, the Office denied appellant’s
claim on the grounds that he did not submit sufficient medical evidence in support thereof.
The Board finds that appellant did not submit sufficient medical evidence to establish that
he sustained additional medical conditions due to his January 6, 2006 employment injury.
Appellant submitted reports dated in November and December 2008 in which
Dr. Albanna diagnosed such conditions as lumbago and lumbar degenerative disc disease and
detailed his treatment of the lumbar spine with epidural steroid injections. Dr. Albanna did not
provide any indication that appellant sustained medical conditions due to his January 6, 2006
employment injury in addition to those already accepted.7 In reports dated in June and
July 2009, he diagnosed various conditions, including lumbosacral spondylolysis without
myelopathy, lumbar disc displacement, degenerative disc disease, postlumbar laminectomy
syndrome, lumbar radiculopathy and back pain/lumbago. Dr. Albanna described his treatment of
appellant’s low back with selective nerve root injections, including injections of Depomedrol and
Lidocaine. Although some of the conditions diagnosed by Dr. Padda were not among the
conditions accepted by the Office, Dr. Padda did not provide any opinion that these conditions
were related to appellant’s January 6, 2006 employment injury.
The findings of the July 1, 2009 EMG and NCV testing showed decreased conduction
velocity and amplitude of the right peroneal motor nerve, increased distal latency of the right
peroneal F-wave, increased insertional activity and abnormal morphology in a predominantly L5
distribution in the right leg suggestive of a proximal lesion at the L5 root level, but there is no
opinion in the record showing that these abnormal findings were related to the January 6, 2006
employment injury or other employment factors.
For these reasons, appellant has not established that he sustained additional medical
conditions due to his January 6, 2006 employment injury.8
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained medical conditions due to his January 6, 2006 employment injury in addition to those
already accepted.

7

In a December 10, 2008 note, Dr. Albanna diagnosed lumbago and indicated that appellant was off work on
December 11, 2008. He did not describe the cause of this disability.
8

On appeal, appellant argued that the medical evidence showed that he had failed back surgery syndrome, but he
did not identify rationalized medical evidence which supported this argument.

4

ORDER
IT IS HEREBY ORDERED THAT the May 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 5, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.P., Appellant
and
GENERAL SERVICES ADMINISTRATION,
PUBLIC BUILDING SERVICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 19-0177
Issued: June 19, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 1, 2018 appellant, through counsel, filed a timely appeal from an August 27,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most
recent merit decision was a Board decision dated April 6, 2017, which became final 30 days after
issuance, and is not subject to further review.2 As there was no merit decision by OWCP within
180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3

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

20 C.F.R. § 501.6(d). See G.G., Docket No. 18-1074 (issued January 7, 2019).

3

5 U.S.C. § 8101 et seq.

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On September 12, 2013 appellant, then a 62-year-old retired air condition operator/
mechanic, filed an occupational disease claim (Form CA-2) alleging that he was exposed to
asbestos for 20 years at work and had developed asbestosis.5 In a November 19, 2013 decision,
OWCP initially denied the claim based on appellant’s failure to establish fact of injury. However,
by decision dated March 21, 2014, an OWCP hearing representative set aside the November 19,
2013 decision, and remanded the case for further development. Following additional development,
by decision dated July 16, 2014, OWCP found that while appellant established both components
of fact of injury, he had not established causal relationship between the accepted employment
factors and the diagnosed medical condition. That decision was subsequently affirmed by a
representative of OWCP’s Branch of Hearings and Review, and by decision dated December 16,
2015, the Board affirmed the hearing representative’s April 27, 2015 decision.6 Although
appellant established that he was exposed to asbestos during his federal employment and that he
suffered from asbestosis, the Board found that he had not established causal relationship.7
On May 26, 2016 appellant requested reconsideration and submitted additional medical
evidence, which included a recent pulmonary function study and a May 17, 2016 narrative report
from Dr. Gregory G. Hickey, a Board-certified internist and pulmonologist, who diagnosed
chronic obstructive pulmonary disease, chronic rhinitis, and chronic pneumoconiosis due to
asbestos and other mineral fibers.
By decision dated August 25, 2016, OWCP denied modification of its prior decision.
Appellant appealed to the Board. By decision dated April 6, 2017, the Board affirmed OWCP’s
August 25, 2016 decision denying appellant’s claim.8 The Board found that the medical evidence

4

Docket No. 17-0090 (issued April 6, 2017); Docket No. 15-1826 (issued December 26, 2015).

5

Appellant retired from the employing establishment, effective October 15, 1999.

6

Docket No. 15-1826 (issued December 16, 2015).

7

Id.

8

Docket No. 17-0090 (issued April 6, 2017).

2

of record failed to establish causal relationship between appellant’s diagnosed medical condition
and the accepted asbestos exposure at work.
On March 19, 2018 appellant, through counsel, requested reconsideration of the April 6,
2017 merit decision. In support of the request, counsel submitted a recent pulmonary function
study and a January 11, 2018 narrative report from Dr. Linas Vaitkus, a Board-certified internist
specializing in pulmonary disease. Counsel related that appellant was seen for assessment of
asbestosis. Dr. Vaitkus reviewed appellant’s history and noted that he had 22 years of asbestos
exposure working for the government. He provided examination findings and noted that a chest
computerized tomography (CT) scan from 2016 showed asbestosis and pleural plaques.
Dr. Vaitkus also reviewed the results of a January 11, 2018 pulmonary function study. He
diagnosed chronic obstructive pulmonary disease, chronic rhinitis, chronic pneumoconiosis due to
asbestos and other mineral fibers, and contact with exposure to asbestos, and pleural plaque with
presence of asbestos.
By decision dated August 27, 2018, OWCP denied further merit review of appellant’s
claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA9 vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.10
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.11
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.12 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.13 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.14

9

Supra note 1.

10

5 U.S.C. § 8128(a).

11
20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
12

Id. at § 10.607(a).

13

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

14

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

3

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law and did not advance a relevant legal argument not previously considered by OWCP.
Consequently, he is not entitled to further review of the merits of his claim based on the first and
second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
In support of his reconsideration request, appellant submitted a January 11, 2018 report by
Dr. Vaitkus. He provided examination findings and reported diagnoses of chronic obstructive
pulmonary disease, chronic rhinitis, chronic pneumoconiosis due to asbestos and other mineral
fibers, contact with exposure to asbestos, and pleural plaque with presence of asbestos. The Board
finds that Dr. Vaitkus did not provide an opinion or discussion regarding whether appellant’s
medical conditions were causally related to his accepted employment exposure. The January 11,
2018 diagnostic pulmonary function study similarly fails to address causal relationship. The Board
notes that the submission of evidence that does not address the particular issue involved does not
constitute a basis for reopening a case.15 Accordingly, appellant is not entitled to a review of the
merits of his claim based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.16
On appeal counsel asserts that OWCP’s delay in ruling on the March 19, 2018 request for
reconsideration cost appellant his appeal rights. As noted, the last merit decision of record was
issued by the Board on April 6, 2017, and is not subject to further review by the Board.17 Counsel
waited more than 11 months before requesting reconsideration and, as discussed above, failed to
present sufficient evidence or argument to warrant further merit review. Although OWCP issued
its August 27, 2018 nonmerit decision more than 90 days after counsel requested reconsideration,
under the circumstances the approximate two-month delay did not jeopardize appellant’s right to
a review of the merits of the case by the Board.18
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

15

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

16

See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E.,
58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).
17

See supra note 2.

18
See E.I., Docket No. 18-0634 (issued January 23, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.7a (October 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the August 27, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2019
Washington, DC

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

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

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

5