United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Cumberland, MD, Employer
__________________________________________

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Appearances:
Robert S. Brierton, Esq., for the appellant
Office of the Solicitor, for the Director

Docket No. 08-1901
Issued: September 8, 2009

Oral Argument January 6, 2009

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

JURISDICTION
On June 27, 2008 appellant filed for review from an April 9, 2008 merit decision of the
Office of Workers’ Compensation Programs which denied modification of his wage-earning
capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the appeal.
ISSUE
The issue is whether appellant established that the Office’s 2005 wage-earning capacity
determination should be modified.
FACTUAL HISTORY
On April 4, 2003 appellant, then a 47-year-old maintenance supervisor, sustained injury
to his left wrist while attempting to restrain an inmate. He stopped work on April 18, 2003.
Appellant’s claim was accepted by the Office for a fracture of the distal ulna and carpal tunnel

syndrome of the left wrist.1 He underwent surgery on July 16, 2003 for arthroscopy with
debridement of the left wrist, repair of the torn fibrocartilage and left carpal tunnel
decompression.2 Appellant was released to full-time light-duty work on September 22, 2003
with restrictions on the use of his left hand and arm.3 He was referred to Dr. Dean S. Sotoreanos,
an orthopedic surgeon, who reviewed appellant’s history of injury and noted complaints of
continuing left wrist pain. Dr. Sotoreanos advised that further ulnar shortening osteotomy
surgery was warranted and reiterated appellant’s capacity for light duty. Appellant underwent
occupational therapy for his left wrist and continued at light-duty work with restrictions.4
The Office referred appellant to Dr. Selim El-Attrache, a Board-certified orthopedic
surgeon, for a second opinion evaluation. In a February 17, 2004 report, Dr. El-Attrache
reviewed appellant’s history of injury and medical treatment, noting that his left wrist had been
pushed into a brick wall. Appellant was listed as right hand dominant. Dr. El-Attrache reviewed
the diagnostic studies and found that there was no evidence of aseptic necrosis to the left wrist
joint. He reported findings on physical examination, including normal ranges of motion of the
cervical and lumbar spines without complaint. Dr. El-Attrache noted moderate atrophy of the
thenar and hypothenar muscles and reported grip strength test results. He diagnosed
osteoarthritis, chondromalacia and cystic changes of the left wrist preexisting the April 4, 2003
injury. Dr. El-Attrache advised that the risks of ulnar shortening surgery outweighed the benefit.
He advised that appellant could return to his regular position as a maintenance supervisor with a
15-pound lifting limitation on the use of his left wrist.
The Office found a conflict in medical opinion arising between Dr. Sotoreanos and
Dr. El-Attrache as to whether appellant could return to work as a maintenance supervisor and the
nature and extent of any limitations due to his left wrist condition.5 It referred appellant, together
with a statement of accepted facts, to Dr. Mary M. Haus, a Board-certified orthopedic surgeon.
In a September 23, 2004 report, Dr. Haus reviewed the history of injury, noting that
appellant’s left wrist struck a brick wall while wrestling with an inmate. She noted that he was
right hand dominant. Dr. Haus addressed appellant’s left wrist carpal tunnel release, TFC repair
and additional joint debridement. Appellant’s past medical history included left carpal tunnel
syndrome and he otherwise denied any hospitalizations. Dr. Haus noted that appellant’s records
indicated a history of back discomfort but he did not elaborate on how much time was lost from
work due to low back injuries. On physical examination, there was no swelling of the left wrist
1

Appellant was initially treated by Dr. Frederick W. Munzer, an osteopath, who referred him to Dr. Brian E.
Gunnlaugson, an orthopedic surgeon. Appellant underwent a magnetic resonance imaging (MRI) scan on May 12,
2003 that diagnosed degenerative tear of the triangular fibrocartilage with effusion of the distal radial ulnar joint
associated with an ulnar styloid fracture.
2

Surgery was performed by Dr. Ian Katz, a Board-certified surgeon.

3

Appellant was assigned to work at the message center at the agency prison complex.

4

On January 27, 2004 Dr. Katz advised that he had no further left wrist treatment to recommend and continued
appellant on light duty.
5

The Office noted that appellant stopped work on March 20, 2004 as the employing establishment could not
accommodate his work restrictions. He received wage-loss compensation.

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joint with gross musculature normal and no muscle wasting. Appellant was able to make a full
fist with marked lack of strength when compared to the right. Dr. Haus advised that appellant
had limited use of his left wrist and doubted that further physical therapy would be of value. She
noted that the prognosis of any additional surgery was only fair, noting that the employment
injury had exacerbated preexisting degenerative changes in the wrist. Dr. Haus noted that, at 260
pounds, appellant was obese with a remote history of a low back injury. She provided work
restrictions, noting that appellant was able to work for eight hours a day subject to limitations on
pushing, pulling and lifting with his left hand not to exceed 20 pounds.
Appellant was referred for vocational rehabilitation and provided with job placement
services.
On November 9, 2004 Dr. Munzer reported that appellant had discomfort in his left
shoulder for approximately two to three weeks, with pain in the bicipital groove and on
abduction past 70 degrees. He diagnosed tendinitis and bursitis of the left shoulder and
administered a steroid injection. Dr. Munzer also advised that appellant had experienced
numbness in the area of his left knee for two months. He stated that appellant had a history of a
remote serious back injury in 1994, but this was a new finding. Dr. Munzer diagnosed
paresthesias/hypoesthesia of the left leg. On December 16, 2004 he stated that appellant’s left
shoulder pain had decreased since he administered the steroid injection. Appellant underwent an
electromyelogram (EMG) which was consistent with nerve damage.
In an April 2005 report, a vocational rehabilitation counselor noted that appellant had the
physical, educational and vocational capacity to work as a meter reader, as described in the
Department of Labor’s Dictionary of Occupational Titles.6 Appellant received additional job
placement assistance. On October 20, 2005 the Office proposed to reduce appellant’s wage-loss
compensation to reflect his capacity to earn wages as a meter reader. It noted that appellant had
a 48 percent wage-earning capacity based on his ability to earn $541.20 a week.
Appellant, through his attorney, responded on November 10, 2005 contending that he
was totally disabled from performing the duties of a meter reader. He noted prior injury to his
left wrist and shoulder and a work-related low back injury of February 28, 2000.7 Counsel
contended that the cumulative residuals of these injuries rendered appellant disabled from gainful
employment.
6

The DOT describes the position of meter reader, No. 209.567.010 as follows: “Reads electric, gas, water or
steam consumption meters and records volume used by residential and commercial consumers. Walks or drives
truck over established route and takes readings of meter dials. Inspects meters and connections for defects, damage,
and unauthorized connections. Indicates irregularities on forms for necessary action by servicing department.
Verifies readings to locate abnormal consumption and records reasons for fluctuations. Turns service off for
nonpayment of charges, in vacant premises, or on for new occupants. Collects bills in arrears. Returns route book
to business office for billing purposes.” The position description indicated that the meter reader position fell within
the “light” category of physical demand. It required occasional stooping, kneeling, crouching, fingering,
taste/smelling, depth perception, color vision with accommodation, and exposure to environmental conditions,
including cold weather. It also required frequent reaching, handling, near acuity, including field of vision.
7

Counsel related a history of a low back injury in December 1985 or January 1986 and that prolonged walking
caused appellant’s left knee to become painful in 1994 or 1995. He also alleged a right thumb injury during the
course of appellant’s federal employment.

3

In a November 1, 2005 report, Dr. Katz reviewed appellant’s history of injury and the
surgery performed on his left wrist in 2003. He noted that, at the time of injury, appellant tried
to restrain an inmate and was forced into a wall with his left upper extremity and had since
complained of left shoulder pain. Dr. Katz advised that appellant was presently retired on
compensation. Physical examination of the left shoulder showed a decreased range of motion
when compared to the right with some pain on cross chest adduction but no significant
tenderness over the acromioclavicular (AC) joint. X-rays obtained that day showed moderate
glenohumeral degenerative joint disease and early AC joint degenerative joint disease. Dr. Katz
also reviewed an MRI scan. He noted that, as appellant did not have any significant mechanical
symptoms, he did not believe that arthroscopic treatment would provide any long-term relief.
Dr. Katz recommended home exercises and medication, noting that appellant’s left shoulder
arthritic changes predated the 2003 injury but were made symptomatic by it.
In a November 28, 2005 decision, the Office reduced appellant’s wage-loss compensation
effective November 27, 2005 to reflect his capacity to earn wages as a meter reader. It found
that he was no longer totally disabled due to residuals of his April 4, 2003 employment injury.
The weight of medical opinion was represented by Dr. Haus, the impartial medical specialist.
The Office noted that Dr. Katz, who attributed appellant’s left shoulder condition to the 2003
injury, was in opposition to the opinion of Dr. Munzer, who first reported a two- to three-week
history of left shoulder pain in November 2004. It determined that the medical evidence was not
sufficient to establish a preexisting left shoulder or right thumb condition due to the accepted
injury or that such conditions disabled appellant from performing the duties of a meter reader.
On June 23, 2006 appellant, through his attorney, requested reconsideration. Counsel
contended that appellant had additional medical conditions which rendered him unable to
perform the duties of a meter reader. Appellant had a history of significant back pain, bilateral
knee pain and left shoulder discomfort in addition to the limitations in his left hand and wrist, all
arising from his work as a correctional officer and automotive mechanic supervisor from
November 24, 1985 through March 20, 2004.8 Counsel argued that Dr. Haus did not examine or
make findings regarding appellant’s low back, knees or left shoulder and her opinion was not
probative on whether the meter reader job was medically suitable.
Appellant submitted a November 16, 2004 report from Dr. John Seeber, Board-certified
in physical medicine and rehabilitation, who noted that appellant complained of low back and
lower extremity pain with numbness into the left leg and foot. Dr. Seeber described the
symptoms as intermittent for about one year, noting that appellant had previously injured his low
back 10-years prior and was told he had a bulging L5 disc. He noted that he saw appellant in
2002 for left carpal tunnel syndrome from which appellant had surgery with a good result.
Dr. Seeber advised that diagnostic studies of the low back showed evidence of denervation
reinnervation in the left anterior tibial, gastrocnemius, semitendinosis and biceps femoris
muscles. There was also decreased interference pattern in all the muscles tested in the left lower
extremity including the left quadriceps muscle. Nerve conduction velocity and distal latencies of
the left peroneal and left tibial nerves were within normal limits. Dr. Seeber diagnosed

8

Appellant stated that these injuries occurred in January 1986, October 1997, January and February 2000.

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numbness of the left lower extremity and left lower extremity pain syndrome. He recommended
that appellant undergo an MRI scan.
On October 4, 2005 Dr. Alfred P. Bowles, Board-certified in neurosurgery, noted that
appellant had intermittent back and leg pain since 1985 which had significantly increased over
the prior nine months. The pain was localized to the lumbosacral region with radiation involving
both legs. On examination, Dr. Bowles noted symmetric weakness in appellant’s leg muscles
and noted that a December 20, 2004 MRI scan showed significant lumbar spondylosis and
stenosis with moderate central canal stenosis due to bulging of the L3-4 disc, moderate central
canal stenosis at L4-5 with marked osteophytic protrusions at L5-S1 with canal and lateral recess
stenosis. Dr. Bowles opined that appellant would be a good candidate for lumbar decompressive
surgery. In a November 8, 2005 report, he reiterated his findings and conclusions.
Appellant submitted results of a December 7, 2005 MRI scan of the left knee which noted
tricompartmental osteoarthritis; degenerative tear of the medial meniscus; small joint effusion
and minimal edema; and small to moderate prepatellar bursitis.
In a report dated March 2, 2006, Dr. Eric Minde, Board-certified in physical medicine
and rehabilitation, advised that appellant had a number of medical conditions, all associated with
his work activities. He attributed appellant’s left wrist and shoulder condition to the 2003 injury
and obtained a history of previous back injuries. Dr. Minde described long-standing and walking
which had affected the knees to the extent that they were prominently involved on clinical
examination. He advised that appellant was not able to perform the duties of meter reader due to
his left hand and left wrist injury. Dr. Minde stated that appellant did not have good use of the
left upper extremity which was required to do this job. He also advised that his various other
injuries all caused him great difficulties and rendered appellant disabled and incapable of any
gainful employment.
By decision dated September 22, 2006, the Office denied modification of the
November 28, 2005 wage-earning capacity determination. It noted that appellant had filed three
compensation claims prior to the April 4, 2003 injury. Appellant sustained a lumbar strain on
October 8, 1997, a soft tissue injury for which he did not stop work and no period of wage loss of
disability was incurred.9 An April 28, 2000 claim of a traumatic neck injury was denied by the
Office and an occupational claim beginning January 20, 2001 was filed, accepted for left carpal
tunnel syndrome with no time lost from work. It was noted that, following the April 4, 2003
injury, appellant returned to work at limited duty until March 20, 2004, when no further work
was made available. The Office did not accept injury to appellant’s left shoulder, knees or a low
back injury in 2000. Further, the medical evidence submitted on reconsideration did not
establish that appellant’s spinal stenosis or degenerative disc disease was related to the 1997
lumbar strain. Moreover, there was no evidence submitted to support that appellant sustained
injury at work in 1985 or 1986.10 The Office found that appellant had not submitted rationalized

9

The October 9, 1997 treatment note of Ambucare clinic diagnosed a back sprain after a day of heavy lifting.

10

A June 8, 1994 treatment note from a Dr. Bruce Gastineau obtained a history of sudden right leg numbness at
4:30 a.m. on June 5, 1994. Dr. Gastineau diagnosed lumbar disc disease.

5

medical opinion, based on an accurate history of injury, to establish that he was disabled from
performing the light duties of a meter reader.
On April 12, 2007 appellant requested reconsideration. A May 18, 2006 functional
capacity evaluation was performed by Dr. Nghia Van Tran, a specialist in physical medicine and
rehabilitation, for a Social Security Administration disability determination. Dr. Tran noted
appellant’s medical history, conducted tests on appellant’s ability to perform various activities,
and outlined work restrictions. He stated that appellant had significant bilateral knee arthritis
and arthritis in his left shoulder and left wrist. Appellant advised Dr. Tran that his daily
activities were significantly limited.
In a September 12, 2006 report, Dr. Eric Roslonski, an osteopath, noted appellant’s
complaint of bilateral knee pain which began 20 years prior but increased in 2003 after he
sustained his accepted injury. He noted that any type of movement increased the pain.
Dr. Roslonski reviewed the opinion of Dr. Katz, who found that appellant was a candidate for
bilateral knee arthroplasties. He noted that appellant was holding off any knee surgery due to his
age. Dr. Roslonski also stated that appellant complained of left wrist, back and left shoulder pain
and was a candidate for surgery to treat these conditions. In reports dated November 7 and 15,
2006, he addressed appellant’s complaints of chronic pain to his left shoulder, left wrist, bilateral
knees and low back. On December 13, 2006 Dr. Roslonski administered injections to ameliorate
pain in appellant’s knees and left shoulder.
In a June 5, 2007 decision, the Office denied modification of the November 28, 2005
wage-earning capacity determination. It found that the reports of Dr. Tran and Dr. Roslonski,
together with appellant’s application for social security disability benefits, were not sufficient to
establish that he was totally disabled due to residuals of his accepted condition or from
performing the duties of the meter reader position.11
On January 4, 2008 appellant, through counsel, requested reconsideration.12 In a
September 5, 2007 report, Dr. Charles J. Burke, Board-certified in orthopedic surgery, noted that
appellant had left shoulder pain with an underlying radicular component, suggestive of a cervical
radiculopathy versus true shoulder pain. He diagnosed left wrist pain and degenerative disc
disease of both knees. Dr. Burke noted that appellant’s left upper extremity pain was consistent
with a cervical etiology. He recommended treatment of appellant’s cervical condition before his
left shoulder condition. Dr. Burke also recommended a new MRI scan, as the most recent was
three years old. He advised that left shoulder surgical intervention was not warranted. Dr. Burke
noted that appellant would follow up with Dr. Katz, or a hand and upper extremity specialist.

11

Appellant submitted an August 14, 2006 Social Security Administration disability determination. The Board
notes, however, that determinations of disability under the Social Security Act are not determinative of his
entitlement to benefits under the Federal Employees’ Compensation Act as there are different standards of medical
proof on the issue of disability. See Freddie Mosley, 54 ECAB 255 (2002).
12

A June 16, 1994 report of Dr. Oscar G. Limcaco, a Board-certified neurologist, addressed a history of right leg
numbness on June 5, 1994 after appellant got up at 3:00 a.m. to go fishing. Dr. Limcaco was preparing coffee and
suddenly developed pain and numbness in the back and right leg. He reported that appellant had been in excellent
health with no serious illness in the past. Dr. Limcaco noted the possibility of nerve root compression.

6

On September 20, 2007 Dr. Patrick N. Smith, a specialist in orthopedic surgery, obtained
a history of appellant’s complaint of back and left arm pain with numbness and tingling. He
noted that appellant sustained a work-related injury in April 2003 and had since experienced
problems with his neck, left shoulder and left arm. On examination, appellant had limited
motion with flexion and extension of his lumbar spine and limited motion with rotation, in
addition to weakness of the left upper extremity, including the biceps and wrist extension.
Otherwise, his strength was intact throughout his right upper extremity. Dr. Smith noted that
results of a cervical MRI scan showed a disc herniation at C5-6 and C6-7. He advised that
appellant wanted to proceed with an anterior cervical discectomy and fusion at C5-6 and C6-7.
Dr. Smith explained the risks of this procedure with appellant.
In an October 24, 2007 deposition, Dr. Minde discussed appellant’s medical history and
reiterated the findings and conclusions in his March 2, 2006 report. He stated that the “brunt” of
the injury appellant sustained on April 4, 2003 was to the left wrist and left shoulder. Dr. Minde
advised that appellant’s multiple injuries, which preexisted the April 2003 work injury, included
cervical disc herniation, low and upper back conditions, and bilateral knee conditions. He stated
that these conditions rendered appellant fully incapacitated; noting that he did not have good
function of the left upper extremity which prevented him from performing the meter reading job.
By decision dated April 9, 2008, the Office denied modification of the November 28,
2005 wage-earning capacity determination. It found that the medical evidence was insufficient
to relate appellant’s cervical disc herniations, left shoulder or knee conditions to his employment.
The Office noted that appellant continued to be entitled to medical treatment for residuals of his
accept left wrist condition.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.13 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.14
ANALYSIS
It is well established that where residuals of an accepted employment-related condition
prevent an employee from performing his regular duties, physical conditions that preexisted the
accepted condition must be taken into consideration. Physical ailments acquired subsequent to
and unrelated to the accepted injury are excluded from any wage-earning capacity
determination.15 Appellant’s contention on appeal is that the November 2005 wage-earning
capacity decision was made in error based on the medical evidence of record. He argued before
13

Tamra McCauley, 51 ECAB 375 (2000).

14

Linda Thompson, 51 ECAB 694 (2000).

15

See Mark H. Dever, 53 ECAB 710 (2002); Pope D. Cox, 39 ECAB 143 (1987).

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the Office that his cervical and lumbar degenerative disease, left shoulder, and bilateral knee
conditions all relate to or preexisted his April 2003 injury and were not properly considered in
determining his physical capacity to perform the meter reader position.
The record reveals that appellant filed several claims prior to his injury on April 4, 2003.
The Office accepted that on October 8, 1997 he sustained a lumbar strain for which he did not
stop work or incur wage loss. The contemporaneous medical evidence indicates that he was
treated for a back sprain without any disability for work. Appellant’s claim of a traumatic neck
injury on April 28, 2000 was denied by the Office. On January 20, 2001 the Office accepted that
he sustained left carpal tunnel syndrome due to his federal employment. Counsel did not support
allegations of a prior low back injury in December 1985 or January 1986, a left knee injury in
1994 or 1995 or a right thumb injury. Moreover, there was no medical evidence ascribing any
disability for work due to such conditions.
The evidence reveals that appellant was working regular full duty as a maintenance
supervisor prior to his injury on April 4, 2003. The medical reports at that time do not establish
disability due to any preexisting condition. Appellant worked until April 18, 2003, when he
stopped prior to left wrist surgery on July 16, 2003. He returned to full-time light-duty work on
September 22, 2003 with restrictions pertaining to the use of his left hand and arm, as
recommended by Dr. Katz. These remained in place until March 20, 2004, when the employing
establishment advised that it could no longer accommodate his wrist limitations. Dr. Sotoreanos
and Dr. Katz advised that further surgery could be performed but reiterated appellant’s capacity
for light duty within his restrictions. They did not attribute any disability due to a preexisting
medical condition. The medical reports contemporaneous with his treatment and surgery, do not
address any findings pertaining to appellant’s left shoulder arising from the April 4, 2003 injury.
When seen by Dr. El-Attrache on February 17, 2004, it was noted that examination of the
cervical and lumbar spine revealed full ranges of motion without complaint. No limitation was
noted by the physician, who addressed residuals of appellant’s left wrist condition for which he
recommended restrictions. On September 23, 2004 Dr. Haus examined appellant and made
findings pertaining to his left wrist. She noted a remote history of a low back injury but stated
that appellant did not elaborate on whether he lost time from work due to this condition.
Dr. Haus’ work restrictions noted that appellant was capable of full-time duty with a 20-pound
limitation on use of the left, nondominant wrist. Her work limitation form noted the remote back
injury but did not assign any restrictions due to this condition.
Dr. Munzer advised in November 2004, that appellant experienced discomfort in his left
shoulder for approximately two to three weeks. He also noted a two-month history of numbness
in the region of the left knee. Dr. Munzer did not provide any opinion relating appellant’s left
shoulder or knee conditions to the April 4, 2003 injury. He did not relate any history of a 1994
or 1995 left knee employment injury. Moreover, Dr. Munzer did not advise that appellant was
disabled for light-duty work due to these conditions. On November 1, 2005 Dr. Katz first
addressed a left shoulder condition which appellant ascribed to striking a wall with his left upper
extremity. He noted limitations over the AC joint degenerative disease shown on x-ray.
Dr. Katz recommended home exercises and medication. He did not find that appellant was
totally disabled for work due to his left shoulder condition or otherwise amend the work
restrictions previously noted.

8

At the time of the November 28, 2005 wage-earning capacity determination, appellant’s
preexisting left wrist and back conditions were taken into consideration. The medical evidence,
however, did not establish disability for work due to these conditions. As to his left shoulder, the
Office determined that it was not a preexisting condition. It found that the history of injury
reported by Dr. Katz on November 1, 2005 departed from that reported by Dr. Munzer in
November 2004, when the left shoulder complaints were first addressed. The Board finds that
appellant has not established that the determination of his medical restrictions and capacity for
full-time light duty by the Office was in error. The contemporaneous reports of Dr. Munzer and
Dr. Gunnlaugson addressed the history of injury to appellant’s left wrist on April 4, 2003. The
physicians did not relate any history or make findings pertaining to the left shoulder. Through
January 27, 2004, Dr. Katz addressed only appellant’s left wrist condition. He did not
adequately explain the basis for his November 1, 2005 report and change to the history of injury.
The Office properly determined that the work restrictions specified in the September 24, 2004
report of Dr. Haus represented appellant’s physical capacity for light-duty work.
The Office found that appellant was capable of performing the meter reader position
because it was a nonstrenuous position which did not require a great deal of physical exertion.
As noted, the left wrist injury was to appellant’s nondominate arm and no restrictions were
imposed on his dominant right arm. The position required him to drive and walk to homes and
businesses and take readings of electric, gas, water or steam consumption meters, inspect the
meters and connections for defects, damage, or unauthorized connections, then write and record
the results. The physical requirements entailed occasional stooping, kneeling, crouching,
fingering, taste/smelling, depth perception, color vision with accommodation and exposure to
environmental conditions, including cold weather. It also required frequent reaching, handling,
and near acuity, including field of vision. The Board finds that the weight of medical opinion
establishes that appellant had the physical ability to perform the duties of a meter reader. The
requirements of this position conform to the physical restrictions set forth by Dr. Haus.
Subsequent to the November 28, 2005 wage-earning capacity decision, appellant has
contended that he was disabled due to various preexisting conditions that were not considered by
the Office. As noted, only his left wrist and back conditions were accepted by the Office as
preexisting the wage-earning capacity determination.
On reconsideration and before the Board, appellant reiterated his contention that the
wage-earning capacity determination was made in error without due regard for the medical
evidence. The November 16, 2004 report of Dr. Seeber noted appellant’s one-year intermittent
complaint of low back and lower extremity pain with numbness. This history is reflective of a
condition arising after April 4, 2003. Dr. Seeber related a 10-year history of a low back injury,
which departs from an accurate history of a low back sprain on October 8, 1997 for which
appellant did not stop work. He addressed treating appellant in 2002 for left carpal tunnel
syndrome, from which surgery had provided a good result. Dr. Seeber did not address
appellant’s capacity for light-duty work or record any limitations due to the low back. On
October 4, 2005 Dr. Bowles recorded a history of intermittent back and leg pain since 1985,
which had significantly increased over the prior nine months. He reviewed a 2004 MRI scan
which showed significant lumbar spondylosis and spinal stenosis, noting appellant was a
candidate for surgery. Dr. Bowles did not address the issue of appellant’s capacity for work or
note any limitations pertaining to his low back condition.

9

On March 2, 2006 Dr. Minde advised that appellant was not able to perform the duties of
a meter reader as he did not have “good use of his left upper extremity.” He also attributed
appellant’s knee and left shoulder conditions to injuries in his federal employment. Dr. Minde
did not adequately explain the basis for his conclusion that left wrist residuals caused total
disability for light-duty work. He did not discuss appellant’s use of his dominant right hand to
perform the duties of a meter reader. While Dr. Minde noted that appellant did not have good
use of his left arm, he did not sufficiently explain how the restrictions imposed by Dr. Haus were
not adequate to compensate for the residuals in that extremity. Further, he did not describe any
material change in the nature or extent of the accepted left wrist condition. This report did not
warrant modification of the 2005 decision. The October 24, 2007 deposition of Dr. Minde
largely reiterated material from the March 2, 2006 report, noting that the brunt of the April 4,
2003 incident was to the left wrist and shoulder. Dr. Minde accepted as factual various injuries
arising prior to and preexisting the 2003 injury which rendered appellant totally disabled for
gainful appellant. He reiterated that appellant did not have good function of his left upper
extremity.
The remainder of the medical evidence is not sufficient to establish a material change in
the nature of the accepted conditions which disable appellant from performing the duties of a
meter reader. Dr. Tran noted that a functional capacity evaluation was performed in 2006
pertaining to appellant’s application for social security benefits. He did not note any material
change to appellant’s left wrist condition, but made reference to the diagnostic studies obtained
in 2003 prior to surgery. Dr. Tran noted that appellant had arthritis of the knees, left shoulder
and wrist and had described daily activities that were significantly limited. He advised that
Dr. Minde found that appellant was totally disabled and noted that consideration should be given
to his opinion. The report did not specifically address the duties of a light-duty meter reader or
address limitations in performing such responsibilities due to a material change in the left wrist
or back sprain conditions. Dr. Roslonski obtained a 20-year history of bilateral knee pain, which
increased following appellant’s 2003 employment injury.
As noted, however, the
contemporaneous medical reports did not address any knee injury arising from the April 4, 2003
incident at work. Dr. Roslonski noted that appellant had put off any knee surgery. His
additional reports noted appellant’s ongoing complaints of pain, but do not address any disability
for work as a meter reader or note additional limitations due to a progression in appellant’s
accepted conditions. Dr. Burke described appellant’s left shoulder pain which he noted had an
underlying radicular component, suggestive of cervical radiculopathy. He briefly referred to
appellant’s left wrist pain and degenerative disease of the knees. Dr. Burke recommended
treatment of appellant’s cervical condition and recommended update diagnostic testing. He did
not address the meter reader light-duty work or comment on any progression or material change
to appellant’s condition. Dr. Smith described appellant’s back and left arm pain in passing,
noting that an MRI scan showed disc herniations of the cervical spine. He discussed a cervical
discectomy with appellant but did not address his capacity for work in the selected position or
clearly address any material change in the left wrist.
Appellant did not submit sufficient medical evidence to establish that the 2005 wageearning determination was erroneous or that there has been a material change in the accepted
conditions. He has not met his burden of proof to establish that the Office’s wage-earning
capacity decision should be modified.

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CONCLUSION
The Board finds that appellant has not established that the November 28, 2005 wageearning capacity decision should be modified.
ORDER
IT IS HEREBY ORDERED THAT the April 9, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 8, 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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
BARKSDALE AIR FORCE BASE, LA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0984
Issued: December 27, 2021

Case Submitted on the Record

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

On June 15, 2021 appellant filed a timely appeal from a June 4, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 21-0984.1
On April 28, 2021 appellant, then a 57-year-old housing management specialist, filed a
traumatic injury claim (Form CA-1) alleging that on April 15, 2021 he sustained an injury to his
right shoulder and clavicle while loading a bookcase into the back of a vehicle while in the
performance of duty. He did not stop work. Appellant’s supervisor, M.M., acknowledged on the
claim form that the injury occurred in the performance of duty.
In urgent care discharge notes dated April 17, 2021, Lacy Vincent, a physician assistant,
treated appellant and diagnosed a right shoulder sprain.
1

The Board notes that, following the June 4, 2021 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

In a May 3, 2021 development letter, OWCP informed appellant that the evidence of record
was insufficient to establish his claim. It advised him of the type of factual and medical evidence
needed and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP requested that the employing establishment provide additional information about the
alleged employment incident. It afforded both parties 30 days to respond.
On May 10, 2021 the employing establishment responded to OWCP’s development
questionnaire, indicating that moving items such as bookcases was “incidental at times to the duties
[appellant] performs.”
On June 3, 2021 appellant submitted medical reports dated May 17 and 24, 2021 by
Dr. Aaron Lirette, a Board-certified physician, specializing in occupational medicine. Dr. Lirette
noted appellant’s description of the alleged employment incident and diagnosed sprains of the
sternoclavicular joint and an unspecified acromioclavicular (AC) joint. In a May 17, 2021 duty
status report (Form CA-17), he diagnosed AC joint pain, sternoclavicular joint pain and advised
appellant could return to work with restrictions.
By decision dated June 4, 2021, OWCP denied appellant’s traumatic injury claim, finding
that he had not submitted the necessary medical evidence. It found that appellant failed to provide
medical evidence from a physician containing a medical diagnosis in connection with the
employment incident. Therefore, OWCP concluded that the requirements had not been met to
establish that he sustained an injury as defined by FECA.
The Board has duly considered the matter and finds that the case is not in posture for
decision.
In the case of William A. Couch,2 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. While OWCP is not required to list every piece of evidence
submitted to the record, there is no indication that Dr. Lirette’s May 17 and 24, 2021 notes were
reviewed by OWCP in its June 4, 2021 decision. 3
As the Board’s decisions are final with regard to the subject matter appealed,4 it is crucial
that all evidence relevant to the subject matter of the claim, which was properly submitted to
OWCP prior to the time of issuance of its final decision be reviewed and addressed by OWCP.5
Because OWCP failed to consider all of the medical evidence submitted by appellant, the Board
cannot review such evidence for the first time on appeal.6

2

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

3

See T.G., Docket No. 19-1930 (issued January 8, 2021).

4

See 20 C.F.R. § 501.6(d).

5

See S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also William A.
Couch, supra note 2.
6

20 C.F.R. § 501.2(c)(1). See also G.M., Docket No. 16-1766 (issued February 16, 2017),

2

For this reason, the case will be remanded to OWCP to properly consider all of the evidence
of record.7 Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.8 Accordingly,
IT IS HEREBY ORDERED THAT the June 4, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this order of the Board.
Issued: December 27, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7

See M.J., Docket No. 18-0605 (issued April 12, 2019).

8

B.N., Docket No. 17-0787 (issued July 6, 2018).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Oakdale, LA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-1976
Issued: May 26, 2020

Case Submitted on the Record

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

On September 27, 2019 appellant filed a timely appeal from a June 25, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as Docket No. 19-1976.1
In a preliminary overpayment determination dated May 21, 2019, OWCP informed
appellant that he had received an overpayment of compensation in the amount of $11,199.31
because for the period November 1, 2017 through March 30, 2019 because it failed to offset his
compensation payments by the portion of his Social Security Administration (SSA) age-related
retirement benefits that were attributable to federal service. It determined that he was without fault
in the creation of the overpayment because he relied on misinformation given in writing by OWCP
or by another government agency which he had reason to believe was connected with the
administration of benefits as to the interpretation of a pertinent provision of FECA or its
regulations, and there was documentation that substantiated that the misinformation was actually
1

The Board notes that following the June 25, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

communicated to appellant. OWCP requested that appellant submit a completed overpayment
recovery questionnaire (Form OWCP-20) to determine a fair repayment method and advised him
that he could request waiver of recovery of the overpayment. It also requested that he provide
supporting financial documentation, including copies of income tax returns, bank account
statements, bills, pay slips, and any other records to support his reported income and expenses.
OWCP advised appellant that it would deny waiver of recovery if he failed to furnish the requested
financial information within 30 days. It further notified him that within 30 days of the date of the
letter he could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing.
By decision dated June 25, 2019, OWCP finalized the May 21, 2019 preliminary
determination that appellant had received an overpayment of compensation in the amount of
$11,199.31 for the period November 1, 2017 through March 30, 2019 because it had failed to
offset his compensation payments by the portion of his SSA age-related retirement benefits that
were attributable to federal service. It further found that he was without fault in the creation of the
overpayment because he could not have reasonably known that an improper payment occurred.
However, OWCP denied waiver of recovery of the overpayment because the evidence of record
was insufficient to establish that recovery would defeat the purpose of FECA or would be against
equity and good conscience. It required recovery of the overpayment by deducting $200.00 every
28 days from appellant’s continuing wage-loss compensation payments.
The Board has duly considered the matter and finds that the case is not in posture for
decision. The record submitted to the Board is incomplete as the current record does not contains
neither the claim form originally filed by appellant nor OWCP’s formal acceptance of appellant’s
work-related conditions. It also appears that substantial portions of the record, including
documents submitted prior to 2002 are not of record. As such, the Board is unable to determine
whether documents relating to appellant’s receipt of SSA benefits, or relating to appellant’s
financial circumstances are missing from the record.
Section 501.2(c) of the Board’s Rules of Procedure2 provides that the Board has
jurisdiction to consider and decide appeals from the final decision of OWCP in any case arising
under the Federal Employees’ Compensation Act.3 Because the record as transmitted to the Board
is incomplete and would not permit an informed adjudication of the case,4 the Board is unable to
properly consider and decide appellant’s claim. The case, therefore, is remanded to OWCP for
reconstruction and proper assemblage of the record.5 After such further development as deemed
necessary, OWCP should issue a de novo decision on appellant’s alleged overpayment.

2

20 C.F.R. § 501.2(c).

3

5 U.S.C. § 8101 et seq.

4

See D.H., Docket No. 17-0224 (issued August 16, 2018).

5

Id.

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IT IS HEREBY ORDERED THAT the June 25, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: May 26, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., widow of J.L., Appellant
and
DEPARTMENT OF JUSTICE, ALCOHOL,
TOBACCO, FIREARMS, & EXPLOSIVES,
Washington, DC, Employer
__________________________________________

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

Docket No. 14-1853
Issued: January 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 20, 2014 appellant filed a timely appeal from a July 21, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
review of the written record by the Branch of Hearings and Review. The last merit decision of
record was OWCP’s January 15, 2014 decision denying appellant’s claim for survivor’s benefits.
Because more than 180 days has elapsed between the January 15, 2014 decision and the filing of
this appeal on August 20, 2014, and pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
this case.2

1
2

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for a
review of the written record as untimely filed.
FACTUAL HISTORY
On September 16, 1962 the employee, then a 36-year-old special investigator for the
Internal Revenue Service, sustained an injury while observing an illegal distillery in a wooded
area and experienced chest pain, chills, profuse sweating, and nausea. OWCP accepted the claim
for cervical sprain, degeneration of lumbar intervertebral disc, and acute myocardial infarction.
The employee stopped work on September 16, 1962 and received wage-loss compensation for
which he was placed on periodic rolls.
The employee died on September 27, 2013. The death certificate noted the immediate
cause of death as cardiomyopathy. Other significant conditions contributing to the employee’s
death were listed as coronary artery disease.
On November 20, 2013 appellant filed a claim for compensation by widow, widower,
and/or children (Form CA-5) for survivor’s benefits.
By decision dated January 15, 2014, OWCP denied appellant’s claim as she had failed to
establish a causal relationship between the employee’s death and the accepted September 16,
1962 work injury, cervical sprain, degeneration of lumbar intervertebral disc, and acute
myocardial infarction.
On May 21, 2014 appellant requested review of the written record before the Branch of
Hearings and Review. She argued that she could not appeal the January 15, 2014 decision within
30 days because the physician delayed in providing her a report which related the employee’s
death to the accepted work injury.
In support of her claim, appellant submitted a May 16, 2014 medical report from
Dr. Frederick A. Dressler, Board-certified in internal medicine, and also resubmitted the
employee’s death certificate.
By decision dated July 21, 2014, the Branch of Hearings and Review denied appellant’s
request for a review of the written record finding that her request was not made within 30 days of
the January 15, 2014 OWCP decision. The Branch of Hearings and Review further determined
that the issue in the case could equally well be addressed by requesting reconsideration from
OWCP and submitting evidence not previously considered which established that the employee’s
death was caused by the accepted work-related injury/conditions.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his or

2

her claim before a representative of the Secretary.3 Section 10.615 of the federal regulations
implementing this section of FECA provides that a claimant shall be afforded a choice of an oral
hearing or a review of the written record.4 OWCP regulations provide that the request must be
sent within 30 days of the date of the decision for which a hearing is sought and also that the
claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.5
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA,6 has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and that OWCP must exercise this discretionary authority in deciding
whether to grant a hearing.7 OWCP procedures, which require it to exercise its discretion to
grant or deny a hearing when the request is untimely or made after reconsideration, are a proper
interpretation of FECA and Board precedent.8
ANALYSIS
In the present case, appellant requested review of the written record on May 21, 2014.
Her request was made more than 30 days after the date of issuance of OWCP’s January 15, 2014
merit decision. Therefore, OWCP properly found in its July 21, 2014 decision that appellant was
not entitled to an oral hearing or examination of the written record as a matter of right because
her request was not made within 30 days of its January 15, 2014 decision.9
OWCP then properly exercised its discretion by stating that it had considered the matter
and had denied appellant’s request for an examination of the written record because the issue of
causal relationship could be addressed through a reconsideration application. The Board has
held that the only limitation on OWCP’s authority is reasonableness and an abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deduction from established facts.10
In this case, the evidence of record does not indicate that OWCP abused its discretion in its
denial of appellant’s request for an examination of the written record. Accordingly, the Board
finds that OWCP properly denied her request.11
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a).

6

5 U.S.C. §§ 8101-8193.

7

Marilyn F. Wilson, 52 ECAB 347 (2001).

8

Teresa M. Valle, 57 ECAB 542 (2006).

9

20 C.F.R. § 10.616(a); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (October 2011).
10

Daniel J. Perea, 42 ECAB 214, 221 (1990).

11

D.P., Docket No. 14-308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013).

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On appeal, appellant alleges that the employee’s death was caused by the September 16,
1962 work injury. As explained above, the Board does not have jurisdiction over the merits of
the claim for survivor’s benefits.12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an examination of
the written record.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 21, 2014 is affirmed.
Issued: January 2, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

12

Supra note 2.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, MAIN CARRIER
ANNEX, Albuquerque, NM, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1790
Issued: July 20, 2011

Case Submitted on the Record

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

JURISDICTION
On June 24, 2010 appellant, through counsel, timely filed an appeal from a June 3, 2010
decision of the Office of Workers’ Compensation Programs (OWCP), denying his request for
reconsideration of the merits of his claim. Because more than one year has elapsed between the
issuance of the last merit decision on February 5, 2002 and the filing of this appeal on August 26,
2010, the Board lacks jurisdiction to review the merits of the case.1 Pursuant to the Federal
Employees’ Compensation Act (FECA)2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction only over the nonmerit issue in this case.

1

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file an
appeal. See 20 C.F.R. § 501.3(d)(2). An appeal of a final adverse OWCP decision issued on or after November 19,
2008 must be filed within 180 days of the decision. See 20 C.F.R. § 501(e).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
On appeal, appellant, through his attorney, contends that the decision is contrary to fact
and law.
FACTUAL HISTORY
On July 1, 1999 appellant, than a 47-year-old maintenance mechanic, filed a traumatic
injury claim alleging that on that date he fell approximately 10 feet from a ladder to an asphalt
surface and fractured his right elbow, left wrist and clavicle. On August 24, 1999 OWCP
accepted his claim for fracture of the right humerus; fracture of the left distal radius; fracture of
the right olecranon, right reduction with fixation and left reduction with fixation. It later
accepted appellant’s claim for tear of the bilateral meniscus and right localized primary
osteoarthritis and bilateral. Appellant underwent multiple surgeries and OWCP paid appropriate
compensation and medical benefits. OWCP referred him to a nurse to monitor his case.
On May 15, 2001 a panel evaluation was completed on appellant by Dr. Paul Legant, a
Board-certified orthopedic surgeon; Dr. J. William Wellborn, a physiatrist, and Dr. Theodore J.
Scharf, a psychiatrist. The panel made the following diagnoses: (1) status post comminuted
fracture of the right distal humerus and olecranon process. Status post open reduction internal
fixation with limited range of motion and complaints of chronic pain in the right elbow;
(2) status post open reduction internal fixation of a comminuted fracture of the left radius.
Complaints of chronic pain in the left radial area of the wrist and in the base of the left thumb,
extending onto the radial side of the left wrist; (3) healed fracture of the right clavicle; (4) tear in
the posterior horn of the left knee; (5) major depression; and (6) panic disorder, episodic. The
panel noted that all these conditions were related to appellant’s July 1, 1999 fall. It believed that
he could perform work in a sedentary category such as clerical work. However, the panel did not
believe that appellant could perform the previous duties as a maintenance mechanic because of
the physical demands which his impairments prevented him from performing.
On October 2, 2001 the employing establishment offered appellant a limited-duty
assignment as a maintenance operations support section clerk. This position would not require
bending, stooping or twisting and would not require that he lift, push or pull more than 5 to 10
pounds intermittently. Appellant declined the position, stating that he was suffering from
depression and anxiety which was causing disorders in sleeping, eating and mood swings. By
letter dated October 11, 2001, OWCP informed him of the suitability of the position and gave
him 30 days to contact OWCP and make a good faith effort to participate in the registered
nurse’s efforts to return him to gainful employment. It informed appellant that pursuant to
5 U.S.C. § 8113(b) a claimant must undergo vocational development as directed by OWCP and
that, pursuant to 20 C.F.R. §§ 10.518 and 10.519, an injured worker must take steps to prepare
for reemployment. OWCP further noted that unless he provided evidence to the contrary it will
assume that the nurse intervention would have resulted in a return to work with no loss of
wage-earning capacity.

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By decision dated February 5, 2002, OWCP reduced appellant’s compensation to zero
under 5 U.S.C. § 8113(b) effective February 23, 2002 because he did not cooperate in vocational
rehabilitation efforts and OWCP found that his wage-earning capacity would have increased a
great deal as a result of suitable employment that he declined to accept.
On March 26, 2010 appellant, through counsel, filed a request for reconsideration of the
February 5, 2002 decision reducing his compensation to zero. Although counsel admitted that
the request for reconsideration was untimely, he contended that the February 5, 2002 decision
contained clear evidence of error. Specifically, he argued that, before OWCP can invoke the
penalty provision of section 8113(b) and reduce a claimant’s wage-loss benefits for failure to
apply for and undergo vocational rehabilitation without good faith, there must be some evidence
that demonstrates specific facts, supporting that a claimant failed to properly undergo vocational
rehabilitation. Counsel argued that, as there was no evidence that appellant was referred to the
vocational rehabilitation process, the job offer developed by the employing establishment must
stand independent of any vocational effort by OWCP. Accordingly, he argued that OWCP’s
invocation of section 8113(b) or any of the implementing regulations pertaining to the vocational
rehabilitation process as a penalty was without authority. Counsel concluded that, as OWCP
utilized the penalty provision of section 8113(b) without having a vocational rehabilitation plan
in place, such action is reversible and constituted clear evidence of error.
By decision dated June 3, 2010, OWCP denied appellant’s request for reconsideration as
it was untimely filed and failed to establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file him application for review within one year of the date of that decision.3 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.4
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, OWCP must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.5 OWCP’s regulations and procedure provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in

3

20 C.F.R. § 10.607(a).

4

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

5

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

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20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on
the part of OWCP.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.7 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.11 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 prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP decision.12
Section 8104(a) of FECA pertains to vocational rehabilitation and provides: “The
Secretary of Labor may direct a permanently disabled individual whose disability is compensable
under this subchapter to undergo vocational rehabilitation. The Secretary shall provide for
furnishing the vocational rehabilitation services.”13 Under this section of FECA, OWCP has
developed procedures by which an emphasis is placed on returning partially disabled employees
to suitable employment and/or determining their wage-earning capacity.14 If it is determined that
the injured employee is prevented from returning to the date-of-injury job vocational
rehabilitation services may be provided to assist returning the employee to suitable
employment.15 Where reemployment at the employing establishment is not possible, OWCP will
6

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004). OWCP procedure further provides, the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made an error (for
example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical
report which, if submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
7

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

8

See Leona N. Travis, 43 ECAB 227, 240 (1991).

9

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

10

See Leona N. Travis, supra note 8.

11

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

12

Leon D. Faidley, Jr., supra note 4.

13

5 U.S.C. § 8104 (a).

14

Federal (FECA) Procedure Manual, supra note 6, Reemployment: Vocational Rehabilitation Services, Chapter
2.813.2 (December 1993).
15

Id.

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assist the claimant to find work with a new employer and sponsor necessary vocational
training.16 In this regard, OWCP’s implementing regulations provide that where a suitable job
has been identified, OWCP will reduce appellant’s future monetary compensation based on the
amount that would have been his wage-earning capacity if he had undergone vocational
rehabilitation. The regulations note that OWCP will determine this amount in accordance with
the job identified through the vocational rehabilitation planning process. The regulations note
that, when a suitable job has not been identified because the failure or refusal occurred in the
early but necessary stages of the vocational rehabilitation effort, OWCP cannot determine what
would have been the employee’s wage-earning capacity. Under these circumstances, in the
absence of evidence to the contrary, OWCP will assume that the vocational effort would have
resulted in a return to work with no loss of wage-earning capacity and OWCP will reduced the
employee’s monetary compensation accordingly until appellant acted in good faith to comply
with OWCP’s directions.
FECA further provides: “If individual without good cause fails to apply for and undergo
vocational rehabilitation when so directed under section 8104” OWCP, after finding that in the
absence of the failure the wage-earning capacity of the individual would probably have
substantially increased, “may reduce prospectively the monetary compensation of the individual
in accordance with what would probably have been his wage-earning capacity in the absence of
the failure, until the individual in good faith complies with the direction of OWCP.”17 Under this
section of FECA, an employee’s failure to willingly cooperate with vocational rehabilitation may
form the basis termination of the rehabilitation program and reduction of monetary
compensation.18
ANALYSIS
The Board finds that appellant’s request for reconsideration was untimely filed. The
most recent merit decision is the February 5, 2002 decision reducing his compensation benefits
to zero for failure to cooperate with vocational rehabilitation. Appellant’s request for
reconsideration was received by OWCP on March 30, 2010, more than eight years after the most
recent merit decision. Accordingly, his request for reconsideration was not timely filed within
the one-year time requirement for filing.
OWCP’s February 5, 2002 decision reduced appellant’s compensation to zero on the
grounds that without good cause he failed to undergo vocational rehabilitation when so directed.
Appellant argued on reconsideration that there was no refusal to undergo vocational
rehabilitation because referral to a nurse does not constitute vocational rehabilitation. The Board
finds that this argument has merit. Appellant was referred to a panel evaluation by Drs. Legant,
Wellborn and Scharf. In a report dated May 15, 2001, these physicians opined that he could
perform sedentary work. Based on this report, the employing establishing offered appellant a
16

Id.

17

5 U.S.C. § 8113(b).

18

See Wayne E. Boyd, 49 ECAB 202 (1997) (the employee failed to cooperate with the early and necessary stages
of developing a training program).

5

limited-duty position which he refused. There is no evidence that the job offer made by the
employing establishment was made as part of a rehabilitation plan designed by OWCP. The job
offer developed by the employing establishment stands independent of any vocational
rehabilitation effort of OWCP.19
As the Board has previously held, the regulations do not equate the assignment of an
OWCP nurse with vocational rehabilitation.20 While the regulations state that the vocational
rehabilitation planning process may include meetings with a nurse,21 a meeting with a nurse
could concern matters unrelated to vocational rehabilitation, such as medical management.
When there is no evidence of vocational rehabilitation services, such as referral to a
rehabilitation counselor, discussion of a rehabilitation plan, assessment of vocational skills,
retraining or assistance in finding work, then it is improper for OWCP to reduce appellant’s
compensation under 5 U.S.C. § 8113(b).22 Although appellant’s failure to accept an offered
limited-duty work assignment may result in sanctions under section 8106 of FECA, it does not
constitute a failure or refusal with the early or necessary stages of vocational rehabilitation under
section 8113 of FECA and implementing regulations.23
The evidence does not establish that appellant’s referral to the nurse was part of a
vocational rehabilitation plan. The evidence does show clear evidence of error by OWCP. It is
well established that OWCP cannot reduce compensation to zero under the circumstances
presented in this case. Accordingly, appellant has prima facie shifted the weight of the evidence
in his favor and raised a substantial question as to the correctness of OWCP decision. Therefore,
OWCP abused its discretion in failing to reopen appellant’s claim for further merit review.
CONCLUSION
The Board finds that appellant established clear evidence of error in the February 5, 2002
decision and thus OWCP improperly denied his request for reconsideration.

19

See Rebecca L. Eckert, 54 ECAB 183 (2002).

20

Id. at 191.

21

See 20 C.F.R. § 10.519(b).

22

See Rebecca L. Eckert, supra note 19.

23

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 3, 2010 is reversed.
Issued: July 20, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Morrisville, NC, Employer
__________________________________________

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

Docket No. 15-65
Issued: March 4, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On October 14, 2014 appellant filed a timely appeal from an April 21, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. As more than 180 days has elapsed from the date of the last merit decision of
March 15, 2013 to the filing date of the current appeal on October 14, 2014, and pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the April 21, 2014 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
This case was previously before the Board. OWCP accepted that appellant, then a 41year-old transportation security officer, developed bilateral carpal tunnel syndrome due to factors
of her federal employment. It authorized right carpal tunnel release surgery, which appellant
underwent on April 23, 2012 and paid appropriate compensation benefits. In a decision dated
February 1, 2013, the Board affirmed OWCP’s decisions dated September 18 and June 8, 2012
denying appellant’s claims for disability compensation for the periods March 22, June 17 and 29,
July 1 and 4, 2012.3 The facts of the case, as set forth in the prior decision, are incorporated by
reference.
Appellant filed claims for wage-loss compensation for intermittent periods commencing
November 19, 2011. She also filed a claim for a schedule award on December 21, 2012 and
submitted a report dated November 28, 2012 from Dr. Harrison Tuttle, a Board-certified
orthopedic hand surgeon.
By decision dated March 15, 2013, OWCP issued a schedule award for a two percent
permanent impairment of the right upper extremity and a zero percent permanent impairment of
the left upper extremity. The award ran for a total of 6.24 weeks for the period December 2,
2012 to January 14, 2013. OWCP based the schedule award on a weekly pay rate of $738.51,
effective November 19, 2011, the date appellant’s disability began.
On March 7, 2014 appellant requested reconsideration and argued that she sustained
more than a two percent permanent impairment of the right upper extremity and a zero percent
permanent impairment of the left upper extremity, for which she received a schedule award. She
submitted pay rate information dated January 16 to 29, October 9 to 22, and November 6 to 19,
2011, indicating that she had a weekly pay rate of $618.49 on November 19, 2011.
By decision dated April 21, 2014, OWCP denied appellant’s request for reconsideration
of the merits finding that she did not submit pertinent new and relevant evidence and did not
show that OWCP erroneously applied or interpreted a point of law not previously considered by
OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.4 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).5

3

Docket No. 12-1832 (issued February 1, 2013).

4

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
5

See Annette Louise, 54 ECAB 783, 789-90 (2003).

2

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.6 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.7 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.8
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record9 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.10
ANALYSIS
In support of her March 7, 2014 reconsideration request, appellant submitted pay rate
information dated January 16 to 29, October 9 to 22, and November 6 to 19, 2011, indicating that
she had a weekly pay rate of $618.49 on November 19, 2011. The Board finds that submission
of these documents did not require reopening her case for merit review as they did not advance a
relevant legal argument not previously considered by OWCP or demonstrate that OWCP
erroneously applied or interpreted a point of law. In its March 15, 2013 decision, OWCP issued
a schedule award based on a weekly pay rate of $738.51, which is greater than the weekly pay
rate of $618.49 demonstrated in the evidence submitted. Thus, these documents do not
constitute relevant and pertinent new evidence and are not sufficient to require OWCP to reopen
the claim for consideration of the merits. Additionally, with regard to whether appellant is
entitled to a schedule award for a greater percentage of impairment than that awarded the Board
notes that this is a question that is medical in nature. As the pay rate information is not medical
evidence, this submission does not constitute pertinent new and relevant evidence.
Appellant also resubmitted a November 28, 2012 report from Dr. Tuttle. The Board finds
that the submission of this report did not require reopening appellant’s case for merit review
because he had submitted the same report by Dr. Tuttle, which was previously reviewed by
OWCP in its March 15, 2013 schedule award decision. As the report repeats evidence already in

6

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

See A.L., supra note 6. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

10

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

3

the case record, it is duplicative and does not constitute relevant and pertinent new evidence.
Thus, appellant has not established a basis for reopening her case.11
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advanced a relevant legal argument not previously
considered by OWCP, nor did she submit any relevant and pertinent new evidence not
previously considered. The Board finds that she did not meet any of the necessary requirements
and is not entitled to further merit review.12
On appeal, appellant argues the merits of her claim. The Board noted above that it lacks
jurisdiction over OWCP’s March 15, 2013 merit decision which denied her request for
reconsideration and therefore is precluded from conducting a merit review.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).

11

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

12

See L.H., 59 ECAB 253 (2007).

4

ORDER
IT IS HEREBY ORDERED THAT the April 21, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, ANCHORAGE
PROCESSING & DISTRIBUTION CENTER,
Anchorage, AK, Employer
__________________________________________

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

Docket No. 07-747
Issued: July 16, 2007

Case Submitted on the Record

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

JURISDICTION
On January 24, 2007 appellant filed an appeal of an August 8, 2006 decision denying his
traumatic injury claim and an October 17, 2006 decision denying his request for a review of the
written record. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUES
The issues are: (1) whether appellant has established that he sustained a right shoulder
injury in the performance of duty; and (2) whether the Office properly denied his request for a
review of the written record.
FACTUAL HISTORY
On June 20, 2006 appellant, then a 46-year-old mail handler, filed a claim (Form CA-1)
for a right shoulder injury which he attributed to lifting and pushing mail and equipment at work

on June 19, 2006.1 He asserted that moving equipment caused a sharp, sudden pain in his right
shoulder with numbness into his fingers.
Appellant submitted June 19, 2006 notes and reports from Dr. Lawrence Dempsey, an
attending neurosurgeon, who related appellant’s account of right shoulder pain after lifting and
pushing at work that day. On examination, Dr. Dempsey observed a restricted range of right
shoulder motion with soft tissue fullness between the humeral head and the acromion. Right
shoulder x-rays were normal. Dr. Dempsey diagnosed right shoulder pain with a possible rotator
cuff tear or tendon injury. He held appellant off work pending further diagnostic studies.
In a July 3, 2006 letter, the Office advised appellant of the additional evidence needed to
establish his claim. It emphasized the need for her physician to provide a specific diagnosis of
injury and explain how the identified work factors would cause the injury. The Office afforded
appellant 30 days in which to submit such evidence.
Appellant submitted June 24, 2006 reports from Dr. Dempsey diagnosing possible
bicipital tendinitis. Dr. Dempsey opined that the pushing and lifting activities appellant
described caused the right shoulder injury.
A July 7, 2006 magnetic resonance imaging (MRI) scan of the right shoulder showed
mild degenerative changes of the acromioclavicular joint.
In a July 13, 2006 form report, Dr. Michael J. Morrison, an attending Board-certified
family practitioner, diagnosed right shoulder pain and released appellant to full duty.
By decision dated August 8, 2006, the Office denied appellant’s claim on the grounds
that causal relationship was not established. It accepted that the work events of June 19, 2006
occurred at the time, place and in the manner alleged. The Office found that appellant’s
physicians did not diagnose a specific right shoulder injury or explain how the accepted work
factors would cause or contribute to any pathology.
In a letter dated and postmarked on September 8, 2006, appellant requested a review of
the written record by a representative of the Office’s Branch of Hearings and Review. He
submitted additional evidence.
In July 13, 2006 reports, Dr. Morrison noted tendon crepitus at the right distal clavicle.
He diagnosed a shoulder sprain, shoulder injury and shoulder pain related to lifting and moving
mail and equipment at work.
In an August 2, 2006 letter, appellant reiterated that he experienced sudden right shoulder
pain and immobility at work on June 19, 2006.

1

On June 21, 2006 appellant filed a notice of occupational disease (Form CA-2), asserting that he sustained
sudden, sharp right shoulder pain on June 19, 2006 while lifting and pushing mail and equipment. As the Form
CA-2 was duplicative of the Form CA-1 and both alleged the same traumatic incident, the Office developed the case
as a traumatic injury claim.

2

By decision dated October 17, 2006, the Office denied appellant’s request for a review of
the written record on the grounds that it was not timely filed. The Office found that appellant’s
request for a review of the written record was postmarked on September 8, 2006 more than 30
days after the Office’s August 8, 2006 decision. The Office further denied appellant’s request
for a hearing on the grounds that the issue involved could be addressed equally well by
requesting reconsideration and submitting new evidence establishing that he sustained an injury
as alleged.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 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
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.5
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.6
ANALYSIS -- ISSUE 1
Appellant asserted that he sustained a right shoulder injury on June 19, 2006 due to lifting
and pushing mail and equipment at work. The Office accepted that he performed the identified
work activities as alleged. The Office denied his claim on the grounds that the medical evidence
submitted was insufficiently rationalized to establish that the accepted incident caused a right
shoulder injury.
In support of his claim, appellant submitted June 19 and 24, 2006 reports from
Dr. Dempsey, an attending neurosurgeon, who diagnosed right shoulder pain with a possible
tendon injury or tendinitis. He also submitted a July 13, 2006 report from Dr. Morrison, an
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Gary J. Watling, 52 ECAB 278 (2001).

6

Deborah L. Beatty, 54 ECAB 340 (2003).

3

attending Board-certified family practitioner, diagnosing right shoulder pain. The Board notes
that pain is considered a symptom, not a diagnosis and does not generally constitute a basis for
payment of compensation.7 Neither Dr. Dempsey nor Dr. Morrison definitively diagnosed a
tendon injury or other medical pathology related to the accepted June 19, 2006 work activities.
Thus, the medical evidence is insufficient to meet appellant’s burden of proof.8
The Board finds that appellant submitted insufficient medical evidence to establish that
he sustained an injury causally related to the accepted work factors. Therefore, the Office’s
August 8, 2006 decision denying appellant’s claim is proper under the law and facts of this case.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that “a claimant for compensation not satisfied
with a decision of the Secretary … is entitled, on request made within 30 days after the date of
the issuance of the decision, to a hearing on his claim before a representative of the Secretary.”9
Sections 10.617 and 10.618 of the federal regulations implementing this section of the Act
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.10 The Office’s procedures, which require the Office
to exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of the Act and Board precedent.11
ANALYSIS -- ISSUE 2
The Office denied appellant’s claim by an August 8, 2006 decision. Appellant’s letter
requesting a review of the written record was postmarked September 8, 2006, more than 30 days
after the August 8, 2006 decision. Thus, the Office properly found that his request for a review
of the written record was not timely filed under section 8124(b)(1) of the Act and that he was not
entitled to an examination of the written record as a matter of right.
The Office exercised its discretion and determined that appellant’s request for a review of
the written record could equally well be addressed by requesting reconsideration and submitting
additional evidence establishing that the claimed right shoulder injury was causally related to his
federal employment. As the only limitation on the Office’s authority is reasonableness, abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deductions from known
facts.12 The Board finds that there is no evidence of record that the Office abused its discretion
7

See Robert Broome, 55 ECAB 339 (2004).

8

Ellen L. Noble, 55 ECAB 530 (2004).

9

5 U.S.C. § 8124(b)(1).

10

20 C.F.R. §§ 10.616, 10.617.

11

Claudio Vasquez, 52 ECAB 496 (2002).

12

Daniel J. Perea, 42 ECAB 214 (1990).

4

in denying appellant’s request. Thus, the Board finds that the Office’s denial of appellant’s
request for a review of the written record was proper under the law and facts of this case.
CONCLUSION
The Board finds that appellant has not established that he sustained a right shoulder
injury in the performance of duty. The Board further finds that the Office properly denied
appellant’s request for a review of the written record.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 17 and August 8, 2006 are affirmed.
Issued: July 16, 2007
Washington, DC

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

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

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

5