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

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

Docket No. 14-1614
Issued: December 10, 2014

Case Submitted on the Record

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

JURISDICTION
On July 14, 2014 appellant, through counsel, filed a timely appeal from a May 9, 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 this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish disability from
May 31 to July 22, 2013 causally related to his accepted February 1, 2013 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the May 9, 2014 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

FACTUAL HISTORY
On February 1, 2013 appellant, then a 53-year-old mail handler, filed a traumatic injury
claim alleging that on February 1, 2013 he injured his left side when he fell from a platform at
work. He stopped work that day but returned to light duty on May 25, 2013. Appellant’s claim
was accepted for left contusion of face and hip.
In a May 21, 2013 narrative report and prescription note, Dr. Mark A. Filippone, Boardcertified in physical medicine and rehabilitation, stated that appellant had been under his care
and appellant had been totally disabled since February 18, 2013. He related appellant’s
complaints of neck pain and of pain, numbness, and tingling in his fingers and hands. Upon
examination, Dr. Filippone observed pain, guarding, and spasm in the cervical and lumbar
paraspinals bilaterally. Tinel’s and Phalen’s signs were positive bilaterally. Dr. Filippone
provided electromyography test findings and noted evidence of right C5-6 cervical radiculopathy
and right L4-5 and S1 lumbosacral radiculopathy. He opined that the electrical abnormalities
were directly and solely the result of the injuries appellant sustained while at work for the
employing establishment. In an attending physician’s report, Dr. Filippone noted a date of injury
of February 1, 2013. He diagnosed cervical and lumbar radiculopathy and carpal tunnel
syndrome. Dr. Filippone indicated that appellant could return to limited duty on May 22, 2013.
On June 14, 2013 appellant filed a claim for recurrence of disability on May 30, 2013 due
to the February 1, 2013 employment injury. He noted that he returned to work with restrictions
on May 25, 2013 and worked until May 30, 2013 when he was sent home due to his work injury.
The employing establishment controverted appellant’s claim as the disability was not related to
the February 1, 2013 injury. It noted the medical restrictions were for cervical and lumbar
radiculopathy and carpal tunnel syndrome. The employing establishment further stated that
appellant was sent home on May 30, 2013 and instructed to apply for light duty, but he did not
apply.
In a June 14, 2013 statement, counsel related that Dr. Filippone’s May 21, 2013 report
clearly demonstrated that appellant had cervical and lumbar radiculopathies and bilateral carpal
tunnel syndrome as a result of his work injury. He requested that OWCP expand appellant’s
claim to include these conditions. Counsel also reported that appellant was released to limited
duty on May 21, 2013 but the employing establishment was unable to accommodate his
restrictions beginning May 31, 2013. He requested that OWCP pay temporary total disability
beginning May 31, 2013.
In June 5 and 20, 2013 reports, Dr. Filippone noted that appellant’s medical history and
review of systems remained unchanged. He related that appellant’s neck and low back pain had
somewhat improved with physical therapy but appellant still complained of numbness and
tingling in his neck and upper extremities. Upon examination, Dr. Filippone observed guarding
and spasm in the cervical and lumbar paraspinals and preserved peripheral pulses. Horman’s
sign was negative.
In a July 2, 2013 controversion letter, the employing establishment again noted that
Dr. Filippone treated appellant for cervical radiculopathy, carpal tunnel syndrome, and lumbar

2

radiculopathy, which were not accepted conditions by OWCP. It contended that appellant’s
disability was not related to his accepted February 1, 2013 employment injury.
In a July 10, 2013 prescription note and duty status report, Dr. Filippone authorized
appellant to resume full-time regular duty as of July 22, 2013.
In a letter dated July 23, 2013, OWCP advised appellant that the evidence submitted was
insufficient to establish his recurrence claim and requested additional evidence to establish that
he was unable to work as a result of his accepted employment conditions or that the employing
establishment was unable to accommodate his light-duty restrictions.
OWCP referred appellant’s claim, along with a statement of accepted facts and the
record, to Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon, for a second opinion
examination, to determine whether appellant continued to suffer residuals of his accepted
February 1, 2013 employment injury and whether he was able to return to work.3 In a
July 26, 2013 report, Dr. Lakin provided an accurate history of the February 1, 2013 employment
injury and reviewed the medical record. He related appellant’s current complaints of occasional
discomfort in the lower back region in the area of the hip but no radiating pain, numbness or
paresthesias. Dr. Lakin noted that appellant had returned to full duty as a mail handler. Upon
examination of appellant’s cervical spine, he observed full and active range of motion with no
tenderness. Examination of the thoracic and lumbosacral spine revealed no tenderness, spasms
or step-off. Straight leg raise testing was negative in the sitting and supine position.
Examination of the upper extremities also demonstrated intact sensation to light touch and 5/5
motor examination. Spurling and Hoffman’s signs were negative. Upon examination of
appellant’s left hip, Dr. Lakin reported symmetric range of motion with no tenderness or
instability. He stated that motor examination was 5/5 in flexion, extension, abduction, and
adduction.
Dr. Lakin opined that appellant’s accepted conditions of contusion of the face and hip
had resolved. He stated that there were no orthopedic findings of disabling residuals,
subjectively or objectively, to appellant’s face and hip. Dr. Lakin reported that appellant had no
concurrent medical condition preventing him from returning to work and that appellant was
capable of returning to his date-of-injury job as a mail handler with no restrictions. He noted that
appellant had an unremarkable orthopedic examination and concluded that appellant had fully
recovered from his accepted conditions.
In an August 5, 2013 letter, appellant stated that on May 25, 2013 he reported to work
with limited duty as instructed by his physician. He worked four days prepping mail and
experienced discomfort and pain on his back and left side. On May 31, 2013 appellant was
informed not to report to his workstation and instructed by his acting supervisor to provide more
detailed and specific job limitations from his doctor. He stated that he did not have any injury or
medical condition prior to the date of injury.

3

A second opinion examination was scheduled for June 24, 2013 but appellant did not attend. On June 25, 2013
OWCP issued a notice of suspension to appellant for his refusal to attend the second opinion examination. The
examination was rescheduled for July 26, 2013.

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In a decision dated September 30, 2013, OWCP denied appellant’s recurrence of
disability claim finding that the medical evidence was insufficient to establish that his disability
from May 31 to July 22, 2013 was causally related to a change or worsening of his accepted
conditions or that his light-duty assignment was withdrawn. It noted that the physical limitations
prescribed by his physician were based on diagnoses that were not related to his accepted
February 1, 2013 employment injury.
In letters dated October 18 and 22, 2013, counsel requested a hearing. He stated that a
September 30, 2013 narrative report by Dr. Filippone supported that appellant still suffered
residuals of his work injury. Counsel also requested that appellant’s accepted conditions be
expanded to include C4-5 disc herniation, low back condition, internal derangement and
radiculopathies as a result of his work injury.
In a September 30, 2013 report, Dr. Filippone accurately described appellant’s
February 1, 2013 employment injury and noted that he did not work for the next couple of
weeks. On February 15, 2013 appellant returned to full duty but stopped work again on
February 17, 2013 because of pain. Dr. Filippone related that he examined appellant on
February 28, 2013 for complaints of pain in the left side of the face, neck, shoulders, and back
radiating into his upper and lower extremities. He reviewed appellant’s history, including
several diagnostic reports. Dr. Filippone reported that despite his June 20, 2013 Form CA-17 the
employing establishment did not allow appellant to return to work. He provided findings on
examination and diagnosed herniated disc at C4-5, mild facet joint narrowing on the right knee at
the L4-5 level and L3-4 level, internal derangement of both knees, contusion of the left hip and
pelvis, C5-6 cervical radiculopathy, L4-5 and S1 lumbosacral radiculopathy, and bilateral carpal
tunnel syndrome. Dr. Filippone stated that all of the above abnormalities were directly and
solely the result of the February 1, 2013 work injury. He stated that appellant was authorized to
return to full time, regular duty as of July 22, 2013.
In reports dated October 2 and December 12, 2013, Dr. Filippone stated that appellant’s
medical history remained unchanged and that appellant continued to work full time, regular duty
as a mail handler. He noted that appellant remained symptomatic with low back pain radiating
into the right buttock and into the back of thighs. Dr. Filippone provided findings on
examination and reported that central and neurologic examinations were unchanged. He
concluded that appellant could continue to work full-time duty without restrictions even though
he remained symptomatic. Dr. Filippone recommended that appellant continue with physical
therapy.
On February 19, 2014 a hearing was held. Appellant described the work that he
performed as a mail handler and the February 1, 2013 employment injury when he fell off a
platform onto his left side. He reviewed the medical treatment he received. Appellant stated that
he returned to work for three days even though he continued to experience pain in his back and
left side. On February 28, 2013 he sought treatment from Dr. Filippone and was authorized to
work limited duty with restrictions of no lifting over 20 pounds and no pushing or pulling over
100 pounds. On May 25, 2013 appellant returned to limited duty and worked for about four days
before he was told by the employing establishment that he could no longer work limited duty.
He stated that he remained off work until he returned to full duty on July 22, 2013. Appellant
reported that he did not sustain any other injuries to his back or neck other than the

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February 1, 2013 employment injury. He stated that he was seeking wage-loss compensation for
May 31 to July 22, 2013.
In a March 11, 2014 report, Dr. Filippone noted that appellant continued to work
full-time regular duty. He reported that appellant’s medical history and examination findings
were unchanged. Dr. Filippone advised appellant to continue physical therapy.
By decision dated May 9, 2014, an OWCP hearing representative affirmed the
September 30, 2013 denial decision.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition, which resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.4 This term also means an inability to
work when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn (except when such
withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reduction-inforce) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.5
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform the limited-duty position. As part of
this burden, the employee must show either a change in the nature and extent of the
injury-related condition or a change in the nature and extent of the limited-duty requirements.6
This burden includes the necessity of furnishing evidence from a qualified physician who
concludes, on the basis of a complete and accurate factual and medical history, that the disabling
condition is causally related to the employment injury. The medical evidence must demonstrate
that the claimed recurrence was caused, precipitated, accelerated or aggravated by the accepted
injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 The opinion of the
4

20 C.F.R. § 10.5(x).

5

Id.

6

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (January 2013).

8

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

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physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.9
OWCP’s procedures require that in cases where recurrent disability for work is claimed
within 90 days or less from the first return to day, the attending physician should describe the
duties which the employee cannot perform and the demonstrated objective medical findings that
form the basis for the renewed disability for work.10
ANALYSIS
OWCP accepted that appellant sustained a left hip and face contusion as a result of a
February 1, 2013 employment injury. Appellant stopped work and returned to light duty on
May 25, 2013. On June 14, 2013 he submitted a recurrence of disability claim alleging that he
was unable to work beginning May 31, 2013 because the employing establishment could not
accommodate his work restrictions. Appellant returned to full-duty on July 22, 2013. OWCP
denied his recurrence of disability claim finding that he did not meet his burden of proof to
establish that he was unable to work, or was capable only of light-duty, as a result of his accepted
conditions of left hip and face contusion. The Board finds that appellant did not meet his burden
of proof to establish his claim.
The Board notes that counsel asserts that Dr. Filippone’s medical reports support that
appellant’s claim should be expanded to include cervical and lumbar radiculopathies and
bilateral carpal tunnel syndrome as a result of his employment injury. However, the Board has
reviewed OWCP’s decision on appeal which affirmed a prior OWCP decision dated
September 30, 2013. While these decisions certainly refer to Dr. Filippone’s reports, the Board
finds that OWCP has not directly ruled on whether appellant’s claim should be expanded to
include additional medical conditions. For this reason, the Board declined to rule on the question
of expanding the claim.
On appeal, counsel contends that Dr. Filippone’s reports were sufficient to establish that
he sustained cervical and lumbar radiculopathy and a recurrence of disability from May 31
to July 22, 2013 as a result of the February 1, 2013 employment. As previously noted, however,
OWCP has not directly ruled on that issue. Accordingly, the Board finds that it properly found
that appellant did not meet his burden of proof to establish his recurrence claim.
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability from May 31 to July 22, 2013 causally related to his February 1, 2013 employment
injury.

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

10

See supra note 7 at Chapter 2.1500.5 (June 2013).

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ORDER
IT IS HEREBY ORDERED THAT the May 9, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 10, 2014
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Syosset, NY, Employer
__________________________________________

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Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1318
Issued: February 15, 2017

Case Submitted on the Record

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

JURISDICTION
On June 12, 2016 appellant filed a timely appeal from a February 9, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish disability
commencing December 10, 2007, causally related to her October 24, 2007 work injury.
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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances outlined in
the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth
below.
On October 26, 2007 appellant, then a 48-year-old distribution clerk, filed a traumatic
injury claim (Form CA-1) alleging that she sustained injury to her low back and left leg on
October 24, 2007 after bending and lifting while dumping and breaking down mail. She felt a
pulling strain in her lower back and a shooting pain down her left leg. On the form, appellant’s
supervisor noted that appellant advised him on October 25, 2007 that the claimed injury occurred
on October 24, 2007. Appellant stopped work on October 24, 2007.
In an October 25, 2007 note, Dr. Joseph Gigante, an attending Board-certified family
practitioner, noted that appellant reported experiencing back and leg pain after lifting, squatting,
and bending over while breaking down mail the prior day. On examination, appellant had
decreased back motion and diagnosed low back strain/sprain. The findings of a November 5,
2007 magnetic resonance imaging (MRI) scan of her back showed bulging discs at L3-4 and
L5-S1 and slight anterior spondylolisthesis of L4 upon L5. In a December 2, 2007 form report,
Dr. Gigante listed the date of injury as October 27, 2007 and the history of injury as “lifting
heavy objects.4 He diagnosed low back sprain and checked a box marked “yes” indicating that
appellant’s condition was caused or aggravated by the reported employment activity.
Dr. Gigante noted that she had been totally disabled since the time of the injury.
In an undated report submitted with a January 8, 2008 letter, Dr. Jamie P. Skurka, an
attending chiropractor, noted that appellant reported that she injured her lumbar spine on
October 27, 2007 and that her job required repetitive lifting, twisting, and turning. He noted that
November 5, 2007 MRI scan testing showed bulging discs at L3-4 and L5-S1 and slight anterior
spondylolisthesis of L4 upon L5 and listed these conditions in the diagnosis portion of his report.
Dr. Skurka obtained x-ray testing and also diagnosed lumbar facet syndrome, lumbar radiculitis,
and myofascial pain syndrome. He noted that appellant’s lumbar condition was “resultant from
the repetitive lifting, twisting, and bending event that occurred on October 27, 2007.”
In a February 20, 2008 decision, OWCP denied appellant’s claim for a work-related
traumatic injury because that she did not establish the occurrence of an employment incident. It
noted that there were inconsistencies in the factual aspects of appellant’s claim.
Appellant subsequently requested reconsideration and submitted a January 12, 2008
report from Dr. Skurka, who advised that x-ray testing of her lumbar spine was obtained on
January 11, 2008 from four views -- anteroposterior, lateral, flexion and extension. Regarding
the testing results, Dr. Skurka noted, “The lumbar spine is hyperlordotic. There is no evidence of
fracture. The osseous structures are of normal size, shape, and density.” Appellant submitted
3

Docket No. 08-1879 (issued January 27, 2009); Docket No. 12-1348 (issued February 25, 2013).

4

Dr. Gigante’s listing of the date of injury as October 27, 2007 would appear to be inadvertent as he previously
listed the proper date of October 24, 2007 when he examined appellant on October 25, 2007.

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form reports of Dr. Skurka, dated from February to May 2008, that contained the diagnoses of
lumbosacral spondylolisthesis, lumbar facet syndrome, disc bulging at L3, L4, L5, and S1, and
lumbar radiculopathy. Dr. Skurka indicated that she currently was totally disabled and that her
first date of disability was January 8, 2008.
In a May 29, 2008 decision, OWCP denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a). Appellant appealed the February 20 and
May 29, 2008 decisions to the Board.
In a January 27, 2009 decision,5 the Board modified OWCP’s February 20, 2008 decision
to reflect that an employment incident occurred on October 24, 2007 when appellant engaged in
bending and lifting while dumping and breaking down mail. The Board further found that
Dr. Gigante’s reports raised an uncontroverted inference between her claimed back condition and
the October 24, 2007 employment incident. The Board remanded the case to OWCP for further
development of the medical evidence.
OWCP referred appellant to Dr. Sanford R. Wert, a Board-certified orthopedic surgeon,
for a second opinion examination. In a March 26, 2009 report, Dr. Wert reported the findings
from examination of March 24, 2009. He diagnosed lumbosacral spine sprain, related to the
employment incident of October 24, 2007. Dr. Wert noted that appellant’s lumbosacral spine
sprain was related by direct cause and noted that her preexisting degenerative disease was related
by temporary aggravation. He found that the aggravation should have ceased following the fourmonth course of physical therapy. On examination, appellant complained of pain and exhibited
diminished range of motion, but her complaints were not corroborated by objective findings and
that the examination of her left leg was entirely within normal limits. Dr. Wert found no
objective evidence of any ongoing disability and indicated that she was capable of resuming the
regular duties of a distribution clerk.
On May 6, 2009 OWCP accepted that appellant sustained a lumbar sprain and temporary
aggravation of preexisting degenerative disc disease of the lumbar spine, resolved.
Appellant filed claims for compensation (Forms CA-7) alleging that she had disability
due to her October 24, 2007 work injury beginning December 10, 2007 and continuing.
In a May 13, 2009 form report, Dr. Skurka listed the date of injury as October 24, 2007
and diagnosed grade 1 spondylolisthesis at L4, lumbar radiculopathy, lumbar facet syndrome,
disc bulging at L3, L4, L5, and S1, and spinal intersegmental joint dysfunction. He checked a
box marked “yes” indicating that these conditions were caused or aggravated by an employment
activity and indicated that appellant was totally disabled from January 8, 2008 to the present. In
another May 13, 2009 form report, Dr. Skurka indicated that she was temporarily totally disabled
“due to lumbar spine condition.”
In a May 18, 2009 report, Dr. Steven J. Litman, an attending Board-certified
anesthesiologist, noted that appellant had bilateral back pain and bilateral lumbosacral
radiculopathy secondary to a lumbar spine injury sustained at work. He also indicated that she
5

Docket No. 08-1879 (issued January 27, 2009).

3

had spondylolisthesis. Dr. Litman indicated that appellant would undergo an L4-5 epidural
steroid injection for treatment of bilateral lumbosacral radiculopathy “causally related to a
workers’ compensation injury.”
In a May 19, 2009 report, Dr. Andrew D. Rogove, an attending Board-certified
neurologist, noted that appellant was injured at work while distributing mail on October 24, 2007
and noted that she came in for evaluation of back pain. He indicated that she had a normal
neurologic examination with a negative straight leg raise highly doubtful for profound herniated
disc), but noted that she did have radicular pain intermittently in her right leg. Dr. Rogove
recommended that appellant continue with conservative therapy, including chiropractic, and pain
management therapy.
OWCP requested that Dr. Wert provide a supplemental report on the question of whether
appellant had any disability following her October 24, 2007 work injury. On August 5, 2009
Dr. Wert advised that the opinion he expressed in his March 24, 2009 report remained
unchanged and noted, “As I examined [appellant] on March 24, 2009, one year and five months
post injury, I am unable to comment on whether or not [she] was totally disabled at any time
following the March 24, 2007 injury.”
In an October 16, 2009 decision, OWCP denied appellant’s claim, finding that she had
not submitted medical evidence sufficient to establish that she had disability due to her
October 24, 2007 work injury on or after December 10, 2007. It indicated that the reports of
Dr. Skurka did not constitute medical evidence.
Dr. Kevin Mullins, an attending Board-certified neurosurgeon, reported the findings of a
June 22, 2010 electromyogram (EMG) and nerve conduction velocity (NCV) testing on
appellant’s legs. He indicated that EMG testing revealed unremarkable findings with no support
for the presence of a lumbar radiculopathy. NCV testing revealed a normal study with
unremarkable findings.
In a January 5, 2011 decision, OWCP affirmed its October 16, 2009 decision denying
appellant’s claim for compensation for disability due to her October 24, 2007 work injury.
Appellant submitted a June 7, 2010 report, in which Dr. Erlinda D. Austria, an attending
Board-certified surgeon, diagnosed injury to lower back at work in 2007 and herniated and
bulging lumbar disc with subluxation. Dr. Austria noted that appellant had mild-to-moderate
restrictions for squatting, bending, prolonged sitting, standing, and walking and moderate
restriction, and limited range of motion for activities involving both knees, greater on the left.
In a January 14, 2011 report, Dr. Skurka diagnosed lumbar spinal subluxation at L4,
lumbar spondylolisthesis/anterolisthesis at L4, lumbar radiculopathy, lumbar facet syndrome,
and multilevel lumbar disc bulging from L3-4 to L5-S1 with foraminal canal stenosis. He noted,
“In my professional opinion, [appellant’s] present clinical status pertaining to her lumbar spine is
directly correlated to her work-related injury occurring on October 24, 2007.”
On October 13, 2011 appellant requested reconsideration of her claim and argued that the
reports of Dr. Skurka should be considered as relevant medical evidence.

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In a January 11, 2012 decision, OWCP affirmed its January 5, 2011 decision, finding that
appellant did not submit probative medical evidence relating the claimed periods of disability to
the October 24, 2007 work injury. Appellant appealed to the Board.
By decision dated February 25, 2013,6 the Board affirmed OWCP’s January 11, 2012
decision. It found that appellant had not submitted rationalized medical evidence establishing
disability due to her October 24, 2007 work injury on or after December 10, 2007.
Appellant requested reconsideration of her disability claim and submitted new medical
evidence. In reports dated January 30 and March 2, 2012, Dr. Litman discussed his continued
treatment of her low back condition, including the application of steroid injections.
In a report dated October 2, 2013, Dr. Deborah Eisen, an attending Board-certified family
practitioner, indicated that Dr. Skurka believed that appellant’s lumbar spondylolisthesis and
anterolisthesis at L4 were related to the same repetitive bending and lifting that caused her
accepted work injuries. She opined that appellant’s work would have caused these conditions as
well as the bulging disc at L3-4 and posterior disc bulge at L5-S1 and thus these conditions
prevented appellant from working since October 24, 2007.
By decision dated February 28, 2014, OWCP denied modification of its prior decisions
denying appellant’s disability claim. It found that the new medical evidence was not sufficiently
well rationalized to establish disability due to the October 24, 2007 work injury on or after
December 10, 2007.
Appellant again requested reconsideration of her disability claim and submitted new
medical evidence. In a report dated March 11, 2014, Dr. Eisen indicated that appellant’s bending
to lift parcels over the period of a day would have caused the lower spine to be compromised,
causing the anterior portion of the posterior portion of the disc to move posteriorly as
demonstrated on MRI scan. She opined that the constant bending would put pressure on the
anterior portion of the vertebral body and disc, causing the associated L4 to move forward from
this anterior pressure. Dr. Eisen found that, therefore, appellant’s bending caused the multiple
herniated discs (between L3 and S1) and anterolisthesis (grade 1 spondylolisthesis) of L4 upon
L5.
In a September 16, 2014 decision, OWCP denied modification of its February 28, 2014
decision denying appellant’s disability claim. It found that the new report of Dr. Eisen was not
sufficiently rationalized to establish disability due to the October 24, 2007 work injury on or
after December 10, 2007.
Appellant requested reconsideration and submitted a November 11, 2015 report in which
Dr. Amit Sharma, an attending Board-certified internist, noted that appellant reported becoming
symptomatic after October 24, 2007. Dr. Sharma diagnosed right L5 radiculopathy, lumbar
spondylosis, and lumbar spinal stenosis. In a January 29, 2015 report, Dr. Anthony Petrizzo, an
attending Board-certified orthopedic surgeon and osteopath, indicated that appellant reported

6

Docket No. 12-1348 (issued February 25, 2013).

5

experiencing constant low back pain since October 24, 2007. He provided a diagnosis of lumbar
spondylolisthesis at L4-5.
By decision dated February 9, 2016, OWCP denied modification of its prior decision. It
found that appellant had not submitted sufficiently rationalized medical evidence establishing
disability due to her October 24, 2007 work injury on or after December 10, 2007.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.7 In general, the term disability under FECA means incapacity
because of injury in employment to earn the wages which the employee was receiving at the time
of such injury.8 This meaning, for brevity, is expressed as disability from work.9
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. 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.10
Under section 8101(2) of FECA, chiropractors are only considered physicians, and their
reports considered medical evidence, to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist.11 OWCP’s regulations at 20 C.F.R. § 10.5(bb) have defined
subluxation as an incomplete dislocation, off-centering, misalignment, fixation or abnormal
spacing of the vertebrae which must be demonstrable on any x-ray film to an individual trained
in the reading of x-rays.12
ANALYSIS
OWCP accepted that on October 24, 2007 appellant sustained a lumbar sprain and
temporary aggravation of preexisting degenerative disc disease of the lumbar spine, resolved.
Appellant filed claims for compensation (Form CA-7) alleging disability due to her October 24,
7

J.F., Docket No. 09-1061 (issued November 17, 2009).

8

See 20 C.F.R. § 10.5(f).

9

Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

10

See E.J., Docket No. 09-1481 (issued February 19, 2010).

11

5 U.S.C. § 8101(2). See Jack B. Wood, 40 ECAB 95, 109 (1988).

12

20 C.F.R. § 10.5(bb); see also Bruce Chameroy, 42 ECAB 121, 126 (1990).

6

2007 work injury commencing December 10, 2007. By decision dated February 25, 2013, the
Board affirmed OWCP’s January 11, 2012 decision denying her disability claim. The Board
found that appellant had not submitted rationalized medical evidence establishing disability due
to her October 24, 2007 work injury on or after December 10, 2007. Appellant continued to
request a series of reconsiderations to OWCP of the denial of her disability claim. In several
decisions, including a decision dated February 16, 2016, OWCP denied her disability claim by
finding that she did not submit sufficient rationalized medical evidence in support thereof.
The Board finds that appellant did not submit medical evidence to establish that that she
sustained disability due to her October 24, 2007 work injury on or after December 10, 2007.
Appellant submitted reports beginning in January 2008 from Dr. Skurka, an attending
chiropractor, including some reports in which he identified periods of disability. In its
February 25, 2013 decision, the Board found that, although he provided an opinion of her
disability, he did not provide a rationalized medical opinion explaining how she sustained
disability from work due to her October 24, 2007 employment injury for specific periods
commencing December 10, 2007.13 Appellant also submitted reports of several other attending
physicians, including reports from 2007 through 2010 of Dr. Gigante, Dr. Litman, and
Dr. Austria, but the Board found in its February 25, 2013 decision that these reports did not
contain rationalized medical opinions on the issue of disability. The Board notes that these
physicians diagnosed a number of conditions that are not accepted as work related, such as
lumbar radiculopathy.14
In a report dated October 2, 2013, Dr. Eisen, an attending physician, indicated that
Dr. Skurka believed that appellant’s lumbar spondylolisthesis and anterolisthesis at L4 were
related to the same repetitive bending and lifting that caused her accepted work injuries. She
opined that appellant’s work would have caused these conditions as well as the bulging disc at
L3-4 and posterior disc bulge at L5-S1. Dr. Eisen indicated that these conditions prevented
appellant from working since October 24, 2007.
The submission of this report would not establish appellant’s disability claim because
Dr. Eisen did not provide adequate medical rationale in support of her opinion on appellant’s
disability. The Board has held that a medical opinion is of limited probative value if that opinion
is unsupported by medical rationale.15 Dr. Eisen did not describe appellant’s accepted conditions
in any detail or explain how they would have been caused disability from work commencing
December 10, 2007. The Board notes that OWCP has not accepted that on October 24, 2007
appellant sustained any condition other than a lumbar sprain and temporary aggravation of

13

The Board previously found that these reports constitute medical evidence because Dr. Skurka diagnosed a
spinal subluxation as demonstrated by x-ray testing. See supra notes 10 and 11. The Board also noted in its
February 25, 2013 decision that Dr. Sanford R. Wert, a Board-certified orthopedic surgeon and OWCP referral
physician, indicated in his March 26 and August 5, 2009 reports that appellant was not disabled at that time.
14

The findings of June 22, 2010 EMG testing of appellant’s legs revealed unremarkable findings with no support
for the presence of a lumbar radiculopathy and NCV testing revealed a normal study with unremarkable findings.
15

C.M., Docket No. 14-0088 (issued April 18, 2014).

7

preexisting degenerative disc disease of the lumbar spine, resolved.16 Thus, the Board finds that
Dr. Eisen’s October 2, 2013 report is not sufficiently rationalized to establish that any additional
work-related medical condition.
In a report dated March 11, 2014, Dr. Eisen indicated that appellant’s bending to lift
parcels over the period of a day would have caused the lower spine to be compromised, causing
the anterior portion of the posterior portion of the disc to move posteriorly as demonstrated on
MRI scan. She opined that the constant bending would put pressure on the anterior portion of
the vertebral body and disc, causing the associated L4 to move forward from this anterior
pressure. Dr. Eisen indicated that appellant’s bending caused the multiple herniated discs
(between L3 and S1) and anterolisthesis (grade 1 spondylolisthesis) of L4 upon L5. In this
report, she again failed to provide a rationalized medical opinion explaining how appellant
sustained disability due to her October 24, 2007 work injury for specific periods on or after
December 10, 2007. Dr. Eisen diagnoses conditions that have not been accepted as work related
and her general description of appellant’s work duties would not be sufficient to establish a new
work-related condition. Her report is of limited probative value regarding the relevant issue of
this case, i.e., whether appellant sustained disability from work commencing December 10, 2007
due to her accepted October 24, 2007 work injury on or after December 10, 2007.17
Appellant also submitted a January 29, 2015 report of Dr. Petrizzo and a November 11,
2015 report of Dr. Sharma. These attending physicians diagnosed various back conditions, but
they did not provide an opinion on appellant’s disability on or after December 10, 2007.
On appeal, appellant’s representative argues that OWCP improperly failed to consider the
opinion of Dr. Eisen on disability to be well rationalized, but the Board has explained above why
her opinion on disability lacks adequate medical rationale. Appellant’s representative argues that
there is a conflict in the medical opinion evidence between Dr. Wert, an OWCP referral
physician, and appellant’s attending physicians on the issue of disability. However, none of the
reports of appellant’s attending physicians are sufficiently well rationalized to create such a
conflict.18
For these reasons, appellant did not meet her burden of proof to establish disability due to
her October 24, 2007 work injury on or after December 10, 2007.
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.

16

See K.A., Docket No. 16-0592 (issued October 26, 2016).

17

Id.

18

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall appoint a third
physician who shall make an examination.” 5 U.S.C. § 8123(a).

8

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish disability due
to her October 24, 2007 work injury on or after December 10, 2007.
ORDER
IT IS HEREBY ORDERED THAT the February 9, 2016 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: February 15, 2017
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.T., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 07-929
Issued: May 9, 2008

Case Submitted on the Record

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

JURISDICTION
On February 20, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated November 20, 2006 which denied his reconsideration
request on the grounds that it was untimely filed and failed to establish clear evidence of error.
Because more than one year has elapsed between the last merit decision dated July 16, 2003 and
the filing of this appeal on February 20, 2007, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
Appellant, a 48-year-old special agent, injured his lower back when the vehicle he was
driving was struck by another vehicle on August 7, 1985. The Office accepted his claim for low

back strain and herniated nucleus pulposus at L4-5. The Office commenced appropriate payment
for temporary total disability and placed appellant on the periodic rolls.
In a report dated November 26, 2001, Dr. Anthony C. Pitts, a specialist in physical and
rehabilitative medicine, stated that appellant experienced ongoing pain and discomfort in the
back and leg since his August 1985 work injury. He noted that appellant had several lumbar
epidural steroid injections and magnetic resonance imaging (MRI) scans in 1998 and
electromyograms (EMG) in 1989 and November 2001. Dr. Pitts stated:
“After comprehensive review of [appellant’s] medical records, comprehensive
history and physical examination, it is my opinion that he is not totally disabled.
He has failed back syndrome. Specifically, [appellant] was found to have disc
herniation and underwent lumbar hemilaminectomy at the L5-S1 level on the left.
He has been medication dependent. Reportedly, [appellant] has not worked.
“[Appellant] should be permanently restricted from any frequent bending [and]
lifting activities. He is ideally suited for sedentary work. [Appellant] should be
allowed to stand and ambulate as needed. [By] his own admission, he has
increased pain with prolonged immobilization.
“We had EMG nerve conduction studies completed. There was subtle suggestion
of chronic radiculopathy. This likely manifest with scar tissue. [Appellant] was
without any acute findings on the EMG nerve conduction studies. If the
restrictions of avoiding any frequent bending, lifting, squatting [and] stooping
activities are avoided and he has a sedentary position which allows him to stand
as needed and avoid protracted immobilization, he is well suited for the work
force. [Appellant’s] medication profile should be adjusted. The Flexeril he takes
two or three times daily is not suited for chronic low back pain.... His activities of
daily living are independent and he in my opinion is not totally disabled.
[Appellant’s] degenerative disc disease is evolutionary with age. His facet joint
hypertrophy is evolutionary with age.”
In a work capacity evaluation dated June 17, 2002, Dr. Pitts found that appellant could
work an eight-hour day. He outlined the following restrictions: no twisting, sitting for no more
than four to six hours per day; walking, standing, pushing, pulling and lifting for no more than
one to two hours per day; and squatting and kneeling for no more than five minutes per day.
Dr. Pitts instructed appellant to take 15- to 20-minute breaks every 2 to 3 hours.
In a vocational rehabilitation report dated October 22, 2002, a vocational rehabilitation
counselor issued a report summarizing his efforts to find vocational training or suitable alternate
employment for appellant within his indicated restrictions. The vocational counselor
recommended a position as credit authorizer, listed in the Department of Labor, Dictionary of
Occupational Titles, which, she determined, reasonably reflected appellant’s ability to earn
wages.
By decision dated July 16, 2003, the Office reduced appellant’s compensation to reflect
his wage-earning capacity in the position of credit authorizer.

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By letter dated October 17, 2006, appellant requested reconsideration of the Office’s
July 16, 2003 decision reducing compensation. He stated that Dr. Pitt’s medical opinion was
flawed because he ordered appellant to undergo an MRI scan and nerve conduction studies, but
failed to cite the results of these tests in conjunction with his medical evaluation. Appellant also
objected to Dr. Pitt’s assertion that he was drug dependent. He stated that he required treatment
with medication to cope with chronic pain caused by his work injury. In addition, appellant
alleged that his compensation checks were not based on the correct formula.
In support of his request, appellant submitted:
(a) The results of the EMG tests he underwent on November 29, 2001, at the
behest of Dr. Pitts. The results indicated, at the left peroneal nerve, normal distal
latencies with a moderate decrease in amplitudes and normal conduction speeds.
At the right peroneal nerve, there were normal distal latencies, amplitudes and
conduction speeds. F-waves studies to the left tibial and peroneal nerves revealed
normal latencies. On examination, appellant displayed normal tone with no
evidence of atrophy and full range of motion;
(b) A July 16, 2003 MRI scan report which revealed degenerative disc disease
and lumbar spondylosis, but no central stenosis or focal herniated nucleus
pulposus;
(c) A July 7, 2003 report from Dr. John Featheringill, a Board-certified
orthopedic surgeon, who stated that appellant experienced pain stemming from an
automobile accident which occurred on May 17, 2003. Dr. Featheringill noted
slight lumbar scoliosis and degenerative arthritis at L4-5 and L5-S1 on
examination. He stated that he would have appellant undergo MRI scan testing;
(d) A May 17, 2006 MRI scan report which revealed degenerative disc disease
and lumbar spondylosis, but no central stenosis or focal herniated nucleus
pulposus.
By decision dated November 20, 2006, the Office denied appellant’s request for
reconsideration without a merit review, finding that appellant had not timely requested
reconsideration and had failed to submit factual or medical evidence sufficient to establish clear
evidence of error. The Office stated that appellant was required to present evidence which
showed that the Office made an error and that there was no evidence submitted that showed that
its final merit decision was in error.
LEGAL PRECEDENT
It is well established that either a claimant or the Office may seek to modify a formal loss
of wage-earning capacity determination. 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,

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erroneous.1 The burden of proof is on the party attempting to show modification.2 There is no
time limit for appellant to submit a request for modification of a wage-earning capacity
determination.3
ANALYSIS
The Office considered appellant’s October 17, 2006 correspondence as a request for
reconsideration of the July 16, 2003 wage-earning capacity determination under 5 U.S.C.
§ 8128(a). It found the request untimely and that appellant did not submit relevant evidence or
legal argument establishing clear evidence of error. In his October 17, 2006 correspondence,
appellant used the term “reconsideration.” However, his letter asserts that the Office erred in its
July 16, 2003 wage-earning capacity determination as he was totally disabled for work on or
before that date; that his loss of wage-earning capacity compensation was not calculated using
the correct formula; and that his condition had worsened since the loss of wage-earning capacity
determination was made. Appellant’s October 17, 2006 letter is a request for modification of the
Office’s July 16, 2003 wage-earning capacity determination.4 This request for modification is
not a request for a review of the July 16, 2003 decision under 5 U.S.C. § 8128(a). Therefore, the
Office improperly characterized appellant’s October 17, 2006 letter as a request for
reconsideration subject to the one-year time limitation set forth at 20 C.F.R. § 10.607(a).
The Board finds that appellant has requested modification of the July 16, 2003 wageearning capacity determination. He is entitled to a merit review on that issue.5 On remand, the
Office shall adjudicate appellant’s request for modification of the wage-earning capacity
determination and issue an appropriate decision in the case.6
CONCLUSION
The Board finds that appellant requested modification of the July 16, 2003 wage-earning
capacity determination and is entitled to a merit review of the wage-earning capacity issue. The

1

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).
McCauley, 51 ECAB 375 (2000).
2

See also Tamra

Darletha Coleman, 55 ECAB 143 (2003).

3

Gary L. Moreland, 54 ECAB 638 (2003). See also Daryl Peoples, Docket No. 05-462 (issued July 19, 2005),
Emmit Taylor, Docket No. 03-1780 (issued July 21, 2004) (in Peoples and Taylor, the Board determined that the
claimants’ requests for reconsideration of a wage-earning capacity determination constituted a request for
modification requiring a merit review. In both cases, the Board set aside the Office’s decisions denying appellants’
reconsideration requests as untimely and remanded the cases for the Office to address the merits of their requests for
modification of a loss of wage-earning capacity decision).
4

See Gary L. Moreland, supra note 3.

5

Id.

6

The Board notes that appellant submitted additional evidence to the record following the November 20, 2006
Office decision. The Board’s jurisdiction is limited to a review of evidence which was before the Office at the time
of its final review. 20 C.F.R. § 501.2(c).

4

case will be remanded to the Office for all necessary development and issuance of an appropriate
decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 20, 2006 is set aside and the case remanded for further
action consistent with this decision.
Issued: May 9, 2008
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________

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

Docket No. 13-1417
Issued: October 22, 2013

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 May 23, 2013 appellant filed a timely appeal from a February 22, 2013 merit decision
of the Office of Workers’ Compensation Programs. 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 sustained an injury on October 19, 2010 in the
performance of duty.
FACTUAL HISTORY
On December 28, 2012 appellant, then a 63-year-old customer service supervisor, filed a
traumatic injury claim alleging that on October 19, 2010 he injured his right shoulder in the
performance of duty. He related that while delivering express mail he fell on his right shoulder
1

5 U.S.C. § 8101 et seq.

after a “swam (sic) of wasp came out of the mailbox.” Appellant did not stop work. The
employing establishment controverted the claim, indicating that a review of its records revealed
that the “2010 incident was coded as nonreportable as he did not even file an injury claim, and
the medical he provided in 2012 shows a long[-]standing history of many years of shoulder
problems dating back to the 1970s….”
By letter dated January 18, 2013, OWCP requested that appellant submit additional
factual and medical information, including a detailed description of his injury and a
comprehensive medical report addressing causal relationship.
In an October 19, 2010 statement to the employing establishment, appellant related that
when he opened a mailbox to deliver mail a swarm of wasps came out. He stated, “While
stepping backward fighting off the wasps I step in a hole and twisted my right knee and fell up
against my car banging my right shoulder. I do not wish to see a doctor at this time. But I do
reserve the right to see one later if I have a problem.”
Appellant submitted consultation requests dated 2012 and 2013 from physicians
requesting evaluations of his chronic neck pain, back pain and arm and shoulder pain. He also
submitted clinic notes describing his shoulder treatment in 2012 and 2013. The clinic notes,
however, do not contain any reference to the October 19, 2010 work incident. In a report dated
October 11, 2012, Dr. Geeta Kandala, a Board-certified physiatrist, discussed appellant’s history
of right shoulder pain beginning in the 1970s and noted that he had undergone shoulder surgery
in 1999 and 2002. She diagnosed chronic right rotator cuff tendinosis/impingement. On
December 6, 2012 Dr. Kandala diagnosed a partial rotator cuff tear and referred him for further
diagnostic studies.2
By decision dated February 22, 2013, OWCP denied appellant’s claim on the grounds
that the evidence was insufficient to establish that the October 19, 2010 incident occurred at the
time, place and in the manner alleged. It further determined that he did not submit medical
evidence addressing the relationship between any diagnosed condition and the alleged work
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 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

2

A magnetic resonance imaging (MRI) scan study of the right shoulder performed on November 6, 2012 revealed
a recurrent tear of the supraspinatus tendon.
3

5 U.S.C. § 8101 et seq.

2

employment injury.4 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.5
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.6 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.7 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.8
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.9 An injury
does not have to be confirmed by eyewitnesses in order to establish that an employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his or her subsequent course of action.10 An employee
has not met his or her burden of proof of establishing the occurrence of an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.11
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast doubt on an employee’s statements in determining
whether a prima facie case has been established.12 However, an employee’s statement regarding
the occurrence of an employment incident is of great probative force and will stand unless
refuted by strong or persuasive evidence.13

4

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

5

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

6

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

7

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

Id.

9

See Louise F. Garnett, 47 ECAB 639 (1996).

10

See Betty J. Smith, 54 ECAB 174 (2002).

11

Id.

12

Linda S. Christian, 46 ECAB 598 (1995).

13

Gregory J. Reser, 57 ECAB 277 (2005).

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ANALYSIS
Appellant alleged that he sustained an injury to his right shoulder on October 19, 2010.
He stated that while delivering mail he fell on his right shoulder after a swarm of wasps flew out
of a mailbox. On December 28, 2012 appellant filed a traumatic injury claim. OWCP found that
he had not submitted sufficient evidence to establish that the October 19, 2010 incident occurred
at the time, place and in the manner alleged.
In a statement dated October 19, 2010, appellant informed the employing establishment
that he fell backward into a hole on that date when he tried to fight off wasps that came out of a
mailbox. He related that he twisted his right knee and hit his right shoulder. Appellant asserted
that he did not want to seek medical treatment at that time. On the claim form, the employing
establishment indicated that a review of its records showed that it coded the incident as not
reportable. Appellant promptly reported the incident to the employing establishment and there is
no contemporaneous factual evidence to establish that the claimed incident did not occur as
alleged.14
The Board finds that the evidence does not contain inconsistencies sufficient to cast
serious doubt on appellant’s version of the employment incident. An employee’s statement
alleging that an injury occurred at a given time and in a given manner is of great probative value
and will stand unless refuted by strong or persuasive evidence.15 The Board thus finds that the
evidence is sufficient to establish that the October 19, 2010 incident occurred at the time, place
and in the manner alleged.
The remaining issue is whether the medical evidence establishes that appellant sustained
an injury causally related to the employment incident, which is generally established by medical
evidence.16 In this case, appellant has not submitted any evidence addressing whether he
sustained a right shoulder injury causally related to the October 19, 2010 work incident. On
January 18, 2013 OWCP advised him of the type of medical evidence required to establish his
claim. Appellant submitted clinic notes dated 2012 and 2013; however, these clinic notes did not
address the October 19, 2010 work incident and any causal relationship between a shoulder
condition and the accepted employment incident. On October 11, 2012 Dr. Kandala noted that
appellant had an extensive history of shoulder pain and diagnosed chronic right rotator cuff
tendinosis/impingement. On December 6, 2012 she diagnosed a partial rotator cuff tear.
Dr. Kandala, however, did not address causation. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of diminished probative value on the
issue of causal relationship.17

14

See Thelma Rogers, 42 ECAB 866 (1991).

15

Id.

16

See Louis E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

17

See S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

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Appellant has the burden to submit rationalized medical evidence based on a complete
and accurate factual and medical background supporting causal relationship.18 As he did not
provide the medical evidence necessary to substantiate his claim, he has not met his burden of
proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
October 19, 2010 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 22, 2013
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

18

See T.H., 59 ECAB 388 (2008); James Mack, 43 ECAB 321 (1991).

5


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

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

Docket No. 08-1279
Issued: November 3, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 26, 2008 appellant filed a timely appeal from a January 23, 2008 decision
denying benefits for a claimed lower back and left hip injury. Under 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 has established that he sustained an injury to his lower back
and left hip in the performance of duty on December 7, 2007.
FACTUAL HISTORY
Appellant, a 62-year-old baggage screener, filed a traumatic injury claim on
December 14, 2007, alleging that he injured his lower back and left hip while lifting luggage on
December 7, 2007. He submitted a December 8, 2007 report from a physician’s assistant, which
presented a history of injury and indicated that he had received physical therapy to treat his low
back pain.

On December 19, 2007 the Office advised appellant that it required additional factual and
medical evidence to determine whether he was eligible for compensation benefits. It asked him
to submit a comprehensive medical report from his treating physician describing his symptoms
and the medical reasons for his condition and an opinion as to whether his claimed condition was
causally related to his federal employment. The Office requested that appellant submit the
additional evidence within 30 days.
Appellant submitted a December 8, 2007 Form CA-16 report from Dr. Thomas D. Pipis,
a general practitioner, who diagnosed a strained lower back and strained left hip. Dr. Pipis stated
the history of injury, noted lower back pain to palpation and indicated with a checkmark that the
condition found was caused or aggravated by his employment activity.
Appellant submitted four reports from Dr. Mark A. Weiner, a general practitioner. On
December 8, 2007 Dr. Weiner indicated that appellant had lumbar pain and noted that he
developed pain in his lower back and left hip while lifting a bag weighing 40 pounds on
December 7, 2007. He stated that appellant’s pain was immediate, mild, moderate and aching
and was located in the left lower lumbar region. Dr. Weiner advised that appellant’s symptoms
were exacerbated by touch or movement. He related a history of work-related low back
pain/strain, which occurred one month previously.
In a December 14, 2007 report, Dr. Weiner stated:
“[Appellant] returns today for recheck of lumbar and left hip.
“[Appellant] feels the pattern of symptoms is slightly better. The pain is located
on left lumbosacral region and the left hip. [He] has been working within the duty
restrictions. [Appellant] has been taking … medications with only minimal
improvement. The pain is described as moderate. The symptoms are exacerbated
by activity or flexion.
“Of note [appellant] reports he has had left hip pain for about six months as was
recently diagnosed with osteoarthritis of the left hip. He reports that his arthritis
is so severe that he is potentially being referred for a total hip replacement.”
Dr. Weiner noted tenderness over the hip joint and tenderness of the left paraspinous
muscles at the L5 level. He diagnosed lumbosacral strain and severe degenerative joint disease
of the left hip and outlined restrictions of no lifting, pushing or pulling exceeding 20 pounds.
In a report dated December 21, 2007, Dr. Weiner stated:
“[Appellant] returns for a recheck for [his lumbosacral strain] injury.
“[Appellant] feels the pattern of symptoms is improving and feels better. He still
has some pain in his low back. [Appellant’s] hip pain is approaching his baseline
which is related to his nonoccupational osteoarthritis of the left hip. He reports he
plans to see his personal doctor in about two weeks to discuss treatment and
possible hip replacement.”

2

Dr. Weiner stated findings on examination and reiterated his prior diagnoses and work
restrictions. In a January 4, 2008 progress report, he stated:
“[Appellant] feels the pattern of symptoms is improving. He reports his back pain
has resolved. [Appellant] has lingering pain in both hips that is related to his
ongoing treatment for nonoccupational degenerative joint disease.... [He] cannot
identify any exacerbating factors. [Appellant] cannot identify any alleviating
factors.”
Dr. Weiner reiterated his previously stated findings and conclusions and released
appellant from treatment.
Appellant also submitted physical therapy reports dated December 18, 21 and 31, 2007
and January 4, 2008.
By decision dated January 23, 2008, the Office denied the claim, finding that appellant
failed to submit sufficient medical evidence in support of his claim that he sustained a lower
back and left hip injury in the performance of duty on December 7, 2007.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that 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.2 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.3
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.4 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 medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

John J. Carlone, 41 ECAB 354 (1989).

5

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

3

issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated 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
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.7
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition 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.8 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
In this case, appellant experienced the employment incident at the time, place and in the
manner alleged. However, the question of whether an employment incident caused a personal
injury can only be established by medical evidence.9 Appellant has not submitted rationalized,
probative medical evidence to establish that the employment incident on December 7, 2007
caused a personal injury and resultant disability.
Appellant submitted several reports from Dr. Weiner which stated findings on
examination, noted his complaints of lower back and left hip pain and diagnosed lumbosacral
strain and severe degenerative joint disease of the left hip. These reports, however, did not relate
these diagnoses to the December 7, 2004 incident at work. The weight of medical opinion is
determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated
conclusions.10 Dr. Weiner indicated that appellant sustained an injury to his lower back and left
hip on December 7, 2007 while lifting a heavy bag of luggage. He stated that appellant had
mild, moderate pain in the left lower lumbar region which was exacerbated by activity or flexion.
Dr. Weiner also noted that appellant had severe left hip pain for about six months and had been
diagnosed with osteoarthritis/severe degenerative joint disease of the left hip; however, he stated
that the origin of his left hip pain was nonoccupational. He outlined restrictions of no lifting,
pushing or pulling exceeding 20 pounds. Dr. Weiner noted improvement in appellant’s
symptoms and a decrease of pain, though he stated that appellant still had some pain in his lower
6

Id.

7

See Joe T. Williams, 44 ECAB 518, 521 (1993).

8

Id.

9

John J. Carlone, supra note 4.

10

See Anna C. Leanza, 48 ECAB 115 (1996).

4

back. In his January 4, 2008 report, he indicated that appellant believed his back pain had
resolved, though he had lingering pain in both hips. Dr. Weiner stated that appellant could not
identify any exacerbating factors and released him from treatment.
The record also contains a December 8, 2007 form report from Dr. Pipis, who noted that
appellant had sustained an injury on December 7, 2007 while lifting heavy luggage, indicated
that he had some pain at the L5 level at palpation and diagnosed a strained lower back and
strained left hip. While the reports from Drs. Weiner and Pipis presented diagnoses of
appellant’s conditions, they did not address whether these conditions were caused by the
December 7, 2007 incident.11 Appellant failed to provide a rationalized, probative medical
opinion relating his diagnosed conditions to any factors of his employment.12
The Office advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. Appellant failed to submit rationalized medical opinion
evidence which sufficiently describe or explain the medical process by which the December 7,
2007 work accident would have been competent to cause the claimed lower back/left hip injury.
Accordingly, appellant did not establish that he sustained a lower back/left hip injury in
the performance of duty. The Office properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a lower back and
left hip injury in the performance of duty.

11

Dr. Pipis’ form report that supported causal relationship with a checkmark is insufficient to establish the claim.
The Board has held that without further explanation or rationale, a checked box is not sufficient to establish
causation. Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).
12

The Board notes that the reports appellant submitted from a physicians’ assistant do not constitute medical
evidence pursuant to section 8101(2).

5

ORDER
IT IS HEREBY ORDERED THAT the January 23, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 3, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF THE NAVY, SPACE &
NAVAL WAR SYSTEMS COMMAND,
North Charleston, SC, Employer
__________________________________________

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

Docket No. 18-0496
Issued: January 9, 2019

Case Submitted on the Record

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

JURISDICTION
On January 9, 2018 appellant filed a timely appeal from a November 20, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit
decision was that of the Board dated July 27, 2015, which became final after 30 days and is not
subject to further review.1 As there was no merit decision by OWCP within 180 days of the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.3

1

20 C.F.R. § 501.6(d).

2

5 U.S.C. § 8101 et seq.

3

Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). By order dated October 11, 2018, the Board exercised its discretion and denied the request as appellant’s
arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the
record. Order Denying Request for Oral Argument, Docket No. 18-0496 (issued October 11, 2018).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts of the case as set forth in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On December 3, 2013 appellant, then a 43-year-old administrative specialist, filed an
occupational disease claim (Form CA-2) alleging that she sustained work-related emotional
conditions in the form of depression, anxiety disorder, panic attacks, and panic disorder. She
indicated that, on August 22, 2013, she first became aware of her claimed condition and that it was
caused or aggravated by her federal employment. Appellant stopped work on August 22, 2013.
In a December 5, 2013 statement, appellant indicated that on August 22, 2013 she informed
her supervisor of a decline in her health and ability to concentrate due to stress and pressure caused
by an upcoming move to a new workplace approximately eight or nine miles away from her thencurrent workplace. She advised that she stopped work beginning August 22, 2013 and felt that she
was treated harshly after she sent an e-mail to her supervisor on August 27, 2013 about possibly
returning to work. Appellant indicated that she believed that her supervisor was “continuing to
intimidate me” and “added insult to my injuries” when he responded, “Facilities has moved your
boxes and chair to [Building 198] and installed the keyboard tray as previously requested.” She
asserted that she was psychologically mistreated and abused “all because of the demands of a
move.” Appellant claimed that she had been called “a squatter” and noted, “I have been abused
psychologically and I have been lied to and lied on and my chain of command failed me.” She
also submitted medical evidence in support of her claim. Some of the reports indicated that
appellant suffered from depression, anxiety, and panic attacks.
By a February 12, 2014 development letter, OWCP requested that appellant submit
additional factual and medical evidence in support of her claim.
In response, appellant submitted a statement in which she indicated that between January
and August 2013 she experienced a lot of stress because her work team was transitioning from
contractors to government workers. She claimed that her work unit was not adequately supported
by management in the performance of her work during this transition period. Appellant asserted
that on June 24, 2013 she advised another supervisor, that she was not ready to move to Building
198. She claimed that this supervisor gave her assurances that she would not have to move until
she was ready to make such a move. Appellant indicated that she suffered a great deal of stress
because she was told by her supervisor in an August 22, 2013 e-mail that she would have to vacate
her workspace by the close of business on August 23, 2013.
Appellant submitted a number of documents, including copies of e-mails, concerning the
move of her and coworkers to Building 198. In several of the documents, she indicated that she
4

Docket No. 14-1936 (issued July 27, 2015).

2

wished to postpone her move to Building 198 until issues were resolved regarding her ability to
effectively and efficiently perform her job duties at the new location.5 In an August 12, 2013
e-mail, appellant’s supervisor advised that appellant “is currently squatting in Building 3112, cube
20.”6 Appellant also submitted additional medical evidence in support of her claim.
By decision dated March 19, 2014, OWCP denied appellant’s emotional condition claim,
finding that she failed to establish a compensable employment factor. In particular, it found that
her allegation regarding the employing establishment’s mishandling of her move to Building 198
in August 2013 did not constitute error and abuse. OWCP also determined that appellant failed to
establish that she was subjected to harassment.
On April 25, 2014 appellant requested reconsideration of OWCP’s March 19, 2014
decision. She submitted additional evidence including several statements in which she continued
to argue that the employing establishment mishandled her move to Building 198 in August 2013.
By decision dated May 7, 2014, OWCP denied appellant’s request for reconsideration of the merits
of her claim pursuant to 5 U.S.C. § 8128(a).
On June 24, 2014 appellant again requested reconsideration of her claim. She submitted
additional personal statements and documents regarding the move to Building 198 in August 2013.
On July 17, 2014 OWCP received an undated statement from appellant’s supervisor which
addressed her claimed employment factors. The supervisor noted that appellant rejected two
requests to move in June and July 2013 and that these were cancelled in an effort to accommodate
her. On August 2, 2013 it was discovered that her cubicle was assigned to two individuals and a
proper request to vacate was issued on August 12, 2013 after a new employee showed up to occupy
the same space. The supervisor indicated that appellant made little progress towards carrying out
the move and noted that he issued her a final request to move on August 22, 2013. The move did
not require special computer server or access requirements, and the “Carpathia” server was
available from the contractor’s site. The supervisor noted that the term “squatting” was
administrative in nature, and was used to denote a person working in a cubicle not officially
assigned to him or her or occupying a space marked vacant. The term was not used only for
appellant and was not meant to be an insult.
By decision dated August 29, 2014, OWCP denied modification of its March 19, 2014
decision. It again found that appellant had not established a compensable employment factor in
connection with her emotional condition claim.

5

Appellant asserted that Building 198 did not have adequate space for the multiple conferences she attended per
week and that she would not be able to print and transfer files in an efficient manner at Building 198.
6
In an August 22, 2013 e-mail to appellant, her supervisor noted, “You need to be moved by [close of business]
today then.”

3

Appellant subsequently appealed to the Board and, by decision dated July 27, 2015, the
Board affirmed OWCP’s August 29, 2014 decision denying her emotional condition claim, finding
that she had not established a compensable employment factor.7
On April 29, 2016 appellant again requested reconsideration of her claim and submitted
additional factual and medical evidence in support of her reconsideration request. By decision
dated May 18, 2016, OWCP denied appellant’s request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
In July 24 and August 22, 2016 letters received by OWCP on August 22, 2016, appellant
again requested reconsideration of her claim. In the July 24, 2016 letter, she requested that an
OWCP claims examiner “carefully review my last reconsideration.” In the August 22, 2016 letter,
appellant asserted that it was difficult for her to complete the forms for her claim due to memory
and concentration issues which were related to her work. She advised that she had received
psychiatric care on a regular basis since August 2013 and indicated that her attending physicians
had requested that OWCP carefully review her requests for reimbursement. Appellant noted that
some of her requests for reimbursement of co-payments were related to treatment for psychiatric
conditions.8 She submitted an OWCP document listing medical bills that had been denied for
reimbursement.
By decision dated November 20, 2017, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will 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 or her own motion or on application.
The Secretary, in accordance with the facts found on review, may end, decrease or increase the
compensation awarded or award compensation previously refused or discontinued.9
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) of the
implementing regulations provides that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.10 According to the Federal
(FECA) Procedure Manual, the one-year period for requesting reconsideration begins on the date of
the original OWCP decision, but the right to reconsideration within one year also accompanies any

7

Supra note 3.

8

Appellant also noted that she did not understand why OWCP denied her request for reimbursement of co-payments
and travel expenses which were made in connection with an OWCP claim other than the present claim.
9

5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.607(a).

4

subsequent merit decision on the issues, including any merit decision by the Board.11 Timeliness is
determined by the document receipt date, i.e., the “received date” in OWCP’s Integrated Federal
Employees’ Compensation System (iFECS).12 The Board has found that the imposition of the oneyear limitation does not constitute an abuse of the discretionary authority granted OWCP under
section 8128(a) of FECA.13
However, OWCP will reopen a claimant’s case for merit review, notwithstanding the oneyear filing limitation, if the claimant’s application for review demonstrates clear evidence of error
on the part of OWCP in its most recent merit decision. To demonstrate clear evidence of error, a
claimant must submit evidence relevant to the issue that was decided by OWCP. The evidence
must be positive, precise, and explicit and must be manifest on its face that OWCP committed an
error.14
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.15 The Board
notes that clear evidence of error is intended to represent a difficult standard.16 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.17 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion.18 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.19 The Board makes an independent determination as to whether a claimant has
demonstrated clear evidence of error on the part of OWCP.20
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. As noted above, the one-year period for requesting reconsideration
begins on the date of the original OWCP decision, but the right to reconsideration within one year
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (February 2016).

12

Id. at Chapter 2.1602.4b (February 2016).

13

See M.P., Docket No. 17-0367 (issued March 12, 2018); Thankamma Mathews, 44 ECAB 765 (1993).

14

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

15

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

16

R.K., Docket No. 16-0355 (issued June 27, 2016).

17

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

18

Id.

19

Id.

20

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, supra note 13.

5

also accompanies any subsequent merit decision on the issues, including any merit decision by the
Board.21 As appellant’s request for reconsideration was not received by OWCP until August 22,
2016, more than one year after issuance of the Board’s July 27, 2015 merit decision, it was
untimely filed. Consequently, she must demonstrate clear evidence of error by OWCP in its prior
merit decision.22
Appellant failed to demonstrate clear evidence of error on the part of OWCP in issuing its
prior merit decision dated August 29, 2014. In an August 22, 2017 letter, she asserted that it was
difficult for her to complete the forms for her claim due to memory and concentration issues which
were related to her work. Appellant advised that she had received psychiatric care on a regular
basis since August 2013 and indicated that her attending physicians had requested that OWCP
carefully review her requests for reimbursement. She noted that some of her requests for
reimbursement of co-payments were related to treatment for psychiatric conditions.
Appellant failed to submit the type of positive, precise, and explicit evidence which
manifests on its face that OWCP committed an error in its August 29, 2014 decision denying her
claim for an employment-related emotional condition.23 The evidence and argument submitted in
connection with her untimely reconsideration request did not raise a substantial question
concerning the correctness of OWCP’s prior decision.24 In essence, appellant simply expressed
her personal belief that she was due compensation for an employment-related emotional condition.
However, she failed to submit evidence or argument demonstrating that OWCP committed error
when it previously denied her emotional condition claim. In an August 22, 2017 letter, appellant
had noted that she did not understand why OWCP denied her request for reimbursement of copayments and travel expenses which were made in connection with an OWCP claim other than the
present claim. She failed to explain how her statements regarding a claim unrelated to the present
claim showed error in OWCP’s prior decisions regarding her claim for an employment-related
emotional condition. Appellant also submitted an OWCP document listing medical bills that had
been denied for reimbursement, but this document would in any way show that she sustained an
employment-related emotional condition. OWCP had denied appellant’s emotional condition
claim because she failed to establish compensable employment factors, but appellant’s argument
upon her untimely reconsideration request did not address this factual basis for the denial of her
claim.25
The Board finds that appellant’s application for review does not demonstrate on its face
that OWCP committed error when it found in its August 29, 2014 decision that she failed to meet
her burden of proof to establish an employment-related emotional condition.26 As noted, clear
21

See supra notes 8 and 9.

22

See supra note 10.

23

Id. See also M.M., Docket No. 18-0622 (issued October 2, 2018).

24

See supra notes 11 and 13.

25

See supra notes 18 through 20 regarding a claimant’s need to establish a compensable employment factor in
connection with a claim for an employment-related emotional condition.
26

See S.F., Docket No. 09-0270 (issued August 26, 2009).

6

evidence of error is intended to represent a difficult standard.27 Other than simply reiterating her
previous arguments, appellant has not met this standard in this case.
For these reasons, the evidence and argument submitted by appellant does not raise a
substantial question concerning the correctness of OWCP’s August 29, 2014 decision and OWCP
properly determined that appellant failed to demonstrate clear evidence of error in that decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 2019
Washington, DC

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

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

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

27

See supra note 12.

7