United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

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Appearances:
Timothy Quinn, Esq., for the appellant1
Office of Solicitor, for the Director

Docket Nos. 17-1894 & 18-1237
Issued: August 6, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 7, 2017 appellant, through counsel, filed a timely appeal from a June 2, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). On September 26,
2017 appellant appealed, through counsel, a September 8, 2017 merit decision of OWCP. Pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that the
acceptance of his claim should be expanded to include a consequential psychological condition;
and (2) whether he has met his burden of proof to establish modification of the January 28, 2015
loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
On April 20, 2011 appellant, then a 51-year-old hostler/tractor trailer operator, filed a
traumatic injury claim (Form CA-1) alleging that on April 18, 2011 he injured his lower back while
in the performance of duty. OWCP accepted the claim for displacement of the L5-S1 lumbar
intervertebral disc and lumbar sprain.3 Appellant stopped work on July 5, 2011 and did not return.
OWCP, on August 31, 2012, referred appellant to a vocational rehabilitation counselor for
vocational rehabilitation. The vocational rehabilitation counselor identified the positions of
receptionist and customer service representative as targeted positions.
In a January 13, 2014 work release, Dr. Robert I. Kawasaki, an attending Board-certified
physiatrist, opined that appellant had permanent restrictions against sitting more than 10 minutes
consecutively, standing or walking more than 10 minutes, pushing, pulling, or lifting over 10
pounds, and performing no repetitive bending, twisting, or turning.
OWCP, on April 4, 2014, referred appellant to Dr. John D. Douthit, Board-certified in
family practice, for a second opinion examination. In an April 30, 2014 report, Dr. Douthit found
that appellant was unable to resume his regular employment due to residuals of his L5-S1 disc
displacement and lumbar sprain, but could perform sedentary work changing positions every 30
minutes and lifting not more than 10 pounds.
On November 22, 2014 OWCP entered into a cooperative agreement with Connolly’s
Towing, Inc. (Connolly’s Towing) for assisted reemployment.4 Connolly’s Towing hired
appellant to work as a full-time impound clerk, a sedentary position, and OWCP agreed to pay 75
percent of his wages from November 24, 2014 through November 23, 2015. Appellant began
working as an impound clerk on November 24, 2014.
By decision dated January 28, 2015, OWCP reduced appellant’s wage-loss compensation
effective November 24, 2014 as his actual earnings as an impound clerk fairly and reasonably

3
By decision dated June 22, 2011, OWCP denied appellant’s claim as the medical evidence was insufficient to
show that he sustained a diagnosed condition causally related to the accepted April 18, 2011 work incident. On
October 6, 2011 it vacated its June 22, 2011 decision.
4

In a May 22, 2014 progress report, Dr. Kawasaki reviewed the findings by Dr. Douthit. He diagnosed an L5-S1
disc protrusion with left radiculopathy at S1 and progressive lower extremity weakness. Dr. Kawasaki opined that
appellant’s work restrictions had not changed from those set forth on January 13, 2014.

2

represented his wage-earning capacity. It applied the formula set forth in Albert C. Shadrick,5 and
found that he had a wage-earning capacity of 35 percent.
On February 18, 2015 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative regarding the January 28, 2015 decision. Counsel argued that
OWCP should not use a subsidized position for an LWEC determination. He also maintained that
a conflict in medical evidence existed regarding the extent of appellant’s work restrictions.
Connolly’s Towing terminated appellant’s employment on April 18, 2015. It indicated that
he lacked the ability to perform the “detail oriented job tasks” required or to satisfactorily resolve
conflicts with customers.
Dr. Kawasaki, in a report dated August 13, 2015, noted that appellant complained of low
back pain causing anxiety and difficulty with activities. He diagnosed a disc protrusion at L5-S1
with S1 radiculopathy on the left. Dr. Kawasaki related, “[Appellant] appears to have severe
decompensation from an emotional and psychological standpoint. He has high-level anxiety and
even some suicidal ideations. [Appellant] attributes his psychologic state to the injury….” He
referred appellant for a psychological evaluation and advised that he believed that it was credible
that his back pain and loss of function resulted in anxiety and depression and negatively impacted
his marriage. Dr. Kawasaki found no change regarding his work restrictions.
In a report dated September 4, 2015, Dr. Ron Carbaugh, a psychologist, noted that
subsequent to a 2011 employment injury appellant performed two jobs as required for workers’
compensation, including working for four months at an impound lot. He related, “[Appellant]
stated this was quite stressful, as generally the people coming for their cars were quite angry. It is
uncertain why he was not able to continue other than the fact that this was unpleasant.” He
discussed appellant’s complaints of pain in his low back and left buttock and left leg weakness.
Dr. Carbaugh noted that he had “ongoing pain complaints related to an incident that occurred at
work in 2011” with suicidal ideation. He diagnosed major depressive episode, persistent
depressive disorder, and somatic symptom disorder. Dr. Carbaugh recommended psychiatric
treatment.6
A hearing was held on September 17, 2015. Counsel, in a September 17, 2015 statement,
argued that a conflict existed between Dr. Kawasaki and Dr. Douthit necessitating referral to an
impartial medical examiner. He further asserted that the job was inconsistent with the restrictions

5

5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403 (c)-(e).

6

Dr. Carbaugh provided session reports describing his treatment of appellant in 2015 and 2017.

3

found by the second opinion examiner. Counsel also challenged OWCP’s use of a subsidized
position as the basis for the LWEC determination and maintained that the evidence of record
established that appellant had a consequential medical condition.7
On November 10, 2015 Dr. Carbaugh opined that appellant “developed a significant
depressive disorder secondary to his work injury, subsequent chronic pain, and the negative impact
on his vocation and his marital relationship.”8 He noted that he had no problems at his job prior
to the 2011 work injury.
By decision dated November 13, 2015, OWCP’s hearing representative affirmed the
January 28, 2015 decision. She found that the medical evidence of record did not establish a
material change in the nature and extent of appellant’s condition such that he could not perform
the identified position and that he had not shown that the original LWEC determination was
erroneous.
On December 2, 2015 counsel again requested modification of the LWEC determination.
He further asserted that appellant had developed a consequential emotional condition resulting in
disability.
In a December 2, 2015 evaluation, Dr. Gary S. Gutterman, a Board-certified psychiatrist,
obtained a history of appellant experiencing a low back injury at work on April 18, 2011 getting
out of a hostler. He diagnosed depressive disorder due to the work injury. Dr. Gutterman indicated
that marital problems culminating in divorce contributed to appellant’s depression.
On January 25, 2016 OWCP referred appellant to Dr. George Kalousek, a Board-certified
psychiatrist, for a second opinion examination regarding whether he sustained an emotional
condition caused or aggravated by his April 18, 2017 work injury. On January 28, 2016 it referred
him to Dr. Alfred C. Lotman, a Board-certified orthopedic surgeon, for a second opinion
examination regarding his current condition and the extent of any disability due to his accepted
work injury.
In a report dated February 17, 2016, Dr. Kalousek reviewed the history of injury and
medical reports of record. On examination he found that appellant was exaggerating his
symptoms. Dr. Kalousek further determined that he had major depressive disorder causally related
to his injury and aggravated by his divorce. He related, “In summary, I do believe that [appellant]
has major depression that is fairly significant and he also has a lot of pain and tremendous pain
magnification due to his somatic symptom disorder.” Dr. Kalousek advised that it appeared that
he first experienced depression after his April 18, 2011 work injury, but that “pinning it down is
extremely difficult because he is so vague about the first year following the accident.” He found
that appellant’s psychiatric condition due to his April 18, 2011 work injury materially worsened
7
By decision dated October 26, 2015, OWCP found that appellant received an overpayment of wage-loss
compensation in the amount of $856.99 from November 24 through December 13, 2014 because it paid him
compensation for total disability after he resumed work. It determined that he was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment. OWCP found that it would recover the overpayment
by deducting $100.00 from continuing compensation payments every 28 days.
8

Dr. Kawasaki continued to submit progress reports describing his treatment of appellant.

4

at the time of his divorce. Dr. Kalousek attributed his current psychiatric condition to depression
resulting from lack of function due to pain exacerbated by his divorce.
Dr. Lotman, on March 13, 2016, discussed appellant’s work history and the medical
evidence of record. On examination he found a positive straight leg raise on the left with muscle
weakness of the left lower extremity compared with the right side and some atrophy and loss of
sensation of the left leg. Dr. Lotman found significant pain behavior and tremors and
recommended a neurological evaluation. He diagnosed acute and chronic lumbosacral
sprain/strain that occurred when he was “entering the vehicle which requires described sharp
ducking of the head and twisting of the spine.” Dr. Lotman attributed appellant’s symptoms to
aging rather than the April 18, 2011 employment injury. He found that he could “perform the
duties of an impound clerk with certain restrictions” and that his condition had not materially
worsened subsequent to OWCP’s LWEC determination.
OWCP determined that a conflict existed between Dr. Lotman and Dr. Kawasaki,
regarding whether appellant had residuals of his work injury.9 It referred him to Dr. John T.
McBride, Jr., a Board-certified orthopedic surgeon, for an impartial medical examination. OWCP
requested that he address whether appellant could work either in his date-of-injury position or as
an impound clerk with Connolly’s Towing, and whether he sustained a material worsening of any
employment-related condition.
In a July 28, 2016 report, Dr. McBride obtained a history of appellant experiencing a
twisting injury causing low back pain on April 18, 2011. He reviewed the evidence of record. On
examination, Dr. McBride found weakness of the left lower extremity, decreased sensation,
atrophy, and left low back pain with straight leg raise. He diagnosed L4-5 and L5-S1 degenerative
disc disease and myofascial low back pain without radiculopathy. Dr. McBride related that
appellant “still has mechanical low back pain secondary to degenerative disc disease that was
permanently aggravated by his work driving the hostler.” He opined that appellant was unable to
perform his regular employment. Regarding the position of impound clerk, Dr. McBride found
that appellant could “perform this work on a very limited basis.…” (Emphasis in the original).
He related, “It is my opinion that [appellant] can sit for one hour and that would be the total amount
of time that he is able to work.” Dr. McBride noted that appellant is unable to do walking,
standing, reaching, or reaching above the shoulder secondary to: (1) need for a cane for
ambulation, and (2) his mechanical low back pain. He opined that appellant had significant
nonorganic pain. In a July 28, 2016 work restriction evaluation (OWCP-5c), Dr. McBride found
that appellant could work for one hour per day with breaks and drive a motor vehicle to and from
work for 15 minutes.
In an August 14, 2016 addendum, Dr. McBride opined that appellant’s condition had not
significantly changed since July 3, 2012. He found that he “should be able to work in [a] sedentary
position on a very limited basis” as set forth in the July 28, 2016 OWCP-5c form. Dr. McBride
indicated that further medical treatment would be of no benefit.

9
OWCP also listed appellant’s early attending physicians, Dr. Paul Ogden, a Board-certified internist, and Dr. Gary
Ghiselli, a Board-certified orthopedic surgeon, in its conflict statement.

5

By letter dated February 7, 2017, OWCP requested that appellant submit additional
information supporting his request for modification of its LWEC determination and for expanding
the acceptance of his claim to include a psychological condition.
In a report dated February 22, 2017, Dr. Carbaugh reviewed Dr. Kalousek’s findings and
noted that “his assessment appeared similar to that of this psychologist, some 17 months apart.”
He related, “In agreement with Dr. Kalousek, [appellant’s] depression is directly attributable to his
2011 work injury, subsequent treatment with modest benefit, financial difficulties, and ultimately
divorce from his wife.” Dr. Carbaugh diagnosed major depressive episode, persistent depressive
disorder, somatic symptom disorder, and to rule out a functional neurological disorder. He
reviewed OWCP’s finding that there was no rationalized evidence supporting an emotional
condition due to the work injury, noting that both he and OWCP’s referral physician attributed his
depression to the 2011 employment injury. Dr. Carbaugh recommended psychiatric treatment.
By decision dated June 2, 2017, OWCP denied modification of its January 28, 2017 LWEC
determination. It found that Dr. Lotman’s opinion established that appellant could work in the
impound clerk position with certain restrictions. OWCP further found that the opinions of
Dr. Kalousek and Dr. Carbaugh were insufficient to support a consequential emotional condition
as they failed to adequately address the causal relationship between the claimed psychological
condition and the accepted work injury.
By decision dated September 8, 2017, OWCP denied appellant’s request to expand the
acceptance of his claim to include a consequential psychiatric condition. It found that the reports
from Dr. Kawasaki and Dr. Carbaugh were insufficient to establish causation between the
April 18, 2011 work injury and the alleged emotional condition.
On appeal counsel contends that the acceptance of the claim should be expanded to include
an employment-related psychological condition, noting that Dr. Kalousek, OWCP’s referral
physician, and Dr. Carbaugh attributed his major depressive disorder to his work injury. He asserts
that OWCP failed to consider the effects of the consequential emotional condition in denying
modification of the LWEC. Counsel also asserts that the subsidized position was not suitable,
noting that OWCP did not consider the opinion of Dr. McBride, who found that appellant could
only work one hour per day with breaks and drive a motor vehicle to and from work for 15 minutes.
LEGAL PRECEDENT -- ISSUE 1
The general rule respecting consequential injuries is that, when the primary injury is shown
to have arisen out of and in the course of employment, every natural consequence that flows from
the injury is deemed to arise out of the employment, unless it is the result of an independent
intervening cause, which is attributable to the employee’s own intentional conduct.10 The
subsequent injury is compensable if it is the direct and natural result of a compensable primary
injury. With respect to consequential injuries, the Board has held that, where an injury is sustained
as a consequence of an impairment residual to an employment injury, the new or second injury,

10

See Mary Poller, 55 ECAB 483 (2004).

6

even though nonemployment related, is deemed, because of the chain of causation, to arise out of
and in the course of employment and is compensable.11
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. The opinion must be one
of reasonable medical certainty and must be supported by medical rationale explaining the nature
of the relationship of the diagnosed condition and the specific employment factors or employment
injury.12
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter.13 While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.14 The nonadversarial policy of proceedings under FECA is reflected in OWCP’s
regulations at section 10.121.15 Once OWCP undertakes to develop the medical evidence further,
it has the responsibility to do so in the proper manner.16
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision regarding whether appellant
developed a consequential psychiatric condition due to his accepted April 18, 2011 employment
injury.
On August 13, 2015 Dr. Kawasaki, appellant’s attending physician, noted that appellant
was decompensating emotionally and found that it was likely that the pain in his back and left
lower extremity due to his work injury caused significant depression and anxiety. He referred him
for a psychological evaluation.
Dr. Carbaugh, on September 4, 2015, diagnosed a major depressive episode, persistent
depressive disorder, and somatic symptom disorder. He noted that appellant worked for four
months at an impound lot and that it was unclear why he was unable to continue except that he
disliked the demands of dealing with customers. On November 10, 2015 Dr. Carbaugh attributed
his depressive disorder to his employment injury and resulting chronic pain, which he found caused
stress in his marital relationship and vocation.

11

See S.S., 59 ECAB 315 (2008); Debra L. Dillworth, 57 ECAB 516 (2006).

12

Charles W. Downey, 54 ECAB 421 (2003).

13

See V.H., Docket No. 17-0439 (issued December 13, 2017); Vanessa Young, 55 ECAB 575 (2004).

14

See Richard E. Simpson, 55 ECAB 490 (2004).

15

20 C.F.R. § 10.121.

16

See E.W., Docket No. 17-0707 (issued September 18, 2017); Melvin James, 55 ECAB 406 (2004).

7

In a December 2, 2015 report, Dr. Gutterman opined that appellant’s April 18, 2011 work
injury and subsequent chronic pain caused a depressive disorder. He noted that his divorce
aggravated his depression.
OWCP referred appellant to Dr. Kalousek for a second opinion examination regarding
whether he sustained a consequential emotional condition. In a February 17, 2016 report,
Dr. Kalousek found that he experienced major depressive disorder as a result of his employment
injury that was aggravated by his divorce. He further found that appellant had symptom
magnification as a result of a somatic symptom disorder. Dr. Kalousek advised that it was difficult
to determine when the depression began due to his difficulty obtaining a specific history of the
year after the work injury. He concluded that appellant’s depression resulted both from his
limitations in function due to pain and his divorce. Dr. Carbaugh reviewed Dr. Kalousek’s opinion
on February 22, 2017 and indicated that they both attributed the depression to the April 18, 2011
work injury.
As noted, proceedings under FECA are not adversarial in nature and OWCP is not a
disinterested arbiter.17 While the claimant has the burden to establish an emotional condition as a
consequence of his accepted injury, it shares responsibility to see that justice is done.18 Once
OWCP undertakes to develop the medical evidence further, it has the responsibility to do so in a
manner that will resolve the relevant issues in the case.19
In its September 8, 2017 decision, OWCP denied expansion of the acceptance of
appellant’s claim to include a consequential emotional condition as it found that neither
Dr. Carbaugh nor Dr. Kawasaki explained how his accepted work injury resulted in his
psychological condition. It did not, however, discuss the report from Dr. Kalousek, its referral
physician, on the issue of whether appellant sustained a consequential emotional condition.
OWCP, in its June 2, 2017 decision denying modification of the LWEC determination, found that
Dr. Kalousek did not provide an opinion regarding the date of onset of the diagnosed psychological
condition and attributed his condition to nonwork-related incidents, including his divorce.
However, as OWCP undertook development of the record by seeking a second opinion, it should
have sought clarification from Dr. Kalousek prior to finding his report insufficient to demonstrate
a consequential emotional condition.20 Additionally, the Board notes that the reports from
Dr. Kawasaki, Dr. Carbaugh, and Dr. Kalousek, while insufficiently rationalized to meet his
burden of proof to establish a consequential emotional condition, are sufficient to raise an
uncontroverted inference between the claimed emotional condition and the April 18, 2011 work
injury.21 Accordingly, the Board will remand the case for OWCP to further consider the medical
evidence. After such further development as deemed necessary, it shall issue a de novo decision.

17

See K.G., Docket No. 17-0821 (issued May 9, 2018).

18

See C.N., Docket No. 17-1751 (issued May 3, 2018).

19

See R.A., Docket No. 14-1918 (issued March 3, 2015); see also Richard F. Williams, 55 ECAB 343 (2004).

20

See A.J., Docket No. 09-0951 (issued December 23, 2009); D.O., Docket No. 12-1889 (issued January 23, 2013).

21

See M.M., Docket No. 13-1017 (issued September 13, 2013).

8

LEGAL PRECEDENT -- ISSUE 2
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.22 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.23
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless it meets the requirements for modification.24 OWCP
procedures contain provisions regarding the modification of a formal loss of wage-earning
capacity.25 The relevant part provides that a formal loss of wage-earning capacity will be modified
when: (1) the original rating was in error; (2) the claimant’s medical condition has materially
changed; or (3) the claimant has been vocationally rehabilitated.26
FECA provides that OWCP shall determine and make findings of fact in making an award
for or against payment of compensation after considering the claim presented by the employee and
after completing such investigation as OWCP considers necessary with respect to the claim.27
Since the Board’s jurisdiction of a case is limited to reviewing that evidence which is before
OWCP at the time of its final decision,28 it is necessary that OWCP review all evidence submitted
by a claimant and received by OWCP prior to issuance of its final decision. As the Board’s
decisions are final as to the subject matter appealed,29 it is crucial that all evidence relevant to that
subject matter which was properly submitted to OWCP prior to the time of issuance of its final
decision be addressed by OWCP.30
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained lumbar sprain and displacement of a lumbar
intervertebral disc at L5-S1 causally related to an April 18, 2011 work injury. Appellant’s
attending physician, Dr. Kawasaki, and Dr. Douthit, an OWCP referral physician, determined that
he could resume work with limitations. On November 24, 2014 appellant began working in
assisted reemployment as an impound clerk with a private employer, Connolly’s Towing. In a
22

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

23

Sharon C. Clement, 55 ECAB 552 (2004).

24

Sue A. Sedgwick, 45 ECAB 211 (1993).

25

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
26

Id. at § 2.1501.3(a).

27

5 U.S.C. § 8124(a)(2).

28

20 C.F.R. § 501.2(c).

29

Id. at § 501.6(d).

30

See E.P., Docket No. 14-0278 (issued February 26, 2014).

9

January 28, 2015 decision, OWCP reduced his wage-loss compensation effective November 24,
2014 after finding that his actual earnings as an impound clerk fairly and reasonably represented
his wage-earning capacity.31 Connolly’s Towing terminated appellant’s employment on April 18,
2015, providing as a reason that he was unable to resolve conflicts with customers or perform
duties that were detail oriented.
Appellant, through counsel, requested modification of the LWEC determination. OWCP
referred him to Dr. Lotman to determine whether he had any further residuals of his work injury
and, if so, the extent of disability. On March 13, 2016 Dr. Lotman diagnosed acute and chronic
lumbosacral strain/sprain due to his work injury. He found that appellant’s current symptoms
resulted from aging, that he could work as an impound clerk with restrictions, and that his condition
had not materially worsened subsequent to OWCP’s LWEC determination.
OWCP properly found that a conflict in the medical opinion evidence arose between
Dr. Kawasaki and Dr. Lotman regarding whether appellant had permanent restrictions due to his
work injury. It referred him to Dr. McBride for an impartial medical examination. OWCP
requested that Dr. McBride address whether appellant could work as an impound clerk and
whether he experienced a material worsening of his work-related condition.
On July 28, 2016 Dr. McBride diagnosed degenerative disc disease at L4-5 and L5-S1 and
myofascial low back pain due to degenerative disc disease permanently aggravated by
employment. He opined that appellant could work as an impound clerk for one hour per day. In
a July 28, 2016 work capacity evaluation, Dr. McBride found that appellant could work for one
hour per day with breaks. In an August 14, 2016 addendum, he advised that his condition had not
significantly changed since July 3, 2012 and that he could work within the restrictions set forth in
the July 28, 2016 work capacity evaluation.
In its June 2, 2017 denial of modification of the LWEC determination, OWCP did not
consider Dr. McBride’s opinion, but instead found that the opinion of Dr. Lotman constituted the
weight of the evidence and established that appellant had not established a material change in his
employment-related condition. It sought on opinion from Dr. McBride regarding whether
appellant had the capacity to work in the position of impound clerk, the basis for the LWEC
determination. As noted, OWCP shall determine and make findings of fact in making an award
for against payment of compensation after considering the claim presented by the employee and
after completing such investigation as OWCP considers necessary with respect to the claim.32 As
the Board’s decisions are final as to the subject matter appealed, it is crucial that all evidence
relevant to that subject matter received by OWCP prior to the issuance of its final decision be
addressed by OWCP.33 OWCP failed to consider Dr. McBride’s report in denying modification
of its LWEC determination, and thus the Board will remand the case to OWCP for consideration
of all the evidence. On remand OWCP should determine whether the medical evidence establishes
31

If the employee returned to work outside federal employment, and is reemployed through vocational
rehabilitation, OWCP may generally presume that the injured employee’s actual earnings fairly and reasonably
represented his wage-earning capacity. See supra note 25 at § 2.1501.3(a).
32

See supra note 27; see also I.L., Docket No. 17-0684 (issued July 18, 2017).

33

See supra note 30.

10

that the January 28, 2015 LWEC determination should be modified based on appellant’s condition
due to either his accepted employment injury or the development of an emotional condition
causally related to the accepted employment injury. Following such further development as
deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether the
acceptance of appellant’s claim should be expanded to include a consequential emotional condition
or whether he has established modification of the January 28, 2015 LWEC determination.
ORDER
IT IS HEREBY ORDERED THAT the September 8 and June 2, 2017 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: August 6, 2018
Washington, DC

Christopher J. Godfrey, 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

11


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

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

Docket No. 19-0509
Issued: August 23, 2019

Case Submitted on the Record

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

JURISDICTION
On January 7, 2019 appellant filed a timely appeal from a December 4, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $8,471.78 for the period August 7 through October 13, 2018; and (2) whether OWCP

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the December 4, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

properly found appellant at fault in the creation of the overpayment, thereby precluding waiver of
recovery of the overpayment.
FACTUAL HISTORY
On August 22, 2017 appellant, then a 54-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 11, 2017 she sustained finger, knee, and back injuries
when she tripped and fell while in the performance of duty. She did not initially stop work. On
September 19, 2017 OWCP accepted the claim for fracture of unspecified phalanx, unspecified
sprain of left thumb, fracture of unspecified carpal bone in left wrist, right knee abrasion, and strain
of muscle, fascia, and tendon of lower back. On July 17, 2018 it authorized carpal tunnel surgery.
On July 23, 2018 appellant underwent left carpal tunnel surgery. In a work capacity
evaluation (Form OWCP-5c) dated August 6, 2018, her attending physician, Dr. Richard Harrison,
a Board-certified orthopedic surgeon, indicated that she could not return to her job without
restrictions. Appellant returned to full-time modified work on August 7, 2018.
On August 13, 2018 appellant submitted a claim for compensation (Form CA-7) for leave
without pay (LWOP) for total disability for the period July 23 through August 3, 2018. Beginning
August 30, 2018 she submitted Form CA-7s for intermittent LWOP for the period August 4
through October 26, 2018, with supporting time analysis forms (Form CA-7a) listing dates and
hours of work claimed for medical appointments and therapy.
In a letter dated September 12, 2018, OWCP outlined appellant’s entitlement to
compensation benefits. An attached Form EN1049 instructed that, if appellant worked during any
portion of the covered period, and compensation payments were received via either paper check
or for payments sent by electronic funds transfer (EFT), she was to return the payment to OWCP
even if she had already advised OWCP that she was working. It noted that she was expected to
monitor her EFT deposits carefully, at least every two weeks.
By letter dated October 31, 2018, OWCP advised appellant of its preliminary
determination that she had received an $8,471.78 overpayment of compensation because she
received total disability compensation for the period August 7 through October 13, 2018 after she
had returned to full-time modified work. It also made a preliminary finding that she was at fault
in the creation of the overpayment because she had accepted payments that she knew, or reasonably
should have known, to be incorrect. OWCP noted that during the period July 24 through
August 18, 2018 appellant received a net amount of $3,250.82, which equated to $1,500.38 for the
period August 7 through 18, 2018; during the period August 19 through September 15, 2018
appellant received a net amount of $3,485.70; and during the period September 16 through
October 13, 2018 appellant again received a net amount of $3,485.70. Therefore, because
appellant had returned to full-time modified-duty employment she was overpaid in the amount of
$8,471.78. OWCP advised appellant that she could submit evidence challenging the fact, amount,
or finding of fault, and request waiver of recovery of the overpayment. Additionally, it informed
her that, within 30 days, she could request a telephone conference, a final decision based on the
written evidence, or a prerecoupment hearing. OWCP requested that she complete the
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documentation. It afforded appellant 30 days for a response.

2

On December 4, 2018 OWCP received appellant’s Form OWCP-20. Appellant indicated
that her monthly income was $1,779.48, and listed her monthly expenses including $1,200.00 for
her mortgage, $350.00 for food, $20.00 for clothing, $150.00 for utilities, $300.00 for
miscellaneous expenses, and $985.00 for two creditors resulting in total monthly expenses of
$3,005.00. She reported a checking account balance of $156.31 and a savings account balance of
$252.91, for a total of $409.22 in assets. Appellant asserted that she submitted correct Form CA-7s
for intermittent LWOP for the periods of overpayment, and therefore she was not at fault in the
creation of the overpayment. She noted that she thought the excess payments were “catch-up”
payments and requested waiver of recovery of the overpayment as repayment would result in great
financial hardship.
By decision dated December 4, 2018, OWCP finalized the overpayment determination,
finding that an overpayment of compensation in the amount of $8,471.78 occurred for the period
August 7 through October 13, 2018. It found that appellant was at fault in the creation of the
overpayment as she had accepted compensation payments she knew were incorrect. OWCP
directed her to repay the overpayment through monthly payments of $100.00.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.3 Section 8129(a) of FECA provides, in pertinent part, that when
an overpayment has been made to an individual under this subchapter because of an error of fact
or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.4
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.5 OWCP’s procedures provide that an overpayment of compensation is created when a
claimant returns to work, but continues to receive wage-loss compensation.6
ANALYSIS -- ISSUE 1
The Board finds that this case in not in posture for decision.
The evidence of record established that appellant returned to full-time modified work for
the employing establishment on August 7, 2018, but continued to receive full wage-loss
3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

5

Id. at § 8116(a).

6
J.L., id.; K.E., id.; B.H., Docket No. 09-0292 (issued September 1, 2009); Federal (FECA) Procedure Manual,
Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).

3

compensation through October 13, 2018. As noted above, a claimant is not entitled to receive
compensation for total disability during a period in which he or she had actual earnings. Therefore,
an overpayment of compensation was created in this case.7
With regard to the amount of overpayment OWCP found an overpayment of compensation
in the amount of $8,471.78 for the period August 7 through October 13, 2018.
The Board finds however, with regard to the amount of the overpayment, that the record
reflects that appellant had filed several claims for compensation (Form CA-7) and accompanying
time analysis forms (Form CA-7a) following her return to work on August 7, 2018. The record
does not reflect that OWCP has developed the issue of appellant’s entitlement to intermittent wageloss compensation after her return to work on August 7, 2018 by requesting information from the
employing establishment regarding appellant’s time lost from work as set forth on her claims for
compensation prior to the calculation of the overpayment. OWCP’s October 31, 2018 preliminary
notice and December 4, 2018 final overpayment decision did not address appellant’s claimed or
actual wage-loss compensation during the period in question. Due to these omissions, the Board
is unable to adequately review this aspect of the case to determine the amount of overpayment of
compensation, if any. A claimant is entitled to an overpayment decision that clearly explains how
the amount was calculated.8 The Board finds that the overpayment decision in this case does not
provide such an explanation. Therefore, the amount of overpayment has not been established.
On remand OWCP shall determine whether appellant was entitled to additional wage-loss
compensation during the period August 7 to October 13, 2018. It shall then determine the exact
amount of the overpayment in compensation which occurred during the relevant period. OWCP
should thereafter issue a new preliminary overpayment determination, with an appropriate
overpayment action request form, an overpayment recovery questionnaire, and instructions for her
to provide supporting financial information. After it has further developed the case record, a
de novo decision shall be issued.9
CONCLUSION
The Board finds that OWCP correctly determined the fact of the overpayment for the
period August 7 through October 13, 2018. The Board further finds, however, that the amount of
the overpayment is not in posture for a decision.10

7

See supra note 6.

8

C.G., Docket No. 18-1655 (issued June 14, 2019).

9

Docket No. 13-1619 (issued February 24, 2014).

10

In light of the Board’s disposition as to Issue 1, Issue 2 is rendered moot.

4

ORDER
IT IS HEREBY ORDERED THAT the December 4, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further action consistent with this decision of the Board.
Issued: August 23, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Paducah, KY Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2509
Issued: July 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 24, 2008 appellant, through his attorney, filed a timely appeal of the
Office of Workers’ Compensation Programs’ merit decision dated September 10, 2008. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 20 percent impairment of his left lower
extremity for which he received a schedule award.
FACTUAL HISTORY
On November 27, 2006 appellant, then a 38-year-old city carrier, filed a traumatic injury
claim alleging that he injured his left knee when a dog attacked him causing him to trip over a
retaining wall and fall approximately two feet. The Office accepted his claim for medial
meniscus tear and sprain of the cruciate ligament in the left knee.
Burton N. Stodghill, M.D., performed a left knee arthroscopy on February 12, 2007 and
reconstructed the anterior cruciate ligament and performed a partial medial meniscectomy.

By decision dated December 18, 2007, the Office found that appellant’s earnings as a
modified carrier fairly and reasonably represented his wage-earning capacity and reduced his
compensation benefits to zero. The hearing representative reversed the Office’s December 18,
2007 wage-earning capacity determination by decision dated March 14, 2008. In a decision
dated July 11, 2008, the Office reduced appellant’s compensation benefits to zero as he was
currently working as a modified city carrier and that this position fairly and reasonably
represented his wage-earning capacity.1
Appellant requested a schedule award on January 18, 2008. On November 21, 2007
Dr. Stodghill reported that appellant had 22 degrees of extension lag and 125 degrees of flexion.
He stated that appellant may improve slightly. In a note dated January 17, 2008, Dr. Stodghill
opined that appellant had reached maximum medical improvement on November 21, 2007. He
noted that in accordance with the A.M.A., Guides a partial medial meniscectomy was 2 percent
impairment, mild laxity of the anterior cruciate ligament was 7 percent impairment and that 22
degrees of extension lag was a flexion contracture of greater than 20 degrees or 35 percent lower
extremity impairment for a total impairment rating of 39 percent. The Office medical adviser
reviewed the medical records on January 25, 2008 and stated that appellant had two percent
impairment due to partial medial meniscectomy and seven percent impairment due to anterior
cruciate laxity. He further stated, “[I]t is stated that claimant has 22 degrees extension lag which
[attending physician] equates as a contracture. A flexion contracture results in 20 percent
[permanent impairment] of extremity…. Please request [a] clarification…..”
The Office requested additional information from Dr. Stodghill by letter dated
January 29, 2008. Dr. Stodghill responded on March 12, 2008 and stated that “an extension lag
would be the exact same as a flexion contracture.” He opined that his prior rating was correct.
The Office medical adviser reviewed this report on June 17, 2008 and stated that an extension
lag was “frequently the sign of inadequate physical therapy….” He recommended a second
opinion evaluation.
The Office referred appellant for a second opinion evaluation on July 8, 2008 with
Dr. John Lamb, a Board-certified orthopedic surgeon. In a report dated July 30, 2008, Dr. Lamb
related appellant’s history of injury and medical history. On physical examination he found that
appellant lacked 10 degrees of full extension even with moderate pressure and that appellant had
flexion to 117 degrees. Dr. Lamb noted that appellant did not have significant ligament laxity
but complained of pain with motion. He noted one-half inch atrophy of the left thigh. Dr. Lamb
found that appellant had 2 percent impairment of the lower extremity due to partial medial
meniscectomy, 20 percent impairment due to limitation of extension, and 3 to 8 percent
impairment of the lower extremity due to mild thigh atrophy.
The Office medical adviser reviewed this report on August 12, 2008 and stated that, in
accordance with the A.M.A., Guides, diagnosis-based estimates and loss of range of motion
could not be combined and appellant was only entitled to 20 percent impairment of the left lower
extremity due to loss of range of motion. He further noted that loss of range of motion and
atrophy impairments could not be combined in accordance with the A.M.A., Guides.
1

Appellant, through his attorney, did not request that the Board review this decision on appeal. Therefore the
Board will not adjudicate the issue of appellant’s wage-earning capacity in this decision.

2

By decision dated September 10, 2008, the Office granted appellant a schedule award for
20 percent impairment of his left lower extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.4 Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.5
The Act provides that, if there is a 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.6 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician of an Office medical adviser or consultant, the Office shall
appoint a third physician to make an examination. This is called a referee examination and the
Office will select a physician who is qualified in the appropriate specialty and who has had no
prior connection with the case.7
ANALYSIS
Appellant sustained a left knee injury as a result of his accepted employment injury. His
attending physician, Dr. Stodghill, a Board-certified orthopedic surgeon, performed a partial
medial meniscectomy and anterior cruciate ligament repair. Dr. Stodghill found that appellant
reached maximum medical improvement on November 21, 2007 and reported findings of
2 percent impairment due to partial medial meniscectomy, 7 percent impairment due to mild
laxity of the anterior cruciate ligament and flexion contracture of 22 degrees or 35 percent
impairment for a total impairment rating of 39 percent. The Office referred appellant for a
second opinion evaluation with Dr. Lamb, a Board-certified orthopedic surgeon, who reported 10
degrees of flexion contracture, no significant ligament laxity and mild thigh atrophy. Dr. Lamb
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
6

5 U.S.C. §§ 8101-8193, 8123.

7

20 C.F.R. § 10.321.

3

concluded that appellant had 2 percent impairment due to partial medial meniscectomy, 20
percent impairment due to loss of extension and 3 to 8 percent impairment due to mild thigh
atrophy.
There is disagreement between Dr. Stodghill, appellant’s attending physician and the
Office referral physician, Dr. Lamb, regarding the nature and extent of appellant’s physical
impairments. Dr. Stodghill found 22 degrees of flexion contracture while Dr. Lamb found only
10 degrees. He found mild anterior cruciate ligament laxity warranting seven percent
impairment while Dr. Lamb found no ratable impairment due to ligament laxity. Due to the
conflict of medical opinion evidence regarding the findings on physical examination, the Office
must refer appellant to an appropriate Board-certified physician along with a statement of
accepted facts and a list of specific questions to resolve the conflict and provide clear physical
findings regarding appellant’s left lower extremity which can be correlated with the A.M.A.,
Guides.
CONCLUSION
The Board finds that this case is not in posture for a decision due to an unresolved
conflict of medical opinion evidence regarding the nature and extent of appellant’s left lower
extremity permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the September 10, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: July 6, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Forest Park, IL,
Employer
__________________________________________

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Appearances:
Belinda Jackson, for the appellant
Office of Solicitor, for the Director

Docket No. 12-115
Issued: May 18, 2012

Case Submitted on the Record

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

JURISDICTION
On November 28, 2011 appellant, through her representative, filed a timely appeal from a
September 28, 2011 nonmerit decision and a June 29, 2011 merit decision of the Office of
Workers’ Compensation Programs’ (OWCP).
Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the cases.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional medical evidence to the record with her request for hearing
before the Branch of Hearings and Review. As appellant’s request for hearing was denied on procedural grounds
this evidence has not been reviewed by OWCP. The Board’s jurisdiction is limited to review of evidence which was
before OWCP at the time of its final decision on the claim. See 20 C.F.R. § 501.2(c)(1).

ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a left shoulder injury causally related to factors of her federal employment; and
(2) whether OWCP properly denied her request for an oral hearing.
FACTUAL HISTORY
On April 14, 2011 appellant, then a 46-year-old mail handler, filed an occupational
disease claim alleging that she sustained a left shoulder injury as a result of her employment.
She first attributed the cause of her medical condition to her employment on April 11, 2011.
In support of her claim, appellant submitted an emergency room report from Loyola
Medical, dated April 11, 2011 by Dr. Louis J. Sharp, Board-certified in emergency medicine,
who diagnosed unspecified neuralgia, neuritis and radiculitis. Dr. Sharp concluded that she
could return to work on April 12, 2011 with the restriction that she not perform any lifting over
five pounds.
Dr. Linda Chen, a family practice osteopathic physician, reported on April 14, 2011 that
appellant could resume light-duty work on April 18, 2011. Appellant should not perform any
lifting above 15 pounds until she had undergone physical therapy.
In an April 29, 2011 letter, OWCP advised appellant of the deficiencies in her claim. It
requested that she explain how her left shoulder condition occurred and submit medical evidence
that contained a diagnosis of her condition with medical rationale explaining how the diagnosed
condition was causally related to her employment activities.
Appellant thereafter submitted a supplemental statement dated May 31, 2011. She
described her various work assignments during her years of employment since 1998, specifically
noting heavy lifting and sorting requirements, including manually unloading over the road
containers from trucks, as well as wire cages and all-purpose containers.
In response to the letter, appellant submitted an April 19, 2011 note from Tonya Reddy, a
nurse practitioner, which provided follow-up care instructions.
In a June 29, 2011 decision, OWCP denied appellant’s claim on the grounds that she had
not established that her left shoulder condition was causally related to her employment.
Appellant requested an oral hearing on August 10, 2011. She submitted additional
medical evidence from the Rush Oak Hospital dated April 14 to 18, 2011.
By decision dated September 28, 2011, OWCP denied appellant’s request for oral
hearing. It found that the request was not timely filed. Appellant was informed that her case had
been considered in relation to the issues involved and was further denied as the issues could be
addressed by requesting reconsideration before OWCP and submitting evidence not previously
considered.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden to establish the essential
elements of her claim including the fact that the individual was an employee of the United States
within the meaning of FECA, that the claim was timely filed, that an injury was sustained in the
performance of duty as alleged and that any disability or medical condition for which
compensation is claimed is causally related to the employment injury.4
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5
Section 8101(2) of FECA provides that the term physician includes surgeons, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within
the scope of their practice as defined by State law. As nurses, physician’s assistants, physical
and occupational therapists are not physicians as defined by FECA, their opinions regarding
diagnosis and causal relationship are of no probative medical value.6
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained a left shoulder condition as a result of heavy lifting
and loading work duties she performed at the employing establishment since 1998. The Board
notes that she was diagnosed with neuralgia, neuritis and radiculitis by Dr. Sharp. Appellant has
submitted insufficient medical evidence to establish that the diagnosed conditions were caused
by her employment duties.
Dr. Sharp’s April 11, 2011 medical report provided a diagnosis of appellant’s condition;
however, he provided no history of her employment duties, no history of injury and no medical
explanation as to the cause of the diagnosed conditions. As such this report is of diminished
probative value to establish causal relationship between appellant’s employment duties and her
left shoulder condition.7
Dr. Chen reported on April 14, 2011 that appellant could resume light-duty work on
April 18, 2011 and that she should not perform any lifting above 15 pounds until she had
3

5 U.S.C. §§ 8101-8193.

4

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

See Roy L. Humphrey, supra note 5.

7

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value).

3

undergone physical therapy. In addition to lacking any specific medical diagnosis. Dr. Chen did
not provide a history of appellant’s employment duties, history of injury or an opinion
addressing the cause of her current condition. As such it is of limited probative value.
OWCP informed appellant that she needed to submit a medical report that included
history of injury, diagnosis of her medical condition and medical rationale explaining the
relationship of that condition to her employment. Appellant submitted the April 19, 2011 note
regarding follow up care from Tonya Reddy, a nurse practitioner. This note contained none of
the necessary evidence and was signed by a family nurse practitioner. As noted, nurses are not
physicians and their opinions regarding diagnosis and causal relationship are of no probative
medical value.
The Board finds that appellant has not submitted any probative medical report which
contains a recitation of her employment duties, and which explains how physiologically she
sustained the diagnosed conditions as a result of those duties.
Appellant has failed to meet her burden of proof to establish that her neuralgia, neuritis
and radiculitis were caused by her federal employment duties.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. §
8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that, before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.8 Section 10.616(a) of the federal regulations
implementing this section of FECA provides that a claimant, injured on or after July 4, 1966,
who has received a final adverse decision by OWCP may obtain a hearing by writing to the
address specified in the decision. The hearing request must be sent within 30 days (as
determined by the postmark or other carrier’s date marking) of the date of the decision for which
a hearing is sought.9
OWCP, in its broad discretionary authority in the administration of FECA, has the power
to hold hearings in certain circumstances where no legal provision was made for such hearings,
and OWCP must exercise this discretionary authority in deciding whether to grant a hearing.
OWCP’s procedures, which require OWCP to exercise its discretion to grant or deny a hearing
when a hearing request is untimely or made after reconsideration under section 8128(a), are a
proper interpretation of FECA and Board precedent.10
8

5 U.S.C. § 8124(b)(1).

9

N.M., 59 ECAB 511 (2008).

10

Sandra F. Powell, 45 ECAB 877 (1994).

4

ANALYSIS -- ISSUE 2
Appellant requested an oral hearing before OWCP’s Branch of Hearings and Review on
August 10, 2011. As the request was submitted more than 30 days following issuance of the
June 29, 2011 decision, it was untimely filed.
OWCP considered the matter in relation to the issue involved and found that additional
evidence could be submitted with a request for reconsideration. It has administrative discretion
in determining whether a hearing should be granted even though the request is untimely. An
abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.11 Because reconsideration exists as an alternative appeal right to address
the issues raised by OWCP’s June 29, 2011 decision, the Board finds that OWCP did not abuse
its discretion in denying appellant’s untimely request for hearing.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that her
diagnosed conditions were causally related to factors of her federal employment, and that OWCP
properly denied her request for hearing as untimely.

11

Samuel R. Johnson, 51 ECAB 612 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the September 28 and June 29, 2011 decisions of
the Office of Workers’ Compensation Program are affirmed.
Issued: May 18, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kearny, NJ, Employer
__________________________________________

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

Docket No. 12-151
Issued: June 4, 2012

Case Submitted on the Record

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

JURISDICTION
On October 31, 2011 appellant, through his attorney, filed a timely appeal from the
Office of Workers’ Compensation Programs’ (OWCP) July 28, 2011 nonmerit decision denying
his request for merit review. 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 nonmerit decision. The
last merit decision of OWCP was issued on April 12, 2010. The Board lacks jurisdiction to
review the merits of this claim.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

For final adverse decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to the
Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19, 2008, a
claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

On appeal, counsel argues that the medical evidence is sufficient to establish appellant’s
occupational disease claim or, in the alternative, to require further development of the medical
evidence.
FACTUAL HISTORY
On December 19, 2001 appellant, then a 34-year-old mail handler, filed an occupational
disease claim (File No. xxxxxx719) alleging a left foot condition due to factors of his federal
employment. In a decision dated April 15, 2002, OWCP denied his claim. By decision dated
September 30, 2003, the Board affirmed OWCP’s April 15, 2002 decision.3
This appeal involves appellant’s October 11, 2002 occupational disease claim (File No.
xxxxxx150) in which he alleged that he developed bilateral fourth metatarsal fractures and
bilateral heel spurs causally related to lifting thousands of pounds of mail on hard flooring. In a
decision dated July 21, 2008, OWCP denied the claim. On February 13, 2009 an OWCP hearing
representative affirmed the denial of his claim due to insufficient medical evidence to establish a
causal relationship between his claimed foot condition and the work factors. In an order dated
December 23, 2009, the Board set aside July 21, 2008 and February 13, 2009 decisions and
remanded the case for consolidation with File No. xxxxxx719.4 On remand, the cases were
consolidated, with File No. xxxxxx150 serving as the master file.
In a December 5, 2008 report, Dr. John Moglia, appellant’s treating podiatrist, stated that
he originally saw the claimant on July 12, 2002 for two fractures of the right foot and three
fractures of the left foot. He stated that the stress fracture of the left fourth metatarsal was of
seven years’ duration. Dr. Moglia opined that “this was an injury sustained in the course of
[appellant’s] job as a mail handler due to the requirements of long hours standing, repetitive
bending, carrying heavy loads, and having to push heavy containers with his feet.”
In a December 8, 2008 report, Dr. Joseph Corona, a Board-certified orthopedic surgeon,
indicated that the claimant “developed a stress fracture of the left fourth metatarsal due to the
repetitive bending, standing and walking nature of his job in the postal service. He opined that
the stress fracture was “due to the very nature of this gentleman’s work with the postal service
over the years.”
By decision dated April 12, 2010, OWCP again denied appellant’s claim on the grounds
that he had failed to provide medical evidence sufficient to establish the required causal
relationship between his claimed foot condition and established factors of employment.
On April 19, 2010 appellant, through his representative, requested an oral hearing.
Appellant submitted a July 21, 2010 work history describing his employment duties from 1987
through 2002.

3

Docket No. 03-1810 (issued September 30, 2003).

4

Docket No. 09-1382 (issued December 23, 2009).

2

At the July 20, 2010 hearing, appellant testified that he developed bilateral foot
conditions as a result of 20 years of employment activities. He stated that OWCP had accepted a
prior claim for a fifth metatarsal fracture in 1987 or 1988.5 Appellant described the job duties
that placed stress on his feet.
In a letter dated August 19, 2010, appellant’s representative indicated that she was
enclosing an August 16, 2010 report from Dr. Corona and a July 27, 2010 report from
Dr. Moglia.6
In a July 27, 2010 report, Dr. Moglia stated that appellant had injured his right foot while
working as a mail handler in 2002. He provided examination findings and diagnosed nonhealing
fourth metatarsal fracture and plantar fasciitis with bone spurs, bilateral heels. Noting that
metatarsal fractures are conditions that occur in those people who work on their feet bending,
lifting and carrying heavy loads, Dr. Moglia opined that appellant’s condition was directly
related to his job working as a mail handler.
By decision dated October 4, 2010, an OWCP hearing representative affirmed the
April 12, 2010 decision finding that appellant had not provided factual or medical evidence
sufficient to establish fact of injury. He stated that appellant had failed to submit medical
evidence that establishes the existence of the claimed conditions of bilateral metatarsal fractures
and bilateral heel spurs or that included a medical explanation of how and why the claimed
bilateral foot problems were related to the claimed work factors rather than off-the-job injuries.
On July 5, 2011 appellant, through his representative, requested reconsideration. Counsel
noted that OWCP’s hearing representative had apparently not reviewed Dr. Corona’s August 16,
2010 report, which he was resubmitting in support of the reconsideration request.
Appellant submitted an August 16, 2010 report from Dr. Corona, who stated that
appellant had been under his care for more than a decade. Dr. Corona diagnosed symptomatic
left plantar heel spur syndrome, stress fractures of the right fourth and fifth metatarsals and a
stress fracture of the left fourth metatarsal, which had regrettably gone on to nonunion despite
prolonged care including the use of an electrical bone growth stimulator. He described
appellant’s duties as a mail handler since 1987, stating that his work responsibilities involved
spending one day a week driving a stand-up Jeep and several days a week standing and culling
mail onto a belt. Dr. Corona understood that the surface upon which appellant stood was a hard,
asphalt planked floor with worn-out anti-fatigue mats. The problem was aggravated between
December 2001 and 2002, at which time this gentleman had the opportunity to sit down one day
a week, but for administrative reasons, this opportunity was denied him.

5

Appellant’s representative provided a November 28, 1987 date of injury for File No. xxxxxx062, which
reportedly was accepted for right fifth metatarsal fracture. IFECS, however, has no record of the claim.
6

The record did not reflect receipt of an August 16, 2010 report from Dr. Corona prior to OWCP’s October 5,
2010 decision.

3

Dr. Corona opined to a reasonable degree of medical certainty that appellant’s stress
fractures and heel spur were causally related to the described work activities. He explained that
stress fractures were induced by repetitive micro-bending and straightening of the bone that
would come about with walking, standing and running. Dr. Corona noted that appellant’s work
exposure with respect to his feet “certainly vastly exceeded that which would be expected on a
normal day-to-day basis.” He reported that bone density studies were performed, which
reflected that appellant’s skeleton had normal mineralization.
On October 11, 2010 Dr. Corona diagnosed un-united stress fracture; left fourth
metatarsal shaft; bilateral carpal tunnel syndrome; and right ulnar nerve neuritis at the elbow. He
stated that the diagnosed conditions had been corroborated with radiographic and
electrophysiologic studies and opined that they were causally related to appellant’s work as a
postal employee. Dr. Corona indicated that these stress overuse conditions were chronic in
nature. He noted that appellant had been treated nonoperatively for the left foot fracture
nonunion with casts and an electrical bone growth stimulator.
By decision dated July 28, 2011, OWCP denied appellant’s request for reconsideration on
the grounds that the evidence submitted did not warrant merit review. The claims examiner
stated that appellant did not present any arguments or demonstrate that OWCP acted erroneously
in applying or interpreting a point of law or advance any point of law or fact that was not
previously considered, nor did appellant submit any new, relevant medical evidence with his
request. Specifically, the claims examiner found that the medical evidence received did not
provide a history of work factors and off the job factors and injuries or a medical explanation of
how and why the claimed bilateral foot problems were related to the claimed work factors.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.8 To be entitled to a merit review of OWCP’s decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.9 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.10
7

Section 8128(a) of FECA provides that the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.
8

20 C.F.R. § 10.606(b)(2). See Susan A. Filkins, 57 ECAB 630 (2006); J.M., Docket No. 09-218 (issued
July 24, 2009).
9

Id. at § 10.607(a). See Robert G. Burns, 57 ECAB 657 (2006); S.J., Docket No. 08-2048 (issued July 9, 2009).

10

Id. at § 10.608(b).
March 16, 2009).

See Tina M. Parrelli-Ball, 57 ECAB 598 (2006); Y.S., Docket No. 08-440 (issued

4

ANALYSIS
The only decision before the Board is the July 28, 2011 nonmerit decision denying
appellant’s request for reconsideration of OWCP’s October 5, 2011 merit decision denying his
occupational disease claim. The underlying issue is whether he provided sufficient medical
evidence to establish a causal relationship between his claimed foot condition and factors of his
employment. The Board finds that appellant did not allege or show that OWCP erroneously
applied or interpreted a specific point of law or advance a relevant new argument not previously
considered. Consequently, appellant was not entitled to a review of the merits based on the first
and second above noted requirements under 20 C.F.R. § 10.606(b)(2). He did, however, submit
new and relevant medical evidence. The Board finds, therefore, that appellant’s request for
reconsideration satisfies the third standard for obtaining a merit review of his claim.11
In support of his reconsideration request, appellant submitted reports dated August 16
and October 11, 2010 from Dr. Corona, both of which bore directly on the issue at hand. In his
August 16, 2010 narrative report, Dr. Corona diagnosed symptomatic left plantar heel spur
syndrome, stress fractures of the right fourth and fifth metatarsals and a stress fracture of the left
fourth metatarsal and opined to a reasonable degree of medical certainty that appellant’s
conditions were causally related to his work activities. He described appellant’s duties as a mail
handler since 1987, stating that his work responsibilities involved spending one day a week
driving a stand-up Jeep and several days a week standing and culling mail onto a belt.
Dr. Corona understood that the surface upon which appellant stood was a hard, asphalt planked
floor with worn-out anti-fatigue mats. He explained that stress fractures were induced by
repetitive micro-bending and straightening of the bone that would come about with walking,
standing and running. Dr. Corona noted that appellant’s work exposure with respect to his feet
“certainly vastly exceeded that which would be expected on a normal day-to-day basis.” He
reported that bone density studies were performed, which reflected that appellant’s skeleton had
normal mineralization. On October 11, 2010 Dr. Corona stated that the diagnosed conditions
had been corroborated with radiographic and electrophysiologic studies and opined that they
were causally related to appellant’s work as a postal employee. He indicated that these stress
overuse conditions were chronic in nature and noted that appellant had been treated
nonoperatively for the left foot fracture nonunion with casts and an electrical bone growth
stimulator.
Because this medical evidence is new and relevant to the underlying issue, the Board
finds that appellant’s request for reconsideration satisfies the third standard for obtaining a merit
review of his claim.12 OWCP found that Dr. Corona’s reports were insufficient to warrant a
merit review because he did not provide a history of work factors and off-the-job factors and
injuries or a medical explanation of how or why the claimed bilateral foot problems were related
to the claimed work factors. The Board finds, however, that Dr. Corona’s reports are new and
relevant regarding appellant’s work duties with an explanation regarding the causal relationship
between those activities and the diagnosed conditions. It is not necessary or appropriate for
11

V.B., 58 ECAB 725 (2007).

12

Id.

5

OWCP to weigh the probative value of medical evidence when deciding whether the evidence
submitted in support of a reconsideration request is sufficient to warrant further merit review. To
require a merit review, the evidence need only be new and relevant.13 If OWCP should
determine that the new evidence submitted lacks substantive probative value, it may deny
modification of the prior decision, but only after the case has been reviewed on the merits.14 The
Board will set aside OWCP’s decision denying reconsideration and remand the case for an
appropriate final decision on the merits.
On appeal, appellant set forth arguments regarding the merits of his claim. As noted, the
Board does not have jurisdiction over the merits of this claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the July 28, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
action consistent with this decision.
Issued: June 4, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

14

Donald T. Pippin, 54 ECAB 631 (2003).

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Corpus Christie, TX, Employer
)
___________________________________________ )
N.M., Appellant

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

Docket No. 08-105
Issued: August 4, 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 October 12, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated March 23, 2007, which found that he did not sustain an
injury in the performance of duty. He also timely appealed a July 12, 2007 nonmerit decision,
which denied his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2),
the Board has jurisdiction over these issues.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty on January 4, 2007; and (2) whether the
Office properly refused to reopen appellant’s case for further review of the merits of his claim
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 2, 2007 appellant, then a 66-year-old clerk, filed a traumatic injury claim
alleging that on January 4, 2007 he was removing parcels from a dumper with a metal extension

arm and experienced a “jolt” in his right arm in the performance of duty. The employing
establishment controverted the claim and alleged that he was not at work on the date of the
incident as he had called in sick. It noted that appellant stopped work on December 31, 2006 and
returned to work on January 10, 2007. The employing establishment stated that it first had notice
of the claimed injury on February 2, 2007.
By letter dated February 7, 2007, the Office advised appellant that additional factual and
medical evidence was needed. In particular, it advised him that the employing establishment
indicated that he was on sick leave on the date of the injury and requested his comments. The
Office allotted appellant 30 days to submit the requested information.
The Office received duty status reports dated February 2 and 19, 2007 from Dr. Guy
Racette, Board-certified in family medicine, who noted an injury date of January 4, 2007 and
related that appellant had complaints about his arm, which was injured on January 4, 2007.
Dr. Guy diagnosed a right shoulder strain, shoulder pain and recommended that appellant return
to work with restrictions. The Office also received a February 8, 2007 right shoulder x-ray, read
by Dr. Kenneth D. Matejka, a Board-certified diagnostic radiologist, which revealed
degenerative changes and no evidence of fracture. A February 12, 2007 magnetic resonance
imaging (MRI) scan read by Dr. Ning Huang, a Board-certified diagnostic radiologist, revealed
mild impingement of the right acromioclavicular joint spur, a large ganglion cyst adjacent to the
coracoid process and anterior to subscapularis tendon/muscle, separate from the subcoracoid
recess and a degenerative labrum.
In a February 8, 2007 statement, Robert McGuire, a supervisor, controverted appellant’s
claim for a January 4, 2007 injury. He noted that appellant did not immediately report the
accident when it occurred. Mr. McGuire stated that, when appellant called in, he initially
claimed that it was due to an emergency and not an on-the-job injury. He alleged that appellant
was “falsifying the accident to cover missed days from work.” Mr. McGuire advised that
appellant had a history of attendance issues and did not report the accident until he received a
return to work letter for his continued and extended absences. He further noted that there were
no witnesses. Additionally, Mr. McGuire stated that the only possible injury date could be
January 11, 2007 as a manager, Julie Cervantes, recalled speaking with appellant about job
placement. He noted that, between January 11, 2007 and the date that the accident was reported,
appellant called in to the automated employee resource management system 14 times and
requested emergency annual leave for a personal emergency. Mr. McGuire indicated the first
question asked, “Is this due to an on[-]the[-]job injury?” He indicated that appellant would have
to answer “no” to this question each of the 14 times he called for the system to give him the
choice of emergency annual leave. Additionally, Mr. McGuire noted that if appellant answered
“yes” he would have been instructed to contact his supervisor. He noted that appellant was
questioned as to why he did not report his absences as being due to a job injury and he
responded, “he should have and he made a mistake.” Mr. McGuire indicated that appellant was
questioned as to why he did not seek medical treatment until February 2, 2007 and appellant
responded that “he thought he could resolve the issue with heat packs and rest.” He stated that
appellant was released to restricted duty on February 2, 2007, he called in sick on February 3,
2007 and reported to limited duty on February 4, 2007, but did work thereafter.

2

In a March 4, 2007 statement, appellant indicated that the date of injury was actually
January 11, 2007. He stated that he was out of work the first week of January 2007 due to a
“personal emergency” and was not out sick. Appellant noted that the injury occurred in the
priority section of the employing establishment. He explained that parcels were dumped on a
conveyor belt and placed in a dumper. Appellant alleged that sometimes parcels were positioned
such that they would not fall properly and an 8 to 10 foot poker was utilized to position the
parcel to fall freely. He alleged that he was using the metal poker to reach into the container
when he felt a jolt in his right arm and shoulder. Appellant also alleged that he did not have pain
until the evening of January 11, 2007. He explained that he did not immediately advise anyone
because he did not initially feel any pain. Regarding his delay in getting medical treatment,
appellant explained that he had a military physician but that, after reaching age 65, he could only
use the military physician on a space available basis until he enrolled in Medicare. He noted that
he was in “limbo” because his insurance would not accept him since he had an on-the-job injury.
The Office received additional treatment notes. It included reports dated March 5, 2007
from Dr. Bill Cullen, Board-certified in family medicine, who advised that the date of injury was
January 4, 2007 and diagnosed right shoulder strain and pain. The Office also included a
March 5, 2007 report from Dr. Racette, who advised that appellant could return to work on
March 5, 2007 with restrictions.
By decision dated March 23, 2007, the Office denied appellant’s claim on the grounds
that he did not establish an injury as alleged. It found that the evidence did not demonstrate that
a specific event, incident or exposure occurred at the time, place and in the manner alleged.
In March 19, 2007 report, Dr. Racette advised that the date of injury was January 4, 2007
and released appellant to work on March 19, 2007 with restrictions. A March 27, 2007 report
from a physician’s assistant noted a January 4, 2007 injury and a May 3, 2007 letter from
appellant to the employing establishment which requested permission to photograph the area
where he was injured. The Office also received copies of previously submitted reports.
In reports dated May 21 and June 21, 2007, Dr. Richard Carlson, a Board-certified
anesthesiologist, noted seeing appellant for injuries sustained at work on January 11, 2007. He
advised that appellant had pain complaints in the right shoulder and arm. Dr. Carlson indicated
that appellant was injured while handling parcels in the employing establishment. He related
that appellant was removing parcels from a container inside an electric conveyor belt, when he
began having pain in the right shoulder and arm. Dr. Carlson indicated that appellant related that
“A very large and heavy parcel was positioned in such a way that it would not clear the safety
bar and was blocking the other parcels from falling freely so I had to use the metal poker to reach
into the container and manipulate parcels so that they would fall. As I extended the poker into
the container I felt a jolt in my right arm and shoulder.” Dr. Carlson examined the right
shoulder, noting decreased grip strength and abduction to 90 degrees. He reviewed the
diagnostic reports and diagnosed right shoulder and arm pain. Dr. Carlson opined that appellant
should undergo acromioplasty and Mumford procedure of the right shoulder.
By letter dated June 19, 2007, appellant requested reconsideration. He alleged that he
requested permission to obtain photographs of the area where he working, but had not received a

3

response. Appellant also alleged that he had explained to the best of his ability how his injury
had occurred.
By decision dated July 12, 2007, the Office denied appellant’s request for reconsideration
without a review of the merits on the grounds that his request neither raised substantial legal
questions nor included new and relevant evidence. It determined that, because his letter neither
raised substantive legal questions nor included new and relevant evidence, it was insufficient to
warrant review of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act2 and that an injury was
sustained in the performance of duty.3 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.5 In some traumatic injury cases, this component can
be established by an employee’s uncontroverted statement on the Form CA-1.6 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.7
An alleged work incident 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
statement must be consistent with the surrounding facts and circumstances and his subsequent
course of action.8 A consistent history of the injury as reported on medical reports to the
claimant’s supervisor and on the notice of injury can also be evidence of the occurrence of the
1

5 U.S.C. §§ 8101-8193.

2

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

3

James E. Chadden Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
6

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

7

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

8

Rex A. Lenk, 35 ECAB 253, 255 (1983).

4

incident.9 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 sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.10 Although 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,11 an
employee has not met this burden when there are inconsistencies in the evidence such as to cast
serious doubt upon the validity of the claim.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established fact of injury due to inconsistencies in
the evidence that cast serious doubt as to whether the specific traumatic incident occurred at the
time, place and in the manner alleged.
Appellant alleged on his February 2, 2007 claim form that, on January 4, 2007, he
sustained an injury to his right arm in the performance of duty. However, the employing
establishment controverted the claim due to factual inconsistencies. Appellant was not at work
from December 21, 2006 until January 10, 2007. Additionally, Mr. McGuire contended that
appellant was “falsifying the accident to cover missed days from work.” Appellant had a history
of attendance issues and did not report the accident until he received a return to work letter for
his continued and extended absences. Mr. McGuire explained that, between January 11, 2007
and the date that the accident was reported, February 2, 2007, appellant called into the automated
system 14 times and requested emergency annual leave for a personal emergency and would
have been prompted on the automated system to answer the question. “Is this due to an
on[-]the[-]job injury?” Mr. McGuire noted that appellant would have had to answer “no” to this
question each of the 14 times that he called in order for the system to give him the choice of
emergency annual leave. Appellant had many opportunities to have notified his supervisor of the
injury. He contended in response that “he should have [reported it] and he made a mistake.”
Appellant also indicated that the date of injury was actually January 11, 2007. He stated that he
was unsure of the exact date of injury but his February 2, 2007 claim form clearly indicated
January 4, 2007 as the date of injury. Appellant only changed the date of the claimed injury after
Mr. McGuire controverted the claim.
Medical reports from Dr. Racette dated February 2 and 19, 2007 and the reports dated
March 5, 2007 from Dr. Cullen, do not clarify these inconsistencies as they list the date of injury
as January 4, 2007. After the Office asked that appellant provide additional factual evidence, he
did not fully explain these inconsistencies. Although appellant explained that he did not have
access to prompt medical care, he did acknowledge having considerable pain on January 11,
2007, after the claimed employment incident, yet he did not provide a reasonable explanation as
9

Id. at 255, 256.

10

Dorothy M. Kelsey, 32 ECAB 998 (1981).

11

Id.

12

Joseph A. Fournier, 35 ECAB 1175 (1984).

5

to why he did not give any notice of a possible employment injury from January 11 until
February 2, 2007, even though he was asked each day, when he called to request leave, whether
he had sustained an employment injury.
For these reasons, the Board finds that there are such inconsistencies in the evidence such
as to cast serious doubt upon the validity of the claim. Given the inconsistencies in the evidence
regarding the date of injury and the delay in reporting the incident, finds that there is insufficient
evidence to establish that he sustained a traumatic incident in the performance of duty as
alleged.13 As he has not established an employment incident alleged to have caused an injury, it
is not necessary to consider whether the medical evidence establishes that an employment
incident caused an injury.14
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,15 the Office may reopen a case for review on the merits
in accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that: “(1) shows that [the Office] erroneously applied or interpreted a specific
point of law; (2) advances a relevant legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent new evidence not previously considered by [the Office].”16
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.17
ANALYSIS -- ISSUE 2
In his June 19, 2007 request for reconsideration, appellant stated that he had requested
permission from the employing establishment to photograph the area where he alleged that he
was injured. He also submitted a copy of the May 3, 2007 letter requesting permission. The
Board notes that this would not be relevant in this case as the request for permission to
photograph the site of the alleged employment incident does not address the factual
inconsistencies that were the basis of the denial of the claim; the failure of appellant to explain
the inconsistencies regarding why he changed the date of the claimed injury and why he did not
sooner provide notice of the claimed injury to the employing establishment.
13

See Mary Joan Coppolino, 43 ECAB 988 (1992); also see Matthew B. Copeland, 6 ECAB 398, 399 (1953)
(where the Board found that discrepancies and inconsistencies in appellant’s statements describing the injury created
serious doubts that the injury was sustained in the performance of duty).
14

See Bonnie A. Contreras, 57 ECAB 364 (2006).

15

5 U.S.C. § 8128(a).

16

20 C.F.R. § 10.606(b).

17

Id. at § 10.608(b).

6

The Office received copies of previously submitted reports. The submission of evidence
or argument which repeats or duplicates that already in the case record does not constitute a basis
for reopening a case.18
Appellant submitted new medical evidence from Dr. Carlson dated May 21 and June 21,
2007 in which he related that appellant reported having an injury at work on January 11, 2007.
Dr. Carlson also noted that appellant reported removing parcels from a container when he began
having pain in the right shoulder and arm. He noted a diagnosis and recommended treatment.
However, Dr. Carlson appears to relate the history as provided by appellant, which has already
been noted in the record. He did not offer any new opinion to explain the inconsistencies in the
record related to fact of injury. The submission of evidence that does not address the particular
issue involved does not constitute a basis for reopening a case.19 Likewise, in a March 19, 2007
report, Dr. Racette recommended a return to work with restrictions. However, he did not address
the factual inconsistencies related to the fact of injury in this case and this report does not
constitute a basis for reopening the case. Likewise, the March 27, 2007 report from a
physician’s assistant is not relevant as a physician’s assistant does not meet the definition of a
physician under the statute.20
Appellant, therefore, did not show that the Office erroneously applied or interpreted a
specific point of law or advance a relevant legal argument not previously considered by the
Office. Further, he failed to submit relevant new and pertinent evidence not previously
considered by the Office. As appellant did not meet any of the necessary regulatory
requirements, he was not entitled to a merit review.21
As appellant is not entitled to a review of the merits of his claim pursuant to section
10.606(b)(2), the Board finds that the Office properly refused to reopen his case for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty. It further finds that the Office properly refused to
reopen his claim for merit review under 5 U.S.C. § 8128(a).

18

Edward W. Malaniak, 51 ECAB 279 (2000).

19

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Robert P.
Mitchell, 52 ECAB 116 (2000).
20

5 U.S.C. 8101(2). See e.g., Roy L. Humphrey, 57 ECAB 238, 242 (2005).

21

See James E. Norris, 52 ECAB 93 (2000).

7

ORDER
IT IS HEREBY ORDERED THAT the July 12 and March 23, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 4, 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

8