United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Arlington, VA, Employer
__________________________________________

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

Docket No. 10-1657
Issued: March 15, 2011

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 June 8, 2010 appellant filed a timely appeal from a February 17, 2010 merit decision
of the Office of Workers’ Compensation Programs denying his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury while in the performance of duty
causally related to his federal employment.
FACTUAL HISTORY
On January 6, 2010 appellant, then a 59-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained bilateral carpal tunnel syndrome (CTS),
elbow ligament damage and aggravated degenerative back disease due to factors of his federal
employment. He noted that his right-sided CTS had been adjudicated under Office claim File
No. xxxxxx314 and his left hand and elbow revealed similar conditions which required surgery.
Appellant attributed his back condition to an increase in volume of large parcels for holiday

delivery. He first became aware of his conditions and that it was caused or aggravated by his
employment on December 28, 2009, the day he stopped work.
A January 5, 2010 return to work note from a nurse practitioner diagnosed sciatica and
degenerative disc disease. Appellant was found totally incapacitated until January 6, 2010.
In a November 10, 2009 report, Dr. Alex Croog, a Board-certified orthopedic surgeon,
reported that appellant returned after an electrodiagnostic study. Appellant stated that he was
still having symptoms on the right hand and noted symptoms on the left which were aggravated
while “creating mail during his job.” Dr. Croog noted findings on physical examination and the
results of diagnostic testing. An assessment of right CTS, left cubital tunnel syndrome and left
CTS were provided. Dr. Croog noted that appellant would undergo surgery for right carpal
tunnel release and left cubital tunnel nerve decompression at the same time.
By letter dated January 14, 2010, the Office advised appellant of the deficiencies in his
claim and requested additional factual and medical information, including a comprehensive
medial report from his physician which contained an opinion, with medical rationale, on the
cause of his condition.
In a January 13, 2010 report, Dr. Croog advised that appellant had right CTS, left cubital
tunnel syndrome and left CTS which were confirmed with electrodiagnostic study. He stated
that appellant required four weeks off from work for surgery.
In reports dated December 25, 2009 and January 13, 2010, Dr. Ronald C. Childs, a
Board-certified orthopedic surgeon, diagnosed sciatica and degenerative disc disease of the
lumbar spine. He indicated that appellant was totally disabled as of December 28, 2009.
Dr. Childs stated that appellant would be unable to work until he received two epidural
injections. A copy of a December 31, 2009 magnetic resonance imaging (MRI) scan of the
lumbar spine was also submitted.
By decision dated February 17, 2010, the Office denied appellant’s claim finding that he
did not establish that he sustained an injury causally related to his accepted employment duties.
LEGAL PRECEDENT
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 filed within the applicable time limitation, that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential

1

5 U.S.C. §§ 8101-8193.

2

Anthony P. Silva, 55 ECAB 179 (2003).

2

elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.3
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.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.5
ANALYSIS
The issue is whether appellant established that he sustained the claimed arm and back
conditions as a result of his accepted employment duties. The Board finds that he did not
provide sufficient medical evidence to meet his burden of proof.
In November 10, 2009 and January 13, 2010 reports, Dr. Croog advised that physical
examination and diagnostic testing revealed findings of right CTS, left cubital tunnel syndrome
and left CTS. He did not discuss the cause of appellant’s conditions or address the relationship
by which these conditions were due to his employment duties. These reports are of diminished
probative value and insufficient to meet appellant’s burden of proof.6 While Dr. Croog reported
appellant’s belief that his left hand symptoms were aggravated by his job duties, this does not
constitute a rationalized medical opinion by Dr. Croog. Appellant’s belief is insufficient to
establish causation.7 Dr. Croog did not explain how any specific medical condition was caused
or aggravated by particular employment factors.

3

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

4

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

5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

See J.F., 61 ECAB ___ (Docket No. 09-1061, issued November 17, 2009) (medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
7

Appellant’s belief that the employment caused or aggravated his condition is insufficient to establish causal
relationship. See Joseph T. Gulla, 36 ECAB 516 (1985).

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Dr. Childs diagnosed sciatica and degenerative disc disease of the lumbar spine. He
noted that appellant was totally disabled due to the conditions; however, Dr. Childs did not
provide any opinion on causation. This reduces the probative value of his report.8
The remainder of the medical evidence, including an MRI scan of the lumbar spine, fail
to address causal relationship between any diagnosed condition and appellant’s employment
duties. Appellant also submitted evidence from a nurse practitioner. However, this evidence is
of no probative medical value as a nurse practitioner is not a physician as defined under the Act.9
The Board finds that the medical evidence of record provides a sufficiently rationalized
medical opinion explaining the relationship between appellant’s diagnosed medical conditions
and his employment duties. Therefore, appellant did not meet his burden of proof.
CONCLUSION
The Board finds that appellant did not establish that he sustained an injury in the
performance of duty causally related to factors of his federal employment.

8

See supra note 6.

9

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

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 17, 2010 is affirmed.
Issued: March 15, 2011
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Austin, TX,
Employer
__________________________________________

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Appearances:
Capp P. Taylor, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1396
Issued: January 23, 2020

Case Submitted on the Record

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

JURISDICTION
On July 9, 2018 appellant, through his representative, filed a timely appeal from a June 7,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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.

3
The Board notes that following the June 7, 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.

ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of total
disability commencing January 1, 2013, causally related to his accepted July 5, 2008 employment
injury.
FACTUAL HISTORY
On July 5, 2008 appellant, then a 37-year-old postal equipment mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on that date he sustained a concussion as a result of a loose
vacuum hose striking him on the back of the head while in the performance of duty. OWCP
initially accepted the claim for concussion with loss of consciousness, neck sprain, and lumbar
sprain. Appellant stopped work on July 2, 2009 and OWCP placed him on the supplemental rolls
effective that date. On December 10, 2009 he underwent OWCP-approved surgery including L4-5
total disc replacement, application of an intervertebral device, anterior discectomy and
decompression, and anterior instrumentation. OWCP placed appellant on the periodic rolls
effective December 20, 2009. Appellant returned to work on April 28, 2010.
On June 6, 2011 appellant accepted a job offer with the employing establishment as a
modified mail processing equipment mechanic. The physical requirements of the modified
assignment included: intermittent fine manipulation up to eight hours per day; sitting at a computer
up to eight hours per day; lifting trays of mail weighing less than 10 pounds up to seven hours per
day; and walking to view monitors up to two hours per day. Appellant stopped work on or about
January 1, 2013.
On October 1, 2013 appellant filed a claim for compensation (Form CA-7) for temporary
total disability for the period January 1 through October 1, 2013.
Appellant was separated from employment with the employing establishment due to
disability effective August 9, 2014.
By decision dated June 9, 2015, OWCP denied appellant’s claim for compensation on and
after January 1, 2013. It found that he had not submitted sufficient medical evidence, consisting
of a detailed report from his treating physician providing a well-reasoned opinion, explaining why
he was temporarily totally disabled due to his work-related injury.
On May 9, 2017 appellant filed a notice of recurrence (Form CA-2a) commencing
October 27, 2012.
By decision dated August 30, 2017, OWCP accepted appellant’s claim for recurrence for
additional medical care. It listed his accepted conditions as concussion with loss of consciousness,
neck sprain, lumbar back sprain, lumbar intervertebral disc disorder with myelopathy, thoracic
spine pain, and degeneration of the lumbar or lumbosacral intervertebral disc.
On October 12, 2017 appellant filed a claim for compensation (Form CA-7) for temporary
total disability from January 1, 2013 through September 30, 2017.
The record contains numerous reports from Dr. Anthony Hicks, a preventative medicine
specialist. In reports dated November 28, 2012 and February 19, 2013, Dr. Hicks opined that
appellant could work with restrictions. In a work excuse note dated February 19, 2013, he stated
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that appellant missed work from November 28, 2012 through February 19, 2013 due to being
incapacitated related to injuries sustained while performing his work duties.
By letter dated February 26, 2013, Dr. Hicks opined that as a direct result of appellant’s
permanent impairment, he was unable to return to the job for which he was hired, and was placed
in modified-duty status with permanent physical restrictions. He noted that it was unlikely
appellant would ever be able to safely perform job duties consistent with viable employment, and
that as such, appellant could not return to work.
Appellant submitted a series of work excuse notes from Dr. Hicks dated between April 4
and September 23, 2013, in which Dr. Hicks stated that appellant missed work from February 19
through October 1, 2013 due to being incapacitated related to injuries sustained while performing
his work duties.
In duty status reports dated May 23 and July 23, 2013, Dr. Hicks reported that appellant
could resume work on May 23, 2013 with restrictions. He also submitted a report dated July 23,
2013 indicating that appellant should be off work until a follow-up appointment, and that appellant
was unable to work with restrictions due to severe ongoing physical dysfunction and no available
work at the employing establishment.
By letter dated July 26, 2013, Dr. Hicks opined that it was unlikely that appellant would
ever be able to safely perform job duties consistent with viable employment, and that as such,
appellant was both unable to fulfill the job requirements of his original position and the job
requirements of modified positions that had attempted to accommodate his physical limitations.
In duty status reports dated from August 27, 2013 through October 30, 2014, Dr. Hicks
noted that he advised appellant not to return to work and that he should remain off duty. He noted
that appellant was unable to work with restrictions due to severe ongoing physical dysfunction and
no available work at the employing establishment. Dr. Hicks posited that appellant would likely
be able to return to his regular duties within three to six months.
In a work excuse note dated July 10, 2014, Dr. Hicks recounted that appellant missed work
from June 6 through July 10, 2014 due to being incapacitated related to injuries sustained while
performing his work duties.
By letter dated August 6, 2014, the employing establishment advised that appellant had a
valid job offer on file for several years, and that the work had been and remained available to him.
On August 11, 2014 appellant filed a claim for compensation (Form CA-7) for temporary
total disability for the period January 1, 2013 through July 10, 2014.
By letter dated September 2, 2014, the employing establishment noted that appellant had
retired effective August 9, 2014, as he was not medically qualified to perform the duties of his
position.
Dr. Hicks reiterated that appellant should be off work on December 18, 2014. On
March 12, 2015 he stated that appellant should be off work and had been accepted for disability
retirement.

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Appellant continued to submit reports from Dr. Hicks dated from July 14, 2015 through
September 14, 2017, which stated that appellant should be off work.
By letter dated March 7, 2017, Dr. Hicks stated that prior to 2013, appellant was restricted
to sedentary work, but that by 2013, he was unable to work even with those restrictions due to his
ongoing conditions. He explained that appellant’s degeneration of the lumbosacral spine had
worsened over time, which was demonstrated by objective results of a March 28, 2012
electromyogram.
By letter dated July 5, 2017, the employing establishment noted that appellant had a valid
job offer on file for several years.
On July 13, 2017 Dr. Hicks stated that appellant should be off work and that he had been
accepted for disability retirement.
In a development letter dated October 30, 2017, OWCP informed appellant that he had not
submitted sufficient medical evidence to substantiate that his claimed disability was caused by his
work injury. It requested that he submit a complete and comprehensive narrative report, including
a history of injury and a thorough explanation with objective findings, as to how his condition
worsened such that he was no longer able to perform the duties of his position when he stopped
work on January 1, 2013. OWCP afforded him 30 days to submit the requested evidence.
Appellant continued to submit progress reports from Dr. Hicks dated from November 16,
2017 through January 24, 2018, which stated that appellant should be off work.
By decision dated March 5, 2018, OWCP denied appellant’s claim for wage-loss
compensation beginning January 1, 2013.
On March 14, 2018 appellant, through his representative, requested reconsideration of
OWCP’s March 5, 2018 decision. Appellant resubmitted the March 7, 2017 report of Dr. Hicks.
In a report from Dr. Hicks dated April 5, 2018, he stated that appellant should be off work
due to severe ongoing physical dysfunction.
By decision dated June 7, 2018, OWCP denied modification of its decision dated
March 5, 2018.
LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the weight
of reliable, probative, and substantial evidence a recurrence of total disability. As part of this
burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.4

4

M.S., Docket No. 19-0609 (issued September 23, 2019); S.H., Docket No. 18-1398 (issued March 12, 2019);
Terry R. Hedman, 38 ECAB 222 (1986).

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For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury. Whether a
particular injury causes an employee to become disabled from work, and the duration of that
disability, are medical issues that must be proven by a preponderance of probative and reliable
medical opinion evidence.5
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,
which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment.6 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties, or a reduction-in-force) or when the physical
requirements of such an assignment are altered such that they exceed the employee’s physical
limitations.7
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability commencing January 1, 2013, causally related to the July 5, 2008 employment
injury.
Appellant has not alleged a change in his light-duty job requirements. Instead, he attributed
his inability to work to a change in the nature and extent of his employment-related conditions.
Appellant, therefore, has the burden of proof to provide medical evidence that he was disabled due
to a worsening of his accepted work-related conditions.9
In duty status reports dated November 28, 2012 and February 19, 2013, Dr. Hicks opined
that appellant could work with restrictions. By letter dated February 26, 2013, he stated that
appellant could not return to work. In duty status reports dated May 23 and July 23, 2013,
Dr. Hicks indicated that appellant could resume work on May 23, 2013 with restrictions. He also
submitted a report dated July 23, 2013 noting that appellant should be off work until a follow-up
appointment, and stating that appellant was unable to work with restrictions. By letter dated
July 26, 2013, Dr. Hicks stated that appellant could not return to work. The Board notes that
Dr. Hicks did not provide medical rationale for why he found that appellant could work with
5

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

6

20 C.F.R. § 10.5(x).

7

Id.

8

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, supra note 5; Fereidoon Kharabi, 52
ECAB 291 (2001).
9

See R.L., Docket No. 19-0444 (issued July 29, 2019).

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restrictions on February 19, 2013, but could not return to work as of February 26, 2013, only to be
able to resume work on May 23, 2013. There is no explanation for the inconsistency between the
two reports of July 23, 2013 regarding appellant’s ability to work. Dr. Hicks’ reports do not
provide opinion as to the cause of appellant’s disability and, therefore, are of no probative value.
As such, these reports are insufficient to establish appellant’s recurrence claim commencing
January 1, 2013.10
By letter dated March 7, 2017, Dr. Hicks noted that prior to 2013, appellant was restricted
to sedentary work, but that by 2013, he was unable to work even with those restrictions due to his
ongoing conditions. He explained that appellant’s degeneration of the lumbosacral spine had
worsened over time, which was demonstrated by objective results of a March 28, 2012
electromyogram. This letter did not explain why and how appellant’s accepted conditions had
worsened to the point he was unable to perform duties of his modified position as of January 1,
2013, given that he was able to perform such duties from March 2012 through November 28, 2012.
Dr. Hicks did not provide an opinion as to why appellant was disabled from work. Medical
evidence that does not offer an opinion regarding the cause of an employee’s condition or disability
is of no probative value on the issue of causal relationship.11 As such, this evidence is insufficient
to establish appellant’s recurrence claim commencing January 1, 2013.
In the remainder of the work excuse notes, duty status reports, and medical reports dated
from August 27, 2013 through April 5, 2018, Dr. Hicks opined that appellant was disabled from
returning to work. In these notes and reports, he did not explain with specificity how appellant
was disabled on or after January 1, 2013 due to a worsening of his accepted work-related
conditions.12 The Board has held that a medical opinion that is not fortified by rationale is of
diminished probative value. As these reports contain no rationale explaining why appellant was
disabled as a result of his July 5, 2008 employment injury after working for approximately 18
months in a limited-duty position, they are insufficient to support a worsening of his accepted
employment-related conditions to establish a recurrence of disability.13
For each period of disability claimed, an employee has the burden of proof to establish a
causal relationship between his or her recurrence of disability and his or her accepted employment
injury.14 Because appellant has not submitted sufficient medical evidence to establish that he was
unable to work beginning January 1, 2013, due to a spontaneous change or worsening of his
accepted July 5, 2008 employment-related conditions, the Board finds that appellant has not met
his burden of proof in this case.

10

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

11

Id.

12

E.B., Docket No. 17-1467 (issued July 26, 2018); D.H., Docket No. 18-0129 (issued July 23, 2018); see S.E.,
Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-0975 (issued February 6, 2009).
13

See Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements merely asserting causal
relationship generally do not discharge a claimant’s burden of proof).
14

G.T., Docket No. 18-1369 (issued March 13, 2019); Amelia S. Jefferson, 57 ECAB 183 (2005); William A.
Archer, 55 ECAB 674 (2004).

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Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability commencing January 1, 2013, causally related to his accepted July 5, 2008
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 7, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 23, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Toa Alta, PR, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1836
Issued: August 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 5, 2012 appellant, through her attorney, filed a timely appeal of an
August 6, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition due to factors of her federal employment.
On appeal, counsel argued that appellant had established a work-related emotional
condition.
FACTUAL HISTORY
On March 29, 2010 appellant, then a 36-year-old sales service associate, filed a traumatic
injury claim alleging that on March 4, 2010 as a result of her discovery of compromising text
1

5 U.S.C. § 8101 et seq.

messages between Awilda Rodriguez, supervisor, and appellant’s husband occurring both during
and after work hours, she alleged that she had developed continuous anger, depression, nausea,
loss of appetite and anxiety. She stated that she had been ridiculed and humiliated by
Ms. Rodriguez.
In a letter dated April 1, 2010, OWCP requested additional factual and medical
information in support of appellant’s claim. Appellant submitted a note from Dr. Carlos J.
Alfaro, a Board-certified internist, dated March 31, 2010 diagnosing depressive disorder and
finding her totally disabled. On April 9, 2010 Dr. Alfaro stated that she had a work-related
emotional condition and could return to work on April 19, 2010. He completed a note on
April 6, 2010 written in Spanish.
By decision dated May 3, 2010, OWCP denied appellant’s emotional condition claim on
the grounds that she had not substantiated a compensable employment factor as causing or
contributing to her diagnosed condition.
Appellant requested reconsideration on July 21, 2010. She submitted a note dated
March 31, 2010 regarding an initial examination which was written in Spanish. Appellant also
submitted a form report completed in Spanish indicating that she was hospitalized from
April 5 through 9, 2010. She submitted hospital records written in Spanish. In a note dated
April 21, 2010, Dr. Alfaro stated that beginning in February 2010 appellant became suspicious
that her husband was having an affair with her immediate supervisor who frequently humiliated
and ridiculed her. He noted that on March 4, 2010 she found text messages with a sexual content
between her supervisor and her husband. Appellant developed severe depressive and anxietyrelated symptoms. She was hospitalized.
Appellant stated that the messages between her husband and Ms. Rodriguez were
sexually explicit and discussed the extramarital affair. She stated that at work Ms. Rodriguez
had used her authority to ridicule and humiliate her on 20 different occasions. Appellant alleged
that Ms. Rodriguez scolded her on an almost daily basis. She stated that, during a service talk,
she tried to offer her opinion but Ms. Rodriguez chastised her and stated that she would not enter
into an argument with appellant and that she would make sure that appellant “did not go over her
head.” Appellant claimed that Ms. Rodriguez would take other employees’ input at the same
meeting without issue.
Appellant noted another occasion where she had been assigned to light duty, seated work
in the mark-up area, but left that assignment to greet coworkers. Ms. Rodriguez instructed
appellant in a sarcastic manner that she was not to move because she had hurt her “little footie.”
Appellant alleged that Ms. Rodriguez continuously singled her out, lectured her and raised her
voice. She noted that she had filed an Equal Employment Opportunity (EEO) complaint against
Ms. Rodriguez.
In a separate statement, appellant alleged that she was the victim of constant and
intentional abuse by Ms. Rodriguez including harsh and unusual disciplinary or corrective
procedures and intentional ridicule. She stated that she received a letter of warning in July 2009
for absenteeism while other similarly situated employees were not disciplined. Appellant again
alleged that in a September 2009 meeting Ms. Rodriguez dismissed her suggestions in a
“scornful manner” yet listened to the ideas of other coworkers. She alleged that her coworkers
were allowed to violate the uniform standard while she received lectures. Appellant stated that
2

Ms. Rodriguez was engaged in an extramarital affair with appellant’s husband.
completed a statement dated May 21, 2010 written in Spanish.

She also

Appellant submitted a Step A agreement on November 9, 2006, which provided that
Ms. Rodriguez would attend anger management training. She submitted statements from
Nelson Garcia, Ricardo Emerson and William Cortes, coworkers, dated July 21, 2010 written in
Spanish. Appellant received a letter of warning for failure to be in regular attendance signed by
José Colon, a supervisor, on October 13, 2009, but on January 27, 2010 the letter was expunged.
Appellant filed a grievance against Ms. Rodriguez on March 31, 2010 alleging that since
October 13, 2009, she had been subjected to a hostile work environment, through unjust
discipline, warnings, requests for a uniform and monitoring her job assignments.
In a statement dated May 11, 2010, appellant alleged that she had been harassed by
Ms. Rodriguez since July 2009. She noted that in September 2009 while working general
delivery she requested assistance from Ms. Rodriguez in finding a parcel. According to
appellant, Ms. Rodriguez was hostile and instructed her that it was her job to look for the parcel
not the job of the supervisor. She stated that Ms. Rodriguez subjected her to disciplinary action
in July 2009 due to an absence of five days when her child was ill. Appellant stated that in
September 2009, Ms. Rodriguez chose two employees to leave because there was not enough
work, but did not ask her. She stated that the following day during a service talk she informed
Ms. Rodriguez that there had been a need for more employees the previous day, because she had
to cover the areas that were left behind. Appellant reported that Ms. Rodriguez replied in a
hostile manner that she would not discuss the issue with appellant and that appellant would not
“go over me.” She later requested a change in schedule in October 2009 from Jorge Colon and
followed his instructions to fax the change of schedule to the union. Appellant did not receive
the form back from the union in time and Ms. Rodriguez required her to report to work. She
stated that she normally requested leave and change of schedules through José Colon.
Ms. Rodriguez allegedly instructed appellant in a hostile manner that the changes of schedule
had to stop. Appellant believed that the October 2009 letter of warning was instigated by
Ms. Rodriguez.
She stated that she received two service talks about uniforms in
November 2009, while other employees received only one.
Appellant further alleged that, in November 2009, Ms. Rodriguez screamed at her and a
coworker while they were on break and that appellant later realized that Ms. Rodriguez had an
inappropriate relationship with her husband. Ms. Rodriguez continued to scream at appellant
and instructed her to report to work. In a service talk shortly thereafter, she acknowledged that
she was friends with appellant’s husband. In December 2009, Ms. Rodriguez reprimanded
appellant because she did not have a complete uniform, as she was not allowed to wear black
pants. Appellant later conferred with José Colon and it was determined that appellant could wear
black pants. The next day a coworker wore jeans and Ms. Rodriguez did not reprimand her.
Ms. Rodriguez also allegedly was disrespectful to appellant when she denied appellant’s
request for leave in December 2009 as she put her hands on her sides and swayed her hips.
Appellant stated that Ms. Rodriguez in a hostile manner instructed appellant to call the
employing establishment notification system; and was instructed to aid a private mailer at 4:30
p.m. despite having to leave at 5:30 p.m. Ms. Rodriguez attempted to force appellant to stay, but
she left. When appellant returned Ms. Rodriguez accused her of disrespectful behavior.
3

In January 2010, appellant broke her toe and requested seated work. Ms. Rodriguez told
her not to move from her seat or walk around so as not to hurt her “little footie.” On February 26
2010 appellant confronted her husband about the affair with Ms. Rodriguez and on
March 4, 2010 requested all text messages from her husband.
Appellant filed a notice of occupational disease on July 28, 2010 alleging that she
developed back pain, headaches and stress due to Ms. Rodriguez.
Appellant submitted a report from Dr. Alfaro dated July 14, 2010 written in Spanish. The
record contains four paragraphs which have been translated from Spanish on November 1, 2010.
These paragraphs include the statements from Mr. Cortes, Mr. Emerson and Mr. Garcia.
Mr. Cortes described a meeting in which Ms. Rodriguez informed appellant that she would not
talk to her and that appellant would not go above her. He stated that other colleagues were
allowed to disagree with Ms. Rodriguez without being chastised. Mr. Emerson’s statement
included that in response to a question from appellant Ms. Rodriguez replied, “I [a]m not going
to argue with you and you [a]re not going to go over me.” He noted that other colleagues
questioned and disagreed with Ms. Rodriguez without a similar response. Mr. Garcia completed
a statement that during appellant’s break Ms. Rodriguez instructed her to “come here now.”
By decision dated November 1, 2010, OWCP reviewed the merits of appellant’s claim. It
found that the events regarding her discovery of the affair between her husband and
Ms. Rodriguez were not related to her employment duties. OWCP found that appellant had
“verified” two factors of employment: a September 2009 service talk where Ms. Rodriguez
spoke in a hostile manner and informed appellant that she would not talk to her and that she was
not to go above her and the removal of the October 12, 2009 letter of warning. It further found
that the medical evidence supported that her emotional condition was the result of the affair and
the actions of Ms. Rodriguez. However, OWCP found that the record established that
Ms. Rodriguez harassed appellant as a result of the ongoing affair with appellant’s husband. It
noted that the harassment was the result of animosity from appellant’s domestic life and
imported into the workplace. OWCP concluded that Ms. Rodriguez’ actions did not arise out of
her employment.
Appellant requested reconsideration on November 18, 2010. She submitted a report
dated November 23, 2010 from Dr. Alfaro, who stated that her mental condition had begun in
July 2009 due to the continuous harassment, humiliations, hostile environment and treatment by
Ms. Rodriguez. Dr. Alfaro opined that appellant’s depression was later aggravated by the
discovery that Ms. Rodriguez was having an affair with her husband.
In a statement dated November 23, 2010, Radmes Sierra, union steward, stated that
Ms. Rodriguez continuously harassed appellant and issued unjustified discipline. In a statement
dated July 27, 2010, Janet Velazquez, a coworker, stated that, in a service talk, Ms. Rodriguez
raised her voice and told appellant that she was not to go above her authority. She stated that
Ms. Rodriguez had a special relationship with appellant’s husband as he was her right hand man.
Ms. Velazquez stated that Ms. Rodriguez had screamed at both appellant and her and had
embarrassed appellant. She stated that Ms. Rodriguez monitored appellant incessantly and
treated her different from other employees. Ms. Velazquez noted that Ms. Rodriguez gave other
employees more time to purchase the correct uniform.

4

By decision dated May 24, 2011, OWCP denied appellant’s claim finding that the
accepted factors of employment occurred as a result of animosity from her domestic and private
life that was imported into the workplace.
Appellant requested reconsideration on September 9, 2011. She submitted an EEO
decision dated August 17, 2011 reinstating her complaint. By decision dated October 5, 2011,
OWCP declined to reopen appellant’s claim for consideration of the merits.
Appellant again requested reconsideration on May 1, 2012. Counsel argued that her
relationship with Ms. Rodriguez was not imported into the workplace as these parties did not
have a relationship outside of work.
By decision dated August 6, 2012, OWCP again denied appellant’s claim finding that she
had not established an injury arising in the performance of duty.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.3 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.4 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.5 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
personal injury sustained in the performance of duty within the meaning of FECA. Thus
disability is not covered when it results from an employee’s fear of a reduction-in-force, nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.7 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Robert W. Johns, 51 ECAB 136 (1999).

5

Cutler, supra note 2.

6

Id.

7

Charles D. Edwards, 55 ECAB 258 (2004).

5

administrative or personnel responsibilities, such action will be considered a compensable
employment factor.8 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.9
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.10
ANALYSIS
Appellant has not alleged that her emotional condition is due to her regular or specially
assigned work duties and, thus, has not alleged or established any factors under Lillian Cutler.11
She has alleged that she developed an emotional condition as the result of actions of her
supervisor, Ms. Rodriguez. Appellant attributed her emotional condition in part to the affair
between Ms. Rodriguez and appellant’s husband. While this alleged affair has some relationship
to her work, as both Ms. Rodriguez and her husband are coemployees of the employing
establishment, an extramarital affair between other parties does not have sufficient relationship
to appellant’s regular or specially assigned duties to render it a compensable factor of
employment.
The Board notes that, contrary to OWCP’s analysis, this situation is not similar to a
situation where disputes are imported into the workplace and the resulting actions are found not
to be in the performance of duty.12 Appellant has not alleged an assault, she is not the party
responsible for the private relationship and Ms. Rodriguez was her direct supervisor.
OWCP had accepted as a compensable factor of employment the removal of a letter of
warning for failure to be in regular attendance signed by José Colon on October 13, 2009. The
handling of disciplinary actions is generally related to the employment, but is considered an
administrative function of the employer and not duties of the employee.13 Reactions to actions
taken in an administrative capacity are not compensable unless it is shown that the employing
establishment erred or acted abusively in its administrative capacity.14 The Board finds that
appellant did not submit sufficient evidence to establish that the employing establishment
8

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
9

Roger Williams, 52 ECAB 468 (2001).

10

Alice M. Washington, 46 ECAB 382 (1994).

11

Supra note 2.

12

M.B., Docket No. 08-292 (issued December 18, 2008).

13

C.S., 58 ECAB 137 (2006).

14

T.G., 58 ECAB 189 (2006).

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committed error or abuse with respect to this letter. Appellant submitted no evidence to suggest
error or abuse associated with the issuance of the letter. There was no evidence that it had been
issued improperly. The mere fact that the actions of the employing establishment were later
removed or modified does not, in and of itself, establish error or abuse by management in its
administrative duties.15 The Board reverses this finding of a compensable factor.
OWCP also accepted as a compensable factor that in a September 2009 service talk
Ms. Rodriguez had spoken to appellant in a hostile manner and informed appellant that she
would not talk to her and that appellant was not to go above her. This incident involved a
situation where Ms. Rodriguez allegedly treated appellant in a disrespectful manner by refusing
to consider her input at a meeting in which other employees were allowed to express their
opinions freely. Appellant submitted statements from three coworkers, Mr. Cortes, Mr. Emerson
and Ms. Velasquez, which purportedly established this allegation. The Board finds that appellant
and her witnesses have not provided the requisite detail to establish that the events occurred as
alleged. The statements do not provide a specific date, time or place of the alleged inappropriate
statements. Furthermore, the statements do not provide the names of other employees who were
allowed to disagree with Ms. Rodriguez. The Board finds that these general allegations and
general supporting statements are not sufficient to find a specific factor of abuse by management
regarding administrative matters. Due to the deficiencies and discrepancies in theses factual
statements, the Board finds, contrary to OWCP, that appellant has not submitted sufficient
evidence to establish a compensable factor of employment in this regard.
Appellant stated that, in November 2009, Ms. Rodriguez screamed at her and a coworker
while they were on break and that at that time she also realized that Ms. Rodriguez was having
an inappropriate relationship with her husband. Ms. Rodriguez continued to scream at appellant
and instructed her to report to work. Mr. Garcia noted in his statement that during one of
appellant’s breaks Ms. Rodriguez instructed her to “come here now.” Ms. Velazquez noted that
Ms. Rodriguez had screamed at both appellant and her and had embarrassed appellant. She
stated that Ms. Rodriguez monitored appellant incessantly and treated her differently than other
employees. The Board finds that these statements are not sufficiently detailed to establish error
or abuse on the part of Ms. Rodriguez. There are no specific dates noted and the details are
general and are inconsistent. Due to the deficiencies and discrepancies in the factual statements,
the Board finds that appellant has not submitted sufficient evidence to establish a compensable
factor of employment in this regard.
Appellant further alleged harassment and discrimination by Ms. Rodriguez through
unjust discipline, warnings, requests for a uniform and monitoring her job assignments. If
disputes and incidents alleged as constituting harassment and discrimination by supervisors and
coworkers are established as occurring and arising from the employee’s performance of her
regular duties, these could constitute employment factors.16 The evidence, however, must
establish that the incidents of harassment or discrimination occurred as alleged to give rise to a
compensable disability under FECA. Appellant did not submit any factual evidence in support
of the remainder of her allegations and thus has not established a compensable work factor.

15

R.S., Docket No. 08-2095 (issued June 4, 2009).

16

A.R., Docket No. 11-1949 (issued April 16, 2012).

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The Board finds that appellant has not submitted the necessary detailed and
comprehensive corroborating evidence to substantiate a compensable factor of employment.
Where a claimant has not established any compensable employment factors, the Board need not
consider the medical evidence of record.17
CONCLUSION
The Board finds that appellant has not established a compensable factor of employment
and, therefore, OWCP properly denied her claim.18
ORDER
IT IS HEREBY ORDERED THAT the August 6, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: August 19, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

17

A.K., 58 ECAB 119 (2006).

18

As the Board has found no compensable employment factors, the medical evidence has not been reviewed.

8


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

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-2149
Issued: February 26, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 23, 2013 appellant, through her attorney, filed a timely appeal from an
August 6, 2013 nonmerit decision of the Office of Workers’ Compensation Programs’ (OWCP)
denying her request for reconsideration on the grounds that it was untimely filed and failed to
establish clear evidence of error. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit
decision by OWCP. The last merit decision of record was OWCP’s July 26, 2012 decision
denying appellant’s traumatic injury claim. Because more than 180 days elapsed between the
last merit decision to the filing of this appeal, the Board lacks jurisdiction to review the merits of
this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that it was untimely filed and failed to demonstrate clear
evidence of error.
FACTUAL HISTORY
On September 23, 2010 appellant, then a 57-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that on that same date she sustained a right arm injury when
she was pulling out a postcon cart which was lodged behind a pole. She notified her supervisor
and first sought medical treatment on the date of injury. Appellant stopped work on
September 24, 2010.
By letter dated December 8, 2010, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and asked that she respond to the provided questions within 30 days. In support of her
claim, she submitted various medical reports from her treating physicians dated September 23 to
December 2, 2010.
By decision dated January 13, 2011, OWCP denied appellant’s claim finding that the
evidence of record failed to establish fact of injury.
By letter dated January 25, 2011, appellant, through counsel, requested an oral hearing
before the Branch of Hearings and Review. The hearing was held on May 11, 2011. Following
the hearing, appellant submitted medical reports dated September 23 and November 9, 2010 and
June 1, 2011.
By decision dated July 22, 2011, the Branch of Hearings and Review affirmed the
January 13, 2011 OWCP decision, as modified, finding that appellant established that the
September 23, 2010 employment incident occurred as alleged but failed to provide sufficient
medical evidence establishing that she sustained a right shoulder injury causally related to the
accepted work-related incident.
On April 27, 2012 appellant, through counsel, requested reconsideration of the July 22,
2011 decision. In support of her claim, she submitted prescription notes dated March 8 and
April 3, 2011.
In a November 22, 2011 medical report, Dr. Ernest Tolentino, a Board-certified
orthopedic surgeon, reported that appellant sought treatment the day following her September 23,
2010 work injury for pain and limited motion of the right shoulder. A November 9, 2010
magnetic resonance imaging (MRI) scan of the right shoulder revealed mild degenerative
disease, biceps tenosynovitis, subacromial and subdeltoid bursitis and joint effusion with fluid in
subcoracid recess. Appellant underwent surgery which revealed a completely torn right rotator
cuff with bicipital tendinitis. Dr. Tolentino concluded that her injuries were causally related to
the work accident on September 23, 2010, noting no prior history or trauma of the right shoulder.

2

By letter dated May 15, 2012, OWCP requested that Dr. Tolentino provide a rationalized
medical opinion regarding how each of appellant’s diagnosed conditions were caused by the
September 23, 2010 employment incident.
In a June 5, 2012 report, Dr. Tolentino responded to OWCP’s request by referencing his
previously reviewed November 22, 2011 medical report. He further stated that appellant’s
shoulder condition was causally related to the September 23, 2010 employment incident because
there was no prior history of trauma or treatment.
By decision dated July 26, 2012, OWCP affirmed the July 22, 2011 decision finding that
the evidence of record failed to establish that appellant’s right shoulder injury was causally
related to the accepted September 23, 2010 employment incident. It noted that while
Dr. Tolentino stated no history, trauma or treatment of the right shoulder, he failed to provide an
explanation regarding the mild degenerative disease of the right shoulder which predated the
September 23, 2010 employment incident.
By letter dated July 30, 2013, appellant, through counsel, requested reconsideration of the
July 26, 2012 OWCP decision. In support of her request, she submitted a July 12, 2013 medical
report from Dr. Tolentino.
In a July 12, 2013 medical report, Dr. Tolentino stated that appellant’s torn right rotator
cuff was the direct result of her attempt to pull a postcon cart which was stuck behind a post.
The November 9, 2010 MRI scan finding of mild degenerative joint disease was a secondary
finding and not contributory to the September 23, 2010 injury. Dr. Tolentino noted that this
secondary finding had nothing to do with the restriction of shoulder motion caused by the work
injury. He concluded that with a reasonable degree of medical probability, appellant’s right
shoulder condition was causally related to her September 23, 2010 work injury.
By decision dated August 6, 2013, OWCP denied appellant’s reconsideration request as
untimely filed and failing to establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.3
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.4
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year
filing limitation, if the claimant’s application for review shows clear evidence of error on the part
of OWCP in its most recent merit decision. To establish clear evidence of error, a claimant must

3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

3

submit evidence relevant to the issue decided by OWCP. The evidence must be positive, precise
and explicit and it must manifest on its face that OWCP committed an error.5
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.6
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.7 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.8 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.9 The Board makes an independent determination
as to whether a claimant has submitted clear evidence of error on the part of OWCP.10
ANALYSIS
In its August 6, 2013 decision, OWCP determined that appellant failed to file a timely
application for review. An application for reconsideration must be received within one year of
the date of OWCP’s decision.11 A right to reconsideration within one year also accompanies any
subsequent merit decision on the issues.12 As appellant’s July 30, 2013 request for
reconsideration was submitted and received more than one year after the date of the last merit
decision of record on July 26, 2012, it was untimely. Consequently, she must demonstrate clear
evidence of error by OWCP in denying her claim.13
The Board finds that appellant has not established clear evidence of error on the part of
OWCP. In support of her reconsideration request, appellant submitted a July 13, 2013
addendum report from Dr. Tolentino, who reported that the September 23, 2010 work injury
caused her right shoulder injury. Dr. Tolentino noted that the finding of mild degenerative joint
disease was a secondary finding and not contributory to the September 23, 2010 injury.
However, this evidence is insufficient to establish that OWCP erred in its denial of appellant’s

5

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

6

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

7

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

8

Id.

9

Id.

10

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

11

20 C.F.R. § 10.607 (2011).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a) (October 2011).

13

See Debra McDavid, 57 ECAB 149 (2005).

4

claim.14 Dr. Tolentino did not provide detailed medical rationale explaining how the January 23,
2010 incident caused appellant’s injury other than generally stating no prior history of right
shoulder injury or injury to the right rotator cuff. The Board notes that clear evidence of error is
intended to represent a difficult standard. Evidence, such as a detailed well-rationalized medical
report, which if submitted before the merit denial might require additional development of the
claim, is insufficient to establish clear evidence of error.15 Although Dr. Tolentino’s report is
supportive of appellant’s claim, it does not rise to the level to establish clear evidence of error on
the part of OWCP as it was submitted after the July 26, 2012 merit decision.16 Thus, the
additional medical report does not raise a substantial question as to the correctness of OWCP’s
July 26, 2012 merit decision or demonstrate clear evidence of error.
On appeal, counsel argues that the reports of Dr. Tolentino establish a causal relationship
between appellant’s torn rotator cuff injury and the September 23, 2010 employment incident.
The Board notes that the underlying issue is medical in nature and the medical evidence
submitted was not sufficient to shift the weight of the evidence in appellant’s favor to establish
that OWCP erred in denying her claim.
Counsel further argues that he initially requested reconsideration on November 28, 2011
but the case was not decided until July 26, 2012. His November 28, 2011 reconsideration
request has no bearing on the correctness of the July 26, 2012 OWCP decision as appellant’s
request was deemed timely and she was afforded a merit review. As noted above, counsel’s
July 30, 2013 reconsideration request was untimely as it was received more than one year after
the last July 26, 2012 merit decision.
As none of the evidence raises a substantial question concerning the correctness of
OWCP’s decision, appellant has failed to establish clear evidence of error on the part of OWCP
in denying further merit review.17
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

14

See W.R., Docket No. 09-2336 (issued June 22, 2010).

15

Supra note 12 at Chapter 2.1602.3(c) (October 2011).

16

V.W., Docket No. 12-1901 (issued March 5, 2013).

17

A.S., Docket No. 11-356 (issued September 16, 2011).

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ORDER
IT IS HEREBY ORDERED THAT the August 6, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 26, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Houston, TX, Employer
__________________________________________

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

Docket No. 11-777
Issued: January 5, 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 February 8, 2011 appellant filed a timely appeal from merit decisions of the Office of
Workers’ Compensation Programs (OWCP) dated September 7 and 16, 2010 denying his
occupational disease claim and a January 14, 2011 nonmerit decision denying his request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that his right carpal tunnel syndrome
was sustained in the performance of duty, causally related to factors of his federal employment;
and (2) whether OWCP properly denied his request for further merit review under 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 1, 2009 appellant, then a 49-year-old cook supervisor, filed an
occupational disease claim alleging that his right carpal tunnel syndrome was due to repeated
grasping and typing required in his duties. He first became aware of the condition on
November 4, 2008, but did not realize it was employment related until January 7, 2009.
By letter dated September 17, 2009, OWCP advised appellant as to the factual and
medical evidence required to support his occupational disease claim.
On September 24, 2009 OWCP received a November 4, 2008 electromyography (EMG)
test from Dr. Angelo Sermas, an examining Board-certified neurologist, who diagnosed bilateral
median neuropathies with the left being more affected than the right. Dr. Sermas related that the
findings from the EMG report were “consistent with a potential clinical diagnosis of bilateral
carpal tunnel syndrome.”
By decision dated October 21, 2009, OWCP denied appellant’s claim on the grounds that
he failed to establish fact of injury.
In a January 29, 2010 progress note, Dr. Todd E. Siff, a treating Board-certified
orthopedic surgeon with a hand subspecialty certification, reviewed diagnostic tests and provided
physical findings. Appellant related symptoms of tingling, numbness and pain in his right hand.
Dr. Siff related that a recent EMG study was consistent with a diagnosis of right carpal tunnel
syndrome. He also noted that appellant’s left carpal tunnel condition had been accepted as
employment related. Dr. Siff noted that appellant attributed the right carpal tunnel condition to
his employment, which Dr. Siff found was entirely possible.
On August 11, 2010 appellant requested reconsideration and submitted January 8 and
February 1, 2010 reports from Dr. Siff diagnosing right carpal tunnel syndrome. Dr. Siff
reported that appellant had right hand pain, tingling and numbness. He reiterated that appellant’s
left carpal tunnel syndrome had been approved as employment related. Dr. Siff stated that
appellant’s right hand symptoms in 2008 were very similar to those experienced in the accepted
left carpal tunnel syndrome claim. In both the January 8 and February 1, 2010 reports, he related
appellant’s belief that the right carpal tunnel condition was employment related based on the
acceptance of his left carpal tunnel condition as employment related.
By decisions dated September 7 and 16, 2010, OWCP accepted that fact of injury was
established. However, it found the medical evidence insufficient to establish that the diagnosed
right carpal tunnel syndrome was causally related to appellant’s employment.
On October 7, 2010 appellant requested reconsideration.
By decision dated January 14, 2011, OWCP denied reconsideration.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
2

within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific conditions for which compensation is claimed are causally
related to the employment injury.2 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.4 To establish fact of injury in an
occupational disease claim, 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
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.7 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.8
ANALYSIS -- ISSUE 1
Appellant attributed his right carpal tunnel syndrome to the repetitive typing and grasping
duties required in his position. OWCP accepted the occurrence of the identified employment
factors, but denied his claim on the grounds that he failed to submit rationalized medical
evidence establishing a causal relationship between the diagnosed medical condition and the
identified work factors. The issue to be resolved is whether the medical evidence is sufficient to
establish a causal relationship.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

See S.P., 59 ECAB 184, 188 (2007); M.V., Docket No. 10-1169 (issued December 17, 2010).

5

Roy L. Humphrey, 57 ECAB 238, 241 (2005).

6

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

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

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 3.

3

In support of his claim, appellant submitted reports and progress notes from Dr. Siff who
diagnosed right carpal tunnel syndrome based on an EMG study and physical findings. In both
his January 8 and 29, 2010 reports, Dr. Siff noted that an EMG study was consistent with the
diagnosis of right carpal tunnel syndrome, which he attributed to appellant’s employment. He
noted that appellant’s left carpal tunnel condition had been accepted as employment related. In
addition, Dr. Siff related that the symptoms appellant was experiencing with his right hand were
very similar to those he had experienced with the employment-related left carpal tunnel
condition. However, he did not specifically attribute appellant’s right carpal tunnel syndrome to
specific work factors. Dr. Siff’s reports lack sufficient medical reasoning explaining how
appellant’s work activities as a cook supervisor contributed to or aggravated his right carpal
tunnel condition and, thus, are of limited probative value on the issue of causal relationship.9
Appellant also submitted the results of a November 4, 2008 EMG study diagnosing
bilateral median neuropathies with the left being more affected than the right. The EMG study,
however, does not address causation and thus is of little probative value.10
An award of compensation may not be based on surmise, conjecture or speculation.11
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.12 The fact that a condition manifests itself or worsens during a
period of employment13 or that work activities produce symptoms revelatory of an underlying
condition14 does not raise an inference of causal relationship between a claimed condition and an
employment incident.
The Board finds that the medical evidence of record does not provide a fully-rationalized
medical opinion explaining how the established work-related duties caused or aggravated the
claimed right carpal tunnel condition. Appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

9

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Mary E. Marshall, 56 ECAB 420 (2005)
(medical reports that do not contain rationale on causal relationship have little probative value); F.T., Docket No.
09-919 (issued December 7, 2009).
10

See K.W., 59 ECAB 271 (2007); Ellen L. Noble, 55 ECAB 530 (2004).

11

D.D., 57 ECAB 734 (2006); Paul E. Thams, 56 ECAB 503 (2005); E.J., Docket No. 09-1481 (issued
February 19, 2010).
12

Sandra D. Pruitt, 57 ECAB 126 (2005); W.D., Docket No. 09-658 (issued October 22, 2009).

13

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393 (1960).

14

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155 (1960).

4

LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,15
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.16 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.17 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.18
ANALYSIS -- ISSUE 2
In his October 7, 2010 request for reconsideration, appellant asked only that his case be
reviewed. He did not allege or demonstrate that OWCP erroneously applied or interpreted a
specific point of law, or advance a relevant legal argument not previously considered by OWCP.
Appellant also did not submit any evidence with his reconsideration request. Consequently, he is
not entitled to further merit review of his claim under section 10.606(b)(1)-(3).19
The Board finds that OWCP did not abuse its discretion by denying his reconsideration.20
CONCLUSION
The Board finds that appellant failed to establish that his right carpal tunnel condition
was sustained in the performance of duty, causally related to factors of his federal employment.
The Board further finds that OWCP properly refused to reopen his claim for further review of the
merits pursuant to 5 U.S.C. § 8128(a).

15

5 U.S.C. §§ 8101-8193. 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.
16

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).
17
18

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

Id. at § 10.608(b).
March 16, 2009).

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

19

Id. at § 10.606(b)(1)-(3). See L.D., 59 ECAB 648 (2008); Desiderio Martinez, 55 ECAB 245 (2004).

20

See Susan A. Filkins, 57 ECAB 630 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 14, 2011 and September 16 and 7, 2010 are affirmed.
Issued: January 5, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 20-0465
Issued: November 19, 2020

Case Submitted on the Record

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

JURISDICTION
On December 23, 2019 appellant filed a timely appeal from a June 26, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated March 14, 2018, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On March 20, 2017 appellant, then a 52-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she experienced leg pain and a swollen knee after
delivering her mail route in an area where snow had not been shoveled. She indicated that she first
1

5 U.S.C. § 8101 et seq.

became aware of her condition on March 17, 2017 and realized its relation to her federal
employment on March 13, 2017. On the reverse side of the claim form, the employing
establishment indicated that appellant stopped work on March 20, 2017 and first reported her
condition to her supervisor on March 27, 2017.
In a March 24, 2017 note, Dr. Khojasteh Bahmanbeigi, a Board-certified family
practitioner, noted that appellant presented for a recheck for moderate knee pain exacerbated by
knee flexion and walking. He noted that on physical examination she had right knee swelling and
walked with a slight limp. Dr. Bahmanbeigi assessed pain and swelling of the right knee and
effusion of right bursa. He returned appellant to modified-duty work with restrictions. In a work
activity status report dated March 31, 2017, Dr. Abbas F. Al-Saraf, Board-certified in family
medicine, diagnosed unspecified osteoarthritis and effusion of the bilateral knees.
OWCP also received physical therapy notes dated March 21 to 31, 2017.
In a development letter dated April 6, 2017, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion seeking further details regarding the claimed March 13, 2017
employment incident. In a separate letter of the same date, OWCP also requested additional
information from the employing establishment. It afforded both parties 30 days to respond.
On April 5 and 19, 2017 Dr. Ben Tseng, a Board-certified internist, noted that appellant
was unable to work from April 5 to May 3, 2017. In an attending physician’s report (Form CA20) dated April 11, 2017, he noted that on March 13, 2017 appellant slipped in snow and fell on
her right anterior knee. Dr. Tseng diagnosed right patella contusion and underlying osteoarthritis
flare-up. He checked a box marked “Yes” indicating that her condition was caused or aggravated
by an employment activity. In duty status reports (Form CA-17) dated April 11 and June 21, 2017,
Dr. Tseng noted that appellant sustained an acute fall on left patella and diagnosed knee injury,
patella contusion.
In a June 21, 2017 letter, Dr. Tseng indicated that she worked as a mail carrier for 18 years
in all seasons. He diagnosed underlying knee osteoarthritis and a right knee patellar cartilage and
trochlear cartilage injury.
By decision dated June 30, 2017, OWCP denied appellant’s occupational disease claim
finding that the evidence submitted was insufficient to establish that the alleged employment
factors occurred as described as she had not responded to its development questionnaire. It
concluded, therefore, that the requirements had not been met to establish an injury as defined under
FECA.
On December 15, 2017 appellant requested reconsideration of OWCP’s June 30, 2017
decision. In an accompanying statement dated December 13, 2017, she reiterated that she filed a
Form CA-2 for an injury sustained on March 17, 2017 as a result of delivering mail on March 13,
2017 in the snow. Appellant explained that she was attempting to pull her mail cart through heavy
snow which caused her to fall and injure her knee. She noted that at the end of the day she felt left
leg pain and a few days later she could not stand. Appellant asserted that the employing
establishment had incorrectly advised her to file a Form CA-2 even though her claim was actually
for a traumatic injury.

2

In support of her reconsideration request, appellant submitted a copy of her completed
development questionnaire and indicated that on March 13, 2017 she was performing her regular
letter carrier duties while delivering mail on her assigned mail route when she slipped “and fell on
my knees while pushing my mail cart through the heavy snow.” She noted that she had been
working this mail route for two years. Appellant explained that she had not reported the March 13,
2017 injury to her supervisor until March 17, 2017 as she initially thought it was a minor injury
and continued to work until she was unable to stand or walk. She noted that the claim was filed
as a Form CA-2 occupational disease claim, but should have been filed as a CA-1 form traumatic
injury claim because of the slip and fall. Appellant also alleged that she had no outside activities
or hobbies.
OWCP also received an April 20, 2017 report wherein Dr. Tseng noted that appellant had
slipped and fallen on her right anterior knee on March 13, 2017 and stopped work on
March 17, 2017. In a September 27, 2017 report, Dr. Tseng indicated that, while on her mail route
on March 13, 2017, appellant slipped in the snow and fell on the front of her right knee. Dr. Tseng
noted that a magnetic resonance imaging scan revealed cartilage injuries which were caused by
appellant’s injury.
In a Form CA-20 report dated September 27, 2017, Dr. Tseng again noted that on
March 13, 2017 appellant slipped in snow and fell on her right anterior knee. He diagnosed
underlying osteoarthritis and acute cartilage injury of the right knee. Dr. Tseng indicated by
checking a box marked “Yes” that appellant’s condition was caused or aggravated by an
employment activity. He explained that it resulted from a fall that occurred at work.
By decision dated March 14, 2018, OWCP denied modification of the June 30, 2017
decision. It found that “the documentation fails to clearly establish work factors alleged to have
contributed to the development of the claimed condition.”
On March 28, 2019 appellant requested reconsideration and submitted additional evidence.
In a statement dated December 7, 2018, she alleged that she sustained a traumatic injury, not an
occupational disease, and that the employing establishment improperly required that her claim be
filed on a Form CA-2. Appellant also asserted that additional reports from Dr. Tseng and
Dr. Ankur Chhadia, a Board-certified orthopedist, provide a detailed description of her injury, and
a complete factual and medical background, with medical rationale to establish her claim.
In a September 10, 2018 report, Dr. Chhadia treated appellant for right knee pain secondary
to a work injury occurring on March 13, 2017. Appellant reported pushing a cart full of mail when
she slipped on snow and ice and fell, injuring her right knee. Dr. Chhadia diagnosed right knee
osteoarthritis. In reports dated October 2 and December 4, 2018, he diagnosed right knee
osteoarthritis. On December 3, 2018 Dr. Chhadia treated appellant on September 10 and
October 2, 2018 for right knee pain. Appellant reported that she was pushing a cart full of mail in
the snow and ice when she slipped and fell injuring her right knee. Dr. Chhadia diagnosed right
knee osteoarthritis and opined to a reasonable degree of medical certainty that the occupational
injury did result in a permanent aggravation of underlying right knee osteoarthritis.
In a report dated October 2, 2018, Dr. Tseng diagnosed acute cartilage injury of the right
knee, sequela. Appellant reported injuring her right knee on March 13, 2017 when she was
pushing her cart across a street through slushy snow and over a curb when her feet slipped causing
3

her to fall forward onto both knees. Dr. Tseng opined that her March 13, 2017 injury produced
the cartilage injuries to her right knee.
By decision dated June 26, 2019, OWCP denied appellant’s request for reconsideration
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.2 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.3 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).4
Imposition of this one-year filing limitation does not constitute an abuse of discretion.5
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the application presents clear evidence that OWCP’s final merit decision was
in error.6 Its procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s
request for reconsideration shows “clear evidence of error” on the part of OWCP.7
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.8 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.9 Evidence which does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error.10 It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion.11 To demonstrate clear evidence of error, the evidence submitted
2
See 5 U.S.C. § 8128(a); M.E., Docket No. 18-1497 (issued March 1, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
3

20 C.F.R. § 10.607(a).

4

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

5

F.N., Docket No. 18-1543 (issued March 6, 2019); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

L.C., Docket No. 18-1407 (issued February 14, 2019); Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma
Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).
7

W.R., Docket No. 18-1042 (issued February 12, 2019); see Gladys Mercado, 52 ECAB 255 (2001). Section
10.607(b) provides: “OWCP will consider an untimely application for reconsideration only if the application
demonstrates clear evidence of error on the part of [it] in its most recent merit decision. The application must establish,
on its face, that such decision was erroneous.” 20 C.F.R. § 10.607(b).
8

F.N., supra note 5; see Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

9

M.E., supra note 2; see Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

10

See Leon J. Modrowski, supra note 6; Jesus D. Sanchez, supra note 6.

11

See Leona N. Travis, supra note 9.

4

must not only be of sufficient probative value to create a conflict in medical opinion or establish a
clear procedural error, but must be of sufficient probative value to shift the weight of the evidence
in favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.12
The Board makes an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit
review in the face of such evidence.13
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. The last merit decision of record was OWCP’s March 14,
2018 decision. As appellant’s request for reconsideration was received by OWCP on March 28,
2019, more than one year after the March 14, 2018 merit decision, it was untimely filed.
Consequently, she must demonstrate clear evidence of error by OWCP in denying her claim.14
The Board further finds that the evidence submitted in support of appellant’s untimely
request for reconsideration raises a substantial question as to the correctness of OWCP’s March 14,
2018 merit decision and is sufficient to demonstrate clear evidence of error.15
Appellant has alleged on reconsideration that she sustained a traumatic injury on one day
and that the employing establishment improperly required that her claim be filed on a Form CA-2
for an occupational disease. She has consistently, throughout the development of her claim,
asserted that her claim was one for a traumatic injury. In support of her March 28, 2019
reconsideration request, appellant submitted reports from Drs. Chhadia and Tseng who treated her
for a right knee injury which occurred on March 13, 2017 when she was pushing a cart full of mail
and slipped on snow and ice and fell. These reports support that her injury occurred on March 13,
2017 as alleged. A traumatic injury is defined as a condition of the body caused by a specific event
or incident, or series of events or incidents, within a single workday or shift.16 An occupational
disease is defined as a condition produced by the work environment over a period longer than a
single workday or shift.17 Appellant’s claim is therefore one for a traumatic injury and not an
occupational disease.
Federal (FECA) Procedure Manual provides that, while a submission of an incorrect form
is a technical error, it is improper to deny a case because a claimant failed to submit the correct
12

W.K., Docket No. 18-1260 (issued February 5, 2019); Leon D. Faidley, Jr., supra note 5.

13

See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied,
41 ECAB 458 (1990).
14

Supra note 4. See also Debra McDavid, 57 ECAB 149 (2005).

15

See S.M., Docket No. 18-1499 (issued February 5, 2020) (OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation, if the claimant’s request for reconsideration shows clear evidence of
error on the part of the OWCP).
16

20 C.F.R. § 10.5(ee).

17

Id. at § 10.5(q).

5

form. Rather, OWCP should convert the incorrect claim form to the correct type and notify the
claimant and the employing establishment that the claim has been converted and explain the
reasons for the conversion.18
The Board therefore finds that she has raised a substantial question as to the correctness of
the March 14, 2018 merit decision and, thus, has demonstrated clear evidence of error.
The Board will reverse OWCP’s June 26, 2019 decision and remand the case for an
appropriate decision on the merits of appellant’s claim.
CONCLUSION
The Board finds that appellant has demonstrated clear evidence of error in OWCP’s
March 14, 2018 merit decision and, thus, OWCP improperly denied her request for reconsideration
of the merits of her claim.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2019 decision of the Office of Workers’
Compensation Programs is reversed and this case is remanded for further proceedings consistent
with this decision of the Board.
Issued: November 19, 2020
Washington, DC

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

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

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

18

Supra note 4 at Chapter 2.800.3(c)(2) (June 2011).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Brockton, MA, Employer
__________________________________________

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

Docket No. 10-345
Issued: August 23, 2010

Case Submitted on the Record

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

JURISDICTION
On November 18, 2009 appellant filed a timely appeal from an October 13, 2009 merit
decision of the Office of Workers’ Compensation Programs that denied his claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established he sustained an injury in the performance of
duty on February 13, 2008.
FACTUAL HISTORY
On August 18, 2009 appellant, a 48-year-old pipe fitter, filed a traumatic injury claim
(Form CA-1) for second- and third-degree burns on his left arm that he attributed to a
February 13, 2008 incident when a pipe he was repairing “broke” and “steam flashed.”
By letter dated September 4, 2009, the Office informed appellant that he had not
submitted sufficient information to establish his claim. Appellant was asked to provide a

detailed description of how his injury occurred and a narrative medical report from his treating
physician discussing the injury.
Appellant submitted hospital records, dated December 2, 2005, signed by Dr. Christina L.
Boulton, an orthopedic surgeon, who diagnosed a second-degree burn on appellant’s left wrist.
He also submitted a note, dated September 14, 2009, in which he authorized his wife to receive
copies of his medical records and bills concerning “injuries [he] sustained on or about
November 3, 2005.”
On October 8, 2009 appellant provided a statement in which he explained that his injury
occurred in a laundry room while he was working on a high pressure steam line. He noted that
after he unscrewed the nipple, water came out of the line and burned his left arm. Appellant did
not provide a date for this alleged incident.
By decision dated October 13, 2009, the Office denied the claim because appellant failed
to establish that the alleged event occurred.
LEGAL PRECEDENT
An employee who claims benefits under the Federal Employees’ Compensation Act1 has
the burden of establishing the occurrence of an injury at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.2 An injury does
not have to be confirmed by eyewitnesses in order to establish the fact that an employee
sustained an injury in the performance of duty, but the employee’s statements must be consistent
with the surrounding facts and circumstances and his or her subsequent course of action.3 An
employee has not met his or her burden of proof of establishing the occurrence of an injury when
there are such inconsistencies in the evidence as to cast serious doubt upon the validity of the
claim.4 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.5
ANALYSIS
Appellant attributed his alleged injury to a February 13, 2008 incident when a pipe he
was repairing “broke” and “steam flashed.” When an employee claims that he sustained an
injury in the performance of duty, he must submit sufficient evidence to establish that he

1

5 U.S.C. §§ 8101-8193.

2

D.B., 58 ECAB 464 (2007); George W. Glavis, 5 ECAB 363, 365 (1953).

3

M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); George W. Glavis, supra note 2.

4

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Gus Mavroudis, 9 ECAB 31, 33 (1956).

5

M.H., supra note 3; John D. Shreve, 6 ECAB 718, 719 (1954).

2

experienced a specific event, incident or exposure occurring at the time, place and in the manner
alleged.6 This is a question of fact that can be proven by medical or lay opinion evidence.
To support his claim, appellant submitted Dr. Boulton’s December 2, 2005 report and a
note, dated September 14, 2009, in which appellant authorized his wife to receive copies of his
medical records and bills regarding his November 3, 2005 injury. As noted above, 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,7 but
Dr. Boulton’s report pertains to a date of injury years prior to February 13, 2008 and appellant’s
September 14, 2009 note also pertains to an alleged injury of November 3, 2005, not
February 13, 2008. Thus, this evidence contradicts that the February 13, 2008 incident actually
occurred as alleged.
The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one, which can be identified on visual inspection.8 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.9
In this case, however, appellant has only submitted evidence regarding a left arm burn,
which occurred years prior to the date of injury. The Board must therefore find that appellant
has not established a left arm burn on February 13, 2008.
An award of compensation may not be based on surmise, conjecture or speculation.
Because appellant did not submit sufficient evidence demonstrating the alleged February 13,
2008 incident actually occurred as alleged, the Office properly denied his claim.
CONCLUSION
The Board finds that appellant has not established he sustained an injury in the
performance of duty on February 13, 2008.

6

See E.A., 58 ECAB 677 (2007); Arthur C. Hamer, 1 ECAB 62 (1947).

7

S.P., supra note 4; Wanda F. Davenport, 32 ECAB 552 (1981).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

9

A.S., 59 ECAB ___ (Docket No. 07-1701, issued December 10, 2007); Naomi A. Lilly, 10 ECAB 560,
573 (1959).

3

ORDER
IT IS HEREBY ORDERED THAT the October 13, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 23, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4