United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Urbandale, IA,
Employer
__________________________________________

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

Docket No. 18-0877
Issued: November 21, 2018

Case Submitted on the Record

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

JURISDICTION
On March 19, 2018 appellant filed a timely appeal from a January 22, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.
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ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability commencing March 18, 2015 causally related to her accepted employment conditions.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On January 8, 1997 appellant, then a 26-year-old transitional sorting machine operator,
filed an occupational disease claim (Form CA-2) alleging that she developed employment-related
bilateral carpal tunnel syndrome. OWCP assigned the claim OWCP File No. xxxxxx614 and
accepted it for bilateral carpal tunnel syndrome.4
On January 12, 2011 appellant filed a recurrence (Form CA-2a) for disability commencing
November 29, 2010 when she began her new job assignment. By letter dated March 7, 2011,
OWCP advised her that it was developing the recurrence claim as a claim for a new injury. It
assigned that claim OWCP File No. xxxxxx013.5
Dr. Eugene Cherny, Board-certified in orthopedic and hand surgery, performed
decompression surgery on appellant’s left arm on October 26, 2011 and on the right arm on
December 28, 2011. On March 6, 2012 he reported that she could return to work without
restrictions.
By decision dated April 20, 2011, OWCP denied appellant’s claim. Appellant
subsequently appealed to the Board. By decision dated May 21, 2012, the Board remanded the
case to OWCP for further development.6 OWCP thereafter accepted the conditions of bilateral
carpal tunnel syndrome, bilateral ulnar nerve lesions, bilateral other mononeuritis of the upper
limbs, a left keloid scar, bilateral pronator syndrome, and an injury to the right ulnar nerve.
On April 20, 2013 Dr. Cherny placed restrictions on appellant’s work activities. Appellant
accepted a light-duty job offer on May 23, 2013. The duties listed were to load mail onto outbound
trailers for four hours daily and work rewrap for four hours daily. The physical requirements
included manually loading containers of mail with assistance and performing “first aid” on
damaged or opened mail pieces.
3

Docket No. 16-0503 (issued September 13, 2016); Docket No. 13-0665 (issued June 11, 2013); and Docket No.
12-0234 (issued May 21, 2012).
4

At the time of the 1997 claim, appellant was a transitional duty employee at the O’Hare Air Mail Facility, Chicago,
IL. In late 2010, she transferred to the employing establishment’s facility in Urbandale, IA.
5

OWCP administratively combined OWCP File No. xxxxxx013 and File No. xxxxxx614, with OWCP File No.
xxxxxx614 serving as the master file.
6

Docket No. 12-0234 (issued May 21, 2012).

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In reports dated September 4 to November 11, 2014, Dr. Cherny indicated that appellant
reported that approximately four months prior her job had changed and now required increased
lifting of mail and increased repetition. He noted symptoms of increasing bilateral hand, wrist,
forearm, elbow, and shoulder pain and provided physical examination findings of decreased
strength and positive impingement signs bilaterally. Dr. Cherny reported that appellant could work
with a 10-pound lifting restriction and no lifting above the shoulder.
Appellant filed a notice of recurrence (Form CA-2a) on April 23, 2015. She indicated that
the date of the recurrence was October 9, 2014 and she stopped work after the recurrence on
March 18, 2015. Appellant reported that she had returned to her regular duties and the same
problems of numbness, tingling, swelling, and fatigue in her arms and hands had returned.
On a disability slip dated March 26, 2015 Dr. Cherny indicated that appellant should be
excused from work from March 18 to 23, 2015 due to increased arm fatigue, swelling, and
discomfort. On April 2, 2015 appellant had an electromyography and a nerve conduction velocity
(EMG/NCV) test which revealed bilateral moderate median nerve dysfunction at the wrist, right
slightly worse than the left. In a form report dated April 9, 2015, Dr. Cherny indicated that
appellant was unable to work and requested authorization for bilateral radial tunnel releases.
By decision dated July 22, 2015, OWCP denied the claim for a recurrence of disability
commencing March 18, 2015, finding that appellant had not met her burden of proof to establish
disability due to a material change or worsening of her accepted work-related conditions.
Appellant requested reconsideration on July 30, 2015. She indicated that she experienced
arm symptoms in September 2014 and returned to light duty. Appellant also indicated that in
February 2015 she lost feeling in her hands, and that the numbness, tingling, and stiffness returned
in her arms along with pain and fatigue. She reported that she performed limited gripping, lifting,
and grabbing with her arms and hands.
In a report dated June 10, 2015, Dr. Cherny opined that appellant had intermittent
symptoms involving her shoulders, but these had resolved. He reported the April 2, 2015
EMG/NCV study findings. According to Dr. Cherny, appellant’s job involved repetitive gripping,
twisting, and pinching, with pushing and pulling of mail carts and occasional lifting. He noted
that she had been off work since March 18, 2015 with increased upper extremity symptoms.
Dr. Cherny opined that appellant’s recurrent carpal tunnel syndrome was causally related to her
job duties. He further opined that a diagnosis of bilateral radial tunnel syndrome could also be
related to her work activities. Dr. Cherny continued to advise that she could not work.
By decision dated October 2, 2015, OWCP reviewed the merits of the claim, but denied
modification of the July 22, 2015 decision, finding the evidence of record was insufficient to
establish a recurrence of total disability.
On January 21, 2016 appellant appealed to the Board. By decision dated September 13,
2016, the Board affirmed the October 2, 2015 decision finding that the medical evidence of record

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did not establish a spontaneous change in the accepted employment-related conditions as of
March 18, 2015.7
On March 13, 2017 appellant requested reconsideration of the merits of her claim. She
alleged that she continued to be disabled due to the accepted conditions.
In treatment notes dated March 12, 2015 to June 2, 2016, Dr. Cherny noted appellant’s
continued complaints of worsening bilateral arm pain, numbness, and weakness with a reported
history of difficulty lifting heavy objects and dropping things. Examination findings included
diminished grip strength and tactile sensation involving the median nerve in both hands.
Dr. Cherny indicated that the April 2, 2015 EMG/NCV study findings confirmed the presence of
bilateral carpal tunnel syndrome and also indicated that appellant had increased symptoms
suggestive of radial tunnel syndrome bilaterally. He advised that she could not work and opined
that her compression neuropathies were related to the repetitive nature of her work at the
employing establishment. Dr. Cherny recommended additional surgery. On November 19, 2015
and March 10, 2016, he advised that appellant’s bilateral upper extremity compression
neuropathies and bilateral epicondylitis were due to her work activities as a mail carrier.
In a January 18, 2017 report, Dr. Sonya Agnew, a hand surgeon Board-certified in plastic
surgery, noted that appellant was first seen on September 26, 2016 for complaints of bilateral hand
numbness and tingling that began in 1996 and recurred after surgery and a return to work. She
diagnosed left forearm pain and bilateral carpal tunnel syndrome with numbness and tingling in
both hands. As to appellant’s ability to perform work-related activities, Dr. Agnew indicated that
this required a functional capacity examination (FCE) to determine them.
January 25, 2017 EMG/NCV studies indicated evidence of median mononeuropathy
bilaterally. The ulnar nerves were normal. A February 16, 2017 magnetic resonance imaging
(MRI) scan of the left forearm demonstrated fusiform thickening and hyperintensity of the median
nerve proximal to the carpal tunnel, consider carpal tunnel syndrome, and multiple wrist ganglion.
By decision dated May 5, 2017, OWCP denied modification finding that the medical
evidence of record contained insufficient explanation as to how appellant’s work duties had caused
her current medical condition.8
On May 22, 2017 appellant requested reconsideration of the May 5, 2017 decision. She
indicated that in a two-year span she accepted two light-duty job offers, and her hands and forearms
still “went out.” Appellant reported that her condition worsened when she changed facilities9 and
that after her surgery she returned to regular mail handler duties which required lifting up to 70
pounds repetitively, and pushing and pulling up to 800 pounds, which she could not perform.

7

Docket No. 16-0503 (issued September 13, 2016).

8

OWCP is not authorized to review Board decisions. Although the September 13, 2016 decision was the last merit
decision, OWCP’s October 2, 2015 decision is the appropriate subject of possible modification by OWCP. See 20
C.F.R. 501.6(d).
9

Supra note 3.

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July 18, 2016 EMG/NCV studies demonstrated evidence of bilateral carpal tunnel
syndrome (median neuropathy) bilaterally.
Dr. Agnew reported on May 3, 2017 that appellant had pain in both hands with bilateral
hand weakness, tingling, and numbness. She reviewed appellant’s February 2017 MRI scan
findings. In a May 17, 2017 report, Dr. Agnew related that, based on an FCE of May 5, 2017,
appellant had restrictions of less than 10 pounds lifting and carrying bilaterally, with occasional
reaching, handling, fingering, feeling, pushing, pulling, balancing, and kneeling. She performed
left open carpal tunnel release, revision on June 19, 2017.
On May 17, 2017 Dr. Agnew completed a residual functional capacity form. She noted
appellant’s complaints of bilateral hand pain which was moderate-to-severe as well as tingling and
numbness. Dr. Agnew diagnosed bilateral carpal tunnel syndrome and noted that appellant would
undergo additional surgery. She reiterated limitations on appellant’s upper extremity activities.
By decision dated August 18, 2017, OWCP denied modification of its prior decision. It
found that appellant’s attending physicians had failed to provide sufficient medical rationale to
explain how her current conditions were causally related to her original injury.
Appellant requested reconsideration of the August 18, 2017 decision on October 23, 2017.
She maintained that her light-duty requirements aggravated her injury such that she could not
work.
A June 7, 2017 emergency department report noted that appellant was seen by Dr. Claudine
Feliciano, an osteopath, for diagnoses of diffuse arm pain and bilateral carpal tunnel syndrome.
Appellant’s medications were listed, and she was to be seen in follow-up by Dr. Agnew.
On September 20, 2017 Dr. Agnew noted that appellant had been undergoing hand therapy
on the left. She performed revision right open carpal tunnel release and incision of A1 pulley of
the right thumb on October 2, 2017.
In correspondence dated October 16, 2017, appellant maintained that she had been
performing light-duty work for two years prior to the recurrence of disability in March 2015, but
then her condition worsened.
Appellant also submitted copies of evidence previously of record, including the modified
job offer accepted by her on May 23, 2013 which indicated that she would manually load
containers of mail with assistance and perform “first aid” on damaged or opened mail pieces.
By decision dated January 22, 2018, OWCP denied modification of its August 18, 2017
decision. It found that the medical evidence submitted did not explain how appellant’s work
conditions worsened or aggravated the accepted conditions such that she could no longer work
after March 18, 2015.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a previous
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injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.10 This term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the work-related 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 so that they exceed his or her established physical limitations.11
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 of proof 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
injury-related condition, or a change in the nature and extent of the light-duty requirements.12
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 employees to self-certify their disability and entitlement
to compensation.13
An individual who claims a recurrence of disability resulting from an accepted employment
injury has the burden of proof to establish that the disability is related to the accepted injury. This
burden requires furnishing medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disabling condition is causally related to
the employment injury and supports that conclusion with sound medical reasoning.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability commencing March 18, 2015 causally related to her accepted employment conditions.15
The Board notes that it previously reviewed Dr. Cherny’s reports dated through June 10,
2015 and found them to be insufficient to establish a recurrence of disability. By decision dated
September 13, 2016, the Board found that the evidence of record did not establish that the work
appellant performed after her return to work had caused an aggravation of her carpal tunnel

10

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

11

Id.

12
Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).
13

See H.C., Docket No. 16-0145 (issued March 2, 2016).

14

S.S., 59 ECAB 315 (2008).

15

See H.T., Docket No. 17-0209 (issued February 8, 2018).

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syndrome.16 Absent further merit review of this issue by OWCP, pursuant to section 8128 of
FECA, the Board’s prior findings with regard to Dr. Cherny’s earlier reports are res judicata.17
The Board will therefore not review the evidence addressed in the prior appeal.
As to Dr. Cherny’s subsequent reports, he advised that appellant could not work due to
worsening bilateral hand and arm pain, numbness, and tingling and related that her increased
symptoms were due to repetitive duties of her mail carrier position. The record does not indicate
that appellant was ever a mail carrier, but rather, at the time she stopped work on March 18, 2015
she was working in a modified mail handler position, not as a mail carrier. The Board finds that,
as Dr. Cherny did not relate her diagnosed hand and arm condition to her modified duties described
above, his opinion is of insufficient probative value. Dr. Cherny only generally described
appellant’s work duties. He expressed no knowledge of the amount of time she spent performing
any work activities he described, and he provided no explanation as to the mechanics of how the
listed work duties resulted in her claimed recurrence of disability. Thus, Dr. Cherny’s reports are
insufficient to meet appellant’s burden of proof.18
Dr. Agnew began treating appellant in September 2016. Although she diagnosed bilateral
carpal tunnel syndrome, performed revision carpal tunnel releases on both arms, and noted
appellant’s physical restrictions, Dr. Agnew did not specify any period of total disability causally
related to the accepted conditions. Dr. Agnew’s reports are insufficiently detailed to establish a
specific period of disability due to appellant’s accepted conditions.19 She did not explain exactly
when and why appellant stopped work and did not explain how her accepted conditions rendered
her totally disabled. Medical evidence that does not explain the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.20
Similarly, Dr. Feliciano reported on July 7, 2017 that appellant was seen for diffuse arm
pain. She diagnosed bilateral carpal tunnel syndrome, but offered no opinion regarding appellant’s
alleged period of disability causally related to the accepted employment conditions.21
Appellant also submitted diagnostic studies to the record. Diagnostic studies lack probative
value as they do not address whether the diagnosed conditions caused a recurrence of disability
causally related to the accepted injury.22

16

See A.C., Docket No. 18-0484 (issued September 7, 2018).

17

See T.B., Docket No. 15-0001 (issued July 1, 2015). A decision of the Board is final upon the expiration of 30
days from the date of the decision. 20 C.F.R. § 501.6(d).
18

See E.M., Docket No. 18-0275 (issued June 8, 2018).

19

Supra note 13.

20

Willie M. Miller, 53 ECAB 697 (2002).

21

Supra note 15.

22
See Thirston Jenious Jr., Docket No. 04-2215 (issued June 13, 2005); see also E.R., Docket No. 18-0391 (issued
August 24, 2018).

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The Board therefore finds that appellant has not met her 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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability commencing March 18, 2015 causally related to her accepted employment conditions.
ORDER
IT IS HEREBY ORDERED THAT the January 22, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 21, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
DEPARTMENT OF COMMERCE,
U.S. CENSUS BUREAU, Castiac, CA, Employer
__________________________________________

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

Docket No. 14-1285
Issued: November 4, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 15, 2014 appellant filed a timely appeal from an April 30, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP) terminating her compensation benefits
and denying her consequential injury claim. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation benefits effective April 30, 2014 on the grounds that she no longer had any
residuals or disability causally related to her May 22, 2010 employment injuries; and (2) whether
appellant sustained a neck injury as a consequence of her accepted employment-related injuries.
On appeal, appellant contends that her neck condition should be considered a covered
injury because a chiropractor caused this injury. She further contends that she sustained anxiety
1

5 U.S.C. § 8101 et seq.

and depression as a direct result of her accepted employment injuries. Appellant asserts that she
is unable to return to part-time work at the employing establishment due to her neck and lower
back pain and because her date-of-injury position no longer exists and she does not have the
skills to return to work as a paralegal.
FACTUAL HISTORY
OWCP accepted that on May 22, 2010 appellant, then a 48-year-old part-time temporary
enumerator, sustained traumatic left pneumothorax and lung contusion without an open wound
into the thorax, closed fractured of multiple cervical and lumbar vertebra at L1 and L2 without a
spinal cord injury, sprain of the right shoulder and upper arm at an unspecified site and sprain of
the right rotator cuff as a result of a motor vehicle accident while in the performance of duty. On
January 6, 2011 appellant underwent right shoulder arthroscopic surgery performed by
Dr. Tarek Y. Bittar, an attending Board-certified orthopedic surgeon. OWCP paid total disability
compensation.
An unsigned cervical computerized tomography (CT) scan report dated May 22, 2010
contained the printed name of Dr. Gerald M. Roth, a Board-certified radiologist. The report
stated that there was no evidence of cervical spine fracture or dislocation. There was left apical
pneumothorax.
In medical reports dated May 28 and June 25, 2010, Dr. Bittar obtained a history of the
May 22, 2010 employment injuries and appellant’s nonwork-related injuries which included
whiplash. He noted her current complaint of severe pain in the right shoulder and inability to
actively elevate her arm. Dr. Bittar provided findings on physical examination and reviewed the
results of a right shoulder magnetic resonance imaging (MRI) scan. He assessed right shoulder
bursitis and cervical whiplash. Dr. Bittar advised that appellant was temporarily totally disabled.
In an April 13, 2011 report, he provided examination findings and assessed status post
arthroscopy and rotator cuff repair of the right shoulder. Dr. Bittar advised that appellant could
return to light-duty work with no overhead lifting or lifting more than 10 pounds. In an
August 15, 2012 report, he obtained a history of the May 22, 2010 employment injuries and her
medical treatment, occupational, social and family background. Dr. Bittar listed findings on
physical and neurological examination. He assessed right shoulder rotator cuff tear casually
related to the May 22, 2010 employment injury. Dr. Bittar advised that appellant had reached
maximum medical improvement as of the date of his examination. He concluded that she had no
subjective or objective factors of disability entitling her to a schedule award under the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment. Dr. Bittar further concluded that appellant had no need for further medical
treatment and she had no functional capacity limitations related to her right shoulder.
In a June 17, 2010 report, Dr. Sherwin E. Hua, a Board-certified neurosurgeon, obtained
a history that on May 22, 2010 appellant was involved in a bad car accident and sustained severe
whiplash and broken bones in her back. She complained of severe dizziness following the
accident. Dr. Hua also obtained a history of appellant’s medical treatment, reviewed diagnostic
test results, including the May 22, 2010 cervical CT scan and listed findings on physical
examination. He prescribed further diagnostic testing and medication to treat her dizziness to
rule out vertigo and an ear infection. In a May 17, 2011 report, Dr. Hua provided a history that

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appellant was status post the May 22, 2010 employment-related motor vehicle accident and
January 2011 right shoulder surgery. He noted that she limited herself to lifting 10 pounds.
Dr. Hua also noted that a July 1, 2010 lumbar MRI scan demonstrated a L4-5 disc bulge. He
advised that neurologically appellant was at baseline. Appellant was able to move all extremities
with antigravity strength. Dr. Hua continued to recommend a lifting limitation. He concluded
that if no modified work was available, then the employing establishment must keep appellant
off work until such work became available.
In a work capacity evaluation (Form OWCP-5c) dated May 1, 2012, Dr. Hua advised that
appellant was capable of performing her usual job. He stated that he was unable to determine if
she could work eight hours a day since he had not seen her since July 15, 2011.
In a June 21, 2013 report, Dr. Mark A. Liker, an attending Board-certified neurosurgeon,
obtained a history of the May 22, 2010 employment-related injuries and appellant’s medical
treatment. He noted that her current complaints of pain at the base of the skull and neck to the
shoulder, stabbing low back pain and burning sensation at the left paraspinal muscles medial to
the scapula. Appellant felt numbness to the touch in the medial area of her left scapula. Her
neck pain was relieved by treatment by a chiropractor. On examination, Dr. Liker reported
active range of motion of the cervical spine to 80 degrees each of right and left rotation.
Appellant was stiff and tense at right lateral flexion of 30 degrees and left lateral flexion of 45
degrees. She also felt tense and pain in her neck with extension of 30 degrees and flexion of 45
degrees. Appellant had pain in her upper shoulder blade. She was tender to palpation around the
T4 area on the left paraspinals in the suboccipital area on the left sacroiliac joint. Active range
of motion of the lumbar spine was full with rotation being full with extension. Appellant had
pain in the left sacroiliac joint and with flexion in the left sacroiliac joint bilateral lateral flexion.
She also had left-sided low back pain in the sacroiliac area. Dr. Liker diagnosed lumbago status
post-traumatic, cervical sprain and mid back pain. He noted that appellant was not working at
that time.
In a September 23, 2013 report, Dr. Liker obtained a history of the May 22, 2010
employment-related injuries and appellant’s medical treatment. He noted that her complaint of
low back pain had not improved with physical therapy and conservative measurement.
Appellant also complained about neck pain that she related to the accepted injury. She requested
to return to work four hours at a time. On physical examination, Dr. Liker reported no acute
distress and intact extraocular motions. Appellant was alert and oriented. Strength against
resistance in her upper and lower extremity was 5/5. Deep tendon reflexes were intact. There
was a negative Hoffmann’s test and negative clonus. Dr. Liker reiterated his diagnosis of
lumbago and diagnosed neck pain. He stated that appellant’s back pain had improved, noting
that it only worsened after activity and long periods of sitting and standing. Dr. Liker also noted
her desire to return to work. He cleared appellant to return to part-time work at least four hours a
day and increasing to six to eight hours a day if she could work more than four hours. Dr. Liker
related that her neck pain may be related to her employment-related low back injury. He stated
that appellant did not need to follow up with him and that she would perform well at work.
Dr. Liker concluded that if no modified work was available, then the employing establishment
must keep her off work until such work became available.

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In a Form OWCP-5c dated September 23, 2013, Nathan Allen, a physician’s assistant in
Dr. Liker’s office, stated that appellant could perform her usual job, but she could not work more
than four hours a day. Appellant was also limited to sitting and standing four hours a day for
three to six months. Mr. Allen stated that she could work eight hours a day in one to two
months.
A July 1, 2010 cervical MRI scan report from Dr. Richard L. Goldman, a Board-certified
radiologist, was read as normal without and with intravenous contrast.
By letter dated November 25, 2013, OWCP requested that the employing establishment
submit a description of appellant’s enumerator position, which was necessary to determine her
ability to perform her date-of-injury position.
In a December 3, 2013 letter, the employing establishment stated that appellant was hired
on April 23, 2010 for an intermittent temporary term position not to exceed June 23, 2010. It
submitted a copy of her enumerator position description which listed its duties and
responsibilities. The employing establishment also submitted a duty status form report (Form
CA-17) which stated that an enumerator/crew leader worked 4.5 hours a day, 4 days a week.
The intermittent physical demands of the position included: lifting five pounds and simple
grasping, 3 hours a day; sitting 3.5 hours a day; standing, walking and driving a vehicle, 2 hours
a day; climbing .50 hour a day; bending, stooping, twisting, .25 hour a day; and fine
manipulation 1 hour a day.
By letter dated February 4, 2014, OWCP notified appellant that it proposed to terminate
her wage-loss compensation benefits based on Dr. Liker’s opinion. It stated that the physical
requirements of her enumerator position did not exceed the work restrictions set forth by
Dr. Liker and Mr. Allen.
In a February 14, 2014 letter, appellant contended that she sustained a neck injury as a
result of her May 22, 2010 employment-related motor vehicle accident. She further contended
that she was entitled to retraining due to the unavailability of a census enumerator position.
Appellant stated that another census would not take place until 2020. She objected to being
released to part-time employment as it did not restore her to her preinjury status. Appellant
stated that, although she worked part time at the employing establishment she was ready and
available to work full time. She related that it was not until after she was hired to work at the
employing establishment that she was informed that she would probably only work part time.
In an April 30, 2014 decision, OWCP terminated appellant’s wage-loss compensation
effective that date, finding that the September 23, 2013 opinion of Dr. Liker represented the
weight of the medical evidence and established that she no longer had any total disability due to
her May 22, 2010 work injuries. It stated that she remained entitled to medical benefits for her
accepted injury-related conditions. OWCP further found that the medical evidence was
insufficient to establish that appellant sustained a neck injury as a consequence of her accepted
work injury.

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LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.2
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for traumatic left pneumothorax and lung contusion
without an open wound into the thorax, closed fractured of multiple cervical and lumbar vertebra
at L1 and L2 without a spinal cord injury, sprain of the right shoulder and upper arm at an
unspecified site and sprain of the right rotator cuff as a result of a May 10, 2012 motor vehicle
accident while in the performance of duty. It paid wage-loss compensation and medical benefits.
OWCP terminated appellant’s wage-loss compensation effective April 30, 2014 as the medical
evidence established that her disability had ceased. It found that the September 23, 2013 opinion
of Dr. Liker, appellant’s attending physician, represented the weight of the evidence and
established that she had no further employment-related disability.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
entitlement to wage-loss benefits effective April 30, 2014. In a September 23, 2013 report,
Dr. Liker found that appellant could return to part-time work at least four hours a day and
increasing to six to eight hours a day if she was able to work more than four hours. He provided
normal findings on physical examination and diagnosed lumbago and neck pain. Dr. Liker stated
that appellant’s back pain had improved and only worsened after activity and long periods of
sitting and standing. He concluded that if no modified work was available, then the employing
establishment must keep appellant off work until such work became available.
The Board finds that the opinion of Dr. Liker is not well rationalized. Dr. Liker provided
no opinion regarding the relevant issue of whether appellant’s accepted May 22, 2010
employment-related conditions had resolved. He also did not provide any opinion as to whether
her diagnosed lumbago condition was causally related to the accepted injuries. The Board notes
that OWCP has not accepted the condition of lumbago.4 While Dr. Liker noted appellant’s back
pain with activity and prolonged sitting and standing, he did not provide any specific restrictions
regarding these activities especially in light of her enumerator job description which required her

2

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

3

Gewin C. Hawkins, 52 ECAB 242 (2001).

4

See T.M., Docket No. 08-975 (issued February 6, 2009) (for conditions not accepted or approved by OWCP as
being due to an employment injury, the claimant bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence); see also Jaja K.
Asaramo, 55 ECAB 200 (2004).

5

to sit 3.5 hours and stand 2 hours a day. Further, his opinion that her cervical pain “may” be
related to her employment injuries is speculative in nature and, thus, of little probative value.5
The Board notes that pain is a description of a symptom rather than a clear diagnosis of a
medical condition.6 Dr. Liker’s opinion is not sufficiently rationalized to establish that
appellant’s conditions ceased with no residuals of her employment-related injuries.7 His opinion
was vague and speculative, failing to provide any explanation regarding whether her traumatic
left pneumothorax and lung contusion without an open wound into the thorax, closed fractured of
multiple cervical and lumbar vertebra at L1 and L2 without a spinal cord injury, sprain of the
right shoulder and upper arm at an unspecified site and sprain of the right rotator cuff had
resolved with no further total disability. The Board has consistently held that a medical opinion
not fortified by rationale is of limited probative value.8 Given the deficiencies in Dr. Liker’s
report, OWCP failed to meet its burden of proof to terminate appellant’s wage-loss compensation
benefits effective April 30, 2014.9 The termination decision will be reversed.10
LEGAL PRECEDENT -- ISSUE 2
With respect to consequential injuries, it is an accepted principle of workers’
compensation law that, when the primary injury is shown to have arisen out of and in the course
of employment, every natural consequence that flows from the injury is deemed to arise out of
the employment, unless it is the result of an independent intervening cause which is attributable
to the employee’s own intentional conduct.11 The basic rule is that a subsequent injury, whether
an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury.12
A claimant bears the burden of proof to establish a claim for a consequential injury.13 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is an opinion of reasonable medical certainty and be supported by sound medical

5

See D.D., 57 ECAB 734 (2006).

6

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. C.F.,
Docket No. 08-1102 (issued October 10, 2008).
7

V.C., Docket No. 11-1561 (issued February 15, 2012).

8

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
9

J.K., Docket No. 13-327 (issued August 7, 2013).

10

D.H., Docket No. 12-1975 (issued June 5, 2013).

11

Albert F. Ranieri, 55 ECAB 598 (2004).

12

See A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

13

J.A., Docket No. 12-603 (issued October 10, 2012).

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rationale explaining the nature of the relationship of the diagnosed condition and the specific
employment factors or employment injury.14
ANALYSIS -- ISSUE 2
OWCP accepted appellant’s claim for employment-related traumatic left pneumothorax
and lung contusion without an open wound into the thorax, closed fracture of multiple cervical
and lumbar vertebra at L1 and L2 without a spinal cord injury, sprain of the right shoulder and
upper arm at an unspecified site and sprain of the right rotator cuff. The Board finds that she has
not submitted sufficient medical evidence to establish a cervical condition as a consequence of
her accepted employment injuries.
Dr. Liker’s September 23, 2013 report which found that appellant’s cervical pain “may”
be related to her employment-related low back injury is speculative in nature and, thus, of little
probative value15 and does not provide the rationale needed to establish causal relation. Also, as
previously noted in this decision, pain is a symptom and not a compensable medical diagnosis.16
Dr. Liker’s June 21, 2013 report provided a history of the May 22, 2010 employment injuries,
listed findings on physical examination and diagnosed lumbago, cervical sprain and mid back
pain. He did not provide any medical opinion stating that the diagnosed conditions were causally
related to the accepted employment injuries. The Board has found that 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.17 The Board finds that Dr. Liker’s reports are
insufficient to establish appellant’s claim.
Similarly, Dr. Bittar’s May 28 and June 25, 2010 reports are insufficient to establish
appellant’s consequential injury claim as they do not address whether her diagnosed right
shoulder bursitis and cervical whiplash and resultant temporary total disability were caused by
the May 22, 2010 employment injuries.
Dr. Hua’s June 17, 2010 report provided a history that appellant sustained severe
whiplash and broken bones in her back as a result of the May 22, 2010 employment injuries. He
noted that she complained about severe dizziness following the accepted employment incident.
Dr. Hua presented examination findings and prescribed further diagnostic testing related to
appellant’s dizziness. His finding of dizziness is vague and speculative.18 As to the issue of
causal relationship, Dr. Hua appears to repeat the history of injury as reported by appellant
without providing his own cervical diagnosis and rationale explaining how this condition was
work related. He failed to provide a rationalized opinion explaining the causal relationship
14

Id.

15

See supra note 5.

16

C.F., supra note 6.

17

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie M. Miller, 53 ECAB 697 (2002);
Michael E. Smith, 50 ECAB 313 (1999).
18

Supra note 5.

7

between her cervical condition and the May 22, 2010 employment injuries.19 The Board finds,
therefore, that Dr. Hua’s report is insufficient to establish appellant’s claim.
Dr. Goldman read his July 1, 2010 cervical MRI scan as normal without and with
intravenous contrast. As he did not opine that appellant sustained a cervical condition causally
related to the accepted employment injuries, his report is insufficient to establish her burden of
proof.20
The unsigned cervical CT scan report which contained Dr. Roth’s printed name found no
evidence of cervical spine fracture or dislocation and evidence of left apical pneumothorax. This
evidence has no probative medical value as it is not established that the report was authored by a
physician.21
The Board finds that the medical evidence of record is insufficient to establish that
appellant sustained a cervical condition as a consequence of her accepted employment injuries.
Appellant did not meet her burden of proof.
On appeal, appellant contended that her neck condition should be considered a covered
injury because a chiropractor caused this injury. However, it is her burden of proof to submit the
necessary medical evidence to establish a new or consequential injury. As discussed above,
appellant has not met her burden of proof as the medical evidence submitted is insufficient to
establish a consequential relationship between her accepted work-related conditions and her
claimed neck condition.
Appellant further contended on appeal that she sustained anxiety and depression as a
direct result of her accepted employment injuries. However, this argument was not raised before
OWCP and the Board may not consider it for the first time on appeal.22
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 OWCP improperly terminated appellant’s wage-loss compensation
benefits effective April 30, 2014 on the grounds that she no longer had any residuals or disability
causally related to her May 22, 2010 employment injuries. The Board further finds, however,
that appellant has failed to establish that she sustained a neck injury as a consequence of her
accepted employment-related injuries.

19

See cases cited, supra note 17.

20

Id.

21

See Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 384, 385 (1960).

22

20 C.F.R. § 501.2(c)(1).

8

ORDER
IT IS HEREBY ORDERED THAT the April 30, 2014 decision of the Office of
Workers’ Compensation Programs is reversed in part regarding the termination of compensation
benefits and affirmed in part regarding the denial of the consequential injury claim.
Issued: November 4, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Independence, KS, Employer
__________________________________________

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

Docket No. 19-1539
Issued: January 27, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 11, 2019 appellant, through counsel, filed a timely appeal from a June 14, 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 July 29, 2014, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
FACTUAL HISTORY
On May 27, 2014 appellant, then a 62-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on January 21, 2014, he sustained injuries to his neck, left arm/hand,
lower back, and right lower extremity when the long-life vehicle (LLV) he was operating was
struck by a truck while in the performance of duty. On the reverse side of the claim form, the
employing establishment indicated that appellant stopped work on April 3, 2014.3
A January 22, 2014 employing establishment accident report (PS Form 1769/301) provided
specific details regarding appellant’s January 21, 2014 work-related motor vehicle accident
(MVA).
In an April 4, 2014 note, Dr. Yogesh Kolwadkar, an orthopedic surgeon, stated that
appellant should be non-weight-bearing on the right lower extremity for approximately two weeks.
In a June 25, 2014 development letter, OWCP informed appellant of the deficiencies of his
claim and requested additional medical evidence. It explained that the then-current record did not
include a diagnosis of any condition resulting from his injury. OWCP afforded appellant 30 days
to submit the requested medical evidence.
By decision dated July 29, 2014, OWCP denied appellant’s claim, finding that he had not
submitted medical evidence containing a diagnosis by a qualified physician with regard to the
accepted January 21, 2014 employment incident.
In November 2014, OWCP received appellant’s May 20, 2014 emergency department
treatment records. Dr. Melinda R. Allen, a Board-certified family practitioner, diagnosed lumbar
muscle spasm and lumbar radiculopathy. She noted that appellant had presented with lower back
pain, knee pain, and neck pain, which had persisted for several weeks, and that he had returned to
work three days prior.
On August 27, 2015 appellant requested reconsideration of OWCP’s July 29, 2014
decision.
In a February 13, 2015 attending physician’s report (Form CA-20), Dr. Traeger Tvedten, a
chiropractor, diagnosed degenerative disc disease of the cervical and lumbar spine, noting different
symptoms since a January 21, 2014 MVA. He checked a box marked “yes” indicating that

3

The employing establishment further noted that appellant was in the performance of duty when injured, and that
his injury was caused by a third party. However, it challenged appellant’s entitlement to continuation of pay (COP)
because of the more than 30-day delay in filing his traumatic injury claim.

2

appellant’s condition was caused or aggravated by the incident, explaining that his symptoms were
aggravated after the MVA in a postal vehicle.
By decision dated September 23, 2015, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
On December 5, 2016 appellant, through counsel, again requested reconsideration of
OWCP’s July 29, 2014 decision.4 He referenced 5 U.S.C. § 8128(a) in support of his motion, and
provided additional medical evidence.
A September 13, 2016 magnetic resonance imaging (MRI) scan of appellant’s thoracic
spine revealed a benign hemangioma in the T1 vertebral body, abnormal signal intensity in the
inferior endplate of T3 and superior endplate of T4, and no evidence of disc herniation or central
canal stenosis.5
In a November 5, 2016 letter, Dr. Robert Legler, a Board-certified internist, opined that
appellant’s back pathology was very likely exacerbated, if not caused by his past car accident. He
explained that while it would have been helpful for appellant to have had a complete workup at
the time of the accident to prove causation, nonetheless there was a “good chance” that “the
accident was a major player in [appellant’s] current clinical presentation.”
The Office of Personnel Management (OPM) approved appellant’s disability retirement
effective January 25, 2019, and he was separated from the employing establishment as of that date.
Along with a letter dated March 4, 2019, counsel resubmitted the request for
reconsideration which OWCP previously received on December 5, 2016. He also resubmitted
appellant’s September 13, 2016 thoracic spine MRI scan and Dr. Legler’s November 5, 2016 note.
By decision dated June 14, 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.6 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

4
The Board notes that counsel captioned his motion as a motion to rescind. Counsel’s mere characterization of the
request as a motion to rescind under 5 U.S.C. § 8128(a), rather than a request for reconsideration, is found by the
Board to be without significance as it cannot circumvent OWCP’s discretionary authority to impose a one-year
timeframe for requesting reconsideration pursuant to 5 U.S.C. § 8128(a).
5
The reviewing radiologist noted that the abnormalities at T3-T4 may represent Modic II degenerative changes
versus bone bruising secondary to occult fractures. She further commented that these findings were not present on a
previous study from 2014.
6
5 U.S.C. § 8128(a); see M.E., Docket No. 18-1497 (issued March 1, 2019); J.W., Docket No. 18-0703 (issued
November 14, 2018); Y.S., Docket No. 08-0440 (issued March 16, 2009).

3

decision for which review is sought.7 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS).8 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.9
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error.10 If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.11
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.12 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.13 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error.14 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.15 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP.16 To demonstrate clear evidence
of error, the evidence submitted 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.17
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard.18 The claimant must present evidence which on its face shows that OWCP made
an error. Evidence such as a detailed, well-rationalized medical report which, if submitted before
7

20 C.F.R. § 10.607(a).

8

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

9
See M.E., supra note 6; E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB
104 (1989).
10

See 20 C.F.R. § 10.607(b); M.E., supra note 6; Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

11

G.G., Docket No. 18-1074 (issued January 7, 2019); see also id. at § 10.607(b); supra note 8 at Chapter 2.1602.5
(February 2016).
12

A.A., Docket No. 19-1219 (issued December 10, 2019); J.F., Docket No. 18-1802 (issued May 20, 2019); J.D.,
Docket No. 16-1767 (issued January 12, 2017); see Dean D. Beets, 43 ECAB 1153 (1992).
13

Id.; see also Leona N. Travis, 43 ECAB 227 (1999).

14

J.F., supra note 12; J.D., supra note 12; Jimmy L. Day, 48 ECAB 652 (1997).

15

Id.

16

Id.

17

J.F., supra note 12; M.E., supra note 6; Robert G. Burns, 57 ECAB 657 (2006).

18

See G.G., supra note 11.

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the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.19 The Board makes an independent determination of
whether a claimant has demonstrated clear evidence of error on the part of OWCP.20
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. OWCP’s regulations21 and procedures22 establish a one-year time
limitation for requesting reconsideration, which begins on the date of the last OWCP merit
decision. A right to reconsideration within one year also accompanies any subsequent merit
decision on the issues.23 The most recent merit decision was OWCP’s July 29, 2014 decision. As
appellant’s request for reconsideration was not received by OWCP until December 5, 2016, more
than one year after the July 29, 2014 decision, the Board finds that it was untimely filed. Because
his request was untimely, he must demonstrate clear evidence of error on the part of OWCP in
having denied his traumatic injury claim.
The Board further finds that appellant has failed to demonstrate clear evidence of error on
the part of OWCP in its last merit decision. OWCP denied his traumatic injury claim, finding that
he had not submitted medical evidence including a diagnosis by a qualified physician in connection
with the accepted January 21, 2014 employment incident.
With his request for reconsideration, appellant submitted a letter from Dr. Legler dated
November 5, 2016 and the results of an MRI scan of appellant’s thoracic spine taken on
September 13, 2016. This evidence does not show that OWCP erred in its July 29, 2014 decision
at the time it was issued. Dr. Legler’s letter contained neither a firm diagnosis, nor reference to
the specific date of injury claimed by appellant. While the diagnostic report of September 13,
2016 includes diagnoses, it also did not contain any reference to the specific date of injury. As
noted above, evidence such as a detailed, well-rationalized medical report which, if submitted
before the denial was issued, would have created a conflict in medical opinion requiring further
development, does not demonstrate clear evidence of error.24 Neither Dr. Legler’s November 5,
2016 letter nor the diagnostic report of September 13, 2016 demonstrate clear evidence of error on
the part of OWCP in its last merit decision.

19

J.F., supra note 12; J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 8 at Chapter 2.1602.5(a)
(February 2016).
20

See M.E., supra note 6; D.S., Docket No. 17-0407 (issued May 24, 2017).

21

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

22

Supra note 8 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

23

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

24

J.F., supra note 12; J.S., supra note 19; supra note 8 at Chapter 2.1602.5(a) (February 2016).

5

Clear evidence of error is intended to represent a difficult standard. The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the part
of OWCP.25 As appellant has not submitted such evidence, the Board finds that he has not
demonstrated clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 14, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 27, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

25

Supra note 17.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL TEXAS VETERANS
ADMINISTRATION HEALTH CARE,
Waco, TX, Employer
__________________________________________

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

Docket No. 07-43
Issued: March 26, 2007

Case Submitted on the Record

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

JURISDICTION
On October 3, 2006 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ March 9, 2006 merit decision denying his claim for compensation and
the July 28, 2006 nonmerit decision finding that he abandoned his request for a hearing.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUES
The issues are: (1) whether the Office properly found that appellant abandoned his
request for a hearing; and (2) whether appellant sustained an emotional condition in the
performance of duty.

FACTUAL HISTORY
On December 13, 2005 appellant, then a 49-year-old air condition equipment operator,
filed a claim for compensation alleging that on November 24, 2005 he had worked 12 hours of
overtime and when he went to the boiler room to sign out Shawn Hobbs, a coworker, would not
let him inside. He indicated that he suffered migraine headaches, sleeplessness and feelings of
helplessness and uselessness as a result of the November 24, 2005 incident.
By letter dated February 2, 2006, the Office advised appellant that additional factual and
medical information were needed. In response, appellant submitted a February 7, 2006 attending
physician’s form report and a blank work restriction form.
By decision dated March 9, 2006, the Office denied appellant’s claim on the grounds that
the evidence failed to establish that his claimed condition arose in and out of the performance of
his federal duties.
On March 29, 2006 appellant requested an oral hearing before an Office hearing
representative in connection with the Office’s March 9, 2006 decision. He indicated that a
telephone hearing was acceptable to him. Appellant submitted an April 5, 2006 statement along
with treatment notes from Dr. C. Andrea Ross, a psychiatrist, dated April 24 and November 4,
2004 and October 13, 2005.1
By letter dated June 28, 2006, an Office hearing representative advised appellant that a
telephone hearing would be held on July 27, 2006 at 3:15 p.m. Eastern Standard Time.2 The
hearing representative informed appellant that a few minutes before the scheduled time for the
hearing, he should call the provided toll free number and, when prompted, enter the provided
pass code which would connect them and a court reporter.
By decision dated July 28, 2006, the Office hearing representative found that appellant
abandoned his request for a hearing. Appellant failed to call in for the hearing and there was no
indication in the file that he contacted her office either prior or subsequent to the scheduled
hearing to explain his failure to appear.
LEGAL PRECEDENT
A claimant who has received a final adverse decision by the Office may obtain a hearing
by writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.3 Unless otherwise directed in writing by the claimant, the Office
hearing representative will mail a notice of the time and place of the hearing to the claimant and

1

Appellant also submitted evidence pertaining to case, file number 160204950, which the Office accepted for
bilateral carpal tunnel condition and release.
2

This letter was mailed to appellant’s address of record.

3

20 C.F.R. § 10.616(a).

2

any representative at least 30 days before the scheduled date.4 The Office has the burden of
proving that it mailed to appellant and his representative a notice of a scheduled hearing.5
The authority governing abandonment of hearings rests with the Office’s procedure
manual. Chapter 2.1601.6(e) of the procedure manual, dated January 1999, provides as follows:
“e. Abandonment of Hearing Requests.
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing.
“Under these circumstances, H&R [Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the DO [district Office]. In cases involving
prerecoupment hearings, H&R will also issue a final decision on the
overpayment, based on the available evidence, before returning the case to the
DO.
“(2) However, in any case where a request for postponement has been received,
regardless of any failure to appear for the hearing, H&R should advise the
claimant that such a request has the effect of converting the format from an oral
hearing to a review of the written record.
“This course of action is correct even if H&R can advise the claimant far enough
in advance of the hearing that the request is not approved and that the claimant is,
therefore, expected to attend the hearing and the claimant does not attend.”6
ANALYSIS
The Board finds that the Office improperly found that appellant abandoned his request
for a hearing.
In this case, appellant made a timely request for an oral hearing. In finding that he
abandoned his request for a hearing, the Office noted that a telephone hearing had been
scheduled for July 27, 2006. The record shows that the Office mailed appellant appropriate
notice of the hearing to his last known address. However, when the Office mailed its notice of
4

Id. at § 10.617(b). Office procedure also provides that notice of a hearing should be mailed to the claimant and
the claimant’s authorized representative at least 30 days prior to the scheduled hearing. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.6(a) (January 1999).
5

See Michelle R. Littlejohn, 42 ECAB 463, 465 (1991).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999).

3

the hearing on June 28, 2006, it provided appellant with less than 30 days notice of his scheduled
July 27, 2006 hearing.7 The Board finds that the Office failed to give appellant proper notice of
his hearing under 20 C.F.R. § 10.617(b).8 Thus, the case must be returned to the Office for the
proper scheduling of another hearing for appellant.9
CONCLUSION
The Board finds that the Office improperly found that appellant abandoned his request
for a hearing as it failed to provide proper notification to appellant of the hearing scheduled for
July 27, 2006. The case is remanded to the Office for a hearing to be scheduled with an Office
hearing representative with proper notice provided to all parties. The Board accordingly finds
that the issue of whether appellant sustained an emotional condition in the performance of duty is
moot.
ORDER
IT IS HEREBY ORDERED THAT the July 28, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to the Office for further
proceedings consistent with this opinion of the Board.
Issued: March 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7

Only 29 days of notice was provided. See D.F., 58 ECAB ___ (Docket No. 06-1815, November 27, 2006).

8

The Board additionally notes that the Office issued its July 28, 2006 decision prior to the statutory 10-day period
allowed appellant to provide his notification for failure to appear from the July 27, 2006 hearing. 20 C.F.R.
§ 10.616(a).
9

As the case must be remanded to the Office for scheduling of a second hearing and other appropriate
development, the Board finds that the case is not in posture for a decision on the second issue.

4


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Duluth, GA, Employer
_________________________________________

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

Docket No. 12-458
Issued: September 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On December 29, 2011 appellant, through her attorney, filed a timely appeal from the
August 23, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues on appeal are: (1) whether OWCP properly denied appellant’s claim for
compensation for disability for the period December 18, 2010 through April 11, 2011; and
(2) whether OWCP properly terminated appellant’s compensation benefits effective
April 11, 2011.
FACTUAL HISTORY
This case has previously been on appeal before the Board.2 In a December 21, 2011
decision, the Board found that appellant did not meet her burden of proof to establish that her

1

5 U.S.C. § 8101 et seq.

2

Docket No. 11-560 (issued December 21, 2011).

cervical conditions were causally related to her accepted lumbar sprain. The facts and history
contained in the prior appeal are incorporated by reference.
New evidence submitted to the record since the prior Board decision includes an
August 12, 2010 duty status report from Dr. Plas T. James, a Board-certified orthopedic surgeon,
who referenced a recent functional capacity examination and set forth appellant’s work
restrictions.
On January 24, 2011 appellant filed a Form CA-7 claim for compensation for the period
December 18, 2010 to January 14, 2011. She indicated that she was sent home because there
was no light-duty work available under the National Reassessment Program (NRP).3
On January 21, 2011 OWCP referred appellant along with a statement of accepted facts, a
set of questions and the medical record for a second opinion examination with Dr. Alexander
Doman, a Board-certified orthopedic surgeon, to determine the extent and degree of remaining
injury-related disability.
By letter dated January 27, 2011, OWCP advised appellant that additional evidence was
needed regarding her claim for compensation from December 18, 2010 to January 14, 2011.4 It
explained that a physician’s opinion was crucial to her claim. By letter dated February 4, 2011,
OWCP again informed appellant of the type of evidence needed to support her claim for
compensation.
In a February 25, 2011 report, Dr. Doman the second opinion physician, noted
appellant’s history of injury and treatment. He examined appellant and determined that she was
in no acute distress and had “obvious signs of symptom exaggeration on a completely
nonorganic basis with the complaints of severe back pain with simple attempts to flex the right
knee while in the prone position.” Dr. Doman determined that she had tenderness over the
subcutaneous tissue of the lumbar spine and that the deep tendon reflexes in the arms and legs
were normal. He also determined that there were no signs of muscular atrophy and a negative
straight leg raising test. Dr. Doman explained that x-rays of the lumbar spine were normal
except for a minor congenital sacralization of the L5 vertebra. Regarding the work-related
lumbar sprain, he opined that it had fully and completely resolved. Dr. Doman explained that
there were no objective findings in support of any ongoing residuals of the lumbar strain. He
referred to a magnetic resonance imaging (MRI) scan from September 8, 2009 and advised that it
revealed no objective findings of any neurologic defects or other findings in support of her
subjective complaints of low back pain. Dr. Doman indicated that the injury of July 9, 2009 had
fully resolved. He further explained that it was his “firm and definite opinion” that appellant’s
subjective complaints of back pain were “grossly exaggerated and in fact suggestive of a patient
3

On February 3, 2011 appellant filed a CA-7 form claim for compensation for the period January 15 to 28, 2011.

4

OWCP explained that the medical evidence did not substantiate that the disability was caused by the work injury
because appellant’s case was accepted for a lumbar sprain, which typically lasted four to six weeks. It advised her
that the most current medical evidence in her file was dated September 23, 2010 which indicated that her current
disability was caused by lumbar facet arthropathy at the L3 through S1 level. Appellant was advised that a formal
decision was issued on September 1, 2009, which found that the condition was not accepted as work related in this
case.

2

who is malingering.” Dr. Doman stated that she had not provided a concerted effort during all
phases of her evaluation. No work restrictions were imposed. Dr. Doman opined that appellant
reached maximum medical improvement and was able to perform full-time regular duty without
restrictions.
OWCP received a copy of an offer of modified assignment of four and a half hours per
day for a mail carrier dated December 18, 2010 from the employing establishment. A statement
was also received from Michelle Cooper, a supervisor of distribution operations dated
February 3, 2011.
She indicated that she interviewed appellant under NRP on
December 18, 2010. Ms. Cooper explained that appellant refused the modification and would
not sign it because she could do the work. She noted that appellant indicated additional medical
evidence would be provided; however, none was received.
In a letter dated February 28, 2011, appellant responded to OWCP’s January 27 and
February 4, 2011 requests for information. She explained that she was not out of work because
of her physician. Appellant indicated that she was out of work because the employing
establishment sent her home on December 18, 2010 pursuant to NRP as it could not
accommodate her restrictions. She requested that OWCP reconsider paying her claim.
Appellant indicated that she had the same limitations since July 9, 2009.
In a March 3, 2011 report, Dr. James diagnosed L3-S1 facet arthropathy and
recommended a myelogram and computerized tomography scan of the lumbar spine.
By separate decisions dated March 7, 2011, OWCP denied appellant’s claim for
compensation for the periods December 18, 2010 to January 14, 2011 and from January 15 to
28, 2011.
On March 7, 2011 OWCP issued a notice of proposed termination of compensation. It
proposed to terminate appellant’s compensation based on the report of Dr. Doman which
established that the residuals of the work injury of July 9, 2009 had ceased.
Appellant’s representative requested a telephonic hearing which was held on
June 7, 2011.
OWCP received several reports from Dr. James who treated appellant for L3-S1 facet
arthropathy. The most recent report was dated March 31, 2011.
In an April 11, 2011 decision, OWCP terminated appellant’s compensation benefits
effective that date finding that she had no continuing residuals of her employment injury.5
On April 20, 2011 appellant’s representative requested a telephonic hearing of the
April 11, 2011 decision. The hearing was held on June 7, 2011. During the hearing appellant’s
representative indicated that they were claiming disability compensation from December 18,
2010 through April 11, 2011, the date of termination, based on the employing establishment’s
5

OWCP indicated that Dr. Plas addressed a condition which was denied on September 1, 2009 as not being
causally related to appellant’s work injury.

3

withdrawal of the limited-duty position. They were not claiming that appellant was totally
disabled only that the employer failed to accommodate appellant’s restrictions and that she
continued to have restrictions as a result of the accepted injury.
By decision dated August 23, 2011, an OWCP hearing representative affirmed the
March 7 and April 11, 2011 decisions. She found that Dr. Doman was the weight of the medical
evidence and OWCP met its burden of proof in finding that appellant no longer had residuals of
her lumbar sprain. The hearing representative also found that the medical evidence did not
support continued restrictions causally related to the accepted employment injury.
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.6 Disability means the incapacity, because of
an employment injury, to earn the wages the employee was receiving at the time of injury. It may
be partial or total.7
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness. This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to her
work-related injury or illness is withdrawn, except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force.8
FECA Bulletin No. 09-05 outlines procedures when light-duty positions are withdrawn
under NRP. If the claimant has been on light duty due to an injury-related condition without an
LWEC rating, or OWCP has set aside the LWEC rating, payment for total wage loss should be
made based on the CA-7 form as long as the following criteria are met: (1) the current medical
evidence in the file (within the last six months) establishes that the injury-related residuals
continue; (2) the evidence of file supports that light duty is no longer available; and (3) there is
no indication that a retroactive LWEC determination should be made. Retroactive LWEC
determinations should not be made in NRP cases without approval from the district Director.
FECA Bulletin No. 09-05 states that, if the medical evidence is not sufficient, OWCP should
request current medical evidence from the employing establishment and the claimant.9
ANALYSIS -- ISSUE 1
The record indicates that the employing establishment withdrew appellant’s light-duty
position pursuant to NRP from December 18, 2010 to April 11, 2011. Appellant claimed wage6

5 U.S.C. § 8102(a).

7

20 C.F.R. § 10.5(f).

8

Id. at § 10.5(x).

9

FECA Bulletin No. 09-05 (issued August 18, 2009). See M.B., Docket No. 12-435 (issued July 3, 2012).

4

loss compensation for the period December 18, 2010 through April 11, 2011 alleging that, under
NRP, the employing establishment could not accommodate her work restrictions. The
employing establishment provided a statement from Ms. Cooper, who noted that appellant
refused to sign the modified offer under NRP.
Generally, a withdrawal of a light-duty position is considered a recurrence of disability
under OWCP’s regulations. As there is no LWEC in place, OWCP should consider whether the
medical evidence established that appellant had continuing injury-related residuals at the time of
the withdrawal.10 As noted above, FECA Bulletin No. 09-05 was issued specifically to provide
guidance when a claimant is sent home through NRP because light duty is no longer available.
The March 7 and August 23, 2011 decisions denying the claim for compensation do not refer to
FECA Bulletin No. 09-05 or attempt to follow its provisions. The case will therefore be
remanded to OWCP for a proper decision in accord with the established guidance. After such
further development as OWCP deems necessary, it shall issue a de novo decision on appellant’s
entitlement to wage-loss compensation from December 18, 2010 through April 11, 2011.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.11 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.12 The right to medical benefits for an accepted condition is not limited to the
period of entitlement to compensation for disability.13 To terminate authorization for medical
treatment, OWCP must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.14
In assessing medical evidence, the weight of such evidence is determined by its
reliability, its probative value and its convincing quality. The opportunity for and thoroughness
of examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of the analysis manifested and the medical rationale expressed in
support of the physician’s opinion are facts which determine the weight to be given each
individual report.15

10

See M.B., id.

11

Curtis Hall, 45 ECAB 316 (1994).

12

Jason C. Armstrong, 40 ECAB 907 (1989).

13

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

14

Calvin S. Mays, 39 ECAB 993 (1988).

15

See Connie Johns, 44 ECAB 560 (1993).

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ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained a lumbar sprain. It subsequently referred her to
Dr. Doman for a second opinion regarding the nature and extent of her work-related condition.
The Board finds, at the time that OWCP terminated appellant’s medical benefits, the
weight of the medical evidence rested with Dr. Doman, who submitted a thorough medical
opinion based upon a complete and accurate factual and medical history. In his February 25,
2011 report, Dr. Doman noted her history of injury and treatment. He performed a complete
examination, reviewed the record. Dr. Doman explained that the lumbar sprain had fully
resolved. He opined that appellant sought to deceive him as she had “complaints of severe back
pain on a completely nonphysiologic basis during the examination with simple attempts to flex
her knee in a prone position.” Dr. Doman opined that she had no continued disability from her
accepted employment injuries and that she was capable of performing her usual employment and
that further medical treatment was unnecessary. He found no objective basis to support
continuation of the accepted lumbar sprain.
The only condition accepted by OWCP was a lumbar strain. Appellant provided medical
reports from Dr. James, who treated her for L3-S1 facet arthropathy. The Board notes that this
was not an accepted condition and was previously denied by OWCP on September 1, 2009.16
Dr. James did not offer an opinion to explain how this was related to the accepted injury or why
appellant continued to suffer an ongoing condition and disability causally related to the accepted
lumbar sprain. Consequently, it is of limited probative value.
Because Dr. Doman provided the only rationalized medical opinion of record addressing
whether appellant continued to have residuals of her accepted lumbar sprain, his opinion
constitutes the weight of the medical evidence.
The Board finds that Dr. Doman’s report established that appellant ceased to have any
disability or condition causally related to her employment injuries, thereby justifying OWCP’s
April 11, 2011 termination of compensation benefits.
Appellant may submit evidence or argument with a written request for reconsideration
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 the case is not in posture for a decision regarding OWCP’s denial of
appellant’s claim for compensation for disability for the period December 18, 2010 through
April 11, 2011.
The Board further finds that OWCP properly terminated appellant’s
compensation benefits effective April 11, 2011 for her accepted lumbar sprain.

16

Appellant did not appeal the September 1, 2009 decision.

6

ORDER
IT IS HEREBY ORDERED THAT the August 23, 2011 the Office of Workers’
Compensation Programs’ decision is affirmed in part and set aside and remanded for further
action in part.
Issued: September 13, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees;’ Compensation Appeals Board

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

7