United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Citrus Heights, CA, Employer
__________________________________________

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

Docket No. 08-2352
Issued: May 4, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 28, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 11, 2008 nonmerit decision, denying his request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error. Because more than one year elapsed between the last merit decision dated July 13, 2007
and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s
claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely and failed to
demonstrate clear evidence of error.

1

See 20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
On May 4, 2006 appellant, a 48-year-old city carrier, filed a claim for right hand injuries
allegedly due to his employment activities.2 By decision dated September 22, 2006, the Office
denied his claim, finding that the evidence was insufficient to establish that he had sustained an
injury under the Federal Employees’ Compensation Act.
On October 3, 2006 appellant requested reconsideration. In a January 5, 2007 decision,
the Office denied merit review.
On May 23, 2007 appellant again requested reconsideration and submitted additional
medical evidence from his treating physician, Dr. James T. Lin, a Board-certified neurologist. In
a merit decision dated July 13, 2007, the Office denied modification of the September 22, 2006
decision, on the grounds that the evidence of record did not contain a diagnosed condition that
was causally related to employment activities.
Appellant submitted a letter dated November 28, 2007, which provided as follows:
“Enclosed, is the physician information that was necessary to indicate how I was
injured while on the job. Please, let me know if further information is required to
open this claim.”
In an enclosed report dated July 10, 2007, Dr. Lin provided a history of injury indicating that
appellant had hurt his right hand at work on March 25, 2003; diagnosed right upper extremity
overuse syndrome; and provided work restrictions.
In a December 8, 2007 report, Dr. Lin provided examination findings. After reviewing
the results of an electromyogram study, he diagnosed right carpal tunnel syndrome, chronic mild
irritation of the C6-7 region and cervical radiculopathy.
In a letter to the Office dated June 13, 2008, appellant stated:
“Enclosed is the relevant information to reflect a reoccurrence of prior injury,
medical documentation obtained from my physician. I apologize, for the delay in
obtaining this information due to the schedule of my physician in preparing the
information required.”
On July 23, 2008 appellant submitted a letter requesting reconsideration, together with an
appeal request form and supporting documentation. He stated that he had submitted the enclosed
reports from his treating physician on June 13, 2008 but upon telephoning the Office, was told
that the additional evidence was rejected because he did not state an appeal. Appellant submitted
reports from Dr. Lin dated January 14 and May 13, 2008 addressing his right hand condition.
2

Appellant filed a notice of recurrence (Form CA-2a) pursuant to a prior File No. xxxxxx087, alleging that his
right hand pain began on March 26, 2005, when he began performing the duties of a supervisor. On August 10,
2006 the Office informed appellant that his claim would be developed as an occupational disease claim, as he had
alleged new work factors as the cause of his condition.

2

By decision dated August 11, 2008, the Office denied appellant’s July 23, 2008 request
for reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error.
LEGAL PRECEDENT
The Act3 provides that the Office may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision. The
employee may obtain this relief through a request to the district Office. The request, along with
the supporting statements and evidence, is called the “application for reconsideration.”4
The application for reconsideration must set forth arguments and contain evidence that
either: (1) shows that the Office erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes
relevant and pertinent new evidence not previously considered by the Office.5 With regard to the
contents of a request for reconsideration, the Office’s procedure manual states, while no special
form is required, the request must be in writing, identify the decision and the specific issues for
which reconsideration is being requested and be accompanied by relevant new evidence or
argument not considered previously.6
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant also must file his or her application for review within one year of the date of that
decision.7 In implementing the one-year time limitation, the Office’s procedures provide that the
one-year time limitation period for requesting reconsideration begins on the date of the original
Office decision. However, a right to reconsideration within one year accompanies any
subsequent merit decision on the issues.8
20 C.F.R. § 10.607(b) provides that the Office will consider an untimely application only
if it demonstrates clear evidence of error by the Office in its most recent merit decision. To
establish clear evidence of error, a claimant must submit evidence relevant to the issue which
was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
3

5 U.S.C. § 8101 et seq.

4

20 C.F.R. § 10.605.

5

Id. at § 10.606.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2a (October 2005).

7

20 C.F.R. § 10.607(a).

8

Veletta C. Coleman, 48 ECAB 367 (1997); Larry L. Lilton, 44 ECAB 243 (1992).

9

See Alberta Dukes, 56 ECAB 247 (2005); see also Leon J. Modrowski, 55 ECAB 196 (2004).

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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 the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision. The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.10
Office procedures provide that an application for review includes any written
communication from a claimant or representative which requests a hearing, reconsideration or
appeal of a formal decision; no special form is necessary. A claimant who expresses or implies
disagreement with a formal decision, without requesting a specific action, should be advised of
the basis of the decision and reminded to exercise rights of appeal if further action is desired.
Office procedures also provide that any file in which a complaint about a formal decision is
received should be reviewed informally to assess whether the action leading to the complaint was
correct and the Office should determine through correspondence with the claimant whether the
inquiry in effect constitutes a request for exercise of appeal rights.11
ANALYSIS
In its August 11, 2008 decision, the Office found that appellant failed to file a timely
application for review. However, it did not acknowledge appellant’s letters dated November 28,
2007 and June 13, 2008 as requests for reconsideration or objections to the July 13, 2007
decision or inquire whether his letters, in effect, constituted a request for exercise of appeal
rights.12 Rather, the Office regarded his July 23, 2008 letter as an untimely request for
reconsideration. The Board finds that the Office abused its discretion in failing to take timely
action in accordance with its own procedures, thereby exhausting appellant’s right to review the
merits of the case by the Board. Therefore, the August 11, 2008 decision must be set aside and
remanded for an appropriate decision.13
On November 28, 2007 three months after the Office’s July 13, 2007 merit decision,
appellant submitted a letter, together with new medical evidence, which he determined to be
necessary to indicate how he was injured on the job. He asked the Office to let him know if
further information was required to “open this claim.” On June 13, 2008 well within the one10

See Alberta Dukes, supra note 9.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Review Process, Chapter 2.1600.3(b) (October 2005).

12

Id.

13

Office procedures provide that, when a reconsideration decision is delayed beyond 90 days and the delay
jeopardizes the claimant’s right to review of the merits of the case by the Board, the Office should conduct a merit
review. That is, the basis of the original decision and any new evidence should be considered and, if there is no
basis to change the original decision, an order denying modification (rather than denying the application for review)
should be prepared. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.9
(October 2005).

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year filing period, he submitted another letter, which he stated provided the relevant medical
evidence information “to reflect a reoccurrence of prior injury.” The record does not contain a
response to either letter. Office procedures provide that, when a claimant expresses or implies
disagreement with a formal decision, without requesting a specific action, the Office should
inform him to exercise rights of appeal if further action is desired. Office procedures also
provide that, when a complaint about a formal decision is received, the Office should determine
through correspondence with the claimant whether the inquiry in effect constitutes a request for
exercise of appeal rights.14 In this case, the Office failed to follow its own procedures. Although
appellant expressed disagreement with the Office’s denial of his claim and indicated a desire to
“reopen” his claim, the Office did not contact him to ascertain whether his November 28, 2007
or June 13, 2008 letters were intended to be requests for reconsideration.15 As a result, the
decision denying appellant’s request for reconsideration was delayed until August 11, 2008,
thereby depriving him of the opportunity to obtain merit review before the Board.
The Board notes that the Office evaluated appellant’s reconsideration request using the
standard for untimely requests, namely the “clear evidence of error” standard. Had the Office
determined that either the November 28, 2007 or the June 13, 2008 letter was intended to be a
request for merit review, the request would have been subject to evaluation under the standard
used for a timely request. Therefore, its failure to follow its procedures subjected appellant to a
more stringent standard that might have been necessary.
CONCLUSION
The Board finds that the Office’s failure to follow its own procedures created a delay in
its ruling on appellant’s request for reconsideration, which deprived him of the opportunity to
obtain merit review before the Board. Therefore, the August 11, 2008 decision must be set aside
and remanded for an appropriate decision.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, supra note 11.

15

The Board notes that an application for review includes any written communication from a claimant or
representative which requests a hearing, reconsideration or appeal of a formal decision; no special form is necessary.
Federal (FECA) Procedure Manual, Part 2 -- Claims, supra note 11. The Board has held that there is no requirement
that the word “reconsideration” appear in a reconsideration request. See Gladys Mercado, 52 ECAB 255 (2001).
See also Connie Trotter (docket No. 04-2210, issued November 18, 2005) (where her claim had recently been
denied, the Board found that claimant’s letter to the Office indicating that she was submitting the” medical evidence
needed as to the injury,” constituted a valid and timely request for reconsideration).

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ORDER
IT IS HEREBY ORDERED THAT the August 11, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to the Office for an
appropriate decision.
Issued: May 4, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________

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

Docket No. 13-1010
Issued: September 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 21, 2013 appellant filed a timely appeal from a September 24, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s August 30, 2012 request for
reconsideration under 5 U.S.C. § 8128(a).

1

The last merit decision in this case was the September 23, 2011 decision which denied his traumatic injury
claim. For final adverse decisions of OWCP issued on or after November 19, 2008, a claimant must file an appeal
within 180 days of the decision. 20 C.F.R. § 501.3(e). Because more than 180 days elapsed between the most
recent merit decision dated September 23, 2011 to the filing of this appeal on March 21, 2013, the Board lacks
jurisdiction to review the merits of this case.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 28, 2011 appellant, then a 57-year-old electronic technician, filed a traumatic
injury claim alleging that on March 22, 2011 he experienced ringing in both his ears and tinnitus
when he heard a loud noise caused by hammering on a metal bracket.
In an April 27, 2011 report, Dr. James J. Knackstedt, a Board-certified otolaryngologist,
noted that he examined appellant on March 30, 2011. He stated that appellant had complained of
tinnitus after he heard the loud noise of a metal hammer striking some type of metal frame on a
table at work. Dr. Knackstedt noted that appellant worked around airplanes and used hearing
protection. He reported that an audiogram revealed high frequency nerve-type hearing loss at
approximately 4,000 hertz (Hz) in both ears showing a moderately severe high frequency nerve
hearing loss. Dr. Knackstedt stated that he could only surmise that since he had worked in a
noisy environment in the past there may have been some degree of high frequency hearing loss.
He reported that, if appellant had preexisting high frequency hearing loss, appellant could have
had an event at work that worsened his hearing loss even further.
In a decision dated May 11, 2011, OWCP denied appellant’s claim based on insufficient
medical evidence.
In a decision dated September 23, 2011, OWCP set aside the May 11, 2011 denial
decision because some of the information submitted was for another employee. It also found that
the March 22, 2011 incident occurred as alleged and that appellant suffered from hearing loss,
but denied the claim because he had not submitted a well-reasoned medical opinion explaining
how the accepted incident caused his hearing loss. OWCP determined that Dr. Knackstedt’s
opinion was speculative about the relationship between the work incident and appellant’s hearing
loss.
In an August 30, 2012 narrative statement, appellant requested reconsideration and
alleged that he was submitting relevant new evidence which established that his hearing loss was
caused by the March 22, 2011 employment incident. He explained that when Dr. Knackstedt
first examined him on March 30, 2011 he had not seen his 2004 and 2005 audiograms, but after
reviewing the audiograms, Dr. Knackstedt modified his conclusion regarding appellant’s hearing
loss.
In a February 29, 2012 report, Dr. Knackstedt disagreed with the rationale of OWCP’s
denial decision. He stated that he reviewed appellant’s screening audiograms dated October 2,
2004 and September 26, 2005 and noted that appellant’s frequency loss at 4,000 Hz averaged 25
decibels (dB). The audiogram obtained after the injury showed 60 dB loss at 4,000 Hz.
Dr. Knackstedt explained that this substantial hearing loss was not a typical advancement that
one would see with the aging process. He opined that given the frequency of noise trauma at
appellant’s workplace and the event of a metal exposure, it strongly suggested to him that there
was a direct connection between his hearing loss and tinnitus and the workplace events.
Appellant submitted October 2, 2004, September 26, 2005, March 30 and June 2, 2011 and
January 31, 2012 audiograms.

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In an April 4, 2012 note, Dr. Kelvin Lindgren, a Board-certified otolaryngologist, stated
that he examined appellant and an audiogram and that he agreed with Dr. Knackstedt’s
February 29, 2012 conclusion.
By decision dated September 24, 2012, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant further merit
review under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.3 OWCP’s regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his right through a request to the district Office.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must also be submitted within one year of the date of the
OWCP decision for which review is sought.6 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.7 If the request is timely but fails to
meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.8
ANALYSIS
Appellant did not file a timely appeal of OWCP’s most recent merit decision of
September 23, 2011. For that reason, the Board has no authority to review that decision or the
merits of his injury claim. The only decision that the Board may review is OWCP’s

3

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
5

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued
December 9, 2008).
6

Id. at § 10.607(a).

7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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September 24, 2012 nonmerit decision denying appellant’s August 30, 2012 reconsideration
request.
Along with his August 30, 2012 reconsideration request, appellant submitted the
February 29, 2012 report of Dr. Knackstedt, in which he discussed the causal relationship
between appellant’s hearing loss and the March 22, 2011 employment incident, and
Dr. Lindgren’s April 4, 2012 note agreeing with Dr. Knackstedt’s opinion. Dr. Knackstedt
explained that the frequency of noise trauma at appellant’s workplace and the event of a metal
exposure strongly suggested that there was a direct connection between his hearing loss and
workplace.
The Board has conducted a limited review of Dr. Knackstedt’s February 29, 2012 report,
as well as Dr. Lindgren’s April 4, 2012 report and can find no similar opinion on causal
relationship. The evidence is new and relevant.9 It directly addresses OWCP’s previous findings
that the medical evidence did not explain whether appellant’s hearing loss was causally related to
the March 22, 2011 exposure to noise at work.
To obtain a reopening of his case for a merit review, appellant need not submit evidence
that cures all the deficiencies in his claim and establishes his entitlement to compensation.10 He
need only submit evidence that is relevant and pertinent new evidence not previously considered
by OWCP.11 The Board finds that appellant has submitted such evidence and is therefore
entitled to a merit review of his case. The Board sets aside OWCP’s September 24, 2012
decision denying reconsideration and will remand the case for a merit review and de novo
decision on his injury claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s August 30, 2012
reconsideration request. Appellant is entitled to a merit review of his case.

9

See Fed. R. Evid. 401 (relevant evidence means evidence having any tendency to make the existence of any fact
that is of consequent to the determination of the action more probable or less probable than it would be without the
evidence).
10

See S.G., Docket No. 12-1107 (issued January 22, 2012); see also Helen E. Tschantz, 39 ECAB 1382 (1988).

11

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

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ORDER
IT IS HEREBY ORDERED THAT the September 24, 2012 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action in
conformance with this decision.
Issued: September 6, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0543
Issued: November 7, 2018

Case Submitted on the Record

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

JURISDICTION
On January 19, 2018 appellant, through counsel, filed a timely appeal from an August 21,
2017 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 the 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
3

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its August 21, 2017 decision. The
Board’s jurisdiction is limited to the evidence in the case record that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for
authorization of left knee arthroplasty.
FACTUAL HISTORY
On February 26, 2015 appellant, a 47-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on that date she injured her right hip and left knee when
she slipped out of her mail truck due to snow and icy conditions. She stopped work on that day
and returned to work in a full-time limited-duty capacity on April 6, 2015. On April 24, 2015
OWCP accepted the claim for sprains of the right hip, left knee, and right shoulder.
Appellant stopped work on April 14, 2016 due to authorized left knee athroscopy with
partial medial meniscectomy. OWCP paid her wage-loss compensation and medical benefits on
the supplemental rolls as of April 14, 2016. On May 17, 2016 it accepted a left medial meniscus
tear. Appellant returned to work in a part-time basis on June 21, 2016 and full-time, limited duty
on September 7, 2016.
On September 6, 2016 OWCP received a request for authorization of a left knee total
arthroplasty.
In a June 14, 2015 report, Dr. Robert Holtzin, Board-certified in emergency medicine,
noted appellant’s medical history and made the assessment of ankle sprain and that of rheumatoid
arthritis, currently in remission.
In an August 17, 2015 report, Dr. Matthew D. Pepe, a Board-certified orthopedic surgeon,
indicated that left knee arthroscopic surgery was needed to correct appellant’s varus malalignment
and mechanical symptoms. He indicated that an arthroplasty might be necessary 12 to 15 years in
the future following arthroscopy.
A May 22, 2015magnetic resonance imaging (MRI) scan of appellant’s left knee noted an
impression of tear of the posterior horn of the medial meniscus.
In a February 19, 2016 report, Dr. Pepe reported that appellant’s left knee MRI scan
revealed a meniscus tear and left knee x-rays demonstrated medial joint space narrowing. He
provided examination findings and diagnosed left medial meniscus tear and medial compartment
arthritis. Dr. Pepe recommended left knee arthroscopic surgery.
In a July 27, 2016 report, Dr. Zachary D. Post, a Board-certified orthopedic surgeon,
diagnosed left knee arthritis. He opined that appellant developed left knee degenerative joint
disease after acute exacerbation by the February 26, 2015 work injury. Dr. Post indicated that if
conservative treatment failed then appellant may be a good candidate for a total knee replacement.
In an August 17, 2016 report, he reported examination findings and noted that x-rays of the left
knee demonstrated degenerative arthritis with loss of joint space and subchondral sclerosis.
Dr. Post provided an assessment of unilateral primary osteoarthritis, left knee and left knee
degenerative joint arthritis, failed conservative measures. He recommended left knee arthroplasty.

2

By development letter dated September 6, 2016, OWCP advised appellant that it could not
authorize a total left knee arthroplasty as the evidence on file did not explain why the proposed
procedure was medically necessary for appellant’s accepted left knee condition. Appellant was
advised of the medical evidence needed to support authorization for left knee replacement/
arthroplasty, including a rationalized opinion by a treating physician as to the medical necessity
for such surgery to treat an employment-related condition. OWCP afforded appellant 30 days to
submit such evidence.
In a September 16, 2016 letter, Dr. Post noted appellant’s examination findings and
diagnosed left knee degenerative osteoarthritis, failed conservative measures. He indicated that
the need for left knee replacement was medically necessary on account of such condition. Dr. Post
indicated that appellant had preexisting damage to her left knee from the February 26, 2015 work
injury when she slipped out of the back of a mail truck. He opined that the employment injury
exacerbated her left knee arthritic condition. Dr. Post further indicated that appellant had some
collapse in the cartilage, which was noted at her arthroscopy, she had a recurrence of pain and
symptoms, and now had failed arthroscopy, failed physical therapy, failed activity modifications
and failed injection. He noted that x-rays of the left knee demonstrated degenerative arthritis with
loss of joint space and subchondral sclerosis.
OWCP referred the authorization request to its district medical adviser (DMA) for review.
In an October 31, 2016 report, Dr. William Tontz, a Board-certified orthopedic surgeon and DMA,
reviewed the medical record and a statement of accepted facts (SOAF). He opined that the
proposed left total knee arthroplasty was causally related to the accepted medical conditions as
appellant has had persistent symptoms since the employment injury and there was a lack of
evidence of preexistent symptoms leading up to the employment injury. The DMA, however,
found that the proposed left total knee arthroplasty was not medically necessary. He explained
that knee replacement was warranted only if two of the three medial compartments were affected
by arthritis and that the x-rays of record did not establish such a degree of knee arthritis.
In November 9, 2016 and February 8, 2017 reports, Dr. Post continued to indicate a limited
range of movement and failure of conservative measures.
On February 7, 2017 appellant filed a recurrence claim (Form CA-2a) alleging that her
employing establishment reduced her work hours effective January 23, 2017.4
OWCP referred appellant to Dr. Stanley Askin, a Board-certified orthopedic surgeon, for
a second opinion evaluation to determine whether appellant’s requested left knee arthroplasty was
medically necessary and causally related to the accepted injury of February 26, 2015. In a report
dated March 3, 2018, Dr. Askin reviewed the medical record and an updated SOAF. He related
that appellant’s left knee examination revealed diminished range of motion, no ligamentous laxity,
no patellofemoral tracking abnormality, and no synovitis. Dr. Askin noted that left knee x-rays
taken August 17, 2015 disclosed medial compartment arthritis, and additional x-rays of October 2,
2015 and July 17, 2016 showed joint space narrowing. He also reported that appellant had a
history of nonoccupational rheumatoid arthritis and noted that her December 2014 MRI scan
4
Following appropriate development, OWCP accepted appellant’s claim for recurrence of disability effective
January 21, 2017.

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showed left knee arthritis which preexisted the February 26, 2015 employment injury. Dr. Askin
concluded that appellant’s left knee arthritis was a preexisting condition unrelated to the
February 26, 2015 work injury. He explained she has rheumatoid arthritis and that the preincident
MRI scan established that her left knee condition was a disease, rather than an injury. Dr. Askin
opined that, while the left knee arthroplasty was appropriate for knee arthritis, appellant’s arthritic
condition was not employment related as her condition was a disease which predated the
February 26, 2015 employment injury. He further stated that her rheumatoid arthritis could be an
“independent factor predisposing to the need for the total knee arthroplasty” and explained that,
based on his review of the medical records and his physical examination, medical necessity was
not shown for the requested procedure.
By decision dated April 3, 2017, OWCP denied appellant’s request for authorization of a
left knee arthroplasty. It found that Dr. Post had not established the medical necessity for the
requested procedure and both the DMA and Dr. Askin, the second opinion physician, had opined
that the requested procedure was not medically necessary to treat her accepted employment injury.
On April 11, 2017 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative. A hearing was held on July 12, 2017. Counsel argued that a conflict
existed between the opinions of appellant’s treating physicians and OWCP physicians as to
whether the proposed surgery was medically necessary to treat an employment-related condition,
therefore a referee medical examination was required to resolve the conflict in medical opinion.
By decision dated August 21, 2017, OWCP’s hearing representative affirmed the denial of
authorization of a left knee arthroplasty. He found that Dr. Askin’s opinion constituted the weight
of the medical evidence.
LEGAL PRECEDENT
Section 8103(a) of FECA states in pertinent part: “The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers likely
to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of
the monthly compensation.”5 In interpreting section 8103(a), the Board has recognized that
OWCP has broad discretion in approving services provided under FECA to ensure that an
employee recovers from his or her injury to the fullest extent possible in the shortest amount of
time.6 It therefore has broad administrative discretion in choosing means to achieve this goal. The
only limitation on OWCP’s authority is that of reasonableness.7
In order to be entitled to reimbursement for medical expenses, a claimant must establish
that the expenditures were incurred for treatment of the effects of an employment-related injury
by submitting rationalized medical evidence that supports such a connection and demonstrates that
5

5 U.S.C. § 8103.

6

See Dale E. Jones, 48 ECAB 648, 649 (1997).

7

Dr. Mira R. Adams, 48 ECAB 504 (1997).

4

the treatment is necessary and reasonable.8 While OWCP is obligated to pay for treatment of
employment-related conditions, the employee has the burden of proof to establish that the
expenditure is incurred for treatment of the effects of an employment-related injury or condition.9
Proof of causal relationship in a case such as this must include supporting rationalized medical
evidence.10 In order for a surgical procedure to be authorized, a claimant must submit evidence to
show that the surgery is for a condition causally related to an employment injury and that it is
medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.11
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
authorization of left knee arthroplasty.
The Board finds that the weight of the medical evidence rests with Dr. Askin’s wellrationalized medical opinion. Dr. Askin examined appellant, reviewed the medical evidence of
record, as well as an updated SOAF, and found that her requested left knee arthroplasty was not
causally related to the accepted conditions or medically warranted. As previously noted, a surgical
procedure can be authorized if the procedure is recommended for a condition causally related to
the accepted employment injury and it is medically warranted.12
In a March 3, 2017 report, Dr. Askin accurately described appellant’s history of injury and
medical history. He noted that she had a history of nonoccupational rheumatoid arthritis and that
her December 2014 MRI scan showed left knee arthritis which preexisted the February 26, 2015
employment injury. Dr. Askin concluded that appellant’s left knee arthritis was a preexisting
condition unrelated to the February 26, 2015 employment injury. He opined that the arthritic
condition was not employment related as her condition was a disease which predated the
February 26, 2015 employment injury. Dr. Askin further noted that appellant’s rheumatoid
arthritis could be an “independent factor predisposing to the need for the total knee arthroplasty”
and explained that, based on his review of the medical records and his physical examination,
medical necessity was not shown for the requested procedure.
The Board finds that Dr. Askin’s report represents the weight of the medical evidence and
that OWCP properly relied on his report in denying the requested surgery.13 Dr. Askin had full
8

See Debra S. King, 44 ECAB 203 (1992).

9

Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).

10

M.B., 58 ECAB 588 (2007).

11

R.C., 58 ECAB 238 (2006).

12

Id.

13

T.M., Docket No. 17-0915 (issued August 29, 2017); Michael S. Mina, 57 ECAB 379 (2006) (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 analysis manifested, and the medical rationale expressed in support of the physician’s
opinion are facts, which determine the weight to be given to each individual report).

5

knowledge of the relevant facts and evaluated the course of her condition, he is a specialist in the
appropriate field, his opinion is based on proper factual and medical history, and his report
contained a detailed summary of this history. He addressed the medical records and made his own
examination findings to reach a reasoned conclusion regarding appellant’s condition and to support
that the total left knee arthroplasty was not medically warranted as the underlying knee arthritis,
not the February 26, 2015 work injury, was responsible for the need for the arthroplasty.
At the hearing and on appeal counsel asserted that a conflict in medical evidence existed
between Dr. Pepe and Dr. Post for appellant and the DMA and Dr. Askin for OWCP. Section
8123(a) of FECA provides that when there is a disagreement between the physician making the
examination for the United States and the physician of the employee, a third physician shall be
appointed to make an examination to resolve the conflict.14 When there are opposing medical
reports of virtually equal weight and rationale, the case must be referred to an impartial medical
specialist, pursuant to section 8123(a), to resolve the conflict in the medical evidence.15 The Board
finds, however, that there are no opposing medical reports of virtually equal weight and rationale
which would establish a conflict of medical opinion. Thus, a referee medical examination is not
required.
Dr. Pepe indicated in his August 17, 2015 report that an arthroplasty might be necessary
12 to 15 years in the future following arthroscopy. Furthermore, he did not offer an opinion in
either his August 17, 2015 or February 19, 2016 report as to the cause of appellant’s arthritic
condition. 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.16
In his September 16, 2016 letter of medical necessity, Dr. Post indicated that appellant’s
proposed left knee replacement was medically necessary because her left knee degenerative
osteoarthritis had failed conservative measures. While he opined that the employment injury
exacerbated her left knee arthritic condition, such a generalized statement does not establish causal
relationship because it is unsupported by adequate medical rationale.17 Medical opinions which
contain no supporting rationale are of little probative value.18 Dr. Post’s opinion is of limited
probative value as it does not contain any medical rationale explaining how the employment
incident would have physiologically caused or aggravated the diagnosed degenerative

14

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

15

Delphia Y. Jackson, 55 ECAB 373 (2004).

16

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

17

See G.O., Docket No. 16-0311 (issued June 14, 2016); K.W., Docket No. 10-0098 (issued September 10, 2010).

18

F.T., Docket No. 09-0919 (issued December 7, 2009) (medical opinions not fortified by rationale are of
diminished probative value); 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).

6

osteoarthritis.19 Furthermore, a well-rationalized opinion is particularly warranted when there is a
history of a preexisting condition, which Dr. Post noted.20
While the DMA opined that appellant had injury-related left knee arthritis, he further found
that the proposed left total knee arthroplasty was not medically necessary. The Board notes,
however, that the DMA’s opinion on causal relationship was not based on a complete and accurate
factual and medical background. The DMA indicated that appellant had persistent symptoms since
the employment injury and the lack of evidence of preexistent symptoms leading up to the
employment injury. He failed to discuss either the 2014 left knee MRI scan which showed a
preexisting degenerative condition or appellant’s history of nonoccupational rheumatoid arthritis.
Medical opinions based on an incomplete or inaccurate history are of limited probative value.21
The only limitation on OWCP’s authority in authorizing medical treatment under FECA is
one of reasonableness.22 OWCP obtained a second opinion evaluation which was well rationalized
and supported a finding that the requested surgical procedure was not medically warranted as
appellant’s underlying left knee arthritis, not the February 26, 2015 work injury, was responsible
for the need for the arthroplasty. It therefore did not abuse its discretion.
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 did not abuse its discretion in denying authorization for
requested left knee arthroplasty.

19

See A.D., Docket No. 17-1136 (issued November 9, 2017).

20

T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

21

C.L., Docket No. 14-1585 (issued December 16, 2014); J.R., Docket No. 12-1099 (issued November 7, 2012);
Douglas M. McQuaid, 52 ECAB 382 (2001).
22

See P.F., Docket No. 16-0693 (issued October 24, 2016); Daniel J. Perea, 42 ECAB 214, 221 (1990).

7

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2018
Washington, DC

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

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

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

8


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

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

Docket No. 15-1226
Issued: November 16, 2015

Case Submitted on the Record

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

JURISDICTION
On May 8, 2015 appellant, through counsel, filed a timely appeal from a February 26,
2015 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.
ISSUE
The issue is whether appellant has established a left knee condition causally related to the
July 5, 2013 employment incident.
FACTUAL HISTORY
On August 9, 2013 appellant, then a 49-year-old distribution clerk, filed a traumatic
injury claim (Form CA-1) alleging that on July 5, 2013 she sustained an anterior cruciate
ligament (ACL) tear to her left knee. She related that, after pulling equipment from loading
1

5 U.S.C. § 8101 et seq.

dock, her left knee felt strange and was clicking, popping, and unstable. After going to the
branch office, appellant noticed that her knee had started to swell. She stopped work on July 8,
2013 and returned to work on July 22, 2013. The employing establishment indicated that
appellant failed to follow instructions and failed to obey safety policy to push mail transportation
equipment.
In July 8, 2013 reports, Dr. Susan W. Laws-Mobilio, an osteopath and family
practitioner, noted that appellant was under her care for internal derangement of the left knee.
She indicated that appellant needed x-rays and magnetic resonance imaging (MRI) scans and
would be referred to orthopedics. Dr. Laws-Mobilio took appellant off work through
July 22, 2013.
Several reports were received from Dr. Mitesh Patel, a Board-certified family practitioner
also certified in sports medicine. In an August 9, 2013 note, Dr. Patel reported that appellant
was seen for her “knees” and that she could work with restrictions. In an August 16, 2013
attending physician’s report, he reported the history of injury as left knee locked up at work,
resulting in pain. Dr. Patel also noted that appellant had evidence of advanced osteoarthritis. He
diagnosed left knee degenerative joint disease (DJD) with ACL tear, as evidenced by MRI scan.
Dr. Patel opined with a checkmark “yes” that appellant’s DJD was aggravated by work, but that
the ACL tear was acute. In an August 16, 2013 work note, he opined that she could work light
duty for only six hours per day. In an August 29, 2013 duty status report, Dr. Patel noted that
appellant was pulling mail filled equipment, and felt clicking and popping in her knee. He
diagnosed knee pain due to the injury and provided work restrictions.
In a January 11, 2014 report, Dr. Patel noted that appellant had a chronic history of
osteoarthritis in both knees which, prior to his evaluation, was being managed conservatively
with corticosteroid injections, anti-inflammatories, and analgesics and recommendations for lowimpact exercises. He noted that she initially presented to him on July 11, 2013 with complaints
of chronic bilateral knee pain, with left knee worse than the right. Appellant informed Dr. Patel
that she had injured her left knee on July 5, 2013 while at work pulling some equipment from the
loading dock. She reported clicking and popping in the left knee, her knee locking up later that
shift, followed by significant swelling, with no ability to bear weight. Appellant also reported
that the knee felt unstable.
Dr. Patel reported that, on the July 11, 2013 initial examination, appellant had no
ecchymosis or erythema, but had trace swelling in the left knee. Appellant had a significant
varus deformity of both knees with tenderness in the joint lines, severe retropatellar crepitus with
limited range of motion in both knees. Her strength was 5/5 in flexion and extension bilaterally.
McMurray’s testing was positive for reproduction of pain medially in the left knee. Lachman’s
examination was 2+ in the left knee with a soft endpoint. X-rays of the bilateral knees
demonstrated complete joint space collapse at the medial tibiofemoral compartments bilaterally
with marginal osteophytes and advanced degeneration of the patellofemoral compartments
bilaterally. Appellant also had some medial migration of her right femur. Dr. Patel’s impression
was end-stage osteoarthritis in both knees. He noted that the July 10, 2013 MRI scan of the left
knee revealed advanced tricompartmental osteoarthritis, complex medial meniscus tear, and an
anterior cruciate ligament tear. Dr. Patel noted the medical treatment for appellant’s other office
visits, noting that her left knee was still painful, unstable, and limiting in terms of how much

2

activity she could tolerate. He reported that she remained on partial disability to this date and it
was his understanding that she was only working a six-hour shift.
Dr. Patel opined that appellant’s left knee arthritic condition was aggravated by the
July 5, 2013 injury. He noted that she has experienced minimal improvement with aggressive
conservative treatment and needed a total knee replacement. Dr. Patel also indicated that
appellant’s knee was unstable because she was ACL deficient. He noted “it is possible that the
ACL was an acute tear from the incident that [appellant] described on July 5, 2013 and this
certainly could have aggravated the arthritis and overall stability of her left knee.” Dr. Patel
further opined that appellant’s left knee pain “is an exacerbation and perhaps an acceleration of
the injury that occurred on July 5, 2013.”
In a June 5, 2014 supplemental report, Dr. Patel clarified his medical rationale for his
conclusion. He indicated that he felt on July 5, 2013 appellant injured her left knee, which
resulted in an acute exacerbation of her underlying osteoarthritis as well as acute instability from
an ACL tear. The rationale behind this conclusion was based on her clinical evaluation and the
July 18, 2013 MRI scan imaging of the left knee, which showed osteoarthritis along with an
ACL tear and medial meniscus tear. Dr. Patel noted that appellant had permanent work
restrictions as a result of the injury and would need a total knee replacement.
In a June 25, 2014 letter, OWCP advised appellant of the deficiencies in her claim and
provided her the opportunity to submit additional factual and medical evidence. This included a
physician’s rationalized opinion as to how her work factors resulted in the diagnosed condition.
Appellant was afforded 30 days in which to provide such information. No further evidence was
received.
By decision dated July 30, 2014, OWCP denied the claim as the medical evidence failed
to establish that the diagnosed left knee conditions were causally related to the established workrelated event(s).
In an August 5, 2014 letter, appellant, through counsel, requested a hearing, which was
held by video on December 5, 2014. A copy of a May 16, 2006 MRI scan report and the July 18,
2013 MRI scan report of the bilateral knees were provided. Dr. Patel’s July 11 and August 2,
2013 reports were also provided. In his August 2, 2013 report, he noted that appellant has an
ACL tear in the left knee, which may have been acute since early July 2013. Dr. Patel also noted
that she had a significant medial meniscus tear of the left knee.
By decision dated February 26, 2015, an OWCP hearing representative affirmed the
July 30, 2014 OWCP decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial

2

Id. at §§ 8101-8193.

3

evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which she claims compensation is causally related to
that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.6 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.7 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability or condition relates to the
employment incident.8
Under FECA, when employment factors cause an aggravation of an underlying physical
condition, the employee is entitled to compensation for the periods of disability related to the
aggravation.9 Where the medical evidence supports an aggravation or acceleration of an
underlying condition precipitated by working conditions or injuries, such disability is
compensable.10 However, the normal progression of untreated disease cannot be stated to
constitute aggravation of a condition merely because the performance of normal work duties
reveals the underlying condition.11 For the conditions of employment to bring about an
aggravation of preexisting disease, the employment must cause acceleration of the disease or
precipitate disability. When the aggravation is temporary and leaves no permanent residuals,
compensation is not payable for periods after the aggravation ceased.12
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.13 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
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

Raymond W. Behrens, 50 ECAB 221 (1999); James L. Hearn, 29 ECAB 278 (1978).

10

A.C., Docket No. 08-1453 (issued November 18, 2008).

11

Glenn C. Chasteen, 42 ECAB 493 (1991).

12

Raymond W. Behrens, supra note 9.

13

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

4

relationship between the diagnosed condition and the specific employment factors identified by
the employee.14 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.15
ANALYSIS
Appellant alleged that on July 5, 2013 she injured her left knee when pulling equipment
from the loading dock. OWCP accepted that the incident occurred as alleged, but denied her
traumatic injury claim finding insufficient medical evidence to establish that her diagnosed left
knee conditions were caused or aggravated by the July 5, 2013 incident.
In support of her claim, appellant submitted reports by Dr. Laws-Mobilio dated
July 8, 2013. While Dr. Laws-Mobilio diagnosed internal derangement of the left knee, she did
not provide a history of the July 5, 2013 work incident or an opinion on how the diagnosis was
causally related to the accepted July 5, 2013 work incident. The Board has held 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.16
Appellant also submitted numerous reports from Dr. Patel. In his August 2, 2013 report,
Dr. Patel noted that she had an ACL tear in the left knee, which may be acute since early
July 2013. He also related that appellant had significant medial meniscus tear in the knee.
However, Dr. Patel failed to provide a well-rationalized medical opinion which explained how
the July 5, 2013 work incident caused either the ACL tear or the medial meniscus tear in her left
knee.17 Moreover, his opinion that the ACL tear in the left knee may be acute since early
July 2013 is speculative in nature. The Board has held that medical opinions that are speculative
or equivocal in character are of diminished probative value.18
In the August 16, 2013 attending physician’s report, Dr. Patel reported the history of
injury and that appellant had a history of advanced osteoarthritis. He diagnosed left knee
degenerative disc disease with ACL tear, as evidenced by MRI scan. Dr. Patel opined with a
checkmark “yes” that appellant’s condition was caused or aggravated by the work incident. The
Board has previously explained that a report that addresses causal relationship with a checkmark
is of diminished probative value and insufficient to establish causal relationship.19 Dr. Patel
noted that appellant’s degenerative disc disease was aggravated, but the ACL tear was acute.
14

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

15

James Mack, 43 ECAB 321 (1991).

16

C.B., Docket No. 09-2027 (issued May 12, 2010).

17

Medical evidence that states a conclusion, but does not offer any rationalized medical explanation regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship. See J.F., Docket
No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).
18

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

19

See N.M., Docket No. 15-0704 (issued June 22, 2015).

5

However, he failed to provide a well-rationalized medical opinion which explained how the
July 5, 2013 work incident aggravated the degenerative disc disease or resulted in an acute ACL
tear.20
In his August 29, 2013 duty status report, Dr. Patel noted the history of injury and
diagnosed knee pain due to the injury.21 However, he does not provide any opinion on the cause
of appellant’s knee pain. The Board has held 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.22
In his January 11, 2014 report, Dr. Patel provided an accurate history of injury and noted
his examination findings on appellant’s visits. He opined that her left knee arthritic condition
was aggravated by the July 5, 2013 injury and that her knee was unstable because her ACL was
deficient. Dr. Patel noted “it is possible that ACL is an acute tear from the incident that
[appellant] described on July 5, 2013 and this certainly could have aggravated the arthritis and
overall stability of her left knee.” He further opined that appellant’s left knee pain “is an
exacerbation and perhaps an acceleration of the injury that occurred on July 5, 2013.” The Board
notes that Dr. Patel’s opinion on causal relation is again couched in possibility and is therefore
speculative in nature.23 Furthermore, Dr. Patel fails to provide an explanation as to how the
July 5, 2013 incident caused an aggravation and/or an acceleration of appellant’s left knee
arthritic condition.
On June 5, 2014 Dr. Patel wrote a supplemental narrative indicating that the July 5, 2013
work incident caused an aggravation which resulted in an exacerbation of appellant’s
osteoarthritis and acute instability from an ACL tear. However, he failed to provide a wellrationalized medical opinion which explained how the July 5, 2013 work incident aggravated the
degenerative disc disease or resulted in an acute ACL tear.24 Likewise, Dr. Patel’s reference to
the MRI scan reports are also insufficient to establish causal relationship as there is no medical
opinion on the cause of appellant’s left knee conditions.
On appeal appellant, through counsel, contends that the evidence is sufficient to accept
her claim. Several paragraphs from Dr. Patel’s January 11 and June 5, 2014 reports were cited as
evidence of a causal relationship. As previously discussed, however, Dr. Patel’s reports lack the
level of probative value necessary and are thus insufficient to establish that the July 5, 2013
employment incident caused her current left knee conditions or aggravated her preexisting
condition. An employee’s belief that the disease or condition was caused or aggravated by
employment factors or incidents is insufficient to establish causal relationship.25 Causal
20

Supra note 17.

21

The Board has held that pain is a description of a symptom, and not considered compensable medical diagnosis.
B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).
22

Supra note 16.

23

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

24

Supra note 17.

25

Jennifer Atkerson, 55 ECAB 317 (2004).

6

relationship is a medical question that must be established by probative medical opinion from a
physician.26 As appellant failed to provide such probative medical opinion in this case, the
Board finds that she did not meet her burden of proof to establish her claim.
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 did not establish that her left knee conditions were
causally related to the July 5, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

26

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, supra note 7.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL MOTOR CARRIER SAFETY
ADMINISTRATION, Renton, WA, Employer
__________________________________________

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

Docket No. 17-1324
Issued: April 24, 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 May 31, 2017 appellant filed a timely appeal from a March 8, 2017 merit decision and
an April 12, 2017 nonmerit 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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty; and (2) whether OWCP properly denied appellant’s request
for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 12, 2016 appellant, then a 52-year-old support services clerk, filed a traumatic
injury claim (Form CA-1) alleging that, on March 25, 2016, her supervisor sent her an e-calendar
appointment request for a meeting to be held on March 28, 2016. This caused her to develop high
anxiety, nausea, and headaches over the weekend in anticipation of the meeting. Appellant sought
medical treatment on March 28, 2016. She stopped work on March 28, 2016 and returned to work
on May 2, 2016. The employing establishment controverted the claim, asserting that appellant
was not injured in the performance of duty.
Appellant submitted an April 5, 2016 certificate from a social worker who noted that
appellant’s condition began on March 29, 2016. She presented with a depressed mood, anxiety,
panic attacks, and impaired focus and was unable to work. On March 29, 2016 the social worker
indicated that appellant was disabled from work until May 2, 2016.
In a May 23, 2016 development letter, OWCP requested that appellant submit additional
evidence, including a detailed description of the work incidents that contributed to her claimed
injury. It also requested that the employing establishment comment on the accuracy of all
submitted statements.
Appellant submitted a June 21, 2016 narrative statement and asserted that she was the
subject of retaliation and harassment by employing establishment management. She asserted that,
since September 2015, she was singled out and treated unfairly by her supervisory, Acting Director
L.G. when he began serving on September 3, 2015. Appellant advised that, on September 24,
2015, L.G. began threatening her with negative comments about her work and had made false
accusations. L.G. also held impromptu meetings which began as “observation meetings,” but
quickly changed to performance counseling meetings. Appellant alleged that L.G. caused her
stress, humiliation, and often yelled at her during meetings in the presence of others. On
November 19, 2015 L.G. proposed a notice of suspension for failing to follow instructions.
Appellant alleged that on January 4, 2016 L.G. issued her a negative mid-year performance
evaluation and accused her of sending abusive e-mails. On March 28, 2016 she had a panic attack
and on March 29, 2016 she was placed on medical leave. Appellant noted that during this period
she was diagnosed with generalized anxiety disorder and panic attacks. She alleged that she
continued to work in a hostile work environment where her work was sabotaged, leave requests
were denied, medical documentation was not processed timely, and available programs were not
discussed with her.2

2
Appellant previously filed an occupational disease claim (Form CA-2) alleging that on November 19, 2015 she
developed an emotional condition causally related to her federal employment duties, OWCP File No. xxxxxx589.
That claim was denied by OWCP. Appellant filed a notice of traumatic injury (Form CA-1) alleging that she sustained
an emotional condition on March 21, 2016 causally related to her work duties, OWCP File No. xxxxxx418. This
claim was denied by OWCP. Appellant filed an occupational disease claim (Form CA-2) alleging that on
November 19, 2015 she developed an emotional condition causally related to her employment duties, OWCP File No.
xxxxxx582. That claim was also denied by OWCP. Appellant filed an occupational disease claim (Form CA-2)
alleging that she developed an emotional condition on March 21, 2016 causally related to her work duties, OWCP
File No. xxxxxx583. That claim was also denied by OWCP. Appellant’s prior claims are not presently before the
Board.

2

In an explanation of the Form CA-1, appellant alleged that on March 21, 2016 L.G. called
her into an unscheduled meeting and presented a performance counseling memorandum dated
March 21, 2016 which stated that he was giving her 30 days to improve performance. She alleged
that L.G. intimidated her and singled her out. Appellant asserted that he sabotaged her work by
holding onto documents, not signing documents timely, and interfered with normal operations of
the mission by telling employees not to work with her in a team setting. She advised that L.G.’s
threats of termination were intensifying and he never offered her a plan to improve. Appellant
indicated that on March 28, 2016 she had a panic attack and left work early. She also submitted
articles on disability retirement with psychiatric conditions and on emotional reaction claims under
FECA.
On March 28, 2016 Dr. Felix W. Amoa-Bonsu, Board-certified in emergency medicine,
treated appellant for panic disorder. In a work status report dated March 28, 2016, he diagnosed
panic disorder and placed appellant off work from March 28 to 29, 2016.
Appellant was treated by Dr. Kweli A. Moyo, a Board-certified psychiatrist, on March 25
and April 14, 2016, for anxiety associated with depression. He indicated that appellant reported
being ill since March 29, 2016 and was disabled until May 2, 2016. In treatment forms dated
April 14 and June 20, 2016, Dr. Moyo diagnosed generalized anxiety disorder and panic attacks.
Appellant also submitted additional treatment records from a social worker.
By decision dated June 30, 2016, OWCP denied appellant’s claim as she failed to establish
that she sustained an emotional condition in the performance of duty.
On July 15, 2016 appellant requested reconsideration. She submitted a witness statement
from R.E., a coworker, dated September 24, 2015, who noted that he was in his office when
appellant was passing and he heard L.G. call her name in a loud harsh tone. L.G. asked appellant
about travel vouchers and stated that she was abusive with e-mails.
Appellant submitted documents relating to Equal Employment Opportunity (EEO)
complaints she filed that pertain to events that occurred before March 28, 2016. This included an
interrogatory from A.M., a coworker, dated March 15, 2016; an interview with L.G. on
October 27, 2015; a telephone interview with M.L. on November 2, 2015; and a telephone
interview with R.E. on November 4, 2015. An October 27, 2015 EEO interview with L.G.
revealed that his primary concern with appellant was her performance. He noted speaking to her
on numerous occasions about the need for a working relationship. L.G. provided appellant with a
performance counseling memorandum in early October noting his concerns that her reports were
late, they contained too many errors, and she sent too many e-mails. He indicated that when he
became the Service Center Director he sat down with her to discuss his expectations and advised
that he had no intention of being confrontational and tried to be direct with appellant about things
that needed to improve. L.G. indicated that he relied on the information she provided in the endof-year report to provide information to others and the report was incorrect. He indicated that this
was the second year in a row that the end-of-year report had problems. L.G. denied yelling at
appellant. With regard to appellant’s allegation that she was not allowed to telework, he explained

3

that appellant could get an ad hoc telework agreement if she gave him a checklist and took the
requisite course. However, appellant had not completed these tasks.3
OWCP also received additional medical records. Appellant was treated by Dr. Moyo from
February 29 to May 6, 2016 for work stress. On March 4, 2013 Dr. Yohannes Belachew, a Boardcertified internist, saw appellant for stress and depression. In reports from November 25 to 30,
2015, he diagnosed depressive disorder, anxiety, hypothyroidism, and hypertension. On
January 14 and April 9, 2015 appellant was seen by Dr. Gregory Haley, a Board-certified
psychiatrist, for major depressive disorder. In an August 19, 2016 report, Dr. Anne Purcell, an
employing establishment program consultant, noted that appellant’s EEO complaint was pending
and there had been no findings or conclusions regarding her allegation. Appellant also submitted
additional records from social workers.
By decision dated March 8, 2017, OWCP denied modification of its June 30, 2016
decision. It indicated that appellant filed separate emotional condition claims regarding the
allegations unrelated to the claimed March 28, 2016 employment incident.4
On March 31, 2017 appellant requested reconsideration. She reiterated her allegations that
she developed job-related stress as a result of her supervisor, L.G. constantly screaming at her,
belittling her in front of others, verbally abusing her, and creating a hostile work environment.
Appellant advised that she was performing her job duties to the best of her abilities. She alleged
that she experienced emotional and physical stress as a result of being abused and bullied by L.G.
Appellant indicated that as a result of job-related stress she requested leave under the Family and
Medical Leave Act (FMLA) for four hours each day for medical care which was approved by
headquarters for FMLA, but declined by L.G. as a punitive measure.
By decision dated April 12, 2017, OWCP denied appellant’s request for reconsideration as
the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
To establish an emotional condition in the performance of duty, appellant must submit the
following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused

3

Appellant submitted a September 24, 2015 statement from M.L. who was present at the performance appraisal
with L.G. M.L. noted that L.G. described the meeting as a discussion to help appellant improve her performance.
L.G. indicated that a shipment of coffee and creamer was incorrectly delivered to the office and appellant did not
immediately correct the problem, but blamed others. He advised appellant that she did not properly prepare the
Imaging Report and he completed the report and submitted it himself. L.G. further advised that there was a failure to
timely resolve an intern’s logging of leave. M.L. indicated that L.G. noted that appellant sent excessive e-mails and
she did not approve travel in a timely manner.
4

Supra note 2.

4

or contributed to the condition; and (3) rationalized medical opinion evidence establishing that the
identified compensable employment factors are causally related to the emotional condition.5
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,6 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.7
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.8 Allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim.9
Where a claimant alleges compensable factors of employment, he or she must substantiate
such allegations with probative and reliable evidence.10 Personal perceptions alone are insufficient
to establish an employment-related emotional condition.11 On the other hand the disability is not
covered where it results from such factors as an employee’s fear of a reduction-in-force, or her
frustration from not being permitted to work in a particular environment, or to hold a particular
position.12
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained an emotional condition as a result of an incident on
March 25, 2016 when her supervisor sent her an e-calendar appointment request for a meeting be
held on March 28, 2016. She claimed this caused her to develop high anxiety, nausea, and
headaches in anticipation of the meeting. OWCP denied appellant’s emotional condition claim,
finding that she had not established any compensable employment factors. The Board must,
therefore, initially review whether these alleged incidents and conditions of employment are
covered employment factors under the terms of FECA.

5

George H. Clark, 56 ECAB 162 (2004).

6

28 ECAB 125 (1976).

7

See Robert W. Johns, 51 ECAB 137 (1999).

8

Supra note 6.

9

J.F., 59 ECAB 331 (2008).

10

M.D., 59 ECAB 211 (2007).

11

Roger Williams, 52 ECAB 468 (2001).

12

See supra note 6.

5

Appellant has attributed her emotional condition to performing her regular or specially
assigned duties of her position. She generally alleged that she was concerned about her ability to
perform her work duties. However, appellant provided insufficient corroborating evidence to
support this allegation. She did not specify particular duties during specific time periods,
particularly the period March 25 to 28, 2016 upon which her traumatic injury claim is based, to
which she attributed her claimed emotional condition. The evidence of record does not support
this allegation. Appellant has not established a compensable employment factor in this regard.
She did not otherwise attribute her emotional condition to performing a specific regular or
specially assigned duty in her job. Therefore, she has not established a compensable factor under
Cutler.13
Appellant’s other allegations relate to administrative and personnel actions. In Thomas D.
McEuen,14 the Board held that an employee’s emotional reaction to administrative actions or
personnel matters taken by the employing establishment is not covered under FECA as such
matters pertain to procedures and requirements of the employing establishment and do not bear a
direct relation to the work required of the employee. The Board noted, however, that coverage
under FECA would attach if the factual circumstances surrounding the administrative or personnel
action established error or abuse by the employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.15
Appellant alleged that, on March 25, 2016, her supervisor, L.G. sent her an e-calendar
appointment requesting a meeting be held the following Monday. She asserted that she developed
high anxiety. Appellant also asserted that, following this, leave requests were unfairly denied.
The Board finds that such actions relate to administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties, and do not fall within the coverage of
FECA.16 Although the handling of disciplinary actions, evaluations, and leave requests, the
assignment of work duties, and the monitoring of activities at work are generally related to the
employment, they are administrative functions of the employer, and not duties of the employee.17
However, the Board has also found that an administrative or personnel matter will be considered
to be an employment factor where the evidence discloses error or abuse on the part of the
employing establishment. In determining whether the employing establishment erred or acted
abusively, the Board has to examine whether the employing establishment acted reasonably.18 The
13

See supra note 6.

14

See 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

15

See Richard J. Dube, 42 ECAB 916, 920 (1991).

16

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
17

Id.

18

See supra note 15.

6

Board finds that the evidence of record is insufficient to establish that the employing establishment
erred or acted abusively in the matter related to the incident or incidents that occurred on or about
March 25 to 28, 2016.
Appellant submitted a September 24, 2015 statement from M.L. who indicated that he was
present at a performance appraisal with appellant in which L.G. indicated that he was trying to get
appellant to improve her work performance. On October 27, 2015 L.G. indicated that his primary
concern with appellant was her performance and noted speaking to her on numerous occasions
about the need to have a working relationship. These statements relate to matters that predate the
alleged March 25 to 28, 2016 incidents and are irrelevant to the issue before the Board.19
Furthermore, the Board has held that issues of work scheduling pertain to appellant’s desire to
work in a particular environment and does not constitute compensable factors of employment.20
Regarding appellant’s general allegation that she developed stress due to insecurity about
maintaining her position, the Board has previously held that a claimant’s job insecurity is not a
compensable factor of employment under FECA.21 As such, appellant has not established a
compensable factor of employment with respect to the administrative matters of denial of
promotions, a different or permanent job, or request for reasonable accommodation.
Appellant filed an EEO complaint based on discrimination on the bases of sex, age, and
retaliation for EEO conduct. However, grievances and EEO complaints, by themselves, do not
establish that workplace harassment or unfair treatment occurred.22 In this case, the EEO
complaints appear to relate to incidents that occurred prior to the current allegation and claim
before the Board and therefore have no bearing on the present claim.23 Additionally, appellant has
not otherwise provided a final decision from any such complaints or grievances that pertain to her
allegations regarding the incident or incidents that occurred on or about March 25 to 28, 2016.
Thus, the evidence regarding the EEO matter does not establish a compensable employment factor
under FECA.
Appellant also generally alleged that the employing establishment’s actions concerning the
identified incidents were in retaliation, harassment, or punitive. She asserted that she was singled
out and treated unfairly by management. To the extent that incidents alleged as constituting
harassment or a hostile environment by a manager are established as occurring and arising from
appellant’s performance of her regular duties, these could constitute employment factors.24
However, for harassment to give rise to a compensable disability under FECA, there must be
evidence that harassment did in fact occur. Mere perceptions of harassment are not compensable
19

See T.F., Docket No. 12-0439 (issued August 20, 2012) (where appellant raised concerns about matters that
predated allegations made in her claim, they had no bearing on her current claim for compensation).
20

F.K., Docket No. 17-0179 (issued July 11, 2017).

21

See Artice Dotson, 42 ECAB 754, 758 (1990); Allen C. Godfrey, 37 ECAB 334, 337-38 (1986).

22

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

23

Supra note 19.

24

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

7

under FECA.25 The evidence fails to support appellant’s claim for harassment as a cause for her
emotional condition with regard to the incident or incidents that occurred on or about March 25
to 28, 2016. As noted, statements provided by appellant predate the matters pertaining to the
present claim and are irrelevant to the issue before the Board.26 General allegations of harassment
are insufficient27 and in this case appellant has not submitted sufficient evidence to establish
disparate treatment by her supervisor with regard to the incident or incidents occurring from
March 25 to 28, 2016.28 Although appellant alleged that her supervisor harassed and engaged in
actions which she believed constituted harassment, she provided no corroborating evidence to
establish her allegations.29 The Board finds that there is no evidence presented to substantiate
appellant’s allegations of retaliation or harassment. Appellant has not established a compensable
work factor with respect to the claimed harassment.
Consequently, appellant has not established her claim for an emotional condition as she
has not attributed her claimed condition to any compensable employment factors.30
On appeal appellant reiterated her allegations that she developed job-related stress as a
result of L.G.’s abusive behavior. She asserts that she submitted sufficient evidence to establish
that she sustained an emotional condition in the performance of duty. As explained above,
appellant has not established her claim for an emotional condition as she has not attributed her
claimed condition to any compensable employment factors.
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.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,31 OWCP has the discretion to reopen a case for review on
the merits. It must exercise this discretion in accordance with the guidelines set forth in section
10.606(b)(3) of the implementing federal regulations, which provides that a claimant may obtain

25

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence).
26

See supra note 19.

27

See Paul Trotman-Hall, 45 ECAB 229 (1993).

28

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
29

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
30

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).
31

5 U.S.C. § 8128(a).

8

review of the merits of his or her written application for reconsideration, including all supporting
documents, sets forth arguments and contain evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”32
Section 10.608(b) provides that any application for review of the merits of the claim which
does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP
without review of the merits of the claim.33
ANALYSIS -- ISSUE 2
OWCP denied appellant’s emotional condition claim because she had failed to establish
any compensable employment factors. Thereafter, it denied appellant’s reconsideration request.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In her request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. She submitted a statement dated March 22, 2015 and reiterated
her allegations that she developed job-related stress as a result of her supervisor, L.G. constantly
screaming at her, belittling her in front of others, verbally abusing her, and creating a hostile work
environment. Appellant advised that she was performing her job duties to the best of her abilities.
These assertions do not show a legal error by OWCP or a new and relevant legal argument.
Furthermore, the assertions are similar to arguments previously made by appellant. The Board has
held that evidence or argument that repeats or duplicates evidence previously of record has no
evidentiary value and does not constitute a basis for reopening a case.34
The underlying issue in this case is whether appellant submitted sufficient evidence to
establish that her claimed condition is causally related to any compensable employment factors.
This is a factual issue which must be addressed by relevant new factual evidence.35 However,
appellant did not submit any new and relevant factual evidence in support of her claim.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
32

20 C.F.R. § 10.606(b)(3).

33

Id. at § 10.608(b).

34

C.N., Docket No. 08-1569 (issued December 9, 2008).

35

See Bobbie F. Cowart, 55 ECAB 746 (2004).

9

submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty. The Board further finds that OWCP properly denied
appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 12 and March 8, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 24, 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

10