United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Solvang, CA, Employer
__________________________________________

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

Docket No. 19-0852
Issued: October 18, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 15, 2019 appellant filed a timely appeal from a February 6, 2019 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 met her burden of proof to establish entitlement to an
additional four hours of wage-loss compensation on November 30, 2018 causally related to her
accepted employment conditions.
FACTUAL HISTORY
OWCP accepted that appellant, a 66-year-old retired sales, services, and distribution
associate, sustained cervical disc disorder with myelopathy and cervical intervertebral disc
1

5 U.S.C. § 8101 et seq.

displacement (C5-6) without myelopathy, due to factors of her federal employment on or about
July 29, 1996. It authorized a May 19, 1999 anterior cervical discectomy and fusion at C5-6.
On July 23, 2018 appellant underwent: (1) a radiofrequency facet joint nerve ablation of
the left and right C4-5 joints; (2) a radiofrequency facet joint nerve ablation of the left and right
C6-7 joints; and (3) a fluoroscopy for spinal injections.
In a progress report dated November 30, 2018, Dr. Benjamin Dirkx, an osteopath Boardcertified in pain medicine, physical medicine, and rehabilitation, noted that appellant presented for
a follow-up appointment, and that, since her last visit, she reported that her neck pain had
worsened, and that she experienced muscle spasms and daily morning headaches. He listed the
diagnoses as: (1) cervical disc disorder with myelopathy in the mid-cervical region; (2) carpal
tunnel syndrome; (3) cervical facet arthropathy; (4) cervical myofascial strain; and (5) left
occipital neuralgia. Dr. Dirkx related that he provided appellant with an out-of-work note for
missing work on November 30, 2018 secondary to the appointment.
On December 27, 2018 appellant submitted a claim for compensation (Form CA-7) for
intermittent periods of disability from November 26 to December 21, 2018, totaling 96 hours of
leave without pay. The attached time analysis form (Form CA-7a), included an entry for a total of
eight hours of leave without pay claimed for November 30, 2018, due to a workers’ compensation
physician visit for neck and head pain. With the Form CA-7a, appellant included a work excuse
note dated November 30, 2018, from Dr. Dirkx who requested that she be excused from work
secondary to a flare-up of pain.
In a development letter dated December 31, 2018, OWCP informed appellant that payment
was authorized for 92 hours of wage loss for the claimed period. However, it advised that the
claim was not payable in its entirety as the medical evidence submitted did not substantiate the
disability for the additional four hours claimed for November 30, 2018. OWCP advised appellant
of the type of medical evidence necessary and afforded her 30 days to respond.
In response, Dr. Dirkx submitted a January 9, 2019 report, noting that appellant was unable
to attend work and could not perform her usual and customary duties for an extended period of
time between November 26 and December 21, 2018, due to a flare-up of pain as a result of her
cervical disc disorder with myelopathy in the mid-cervical region. He stated that this flare-up of
pain was a result of her accepted condition which caused severe pain to the head and neck area,
and concluded that she unable to attend work. Dr. Dirkx attached a copy of his treatment notes
from the November 30, 2018 appointment.
By decision dated February 6, 2019, OWCP denied appellant’s claim for an additional four
hours of disability compensation on November 30, 2018. It found that the medical evidence of
record was insufficient to establish that she was disabled from work on that date due to her
accepted medical conditions. 2

2

Appellant voluntarily retired from the employing establishment effective January 31, 2019.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. 4 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury. 5 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.6
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury. 7 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.8 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.9 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.10
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. 11

3

Supra note 1.

4

K.M., Docket No. 19-0367 (issued June 26, 2019); R.R., Docket No. 19-0048 (issued April 25, 2019); see
Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20
ECAB 55 (1968).
5

See Amelia S. Jefferson, id.

6

See D.W., Docket No. 18-0644 (issued November 15, 2018); see Edward H. Horton, 41 ECAB 301 (1989).

7

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conrad Hightower, 54 ECAB 796 (2003);
20 C.F.R. § 10.5(f).
8

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

9

Merle J. Marceau, 53 ECAB 197 (2001).

10

S.H., Docket No. 18-1342 (issued February 26, 2019).

11

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish entitlement to
an additional four additional hours of wage-loss compensation on November 30, 2018 causally
related to her accepted employment conditions.
In support of her claim, appellant submitted reports from Dr. Dirkx. Dr. Dirkx opined that
she would have intermittent periods of disability due to neck pain or flare-ups of her accepted
cervical conditions. The Board has held that subjective complaints of pain are insufficient to
establish disability from employment. 12 Dr. Dirkx did not explain with rationale why appellant’s
condition caused her to be disabled on that date.13 The Board has held that medical evidence must
provide a rationalized medical opinion substantiating disability from work.14 Thus, the Board
finds that reports submitted by Dr. Dirkx are insufficient to establish entitlement to an additional
four hours of disability on November 30, 2018.
As the medical evidence of record is insufficient to establish causal relationship between
the additional four hours of claimed disability on November 30, 2018 and appellant’s accepted
employment conditions, the Board finds that she 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 entitlement to
an additional four additional hours of wage-loss compensation on November 30, 2018 causally
related to her accepted employment conditions.

12

G.J., Docket No. 18-1335 (issued March 22, 2019).

13

See V.G., Docket No. 18-0936 (issued February 6, 2019).

14
K.A., Docket No. 16-0592 (issued October 26, 2016); C.S., Docket No. 08-2218 (issued August 7, 2009);
Sandra D. Pruitt, 57 ECAB 126 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the February 6, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 18, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

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

Docket No. 19-0485
Issued: August 22, 2019

Case Submitted on the Record

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

JURISDICTION
On January 3, 2019 appellant filed a timely appeal from a December 6, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1
The Board notes that appellant submitted additional evidence after OWCP rendered its December 6, 2018
decision. 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.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to expand the acceptance of his
claim to include a traumatic brain injury (TBI) causally related to his November 18, 2014
employment injury.
FACTUAL HISTORY
On November 19, 2014 appellant, then a 29-year-old electrician helper, filed a traumatic
injury claim (Form CA-1) alleging that on November 18, 2014 he sustained a respiratory injury,
reactive airway disease, shortness of breath, chest pain, and burning in his eyes when he was
exposed to smoke and particles from welding, grinding, smoldering, and painting without adequate
ventilation. He stopped work on November 19, 2014 and returned to work the next day. Appellant
subsequently stopped work again on February 18, 2015 and did not return.
OWCP accepted appellant’s claim for pneumonitis due to acute smoke inhalation. It
subsequently expanded acceptance of his claim to include reactive airways dysfunction syndrome
(RADS), an exacerbation of chronic rhinitis, and other diseases of the larynx. OWCP paid
appellant wage-loss compensation on the supplemental rolls effective February 18, 2015, and on
the periodic rolls effective November 15, 2015.
Appellant received treatment on November 18, 2014 for reactive airway disease and smoke
inhalation. On January 12, 2015 Dr. Daniel Kim, an osteopath, treated him for respiratory
problems following his employment exposure. In a review of symptoms, he noted that appellant
related that he had difficulty remembering things. Dr. Kim diagnosed RADS, cough, a history of
obstructive sleep apnea, sinus congestion, and hoarseness.3
On January 27, 2016, Dr. John P. Brennan, a Board-certified internist and pulmonologist,
diagnosed post-traumatic stress disorder (PTSD) due to appellant’s November 18, 2014
employment injury. He indicated that appellant had not complained of memory loss or other types
of neurological impairment.
In a clinic note dated February 4, 2016, Dr. Wassfy Hanna, a Board-certified psychiatrist,
obtained a history of appellant experiencing poor concentration, anger, and the need to be vigilant
following his employment injury.
In a psychological profile dated September 6, 2016, Dr. Robert Su Prescott, a psychologist,
discussed appellant’s history of a respiratory injury on November 18, 2014 and noted that he
related that “[appellant’s] attention and memory have worsened since the work accident.
[Appellant] reports that he gets distracted, cannot multitask and will misplace things.” Dr. Prescott
diagnosed PTSD and recommended against “further evaluative studies at this time.”

3

Appellant has continued to receive treatment from Dr. Kim for his respiratory condition through 2018.

2

On January 5, 2017 OWCP referred appellant to Dr. Mitchell P. Pulver, a Board-certified
psychiatrist, for a second opinion evaluation regarding whether the acceptance of his claim should
be expanded to include PTSD.
In a report dated February 20, 2017, Dr. Pulver reviewed appellant’s history of an
employment injury on November 18, 2014 while working on a submarine in a confined space that
filled with toxic fumes. He related, “[Appellant] has been diagnosed with a lung and upper
respiratory disorder due to his industrial accident in 2014. He also probably sustained some brain
damage due to the accident, which caused impaired concentration and memory.” Dr. Pulver
diagnosed PTSD due to the November 2014 employment injury.
Based on Dr. Pulver’s report, on March 2, 2017 OWCP expanded acceptance of appellant’s
claim to include PTSD.
On December 7, 2017 appellant requested that OWCP expand acceptance of his claim to
include a TBI based on Dr. Pulver’s finding that he may have sustained brain damage from his
injury.
In a development letter dated January 10, 2018, OWCP advised appellant of the type of
evidence required to support that the acceptance of his claim should be expanded to include his
recent diagnosis of a TBI, including a rationalized medical report explaining how the diagnosed
condition was caused or aggravated by his accepted employment injury. It afforded him 30 days
to submit the necessary evidence.
In a January 26, 2018 response, appellant asserted that OWCP should expand acceptance
of his claim to include a TBI based on Dr. Pulver’s finding that he had probably sustained brain
damage due to his November 18, 2014 employment injury.
On May 25, 2018 OWCP referred appellant to Dr. George Neal, a Board-certified
neurologist, for a second opinion examination regarding the issue of whether the acceptance of his
claim should be expanded to include a TBI. It provided Dr. Neal with a statement of accepted
facts (SOAF) containing a history of injury and the accepted conditions.
In a report dated June 15, 2018, Dr. Neal reviewed appellant’s history of injury and the
medical reports of record. He discussed appellant’s complaints of memory problems beginning
immediately following the injury and also problems with concentration, distraction, and difficulty
learning. Dr. Neal noted that appellant had been shot in the head when young and that the bullet
had not been removed. On examination he found normal attention, concentration, and remote
memory. Dr. Neal diagnosed central sleep apnea unrelated to the November 18, 2014 employment
injury. He related:
“In terms of cognitive complaints, the claimant reports cognitive complaints at the
time of the original injury that persist to the present time. These symptoms are
likely to be explained on the basis of [PTSD] as there is no history of a neurologic
injury. If cognitive problems were secondary to that injury, one would expect there
to have been significant evidence of hypoxic encephalopathy at the time, which the
records do not reveal.”

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Dr. Neal noted that neuropsychological testing had not been undertaken and that,
consequently, appellant’s “cognitive complaints have not been substantiated or differentiated from
psychologic causes of the complaints.” He concluded that appellant had no “work-related
conditions of neurologic origin.”
On July 24, 2018 appellant questioned whether Dr. Neal was provided with the complete
medical record and noted that he could have obtained neuropsychological testing.
By decision dated December 6, 2018, OWCP denied appellant’s request to expand the
acceptance of his claim to include TBI causally related to the November 18, 2014 employment
injury. It found that Dr. Neal’s opinion constituted the weight of the evidence and established that
he had not sustained an employment-related neurological condition.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.4
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.5 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.6 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).7
ANALYSIS
The Board finds that appellant has not met his burden of proof to expand the acceptance of
his claim to include a TBI causally related to his November 18, 2014 employment injury.
OWCP accepted that appellant sustained pneumonitis due to acute smoke inhalation,
RADS, an exacerbation of chronic rhinitis, other diseases of the larynx, and PTSD on
November 18, 2014 while in the performance of duty. By decision dated December 6, 2018, it
denied his request to expand the acceptance of his claim to include a TBI.
In support of his request for claim expansion, appellant asserted that medical evidence
supported his complaints of memory problems subsequent to the employment injury. On
January 12, 2015 Dr. Kim discussed his complaints of difficulty with his memory. He diagnosed
4

R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).

5

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

6

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

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RADS, cough, a history of sleep apnea, sinus congestion, and hoarseness. On February 4, 2016
Dr. Hanna noted that appellant asserted that he had reduced concentration and anger subsequent
to his work injury. In a report dated September 6, 2016, Dr. Prescott related that he believed that
appellant’s memory and attention span had decreased after the November 18, 2014 employment
injury. He diagnosed PTSD. As none of these physicians diagnosed a TBI as a result of the
November 18, 2014 employment injury, or addressed the relevant issue of claim expansion, their
opinions are insufficient to meet appellant’s burden of proof.8
OWCP referred appellant to Dr. Pulver, a Board-certified psychiatrist, to determine
whether it should expand acceptance of appellant’s claim to include PTSD. In a report dated
February 20, 2017, Dr. Pulver discussed appellant’s history of lung and respiratory problems after
exposure to toxic fumes while working on a submarine. He related that appellant had “probably
sustained some brain damage due to the accident.” Dr. Pulver diagnosed PTSD. However, his
opinion that appellant probably sustained brain damage is speculative in nature and thus of
diminished probative value.9 Additionally, Dr. Pulver is not a specialist in the appropriate field of
medicine to diagnose a neurological condition.10
OWCP further developed the issue of whether the acceptance of appellant’s claim should
be expanded to include a TBI by referring him to Dr. Neal, a Board-certified neurologist. On
June 15, 2018 Dr. Neal discussed appellant’s November 18, 2014 employment injury and
subsequent complaints of difficulty with concentration, memory, and learning. He obtained a
history of appellant being shot in the head when young. On examination, Dr. Neal found that
appellant’s remote memory, concentration, and attention were normal. He diagnosed sleep apnea
unrelated to appellant’s employment injury. Dr. Neal attributed appellant’s cognitive symptoms
to PTSD, providing as a rationale that there was no evidence of significant hypoxic encephalopathy
at the time of injury. He further noted that testing had not differentiated whether his complaints
were psychological or physiological. Dr. Neal opined that appellant had no neurological condition
causally related to the employment injury. His opinion is based on a proper factual and medical
history. Dr. Neal thoroughly reviewed that history and accurately summarized the relevant
medical evidence.11 As noted, he explained that appellant had no symptoms of significant hypoxic
encephalopathy at the time of injury and thus found that he had not sustained a TBI as a result of
the November 18, 2014 employment injury. Dr. Neal is a specialist in the appropriate field. His
opinion is, consequently, entitled to the weight of the evidence and establishes that appellant failed
to sustain a TBI causally related to his accepted employment injury.12

8

See S.S., Docket No. 11-1579 (issued April 24, 2012).

9

D.C., Docket No. 18-1358 (issued June 13, 2019).

10

See generally O.S., Docket No. 18-1549 (issued February 7, 2019) (finding that a report from a psychologist was
not probative regarding appellant’s foot condition as he was not a specialist in the appropriate field of medicine).
11

C.B., Docket No. 18-0633 (issued November 16, 2018).

12

Id.

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The Board thus finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include a TBI.
On appeal appellant asserts that OWCP erred in giving less weight to Dr. Pulver because
he used the word “probably” to describe causation. He questions why OWCP failed to inform
Dr. Neal that he could obtain any necessary testing and asserted that he did not base his findings
on a complete record or SOAF. As discussed, however, Dr. Pulver’s opinion is of diminished
probative value as it is speculative in nature.13 Additionally, while Dr. Neal indicated that
appellant had not undergone cognitive testing, he did not find that under the circumstances he
required such testing for a diagnosis, and provided rationale for his conclusion that appellant had
no neurological condition resulting from his accepted employment injury.
Appellant may submit new evidence or argument at any time with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that the acceptance of his claim should
be expanded to include a TBI causally related to his November 18, 2014 employment injury.

13

See supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the December 6, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 2019
Washington, DC

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

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

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

7


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

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

Docket No. 13-1854
Issued: December 23, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On August 6, 2013 appellant filed a timely appeal from a March 29, 2013 merit decision
and a July 15, 2013 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 over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish an injury in the
performance of duty on July 24, 2012; and (2) whether OWCP properly denied his request for an
oral hearing as untimely.
FACTUAL HISTORY
On August 17, 2012 appellant, then a 60-year-old maintenance mechanic leader, filed a
traumatic injury claim (Form CA-1) alleging that on July 24, 2012 he sustained contusions of the
1

5 U.S.C. § 8101 et seq.

head, back, leg and arm when he fell in a stairwell at the employing establishment. He notified
his supervisor on August 17, 2012.
In a record of diagnostic testing dated December 21, 2012, Dr. Enrico Cappiello, a
Board-certified radiologist, performed a magnetic resonance imaging (MRI) scan examination of
appellant’s right knee. He noted that the knee exhibited an extensive horizontal tear of the
medial meniscus at the base of the posterior horn extending through the body into the anterior
horn of the medial meniscus. Dr. Cappiello also noted a small joint effusion in association with
a very small synovial recess behind the posterior aspect of the medial tibial plateau.
By letter dated January 17, 2013, Dr. Zahir noted that on July 24, 2012, appellant fell
down the steps at the employing establishment and injured his right knee. He noted that
appellant wore braces on his legs due to plantar fasciitis. Dr. Zahir also noted that appellant had
a history of dizziness, hypertension, stomach ulcer and depression. He stated that the MRI scan
examination performed by Dr. Cappiello revealed evidence of a complex medial meniscus tear of
the right knee. Dr. Zahir reported his clinical impression of internal derangement and torn
medial meniscus of the right knee, cervical spinal canal stenosis, hypertension, stomach ulcer
and depression. He recommended that appellant have an arthroscopic surgery, a synovectomy,
meniscetomy and chondroplasty if indicated. In a note dated January 17, 2013, Dr. Syed A.
Zahir, a Board-certified orthopedic surgeon, stated that appellant had been examined in his office
on that date. He recommended that appellant take six weeks off from work, to return on
March 5, 2013.
By letter dated February 15, 2013, OWCP informed appellant that the evidence of record
was insufficient to support his claim. It afforded him 30 days to submit additional evidence and
respond to its inquiries.
By letter dated February 25, 2013, appellant stated that on the morning of July 24, 2012
he started his shift at 7:00 a.m. Appellant began to make his usual rounds, going from the first
floor of the employing establishment to the basement. He stated that he remembered starting to
walk down stairwell five and grabbing the handrail, but that the next thing he knew, he was lying
on his back on the landing between two floors and he was in pain. Appellant estimated that he
fell down at least three steps, and noted that there was no one else in the stairwell. When he
rose, he was aware of pain in his lower back, buttocks, right knee, right elbow and the middle
digit of his right hand. His right elbow was skinned and bleeding. When appellant picked
himself up, he continued his work assignment. Later, appellant told, a coworker, about the
incident, and became aware that his back was hurting to a greater extent than before. At the
coworker’s insistence, appellant decided that the best thing to do was to go to the emergency
room. He explained the incident to his supervisor, who gave him a slip to go to the emergency
room. The emergency room staff ran tests and took x-rays of appellant’s lower back, right knee,
head and neck and right hand. Appellant was in the emergency room for approximately six
hours, after which he was admitted overnight for observation. He was discharged the next day
with orders for more tests and excused from work for the next two days. Appellant noted that he
currently had some back pain, but that the pain in his right knee had gotten progressively worse,
despite the use of pain medication, a knee brace and a cane. He stated that, prior to the fall, he
did not have knee pain, and that the injury to his right knee was the direct result of his fall down
the stairwell. Appellant reported that he was not sure what caused him to fall, but that he had
some dizziness in the past, thought to be caused by his blood pressure. He asserted that he was
2

not aware of any hazard or special condition that caused or contributed to his fall. In a narrative
statement dated February 25, 2013, the supervisor confirmed that appellant reported on the
morning of July 24, 2012 that he had fallen down steps in stairwell five. Appellant told his
supervisor that he was in a lot of pain in his knees, hands and head. The supervisor completed a
sick call slip for him to go to the Employee Health division, and appellant was admitted the same
day for treatment at the employing establishment.
In a narrative statement dated February 25, 2013, appellant’s coworker stated that when
appellant arrived at work on July 24, 2012, he told him that he was in pain. Appellant advised
that he had fallen down stairwell five in the main building at the employing establishment. The
coworker walked appellant to the emergency room and stayed with him until his wife arrived.
In a record of diagnostic testing dated July 30, 2012, Dr. Rajendra Valiveti, a radiologist,
performed an MRI scan evaluation of appellant’s cervical spine. He noted a predisposition to
spinal stenosis, a tiny central subligamentous disc at C5-6 that produced a borderline spinal
stenonsis with the sagittal diameter of the spinal canal reduced to approximately nine
millimeters, and severe narrowing of the left neural foramen at C6-7 due to Luschka joint
disease. Dr. Valiveti stated his impression of mild-to-moderate degenerative changes of the
cervical spine.
In progress notes dated July 30, 2012, Dr. Valiveti reviewed the results of x-ray
examinations performed on July 24, 2012, the date of injury. On examination of appellant’s
right hand, he noted no fracture or bony subluxation, and minimal to mild degenerative changes
at the distal interphalangeal joints. On examination of the lumbar spine, Dr. Valiveti noted no
fractures, disc space narrowing, and minimal osteophyte formation. On examination of the
thoracic spine, he noted no fractures and mild degenerative changes. On examination of the right
knee, Dr. Valiveti noted no fracture or bony subluxation, an intact knee joint space and minimal
degenerative changes at the patellofemoral joint. In the same medical records, there appears an
unsigned review of the results of an echocardiogram performed on July 26, 2012, in which a
person noted under the heading of clinical history that appellant had a syncopal episode with
dizziness.
In a record of diagnostic testing dated December 22, 2012, Dr. Ben Paxton, a Boardcertified radiologist, reviewed the results of x-rays of appellant’s knees performed on
December 21, 2012. He stated his findings of no acute fracture or dislocation, no joint effusion
and minimal bilateral medial compartment joint space narrowing.
In progress notes dated December 27, 2012, Dr. John E. Traynham, a Board-certified
orthopedic surgeon, reviewed the results of an MRI scan evaluation of appellant’s right knee. He
stated his impression of a complex medial meniscus tear of the right knee with a posterior
meniscal cyst. Dr. Traynham noted that most of appellant’s symptoms were related to
degenerative meniscal changes and the cyst. He injected appellant’s knee with Kenalog to
relieve pain.
By decision dated March 29, 2013, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish that appellant was in the performance of duty. It stated that
his fall was idiopathic, because appellant and Dr. Zahir’s January 17, 2013 report noted prior
dizzy spells.
3

On May 29, 2013 appellant requested an oral telephonic hearing before an OWCP
hearing representative.
By decision dated July 15, 2013, OWCP denied appellant’s request for an oral hearing as
untimely.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.3
A traumatic injury is defined as a condition of the body caused by a specific event or
incident, or series of events or incidents, within a single workday or shift.4 In order to determine
whether an employee actually sustained an injury in the performance of duty, OWCP begins with
an analysis of whether fact of injury has been established. Generally, fact of injury consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred.5 The second component is whether the employment incident
caused a personal injury and generally can be established only by medical evidence.
It is a well-settled principle of workers compensation law and the Board has so held, that
an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes
an employee to collapse and to suffer injury upon striking the immediate supporting surface and
there is no intervention or contribution by any hazard or special condition of employment -- is
not within coverage of FECA.6 Such an injury does not arise out of a risk connected with the
employment and is, therefore, not compensable. The Board has made equally clear, the fact that
the cause of a particular fall cannot be ascertained or that the reason it occurred cannot be
explained, does not establish that it was due to an idiopathic condition.
The question of causal relationship in such cases is a medical one and must be resolved
by medical evidence.7 This follows from the general rule that an injury occurring on the
industrial premises during working hours is compensable unless the injury is established to be
2

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Michael E. Smith, 50 ECAB 313, 315 (1999).

4

20 C.F.R. § 10.5(ee).

5

See Elaine Pendleton, supra note 2.

6

See Carol A. Lyles, 57 ECAB 265, 268 (2005).

7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).

4

within an exception to such general rule.8 If the record does not establish that the particular fall
was due to an idiopathic condition, it must be considered as merely an unexplained fall, one
which is distinguishable from a fall in which it is definitely proved that a physical condition
preexisted and caused the fall.9
ANALYSIS -- ISSUE 1
The Board finds that appellant’s fall on July 24, 2012 occurred in the performance of
duty. If the cause of a particular fall cannot be ascertained, the fall is then considered an
unexplained fall.10 To properly apply the idiopathic fall exception to the premises rule, there
must be two elements present: a fall resulting from a personal, nonoccupational pathology and
no contribution from employment.11 OWCP has the burden to present medical evidence showing
the existence of a personal nonoccupational pathology; the mere fact that an employee has a
preexisting medical condition, without supporting medical rationale, is not sufficient to establish
that a fall is idiopathic.12
The medical evidence in this case does not clearly establish that appellant’s fall was
idiopathic. While appellant indicated in his letter dated February 25, 2013 that he had a history
of dizziness thought to be caused by blood pressure, he also indicated that he was not aware of
any special conditions that caused his fall, and noted on his CA-1 claim form that the cause of
his injury was unknown. The medical evidence regarding appellant’s condition causing
dizziness is scant. By letter dated January 17, 2013, Dr. Zahir noted that appellant had a history
of dizziness, hypertension, stomach ulcer and depression. In an unsigned review of the results of
an echocardiogram performed on July 26, 2012, a person noted under the heading of clinical
history that appellant had a syncopal episode with dizziness.
Unsigned medical reports are of no probative value when their authorship cannot be
determined, as it cannot be discerned whether a physician signed the reports.13 Therefore, the
review of the results of an echocardiogram performed on July 26, 2012 has no probative value.
While the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should
be expressed in terms of a reasonable degree of medical certainty.14 As there is no conclusive
evidence regarding the cause of the July 24, 2012 fall, it must be considered an unexplained fall
8

N.P., Docket No. 08-1202 (issued May 8, 2009); Dora J. Ward, 43 ECAB 767, 769 (1992); Fay Leiter, 35
ECAB 176, 182 (1983).
9

John R. Black, 49 ECAB 624, 626 (1998); Judy Bryant, 40 ECAB 207, 213 (1988); Martha G. List, 26 ECAB
200, 204-05 (1974).
10

See Martha G. List, supra note 9.

11

N.P., supra note 8.

12

See Steven S. Saleh, 55 ECAB 169, 172-73 (2003).

13

See Merton J. Sills, 39 ECAB 572, 575 (1988).

14

Ricky S. Storms, 52 ECAB 349, 352 (2001).

5

that occurred in the performance of duty.15 The case must therefore be remanded to OWCP to
determine the nature and extent of any injury or disability that resulted from the fall. After such
further development deemed necessary, OWCP shall issue an appropriate decision.
In light of the Board’s findings regarding Issue 1, Issue 2 is rendered moot.16
CONCLUSION
The Board finds that appellant’s July 24, 2012 fall at work was an unexplained fall and
therefore occurred within the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 29, 2013 is set aside and the case is remanded to OWCP
for proceedings consistent with this opinion of the Board.
Issued: December 23, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

15

Steven S. Saleh, supra note 12.

16

See P.Y., Docket No. 11-937 (issued August 28, 2012).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Syracuse, NY, Employer
__________________________________________

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Appearances:
Christina Faliero, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1142
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On July 22, 2021 appellant filed a timely appeal from a May 25, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated May 8, 2020, 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 over the merits of this case.3
1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the May 25, 2021 decision, OWCP received additional evidence. The Board’s
Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 17, 2019 appellant, then a 58-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on May 17, 2019 he injured his right hip when he slipped and fell
on a patient’s urine while in the performance of duty. He indicated that he did “the splits” with
his right leg slid backwards behind him and felt immediate discomfort in the area of the right
posterior hip. Appellant did not stop work.
In a medical report dated August 6, 2019, Dr. Michael T. Clarke, a Board-certified
orthopedic surgeon, indicated that appellant related complaints of right hip pain , which he
attributed to hyperextending the right hip when he slipped in liquid on May 17, 2019. He noted
that he experienced immediate pain in the posterior right hip and, on physical examination, he
documented mild deep hip irritation, tenderness over the ischial tuberosity, and pain with
hyperextension. Dr. Clarke reviewed x-rays, which revealed mild degenerative changes and
femoral neck thickening. He diagnosed right hip pain and offered a differential diagnosis of
potential hamstring tear versus posterior labral tear. Dr. Clarke recommended magnetic resonance
imaging (MRI) scan of the right hip.
A report of an MRI scan of the right hip dated August 30, 2019 demonstrated mild
osteoarthropathy, a tear of the anterior superior labrum, and a mild partial tear of the right common
hamstring origin.
In a follow-up report dated September 6, 2019, Dr. Clarke reviewed the MRI scan results
and diagnosed right hip pain. He opined that appellant’s pain was originating in the proximal
hamstring, and that the May 17, 2019 employment incident was a competent medical cause of the
injury. Dr. Clarke recommended physical therapy and medication.
In an October 18, 2019 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence necessary, including a
narrative medical report from his treating physician containing a detailed description of findings
and a diagnosis, explaining how his work activities caused, contributed to, or aggravated his
medical conditions. OWCP afforded appellant 30 days to submit the requested information.
Thereafter, OWCP received a report dated October 1, 2019 from Elizabeth Lannier, a
physical therapist, who noted that appellant related right hip pain, which he attributed to a workrelated hyperextension injury of the right hip. Ms. Lannier recommended various therapeutic
exercises and modalities. Additional notes dated October 3 through November 5, 2019
documented physical therapy treatments for the right hip.
In a follow-up report dated October 22, 2019, Dr. Clarke diagnosed right hip pain and
hamstring tendinosis. He performed a cortisone and lidocaine injection.
In an attending physician’s report (Form CA-20) dated November 14, 2019, Dr. Clarke
diagnosed right hip labral tear, right hip partial tear common hamstring, right hamstring tendinosis,
2

and right hip pain. He answered in the negative as to whether appellant had a history of a
preexisting injury and checked a box marked “Yes” indicating that the diagnosed conditions were
caused when appellant hyperextended his right hip after slipping on a vinyl floor at work.
By decision dated November 27, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he had not submitted medical evidence establishing a causal relationship between his
diagnosed conditions and the accepted May 17, 2019 employment incident. Consequently, it
found that he had not met the requirements to establish an injury or medical condition causally
related to the accepted employment incident.
OWCP continued to receive evidence including physical therapy notes dated November 8
through 29, 2019.
In a December 3, 2019 follow-up note, Dr. Clarke noted that appellant had experienced
significant relief of his right hip pain f ollowing the cortisone injection and opined that his
complaints and examination findings were related to the May 17, 2019 employment incident.
In a report dated January 14, 2020, Dr. Clarke indicated that appellant was working full
duty with ongoing complaints of discomfort in his right buttock. He diagnosed right hip pain and
ischial tendinosis of the hamstring insertion and opined that forcible contraction of the hamstring
during his fall “could clearly have caused this problem” and “should be related to” his claim.
Dr. Clarke injected the area with a steroid.
On February 21, 2020 appellant requested reconsideration of OWCP’s November 27, 2019
decision.
By decision dated May 8, 2020, OWCP denied modification of its prior decision, finding
that appellant had not provided rationalized medical opinion eviden ce supporting causal
relationship between his accepted employment incident and his diagnosed medical conditions .
On May 6, 2021 appellant, through counsel, requested reconsideration of the May 8, 2020
decision. Counsel contended that OWCP erred in issuing its May 8, 2020 decision. She explained
that Dr. Clarke’s medical reports were sufficient to establish causal relationship and that his reports
were not speculative.
By decision dated May 25, 2021, OWCP denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a), finding that his request for reconsideration
neither raised substantial legal questions, nor included new or relevant evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a
matter of right. 4 OWCP has discretionary authority in this regard and has imposed certain

4

5 U.S.C. § 8128(a).

3

limitations in exercising its authority. 5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought. 6
A timely request for reconsideration, including all supporting documents, must set forth
arguments, and contain evidence that either: (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 p reviously
considered by OWCP. 7 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In support of his request for reconsideration, appellant, through counsel, argued that OWCP
erred in finding that his claim required a fully rationalized medical opinion in order to establish a
causal relationship between his diagnosed medical conditions and the accepted May 17, 2019
employment incident. The Board finds, however, that appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal
argument not previously considered by OWCP. Accordingly, he is not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under section
10.606(b)(3). 9
Appellant also did not submit any new medical evidence. The underlying issue in this case
is causal relationship, which is medical in nature, and he did not submit any pertinent new and
relevant medical evidence not previously considered by OWCP. Therefore, appellant is not
entitled to further review of the merits of his claim based on the third requirement under section
10.606(b)(3). 10

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). 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). Id. at Chapter 2.1602.4b.
7

Id. at § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued
February 20, 2020).
8

Id. at § 10.608.

9

Id. at § 10.606(b)(3); see also C.C., Docket No. 19-1622 (issued May 28, 2020); M.S., Docket No. 18-1041 (issued
October 25, 2018); C.N., Docket No. 08-1569 (issued December 9, 2008).
10

See 20 C.F.R. § 10.606(b)(3)(iii).

4

The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, 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
__________________________________________
L.M., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Natchitoches, LA, Employer
__________________________________________

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

Docket No. 09-1810
Issued: March 23, 2010

Case Submitted on the Record

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

JURISDICTION
On July 9, 2009 appellant filed a timely appeal of a March 27, 2009 decision of the
Office of Workers’ Compensation Programs denying modification of a September 10, 2008
decision denying her claim for compensation between February 3 and 26, 2008.
ISSUE
The issue is whether appellant had a period of disability between February 3 and 26, 2008
causally related to his accepted employment-related injury.
FACTUAL HISTORY
On February 7, 2008 appellant, then a 57-year-old inspector, filed an occupational
disease claim alleging that she developed an allergic reaction on both hands from wearing latex
gloves at work. She stopped work on February 4, 2008.
In a February 27, 2008 attending physician’s report, Dr. Jeffrey Evans, a general
practitioner, diagnosed dermatitis of both hands due to a latex allergy that was work related. He

indicated that appellant’s work consisted of inspecting chickens while wearing gloves on both
hands. Dr. Evans indicated that there was partial disability since December 10, 2007. He noted
the period of disability was unknown but that appellant was unable to return to work.
On February 7, 2008 appellant filed a claim for disability compensation from February 3
to March 1, 2008. An undated attending physician’s report from Dr. Evans reiterated his
diagnosis of work-related dermatitis of both hands. He indicated partial disability beginning
December 10, 2007 but noted it was unknown when appellant’s disability would end or when she
could return to work. In a March 4, 2008 duty status report, Dr. Evans noted that appellant could
not return to work until “her hands cleared up,” then she could return to full-time regular work
and would need nonlatex gloves. On April 8, 2008 he noted first treating appellant on
December 10, 2007 when her hands were swollen and peeling with mild drainage. Dr. Evans
found that she had a severe case of dermatitis due to latex gloves. He advised that appellant
could return to work on April 14, 2008. In an undated work status report, Dr. Evans diagnosed
hand dermatitis. He also noted that appellant “should be able to return to work by
April 14, 2008.”
Appellant returned to work on April 14, 2008.
On April 25, 2008 the Office accepted the claim for bilateral contact dermatitis. It
advised appellant to submit a claim for compensation if her injury caused lost time from work.
On May 2, 2008 appellant filed a claim for disability compensation from February 4 to
April 12, 2008.
On May 28, 2008 the Office advised appellant that additional medical evidence was
needed to establish her disability claim between February 3 and 26, 2008. It allowed her 30 days
to submit such evidence.1
Appellant submitted an undated report from Dr. Evans who diagnosed bilateral hand
dermatitis of unknown etiology, traumatic right shoulder rotator cuff tendinitis related to a fall at
work, insulin-dependent diabetes mellitus, hypertension, hyperlipidemia and prior peripheral
vascular disease on the right. Dr. Evans found that appellant’s hand dermatitis was already
resolving but that she had a high chance of exacerbation. He also noted that there was no
permanent care for this condition. Regarding appellant’s rotator cuff condition, Dr. Evans
anticipated that appellant could return to work in six to eight weeks.
In a September 10, 2008 decision, the Office denied appellant’s claim for compensation
between February 3 and 26, 2008 finding that the medical evidence did not establish that she was
disabled from work due to an accepted injury.
On November 12, 2008 appellant requested reconsideration. She also submitted reports
from Dr. Evans dated between January 14 and July 17, 2008 treating her for hand dermatitis,
diabetes and rotator cuff conditions. In particular, in a February 4, 2008 treatment record,
Dr. Evans noted that appellant “thinks the rash is job related.” He found mild edema of the right
leg, episodes of dizziness and blurred vision. Dr. Evans also advised that appellant would be
1

The Office paid appellant appropriate wage-loss compensation for the period February 27 to April 11, 2008.

2

excused from work “for now.” A March 10, 2008 treatment record noted appellant’s status and
indicated that she would try to return to work on April 14, 2008. On August 22, 2008 Dr. Evans
reiterated that he treated appellant for bilateral hand dermatitis and other conditions including
traumatic rotator cuff tendinitis, diabetes, hypertension, hyperlipidemia and prior right peripheral
vascular disease.
In a December 9, 2008 decision, the Office denied modification of its September 10,
2008 decision finding that the additional medical evidence did not establish total disability for
the period claimed.
On January 5, 2009 appellant requested reconsideration. She submitted several reports
from Dr. Evans, including an undated form report and treatment notes from February 4 and
March 10, 2008 that were previously of record.
In a March 27, 2009 decision, the Office denied modification of its previous decision as
the medical evidence was insufficient to establish disability between February 3 and 26, 2008.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including that any specific condition
or disability for which he claims wage-loss compensation is causally related to the employment
injury.3
For each period of disability claimed, appellant has the burden of proving by the
preponderance of the reliable, probative and substantial evidence that he is disabled for work as a
result of his employment injury. Whether a particular injury causes an employee to be disabled
for employment and the duration of that disability are medical issues which must be proved by a
preponderance of the reliable, probative and substantial medical evidence.4 Findings on
examination are generally needed to support a physician’s opinion that an employee is disabled
for work. When a physician’s statements regarding an employee’s ability to work consist only of
repetition of the employee’s complaints that she hurt too much to work, without objective
findings of disability being shown, the physician has not presented a medical opinion on the
issue of disability or a basis for payment of compensation.5 The Board will not require the
Office to pay compensation for disability in the absence of any 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.6

2

5 U.S.C. §§ 8101-8193.

3

Tammy Medley, 55 ECAB 182 (2003).

4

Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); see Huie Lee Goal, 1 ECAB 180, 182 (1948).

6

G.T., id.; Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

3

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
ANALYSIS
The Office accepted that appellant sustained bilateral contact dermatitis in the
performance of duty. Appellant claims that this injury caused her disability for employment
between February 3 and 26, 2008. However, the medical evidence of record is insufficient to
establish her claim.
The medical evidence most contemporaneous with the period of disability at issue is a
February 4, 2008 report from Dr. Evans who found mild edema of the right leg, episodes of
dizziness and blurred vision. Dr. Evans noted appellant’s belief that her rash was job related. He
also excused appellant from work “for now.” However, Dr. Evans does not specify whether
appellant’s disability from work is due to her dermatitis condition. This distinction is
particularly important as the physician has diagnosed other conditions not accepted as work
related. Moreover, he does not specify the duration of appellant’s disability.
Dr. Evans’ undated report provided inconsistent findings as he indicated that appellant’s
partial disability began on December 10, 2007 while also indicating that appellant could not
work. The Board has found that the opinion of a physician supporting causal relationship must
be one of reasonable medical certainty that the condition for which compensation is claimed is
causally related to federal employment and such relationship must be supported with affirmative
evidence, explained by medical rationale and be based upon a complete and accurate medical
and factual background of the claimant.8 Similarly, on April 8, 2008 Dr. Evans advised that
appellant could return to work on April 14, 2008. However, he did not address whether
appellant was disabled for work during the period at issue. As Dr. Evans failed to address
whether appellant sustained a period of total disability between February 2 and 26, 2008 causally
related to her accepted condition, these reports are of little probative value.
On February 27, 2008 Dr. Evans diagnosed dermatitis and stated that he did not know the
duration of appellant’s disability or when she could return to work. However, his opinion is
vague as it provided no specific dates of disability and did not specifically address whether
appellant’s dermatitis attributed to the claimed period of disability. Likewise, on March 4, 2008
Dr. Evans broadly noted that appellant could return to work “after her hands cleared up.”
However, he did not indicate when the period of disability began or ended and he provided no
7

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
8

Patricia J. Glenn, 53 ECAB 159 (2001).

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opinion on causal relationship.9 Dr. Evans March 10, 2008 treatment note also did not
specifically address the cause of any disability during the claimed period at issue.
None of the other medical reports of record are contemporaneous with the period of
disability at issue or address whether appellant had any employment-related disability from
February 3 to 26, 2008. Consequently, the medical evidence does not establish that appellant
was disabled for work between February 3 and 26, 2008 due to her accepted bilateral hand
condition.
On appeal, appellant asserts that she is entitled to disability compensation as she was
disabled from work between February 4 and April 14, 2008. As noted, appellant has the burden
of proof to submit rationalized medical evidence establishing total disability from work due to an
accepted employment injury. However, the medical evidence of record insufficiently meets this
burden as none of the reports identify a specific period of disability from work supported by an
opinion on how that period of disability is causally related to bilateral dermatitis.10
CONCLUSION
The Board finds that appellant did not sustain a period of disability between February 3
and 26, 2008 causally related to his accepted employment-related injury.

9

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
10

The Board notes that there is no indication that appellant claims to have incurred wage-loss incidental to
undergoing authorized medical treatment on any of the claimed dates of disability. See Daniel Hollars, 51 ECAB
355 (2000) (an employee is entitled to disability compensation for loss of wages incidental to treatment for an
employment injury).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 27, 2009 and September 10, 2008 are affirmed.
Issued: March 23, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
DEPARTMENT OF THE ARMY, WILLIAM
BEAUMONT ARMY MEDICAL CENTER,
El Paso, TX, Employer
__________________________________________

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

Docket No. 09-725
Issued: November 5, 2009

Case Submitted on the Record

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

JURISDICTION
On November 20, 2008 appellant filed an appeal of the February 7 and November 2,
2008 decisions of the Office of Workers’ Compensation Programs that terminated her wage-loss
compensation on the grounds that she refused an offer of suitable work. She also appealed a
July 23, 2008 decision that denied her request for written review of the record. Pursuant to 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 the Office properly terminated appellant’s compensation
benefits on February 7, 2008 pursuant to 5 U.S.C. § 8106(a); and (2) whether the Office properly
denied her request for a review of the written record.
FACTUAL HISTORY
On March 4, 2002 appellant, then a 41-year-old food service workers filed a Form CA-2,
occupational disease claim, alleging that her employment duties caused carpal tunnel syndrome.

She had stopped work on January 24, 2002. The Office accepted right carpal tunnel syndrome
and authorized the surgical release performed on January 24, 2002. Appellant returned to limited
duty in late February 2002. On January 22, 2004 she had a left carpal tunnel release, which the
Office accepted as employment related. Appellant was placed on the periodic rolls. She
returned to light duty for four hours daily on May 3, 2004, five hours daily on June 1, 2004 and
then to eight hours of light duty on July 6, 2004, where she continued to work.
By decision dated February 14, 2005, the Office found that appellant’s actual earnings as
a modified food service worker fairly and reasonably represented her wage-earning capacity. As
her current earnings exceeded those when injured, she had no loss in earning capacity.
Appellant stopped work on March 25, 2005 and was returned to the periodic rolls. By
report dated October 10, 2005, Dr. Dean E. Smith, a Board-certified orthopedic surgeon,
diagnosed displaced cervical disc and the Office accepted a displaced cervical disc and
radiculitis. In February 2006, appellant was referred to Dr. Randy J. Pollet, Board-certified in
orthopedic surgery, for a second opinion evaluation. In a March 14, 2006 report, he provided
findings on physical examination and advised that she should avoid surgery and could return to
work. By report dated March 22, 2006, an Office medical adviser advised that additional
recommended surgery was warranted. On April 21, 2006 Dr. Smith performed an anterior
discectomy at C4-5, C5-6 and C6-7 with interbody fusion.
Dr. Carlos Viesca, Board-certified in anesthesiology, treated appellant for pain
management. On June 7, 2007 he performed a trial placement of two cervical electrodes.
Dr. Phillip Osborne, an occupational medicine specialist performed a functional capacity
evaluation on June 8, 2007 and advised that the study was invalid because appellant did not give
proper effort, did not follow instructions and had multiple factors of somatization.
The Office referred appellant to Dr. James F. Hood, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In a June 13, 2007 report, Dr. Hood reviewed the medical
record, including Dr. Osborne’s functional capacity evaluation and appellant’s complaints of
neck pain. He advised that physical examination of the cervical spine was invalid due to poor
effort but noted that her reflexes were normal. There was no atrophy on wrist examination and
thumb-to-finger pinch “was fraught with give-way,” Dr. Hood opined that appellant could return
to light duty with frequent lifting of up to 10 pounds and occasional lifting of 20 pounds. On
July 12, 2007 Dr. Viesca implanted two spinal neurostimulator electrodes.
The Office determined that a conflict in medical evidence arose between Drs. Hood and
Smith regarding appellant’s capacity for work. It referred her to Dr. David R. Willhoite, a
Board-certified orthopedic surgeon, for an impartial evaluation. In a July 30, 2007 report,
Dr. Willhoite reviewed appellant’s medical history and complaint of left arm pain. He noted
physical findings of mild tenderness to palpation of the left trapezius muscle and slight
restriction of the cervical spine in all directions, moderate weakness of grip in the left hand
compared to the right and decreased strength in the left biceps muscle compared to the right with
no sensory deficits in the upper extremities. Dr. Willhoite diagnosed postoperative discectomy
and plating from C4 to C7 with insertion of a spinal cord stimulator. He advised that appellant’s
moderate weakness in the left upper extremity prevented her from unrestricted work but that she
could return to light work for eight hours daily. In an attached work capacity evaluation,

2

Dr. Willhoite advised that reaching above the shoulder and repetitive movements of the left wrist
should be limited to two hours daily, with lifting limited to 10 pounds, for four hours daily.
In a form report dated August 9, 2007, Dr. Smith checked a box indicating that appellant
was totally disabled. Dr. Viesca submitted reports dated September 5 and 27, 2007, in which he
noted appellant’s complaints of neck and upper extremity pain. He provided findings on
examination, diagnosed cervicalgia, cervical radiculopathy, cervical spondylosis, cervical
postlaminectomy syndrome and chronic pain syndrome and advised that she was permanently
disabled for work. By report dated October 4, 2007, Dr. Smith noted that appellant was under
chronic pain management with Dr. Viesca. He advised that she was unable to work and was
referred to Dr. Viesca for continued treatment.
On October 24, 2007 appellant elected disability retirement. On October 29, 2007 the
employing establishment offered her a sedentary position as an office clerk with a three to fivepound weight restriction. The duties were described as answering the telephone, filing at her
own pace and dealing with visitors. Appellant retired on November 15, 2007. On November 16,
2007 she declined the offered position, noting that she had retired. On December 7, 2007 the
employing establishment amended the offered position to reflect a three-pound lifting restriction
and no reaching above the shoulder.
By letter dated December 19, 2007, the Office advised appellant that the position offered
was suitable. Appellant was notified that if she failed to report to work or failed to demonstrate
that her failure to return to work was justified, her right to compensation for wage loss or a
schedule award would be terminated pursuant to section 8106 of the Federal Employees’
Compensation Act.1 She was given 30 days to respond.
In a December 27, 2007 report, Dr. Viesca noted appellant’s complaint of neck and upper
extremity pain and advised that her psychological evaluation was positive for chronic pain
syndrome. He advised that neck range of motion was improved with stimulation with pain on
flexion and extension. Upper extremity pain was much improved. Dr. Viesca diagnosed
cervicalgia, cervical radiculopathy, cervical spondylosis and cervical postlaminectomy syndrome
and advised that she was permanently disabled.2 On January 18, 2008 the employing
establishment confirmed that the offered position was still available. On January 23, 2008 the
Office advised appellant that her reasons given for refusing to accept the offered position were
not valid, noting that retirement was not an acceptable reason for refusing to accept a job offer.
Appellant was given an additional 15 days to accept the offered position. On January 28, 2008
she submitted a January 2, 2008 report from Dr. Michael K. Boone, a Board-certified physiatrist
and associate of Dr. Viesca, who provided an impairment evaluation.3 On January 29, 2008
appellant telephoned the Office to disagree with the proposed termination and resubmitted
1

5 U.S.C. §§ 8101-8193.

2

An emergency room report dated June 25, 2005 and an anesthesia record from June 7, 2007 were also
submitted.
3

Dr. Boone advised that appellant had a right upper extremity impairment of 13 percent and a left upper
extremity of 27 percent.

3

Dr. Viesca’s December 27, 2007 report. On January 31, 2008 the employing establishment
confirmed that the offered position remained available.
By decision dated February 7, 2008, the Office terminated appellant’s wage-loss
compensation and schedule award benefits on the grounds that she declined an offer of suitable
work.
On June 4, 2008 appellant requested a review of the written record. By decision dated
July 23, 2008, the Office denied the request on the grounds that it was not timely filed.
On August 22, 2008 appellant requested reconsideration and submitted a duplicate of
Dr. Viesca’s December 27, 2007 report. In a report dated February 28, 2008, Dr. Viesca
reiterated his findings and conclusions. On May 1, 2008 he advised that appellant had
complaints of low back and lower extremity pain and diagnosed lower back pain syndrome,
lumbar radiculopathy and lumbar spondylosis. In a September 11, 2008 report, Dr. Viesca noted
appellant’s complaint of low back, upper extremity and neck pain and stated that she was
retired/disabled. He advised that on examination, range of motion of the neck and lumbar spine
was painful. Dr. Viesca diagnosed low back pain syndrome, lumbar radiculopathy, lumbar
spondylosis, lumbar spinal canal stenosis and cervicalgia.
By decision dated November 20, 2008, the Office denied modification of the February 7,
2008 decision on the grounds that the medical evidence submitted was insufficient to support
that appellant was unable to perform the duties of the offered position.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c) of the Act provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”4
It is the Office’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.5 The implementing regulations provide
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.6 To justify termination, the Office must show that the
work offered was suitable and that appellant was informed of the consequences of a refusal to
accept such employment.7 In determining what constitutes “suitable work” for a particular
disabled employee, it considers the employee’s current physical limitations, whether the work is
available within the employee’s demonstrated commuting area, the employee’s qualifications to

4

5 U.S.C. § 8106(c).

5

Joyce M. Doll, 53 ECAB 790 (2002).

6

20 C.F.R. § 10.517(a).

7

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).

4

perform such work and other relevant factors.8 Office procedures state that acceptable reasons
for refusing an offered position include withdrawal of the offer or medical evidence of inability
to do the work or travel to the job.9 Section 8106(c) will be narrowly construed as it serves as a
penalty provision which may bar an employee’s entitlement to compensation based on a refusal
to accept a suitable offer of employment.10
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.11 It is well established that the Office must consider preexisting and
subsequently acquired conditions in the evaluation of suitability of an offered position.12
Section 8123(a) of the Act provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.13 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.14
ANALYSIS -- ISSUE 1
The Office terminated appellant’s monetary compensation benefits on February 8, 2008
on the grounds that she refused a December 7, 2007 offer of suitable work. It found that the
position was within her physical capabilities based on the July 30, 2007 report of Dr. Willhoite, a
Board-certified orthopedic surgeon who performed an impartial evaluation. The Office accorded
Dr. Willhoite’s opinion special weight as an impartial medical specialist who provided a wellrationalized report based on a complete medical and factual background.
Dr. Willhoite provided findings on examination and advised that appellant could perform
eight hours of light duty daily with restrictions limiting reaching above the shoulder and
repetitive movements of the left wrist to two hours daily, with lifting limited to 10 pounds, four
hours daily. The employing establishment’s December 7, 2007 job offer of an office clerk was a
sedentary position with a three-pound lifting restriction. Reaching above the shoulder was not
required. The Board finds that these restrictions are within the limitations set forth by

8

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5.a(1) (July 1997); see Lorraine C. Hall, 51 ECAB 477 (2000).
10

Gloria G. Godfrey, 52 ECAB 486 (2001).

11

Gayle Harris, 52 ECAB 319 (2001).

12

Richard P. Cortes, 56 ECAB 200 (2004).

13

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

14

Manuel Gill, 52 ECAB 282 (2001).

5

Dr. Willhoite. The position offered appellant on December 7, 2007 was therefore suitable work
within her physical limitations.
Following Dr. Willhoite’s July 30, 2007 evaluation, appellant submitted additional
medical reports from Drs. Smith and Viesca and an impairment evaluation performed by
Dr. Boone. The Board, however, finds that these reports are not sufficient to overcome the
special weight afforded to Dr. Willhoite. Dr. Boone did not provide an opinion regarding
appellant’s ability to work. On August 9, 2007 Dr. Smith merely checked a box indicating that
she was totally disabled. His October 4, 2007 report noted that appellant was being treated by
Dr. Viesca for chronic pain and could not work. A subsequently submitted report of a physician
on one side of a resolved conflict of medical opinion is generally insufficient to overcome the
weight of the impartial medical specialist or to create a new conflict of medical opinion.15 The
Board finds that Dr. Smith’s August 9 and October 4, 2007 reports are insufficient to overcome
the weight accorded Dr. Willhoite as an impartial medical specialist. Similarly, Dr. Viesca’s
reports are insufficient to overcome Dr. Willhoite’s evaluation. On September 5 and 27, 2007 he
advised that appellant could not work and noted her complaints of chronic pain. On
December 27, 2007 and February 28, 2008, Dr. Viesca merely reiterated his findings and
conclusions. On May 1, 2008 he discussed her low back condition, not accepted as employment
related. On September 11, 2008 Dr. Viesca advised that range of motion of the neck and lumbar
spine was painful. In his reports, he did not address why appellant could not perform the
sedentary work in the December 7, 2007 job offer or explain why the position offered was not
suitable. The Board finds his reports do not address the issue of appellant’s capacity to work as a
modified office clerk. His reports are of diminished probative value.16
Dr. Willhoite reviewed appellant’s complete medical history and provided a wellrationalized evaluation in which he clearly advised that appellant could return to light duty. His
opinion is entitled to the special weight accorded an impartial examiner and therefore constitutes
the weight of the medical evidence.17 Appellant rejected the offered position, stating that she
had retired. Retirement, however, is not considered an acceptable reason for refusing an offer of
suitable work.18 The Board therefore finds that Dr. Willhoite’s opinion represents the weight of
the medical evidence and established that appellant had the physical ability to perform the duties
of the offered position.19
In order to properly terminate appellant’s compensation under section 8106 of the Act,
the Office must provide her notice of its finding that an offered position is suitable and give her
an opportunity to accept or provide reasons for declining the position.20 The record in this case
establishes that the Office properly followed the procedural requirements. By letter dated
15

Richard O’Brien, 53 ECAB 234 (2001).

16

See S.S., 59 ECAB ____ (Docket No. 07-579, issued January 14, 2008).

17

See Sharyn D. Bannick, 54 ECAB 537 (2003).

18

Robert P. Mitchell, 52 ECAB 116 (2000).

19

Supra note 8.

20

See Maggie L. Moore, supra note 7.

6

December 19, 2007, the Office advised appellant that the offered position was suitable. She was
notified that if she failed to report to work or failed to demonstrate that the failure was justified,
her right to compensation would be terminated. Appellant was allotted 30 days to either accept
or provide reasons for refusing the position. On January 23, 2008 the Office advised appellant
that the reasons given for not accepting the job offer were unacceptable and she was provided an
additional 15 days in which to accept the job offer. She was offered a suitable position by the
employing establishment and such offer was refused. Under section 8106 of the Act, her
compensation was properly terminated on February 8, 2008 on the grounds that she refused an
offer of suitable work.21
After the Office established that the offered work is suitable, the burden shifted to
appellant to show that her refusal of suitable work was reasonable or justified.22 In a
February 28, 2008 report, Dr. Viesca reiterated his findings and conclusions. In reports dated
May 1 and September 11, 2008, he discussed appellant’s lower back condition. While
Dr. Viesca continued to advise that appellant was totally disabled, his opinion is insufficient to
establish that the offered position was unsuitable because he did not address why she could not
perform the duties of the modified clerk position.23
An employee who refuses or neglects to work after suitable work has been offered has
the burden of showing that such refusal to work was justified.24 The Board finds that the Office
properly terminated appellant’s monetary compensation due to her refusal of suitable work and
that she did not, thereafter, establish that her refusal of suitable work was justified.
LEGAL PRECEDENT -- ISSUE 2
A claimant dissatisfied with a decision of the Office shall be afforded an opportunity for
an oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a review of the written record must be submitted, in writing, within 30 days of the
date of the decision for which a hearing is sought. If the request is not made within 30 days or if
it is made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.25 The Board has held that the Office, in its broad
discretionary authority in the administration of the Act has the power to hold hearings in certain
circumstances where no legal provision was made for such hearings and that the Office must
exercise this discretionary authority in deciding whether to grant a hearing.26 The Office’s
procedures, which require the Office to exercise its discretion to grant or deny a hearing when

21

Joyce M. Doll, supra note 5.

22

M.S., 58 ECAB ____ (Docket No. 06-797, issued January 31, 2007).

23

S.S., supra note 16.

24

5 U.S.C. § 8106(c)(2).

25

Claudio Vazquez, 52 ECAB 496 (2001).

26

Marilyn F. Wilson, 52 ECAB 347 (2001).

7

the request is untimely or made after reconsideration, are a proper interpretation of the Act and
Board precedent.27
ANALYSIS -- ISSUE 2
The Office denied appellant’s request for a review of the written record on the grounds
that it was untimely filed. In the July 23, 2008 decision, it found that she was not entitled to a
record review as a matter of right. Appellant’s request was dated June 6, 2008 and was not made
within 30 days of the February 7, 2008 Office decision. Her request was more than 30 days after
the date of the February 7, 2008 decision. The Office properly determined that she was not
entitled to a review of the written record as a matter of right as it was untimely filed.28
The Office also has the discretionary power to grant a request for a record review when a
claimant is not entitled to such as a matter of right. It properly exercised its discretion by stating
that it had considered the matter in relation to the issue involved and had denied appellant’s
request on the basis that the issue in this case could be addressed through a reconsideration
application. The Board has held that as the only limitation on the Office’s authority is
reasonableness, abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deduction from established facts.29 The evidence of record does not establish that the Office
abused its discretion.
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss compensation
pursuant to 5 U.S.C. § 8106(a). The Office did not abuse its discretion in denying her request for
a review of the written record.30

27

Claudio Vazquez, supra note 25.

28

Id.

29

See Claudio Vazquez, supra note 25; Daniel J. Perea, 42 ECAB 214 (1990).

30

The Board notes that appellant submitted evidence with her appeal. The Board cannot consider this evidence,
however, as its review of the case is limited to the evidence that was before the Office at the time it issued its final
decision. 20 C.F.R. § 501.2(c)(1) (2009).

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 2, July 23 and February 7, 2008 are affirmed.
Issued: November 5, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9