United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Wilmington, DE, Employer
__________________________________________

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Docket No. 17-1760
Issued: January 3, 2018

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

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 August 14, 2017 appellant, through counsel, filed a timely appeal from a June 9, 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 this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish a left shoulder
condition causally related to the accepted March 8, 2016 employment incident.
FACTUAL HISTORY
On March 16, 2016 appellant, then a 55-year-old medical support assistant, filed a
traumatic injury claim (Form CA-1) alleging that, on March 8, 2017, she experienced left
shoulder pain after lifting boxes to change toner and pulling out cartridges from a copy machine.
She stopped work on March 9, 2016 and returned to work on March 16, 2016. Appellant’s
supervisor indicated on the form that she had complained of left shoulder pain subsequent to
surgery in 2012.
OWCP, by letter dated March 28, 2016, requested additional factual and medical
information from appellant, including a detailed statement regarding the circumstances
surrounding the alleged March 8, 2017 incident and a medical report addressing causal
relationship between a diagnosed condition and the work incident.
In a note dated March 8, 2016, received by OWCP on March 31, 2016, a physician
assistant diagnosed a nontraumatic strain of the left rotator cuff and found that appellant should
remain off work for two days. An x-ray obtained March 8, 2016 showed no osseous abnormality
and mild degeneration at the left glenohumeral and acromioclavicular joints.
Dr. John R. Tiffany, Board-certified in family medicine, found on March 15, 2016 that
appellant could not work from March 15 to 16, 2016 due to “medical reasons.”
On March 18, 2016 Dr. Michelle F. Papa, an osteopath, indicated that appellant was
evaluated on March 10, 2016 for a left shoulder condition. She determined that she could
resume work without restrictions on March 14, 2016.
The employing establishment, by letter dated March 31, 2016, controverted the claim,
noting that appellant had provided medical information from three different practices. It
indicated that she had an open claim for medical benefits.
On April 4, 2016 Dr. Heather B. Bittner-Fagan, a family practitioner, evaluated appellant
for left shoulder pain. She noted appellant’s history of continued left shoulder problems
following a prior rotator cuff tear with surgery in 2013, and a subsequent reinjury of her shoulder
at work. Dr. Bittner-Fagan diagnosed left shoulder joint pain.
An April 19, 2016 magnetic resonance imaging (MRI) scan revealed supraspinatus
tendinitis with a possible intrinsic interstitial tear and biceps tenosynovitis.

2

In a statement dated April 21, 2016, appellant related that she heard her shoulder “pop”
after she pulled out a cartridge from the copy machine. She indicated that she had a prior claim,
assigned OWCP File No. xxxxxx950.3
By decision dated April 29, 2016, OWCP denied appellant’s traumatic injury claim. It
found that she had not established that the March 8, 2016 work incident occurred as alleged, as
the allegation on her claim form was vague and she had not responded to its request for
additional information.
In an emergency department report dated March 8, 2016, received by OWCP on June 24,
2016, a physician assistant diagnosed a nontraumatic left rotator cuff strain and found that
appellant should remain off work for two days. She obtained a history of appellant experiencing
a work injury four years earlier with increased pain after “lifting boxes over the [p]ast few days.”
Dr. Stephen A. Stache, a sports medicine specialist, evaluated appellant on July 19, 2016
for left shoulder pain. He noted that she had surgery to repair her rotator cuff after a work injury
a few years earlier. After the surgery, appellant experienced shoulder pain and currently also had
neck pain, headaches, and numbness in her left hand. Dr. Stache diagnosed cervicalgia, cervical
disc degeneration, cervical radiculopathy, and unspecified disorders of the synovium and tendon
of the left shoulder. He opined that an MRI scan of the left shoulder showed no evidence of a
tear and advised that the examination findings were “consistent with more irritation of the
cervical spine given her level of arthritis.”
Dr. Stache noted that appellant became
“confrontational” when he informed her that her neck caused her pain.
On March 17, 2017 appellant, through counsel, requested reconsideration. She
maintained that an enclosed November 3, 2016 report from Dr. David Krasner, an osteopath, was
sufficient to establish her claim.
In a report dated November 3, 2016, Dr. Krasner provided answers to questions on a
form. He related that appellant sustained a reinjury after lifting heavy boxes changing a toner
cartridge. Dr. Krasner noted that the examination findings were tenderness with extension and
mild motion loss. He diagnosed rotator cuff syndrome and left shoulder pain. Dr. Kasner
provided his signature below a statement that the described work injury was the “direct and
proximate cause of the diagnoses.”
By decision dated June 9, 2017, OWCP modified its April 29, 2017 decision to find that
appellant had established that the March 8, 2016 work incident occurred as alleged. However, it
denied the claim as the medical evidence of record was insufficient to establish that she sustained
a diagnosed condition as a result of the accepted employment incident.
On appeal counsel asserts that appellant’s treating physician found causal relationship.

3

This claim is not before the Board on the present appeal.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish 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.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.7
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time and place, and in the manner alleged.8 Second,
the employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.9
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 The opinion of the
physician must be based on a complete factual and medical background of the claimant,11 must
be one of reasonable medical certainty,12 and must explain the nature of the relationship between
the diagnosed condition and the specific employment factors identified by the claimant.13
ANALYSIS
Appellant alleged that she sustained an injury to her left shoulder on March 8, 2016 after
lifting boxes to replace toner and pulling out copier cartridges. She has established that the
March 8, 2016 incident occurred at the time and place, and in the manner alleged. The issue,
consequently, is whether the medical evidence establishes that appellant sustained an injury as a
result of this incident.
4

5 U.S.C. § 8101 et seq.

5

Alvin V. Gadd, 57 ECAB 172 (2005); Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

8

See C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008).

9

See Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006).

10

See John J. Montoya, 54 ECAB 306 (2003).

11

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

12

John W. Montoya, supra note 10.

13

Judy C. Rogers, 54 ECAB 693 (2003).

4

The Board finds that appellant has not established an injury causally related to the
accepted March 8, 2016 employment incident. The determination of whether an employment
incident caused an injury is generally established by medical evidence.14
Dr. Tiffany, on March 15, 2016, advised that appellant was unable to work on March 15
and 16, 2016. On March 8, 2016 Dr. Papa related that she had treated appellant for a left
shoulder condition and found that she could resume work without restrictions on
March 14, 2016. As neither physician addressed causation, their reports are of diminished
probative value.15
In a report dated April 4, 2016, Dr. Bittner-Fagan discussed appellant’s history of a
rotator cuff tear with surgery in 2013 and a subsequent reinjury at work. She diagnosed left
shoulder joint pain. Dr. Bittner-Fagan, however, did not provide a firm diagnosis or attribute any
condition to the March 8, 2016 work incident. The Board has consistently held that pain is a
symptom and not a compensable medical diagnosis.16 Furthermore, a physician must provide a
narrative description of the identified employment incident and a reasoned opinion regarding
whether the employment incident described caused or contributed to a diagnosed medical
condition.17 The Board, therefore, finds that the report of Dr. Bittner-Fagan is insufficient to
meet appellant’s burden of proof.
On July 19, 2016 Dr. Stache reviewed appellant’s history of a prior left shoulder
condition and her current complaints of left shoulder and neck pain with numbness in the left
hand. He diagnosed cervicalgia, cervical disc degeneration, cervical radiculopathy, and
unspecified disorders of the synovium and left shoulder tendon. Dr. Stache opined that the
examination findings were consistent with cervical spine irritation. As he did not relate any
diagnosed medical condition to the March 8, 2016 employment incident, his report is of
diminished probative value.18
Dr. Krasner provided answers to questions regarding appellant’s condition in a form
report dated November 3, 2016. He diagnosed rotator cuff syndrome and left shoulder pain and
indicated that she had experienced a reinjury lifting boxes changing a toner cartridge.
Dr. Kasner noted that appellant had mild loss of motion and tenderness upon extension. He
found that the work injury caused the diagnosed conditions. Dr. Kasner, however, did not
provide a reasoned opinion explaining how work events on March 8, 2016 caused or aggravated
the diagnosed rotator cuff syndrome. 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.19 Such rationale is particularly
14

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

15

See D.A., Docket No. 17-0816 (issued July 24, 2017); S.E., Docket No. 08-2214 (issued May 6, 2009).

16

See B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).

17

See R.J., Docket No. 17-1384 (issued October 25, 2017).

18

See supra note 15.

19

See J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

5

important given appellant’s history of a preexisting shoulder condition.20
Dr. Kasner’s report is insufficient to meet her burden of proof.

Consequently,

Appellant also received treatment from a physician assistant. Reports from physician
assistants, however, have no probative value as physician assistants are not considered
“physicians” as defined under FECA.21
On appeal counsel contends that appellant’s treating physician found causation.
However, as noted above, in order to establish causal relationship, a physician must provide an
opinion that the condition for which compensation is claimed is causally related to employment
and the opinion must be supported by affirmative evidence, explained by medical rationale, and
be based on a complete and accurate medical and factual background of the claimant.22
Appellant failed to submit such evidence and thus has not met her burden of proof.23
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted March 8, 2016 employment incident.

20

See E.D., Docket No. 16-1854 (issued March 3, 2017).

21

See 5 U.S.C. § 8101(2); Allen C. Hundley, 53 ECAB 551 (2002).

22

See J.W., Docket No. 17-0870 (issued July 12, 2017).

23

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the June 9, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 3, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Indianapolis, IN, Employer
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_________________________________________ )
T.E., Appellant

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

Docket No. 12-1691
Issued: January 29, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 6, 2012 appellant filed a timely appeal from the June 28, 2012 Office of
Workers’ Compensation Programs’ (OWCP) schedule award decision. 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 sustained more than 11 percent permanent impairment of
her right arm, for which she received a schedule award.
FACTUAL HISTORY
On January 26, 2007 appellant, then a 48-year-old mail processing clerk, filed an
occupational disease claim alleging she experienced right shoulder pain in the performance of
duty. OWCP accepted her claim for sprain/tear of the right shoulder and upper arm and rotator

1

5 U.S.C. § 8101 et seq.

cuff tear.2 Appellant underwent an acromioplasty with rotator cuff tear repair on March 8, 2007
and returned to modified work beginning May 22, 2007. She was provided with a permanent
rehabilitation position on July 16, 2007. On October 1, 2008 OWCP issued a loss of
wage-earning capacity decision.
On February 13, 2008 appellant requested a schedule award. By decision dated
February 9, 2009, OWCP granted her a schedule award for 11 percent impairment of the right
arm, for a total of 34.32 weeks of compensation.
In a report dated May 23, 2011, Dr. Paul Ho, a treating Board-certified orthopedic
surgeon, noted appellant’s history. He provided findings which included that neck range of
motion was mildly limited. The upper extremity neurological examination showed no reflex
motor or sensory deficit. Circulation was normal to the fingers. Dr. Ho advised that, regarding
the right shoulder, there was no muscle atrophy and a well-healed anterior four centimeter
incision. He provided findings for range of motion of the right shoulder. Dr. Ho diagnosed a
right shoulder recurrent and chronic rotator cuff tear, mild acromioclavicular joint and
degenerative joint disease. He found that appellant reached maximum medical improvement.
Dr. Ho noted that she previously assessed with 10 percent impairment to the right arm and
advised that a new rating could be provided if requested.
On August 13, 2011 appellant filed a claim for increased schedule award.
By letter dated September 22, 2011, OWCP advised appellant and Dr. Ho to submit
medical evidence based upon the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides). No response was received.
By letter dated December 2, 2011, OWCP referred appellant for a second opinion to
Dr. Norman Mindrebo, a Board-certified orthopedic surgeon. In a report dated December 22,
2011, Dr. Mindrebo noted appellant’s history of injury and treatment and utilized the A.M.A.,
Guides. He examined her and provided findings for the right arm. Appellant had well-healed
incisions, some tenderness to palpation at the longhead of the biceps and anterior acromion.
Dr. Mindrebo determined that she had significant weakness against external rotation resistance,
abduction resistance and forward flexion resistance as well as extreme limitations of active
motion. Appellant had limited forward flexion of 90 degrees, extension of 30 degrees, abduction
of 90 degrees, adduction of 30 degrees, internal rotation of 70 degrees and external rotation of 60
degrees. Dr. Mindrebo determined that she was otherwise neurologically intact as to strength
testing of the right arm, elbow, wrist and digits. He referred to Table 15-34 and determined that
appellant had a 10 percent impairment of the right upper extremity for loss of range of shoulder
motion.3 Dr. Mindrebo explained that the range of motion impairment was based upon three
percent for forward flexion, one percent for extension, three percent for abduction, one percent
for adduction and two percent for internal rotation. He advised that appellant reached maximum

2

The record reflects that appellant has a prior claim for a September 11, 2005 injury. OWCP accepted the claim
for abdominal wall strain.
3

A.M.A., Guides 475.

2

medical improvement as January 5, 2009, the date of the examination utilized for the prior
award.
In a March 4, 2012 report, Dr. Brain M. Tonne, OWCP’s medical adviser reviewed the
medical evidence and utilized the A.M.A., Guides. He concurred with the findings of
Dr. Mindrebo, but stated that Dr. Mindrebo had failed to apply a functional history grade
modifier to his calculations. Regarding permanent functional impairment, Dr. Tonne explained
that Dr. Mindrebo documented a 10 percent right arm impairment rating based upon range of
motion loss. He noted that this was correct based upon Table 15-34.4 This was consistent with a
range of motion grade modifier 1 according to Table 15-35.5 Dr. Tonne noted that Dr. Mindrebo
did not include a functional history grade modifier. He indicated that appellant would be entitled
to a grade 2 functional history modifier due to pain symptoms with normal activity and ability to
perform self-care activities with modification but unassisted according to Table 15-7.6
Dr. Tonne explained that the net modifier was +1, the upper extremity impairment should be
adjusted by five percent of the impairment rating. He explained that the 10 percent impairment
would consequently be multiplied by 5 percent. Dr. Tonne determined that this equated to 10
percent plus .5 percent or 10.5 percent, which he rounded up to 11 percent. He found that
appellant had 11 percent right arm impairment instead of the 10 percent assessed by
Dr. Mindrebo. Dr. Tonne explained that this was consistent with the previously awarded 11
percent right arm impairment rating.
By decision dated March 22, 2012, OWCP denied appellant’s claim for an increased
schedule award. It found that the medical evidence did not support a greater impairment rating.
On March 28, 2012 appellant requested a review of the written record.
By decision dated June 28, 2012, OWCP’s hearing representative affirmed the March 22,
2012 decision.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing federal regulations8 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9 For decisions after
4

A.M.A., Guides 477.

5

Id.

6

Id. at 406.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

3

February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.10
For decisions issued after May 1, 2009, the sixth edition will be used.11
With respect to the shoulder, reference is first made to Table 15-5 (Shoulder Regional
Grid) beginning on page 401. A class of diagnosis may be determined from the Shoulder
Regional Grid (including identification of a default grade value).12 Table 15-5 also provides that,
if motion loss is present for a claimant who has undergone certain shoulder surgeries,
impairment may alternatively be assessed using section 15.7 (range of motion impairment).
Such a range of motion impairment stands alone and is not combined with a diagnosis-based
impairment.13 Impairment ratings for limited shoulder motion are derived from Table 15-34 on
page 475.14 Under Table 15-35 on page 477, a grade modifier value is assigned to the
impairment ratings calculated from Table 15-34. Table 15-36 on page 477 provides standards
for adjusting the grade modifier value based on a claimant’s functional history.15
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.16
ANALYSIS
Regarding appellant’s right upper extremity, appellant’s treating physician, Dr. Ho, and
the second opinion physician, Dr. Mindrebo, opined that she had a 10 percent impairment of the
right upper extremity. Both physicians found that the stand alone range of motion method was
appropriate. Dr. Tonne concurred with Dr. Ho’s and Dr. Mindrebo’s findings with the exception
of granting an additional percent for functional history and which resulted in an 11 percent
impairment of the right upper extremity.
The Board finds that Dr. Tonne properly utilized the findings provided by Dr. Mindrebo
to reach the rating of impairment for the right shoulder. Under Table 15-34 on page 475, right
shoulder flexion of 90 degrees resulted in three percent upper extremity impairment and
extension of 30 degrees resulted in one percent impairment. Abduction of 90 degrees gave three
percent and adduction of 30 degrees yielded one percent. Internal rotation of 70 degrees yielded
two percent and external rotation of 60 degrees resulted in zero percent impairment. Dr. Tonne
10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

11

FECA Bulletin No. 09-03 (issued March 15, 2009).

12

See A.M.A., Guides 401-11 (6th ed. 2009).

13

Id. at 405, 475-78.

14

Id. at 475, Table 15-34.

15

Id. at 477, Table 15-35 and Table 15-36.

16

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

4

found additional impairment of one percent for a functional history grade modifier that exceeded
the range of motion impairment class. He noted that appellant’s 10 percent impairment was
consistent with a range of motion grade modifier of one (Table 15-35) but noted that she had a
grade 2 functional history modifier due to pain symptoms with normal activity, able to perform
self-care activities with modification but unassisted according to Table 15-7.17 Dr. Tonne
explained that the net modifier was +1, and that the upper extremity impairment should be
adjusted by five percent of the impairment rating which was consistent with Table 15-36 at page
477. He applied the net modifier and explained that 10 percent multiplied by 5 percent yielded
10.5 percent. Dr. Tonne rounded up to 11 percent. It is proper OWCP policy to round the
calculated percentage of impairment to the nearest whole number.18 Dr. Tonne found that
appellant had 11 percent right upper extremity impairment. As this was consistent with the
previously awarded 11 percent right upper extremity impairment rating, appellant was not
entitled to a greater award.19 The Board finds that Dr. Tonne correctly utilized the A.M.A.,
Guides to determine that appellant had an impairment of 11 percent of the right upper extremity.
On appeal, appellant asserts that she has greater impairment and that she is no longer able
to perform tasks that she could perform before her injury, but she did not submit sufficient
medical evidence conforming with the A.M.A., Guides establishing that she has a greater
impairment. The Board has also held that factors such as employability or limitations on daily
activities have no bearing on the calculation of a schedule award.20
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.21
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained more than 11 percent permanent impairment of her right upper extremity, for which
she previously received a schedule award.

17

A.M.A., Guides 406.

18

J.Q., 59 ECAB 366 (2008). See Carl J. Cleary, 57 ECAB 563 (2006) (fractions are rounded down from 0.49
and up from 0.50).
19

When a current impairment duplicates a prior impairment, the schedule award benefits are reduced by the
period of compensation paid under the schedule award for an earlier injury. T.S., Docket No. 09-1308 (issued
December 22, 2009); 20 C.F.R. § 10.404(c).
20

Kimberly M. Held, 56 ECAB 670 (2005).

21

Appellant submitted new evidence on appeal. However, the Board may not consider such evidence for the first
time on appeal. See 20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the June 28, 2012 Office of Workers’
Compensation Programs’ decision is affirmed.
Issued: January 29, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
SYSTEMS COMMAND, NAVAL SURFACE
WARFARE CENTER, Crain, IN, Employer
__________________________________________

)
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)
)
)
)

Appearances:
Sally F. LaMacchia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1797
Issued: June 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 29, 2012 appellant, through his attorney, filed a timely appeal of an
August 15, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his request for reconsideration because it was untimely and failed to establish clear
evidence of error. Because more than one year elapsed from the last merit decision dated
August 28, 2008 to the filing of the appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.2

1
2

5 U.S.C. 8101 et seq.

For final adverse decisions issued by OWCP prior to November 19, 2008, a claimant had up to one year to
appeal to the Board. See 20 C.F.R. § 501.3(d)(2) (2007). For final adverse decisions issued by OWCP on and after
November 19, 2008, a claimant has 180 days to appeal. See 20 C.F.R. § 501.3(e) (2009).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
On appeal, appellant, through counsel, alleged clear evidence of error on the part of
OWCP in denying his claim for a consequential injury arising from a motor vehicle accident of
October 4, 2006, which occurred on his way home from a physician’s appointment. Contrary to
OWCP’s decision, appellant’s surgery had been approved. Appellant’s counsel also contends
that OWCP found a lack of information about the automobile accident when all the requested
information was in the record.
FACTUAL HISTORY
On April 4, 2002 appellant, then a 41-year-old electrical engineer, filed an occupational
disease claim alleging that, as a result of moving cables on March 22, 2002 and moving a high
speed video camera on two occasions on March 25, 2002, he experienced numbness in his leg
and pain in his middle to lower back. On April 26, 2002 OWCP accepted his claim for back
strain, thoracic and lumbosacral neuritis or radiculitis and acquired spondylolisthesis.
On July 3, 2006 Dr. Steven R. Garfin, appellant’s treating Board-certified orthopedic
surgeon, requested authorization for two inpatient surgeries of the lumbar spine to be performed
on August 21 and 24, 2006, specifically an anterior discectomy at L4-5, L5-S1 with interbody
fusions followed by posterior cement fusion. By letter dated July 14, 2006, OWCP informed
appellant that it could not authorize surgery as the case required further medical development.
On August 8, 2006 OWCP referred appellant to Dr. Thomas J. Sabourin, a Boardcertified orthopedic surgeon, for a second opinion with regard to whether back surgery was
necessary. In an August 25, 2006 report, Dr. Sabourin opined that appellant had psychological
difficulties, noting bizarre behavior through the course of examination. Based on appellant’s
perception of his diseases, Dr. Sabourin noted a poor prognosis absent psychological counseling.
He could not find any significant neurological deficit that would require surgery at this time.
An October 4, 2006 report noted that appellant was seen that date by Dr. Raul Coimbra, a
critical care and general surgeon. The nature of the appointment was for a presurgical
consultation.
Appellant was in a low speed motor vehicle accident on October 4, 2006. He contends
that, at the time of the accident, he was on the way home from the medical appointment
regarding his scheduled back fusion. Appellant was hospitalized on the date of the accident and
released on October 7, 2006.
On October 5, 2006 OWCP sent the UCSD Medical Center a letter advising that his
request for authorization for medical services from October 6 through 8, 2006 had been reviewed
and approved. It authorized three units in the critical care unit.

2

The employing establishment noted in a November 9, 2006 memorandum that appellant
was to be removed from his position effective November 19, 2006 due to unacceptable
performance.
In a December 19, 2006 report, Dr. Garfin noted that, at the time of appellant’s motor
vehicle accident, he was being considered for spinal surgery. On the date of the motor vehicle
accident, appellant was on his way home from a presurgical appointment with Dr. Coimbra and
was taken to the trauma center.
On May 30, 2007 appellant filed a claim for wage loss as of November 20, 2006. He
noted that he was separated from employment; however, the employing establishment advised
that he voluntarily resigned effective November 19, 2006.
By letter dated August 6, 2007, OWCP requested that appellant submit a medical report
explaining why he was totally disabled and unable to work light duty. In a separate letter of the
same date, it asked him to respond to questions with regard to the reason he stopped work.
OWCP requested additional information about the motor vehicle accident of October 4, 2006.
Specifically, it asked appellant to describe where the accident occurred and the purpose of the
trip. OWCP asked him to identify the physician he was visiting and the purpose of the visit and
to describe where in relation to the physician’s office and his home the accident occurred. It also
asked him that, if a police report was filed, to submit a copy of that report.
By letter dated August 21, 2007, appellant’s counsel responded. She stated that on
October 4, 2006 appellant was returning home from a presurgical appointment with Dr. Garfin.
The accident occurred on interstate I-15.3 She noted that appellant was sitting at a dead stop
behind traffic when he was rear-ended by two different cars. Appellant was taken to an intensive
care unit and left after the fifth day. Appellant’s counsel submitted print outs from “ACS Web
Bill Processing Portal” indicating that appellant’s inpatient service for October 6 through 8, 2006
had been approved.
In a typed constituent services report from appellant’s congressman, appellant stated that,
in October 2006, he was preparing to have two back surgeries. When driving from a presurgical
meeting he was “rear-ended” in an automobile accident. This form was submitted with
appellant’s typed name at the bottom. Appellant did not sign the form despite the fact that the
form noted that a signature was required.
By decision dated February 28, 2008, OWCP denied appellant’s claim for compensation
commencing November 20, 2006. It further denied his claim for a consequential injury arising
from a motor vehicle accident on October 4, 2006.
By letter dated February 25, 2008 and received by OWCP on February 29, 2008,
appellant’s attorney forwarded a copy of the accident report. The report noted that the collision
occurred on the northbound I-15 south of Ted Williams Parkway at 17:50 on October 4, 2006.
The investigating officer noted that appellant complained of pain in his back, neck and numbness
3

Although counsel referred to I-215, the Board concludes, based on other evidence of record, that the correct
number is I-15.

3

to his legs. Appellant stated that he was driving northbound on I-15 south of Ted Williams
Parkway when he was stopped in heavy traffic. A Chevrolet collide into the rear end of his
vehicle. The impact caused appellant’s vehicle to travel forward and collide into the rear end of
a Toyota. The officer noted that appellant stated that he just had back surgery a week prior and
complained of pain to his neck and back with numbness to his legs.
In response to a February 6, 2008 letter, OWCP advised counsel for appellant on
March 4, 2008 that the record contained no authorization for surgery. It sent a letter on July 14,
2006 advising the UCSD Medical Group that surgery could not be approved as further
development was required. Additionally, OWCP noted that there was no pending request for
surgery. It suggested that, since the original request for surgery was almost two years old, the
treating physician should again request authorization if “medically advisable.”
On March 13, 2008 appellant, through counsel, requested a review of the written record
by an OWCP hearing representative.
By decision dated August 28, 2008, the hearing representative affirmed the February 28,
2008 decision. She found that appellant had not established that he was entitled to total wageloss compensation benefits commencing November 20, 2006. The hearing representative also
found that he had not established that he sustained consequential injuries related to the accepted
conditions. Appellant did not provide information as to the point at which the motor vehicle
accident occurred or whether it occurred on the only route or the normal route to his physician’s
office. The hearing representative further found that OWCP “did not formally authorize the
surgery in any letter or note of record.” The February 28, 2008 decision erroneously recited as
factual that it had approved appellant’s lumbar surgery but the March 4, 2008 letter advised that
surgery had not been authorized.
On May 21, 2012 appellant through counsel, filed a request for reconsideration. Counsel
contended that he established that, at the time of the motor vehicle accident, he was returning
from an approved presurgical medical appointment, as documented as OWCP’s website.
Further, appellant clearly answered all of OWCP’s questions concerning the motor vehicle
accident. Appellant’s counsel also submitted a map from Google with regard to the route of the
accident.
By decision dated August 15, 2012, OWCP denied appellant’s request as it was not
timely filed and did not establish clear evidence of error.
LEGAL PRECEDENT
FECA provides that the Secretary of Labor may review an award for or against payment
of compensation at any time on his or her own motion or on application.4 OWCP, through its
regulations, has imposed limitations on the exercise of its discretionary authority under section
8128(a). To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
a claimant must file his or her application for review within one year of the date of that decision.5
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607(a).

4

The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.6
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.7 OWCP regulations and procedure provide that it will reopen a claimant’s
case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R.
§ 10.607(a), if the claimant’s application for review shows clear evidence of error on the part of
OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of the decision is insufficient to establish clear
evidence of error.11 It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion.12 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP.13 The Board makes an
independent determination of whether a claimant has submitted clear evidence that OWCP
abused its discretion in denying merit review in the face of such evidence.14
ANALYSIS
In its August 15, 2012 decision, OWCP properly determined that appellant failed to file a
timely application for review. Appellant’s request for reconsideration was dated May 21, 2012,
well over one year after the August 28, 2008 decision of the hearing representative.
Accordingly, his request for reconsideration was not timely filed. Appellant must therefore
demonstrate clear evidence of error on the part of OWCP.15
6

Supra note 5; Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

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

8

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004).
9

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

10

See Leona N. Travis, 43 ECAB 227, 240 (1991).

11

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

14

Pete F. Dorso, 52 ECAB 424 (2001).

15

Id.

5

The Board finds that appellant’s request for reconsideration does not establish clear
evidence of error. Appellant’s claim was accepted for back strain, thoracic or lumbosacral
neuritis or radiculitis and acquired spondylolisthesis. OWCP denied his claim for disability
compensation after November 20, 2006 and for consequential injuries arising from an October 4,
2006 motor vehicle accident.
Appellant, through counsel, contended in 2007 and 2008 that the injuries following the
motor vehicle accident constituted a consequential injury. By letter dated August 6, 2007,
OWCP requested that he submit further information with regard to the motor vehicle accident.
Specifically, it asked appellant to detail exactly where the accident occurred, the purpose of the
trip, where the physician’s office was located in relation to his home and where the accident
occurred. OWCP also asked for a copy of the accident report. While the accident report was
submitted, appellant did not adequately respond to OWCP’s inquiries regarding his route to and
from the medical appointment on the relation of the route to his residence.
Counsel contents that the surgery was authorized but this is not supported by the record.
The October 5, 2006 letter to the UCSD Medical Center did not address the issue of surgery.
While the February 28, 2008 decision erroneously noted that the surgery had been authorized,
the August 28, 2008 decision of the hearing representative found that surgery had not been
preauthorized. In the August 15, 2012 decision denying reconsideration, OWCP also noted that
the surgery was never approved. Dr. Garfin requested authorization for two inpatient surgeries
on appellant’s lumbar spine. OWCP advised him in a July 14, 2006 letter that surgery could not
be authorized at that time. It referred appellant to Dr. Sabourin for a second opinion as to
whether back surgery was warranted. Dr. Sabourin noted that appellant had psychological
difficulties and did not support surgery absent psychological counseling. Appellant’s attorney
submitted a copy of the ACS Web Bill Processing Portal showing approval for medical services
from October 6 through 8, 2006. As noted, the October 5, 2006 letter to the medical center did
not specifically authorize any request for surgery. There is evidence of record that appellant saw
Dr. Coimbra on October 4, 2006 for a presurgery consolation, following which he was in a motor
vehicle accident that day at approximately 5:50 p.m. However, appellant never responded to the
questions asked by OWCP requesting further information with regard to the accident and its
relation to the medical appointment. On August 16, 2007 OWCP asked him to describe exactly
where the accident occurred and the purpose of the trip. It asked appellant to identify which
physician he was visiting and the time and purpose of the visit and to describe the route he took.
On August 21, 2007 counsel provided some information but did not submit any affidavit from
appellant responding to OWCP inquiries. There is a typed statement with appellant’s typed
name at the bottom that was from his representative in Congress. Appellant did not sign this
form, despite the fact that the form noted that a signature was necessary. Accordingly, as the
record contained no statement from him describing the accident and its relation to his medical
appointment, he has not established clear evidence of error on behalf of OWCP in denying his
claim for a consequential injury.
OWCP’s procedures provide that the term clear evidence of error is intended to represent
a difficult standard.16 The evidence must be positive precise and explicit and must manifest on
16

R.H., Docket No. 12-1909 (issued March 27, 2013).

6

its face that OWCP commit an error.17 As appellant has failed to raise a substantial question as
to the correctness of OWCP’s last merit decision, he has not established clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 15, 2012 is affirmed.
Issued: June 3, 2013
Washington, DC

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

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

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

17

B.H., Docket No. 12-1928 (issued March 13, 2013).

7


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

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Appearances:
Mark Coby, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0647
Issued: October 15, 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 February 5, 2018 appellant, through counsel, filed a timely appeal from an August 7,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more
than 180 days elapsed from OWCP’s last merit decision, dated April 5, 2017, to the filing of this

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

A claimant has 180 days from the date of OWCP’s decision to timely file an appeal. 20 C.F.R. § 501.3(e). In this
case, the 180-day period for the August 7, 2017 decision expired on Saturday, February 3, 2018. If the last day to file
an appeal falls on a Saturday, Sunday, or Federal holiday, the 180-day period runs until the close of the next business
day. 20 C.F.R. § 501.3(f)(2). The appeal in this case, received by the Board on Monday, February 5, 2018, was
therefore timely filed.

appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as presented
in the prior decision are incorporated herein by reference. The relevant facts are as follows.
On March 13, 1987 appellant, then a 40-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that, on March 9, 1987, as he was stepping out of his truck in
the performance of duty, the step gave way causing him to fall facedown. He alleged that he
injured his lower back, left shoulder and hips.
OWCP accepted appellant’s claim on August 14, 1987 for aggravation of an existing
disability, and on April 11, 1988 for aggravation of degenerative disc disease in the lumbar spine
and sprain of the lumbar back. It paid him wage-loss compensation and medical benefits on the
periodic rolls.
OWCP referred appellant for a second opinion evaluation with Dr. Aubrey A. Swartz, a
Board-certified orthopedic surgeon, on October 23, 2012. In a report dated December 30, 2012,
Dr. Swartz reported normal motor function in the lower extremities, but give-way collapsing
weakness with strength testing of the feet and toes. He noted that almost every movement brought
a response of groaning, moaning, and expressions of agony. Dr. Swartz found substantial pain
behavior during appellant’s examination. He concluded that there were no valid objective
findings, but rather substantial pain behavior, with exaggerated and magnified responses.
Dr. Swartz diagnosed resolved strain of the lumbar spine with nonindustrially-related underlying
and preexisting multilevel degenerative disc disease without any neurologic deficit or injury. He
opined that appellant’s multilevel disc disease at L3-4 and L4-5 with multiple disc bulges, facet
hypertrophy and spinal stenosis were temporarily aggravated by his March 9, 1987 employment
injury. Dr. Swartz noted that he believed that the temporary aggravation would not have lasted
more than three years and that appellant’s temporary total disability would have ceased by
March 9, 1990. He reviewed appellant’s date-of-injury position and noted that appellant could not
currently lift 75 pounds due to his age. Dr. Swartz opined that he could lift up to 25 pounds for
four to six hours a day.
OWCP proposed to terminate appellant’s medical and compensation benefits in a letter
dated April 8, 2013. It relied on the findings in Dr. Swartz’ December 30, 2012 report. By

3

5 U.S.C. § 8101 et seq.

4

Docket No. 15-1160 (issued January 11, 2016).

2

decision dated May 13, 2013, OWCP terminated appellant’s wage-loss compensation and medical
benefits effective May 13, 2013.
Appellant requested an oral hearing before an OWCP hearing representative on
May 22, 2013.
OWCP received a report dated July 29, 2013 from Dr. Fred F. Naraghi, a Board-certified
orthopedic surgeon. Dr. Naraghi noted appellant’s history of stepping down from his truck when
the step broke and related that appellant flipped over and backwards. He examined appellant and
found limited range of motion and pain to palpation in the lumbar spine. Dr. Naraghi reported
palpable paraspinal muscle spasms with mild decreased light-touch sensation in the right S1
distribution. He diagnosed herniated nucleus pulposus, radiculopathy right lower extremity,
lumbar spinal stenosis, and cervical radiculopathy. Dr. Naraghi noted, “In absence of evidence to
the contrary, it is with reasonable medical probability and more than likely that injuries to his neck
and back are as a result of his work-related injuries.” He found that appellant was permanently
disabled.
Dr. Naraghi completed a supplemental report on August 23, 2013 and reviewed the medical
records. He opined that appellant also sustained a cervical injury in 1987 as a result of his fall. In
a report dated September 26, 2013, Dr. Naraghi reviewed a September 9, 2013 magnetic resonance
imaging (MRI) scan and found herniated nucleus pulposus at L5-S1 with right S1 nerve root
impingement, multilevel disc bulges, radiculopathy of the right lower extremity, lumbar spinal
stenosis, and cervical radiculopathy.
By decision dated November 20, 2013, OWCP’s hearing representative found that OWCP
had met its burden of proof to terminate appellant’s compensation benefits.
Counsel requested reconsideration through a letter dated February 12, 2014 and received
by OWCP on February 18, 2014. He argued that Dr. Naraghi’s reports created a conflict in
medical opinion evidence. In a report dated February 10, 2014, Dr. Naraghi noted appellant’s
history of injury in 1987 and again noted that appellant flipped and fell backwards. He reviewed
appellant’s recent MRI scan and found a dorsal annular tear at L4-5 with a disc bulge. Dr. Naraghi
diagnosed herniated nucleus pulposus of L5-S1 with right nerve root impingement. He noted this
condition was likely as a result of progression of the pathology that started from the 1987
employment injury. Dr. Naraghi opined that appellant’s symptoms of back pain, right leg pain
and numbness and weakness radiating into the lateral aspect of his right foot and plantar aspect of
his right foot was a classic presentation for right S1 pathology. He noted that appellant had no
prior back pain preceding the 1987 employment injury. Dr. Naraghi opined that appellant’s 1987
fall was a traumatic injury and that injury to the disc in 1987 could cause a rapid progression of
any degenerative process.
By decision dated March 6, 2014, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decisions. It found that Dr. Naraghi was relying on an inaccurate
description of the employment injury and appeared to be unaware of appellant’s history of back
conditions. OWCP further noted that as appellant’s initial MRI scan did not demonstrate a
herniated disc at L5-S1, a more recent test with this finding would have to be supported by medical

3

reasoning explaining how appellant’s March 9, 1987 employment injury resulted in an additional
condition almost 20 years later.
Counsel requested reconsideration through a form completed on April 15, 2014 and
received on April 21, 2014. Dr. Naraghi submitted a report dated April 3, 2014 and reviewed a
recent electromyogram (EMG) test. He repeated his version of appellant’s 1987 employment fall
and opined that it made no difference whether appellant fell backward or forward. Dr. Naraghi
opined that the disc bulge found on the MRI scan in 1988 could certainly be within the
nomenclature for a herniated disc.
By decision dated December 3, 2014, OWCP reviewed the merits of appellant’s claim and
denied modification of its March 6, 2014 decision finding that the medical evidence did not
establish that he continued to experience medical residuals or disability related to his March 9,
1987 employment injury. It noted that Dr. Naraghi’s reports were not based on an accurate factual
background, were not sufficiently detailed, and did not create a conflict or overcome the weight of
Dr. Swartz’ report.
On April 27, 2015 appellant filed an appeal with the Board. In its January 11, 2016
decision,5 the Board found that OWCP had met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective May 13, 2013 and that appellant had not
established any continuing medical condition on or after May 13, 2013 due to his March 9, 1987
employment injury.
On January 5, 2017 counsel requested reconsideration. He submitted an additional report
from Dr. Naraghi dated October 19, 2016. Dr. Naraghi reviewed appellant’s medical history and
noted that appellant’s right ankle reflex was absent prior to his 1987 employment injury. He
further found that there was evidence in the record for L5-S1 changes in 1987. Dr. Naraghi
contended that appellant had L5-S1 pathology present since 1983 which was significantly
aggravated by the injury in 1987. He disagreed with Dr. Swarz that appellant’s accepted
aggravation of his underlying condition would have ended by 1990. Dr. Naraghi opined that
appellant continued to experience permanent aggravation of his underlying lumbar spine
condition. In a report dated December 23, 2016, he disagreed with Dr. Swartz’s report that
appellant exhibited substantial pain behavior and positive Waddell testing noting that Dr. Swartz
only identified two of the three categories necessary to make a finding of positive Waddell testing.
By decision dated April 5, 2017, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decisions. It noted that he submitted two medical reports dated
October 19 and December 23, 2016 in support of his request for reconsideration. OWCP
extensively reviewed and quoted the December 23, 2016 report. It further noted that Dr. Naraghi
attributed appellant’s current condition to his March 9, 1987 employment injury, but found that he
had not specifically addressed whether appellant’s underlying degenerative disc disease was
permanently or temporarily aggravated by the 1987 employment injury.
On July 31, 2017 counsel requested reconsideration and asserted that OWCP failed to
appropriately consider the October 19, 2016 report from Dr. Naraghi in the April 5, 2017 merit
5

Id.

4

decision. He resubmitted Dr. Naraghi’s October 19, 2016 report, as well as a report dated June 5,
2017, wherein Dr. Naraghi diagnosed chronic pain and found no changes in appellant’s condition.
Dr. Naraghi reported pain to palpation in the cervical spine, limited range of motion with palpable
spasms, and weakness in muscle testing in the right hand with atrophy. He found that appellant
exhibited loss of lumbar lordosis, mildly decreased sensory examination in the right lower
extremity, with positive straight leg raising, as well as slight loss of motor strength in the right
lower leg. Dr. Naraghi opined that appellant sustained an injury in 1983 at work which began a
degenerative process which was permanently aggravated by the March 9, 1987 employment injury
and which continued to deteriorate.
By decision dated August 7, 2017, OWCP denied appellant’s request for reconsideration
of the merits of his claim. It found that it had previously considered the October 19, 2016 report
as it was substantially similar to the successive December 23, 2016 report and therefore its
resubmission was repetitious. OWCP further found that the June 5, 2017 medical report was
repetitious and cumulative and did not constitute relevant and pertinent new evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.6 To require it to
reopen a case for merit review under section 8128(a) of FECA, OWCP’s regulations provide that
the evidence or argument submitted by a claimant must: (1) show that OWCP erroneously applied
or interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.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 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year of
the date of that decision.9 When a claimant failed to meet one of the above standards, OWCP will
deny the application for review without reopening the case for a review on the merits.10
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.11 The Board has also
held that the submission of evidence which does not address the particular issue involved does not
6

5 U.S.C. § 8128(a); A.D., Docket No. 18-0497 (issued July 25, 2018).

7

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
8

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

9

Id. at § 10.607(a).

10

Id. at § 10.608(b).

11

M.E., 58 ECAB 694 (2007); Eugene F. Butler, 36 ECAB 393, 398 (1984).

5

constitute a basis for reopening a case.12 While the reopening of a case may be predicated solely
on a legal premise not previously considered, such reopening is not required where the legal
contention does not have a reasonable color of validity.13
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).
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; nor has he advanced a relevant legal argument not previously
considered by OWCP. Thus, appellant 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).14
The underlying issue in the case is whether appellant has provided sufficient medical
evidence to establish that he sustained a permanent and ongoing aggravation of his underlying
degenerative disc disease such that he is entitled to further wage-loss compensation and medical
benefits on and after May 13, 2013 due to his accepted March 9, 1987 employment injury.
Appellant’s request for reconsideration was accompanied by a new report from Dr. Naraghi
dated June 5, 2017. A claimant may be entitled to a merit review by submitting relevant and
pertinent new evidence, but appellant did not submit any such evidence in this case.15
Dr. Naraghi’s July 5, 2017 report is substantially similar to his February 10, 2014 report in which
he noted appellant’s history of injury in 1987 and opined that his condition was likely as a result
of progression of the pathology that started from the March 9, 1987 employment injury. The Board
has held that the submission of evidence which repeats or duplicates evidence already in the case
record does not constitute a basis for reopening a case.16 Appellant also resubmitted the report
from Dr. Naraghi dated October 19, 2016. This evidence was previously considered by OWCP
and it is therefore not pertinent new evidence.17
Appellant’s reconsideration request failed to show that OWCP erroneously applied or
interpreted a point of law, nor did it advance a relevant legal argument not previously considered
by OWCP. OWCP also failed to provide any relevant and pertinent new evidence. Accordingly,
the Board finds that OWCP did not abuse its discretion in denying appellant’s request to reopen
his claim for merit review.

12

Id.; see also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

13

M.E., supra note 11.

14

20 C.F.R. § 10.606(b)(3)(i) and (ii); G.H., Docket No. 18-0384 (issued July 19, 2018).

15

G.H., id.

16

See L.R., Docket No. 18-0400 (issued August 24, 2018).

17

Id.

6

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 August 7, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 15, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S, Appellant
and
DEPARTMENT OF THE AIR FORCE,
WRIGHT-PATTERSON AIR FORCE BASE,
OH, Employer
__________________________________________

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

Docket No. 09-1820
Issued: April 8, 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 10, 2009 appellant filed a timely appeal of a June 16, 2009 decision of the Office
of Workers’ Compensation Programs, finding that his request for reconsideration was untimely
and failed to show clear evidence of error. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the June 16, 2009 decision. The Board does not have jurisdiction
over a decision on the merits of the claim.1
ISSUE
The issue is whether the Office properly determined that appellant’s application for
reconsideration was untimely and failed to show clear evidence of error.

1

The last merit decision was an Office decision dated May 8, 2007. The Board has jurisdiction over final
decisions of the Office. See 20 C.F.R. § 501.2(c). For Office decisions issued prior to November 19, 2008, a
claimant had one year to file an appeal. An appeal of Office decisions issued on or after November 19, 2008 must
be filed within 180 days of the decision. 20 C.F.R. § 501.3(e) (2008).

FACTUAL HISTORY
On March 2, 2007 appellant, then a 32-year-old intelligence specialist, filed a traumatic
injury claim alleging that he sustained an injury as a result of a yellow fever vaccination on
September 1, 2006. In a report dated November 9, 2006, Dr. Eric Halsey provided results on
examination. He noted that appellant reported having symptoms of vertigo one and a half hours
after receiving yellow fever vaccine, with additional symptoms while in travel status several days
later. In a report dated April 26, 2007, Dr. Louis Heckman, an internist, stated that appellant
reported symptoms of dizziness soon after receiving a vaccination and continued to complain of
dizziness, nausea, fatigue and palpitations. He stated, “Time wise it certainly would seem that
there is an association between symptoms and the administration of the vaccine.“
By decision dated May 8, 2007, the Office denied the claim for compensation. It found
that the medical evidence was insufficient to establish the claim.
On December 4, 2008 the Office received a report dated November 8, 2008 from
Dr. Thomas Hirt, a family practitioner, who stated that appellant had been seen over the last few
months with symptoms that included fatigue, dizziness, malaise and headaches. Dr. Hirt further
stated, “While the lack of data in the literature makes it difficult to say definitively, it seems that
these symptoms resulted after he received a yellow fever vaccination and had encephalitis
immediately after receiving the vaccine on [September 1, 2006].“ An accompanying letter dated
December 2, 2008 from appellant’s representative requested the Office to “process accordingly
in this matter.“
In a letter dated June 7, 2009, appellant requested reconsideration of his claim.
Appellant’s representative stated that an enclosed report from Dr. Jacob Kitchener, a neurologist,
established causal relationship between a vaccination and a medical condition. In a report dated
May 26, 2009, Dr. Kitchener stated that there was a recognized medical condition known as
yellow fever vaccine-associated viscerotropic disease. He stated that this condition causes
multiorgan system failure and although appellant had not experienced multiorgan failure, the
plethora of symptoms he has suggests that a diffuse process has caused him to have dysfunction
of his cardiac, respiratory and gastrointestinal systems. Dr. Kitchener concluded, “Based on the
temporal relationship between [appellant’s] symptoms and exposure to the vaccine, I believe the
vaccine caused these symptoms and he is suffering a mild form of the yellow fever vaccineassociated viscerotropic disease.“
By decision dated June 16, 2009, the Office found that the reconsideration request was
untimely. It denied the request on the grounds that appellant had not shown clear evidence of
error by the Office.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act 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.2 The employee shall exercise this right through a request to
2

5 U.S.C. § 8128(a).

2

the district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.“3
Section 8128(a) of the Act4 does not entitle a claimant to a review of an Office decision
as a matter of right.5 This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.6 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).7
As one such limitation, it has stated that it will not review a decision denying or terminating a
benefit unless the application for reconsideration is filed within one year of the date of that
decision.8 The Board has found that the imposition of this one-year limitation does not constitute
an abuse of the discretionary authority granted the Office under 5 U.S.C. § 8128(a).9
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.10 In accordance with this holding, the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error“ on the part of the Office.11
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.12 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.13 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.14 It is not enough merely to show that the evidence could be construed
3

20 C.F.R. § 10.605 (1999).

4

Supra note 2.

5

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
7

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a specific point of law; (2) advancing a relevant legal
argument not previously considered by the Office; or (3) constituting relevant and pertinent evidence not previously
considered by the Office; see 20 C.F.R. § 10.606(b).
8

20 C.F.R. § 10.607(a).

9

See Leon D. Faidley, Jr., supra note 5.

10

Leonard E. Redway, 28 ECAB 242 (1977).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

12

See Dean D. Beets, 43 ECAB 1153 (1992).

13

See Leona N. Travis, 43 ECAB 227 (1991).

14

See Jesus D. Sanchez, 41 ECAB 964 (1990).

3

so as to produce a contrary conclusion.15 The Office performs a limited review of the evidence
to determine how the evidence submitted with the reconsideration request bears on the evidence
previously of record and whether the new evidence demonstrates clear error on the part of the
Office.16 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.17
ANALYSIS
The merit decision in the case is dated May 8, 2007. Appellant submitted a medical
report on December 4, 2008 with a letter asking the Office to “process accordingly.“ The
December 2, 2008 letter does not request reconsideration or otherwise indicate that appellant was
exercising an appeal right of the May 8, 2007 Office decision.18 Appellant did not request
reconsideration until a letter dated June 7, 2009. Since this is more than one year after the
May 8, 2007 decision, it is untimely filed.
As the application for reconsideration was untimely, appellant must establish clear
evidence of error by the Office in the denial of the claim. While he submitted supporting
medical evidence, it is not sufficient to establish clear evidence of error. Appellant relies on the
May 26, 2009 report from Dr. Kitchener, who supports an opinion on causal relationship based
on the temporal relationship between the vaccine and symptoms. Dr. Heckman also noted the
time period between symptoms and the vaccine. A temporal relationship between an incident
and symptoms is generally not sufficient medical rationale to support causal relationship.19
The issue of causal relationship in this case is a difficult medical issue. The Board
reiterates that it does not have jurisdiction over the merits of the claim. In this case, the issue is
whether the evidence of record establishes clear evidence that the Office committed an error in
denying the claim. As noted above, to establish clear evidence of error it is not enough to show
that the evidence could be construed so as to produce a contrary conclusion. The Board finds
that the medical evidence is not of such probative value that it establishes clear evidence of error.
CONCLUSION
The Board finds that the application for reconsideration was untimely and appellant failed
to show clear evidence of error.

15

See Leona N. Travis, supra note 13.

16

See Nelson T. Thompson, 43 ECAB 919 (1992).

17

Gregory Griffin, 41 ECAB 186 (1989), petition for recon., denied, 41 ECAB 458 (1990).

18

Even if the December 2, 2008 letter were considered an application for reconsideration, it was filed more than a
year after the May 8, 2007 decision and would be untimely.
19

See Joan R. Donovan, 54 ECAB 615 (2003); Thomas D. Petrylak, 39 ECAB 276 (1987).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 16, 2009 is affirmed.
Issued: April 8, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Wilmington, DE, Employer
)
___________________________________________ )
L.B., Appellant

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

Docket No. 14-538
Issued: June 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 9, 2014 appellant filed a timely appeal from the December 11, 2013 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 on appeal is whether appellant met her burden of proof to establish a recurrence
of disability causally related to her accepted employment injury.
FACTUAL HISTORY
This case has previously been on appeal before the Board.2 In a decision dated
February 18, 2010, the Board found that appellant had no more than five percent permanent
1

5 U.S.C. § 8101 et seq.

2

Docket No. 09-1336 (issued February 18, 2010).

impairment of her right upper extremity, for which she received a schedule award. The facts and
history contained in the prior appeal are incorporated by reference. The relevant facts include
that OWCP accepted the claim for sprain of the right shoulder and upper arm, specified disorder
of bursae and brachial neuritis or radiculitis on the right.3
On October 3, 2013 appellant filed a Form CA-2a, notice of recurrence, alleging wage
loss from work due to a change or worsening of her March 1, 2006 accepted work-related
conditions. She indicated that she stopped work on September 10, 2013 and that the recurrence
occurred over a period of time. Appellant indicated that she continued to receive medical
treatment and that her conditions were permanent. She explained that she was assigned to a
position that was within her present restrictions over a period of time but subsequently, she was
assigned to another position that had caused the original injury. Appellant indicated that she
tried to fulfill the assignment under her current restrictions but it was not possible. She also
indicated that she was reprimanded for not completing her work assignment. Furthermore,
appellant suffered from the original injury from time to time while performing her modified
duties.
In a September 18, 2013 report, Dr. Damon D. Cary, an osteopath, specializing in pain
medicine, noted that appellant was seen for complaints of severe flare-up of right shoulder pain.
He advised that she related that her “flare-up started with the right shoulder at work because she
was doing some of the same job duties that caused her to have an injury in the first place.”
Dr. Cary indicated that appellant was not able to work since September 10, 2013. He examined
her and provided findings to include; restricted range of motion of the right shoulder with
tenderness over the right shoulder. Dr. Cary diagnosed acute flare-up of chronic residuals of
subscapularis tendinitis of the right shoulder. He completed disability certificates and a duty
status report on that date indicating that appellant’s condition was work related and that she was
totally disabled effective September 10 to October 9, 2013. Dr. Cary continued to submit
certificates placing her off work.
OWCP also received Form CA-7 reports for disability for leave without pay for the
period September 7 to November 29, 2013.
In an October 9, 2013 letter, OWCP advised appellant of the additional factual and
medical information needed to establish her claim. It noted that, following the original injury,
appellant returned to limited-duty work on February 11, 2012.
In a report dated October 9, 2013, Dr. Cary noted that appellant presented for a follow-up
appointment with complaints of ongoing right shoulder pain at rest and difficulty with various
activities of daily living. He examined her and provided findings which included restricted range
of motion of the right shoulder noticeable in all planes and tenderness over the right shoulder.
Dr. Cary diagnosed chronic residuals of subscapularis tendinitis of the right shoulder. He
recommended continued use of pain medicine and opined that appellant was totally disabled.
3

Appellant did not immediately stop work upon filing her April 24, 2006 occupational disease claim. However,
she claimed wage-loss and received disability compensation for claimed periods from June 12, 2006 to
August 1, 2008. Thereafter, she received wage-loss compensation for claimed intermittent hours from January 11,
2012 to September 6, 2013.

2

Dr. Cary provided a disability certificate of the same date and indicated that the period of
disability was from October 9 to December 4, 2013.
In an October 21, 2013 report, Dr. Cary noted first treating appellant on April 17, 2006
for injuries sustained during an industrial accident on April 14, 2006. He noted her historical
symptoms and indicated that she had multiple treatments over the years to the right arm that
included extensive physical therapy and a right shoulder surgery. Dr. Cary opined that appellant
was “quite symptomatic from this right upper extremity injury.” He diagnosed “chronic
residuals of subscapularis tendinitis of the right shoulder with a right C5 radiculopathy.”
Dr. Cary noted that appellant had complaints of ongoing right shoulder pain at rest and difficulty
with simple activities of daily living. He provided examination findings that included restricted
range of motion of the right shoulder with tenderness over the right shoulder. Dr. Cary opined
that appellant was “totally disabled and restricted from even part-time sedentary-duty work
including lifting, carrying, pushing and pulling over five pounds, overhead reaching and
performing other various activities. This is due to the ongoing subjective complaints that match
up with the objective findings that I have found on physical examination.” He indicated that she
used pain medicine to control her symptoms as well as some home medical supplies and
performed some home exercises to control her symptoms.
Appellant submitted a completed OWCP questionnaire and indicated that the recurrence
happened because the modified assignment she accepted was withdrawn in December 2012 and
she was ordered to report to a manual casing position that caused her original injury. She
explained that she was ordered to perform repetitive duties that caused pain in her right shoulder
and upper arm while casing mail. Appellant also noted a nonwork injury to her right ankle on
August 5, 2011. She denied any other illnesses or activities that could have affected her accepted
work-related conditions.
In a November 13, 2012 treatment note, Dr. Conrad K. King, Jr., a specialist in pain
medicine, advised that appellant was partially incapacitated from November 14 to
January 8, 2013. He provided restrictions to include no use of the right upper extremity.
Dr. King also indicated that appellant required a chair with an arm rest.
By decision dated December 11, 2013, OWCP denied appellant’s claim for a recurrence
of disability on the grounds that the medical evidence failed to establish that her alleged
recurrence of disability was due to a material change or worsening of her accepted conditions.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related

3

injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.4
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden of proof to establish, by the weight of the reliable, probative and substantial evidence, a
recurrence of total disability and an inability to perform such limited-duty work. As part of this
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the limited-duty job requirements.5 To establish a change
in the nature and extent of the injury-related condition, there must be a probative medical
opinion, based on a complete and accurate factual and medical history as well as supported by
sound medical reasoning, that the disabling condition is causally related to employment factors.6
ANALYSIS
In this case, OWCP accepted the claim for sprain of the right shoulder and upper arm,
specified disorder of bursae and brachial neuritis or radiculitis on the right. Appellant claimed a
recurrence of disability on October 3, 2013. She did not allege a specific date for her recurrence
of disability but alleged that it occurred over a period of time.7 Appellant stated that she was
originally assigned to a position that was within her restrictions but this changed back to the
position that caused her original injury. On October 9, 2013 OWCP advised her of the evidence
needed to establish her claim. Appellant, however, did not submit sufficient reasoned medical
evidence to establish that recurrence of disability is causally related to her accepted injury.
The Board notes that appellant indicated that her recurrence happened because her
modified assignment was withdrawn in December 2012 and she was ordered to report to a
manual casing position that required the same duties that cause her original injury. However,
appellant did not provide any further information or evidence to support this assertion. The
Board notes that there is insufficient evidence to show a change in the nature and extent of the
light-duty job requirements.
Appellant submitted several reports from Dr. Cary. They included a September 18, 2013
report, in which he noted that she was seen for a flare-up of right shoulder pain. Dr. Cary
advised that appellant related that her “flare-up started with the right shoulder at work because
[appellant] was doing some of the same job duties that caused her to have an injury in the first
place.” He indicated that she was not able to work since September 10, 2013. Dr. Cary
4

J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is
withdrawn for reasons of misconduct, nonperformance of job duties or other downsizing. 20 C.F.R. § 10.5(x). See
also Richard A. Neidert, 57 ECAB 474 (2006).
5

A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

6

Mary A. Ceglia, 55 ECAB 626, 629 (2004).

7

She received wage-loss compensation for claimed intermittent hours from January 11, 2012 to
September 6, 2013. Supra note 3.

4

diagnosed acute flare-up of chronic residuals of subscapularis tendinitis of the right shoulder and
opined that appellant was totally disabled. Although he completed a disability certificate in
which she indicated that the condition was work related, he did not explain how this was related
to her accepted injury. This does not sufficiently support that appellant’s disability after
September 6, 2013 was related to the accepted injury.
In his October 21, 2013 report, Dr. Cary noted treating appellant since April 17, 2006 for
injuries sustained during an industrial accident. He noted her treatment and advised that she was
“quite symptomatic from this right upper extremity injury.” Dr. Cary diagnosed “chronic
residuals of subscapularis tendinitis of the right shoulder with a right C5 radiculopathy.” He
opined that appellant was “totally disabled.” Dr. Cary indicated that her disability was “due to
the ongoing subjective complaints that match up with the objective findings that I have found on
physical examination.” However, he did not explain why appellant could no longer perform the
duties of her light-duty position after September 6, 2013 or why any such disability or continuing
condition would be due to the accepted condition. Other reports from Dr. Cary are insufficient
as they did not explain why the claimed recurrent disability was due to a spontaneous change in
the accepted conditions.
Dr. King, in his November 13, 2012 treatment note, advised that appellant was partially
incapacitated from November 14 to January 8, 2013 and provided restrictions. This report is of
limited probative value on the point at issue, however, as it does not contain an opinion on causal
relationship.8 Other medical evidence submitted by appellant also did not offer a specific
opinion on causal relationship during the relevant time period.
In the instant case, none of the medical reports submitted by appellant contained a
rationalized opinion to explain why she could no longer perform the duties of her light-duty
position and why any such disability or continuing condition would be due to the accepted
condition. As appellant has not submitted any medical evidence establishing that she sustained a
recurrence of disability due to her accepted employment injury, she has not met her burden of
proof.
On appeal, appellant indicates that she continues to experience pain as a result of her
accepted condition. The Board notes that the issue in this case, is whether she met her burden of
proof to establish that a recurrence of disability causally related to her accepted employment
injury. As noted above, the medical evidence was insufficient to establish such a recurrence.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a recurrence of disability causally related to her accepted employment injury.

8

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).

5

ORDER
IT IS HEREBY ORDERED THAT the December 11, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Asheville, NC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-2511
Issued: March 6, 2006

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 22, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 26, 2008 decision, denying his request for an oral hearing as
untimely filed. Because more than one year has elapsed between the last merit decision dated
June 21, 2006 and his appeal filed on September 22, 2008, the Board lacks jurisdiction to review
the merits of his claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for a review of the
written record under 5 U.S.C. § 8124(b) as untimely filed.
FACTUAL HISTORY
On July 15, 1987 appellant, then a 29-year-old laborer, sustained injury to his neck and
head when a tree limb struck him. He stopped work July 16, 1987. The Office accepted a
cervical strain and dislocation of both knees as a result of the work-related incident. The record

reflects that appellant has a previously approved claim for bilateral knee strain and left knee
medial meniscus tear for a July 22, 1985 injury incurred while working as a firefighter with the
U.S. Department of Agriculture.1 He received medical and wage-loss benefits. In 1991,
appellant was referred to the vocational rehabilitation program. However, he eventually had to
stop due to pain from his accepted injuries.
In January 2005, appellant was again referred to the vocational rehabilitation program.
By decision dated June 21, 2006, the Office reduced his compensation benefits under section
8113(b) based on his failure to cooperate with vocational rehabilitation.
On August 6, 2008 appellant requested a review of the written record before an Office
hearing representative. In an August 5, 2008 letter, he stated that he had previously sent letters
to the Office and the rehabilitation specialist explaining that his medical condition had
deteriorated such that he could not participate in vocational rehabilitation. Appellant advised
that he needed to have double knee replacement and surgery to his cervical spine as a result of
his work-related conditions. He submitted additional medical evidence.2
By decision dated August 26, 2008, the Office denied appellant’s hearing request as it
was not filed within 30 days of the June 21, 2006 decision. It further denied his request as it
found that the issue in the case could equally well be addressed by requesting reconsideration
from the Office and submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that before
review under section 8128(a) of this title, a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his claim before a representative of the Secretary.3 Section
10.615 of the federal regulations implementing this section of the Act provides that a claimant
shall be afforded a choice of an oral hearing or a review of the written record.4 The Office’s
regulations provide that the request must be sent within 30 days of the date of the decision for
which a hearing is sought and also that the claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same decision.5

1

Appellant stopped working for the U.S. Department of Agriculture on July 26, 1986 and began working for the
current employing establishment on April 12, 1987.
2

The Board may not consider this evidence on appeal as the Office has not considered it in reaching a final
decision. See 20 C.F.R. § 501.2(c).
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a).

2

The Board has held that the Office, in its broad discretionary authority in the
administration of the Act,6 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.7 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of Board precedent.8
ANALYSIS
The Office issued its decision concerning appellant’s reduction in compensation as a
result of his refusal to participate in vocational rehabilitation on June 21, 2006. Appellant
requested a review of the written record before the Office’s Branch of Hearings and Review on
August 6, 2008. As his request for a review was filed more than 30 days after the June 21, 2006
decision, the Board finds that the Office properly found that the request was untimely.
Although the Office determined that appellant’s request was untimely, it nevertheless
exercised its discretion by further considering his request for review. It determined that
appellant could equally well pursue his claim by submission of a request for reconsideration
along with new evidence which established that he did participate in the rehabilitation process.
The Board finds that the Office also properly exercised its discretion in denying appellant’s
request for review.9
CONCLUSION
The Board finds the Office properly denied appellant’s request for a review of the written
record as untimely filed.

6

5 U.S.C. §§ 8101-8193.

7

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

8

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).
9

See Daniel J. Perea, 42 ECAB 214 (1990).

3

ORDER
IT IS HEREBY ORDERED THAT the August 26, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2006
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4