United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Boston, MA,
Employer
__________________________________________

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

Docket No. 18-1468
Issued: February 11, 2019

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 July 21, 2018 appellant filed a timely appeal from a January 22, 2018 merit decision,1
and a March 16, 2018 nonmerit decision of the Office of Workers’ Compensation

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from January 22, 2018, the date of OWCP’s last merit decision, was
July 21, 2018. As this fell on a Saturday, appellant had until the next business day, Monday, July 23, 2018, to file the
appeal. Because using July 27, 2018, the date the appeal was received by the Clerk of the Appellate Boards, would
result in the loss of appeal rights with respect to the January 22, 2018 merit decision, the date of the postmark is
considered the date of filing. The date of the U.S. Postal Service postmark is July 21, 2018, rendering the appeal
timely filed. See 20 C.F.R. § 501.3(f)(1).

Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish left shoulder
and back conditions causally related to the accepted October 10, 2017 employment incident; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 15, 2017 appellant, then a 48-year-old mail processing clerk, filed a
traumatic injury claim (Form CA-1) alleging that on October 10, 2017 she sustained injury behind
her left shoulder and throughout her back “sweeping pass 2 for 7 hours….”4 She did not stop work
following the alleged October 10, 2017 employment injury. On the reverse side of the claim form,
the employing establishment controverted continuation of pay because appellant waited more than
30 days before reporting the alleged injury.
In a December 14, 2017 attending physician’s report (Form CA-20), Dr. Augustus
Colangelo, Board-certified in emergency medicine, noted that appellant had described lifting while
working on a machine two months prior, which gradually developed into right back pain. On
examination, he observed left mid- and upper-thoracic paraspinal muscle tenderness, diagnosing
muscle strain. Dr. Colangelo noted that another physician had treated appellant and that she should
follow up with that physician for further recommendations. He checked a box indicating that her
condition was caused or aggravated by employment activity. In an accompanying duty status
report (Form CA-17) of the same date, Dr. Colangelo recommended that appellant could return to
work on December 14, 2017 with restrictions including: no climbing, reaching above the shoulder,
driving a vehicle, or operating machinery; no lifting of over five pounds; and no pulling/pushing
of over 25 pounds.
By development letter dated December 19, 2017, OWCP advised appellant that the
evidence of record was insufficient to establish her claim. It noted that she had not submitted a
physician’s opinion as to how her injury resulted in a diagnosed condition. OWCP afforded
appellant 30 days to submit additional evidence, including a narrative report from her treating
physician, and to respond to its inquiries.

2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the March 16, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
4

Appellant further noted that she was not allowed to feed the mail.

2

In a narrative statement dated December 27, 2017, appellant responded to OWCP’s
inquiries, noting that she had been working at a machine at the time of injury and had swept trays
for seven hours. She stated that two coworkers had witnessed the event and that she had
experienced back spasms that night. Appellant rested her back hoping that it would recover during
time off from work, but developed severe back spasms and muscle strain. She noted no other
injury or previous condition.
Additional medical evidence included December 14, 2017 emergency department
treatment records. Dr. Colangelo examined appellant for complaints of left-sided back pain, which
she had been experiencing for two months. Appellant stated that she did not know of a specific
injury, but that her work involved a lot of bending and heavy lifting. She later told Dr. Colangelo
that, approximately two months prior, while working on a machine at work and lifting above her
shoulders, she developed moderately intense thoracic back pain, mainly on the left. On
examination, Dr. Colangelo noted left mid-thoracic paraspinal muscle tenderness, reproducing
appellant’s symptoms. He noted that she had back pain and recommended that she continue to
take medication for the pain. Dr. Colangelo recommended that appellant follow up with her
treating physician.
On December 22, 2017 Dr. Brian Wainger, Board-certified in neurology and pain
medicine, noted that he had evaluated appellant regarding her neck and shoulder pain. He noted
that a procedure had been scheduled, but that he was unable to perform it due to insurance
complications. Dr. Wainger requested that appellant be excused from work for the next five days.
By letter dated December 26, 2017, Dr. Ricardo Ribeiro, an internist, noted that appellant
had been seen on October 26, 2017 and should be excused from work until January 2, 2018.
In a duty status report (Form CA-17) dated January 12, 2018, Dr. Ribeiro diagnosed
thoracic back pain and muscle spasm and recommended restrictions of no bending/stooping,
twisting, pulling/pushing, reaching above the shoulder, or operating machinery; no more than one
hour per day of fine manipulation; no more than two hours per day of sitting with a supportive
chair; no more than four hours per day of standing or lifting/carrying; and no more than five hours
per day of walking. Additionally, he noted that appellant should not lift/carry more than two and
a half pounds on an intermittent basis for up to four hours per day; should perform simple grasping
up to eight hours per day with her right hand only; and should not be exposed to temperature
extremes outside the range of 65 to 80 degrees Fahrenheit.
By letter dated January 12, 2018, Dr. Stephanie Quamo, a Board-certified internist, noted
that appellant had been seen on that date and that she should be excused from work for the period
January 10 through 12, 2018, returning on January 13, 2018.
On January 16, 2018 appellant noted that her physician had been on vacation until
January 12, 2018 and that she could not obtain an appointment before that date.
By decision dated January 22, 2018, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that her diagnosed left paraspinal muscle sprain
was causally related to the accepted October 10, 2017 employment incident.

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Appellant resubmitted the December 14, 2017 report of Dr. Colangelo. She also submitted
an excuse note dated November 26, 2017 with an illegible signature, in which it was noted that
she reported a work-related injury, that she should not lift over 10 pounds, and that she could return
to work on December 2, 2017.
By letter dated January 17, 2018, Dr. Quamo noted that appellant had been seen on that
date and returned to light-duty work on January 13, 2018. She noted that appellant was unable to
continue work due to her pain and would defer completion of forms regarding light duty until she
was able to receive injections at a clinic.
On February 5, 2018 Dr. Wainger noted that appellant had been seen on that date and
recommended that she be afforded a chair with lumbar support and arm rests in order to have better
posture as part of her recovery process.
By letter dated February 6, 2018, Dr. Quamo noted that appellant had been seen on that
date and that she had trigger point injections the previous day to treat her back pain. She noted
that appellant should be seated in a comfortable chair and could return to light duty on
February 10, 2018.
On March 7, 2018 appellant requested reconsideration.
By decision dated March 16, 2018, OWCP denied appellant’s request for reconsideration
of the merits of her claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA5 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.6 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.7
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.8 The second component is whether the
5

Supra note 2.

6

D.B., Docket No. 18-0537 (issued September 12, 2018); C.S., Docket No. 08-1585 (issued March 3, 2009);
Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).
7

J.R., Docket No. 18-1079 (issued January 15, 2019); S.P., 59 ECAB 184 (2007); Michael E. Smith, 50 ECAB
313 (1999).
8

Elaine Pendleton, supra note 6.

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employment incident caused a personal injury and generally can be established only by medical
evidence.
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.9 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
The weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish left shoulder
and back conditions causally related to the accepted October 10, 2017 employment incident.
In a December 14, 2017 duty status report, Dr. Colangelo recommended work restrictions.
On December 22, 2017 Dr. Wainger noted that he had evaluated appellant regarding her neck and
shoulder pain. By letter dated December 26, 2017, Dr. Ribeiro noted that appellant had been seen
on October 26, 2017 and should be excused from work until January 2, 2018. In a duty status
report dated January 12, 2018, he recommended work restrictions. By letter dated January 12,
2018, Dr. Quamo noted that appellant had been seen on that date and that she should be excused
from work for the period January 10 through 12, 2018. While these reports and letters noted that
appellant had been seen for treatment, recommended work restrictions, or requested that she be
excused from work, they did not provide findings and opinions regarding the cause of her
condition. Medical evidence that does not offer an opinion regarding the cause of an employee’s
condition or disability is of no probative value on the issue of causal relationship. As such, these
reports are of no probative value on the issue of causal relationship, and are insufficient to establish
appellant’s traumatic injury claim.11
In an attending physician’s report dated December 14, 2017, Dr. Colangelo noted that
appellant had described lifting while working on a machine two months prior, which gradually
developed into right back pain. He checked a box indicating that her condition was caused or
aggravated by employment activity. In another report dated December 14, 2017 from
Dr. Colangelo, appellant was noted to state that she did not know of a specific injury, but that her
work involved a lot of bending and heavy lifting. Appellant later told him that approximately two
months prior, while working on a machine at work and lifting above her shoulders, she developed
moderately intense thoracic back pain, mainly on the left. Though Dr. Colangelo checked a box
marked “yes” to the question of whether the diagnosis was a result of the employment incident,
9

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

10

R.S., Docket No. 18-0120 (issued August 8, 2018); James Mack, 43 ECAB 321 (1991).

11

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

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the Board has held that a report addressing causal relationship with an affirmative checkmark,
without medical rationale explaining how the work condition caused the alleged injury, is of
diminished probative value and insufficient to establish causal relationship.12 Regarding the
discussion of appellant’s medical history, he merely repeated what she told him regarding the cause
of her conditions without offering his own opinion, supported by medical rationale. Such
generalized statements do not establish causal relationship because they merely repeat her
allegations and are unsupported by adequate medical rationale explaining how the physical activity
actually caused the diagnosed conditions.13 As such, the reports of Dr. Colangelo dated
December 14, 2017 are insufficient to meet appellant’s burden of proof.
The fact that a condition manifests itself during a period of employment is insufficient to
establish causal relationship.14 Temporal relationship alone will not suffice. Entitlement to FECA
benefits may not be based on surmise, conjecture, speculation, or on the employee’s own belief of
a causal relationship.15 Herein, the record lacks rationalized medical evidence establishing causal
relationship between the accepted October 10, 2017 employment incident and appellant’s
diagnosed back and left shoulder conditions.16 Thus, appellant has not met her burden of proof.17
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.18
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

12

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

13

K.W., Docket No. 10-0098 (issued September 10, 2010).

14

Daniel O. Vasquez, 57 ECAB 559 (2006).

15

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

16

See J.S., Docket No. 17-0507 (issued August 11, 2017).

17

See K.L., Docket No. 18-1029 (issued January 9, 2019).

18
5 U.S.C. § 8128(a); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549
(issued February 23, 2010); W.C., 59 ECAB 372 (2008).

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OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.19
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.20 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.21 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.22
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With her timely request for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law, nor did she advance a relevant legal argument not
previously considered by OWCP.23 Consequently, she is not entitled to review of the merits of
her claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
Additionally, appellant has not submitted relevant and pertinent new evidence not
previously considered by OWCP. The underlying issue in this case is whether she submitted
sufficient evidence that her diagnosed medical condition was causally related to the accepted
employment incident.24
In support of her request for reconsideration, appellant submitted a November 26, 2017
note with an illegible signature and work excuse notes dated January 17 through February 6, 2018
from Drs. Quamo and Wainger, referencing back pain and the necessity of a comfortable chair for
her recovery. The Board notes that unsigned reports and reports that bear illegible signatures
cannot be considered probative medical evidence because they lack proper identification.25
Moreover, while this evidence was new, it did not address the relevant issue in this claim as to
causal relationship by providing an opinion regarding the cause of appellant’s diagnosed
conditions. For these reasons, the November 26, 2017 note and work excuse notes dated

19

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).
20

Id. at § 10.607(a).

21

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

22

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

23

See J.F., Docket No. 16-1233 (issued November 23, 2016).

24

See R.B., Docket No. 18-0898 (issued January 15, 2019).

25

See R.M., 59 ECAB 690 (2008); D.D., 57 ECAB 734 (2006); Richard J. Charot, 43 ECAB 357 (1991).

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January 17 through February 6, 2018 were irrelevant to the underlying issue in this case, and as
such insufficient to warrant merit review.26
Appellant also resubmitted the December 14, 2017 report of Dr. Colangelo on
reconsideration. As the report repeats evidence already in the case record, it is duplicative and
does not constitute relevant and pertinent new evidence sufficient to warrant merit review.27
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish left shoulder
and back conditions causally related to the accepted October 10, 2017 employment incident. The
Board further finds that OWCP properly denied her request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).

26

M.C., Docket No. 14-0021 (issued March 11, 2014); M.H., Docket No. 13-2051 (issued February 21, 2014).

27

See D.K., 59 ECAB 141 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the March 16 and January 22, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 11, 2019
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
__________________________________________
Y.M., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION, DIVISION OF
FEDERAL EMPLOYEES’ COMPENSION,
Philadelphia, PA, Employer
__________________________________________

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

Docket Nos. 14-1050 &
14-1193
Issued: December 24, 2014

Case Submitted on the Record

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

JURISDICTION
On April 2, 2014 appellant filed a timely appeal from a March 20, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP), in which an OWCP hearing
representative affirmed a denial that additional conditions be accepted as compensable/work
related. On April 29, 2014 she filed a timely appeal from an April 23, 2014 OWCP decision in
which a hearing representative affirmed the termination of her wage-loss compensation on the
grounds that she refused an offer of suitable work.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of these cases.

1

The April 2, 2014 appeal was assigned Docket No. 14-1050; the April 29, 2014 appeal was assigned Docket No.
14-1193.
2

5 U.S.C. §§ 8101-8193.

ISSUES
The issues are: (1) whether appellant met her burden of proof to establish additional
conditions that were caused or aggravated by factors of her federal employment; and (2) whether
OWCP properly terminated her compensation benefits effective November 16, 2013 pursuant to
5 U.S.C. § 8106(c).
On appeal, appellant asserts that the decisions were based on inaccurate statements of
accepted facts, that the physician who rendered a second-opinion evaluation was asked leading
questions, and that the referee physician relied on tainted documents. She maintained that the
medical evidence established cervical and brachial plexus conditions and that OWCP erred in
terminating her monetary compensation because she established an additional consequential
injury to her left hand and could not perform the duties of the offered position.
FACTUAL HISTORY
On July 30, 2012 appellant, then a 47-year-old claims examiner, filed an occupational
disease claim alleging that typing, keying, and scrolling for eight plus hours daily caused pain,
numbness and tingling in both wrists. She indicated that she had carpal tunnel syndrome and
cervical and brachial plexus nerve entrapment. On the claim form, the employing establishment
indicated that appellant’s regular work hours were 8:15 a.m. to 4:45 p.m. Monday through
Friday. Appellant stopped work on July 26, 2012 and did not return. On August 24, 2012
OWCP accepted that she sustained bilateral carpal tunnel syndrome and bilateral radial tunnel
syndrome. Appellant received appropriate compensation and was placed on the periodic
compensation rolls.
Appellant came under the care of Dr. Scott M. Fried, a Board-certified osteopath
specializing in orthopedic surgery at the Upper Extremity Institute and began physical therapy.
On August 23, 2012 John W. McKenna, district director of the employing establishment,
informed OWCP that it was proposing a modified position for appellant in which she would
mentor new trainees and less experienced claims examiners. The job would require minimal
writing and typing with no repetitive activity and no head and neck posturing, and a headset
would be provided for telephone use. Mr. McKenna forwarded a copy of an August 16, 2012
letter in which he asked Dr. Fried to provide physical restrictions and asked whether appellant
could perform the mentor position. By letter dated September 19, 2012, he asked appellant to
provide a duty status report and informed her that speech recognition software had been installed
on her computer and instruction in its use had been arranged. On September 25, 2012
Mr. McKenna notified OWCP that Dr. Fried had not responded to the August 16, 2012 letter.
In September 2012, appellant was referred to a medical management nurse. The nurse
attempted to contact her on multiple occasions but she did not respond. Nursing services were
closed in March 2013.
In a report dated September 27, 2012, Dr. Fried indicated that he had reviewed a
September 14, 2012 functional capacity evaluation (FCE). He indicated that this demonstrated

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that appellant could occasionally move her head and neck and could not perform fine
manipulation, firm grasping or pushing and pulling, and could not perform even sedentary work.
On October 2, 2012 appellant asked that her claim be expanded to include cervical
radiculopathy and brachial plexopathy. She enclosed a September 20, 2012 letter in which
Dr. Fried noted that her arm symptoms began in 2003 or 2004 and progressed to her current
complaints of bilateral pain in the upper trapezial area and neck with decreased neck range of
motion. Dr. Fried described appellant’s work as computer entry and writing and reported that
she was in a motorcycle accident on April 29, 2010 that involved minor injuries to her left hip
and shoulder and her right elbow. He provided findings and indicated that she had significant
upper extremity bilateral repetitive strain injury including significant brachial plexus
involvement caused by prolonged posturing of the head, neck, and arms and aggressive reaching
of the mouse. Dynamic testing of the brachial plexus thoracic outlet on the right hand was
consistent with a cervical radiculopathy/brachial plexopathy, caused by the repetitive work
activities. Dr. Fried continued to advise that appellant could not work.
An October 3, 2012 electrodiagnostic evaluation, performed by Richard L. Read a
physical therapist working at the Upper Extremity Institute, showed right brachial plexus level
nerve compromise, moderate left ulnar nerve compromise at the medial elbow level, and right
posterior interosseous nerve compromise at the radial tunnel. The remainder of the test was
normal.3
On October 18, 2012 Dr. Daniel D. Zimmerman, an OWCP medical adviser, stated that
the electrodiagnostic testing from the Upper Extremity Institute should not be authorized because
it was not done by a physician. He advised that OWCP should not accept additional conditions.
In an October 26, 2012 letter, OWCP asked that Dr. Fried provide medical rationale
explaining why appellant could not work, asked that he provide a treatment plan for her work
injuries, and inquired about Mr. Read’s credentials. On November 5, 2012 Dr. Zimmerman
reported that the FCE noted by Dr. Fried, was not in the record. He recommended that additional
conditions not be accepted. In a November 30, 2012 treatment note, Dr. Fried again discussed a
September 14, 2012 FCE without comment to questions posed by OWCP.
Dr. Fried continued to submit treatment notes reiterating his diagnoses and advising that
appellant was medically disabled from work due to employment injuries. On January 24, 2013
he recommended additional procedures. On February 4, 2013 Dr. Zimmerman, the medical
adviser, indicated that additional procedures and studies should not be authorized.
On February 8, 2013 OWCP referred appellant to Dr. Robert F. Draper, a Board-certified
orthopedic surgeon, for a second-opinion evaluation. In a February 22, 2013 report, Dr. Draper
noted his review of a January 29, 2013 statement of accepted facts and medical record. He
indicated that appellant reported that she typed 12 hours a day, four days a week and that these
duties caused burning in the trapezius area, neck pain, and carpal tunnel syndrome bilaterally,
and that she felt a little better since she stopped work in July 2012. Dr. Draper provided
extensive physical examination findings and diagnosed cervical strain, right and left trapezius
3

The report was not cosigned by a physician.

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strains, mild bilateral carpal tunnel syndrome, and bilateral radial tunnel syndrome. He advised
that he saw no evidence of cervical radiculopathy or brachial plexopathy, indicating that his
examination did not show any definite motor or sensory deficits in the upper extremities, noting
that appellant had subjective complaints. Dr. Draper concluded that the diagnoses were directly
causally related to the repetitive use of the upper extremities associated with typing and
computer functions for six years, 12 hours a day, four days a week and advised that appellant
was capable of working 8 hours of modified duty daily. He provided restrictions that she could
not lift more than 20 pounds occasionally and 10 pounds frequently, and that she could stand and
sit for six hours in an eight-hour workday. Reaching above the shoulder was limited to two
hours, and computer use should not exceed four hours in an eight-hour workday.
Dr. Fried continued to submit reports based upon his evaluations of appellant. In a
March 6, 2013 report, Dr. A.J. Palmaccio, Jr., an orthopedic surgeon, advised that he first saw
appellant that day for complaints of right arm weakness. He found positive Tinel’s and Phalen’s
signs on the right and indicated that she demonstrated no significant motor or sensory loss on the
left. Dr. Palmaccio recommended a cervical magnetic resonance imaging (MRI) scan study to
rule out pathology.
On March 10, 2013 OWCP informed Dr. Draper that appellant’s normal workday was
eight hours a day, five days a week. It asked him to explain the standing and sitting restrictions
as they did not seem appropriate for arm conditions related to typing and computer functions.
OWCP asked whether the strain conditions had resolved and, if not, asked that he provide
temporary restrictions for the diagnosed cervical and trapezius strains and whether the
restrictions for the bilateral carpal and radial tunnel conditions were permanent or temporary. It
also asked Dr. Draper to clarify the computer work restriction in more specific terms.
A March 29, 2013 MRI scan cervical spine study showed mild disc protrusions at C2-3
and C4-5, and broad-based disc protrusions at C3-4 and C5-6. In a March 20, 2013 report,
Dr. Palmaccio noted the MRI scan findings and indicated that appellant was still having neck
pain with radiculopathy down the right arm. He recommended cervical epidural injections.
In an April 14, 2013 supplemental report, Dr. Draper advised that her diagnoses and
accepted conditions were bilateral carpal tunnel syndrome and bilateral radial tunnel syndrome,
which were related to repetitive use of the arms associated with fine manipulations and simple
grasping in keyboard and mouse use. He indicated that appellant had no restrictions on sitting
and standing and added a restriction that fine manipulation (keyboard and mouse use) and simple
grasping were limited to four hours per day in an eight-hour workday.
On May 9, 2013 Dr. Fried advised that appellant remained symptomatic, noting that she
was bothered on the left, secondary to overuse, and that she could not return to her regular work
duties.
OWCP determined that a conflict in medical opinion had been created between the
opinions of Dr. Fried and Dr. Draper regarding the conditions caused by appellant’s work and
regarding her ability to work. On June 3, 2013 it referred her to Dr. William H. Simon, a Boardcertified orthopedic surgeon, for an impartial evaluation.

4

In a July 6, 2013 report, Dr. Simon noted his review of a May 30, 2013 statement of
accepted facts that included a description of appellant’s regular duties, his review of the medical
record, and a history that appellant was in a 2010 motorcycle accident. Appellant reported
intermittent symptoms for over 10 years but left work on July 26, 2012 because she “could not
live with them anymore.” She noted that she did not return to light duty because Dr. Fried had
not released her. Dr. Simon indicated that he was unaware of a neuromuscular ultrasound that
was performed by Dr. Fried and that the electrodiagnostic study performed by Mr. Read did not
confirm bilateral carpal tunnel syndrome and bilateral radial tunnel syndrome. Dr. Simon
advised that a review of the record showed that appellant reported that her symptoms increased
after she stopped work which indicated that the symptoms were subjective in nature. He added
that the cervical MRI scan findings indicated degenerative disc disease, noting that this condition
was not caused by repetitive trauma in the workplace but was a naturally progressive disease,
and that any increase in symptoms, as reported by appellant and Dr. Fried, would be due to the
degenerative disc disease of the cervical spine. Dr. Simon noted reviewing Dr. Draper’s reports
and indicated that the cervical and bilateral trapezius strain diagnoses could not be due to workrelated incidents as they would heal in a matter of weeks, noting that Dr. Draper examined
appellant after months of therapy. He described her complaints of right worse than left neck
tension which was always there, difficulty in turning her head, tension headaches one to two
times weekly, tension and burning in the right trapezius, intermittent right forearm throbbing
pain, a dull right wrist ache, decreased right grip strength, intermittent tingling and numbness in
the last three fingers of the right hand, and tenderness between the blades of the scapula, more on
the right. On examination appellant complained of pain in cervical and shoulder range of
motion. Upper extremities demonstrated no measurable atrophy, and range of motion of the
elbows and wrists was normal, including normal motion in radial, and ulnar deviation. Tinel’s
and Phalen’s signs were negative bilaterally and grip strength was good bilaterally. Sensation
was intact in the arms. There was no tenderness to palpation over the normal entrapment site in
the right forearm, and spine examination showed no tenderness in the midline from the base of
the skull to the lumbosacral junction with some tenderness to palpation of the right trapezius, but
no involuntary paravertebral muscle spasm. Dr. Simon advised that, based on physical
examination, neurologic examination, and review of the 900-page plus medical record, appellant
had degenerative disc disease in multiple levels of the cervical spine and subjective symptoms
compatible with mild cervical radiculopathy involving the right upper extremity, greater than the
left, which were not supported by objective testing. He agreed with Dr. Draper regarding her
work status and indicated that she could perform the duties of the mentoring job which appellant
indicated she had previously done.
On July 18, 2013 OWCP asked the employing establishment to provide a job offer for
appellant that was in conformance with the restrictions provided by Dr. Draper and agreed upon
by Dr. Simon. On August 8, 2013 the employing establishment offered her a modified claims
examiner job requiring four hours of repetitive wrist and elbow movements, fine manipulation,
and simple grasping. An example of the duties to be performed included using office automation
equipment and a variety of software to read and review training, reference, and claims material,
and adjudicate claims, produce various documents/decisions which could include specialized
terminology and/or complex formats; review incoming mail; receive and refer telephone calls to
appropriate coworkers; assist staff members on individual projects; document telephone calls;
prepare written responses to incoming correspondence; determine claims actions that needed to
be taken to facilitate returns to work; update coding of claims in the computer system; determine
5

pay rates; make compensation payments; certify payments; calculate overpayments; and
maintain time and attendance records. The physical requirements indicated that appellant could
intermittently lift/carry up to five pounds; intermittently sit eight hours per day; intermittently
stand eight hours per day; intermittently walk up to two hours per day; intermittently pull/push
up to 15 minutes a day; grasp intermittently four hours per day; intermittently use fine
manipulation (keyboarding and mouse) four hours per day; and intermittently reach above
shoulder height up to 15 minutes per day. Her hours of work would be in accordance with the
flextime agreement and her scheduled days off would be Saturday and Sunday. A copy of a
regular claims examiner GS-12 position description was attached.
Appellant replied on August 13, 2013 that she had an outstanding work-related condition
that had not been addressed. On August 20, 2013 the employing establishment indicated that the
job offered was a permanent position and on August 26, 2013 indicated that the position was still
available.
By letter dated August 27, 2013, OWCP advised appellant that the position offered was
suitable. Appellant was notified that, if she failed to report to work or failed to demonstrate that
the failure was justified, pursuant to section 8106(c)(2) of FECA, her right to compensation for
wage loss or a schedule award would be terminated. She was given 30 days to respond.
In correspondence dated September 10 and 20, 2013, appellant disagreed that the offered
position was suitable. She noted that the offer did not indicate what she would be doing for the
four hours a day she was not keying and maintained that OWCP had not addressed whether
cervical radiculopathy and brachial plexopathy were employment related. Appellant also
claimed that she had a consequential injury to her left hand, noting that she typically had worse
grip strength, pain and numbness in the right hand and therefore overused her left hand. She
indicated that pain and symptoms in the left hand had been gradually increasing in the past few
months due to overuse.
In support of her assertions, appellant submitted an August 22, 2013 report from
Dr. Fried who indicated that she had a flare of symptoms on the left secondary to overuse with
progressive pain that was spreading into the fingers and was greatest with grip and pinch.
Dr. Fried diagnosed scapholunate ligament injury of the right wrist, bilateral carpal tunnel
median neuropathy, right posterior occipital neuralgia, bilateral radial neuropathy, brachial
plexopathy, and right cervical radiculopathy. He recommended massage therapy, ultrasound,
and TENS stimulation and indicated that appellant was medically disabled.
On September 19, 2013 Dr. Fried disapproved of the offered job because it fell outside
appellant’s limitations, based on a September 14, 2012 FCE. He attached his November 30,
2012 treatment note that discussed the September 14, 2012 FCE. Dr. Fried reported that a
September 24, 2013 neuromusculoskeletal ultrasound of the left second digit with special
attention to the metacarpophalageal joint demonstrated grade 2 laxity of the radial collateral
ligament with chronic partial tearing and early spur formation, which indicated radial sensory
neuritis. A September 24, 2013 neuromusculoskeletal ultrasound of the left brachial plexus
showed pathologic findings including perineural scarring, tractional fixation, substantial
swelling, nerve compression, and thoracic outlet syndrome.
A September 24, 2013
neuromusculoskeletal ultrasound of the left median nerve and carpal tunnel demonstrated

6

perineural scarring, substantial swelling, and nerve compression. In September 24 and
October 3, 2013 treatment notes, Dr. Fried noted these findings and reiterated his prior
diagnoses. He indicated that appellant’s plexus issues remained, right greater than left, and that
the left hand was bothersome due to overuse to compensate for the right and that carpal tunnel
issues also remained.
By decision dated October 9, 2013, OWCP denied appellant’s claim that cervical
radiculopathy and brachial plexopathy were caused by her federal job duties.
On October 10, 2013 the employing establishment confirmed that the modified job
remained available. On October 11, 2013 OWCP advised appellant that her reasons for refusing
the offered position were not valid, and she was given an additional 15 days to accept. In an
October 16, 2013 response, appellant maintained that the offered job was invalid as it did not
delineate her duties after her four-hour restriction on computer work. She maintained that the
medical evidence showed that she had additional left hand conditions and that the consequential
conditions should be accepted.
In a request postmarked October 28, 2013, appellant requested a review of the written
record of the October 9, 2013 OWCP decision. She maintained that the statements of accepted
facts were incorrect because they indicated that she worked eight hours a day when she actually
worked up to 11 hours daily, incorrectly stated that a September 11, 2012 neuromusculoskeletal
ultrasound procedures was performed by Mr. Reed, that the second-opinion evaluator changed
his opinion based on leading questions from OWCP, and that the reports of the medical adviser
were inflammatory, inaccurate and biased, and contaminated the opinion of the referee examiner,
Dr. Simon, who reviewed the medical adviser reports. Appellant further indicated that the record
contained evidence that the claims examiner and OWCP referral nurse were biased, and that
OWCP did not follow proper procedures because section 3.600 of OWCP’s procedures indicated
that an OWCP medical adviser was to remain neutral as to whether a case or medical condition
should be accepted. Appellant further noted that Dr. Fried referred her to Dr. Steven J.
Valentino, a Board-certified osteopath specializing in orthopedic surgery, but that his May 13,
2013 report was not discussed. She maintained that she worked over 8 hours a day on a flexible
work schedule, and worked on average 9 hours a day and sometimes up to 11 hours daily.
Appellant submitted a May 21, 2013 report in which Dr. Valentino, a Board-certified
osteopath specializing in orthopedic surgery, noted her complaints of neck pain with radiation
into both arms, paresthesias, and weakness, right greater than left. Neck motion was severely
limited in all planes. Appellant had decreased sensation with pulsatile sign over the radial and
carpal tunnels bilaterally. Deep tendon reflexes were intact and otherwise, the motor and sensory
examinations were normal. Dr. Valentino diagnosed carpal tunnel syndrome and lesion of the
radial nerve, opining that these were secondary to repetitive work. He recommended activity and
posture modification. On October 28, 2013 Dr. Fried reiterated his findings and conclusions. He
found appellant disabled until November 25, 2013.
On November 6, 2013 the employing establishment informed OWCP that the offered
position remained available. By decision dated November 8, 2013, OWCP terminated
appellant’s compensation benefits, effective November 16, 2013, on the grounds that she refused

7

to accept an offer of suitable work. It found that the weight of medical evidence rested with the
opinion of Dr. Simon who provided an impartial evaluation.
In a request postmarked November 19, 2013, appellant requested a review of the written
record of the November 8, 2013 decision. She maintained that the offered position was not
suitable, noting that OWCP ignored her consequential injury claim for overuse of the left hand
and reiterated her contention that OWCP and the referral physicians demonstrated bias.
Appellant also noted that the referee report predated the onset of symptoms for a claimed
consequential condition of her left hand and that OWCP erred in not considering this additional
condition involving the radial collateral ligament of the proximal phalanx of the left hand.
In a November 25, 2013 treatment note, Dr. Fried indicated that appellant attempted to
type appeal letters but could not finish due to elevated symptoms. He reiterated his diagnoses
and continued to find her disabled. On December 16, 2013 Dr. Fried noted treating appellant
since July 26, 2013 and described her care. He stated that an FCE was completed on
November 4, 2013 which indicated that she could work at a strict sedentary level and that she
could not perform any regular writing, pulling, pushing, gripping, keying, grasping, reaching,
overhead reaching, and could not perform her regular work duties. Dr. Fried added that
appellant showed the ability to see, speak, and interact but did not show a regular ability to
utilize her hands for regular work activities. He noted his review of Dr. Draper’s and
Dr. Simon’s reports and took issue with Dr. Simon’s conclusions. Dr. Fried indicated that
appellant could not perform the duties of the modified position but could return to work using a
headset for the telephone and voice-activated software but could not perform any work with her
hands. He continued to submit reports reiterating his findings and conclusions.
On March 20, 2014 an OWCP hearing representative affirmed the October 9, 2013
decision. The hearing representative found that the weight of the medical evidence rested with
the Dr. Simon who rendered an impartial opinion, and found that cervical radiculopathy and
brachial plexopathy were not causally related to employment factors.4
On April 23, 2014 a second OWCP hearing representative affirmed the November 8,
2013 decision. The hearing representative found that the weight of the medical evidence rested
with Dr. Simon, the impartial specialist, and found that OWCP met its burden to terminate
appellant’s monetary benefits on the grounds that she refused an offer of suitable work.
LEGAL PRECEDENT -- ISSUE 1
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
4

The Board notes that the March 20, 2014 decision contains a typographical error on the first page, indicating
that a November 8, 2013 decision was affirmed. A careful reading of the March 20, 2014 decision clearly indicates
that the October 9, 2013 decision was affirmed by the hearing representative.
5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

relationship between the diagnosed condition and the specific employment factors identified by
the employee.6 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.7
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.8 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.9 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.10
ANALYSIS -- ISSUE 1
As a preliminary matter, the Board finds that the statements of accepted facts provided to
Drs. Draper and Simon, dated January 29 and May 30, 2013 respectively, did not include
incorrect information. Appellant maintained that they included incorrect information because
they stated that she worked eight hours daily when she typically worked additional hours each
day. A careful reading of the statements, however, merely includes a description of the
requirements of her claims examiner position. Moreover, while appellant was permitted to work
a flexible schedule, the statements also include her assertion that she worked more than eight
hours daily. The Board further finds that OWCP did not pose leading questions to Dr. Draper,
who provided a second-opinion evaluation for OWCP. After receiving his initial February 22,
2013 report, OWCP noted that it contained inconsistencies and asked him specific questions
about items in his report and to clarify his restrictions. The Board finds these questions
necessary and therefore appropriate.11
The Board also finds that appellant did not meet her burden of proof to establish that the
conditions of cervical radiculopathy and brachial plexopathy were caused by her job duties. In
May 2013, OWCP determined that a conflict in medical opinion had been created between the
opinions of Dr. Fried and Dr. Draper regarding the conditions caused by appellant’s work and
regarding her ability to work, and on June 3, 2013 referred her to Dr. Simon for an impartial
6

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

7

Dennis M. Mascarenas, 49 ECAB 215 (1997).

8

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

9

20 C.F.R. § 10.321.

10

V.G., 59 ECAB 635 (2008).

11

See D.R., Docket No. 12-1441 (issued February 13, 2013).

9

evaluation. In a comprehensive report dated July 6, 2013, Dr. Simon advised that, because
appellant reported that her symptoms increased after she stopped work, this indicated that the
symptoms were subjective. He added that the cervical MRI scan findings indicated degenerative
disc disease, which was not caused by repetitive trauma at work but was rather a naturally
progressive disease, and that any increase in symptoms would be due to the degenerative disc
disease of the cervical spine. Dr. Simon noted his review of Dr. Draper’s reports and indicated
that the diagnoses of cervical and bilateral trapezius strains could not be due to work-related
incidents as they would heal in a matter of weeks. He described appellant’s complaints and
noted that on physical examination she complained of pain in cervical and shoulder range of
motion, but that range of motion of the elbows and wrists was normal, including normal motion
in radial and ulnar deviation. Dr. Simon found no measurable atrophy of the arms and she had
good bilateral grip strength and intact sensation. He found no tenderness to palpation over the
normal entrapment site in the right forearm. Spinal examination revealed no involuntary
paravertebral muscle spasm. Dr. Simon concluded that, based on physical and neurologic
examinations, and examination of the 900-page plus medical record, appellant had degenerative
disc disease in the cervical spine and subjective symptoms compatible with mild cervical
radiculopathy involving the right upper extremity which were not supported by objective testing.
He found no basis on which to attribute these conditions to her work. Dr. Simon agreed with
Dr. Draper regarding appellant’s work status and indicated that she could perform the duties of
the mentoring job which she had previously done.
The additional medical evidence submitted in response to Dr. Simon’s report is
insufficient to overcome the weight accorded to him as an impartial medical specialist regarding
this issue. While Dr. Fried submitted additional reports, he had been on one side of the conflict
in medical opinion regarding whether additional diagnoses were employment related. Reports
from a physician who was on one side of a medical conflict that an impartial specialist resolved,
are generally insufficient to overcome the weight accorded the opinion of the impartial physician
or to create a new conflict.12 Appellant also submitted a May 21, 2013 report in which
Dr. Valentino merely diagnosed carpal tunnel syndrome and lesion of the radial nerve.
Dr. Valentino did not indicate that she had cervical radiculopathy and brachial plexopathy.
The Board therefore concludes that Dr. Simon’s opinion that appellant did not have the
conditions of cervical radiculopathy and brachial plexopathy is entitled to the special weight
accorded an impartial medical examiner.13 The additional medical evidence submitted is
insufficient to overcome the weight accorded him as an impartial medical specialist regarding
this issue. Appellant therefore did not meet her burden of proof to establish that these conditions
were causally related to employment duties as a claims examiner.
LEGAL PRECEDENT -- ISSUE 2
Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”14
12

Jaja K. Asaramo, 55 ECAB 200 (2004).

13

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

14

5 U.S.C. § 8106(c).

10

It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.15 The implementing regulations provide
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.16 To justify termination, OWCP must show that the
work offered was suitable and that appellant was informed of the consequences of his or her
refusal to accept such employment.17 In determining what constitutes “suitable work” for a
particular disabled employee, OWCP considers the employee’s current physical limitations,
whether the work is available within the employee’s demonstrated commuting area, the
employee’s qualifications to perform such work and other relevant factors.18 The issue of
whether an employee has the physical ability to perform a modified position offered by the
employing establishment is primarily a medical question that must be resolved by medical
evidence.19 OWCP’s procedures state that acceptable reasons for refusing an offered position
include withdrawal of the offer or medical evidence of inability to do the work or travel to the
job.20
ANALYSIS -- ISSUE 2
The Board finds that OWCP met its burden of proof in terminating appellant’s wage-loss
compensation on the grounds that she refused an offer of suitable work. The accepted conditions
in this case are bilateral carpal tunnel syndrome and bilateral radial tunnel syndrome. Appellant
refused the offered position and asserted that she could not perform its duties and also claimed
that she had a disabling consequential injury to her left hand that OWCP did not address. In
September 2013, she maintained that symptoms in her left hand had been gradually increasing
due to overuse because she was limited by loss of use of her right hand. OWCP has not issued a
decision on the issue of whether appellant sustained a consequential left hand injury, and the
Board’s jurisdiction extends only to the review of final decisions by OWCP.21 However, in a
suitable work determination, OWCP must consider preexisting and subsequently acquired
medical conditions.22

15

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

16

20 C.F.R. § 10.517(a).

17

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
18

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

19

Gayle Harris, 52 ECAB 319 (2001).

20

Federal (FECA) Procedure Manual, Part -- 2 Claims, Reemployment: Determining Wage-Earning Capacity,
Refusal of Job Offer, Chapter 2.814.5 (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
21

20 C.F.R. § 501.2(c).

22

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

11

The Board finds that, in his July 6, 2013 report, Dr. Simon provided thorough physical
examination findings, advising that appellant had good bilateral grip strength and normal
sensation. Dr. Simon agreed with the restrictions provided by Dr. Draper who advised that she
could work eight hours daily with restrictions that she not lift more than 20 pounds occasionally
and 10 pounds frequently. Reaching above the shoulder was limited to 1 hour, and computer use
should not exceed four hours in an eight-hour workday. Dr. Simon did not indicate that the
restrictions were solely due to the accepted conditions.
The modified position offered to appellant was within these restrictions. It limited
repetitive wrist and elbow movements, fine manipulations and simple grasping, including using
the keyboard and mouse, to four hours daily. Reaching above the shoulder was limited to 15
minutes, with a five-pound weight restriction.
As noted above, in situations where there are opposing medical reports of virtually equal
weight and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight.23 Dr. Fried first reported left overuse
problems on May 9, 2013, before Dr. Simon’s examination in July. While he advised that
appellant could not perform the duties of the modified position because she could not perform
any work with her hands, as noted above, reports from a physician who was on one side of a
medical conflict that an impartial specialist resolved, are generally insufficient to overcome the
weight accorded the opinion of the impartial physician or to create a new conflict.24
The Board finds that, as Dr. Simon provided a comprehensive, well-rationalized opinion
in which he provided physical examination findings that indicated that appellant could work
eight hours a day with the above restrictions, his opinion is entitled to the special weight
accorded an impartial examiner and constitutes the weight of the medical evidence.25
There is also no evidence of a procedural defect in this case as OWCP provided appellant
with proper notice. Appellant was offered a suitable position by the employing establishment
and the offer was refused. Thus, under section 8106(c) of FECA, appellant’s monetary
compensation was properly terminated effective November 16, 2013 on the grounds that she
refused an offer of suitable employment.26
OWCP therefore met its burden of proof to terminate appellant’s wage-loss compensation
on the grounds that she refused an offer of suitable work.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
23

Supra note 10.

24

Supra note 12.

25

Supra note 10.

26

Supra note 15.

12

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective November 16, 2013 pursuant to section 8106(c) of FECA. The Board
further finds that she did not establish that her cervical radiculopathy and brachial plexopathy
conditions are casually related to employment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 23 and March 20, 2014 are affirmed.
Issued: December 24, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13


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

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1499
Issued: November 8, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 9, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 27, 2007 denying wage-loss
compensation from December 3, 2006 to January 3, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established any employment-related disability
commencing December 3, 2006.
FACTUAL HISTORY
On March 27, 2006 appellant, then a 37-year-old fire protection inspector, filed a
traumatic injury claim (Form CA-1) alleging that on March 22, 2006 he sustained injury to his
side and middle of the back when he slipped and fell onto a cart holding computer equipment.
The Office accepted the claim for lumbar and sacroiliac strain. Appellant returned to work full
time in a light-duty position.

The attending physician, Dr. Jacob Salomon, a surgeon, indicated in an October 30, 2006
note that appellant was unable to work from October 30 to November 15, 2006. He listed, “Back
disc herniation [and] plantar fasciitis.”
On December 22, 2006 appellant filed a claim for compensation (Form CA-7). The
specific period claimed is illegible but the beginning month was December 2006 to sometime in
January 2007. The claim form indicated that appellant had stopped work on October 30, 2006
and had begun using leave without pay as of December 3, 2006. In a note dated January 9, 2007,
Dr. Salomon indicated that appellant would be disabled from January 9 to March 1, 2007. He
stated, “Herniated lumbar disc [with] radiculopathy.”
By letter dated January 23, 2007, the Office requested that appellant submit additional
evidence. In a report dated February 2, 2007, Dr. Salomon stated that appellant had returned to
work, following the March 22, 2006 lumbar strain, but he was standing and walking at work
from April to October 2006 and experienced bilateral heel pain. He reported that appellant was
diagnosed with bilateral plantar fasciitis “and is being treated for this as well as his chronic back
pain, which is due to aggravation of herniated lumbar discs.” Dr. Salomon concluded that
plantar fasciitis should be an accepted work-related condition. In a separate report dated
February 2, 2007, he reported bilateral sacroiliac pain and muscle spasm, with the mechanism of
causation described as “direct trauma to back.” Dr. Salomon indicated that a magnetic resonance
imaging scan revealed herniated lumbar discs. He opined that, due to back muscle spasm,
bilateral leg pain and heel pain appellant was totally disabled from December 3, 2006 to
January 11, 2007.
In a decision dated February 27, 2007, the Office stated that appellant had claimed
compensation on the Form CA-7 from December 3, 2006 to January 3, 2007. The Office denied
the claim on the grounds that the medical evidence was not sufficient to establish an
employment-related disability for this period.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.2 The term disability is defined as the incapacity because of an employment injury to earn
the wages the employee was receiving at the time of the injury, i.e., a physical impairment
resulting in loss of wage-earning capacity.3
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
1

5 U.S.C. §§ 8101-8193.

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).

2

reliable, probative and substantial medical evidence.4 Causal relationship is a medical issue and
the medical evidence required to establish causal relationship is rationalized medical evidence.5
Rationalized medical evidence is medical evidence which includes a physician’s rationalized
medical opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6 Neither the fact that a disease or condition manifests itself during a
period of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.7
ANALYSIS
The Office’s February 27, 2007 decision was limited to a claim for compensation for the
period December 3, 2006 to January 3, 2007. The Board notes that the record does not contain a
medical report on or about December 3, 2006. On January 9, 2007 Dr. Salomon briefly reported
that appellant was currently disabled due a herniated disc with radiculopathy. A herniated disc is
not an accepted condition in this claim and Dr. Salomon provided no opinion on the causal
relationship of the disc with the March 22, 2006 employment injury.
In the February 22, 2007 reports, Dr. Salomon opined that appellant was disabled from
December 3, 2006 to January 11, 2007. He did not, however, provide a rationalized opinion on
causal relationship between disability for this period and the March 22, 2006 employment injury.
Dr. Salomon referred to back muscle spasms and leg pain without providing a proper medical
explanation, based on a complete factual and medical background, as to how the findings are
causally related to the March 22, 2006 employment injury. With respect to plantar fasciitis, he
did not provide a rationalized medical opinion on causal relationship. Dr. Salomon appeared to
indicate that he felt that it was due to standing and walking from April to October 2006. If
appellant is claiming a foot condition causally related to the light-duty job, this would be a claim
for a new injury.8 Dr. Salomon also stated that plantar fasciitis was due to aggravation of
herniated lumbar discs, without further explanation. As noted above, herniated discs have not
been established as causally related to the March 22, 2006 employment injury.

4

See Fereidoon Kharabi, 52 ECAB 291 (2001).

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

Dennis M. Mascarenas, 49 ECAB 215 (1997).

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(2) (May 1997).

3

The Board accordingly finds that the medical evidence is not sufficient to establish an
employment-related disability for the period December 3, 2006 to January 3, 2007.9 The Office
properly denied the claim for compensation in this case.
CONCLUSION
The evidence does not establish an employment-related disability for the period
December 3, 2006 to January 3, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 27, 2007 is affirmed.
Issued: November 8, 2007
Washington, DC

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

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

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

9

It is noted that the record indicated that appellant had stopped working on October 30, 2006, and continued to
remain off work after January 3, 2007. Any claim for compensation for wage loss during these periods would have
to be accompanied by rationalized medical evidence on causal relationship between disability and the employment
injury.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
JOHN F. KENNEDY INTERNATIONAL
AIRPORT, Jamaica, NY, Employer
__________________________________________

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

Docket No. 07-1655
Issued: December 17, 2007

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 June 6, 2007 appellant, through counsel, filed a timely appeal of the January 8, 2007
merit decision of an Office of Workers’ Compensation Programs’ hearing representative, which
affirmed the Office’s May 24, 2006 schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this schedule award case.
ISSUE
The issue is whether appellant has more than a 13 percent impairment of the left fourth
finger, for which he received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. In a January 18, 2006 order, the Board
set aside an Office hearing representative’s September 21, 2004 decision, which affirmed the
Office’s July 17, 2003 schedule award for a 13 percent permanent impairment of appellant’s left

fourth finger.1 The Board remanded the case to the Office for proper assemblage of the case
record as it did not contain an Office medical adviser’s July 11, 2003 memorandum which found
that appellant sustained a 13 percent impairment of the left fourth finger. The Board further
remanded the case for the Office to obtain clarification from Dr. Marcia Halpern, a Boardcertified orthopedic surgeon and impartial medical examiner, who, in a March 3, 2003 medical
report, referred to appellant’s left fifth finger while the Office granted him a schedule award for
permanent impairment of the left fourth finger. The facts and the history relevant to the present
issue are hereafter set forth.
On July 4, 1987 appellant, then a 55-year-old maintenance mechanic, filed a traumatic
injury claim. On July 1, 1987 he hurt his left elbow when his hand became caught between two
metal ladders as a bucket fell from the ladder. By letter dated August 10, 1987, the Office
accepted the claim for soft tissue injury and nerve damage to the left elbow and authorized left
ulnar nerve transposition which was performed on October 14, 1987.2 On June 20, 2001
appellant filed a claim for a schedule award. The Board found a conflict in the medical opinion
evidence between Dr. David Weiss, an attending Board-certified orthopedic surgeon, who opined
in a March 17, 2000 medical report that appellant sustained a 50 percent impairment of the left
upper extremity and a 32 percent impairment of the right upper extremity based on the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th
ed. 2001) and Dr. Richard H. Bennett, an Office referral physician, who opined in a February 25,
2002 report that appellant sustained a five percent impairment of the left arm based on the
A.M.A., Guides. Dr. Halpern’s March 3, 2003 impartial medical report reviewed the history of
appellant’s July 1, 1987 employment-related injuries and medical background. On physical
examination, she found that appellant had some residual numbness in his left fifth finger, but
otherwise he had an excellent recovery with no motor impairment. Dr. Halpern reported 50
percent reduction in pinprick in the left fifth finger only. Appellant had full range of motion of
the left elbow for pronation, supination, flexion and extension and no motor impairment.
Dr. Halpern opined that appellant had reached maximum medical improvement and that he had
no impairment of the left elbow. On July 11, 2003 the Office medical adviser determined that
Dr. Halpern’s March 3, 2003 finding that appellant had 50 percent numbness in the left little
finger as a residual of his accepted employment-related injury constituted a 13 percent
impairment of that finger for loss of sensation based on the A.M.A., Guides 448, Table 16-6.
Following the issuance of the Board’s January 18, 2006 order, the Office, by decision
dated May 24, 2006, found that appellant did not have more than a 13 percent impairment of the
left fourth finger based on the Office medical adviser’s July 11, 2003 opinion.
By letter dated May 30, 2006, appellant, through counsel, requested an oral hearing
before an Office hearing representative.
In a decision dated January 8, 2007, a hearing representative affirmed the May 24, 2006
decision. She found that appellant had no more than a 13 percent impairment of the left fourth
finger based on the Office medical adviser’s July 11, 2003 opinion.
1

Docket No. 05-552 (issued January 18, 2006).

2

Appellant retired from the employing establishment on December 31, 1999.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.5 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.6
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.7
ANALYSIS
The Board finds that the Office properly determined that a conflict in the medical opinion
evidence arose between Dr. Weiss, an attending physician, and Dr. Bennett, an Office referral
physician, as to the extent of permanent impairment of appellant’s left upper extremity due to his
employment-related soft tissue injury and nerve damage to the left elbow. Dr. Weiss opined that
appellant sustained a 50 percent impairment of the left upper extremity and a 32 percent
impairment of the right upper extremity based on the A.M.A., Guides. Dr. Bennett opined that
appellant sustained a five percent impairment of the left arm based on the A.M.A., Guides.
The Office referred appellant to Dr. Halpern, selected as the impartial medical specialist.
In a March 3, 2003 report, Dr. Halpern found that appellant had some residual numbness in the
left fifth finger but had otherwise excellent recovery with no motor impairment on examination.
She reported 50 percent reduction in pinprick in the left fifth finger only. Appellant had full
range of motion of the left elbow for pronation, supination, flexion and extension and no motor
impairment. Dr. Halpern opined that he had reached maximum medical improvement and he had
no impairment of the left elbow.
On July 11, 2003 an Office medical adviser reviewed Dr. Halpern’s March 3, 2003
findings and determined that 50 percent numbness in appellant’s left little finger as a residual of
his accepted July 1, 1987 employment-related injury constituted a 13 percent impairment of that
finger for loss of sensation based on the A.M.A., Guides 448, Table 16-6. The Board finds that
3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

20 C.F.R. § 10.404.

5

5 U.S.C. § 8107(c)(19).

6

20 C.F.R. § 10.404.

7

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

3

the Office medical adviser correctly referred to appellant’s left little finger as the fourth finger
although Dr. Halpern referred to this digit as the fifth finger. Section 8107(c) of the Act8 lists the
thumb and each of the fingers separately as a compensable member of the body. Thus,
appellant’s left little finger represents the fourth finger for schedule award purposes.9 The Office
medical adviser’s determination of appellant’s impairment was based on Dr. Halpern’s findings
and complies with the A.M.A., Guides. The Board finds that the medical adviser properly
concluded that appellant sustained a 13 percent impairment of the left fourth finger.
CONCLUSION
The Board finds that appellant has failed to establish that he has more than a 13 percent
impairment of the left fourth finger, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the January 8, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 17, 2007
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

8

5 U.S.C. § 8107(c)(6)-(7),(9)-(10), (12).

9

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Warwick, RI, Employer
__________________________________________

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

Docket No. 16-1243
Issued: January 25, 2017

Case Submitted on the Record

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

JURISDICTION
On May 25, 2016 appellant filed a timely appeal from a January 19, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision dated April 4, 2012 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in prior Board decisions are incorporated herein by reference. On January 14, 1992 appellant,
then a 49-year-old construction representative, sustained injuries to his neck and back when he
slipped on a wet dock at work. He stopped work on January 16, 1992 and did not return.
Effective August 9, 1992, appellant elected a disability retirement annuity from the Office of
Personnel Management (OPM). OWCP accepted the claim for cervical and lumbosacral sprains
and paid compensation benefits until the election of OPM benefits.
On February 27, 2006 appellant filed a claim for compensation (Form CA-7) for
disability commencing August 9, 1992. On January 5, 2007 he elected to receive wage-loss
compensation from OWCP retroactive to August 9, 1992, in lieu of OPM benefits. Appellant
asserted that his disability from work was due to his accepted condition.
On June 1, 2007 OWCP denied appellant’s claim for compensation due to insufficient
medical evidence to establish his claim. After a reconsideration request it conducted a merit
review, but denied modification of the claim on September 27, 2007. Appellant appealed to the
Board. On May 13, 2008 the Board issued an order remanding the case to OWCP for proper
assemblage of the record and a de novo decision as the case record was missing materials from
August 4, 1995 through December 14, 2004.3
After determining no records were missing, OWCP reissued its decision on December 1,
2008 denying wage-loss compensation commencing August 9, 1992. Appellant appealed to the
Board. By decision dated October 22, 2009, the Board affirmed the December 1, 2008 decision,
finding that appellant had not met his burden of proof to establish wage-loss compensation
beginning August 9, 1992.4
Appellant requested reconsideration. In decisions dated January 14, 2011 and April 4,
2012, OWCP reviewed the case on its merits and denied modification of the wage-loss
compensation determination. On October 26, 2012 appellant appealed the April 4, 2012 decision
to the Board. On December 20, 2012 the Board issued an order dismissing his appeal as it was
untimely filed and the Board lacked jurisdiction to review the appeal.5
On March 29, 2013 appellant requested reconsideration with OWCP of the April 4, 2012
decision. The request was received by OWCP on April 5, 2013. By decision dated May 8, 2013,
OWCP denied appellant’s request as it was untimely filed and failed to demonstrate clear
evidence of error. Appellant disagreed and again requested reconsideration. On August 14,
2

Docket No. 08-278 (issued May 13, 2008), Docket No. 09-519 (issued October 22, 2009), Docket No. 13-169
(issued December 20, 2012), Docket No. 14-132 (issued June 11, 2014), and Docket No. 15-0865 (issued
October 6, 2015).
3

Id.

4

Id.

5

Id.

2

2013 OWCP denied his request for reconsideration as it was untimely filed and failed to
demonstrate clear evidence of error. Appellant appealed to the Board. By decision dated
June 11, 2014, the Board affirmed the May 8 and August 14, 2013 OWCP decisions.6
Appellant again requested reconsideration on June 26, 2014. Evidence received in
support of this reconsideration request included a May 22, 2013 letter from the U.S. Postal
Service apologizing for delayed delivery of his reconsideration request mailed on March 29,
2013, and confirming delivery of that letter to an OWCP mailroom in London, Kentucky, on
April 4, 2013. Also submitted was a printout showing that appellant’s certified mail item was
delivered on April 4, 2013 in London, Kentucky, and a copy of correspondence between
appellant and the office of Senator Elizabeth Warren.
By decision dated September 29, 2014, OWCP denied appellant’s request for
reconsideration. It found that, while he had established that the March 29, 2013 request for
reconsideration was delivered to OWCP’s mailroom on April 4, 2013, it was not received by
OWCP’s district office until April 5, 2013, and was, therefore, untimely filed. OWCP further
found that appellant did not submit any relevant and pertinent new evidence with his most recent
reconsideration request that showed it erroneously applied or interpreted a specific point of law,
or advanced a relevant legal argument not previously considered. Appellant appealed to the
Board.
By decision dated October 6, 2015, the Board set aside OWCP’s September 29, 2014
decision and remanded the case for further review under the clear evidence of error standard.
The Board found that OWCP received appellant’s latest request for reconsideration on June 26,
2014, which was more than a year after the latest merit decision dated April 4, 2012. The Board
further found that OWCP applied the wrong standard of review to the untimely request for
reconsideration.7
By decision dated January 19, 2016, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of
error. It noted that he had not submitted any new evidence pertaining to the issue of his claim for
compensation since the last merit decision.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.8 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.9 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
6

Id.

7

Id.

8

This section provides in pertinent part: “[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.” 5 U.S.C. § 8128(a).
9

20 C.F.R. § 10.607.

3

sought.10 OWCP will consider an untimely request for reconsideration only if the request
demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit
decision.”11 The request must establish on its face that such decision was erroneous.12 To
demonstrate clear evidence of error, a claimant must submit evidence relevant to the issue that
was decided by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be
positive, precise, and explicit and it must be apparent on its face that OWCP committed an error.
See Leona N. Travis, 43 ECAB 227 (1991). It is not enough to merely show that the evidence
could be construed to produce a contrary conclusion. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence submitted must
not only be of sufficient probative value to create a conflict in medical opinion or establish a
clear procedural error, but must be of sufficient probative value to prima facie shift the weight of
the evidence in favor of the claimant and raise a substantial question as to the correctness of
OWCP’s decision. Thankamma Mathews, 44 ECAB 765, 770 (1993). Where a request is
untimely and fails to present any clear evidence of error, OWCP will deny the request for
reconsideration without reopening the case for a review on the merits.13
ANALYSIS
The last merit decision of record is dated April 4, 2012. When the case was last on
appeal, the Board determined that appellant’s latest request for reconsideration, which OWCP
received on June 26, 2014 was untimely pursuant to 20 C.F.R. § 10.607(a), and therefore, subject
to the clear evidence of error standard.14 Since the Board’s prior decision, appellant has failed to
present any additional evidence or argument that would warrant revisiting the issue of whether
the current June 26, 2014 request for reconsideration was timely filed. Accordingly, the Board
shall focus on whether appellant demonstrated clear evidence of error with respect to OWCP’s
latest merit decision denying appellant’s claim for wage-loss compensation commencing
August 9, 1992.
In his June 26, 2014 request for reconsideration, appellant focused exclusively on the
timeliness issue and did not articulate any particular basis for awarding wage-loss compensation
retroactive to August 9, 1992. OWCP subsequently received August 12, 2014 correspondence
between appellant and his U.S. Senator. This information, however, is not relevant to the issue
of whether OWCP erred in denying appellant’s claim for wage-loss compensation commencing

10

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(February 2016). Timeliness is determined by the document receipt date of the request for reconsideration as
indicated by the “received date” in the Integrated Federal Employees’ Compensation System (iFECS). Id. at
Chapter 2.1602.4b.
11

Id. at § 10.607(b).

12

Id.

13

Id. at § 10.608(b).

14

See supra note 9.

4

August 9, 1992. Thus, the evidence of record is insufficient to demonstrate clear evidence of
error with respect to OWCP’s April 4, 2012 decision.
On appeal, appellant argues that OWCP completely overlooked the legislation and
regulations for disability annuitants, which he alleges establishes that he had not recovered or
been restored to earning capacity by OPM. His argument does not demonstrate clear evidence of
error as the legal criteria for OPM disability benefits does not similarly control one’s eligibility
for FECA wage-loss compensation.15 Accordingly, the Board finds that OWCP properly denied
appellant’s request for reconsideration as it was untimely filed and failed to demonstrate clear
evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the January 19, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2017
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

15

An employee’s rights and remedies under other statutory authority do not establish entitlement to benefits
under FECA. See J.F., 59 ECAB 331, 339 (2008).

5