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

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Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0806
Issued: September 15, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 28, 2017 counsel filed a timely appeal from a February 6, 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 has met his burden of proof to establish total disability for
the period May 21, 2014 to June 25, 2016, causally related to accepted cervical disc herniations
and a lumbar sprain.
FACTUAL HISTORY
OWCP accepted that on September 23, 1997 appellant, then a 35-year-old custodian,
twisted when dismounting a riding lawnmower, causing a lumbar sprain and aggravation of a
preexisting L5-S1 disc herniation.3 It paid appellant wage-loss compensation for total disability
causally related to the injury and surgical recovery.
Appellant underwent a repeat L5-S1 laminectomy and discectomy on
November 10, 1997. OWCP paid wage-loss compensation for temporary total disability through
January 11, 1998. Appellant returned to limited-duty work on January 12, 1998. He continued
to participate in prescribed physical therapy.
Dr. John W. Skubic, an attending orthopedic surgeon, found that appellant had attained
maximum medical improvement as of June 29, 1998. He released appellant to modified duty
with permanent restrictions against heavy lifting, frequent bending and stooping. Appellant
remained under medical care, and participated in periodic courses of physical therapy.
On June 14, 1999 Dr. Skubic performed a posterior L5-S1 interbody fusion with
placement of titanium mesh interdiscal prosthesis. OWCP issued compensation for wage-loss
compensation during appellant’s surgical recovery. Appellant returned to limited duty in
November 1999. Dr. Skubic opined that appellant attained maximum medical improvement as
of February 17, 2000, and would require permanent work restrictions against lifting over 40
pounds and repetitive bending or stooping. Appellant should also be allowed to sit or stand as
needed. Dr. Skubic reiterated these restrictions on March 15 and December 4, 2001.
Appellant subsequently filed two additional traumatic injury claims. Under File No.
xxxxxx673, OWCP accepted a cervical disc herniation, which occurred on March 3, 2003.
Under File No. xxxxxx680, it accepted a cervical disc herniation which occurred on
January 5, 2004.
Appellant continued to work modified duty as a laborer/custodian, with periodic
absences, through 2006 and continuing.
On April 1, 2008 appellant underwent removal of the L5-S1 fixation devices, complete
bilateral L5 laminectomy, partial L4 laminectomies, bilateral L4-5 nerve root decompression,
L4-5 discectomy, and an interbody fusion with screw fixation.

3

Appellant had previously undergone an L5-S1 laminectomy and discectomy on December 27, 1996. Following
a course of physical therapy, he had returned to full-duty work in February 1997.

2

Appellant was separated from the employing establishment as of October 23, 2008. The
claim remained dormant from August 6, 2008, when the employing establishment advised
OWCP that appellant had been “sent to prison for eight years on a felony conviction.” On
May 8, 2015 counsel inquired about the status of the claim.4
In letters dated July 22 and November 3, 2015, and January 8, 2016, counsel requested an
update on the status of appellant’s claim. OWCP responded by March 1, 2016 letter, noting that
appellant was incarcerated beginning in 2008 for an eight-year sentence, during which his wageloss compensation was not payable.5 It requested that counsel submit additional information
regarding the specific period of incarceration, and whether appellant was convicted of a felony.
Counsel responded on March 2, 2016 with documents from a state corrections agency,
demonstrating that appellant had been convicted of a felony, and was incarcerated beginning
March 26, 2008 for an indefinite period.
In a March 8, 2016 letter, OWCP notified appellant of the additional evidence needed to
reopen his claim for medical benefits, including a report from his attending physician explaining
how and why the accepted lumbar sprain and aggravation of an L5-S1 disc herniation would
continue to require treatment. It explained that there were substantial gaps in the medical record,
including from November 2006 to March 2008 and from September 6, 2013 onward. OWCP
afforded appellant 30 days to submit additional evidence.
Counsel responded by March 21, 2016 letter that appellant was incarcerated from
December 2006 to March 2008, corresponding to the lack of evidence for this period noted by
OWCP. She submitted additional evidence.
Beginning in November 2013, appellant received medication in a methadone clinic
Dr. N. Hashemi, an attending pain specialist, described medication management in reports dated
from November 15, 2013 through May 20, 2014.
Dr. Joel R. Finman, an attending Board-certified family practitioner, noted on January 12,
2015 that appellant’s lumbar pain remained unchanged. He used a wheelchair much of the time.
Dr. Finman diagnosed chronic back pain and prescribed medication.6
In an October 15, 2015 report, Dr. Marc Suffis, a physician Board-certified in emergency
medicine, noted appellant’s history of cervical and lumbar injuries and surgeries. He related that
appellant had been treated while incarcerated during the previous eight years. Dr. Suffis
diagnosed “[c]ervical and lumbar herniations with persistent pain complaints.”

4

Appellant submitted documents reflecting that on April 1, 2011 he underwent replacement of a neurostimulator
in the right posterior hip region. He also underwent subsequent revision/replacement procedures on June 29, 2012
and January 29, 2013.
5

5 U.S.C. § 8148.

6

June 11, 2015 cervical spine x-rays showed status post C6-7 fusion with anterior plate and screw fixation.
June 13, 2015 lumbar x-rays showed postsurgical changes from L4 to S1, with fixation hardware intact.

3

On April 15, 2016 OWCP reopened appellant’s claim for medical treatment of the
accepted lumbar sprain and aggravation of L5-S1 disc herniation, and doubled appellant’s claims
for cervical injuries into the present claim.7
On May 31, 2016 appellant filed a claim for compensation (Form CA-7) for the period
May 21, 2014 through June 25, 2016. He submitted additional evidence.
Dr. Swastik Sinha, an attending Board-certified orthopedic surgeon, provided April 22
and June 30, 2016 reports noting appellant’s history of cervical and lumbar injuries and surgery.
He diagnosed a lumbar sprain, displaced lumbar disc, cervical stenosis, cervical radiculopathy,
and cervical disc degeneration.8
In May 6 and June 30, 2016 reports, Dr. Yong Zhu, an attending rheumatologist, noted
appellant’s complaints of lumbar pain. He diagnosed a lumbar sprain, chronic pain, low back
pain, and a displaced lumbar intervertebral disc. Appellant also submitted reports from a
physician assistant.
On July 12, 2016 OWCP authorized peripheral nerve block injections.
In a July 15, 2016 letter, OWCP notified appellant of the additional evidence needed to
establish his claim for total disability from May 21, 2014 through June 25, 2016. It explained
that the medical reports dated from March 11 through June 17, 2016 did not establish that he was
disabled from work due to the accepted lumbar injury. OWCP also requested that appellant
explain whether he was employed or in receipt of any monetary benefits at any time from
May 21, 2014 through June 25, 2016. It afforded him 30 days to submit additional evidence.
In response, counsel submitted a September 30, 2016 letter, noting that appellant was
incarcerated from December 29, 2006 through May 21, 2014. She asserted that the appropriate
issue was whether he established a recurrence of disability, and not his May 31, 2016 claim for
compensation (Form CA-7). Counsel provided additional reports from Dr. Zhu dated from
July 14 to September 15, 2016, noting his administration of a series of sacral branch blocks with
good symptomatic relief.
By decision dated February 6, 2017, OWCP denied appellant’s claim for wage-loss
compensation for the period May 21, 2014 to June 25, 2016, finding that the medical evidence of
record did not provide a sufficient statement of medical reasoning, supported by objective
clinical findings, supporting that his accepted lumbar and cervical spine injuries rendered him
disabled from work for the claimed period.

7

In an April 20, 2016 letter, counsel requested clarification of which claims had been doubled. OWCP responded
by April 27, 2016 letter, confirming that File No. xxxxxx673 and File No. xxxxxx680 had been doubled under the
present claim, File No. xxxxxx845. In a May 25, 2016 letter, counsel requested clarification of medical
reimbursement procedures and diagnosis codes.
8

April 22, 2016 lumbar spine x-rays showed postoperative changes, degenerative disc disease, and osteopenia. A
June 2, 2016 computerized tomography (CT) scan showing postsurgical changes, and mild bilateral neural foraminal
narrowing.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.9 Under FECA, the term
disability is defined as an inability, due to an employment injury, to earn the wages the employee
was receiving at the time of the injury, i.e., an impairment resulting in loss of wage-earning
capacity.10 For each period of disability claimed, the employee has the burden of proof to
establish that he or she was disabled from work as a result of the accepted employment injury.11
Whether a particular injury causes an employee to become disabled from work and the duration
of that disability are medical issues that must be proved by a preponderance of probative and
reliable medical opinion evidence.12
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his disability and
entitlement to compensation.13
ANALYSIS
OWCP accepted under File No. xxxxxx845 that appellant sustained a lumbar sprain and
aggravation of an L5-S1 disc herniation on September 23, 1997. It doubled the present claim
with his accepted claims for a March 3, 2003 cervical disc herniation sustained on March 3,
2003, and a second cervical disc herniation occurring on January 5, 2004 under File No.
xxxxxx680.
On May 31, 2016 appellant filed a claim for compensation (Form CA-7) for the period
May 21, 2014 through June 25, 2016. He has the burden of establishing by the weight of the
substantial, reliable, and probative evidence that he was totally disabled for work for the claimed
period due to the accepted injuries.14
In support of his claim, appellant submitted reports from several physicians.
Dr. Hashemi, an attending pain specialist, provided medication management from November 15,
2013 through May 20, 2014. Dr. Finman, an attending Board-certified family practitioner,
diagnosed chronic back pain on January 12, 2015. Dr. Suffis, a physician Board-certified in
emergency medicine, provided an October 15, 2015 report generally noting appellant’s history of
cervical and lumbar spine injuries and surgeries. Dr. Sinha, an attending Board-certified
9

Joe D. Cameron, 41 ECAB 153 (1989).

10

See Prince E. Wallace, 52 ECAB 357 (2001).

11

Dennis J. Balogh, 52 ECAB 232 (2001).

12

Gary J. Watling, 52 ECAB 278 (2001).

13

Fereidoon Kharabi, 52 ECAB 291 (2001).

14

Alfredo Rodriguez, 47 ECAB 437 (1996).

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orthopedic surgeon, provided April 22 and June 30, 2016 reports noting appellant’s history of
cervical and lumbar injuries and surgery. He diagnosed a lumbar sprain, displaced lumbar disc,
cervical stenosis, cervical radiculopathy, and cervical disc degeneration. Dr. Zhu, an attending
rheumatologist, administered a series of lumbar and sacral branch blocks from May 6 to
September 15, 2016.
None of the physicians of record specifically address any of the accepted injuries, or
whether they would disable appellant from performing the modified position he held as of
October 23, 2008, when he was separated from the employing establishment. As such their
opinions are therefore insufficient to meet appellant’s burden of proof.15
Appellant also submitted reports from a physician assistant. Physician assistants are not
considered physicians as defined by section 8101(2) of FECA.16 Therefore, these reports are of
no probative weight for the purposes of this case.17
The Board notes that OWCP advised appellant by July 15, 2016 letter of the type of
evidence needed to establish his claim, including his physician’s well-reasoned explanation of
how the accepted injuries disabled him for work for the dates claimed. However, appellant did
not submit such evidence. Therefore, OWCP’s February 6, 2017 decision denying his claim for
total disability compensation from May 21, 2014 to June 25, 2016 is proper under the law and
facts of the case.
On appeal counsel alleges that OWCP failed to “adjudicate the claim presented” and did
not review the medical evidence or her correspondence. The Board notes that in its February 6,
2017 decision, OWCP adjudicated appellant’s May 31, 2016 claim for compensation (Form CA7) for the period May 21, 2014 through June 25, 2016. OWCP thus adjudicated the claim
presented. It also reviewed counsel’s letters and the evidence submitted. OWCP explained why
these documents failed to meet appellant’s burden of proof. Counsel also requests that the Board
perform a merit review of the claim.
Appellant may submit additional evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he was
totally disabled from work for the period May 21, 2014 to June 25, 2016, causally related to
accepted cervical disc herniation and a lumbar sprain.

15

Supra note 13.

16

5 U.S.C. § 8101(2).

17

J.M., 58 ECAB 303 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 6, 2017 is affirmed.
Issued: September 15, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Dallas, TX, Employer
__________________________________________

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

Docket No. 16-1433
Issued: October 4, 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 June 26, 2016 appellant filed a timely appeal from a December 29, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from OWCP’s last merit decision, dated September 26, 2014, to the filing of this appeal,

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 December 29, 2015, the date of OWCP’s last decision, was
Sunday, June 26, 2016. As the appeal deadline fell on a weekend, the 180-day filing period is extended to the close
of the next business day; Monday, June 27, 2016. 20 C.F.R. § 501.3(f)(2). Because using June 30, 2016, the date
the appeal was received by the Clerk of the Appellate Boards, would result in the loss of appeal rights, the date of
the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is June 26, 2016,
rendering the appeal timely filed. 20 C.F.R. § 501.3(f)(1).

pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this claim.3
ISSUE
The issue is whether OWCP properly denied appellant’s October 1, 2015 request for
reconsideration finding that it was untimely filed and failed to demonstrate clear evidence of
error.
FACTUAL HISTORY
This case has previously been before the Board.4 On December 22, 2005 appellant, then
a 49-year-old lead transportation security screener, sustained an injury in the performance of
duty. She was attempting to move a bin from behind a screener to prevent her from falling over
the bin. As appellant leaned across the machine exit ramp, she was hit by the next bag exiting
the machine. The bag struck her right upper arm/shoulder. OWCP initially accepted appellant’s
traumatic injury claim (Form CA-1) for right shoulder sprain/strain, cervical sprain/strain, and
displaced cervical intervertebral disc in OWCP File No. xxxxxx192. The claim was
subsequently expanded to include right shoulder adhesive capsulitis, right shoulder osteoarthritis,
brachial neuritis/radiculitis, and lumbar spinal stenosis. Appellant also sustained a work-related
injury on March 22, 2006, which OWCP accepted for neck sprain, bilateral upper arm/shoulder
sprain, and bilateral rotator cuff sprain under OWCP File No. xxxxxx511.5
On June 12, 2008 appellant underwent OWCP-approved right shoulder arthroscopy. She
received wage-loss compensation for temporary total disability. OWCP placed her on the
periodic compensation rolls effective July 6, 2008. On October 30, 2008 appellant underwent
left shoulder arthroscopy.
On February 3, 2009 appellant returned to work in a part-time limited-duty capacity. She
worked four hours per day and OWCP paid her for four hours of wage-loss compensation per
day. OWCP also paid intermittent wage-loss compensation for medical appointments and
physical therapy. Appellant’s then treating physician, Dr. Karen M. Perl, continued to find her
capable of performing limited-duty work.6

2

5 U.S.C. § 8101 et seq.

3

The record on appeal contains evidence received after OWCP issued its December 29, 2015 decision. The
Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Thus, the Board is precluded from reviewing this evidence. 20 C.F.R. § 501.2(c)(1).
4

Docket No. 10-2113 (issued July 6, 2011) (the Board affirmed in part and set aside in part OWCP’s July 13,
2010 overpayment determination).
5

OWCP administratively combined OWCP File No. xxxxxx511 with OWCP File No. xxxxxx192, and
designated OWCP File No. xxxxxx192 as the master file.
6

Dr. Perl specializes in pain medicine, as well as physical medicine and rehabilitation.

2

On June 1, 2010 appellant returned to work full time with restrictions in the position of
lead transportation security officer.
On August 11, 2010 appellant rejected a limited-duty assignment as a lead transportation
security officer set to begin August 15, 2010. She stopped work on August 17, 2010.
In an August 18, 2010 letter, the employing establishment requested that OWCP
determine the suitability of the offered employment position. It noted that the only change from
the limited-duty assignment that was issued on April 18, 2010, which appellant signed on June 1,
2010, was the shift/hours of duty which were changed due to operational needs.
By letter dated September 17, 2010, OWCP notified appellant that the duties and physical
requirements of the offered position were suitable and in accordance with her medical limitations
provided by Dr. Perl in her report of January 19, 2010, and that the position remained available
to her.7 Appellant was notified that if she failed to report to work or failed to demonstrate that
the failure was justified, pursuant to 5 U.S.C. § 8106(c)(2), her right to compensation for wageloss compensation and schedule award benefits would be terminated. She was afforded 30 days
to respond.
In response, appellant submitted an October 14, 2010 letter in which she alleged that she
did not “abandon” her job. Rather, she alleged that she was told to sign out and leave. Medical
reports, diagnostic tests, and physical therapy notes were also submitted along with a request to
authorize Dr. Perl as appellant’s treating physician, which OWCP previously approved.
In a February 18, 2011 letter, OWCP evaluated the evidence submitted by appellant and
indicated that she had not provided a valid reason for refusing to accept the offered positon.
Appellant was afforded 15 additional days to accept the position or her entitlement to wage-loss
compensation and schedule award benefits would be terminated.
On March 7, 2011 the employing establishment confirmed that the offered position was
still available and that appellant had yet to return to work.
By decision dated March 8, 2011, OWCP terminated appellant’s wage-loss compensation
and schedule award benefits, effective August 17, 2010, as she refused suitable work. It found
that none of the reasons she provided or the medical evidence submitted were considered valid
reasons or probative evidence to support her abandonment of suitable work.
On February 27, 2012 OWCP received appellant’s February 20, 2012 request for
reconsideration by her then-representative, along with additional evidence.
By decision dated May 25, 2012, OWCP denied modification of its March 8, 2011
decision. It found that the weight of the medical evidence established that, at the time the job
offer was made, appellant was capable of performing the modified position. Further, when
appellant was notified of the position’s suitability on September 17, 2010, she had the burden of
proof to show that her refusal to work in the offered position was justified.
7

In her January 19, 2010 report, Dr. Perl released appellant to work full time and light duty with restrictions.

3

On May 10, 2013 OWCP received appellant’s appeal request form dated May 2, 2013
requesting reconsideration along with additional medical evidence.
By decision dated May 23, 2013, OWCP denied modification of its May 25, 2012
decision. It noted that the medical evidence of record indicated that at the time of the decision
appellant was successfully working in the offered light-duty position for over two months when
she stopped working. There was no rationalized medical evidence to support a material change
in her condition during the period in question.
On January 8, 2014 OWCP expanded appellant’s claim to include right shoulder adhesive
capsulitis, right shoulder osteoarthritis, brachial neuritis/radiculitis, and lumbar spinal stenosis.
On May 22, 2014 appellant’s representative, requested reconsideration and submitted
additional evidence.
By decision dated September 26, 2014, OWCP denied modification of its May 23, 2013
decision. It noted that any change in appellant’s stated work limitations or deterioration of a
medical condition after the March 8, 2011 decision terminating compensation under section
8106(c)(2) would not have any effect on the prior decision.
On October 1, 2015 OWCP received appellant’s September 24, 2015 request for
reconsideration. Appellant submitted the appeal request form that accompanied OWCP’s
September 26, 2014 decision. In a separate letter, also dated September 24, 2015, she argued
that OWCP relied upon the records from Dr. Perl in finding the position suitable, but appellant
had not been seen by Dr. Perl for nearly eight months from the time of OWCP’s 30-day letter.
Appellant also noted that she had requested in January 2010 to be released from Dr. Perl’s care,
which OWCP ultimately authorized in September 2010. She indicated that, in June 2014, the
Office of Personnel Management (OPM) approved her for disability.
Medical reports and diagnostic testing dated September 3, 2014 through December 9,
2015 were also received.
In a September 21, 2015 report, Dr. Ronnie D. Shade, a
Board-certified orthopedic surgeon, indicated that appellant stopped work on August 17, 2010
and he became her treating physician on September 20, 2010. He indicated that he had
recommended that she be off work because of cervical radicular symptoms with numbness and
tingling down her right shoulder and bilateral shoulder weakness. Dr. Shade indicated that, due
to bio-mechanics utilized by appellant’s arms, shoulders, and neck, she would be unable to
perform the job duties of a Travel Document Checker which consists of, but is not limited to,
reaching, pushing, pulling, and lifting. He noted that the findings contained in the June 24, 2010
electromyogram (EMG) and indicated that the testing showed that she suffered from
comprehensive neurological, musculoskeletal issues prior to her stopping work on
August 17, 2010. Dr. Shade opined, based on that EMG testing and his medical expertise, that
appellant was unable to perform the August 17, 2010 and March 21, 2011 job offers.
In progress reports of April 16, May 14, and November 25, 2015, Dr. Shade provided an
assessment of cervical herniated nucleus pulposus, multilevel (3) cervical spinal stenosis,
bilateral impingement syndrome -- surgically treated, right shoulder acromioclavicular
osteoarthritis, right rotator cuff tear, right shoulder adhesive capsulitis shoulder, left carpal tunnel

4

syndrome by EMG, depression/anxiety, and chronic pain syndrome. He indicated that appellant
had secondary emotional conditions directly related to her December 22, 2005 employment
injury and impeded her ability to recover. Dr. Shade also opined that she continued to require
mental and physical medical care as a result of the work-related injury which left her temporarily
totally disabled. He noted that the accepted conditions were still present and appellant would be
at risk to herself and to the employing establishment if she returned to work. Dr. Shade noted
that her medical disability retirement was pending. He further opined that OWCP File
No. xxxxxx511, for an accepted bilateral shoulder condition, should be reopened for appellant’s
left shoulder conditions. In a February 10, 2015 report, Dr. Shade opined that her accepted
conditions should be upgraded to include cervical radiculopathy and left shoulder impingement.
By decision dated December 29, 2015, OWCP denied appellant’s latest request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
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
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 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
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/her] own motion or on application.” 5 U.S.C. § 8128(a).
8

9

20 C.F.R. § 10.607.

10

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
11

Id. at § 10.607(b).

12

Id. 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 demonstrate
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).
13

20 C.F.R. § 10.608(b).

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ANALYSIS
The last merit decision in appellant’s claim was dated September 26, 2014. OWCP
denied modification of its prior decision finding that appellant refused an offer of suitable work.
Appellant had one year from the September 26, 2014 merit decision to timely request
reconsideration. The last day of the one-year filing period fell on a weekend. Therefore,
appellant had until Monday, September 28, 2015 to timely request reconsideration.14 Because
her request for reconsideration was not received by OWCP until October 1, 2015, it was
untimely filed. Consequently, appellant must demonstrate clear evidence of error on the part of
OWCP in terminating compensation pursuant to 5 U.S.C. § 8106(c)(2).15
The Board finds that appellant’s untimely request for reconsideration fails to demonstrate
clear evidence of error on the part of OWCP. On March 8, 2011 OWCP made a determination
that she had refused an offer of suitable work and terminated wage-loss compensation and
schedule award benefits, effective August 17, 2010. Subsequently, it denied multiple requests
for reconsideration of this decision, finding that the evidence was insufficient to modify the prior
termination of compensation benefits which occurred pursuant to 5 U.S.C. § 8106(c)(2).
In support of her October 1, 2015 request for reconsideration, appellant submitted
medical reports and diagnostic testing dated September 3, 2014 through December 9, 2015. In a
September 21, 2015 report, Dr. Shade noted that he became her treating physician on
September 20, 2010. He recommended that appellant be off work because of cervical radicular
symptoms with numbness and tingling down her right shoulder and bilateral shoulder weakness.
Dr. Shade indicated that, due to bio-mechanics utilized by her arms, shoulders, and neck, she
would be unable to perform the job duties of a travel document checker and that the June 24,
2010 EMG showed that she suffers from a comprehensive neurological, musculoskeletal issues
prior to her stopping work on August 17, 2010. He opined, based on that EMG testing and his
medical expertise, that appellant was unable to perform the August 17, 2010 and March 21, 2011
job offers.
While Dr. Shade’s report is generally supportive of appellant’s inability to work the
offered position, it does not demonstrate clear error on the part of OWCP in its suitable work
determination. It fails to raise a substantial question concerning the correctness of OWCP’s
decision at the time that it was issued.16 Dr. Shade’s progress reports, as well as the other
medical evidence and diagnostic testing submitted, also fail to raise a substantial question
concerning the correctness of OWCP’s decision at the time that it was issued.
To demonstrate clear evidence of error, it is not sufficient merely to show that the
evidence could be construed so as to produce a contrary conclusion. Clear evidence of error is
intended to represent a difficult standard. None of the evidence submitted manifests on its face
that OWCP committed an error in terminating appellant’s compensation for refusal of suitable
14

See supra note 10 at Chapter 2.1602.4 (February 2016).

15

Supra note 11; see Debra McDavid, 57 ECAB 149 (2005).

16

R.R., Docket No. 14-1272 (issued October 15, 2014).

6

work. Appellant has not otherwise submitted evidence of sufficient probative value to raise a
substantial question as to the correctness of OWCP’s determination. Thus, the evidence is
insufficient to demonstrate clear evidence of error.
Appellant argued that it was error to rely upon Dr. Perl’s opinion regarding her ability to
work as her report was at least eight months old when OWCP issued its 30-day letter regarding
job suitability. She indicated that, in January 2010, she requested authorization to change
treating physicians, which OWCP subsequently approved. Appellant also claimed that OWCP
had reprimanded Dr. Perl her handling of appellant’s case. The Board finds that appellant’s
complaints and arguments pertaining to OWCP’s determination that the offered job was suitable
based upon the report by Dr. Perl are insufficient to prima facie shift the weight and raise
fundamental questions as to the correctness of OWCP’s decision to terminate compensation
pursuant to 5 U.S.C. § 8106(c)(2).17
Appellant also argued before OWCP and on appeal that OWCP did not take into
consideration that OPM had rendered her medically disabled. As to her contentions regarding
disability determinations by OPM, the Board notes that findings of other administrative agencies
are not determinative of her level of disability under FECA. It is well established that decisions
of other federal agencies or governmental bodies are not dispositive to issues raised under
FECA. Decisions made by such tribunals are pursuant to different statutes, which have varying
standards for establishing eligibility for benefits.18 Accordingly, the Board finds that the
arguments and evidence submitted by appellant are insufficient 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.

17

F.K., Docket No. 08-0526 (issued August 18, 2008) (The Board found that since the new physician’s reports
offered no new evidence on the issue of whether OWCP properly terminated appellant’s compensation benefits
because the claimant refused an offer of suitable work, they were insufficient to raise a substantial question as to the
correctness of OWCP’s decision and did not demonstrate clear evidence of error).
18

A.C., Docket No. 11-1388 (issued January 5, 2012); Andrew Fullman, 57 ECAB 574 (2006).

7

ORDER
IT IS HEREBY ORDERED THAT the December 29, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 4, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Newark, NJ, Employer
__________________________________________

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Appearances:
Robert D. Campbell, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1089
Issued: November 13, 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 April 24, 2017 appellant, through counsel, filed a timely appeal from a November 2,
2016 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 has established an employment-related permanent
impairment of the lower extremities, warranting a schedule award.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
On January 29, 2008 appellant, then a 31-year-old, transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on January 12, 2008 she injured her back while
lifting a heavy bag. OWCP accepted the claim for lumbosacral sprain. It has not paid any wageloss compensation with respect to this claim.
An attending osteopath, Dr. Nicholas Diamond, opined in a February 11, 2009 report that
appellant lifted heavy baggage on January 12, 2008 and felt low back and leg pain. He
concluded that appellant had 23 percent bilateral lower extremity permanent impairment.4
Dr. Diamond found motor strength deficits from the hips affecting the lower extremities.
An OWCP medical adviser, Dr. Henry Magliato, a Board-certified orthopedic surgeon,
opined in a September 9, 2009 report that Dr. Diamond had not properly applied the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).5
Dr. Diamond submitted a January 26, 2010 report. He wrote that there was a
typographical error in his February 11, 2009 report, as the grade modifier for clinical studies
should be two, instead of one. Dr. Diamond also indicated that sensory and motor examinations
were used to determine the severity of deficits. He wrote that appellant had motor strength
deficits in the right hip flexors, adductors, and abductors, as well as motor strength deficit, as
well as left hip abductors and adductors.
By report dated February 20, 2010, another OWCP medical adviser, Dr. Andrew Merola,
a Board-certified orthopedic surgeon, opined that appellant had two percent right lower
extremity permanent impairment. He determined that the date of maximum medical
improvement (MMI) was February 11, 2009.
OWCP referred appellant for a second opinion examination. In a report dated July 15,
2010, Dr. Jerome Rosman, a Board-certified orthopedic surgeon, opined that appellant had
suffered a limited soft tissue injury and had no ratable permanent impairment. By report dated

3

Docket No. 13-1954 (issued September 5, 2014); Docket No. 12-0790 (issued September 12, 2012).

4

Appellant had a prior injury to the left shoulder and arm on August 9, 2006, and Dr. Diamond also found three
percent left upper extremity permanent impairment.
5

6th ed. 2009.

2

August 10, 2010, Dr. Merola concurred with Dr. Rosman that there was no ratable permanent
impairment.
By decision dated August 23, 2010, OWCP found appellant was not entitled to a schedule
award under 5 U.S.C. § 8107. It found the weight of the medical evidence did not establish
employment-related permanent impairment.
Appellant requested a hearing before an OWCP hearing representative on
September 17, 2010. By decision dated November 30, 2010, the hearing representative set aside
the August 23, 2010 OWCP decision. She found that a conflict existed between Drs. Rosman
and Diamond, and pursuant to 5 U.S.C. § 8123(a) a referral to an impartial specialist was
required.
OWCP selected Dr. Andrew Carollo, a Board-certified orthopedic surgeon, as an
impartial medical examiner. In a report dated February 16, 2011, Dr. Carollo provided results on
physical examination, including range of motion for the hips. He reported 100 degrees of hip
flexion for each hip, indicated that 120 degrees was normal, and also wrote that all range of
motion results were normal. Dr. Carollo opined that appellant had no permanent impairment of
her lower extremities under the A.M.A., Guides.
By decision dated March 18, 2011, OWCP found that appellant was not entitled to a
schedule award. It found the weight of the evidence was represented by the opinion of
Dr. Carollo.
On April 12, 2011 appellant requested a hearing before an OWCP hearing representative,
which was held on July 6, 2011. By decision dated August 23, 2011, the hearing representative
affirmed the March 18, 2011 OWCP decision. He found the medical evidence of record did not
establish employment-related permanent impairment of either lower extremity.
Appellant appealed to the Board. The Board set aside the August 23, 2011 OWCP
hearing representative decision by decision dated September 12, 2012.6 The Board noted that
Dr. Carollo had reported abnormal range of motion results for the hips, although he had
classified the results as normal. The Board found that the case should have been referred to an
OWCP medical adviser for review of Dr. Carollo’s report and for a determination of whether
clarification was required. Accordingly, the case was remanded to OWCP for further
development.
On return of the case record, OWCP requested that an OWCP medical adviser review
Dr. Carollo’s report and provide an opinion with respect to a permanent impairment under the
A.M.A., Guides. In a report dated October 16, 2012, the medical adviser, Dr. Harvey Seigel,
Board-certified in family practice, stated that Dr. Carollo found no weakness or atrophy, normal
reflexes, and normal sensation. He did not discuss hip range of motion. Dr. Seigel opined that
appellant had no permanent impairment in accordance with the A.M.A., Guides.

6

Docket No. 12-0790 (issued September 12, 2012).

3

By decision dated November 30, 2012, OWCP denied appellant’s claim for a schedule
award. On December 19, 2012 appellant requested a review of the written record. By decision
dated February 7, 2013, the hearing representative affirmed the November 30, 2012 decision. He
found that the weight of the medical evidence did not establish permanent impairment.
By decision dated September 5, 2014, the Board set aside the February 7, 2013 OWCP
decision.7 The Board found there remained an unresolved conflict as to whether permanent
impairment could be based on a loss of range of motion for the hips. OWCP was directed to
secure a probative report from Dr. Carollo on the issue.
On remand, OWCP sent Dr. Carollo an April 21, 2015 letter, requesting that he indicate
whether a permanent impairment based on loss of range of motion of the hips would be
appropriate. In a report dated May 19, 2015, Dr. Carollo indicated that his review of the
examination showed that range of motion for the left hip was within normal limits. He also
wrote that appellant had no complaints referable to either the left or right hip at the time of
examination.
By decision dated June 4, 2015, OWCP denied appellant’s claim for a schedule award. It
found the medical evidence from Dr. Carollo did not support an employment-related permanent
impairment based on the hips.
Appellant requested a review of the written record by an OWCP hearing representative
on July 2, 2015. In a decision dated December 17, 2015, the hearing representative set aside the
June 4, 2015 OWCP decision. She found OWCP had not obtained the necessary information
from Dr. Carollo to properly resolve the conflict. The hearing representative noted that
Dr. Carollo had found 100 degrees of hip flexion, and described the results as normal, but had
also indicated normal was 120 degrees. She indicated that Dr. Carollo should explain his
findings regarding range of motion, and whether any motion deficit was casually related to the
work injury.
In a letter dated March 14, 2016, OWCP requested an additional report from Dr. Carollo.
It asked Dr. Carollo to explain whether appellant’s current condition was employment related
and discuss the hip range of motion results.
In a report dated May 11, 2016, Dr. Carollo opined that he did not believe that any loss of
range of motion related to hip flexion was causally related to the work injury. He wrote that
there was no history of injury to the left hip. Dr. Carollo also indicated that some individuals
were more flexible than others, and in his opinion appellant’s flexion was within the normal
range of motion.
By decision dated June 14, 2016, OWCP again denied appellant’s claim for a schedule
award. It found that the medical evidence of record did not establish employment-related
permanent impairment.

7

Docket No. 13-1954 (issued September 5, 2014).

4

Appellant, through counsel, requested a review of the written record on July 8, 2016. By
decision dated November 2, 2016, the hearing representative affirmed the June 14, 2016
decision. He found the evidence from Dr. Carollo resolved the conflict in the medical evidence.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.8 Neither FECA nor its
implementing regulations provide for a schedule award for impairment to the back or to the body
as a whole.9 The back is specifically excluded from the definition of organ under FECA.10 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.11
Neither FECA nor its implementing regulations specify the manner in which the
percentage of impairment for a schedule award shall be determined. For consistent results and to
ensure equal justice for all claimants OWCP has adopted the A.M.A., Guides as the uniform
standard applicable to all claimants.12 For schedule awards after May 1, 2009, the permanent
impairment is evaluated under the sixth edition.13 The permanent impairment must be causally
related to an accepted employment injury.14
It is well established that when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict under 5 U.S.C. § 8123(a), the opinion of such specialist, if
sufficiently well rationalized and based on a proper factual and medical background, must be
given special weight.15

8

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
9

See N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

10

See 5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997).

11

Thomas J. Engelhart, 50 ECAB 319 (1999).

12

A. George Lampo, 45 ECAB 441 (1994).

13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
14

Rosa Whitfield Swain, 38 ECAB 368 (1987).

15

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

5

ANALYSIS
Appellant has an accepted lumbosacral sprain from a lifting incident at work on
January 12, 2008. She seeks a schedule award for permanent impairment of her lower
extremities under 5 U.S.C. § 8107.
The Board finds that the medical evidence of record indicates that the special weight of
the evidence does not establish employment-related permanent impairment, warranting a
schedule award.
As the Board noted on the prior appeals, there was a conflict between Dr. Diamond, an
attending physician, and Dr. Rosman, the second opinion physician, as to whether appellant had
an employment-related permanent impairment. Dr. Carollo, the impartial medical specialist,
opined in his February 16, 2011 report that there was no ratable permanent impairment under the
A.M.A., Guides. However, there remained an unresolved issue with respect to the hip range of
motion and a possible permanent impairment to a lower extremity. Dr. Carollo had provided
range of motion results for the right and left hip of 100 degrees flexion. While he described the
range of motion results as normal, under the A.M.A., Guides 100 degrees of flexion would be
considered a mild lower extremity impairment under Table 16-24 of the A.M.A., Guides.16
The history of injury provided in Dr. Diamond’s February 11, 2009 report noted that the
January 12, 2008 lifting employment-related injury caused low back pain radiating into the legs.
Hip pain was not specifically noted. The Board also notes that while Dr. Diamond had reported
motor strength deficit for both the right and left hips in his January 26, 2010 report, he did not
discuss causal relationship of appellant’s hip condition with the accepted employment injury.
The Board finds that the additional reports from Dr. Carollo clarify that he did not find
any limitation of hip range of motion to be causally related to the January 12, 2008 employment
injury. OWCP has not accepted a hip condition. The only accepted condition was a lumbosacral
sprain. Since the accepted condition was a lumbar sprain, the medical evidence must establish
that this condition caused the permanent impairment of the hips. The Board has previously
explained that the medical evidence must show that the employment injury contributed to the
permanent impairment for which schedule award compensation is alleged.17
As Dr. Carollo indicated in his May 19, 2015 report, there were no complaints referable
to either of appellant’s hips at the time of his examination on February 16, 2011. He also found
a lack of causal relationship with employment in his May 11, 2016 report, noting the lack of
history of a left hip injury. The Board finds that Dr. Carollo provided a rationalized medical
opinion on the lower extremity permanent impairment issues presented. He explained that with
respect to hip range of motion, any limitation was not employment related. The opinion was
based on a complete background and his examination. As noted above, the opinion of an
16

A.M.A., Guides 549, Table 16-24.

17

V.S., Docket No. 16-0464 (issued June 1, 2016). Appellant’s claim was accepted for lumbosacral strain. The
Board noted that the medical evidence of record did not explain how appellant’s employment-related soft-tissue
injury could cause permanent impairment of his lower extremities.

6

impartial medical specialist, if rationalized and based on a proper factual and medical
background, must be given special weight.18 The Board therefore finds that Dr. Carollo
represents the special weight of the medical evidence in this case.
Based on the evidence of record, appellant has not established employment-related
permanent impairment to a scheduled member or function of the body under 5 U.S.C. § 8107.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.19
CONCLUSION
The Board finds that appellant has not established employment-related permanent
impairment of the lower extremities, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 2, 2016 is affirmed.
Issued: November 13, 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

18

See also M.H., Docket No. 16-1428 (issued February 13, 2017).

19

See Linda T. Brown, 51 ECAB 115 (1999).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Fort Lee, VA,
Employer
__________________________________________

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Appearances:
Lorenzo W. Tijerina, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1287
Issued: October 10, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 24, 2017 appellant, through counsel, filed a timely appeal from a November 25,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision dated March 30, 2016 to the filing of this
appeal on March 24, 2017, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 4, 2015 appellant, then a 48-year-old sales store checker filed a traumatic injury
claim (Form CA-1) alleging that on March 6, 2015 she experienced excruciating pain in her right
shoulder and right biceps as a result of a pinched nerve and rotator cuff injury. She did not stop
work. On the reverse side of the claim forms, the supervisor controverted appellant’s claim on
the basis of fact of injury. He alleged that appellant had not stated how the alleged injury
occurred and had provided conflicting dates for the date of injury.
OWCP received various witness statements from coworkers including a March 3, 2015
statement from J.B., an April 7, 2015 statement from H.W., and an April 14, 2015 statement
from P.M. They indicated that on March 3, 2015 appellant was helping to remove items from
the freezer when she indicated that her right shoulder was hurting.
Appellant was initially treated in the emergency room. In a March 6, 2015 urgent care
record, a nurse indicated that appellant was treated for a right rotator cuff injury and could work
with restrictions of no use of her right arm, no lifting, no pushing, and no pulling until
April 6, 2015.
In March 12, 2015 check-out instruction sheet, Dr. Adrian Barron, an internist, diagnosed
appellant’s condition as rotator cuff tendinitis.
Brittany McCright, a physical therapist, provided a March 24, 2015 consultation report.
She noted a diagnosis of right acute rotator cuff shoulder sprain. Ms. McCright reported
physical examination findings of no effusion, edema, ecchymosis, or deformity and a diagnosis
of right shoulder impingement.
Appellant received treatment at the employee health unit. In an April 3, 2015 report,
Dr. Barron related that appellant was treated for steroid injection of her right shoulder. He
reviewed appellant’s history and reported positive impingement symptoms after a right rotator
cuff injury one month ago. Dr. Barron diagnosed right shoulder impingement. In a work status
note, he related that appellant could return to work on April 4, 2015 with restrictions of no lifting
over 10 pounds, no overhead movements, and no repetitive arm movements.
In a letter dated April 14, 2015, the employing establishment controverted appellant’s
claim. It asserted that there was a discrepancy regarding whether the alleged injury occurred on
March 3 or 6, 2015. The employing establishment also noted that, when appellant initially
helped remove groceries from the freezer, she had not mentioned any on-the-job injury.
By letter dated April 21, 2015, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested that she respond to the attached questionnaire to
establish that the employment incident occurred as alleged and to provide additional medical

2

evidence to establish that she sustained a diagnosed condition as a result of the alleged incident.
Appellant was afforded 30 days to submit the requested information.
In a May 17, 2015 statement, appellant related that on March 3, 2015 she was working at
the employing establishment when H.W. asked her to help remove merchandise from the freezer
and place them in carts. She noted that she worked for approximately two hours before her break
and another two hours after her break. Appellant indicated that the next day she was about to
place the tilt on the counter at work when she felt a sharp pain on her right shoulder. She
contended that her right shoulder pain was a result of the repetitive moving of frozen items from
the day before. Appellant sought treatment at the employing establishment’s employee health
unit. She also alleged that her supervisor gave her the “run-around” about filing a claim and did
not process the claim correctly.
By decision dated June 1, 2015, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish that the March 6, 2015 incident occurred as
alleged. It further determined that the medical evidence submitted was insufficient to establish a
diagnosed condition causally related to the employment incident.
On January 26, 2016 appellant, through counsel, requested reconsideration.
Appellant resubmitted the March 24, 2015 report from Ms. McCright which noted a
diagnosis of right acute rotator cuff shoulder sprain. She reviewed appellant’s history and
provided physical examination findings. Ms. McCright diagnosed right shoulder impingement.
In an August 27, 2015 work status note, Dr. Barron related that appellant could return to
work on August 8, 2015 with restrictions of no repetitive upper arm movements, no lifting over
10 pounds, and no overhead movements until October 1, 2015.
In a November 13, 2015 work status note, Matthew A. Froman, a certified physician
assistant, related that appellant was unable to return to work.
Dr. Patrick M. Simon, a Board-certified orthopedic surgeon, indicated in work status
notes dated October 14, November 30, and December 15, 2015 that appellant was unable to work
until her next appointment.
In a decision dated March 30, 2016, OWCP denied modification of the June 1, 2015
decision. It found that the evidence of record failed to establish that the March 6, 2015
employment incident occurred as appellant alleged.
On September 7, 2016 appellant, through counsel, again requested reconsideration.
In a September 1, 2016 letter, counsel requested a 30-day extension for appellant to
submit additional medical evidence and legal argument. No additional evidence was received by
OWCP.
By decision dated November 25, 2016, OWCP denied reconsideration of the merits of
appellant’s claim. It found that she had not shown that OWCP had met the requirements of 5
U.S.C. § 8128(a) sufficient to warrant merit review.

3

LEGAL PRECEDENT
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.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.6 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.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review of the claim.
Appellant alleged that she sustained a right shoulder injury as a result of a March 6, 2015
employment incident. In decisions dated June 1, 2015 and March 30, 2016, OWCP denied her
traumatic injury claim finding that the evidence of record was insufficient to establish that the
March 6, 2015 incident occurred as alleged. On September 7, 2016 it received appellant’s
request, through counsel, for reconsideration. By decision dated November 25, 2016, OWCP
denied further merit review of appellant’s case because no evidence was submitted on
reconsideration.
With his September 7, 2016 reconsideration request, counsel submitted a September 1,
2016 letter requesting a 30-day extension for appellant to submit additional medical evidence
and legal argument. OWCP, however, did not receive any additional evidence on the record.
The Board finds, therefore, that counsel offered no relevant legal argument which had not
previously been considered by OWCP, nor did he show that OWCP erroneously applied or

3

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

4

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
5

20 C.F.R. § 10.607(a).

6

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

7

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

4

interpreted a specific point of law, nor did he submit any relevant and pertinent new evidence in
support of appellant’s request for reconsideration.
The Board finds that, as appellant failed to meet the criteria enumerated under 20 C.F.R.
§ 10.606(b)(3), OWCP properly denied further merit review of her traumatic injury claim.8
On appeal counsel alleges that appellant incorrectly inputted March 6, 2015 as the date of
injury on the initial Form CA-1 but the actual date of injury was March 3, 2015. As noted above,
however, the only issue before the Board is whether OWCP properly denied further merit review
of appellant’s case in its November 25, 2016 decision. Counsel offered a new argument on
appeal. As the Board lacks jurisdiction to review the underlying merits of appellant’s claim, it
cannot review counsel’s arguments regarding appellant’s traumatic injury claim on appeal.9
CONCLUSION
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).

8

See A.M., Docket No. 16-0499 (issued June 28, 2016); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006); A.K., Docket No. 09-2032 (issued August 3, 2010) (when an application for reconsideration does not
meet at least one of the three requirements enumerated under section 10.606(b)(3), OWCP will deny the application
for reconsideration without reopening the case for a review of the merits).
9

See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the November 25, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 10, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Norfolk, VA, Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2324
Issued: March 25, 2008

Case Submitted on the Record

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

JURISDICTION
On September 12, 2007 appellant filed an appeal of an August 21, 2007 decision of the
Office of Workers’ Compensation Programs denying his occupational disease claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether the Office properly determined that appellant’s claim for
occupational hearing loss is barred by the applicable time limitation provisions of the Federal
Employees’ Compensation Act.
FACTUAL HISTORY
On August 7, 2006 appellant, then a 75-year-old former welder, filed an occupational
disease claim (Form CA-2) claiming that he sustained a bilateral hearing loss due to hazardous
noise exposure at work from February 7, 1977 to March 27, 1997. He attributed his condition to

working with pneumatic tools, air hammers, grinders and in close proximity to ventilation fans.1
Appellant noted that he wore earplugs. He stated that he first became aware of his hearing loss
and of its possible relationship to his federal employment on March 27, 1997. In an
accompanying form, appellant again stated that he was first aware of his hearing loss and its
relationship to his federal duties in 1997. He retired from the employing establishment on
May 2, 1997. Appellant noted that he had participated for years in rifle hunting but wore
appropriate hearing protection.
Appellant submitted annual employing establishment audiograms from February 1977 to
October 1978 and from May 1985 to May 1, 1997. The audiograms were obtained as part of a
hearing conservation program for hazardous noise exposure. Appellant asserted that these
audiograms established that the employing establishment had actual knowledge of his hearing
loss before he retired. Each of the audiograms from May 1985 onward demonstrates a ratable
hearing loss in the left ear.2 On May 1, 1997 the day before appellant retired, testing at the
frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 10, 10, 45 and 60
decibels on the left and 10, 10, 30 and 45 decibels on the right.
Appellant obtained an audiogram at a private audiology clinic on July 25, 2006. Testing
at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 20, 20, 50
and 60 decibels on the left and 15, 20, 35 and 55 decibels on the right.
In a September 11, 2006 report, S.E. Lewis, an audiologist working for the employing
establishment, opined that, as appellant had no significant change in audiograms from 1980 to
1997, any hearing loss was not work related. Dr. G.V. Blackwood, an osteopathic physician
working for the employing establishment, reviewed and concurred with Mr. Lewis’ report. He
stated that appellant had a work-related hearing loss at 4,000 cps on the left but that any other
changes were due to rifle hunting.
In a June 26, 2007 letter, the Office advised appellant that his claim appeared untimely
because he did not file within three years of March 27, 1997, the date he first became aware of
the possible relationship between his hearing loss and occupational noise exposure. The Office
afforded appellant 30 days to explain why he delayed in filing his claim.
By decision dated August 21, 2007, the Office denied appellant’s claim on the grounds
that it was not timely filed under the three-year time limitation at section 8122 of the Act. The
1

A January 18, 1989 job description notes that welders were exposed to constant noise and intermittent excessive
noise. In an October 18, 2006 letter, the Office requested that the employing establishment provide a history of
appellant’s occupational noise exposure. The record does not indicate if the employing establishment responded to
this request.
2

Under the Act, hearing loss impairments are determined by the average of the hearing levels at 500, 1,000, 2,000
and 3,000 cycles per second (cps). See American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001) 250. If the average is less than 25, the hearing impairment is not ratable. A February 2,
1977 fitness-for-duty audiogram was within normal limits. A May 10, 1985 audiogram showed the following
decibel losses in the left ear at the frequencies of 500, 1,000, 2,000 and 3,000 cps: 10, 10, 25 and 60 decibels. On
October 2, 1987 the decibel losses at those frequencies were 5, 5, 40 and 55 decibels respectively. On October 5,
1994 the decibel losses were 10, 5, 45 and 55 decibels. The annual audiograms indicated a progressive, nonratable
hearing loss in the right ear beginning in 1985.

2

Office found that appellant did not file his claim until August 7, 2006, more than three years
after March 27, 1997, the date he first became aware of the connection between the claimed
hearing loss and his federal employment. The Office further found that the evidence did not
establish that the employing establishment had actual notice of the hearing loss within 30 days of
the date of injury.
LEGAL PRECEDENT
Under section 8122 of the Act,3 as amended in 1974, a claimant has three years to file a
claim for compensation.4 In a case of occupational disease, the Board has held that the time for
filing a claim begins to run when the employee first becomes aware or reasonably should have
been aware, of a possible relationship between his condition and his employment. When an
employee becomes aware or reasonably should have been aware that he has a condition which
has been adversely affected by factors of his federal employment, such awareness is competent
to start the limitation period even though he does not know the nature of the impairment or
whether the ultimate result of such affect would be temporary or permanent.5 Where the
employee continues in the same employment after such awareness, the time limitation begins to
run on the date of his last exposure to the implicated factors.6 Section 8122 (b) provides that, in
latent disability cases the time limitation does not begin to run until the claimant is aware or by
the exercise of reasonable diligence, should have been aware, of the causal relationship between
his employment and the compensable disability.7
Even if the claim is not filed within the three-year period, it may be regarded as timely
under section 8122(a)(1) if appellant’s immediate supervisor had actual knowledge of his alleged
employment-related injury within 30 days such that the immediate superior was put reasonably
on notice of an on-the-job injury or death.8 In interpreting section 8122(a)(1) of the Act, the
Office procedure manual states that, if the employing establishment gives regular physical
examinations, which might have detected signs of illness, such as hearing tests, it should be
asked whether the results of such tests were positive for illness and whether the employee was
notified of the results.9 The Board has held that a program of annual audiometric examinations
conducted by an employing establishment in conjunction with an employee testing program for
hazardous noise exposure is sufficient to constructively establish actual knowledge of a hearing
3

5 U.S.C. § 8122.

4

Duet Brinson, 52 ECAB 168 (2000); William F. Dorson, 47 ECAB 253, 257 (1995); see 20 C.F.R. § 10.101(b).

5

Larry E. Young, 52 ECAB 264 (2001); Duet Brinson, supra note 4.

6

See Larry E. Young, supra note 5.

7

5 U.S.C. § 8122(b); Bennie L. McDonald, 49 ECAB 509, 514 (1998).

8

William C. Oakley, 56 ECAB 519 (2005); Duet Brinson, supra note 4; Delmont L. Thompson, 51 ECAB 155,
156 (1999).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6(c) (March 1993); L.C., 57 ECAB
___ (Docket No. 06-1190, issued September 18, 2006); Ralph L. Dill, 57 ECAB ___ (Docket No. 05-1620, issued
December 6, 2005).

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loss, such as to put the immediate supervisor on notice of an on-the-job-injury.10 A hearing loss
identified on such a test would constitute actual knowledge on the part of the agency of a
possible work injury.11
ANALYSIS
In this case, appellant stated on his claim form that he was aware of a relationship
between the claimed condition and his federal employment as of March 27, 1997. Under section
8122(b), the time limitation begins to run when appellant became aware of causal relationship,
or, if he continued to be exposed to noise after awareness, the date he is no longer exposed to
noise. Appellant retired from federal employment on May 2, 1997. Therefore, the three-yeartime limitation began to run on May 2, 1997. As appellant did not file his occupational disease
claim until August 7, 2006, the Board finds that it was not filed within the three-year-time period
under section 8122(b).
As set forth above, appellant’s claim would still be regarded as timely under section
8122(a)(1) of the Act if his immediate supervisor, another employing establishment official or
employing establishment physician or dispensary had actual knowledge of the injury within 30
days of his last exposure to noise, i.e., within 30 days of May 2, 1997.12 The Board finds that the
May 1, 1997 employing establishment audiogram is sufficient to establish actual knowledge of
the claimed hearing loss within 30 days of May 2, 1997. In the May 1, 1997 audiogram, testing
at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed the decibel losses of 10, 10,
45 and 60 decibels on the left and 10, 10, 30 and 45 decibels on the right. The ratable hearing
loss on the left13 constitutes actual knowledge by the employing establishment of a possible
work-related hearing loss within 30 days of May 2, 1997.14 Therefore, appellant’s hearing loss
claim is considered timely.
The case must, therefore, be remanded for the Office to address the merits of the claim.
After any further development as deemed necessary, the Office should issue an appropriate
decision.

10

James W. Beavers, 57 ECAB ___ (Docket No. 05-1603, issued December 7, 2005); Ralph L. Dill, supra
note 9.
11

See 5 U.S.C. § 8122(a)(1); Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801(3)
(March 1993); Ralph L. Dill, supra note 9; Larry E. Young, supra note 5; Roger D. Dicus, 56 ECAB 290 (2005).
12

See 5 U.S.C. § 8122(a)(1); Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.801(3); Ralph L. Dill,
supra note 9; Larry E. Young, supra note 5.
13

See A.M.A., Guides 250, supra note 2.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.8016(c) (March 1993); Ralph L. Dill,
supra note 9; Larry E. Young, supra note 5; Roger D. Dicus, supra note 11.

4

CONCLUSION
The Board finds that appellant’s claim for hearing loss was timely filed. The employing
establishment had actual knowledge of a possible work-related hearing loss within 30 days of
May 2, 1997 the date appellant was last exposed to hazardous noise at work.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 21, 2007 is reversed and the case remanded for further
development consistent with this opinion.
Issued: March 25, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
S.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CLEVELAND VETERANS ADMINISTRATION
MEDICAL CENTER, Brecksville, OH, Employer
____________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 08-2556
Issued: June 4, 2009

Case Submitted on the Record

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

JURISDICTION
On September 22, 2008 appellant filed a timely appeal from an August 6, 2008 merit
decision of the Office of Workers’ Compensation Programs’ Branch of Hearings and Review
denying modification of a February 27, 2008 merit decision. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3 the Board has jurisdiction over the merits of appellant’s claim.
ISSUE
The issue is whether appellant has established that she sustained a traumatic injury in the
performance of duty on November 7, 2007.
FACTUAL HISTORY
On November 23, 2007 appellant, a 61-year-old nurse, filed a traumatic injury claim
(Form CA-1) for a right knee injury on November 7, 2007. She attributed her injury to an
incident when, during routine nursing care, she experienced pain and swelling in her right knee
with attendant restriction in movement.

Appellant submitted a medical note dated November 20, 2007 signed by Steven J. Raab,
a physician’s assistant, who reported that appellant stated that she was unsure how she injured
herself, but noticed that her right knee was swollen and painful. She did not report it at the time
she noticed the swelling and pain as she was scheduled for wrist surgery. Appellant’s orthopedic
surgeon evaluated her knee following the wrist surgery and treated the knee with a steroid
injection.
Dr. Bruce T. Cohn, a Board-certified orthopedic surgeon, in a work capacity evaluation
dated December 10, 2007 diagnosed appellant with knee lateral and collateral sprains and strains.
In a subsequent medical report dated December 17, 2007, he reported that a weight bearing x-ray
revealed no fracture or dislocation. Dr. Cohn noted bone-on-bone changes involving the lateral
compartment of the right knee and some narrowing of the medial compartment of the left knee.
He recommended light-duty work for two weeks.
By report (Form CA-20), Dr. Cohn diagnosed appellant with possible meniscal tear and
exacerbation of osteoarthritis. Although he advised appellant that she could return to work, he
restricted her to four hours of light-duty work per day.
By letter dated December 27, 2007, the Office notified appellant it had received her
completed CA-1 and noted that additional information was necessary including a description of
the alleged incident occurring at work on November 7, 2007 and a medical report containing a
diagnosis and medical opinion causally relating the diagnosed condition and the work incident.
In a December 31, 2007 medical report, Dr. Cohn provided updated examination
findings. He renewed his diagnosis of sprain and strains of the knee lateral and collateral
ligament. Dr. Cohn also added right knee sprain, osteoarthrosis, localized lower leg. He also
noted a possible right knee medial meniscal tear, but that this diagnosis required a magnetic
resonance imaging (MRI) scan to confirm. There is no evidence of record indicating that an
MRI scan was conducted. Furthermore, in a January 28, 2008 medical report, Dr. Cohn
diagnosed appellant with right knee sprain/strain and recommended appellant undergo
arthroscopic surgery with partial medial and lateral menisectomy.
In a letter dated January 14, 2008, appellant provided additional information. She
advised that November 7, 2007 had been a hectic day at work. Appellant stated that she was
getting a patient ready for transport to x-ray when she felt a crunch and pain in her right knee.
She stated that she continued working, but her knee began to swell. Appellant mentioned the
incident to a few colleagues, but could not locate her supervisor and she could not report to the
health unit, as it had already closed for the day. She stated that she was scheduled for right wrist
surgery the next day, and she mentioned it to her physician at that time.
By decision dated February 7, 2008, the Office denied appellant’s claim because the
evidence of record was not sufficient to establish that she sustained an injury as defined by the
Federal Employees’ Compensation Act.
Appellant disagreed and requested an oral hearing.
By letter dated March 3, 2008, Dr. Cohn requested that the diagnosed conditions of
dislocation of knee, tear of medial/lateral cartilage and exacerbation of osteoarthritis “be allowed
2

on this workers’ compensation claim as I feel within a reasonable degree of medical certainty,
that these conditions are related to her injury of November 7, 2007.” Regarding appellant’s
history of injury Dr. Cohn explained as follows:
“Information was incorrectly documented in my chart for the initial visit for this
injury. She has told me about her knee problem the day before as we were
planning on surgery for her wrist. The accurate information is as follows.
[Appellant] injured her right knee while at work on November 7, 2007. At the
time she was assisting a patient in to a wheelchair and felt a crunch in her right
knee along with tightening. The knee started to swell and became very painful
This happened in the middle of the day and she continued to work because it was
very busy….”
And in a separate treatment report, Dr. Cohn diagnosed appellant with right knee sprain.
By letter dated May 5, 2008, the Office notified appellant that a hearing was scheduled
for June 10, 2008 at 8:30 am. It advised appellant and her representative to be present.
The hearing was held at which appellant and her attorney were present.
By decision dated August 6, 2008, affirmed the Office’s February 7, 2008 decision. The
Office’s hearing representative accepted that the evidence of record and appellant’s testimony
was sufficient to establish fact of injury. However, the hearing representative also found that the
medical evidence of record was insufficient to establish that appellant’s alleged injury was
causally related to an employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Act1 has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.2
Section 10.5(ee) of Office regulations defines a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.3 To determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must determine whether fact of injury is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
1

5 U.S.C. §§ 8101-8193.

2

Gary J. Watling, 52 ECAB 278 (2001).

3

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

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Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.4
Causal relationship is a medical issue, and the medical evidence opinion required to
establish a 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.6 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.7 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.8
ANALYSIS
The Office accepted that the incident occurred as alleged on November 7, 2007, that is
appellant felt a crunch and pain in her right knee while assisting a patient for transport to the xray department. The issue is whether the medical evidence of record establishes that appellant’s
knee condition is causally related to this employment-related incident. The Board finds the
medical evidence of record insufficient to establish that appellant’s knee condition is causally
related to factors of appellant’s employment or an employment-related event.
Mr. Raab’s report is of no probative value because health care providers such as nurses,
acupuncturists, physician’s assistants and physical therapists are not physicians under the Act.9
Because the opinions of layman have no evidentiary value in regard to a medical issue such as
the one involved in this case, Mr. Raab’s report is insufficient to meet appellant’s burden.10
The relevant medical evidence consists of notes and reports issued by Dr. Cohn. But
none of these reports and medical notes contains a rationalized medical opinion concerning the
4

Gary J. Watling, supra note 2.

5

M.W., 57 ECAB 710 (2006).

6

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

7

Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

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

9

5 U.S.C. § 8101(2); see also Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649
(1989); Jan A. White, 34 ECAB 515 (1983).
10

See William E. Enright, 31 ECAB 426 (1980).

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required causal relationship and, therefore, they are of little probative value. The Board has
consistently held that medical reports lacking a rationale on causal relationship have little
probative value.11 As noted above, a rationalized medical opinion is based on a complete factual
and medical background and is supported by medical rationale.12
Moreover, a physician’s opinion on the causal relationship between a claimant’s
disability and an employment injury is not dispositive simply because it is rendered by a
physician.13 The opinion of a physician supporting causal relationship must be based on a
complete and accurate medical and factual background, supported with affirmative evidence and
explained by medical rationale.14
While Dr. Cohn presented findings upon examination and stated a diagnosis, right knee
dislocation, with tear of the medial/lateral cartilage and exacerbation of osteoarthritis, he
proffered no rationalized medical reasoning or opinion concerning the causal relationship
between appellant’s right knee conditions and appellant’s federal employment-related incident.
Dr. Cohn failed to explain how physiologically the activity appellant performed while assisting a
patient ready for transport, would have caused the diagnosed conditions. He merely stated an
affirmative opinion regarding causal relationship. Therefore, Dr. Cohn’s medical reports and
notes are of limited probative value and are insufficient to satisfy appellant’s burden.
The fact that a disease or condition becomes apparent during a period of employment or
appellant’s belief that the disease or condition is caused or aggravated by the conditions of
employment is insufficient to establish causal relation.15 This is a medical issue. As there is no
rationalized medical evidence of record establishing that appellant’s right knee sprain was caused
or aggravated by her federal employment duties as alleged, the Board finds that she has failed to
meet her burden of proof.
CONCLUSION
The Board finds that appellant has not established that she sustained a traumatic injury in
the performance of duty on November 7, 2007.

11

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).
12

Froilan Negron Marrero, 33 ECAB 796 (1982).

13

Jean Culliton, 47 ECAB 728, 735 (1996).

14

Robert Broom, 55 ECAB 339 (2004); Patricia J. Glenn, 53 ECAB (2001).

15

See Neal C. Evins, 48 ECAB 252 (1996); Ronald M. Cokes, 46 ECAB 967 (1995). See also, Edgar G.
Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations do not, in the
opinion of the Board, constitute evidence of a sufficiently substantial nature).

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ORDER
IT IS HEREBY ORDERED THAT the August 6, 2008 decision of the Office of
Workers’ Compensation Programs’ Branch of Hearings and Review is affirmed.
Issued: June 4, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6