United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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DEPARTMENT OF JUSTICE, FEDERAL
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BUREAU OF INVESTIGATION, New York, NY, )
Employer
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__________________________________________ )
S.L., Appellant

Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0079
Issued: January 25, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 25, 2020 appellant, through counsel, filed a timely appeal from a June 8, 2020
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 an occupational
disease causally related to the accepted employment exposure.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On July 28, 2009 appellant, then a 40-year-old special agent, filed an occupational disease
claim (Form CA-2) alleging that he sustained hearing loss, tinnitus in the right ear, bronchitis,
dizziness, nausea, vomiting, inflammation of the nose and face, lesions, and insomnia causally
related to factors of his federal employment, including the exposure to mold. He did not stop work.
Appellant submitted mold analysis reports dated January 30, March 9, and April 8, 2009
from samples obtained at his work location. The results showed unusual mold growth associated
with excess moisture. An Environmental Relative Moldiness Index (ERMI) report dated June 4,
2009 provided a list of each type of mold found at appellant’s work location and the spore count.
In a report dated July 9, 2009, Dr. Jonathan E. Gage, a Board-certified internist and
cardiologist, noted that he had treated appellant for Meniere’s disease for several years and
discussed his treatment to remove toxins. He diagnosed an abnormal echocardiogram, shortness
of breath, chronic fatigue syndrome, and dizziness.
In a statement received by OWCP on August 10, 2009, appellant related that the ductwork
in his building had not been cleaned even though it had been “engulfed by the debris” from Ground
Zero. In April 2004 he began experiencing tinnitus, hearing loss, inflammation on the right side
of his face and nose, and lesions on his right thigh. In 2005 appellant experienced dizziness and
vertigo, and in May 2006 he began vomiting uncontrollably at work. He realized in January 2009
that the vents in his office were covered with black mold, which was confirmed by lab testing.
In a development letter dated August 14, 2009, OWCP advised appellant that the evidence
currently was insufficient to show that he had sustained an occupational injury. It notified him of
the type of additional evidence needed, including a reasoned report from his attending physician
addressing the causal relationship between any diagnosed condition and factors of his federal
employment. OWCP afforded appellant 30 days to submit the requested evidence.
In a December 23, 2009 development letter, OWCP requested that the employing
establishment provide comments from a knowledgeable supervisor regarding whether appellant
had been exposed to black mold or other harmful substances at work. It further requested a copy
of any available air samples or, if not available, a description of the ventilation and air circulation
in his work area.

3

Order Granting Remand and Cancelling Oral Argument, Docket No. 14-2062 (issued June 19, 2015).

2

By decision dated January 22, 2010, OWCP denied appellant’s occupational disease claim.
It noted that the employing establishment had not responded to its request for information
regarding his exposure to mold, and thus it had accepted his statement regarding mold exposure
as factual. OWCP found, however, that the medical evidence of record was insufficient to establish
a medical condition causally related to the accepted exposure.
In a report dated December 20, 2010, Dr. Ritchie C. Shoemaker, who specializes in family
medicine, discussed his treatment of appellant from May to October 2009. He advised that lab
work had revealed compounds in his blood that were linked to water-damaged buildings.
Dr. Shoemaker diagnosed chronic inflammatory response syndrome (CIRS) due to workplace
exposure. He advised that ERMI testing had confirmed fungal growth at appellant’s work location,
including stachybotrys. Dr. Shoemaker related that appellant’s illness resulted from “a rapidly
developing injury caused by exposure to toxigenic organisms, including, but not limited to,
toxigenic fungi and inflammagens” found in his work location.
On January 13, 2011 appellant requested reconsideration. 4
OWCP, on June 21, 2011, referred appellant to Dr. Howard Kaplan, an internist, for a
second opinion examination.
In a report dated July 7, 2011, Dr. Kaplan noted that Dr. Shoemaker had diagnosed CIRS
after evaluating appellant for hearing loss, tinnitus, bronchitis, dizziness, nausea, inflammation of
the nose, and sleep issues. He advised that CRIS was “not a codeable medical diagnosis but it is
an accepted medical syndrome that is normally seen after exposure to various mold and/or toxins
and inflammatory components.” Dr. Kaplan attributed appellant’s medical condition “not only to
mold but other inflammatory components related to mold to which he was exposed ” at his work
location. He attributed his dizziness and hearing loss on the right side directly related to mold
exposure at work, noting that the records showed high levels of mold and toxins in the samples
taken. In a July 28, 2011 addendum, Dr. Kaplan provided the applicable diagnosis codes for the
conditions of accidental poisoning, contact with hazardous substances, and contact with and
exposure to mold. In response to OWCP’s request for clarification of the diagnoses, on
September 8, 2011, he diagnosed cough, tinnitus, hearing loss not otherwise spec ified, and nausea.
On September 22, 2011 OWCP referred appellant to Dr. Varshapriya Iyer, a Boardcertified internist, for a second opinion examination. In a report dated November 1, 2011, Dr. Iyer
indicated that CIRS was not a recognized condition. She advised that appellant’s “auditory and
vestibular symptoms cannot be ascribed to mold exposure.”
OWCP noted that Dr. Iyer had not provided a narrative report. It thus referred appellant to
Dr. Alan Kaufman, Board-certified in allergy and immunology, for a second opinion examination.
In a report dated December 27, 2011, Dr. Kaufman advised that he was unaware of the
diagnosis of CIRS. He further opined that causation between appellant’s hearing loss and mold

4

Appellant submitted additional lab reports dated November 2009.

3

exposure was not established. Dr. Kaufman indicated that there were “no other medical conditions
attributed to mold exposure that have been diagnosed in the claimant.”
By decision dated January 11, 2012, OWCP denied modification of its January 22, 2010
decision.
In a report dated May 27, 2012, Dr. Shoemaker asserted that acute sensorineural hearing
loss was a “known complication of an inflammatory illness….” He advised that CIRS was a
chronic form of systemic inflammatory response syndrome (SIRS), which had a diagnosis code.
On December 27, 2012 appellant requested reconsideration.
On March 12, 2013 OWCP again referred appellant to Dr. Kaufman for a second opinion
examination.
In a report dated March 26, 2013, Dr. Kaufman opined that the etiology of Meniere disease
was unknown and unconnected to mold exposure. He asserted that recent studies showed no
adverse effects from mold exposure at work.
By decision dated April 22, 2013, OWCP denied modification of its January 11, 2012
decision.
In a report dated December 31, 2013, Dr. John Santilli, Board-certified in allergy and
immunology, discussed appellant’s symptoms of dizziness, tinnitus, hearing loss, fatigue,
difficulty with memory and focusing, anxiety, and depression beginning in 2003 after he was
transferred to a new work location. He noted that appellant’s symptoms temporarily improved in
2006 when he took medication. In October 2009 appellant’s symptoms resolved when he relocated
to a new work location. In June 2010 he returned to the former location and again experienced
dizziness, nausea, and vomiting. Dr. Santilli advised that allergy testing performed November 25,
2013 was positive for seven types of mold. He found that environmental testing at appellant’s
work location had revealed mold associated with excess moisture. Dr. Santilli noted that he
continued to experience nasal congestion, postnasal drip, ear pain, tinnitus, hearing loss, fatigue,
and difficulty with memory and focus. He related that appellant “suffers from symptoms
associated with allergic rhinitis, chronic sinusitis, and cognitive problems secondary to indoor
mold exposure” at the implicated work location. Dr. Santilli indicated that tinnitus, associated
hearing loss, vertigo, and Meniere’s disease had been associated with allergies.
On February 4, 2014 appellant requested reconsideration.
By decision dated May 1, 2014, OWCP denied modification of its April 22, 2013 decision.
Appellant appealed to the Board. By order dated June 19, 2015, the Board granted the
Director of OWCP’s motion to set aside the May 1, 2014 decision.5 The Board noted that the
Director asserted that a conflict existed between Dr. Shoemaker and Dr. Santilli, appellant’s
physicians, and Dr. Kaufman, the referral physician, regarding whether he had sustained a
5

Supra note 3.

4

diagnosed condition due to his accepted mold exposure in the course of his federal employment
and that, on remand, OWCP would refer him to an impartial medical examiner for resolution of
the conflict.
On March 14, 2016 OWCP referred appellant to Dr. Richard J. Lee, Board-certified in
allergy and immunology, for an independent medical evaluation.
In a report dated May 2, 2016, Dr. Lee discussed appellant’s symptoms of tinnitus,
dizziness, hearing loss, depression, anxiety, and fatigue when he was exposed to mold at his work
location, and his continued complaints of sinus congestion, hearing loss on one side, and tinnitus.
He diagnosed chronic rhinitis and tinnitus. Dr. Lee disagreed that appellant had chronic systemic
inflammatory syndrome, but found that his exposure to mold at work had caused “the development
of a chronic allergic condition.” He noted that 2013 mold testing by Dr. Santilli showed a “strong
positive skin responses to molds. This test was repeated at this visit and confirms those finding[s]
with a strong positive test to aspergillus.” Dr. Lee found that appellant had “documented IgE
disease to the mold and this is mostly likely secondary to the high level of exposure at the job site. ”
On November 7, 2016 OWCP referred appellant to Dr. Stanley Goldstein, Board-certified
in allergy and immunology, for an impartial medical examination. The statement of accepted facts
(SOAF) indicated that appellant had filed an occupational disease claim alleging mold exposure
at his work location and that mold testing had been performed at his building in 2009.
In a report dated August 28, 2018, Dr. Goldstein advised that CIRS was not a recognized
medical condition. He opined that tinnitus, hearing loss, Meniere’s disease, cognitive problems,
and chronic fatigue syndrome were unrelated to mold exposure. Dr. Goldstein found that exposure
to mold could contribute to the development of allergic rhinitis. He determined, however, that
appellant had no symptoms of allergic rhinitis at the time of his examination and advised that skin
testing performed on that date showed a negative response to mold. Dr. Goldstein further found
that a review of the medical evidence failed to establish that he had chronic rhinosinusitis and thus
determined that his mold exposure had not caused or aggravated the condition.
By decision dated January 31, 2019, OWCP again denied appellant’s occupational disease
claim, finding that he had not established a medical condition causally related to his accepted
employment-related mold exposure.
In a report dated August 27, 2019, Dr. Santilli noted his treatment of appellant from 2013
to 2018. He advised that appellant had positive skin test results to the molds alternaria, aspergillus,
cloadosporium, fusarium, mucor, phycomycetes, penicillium, and rhizopus. Dr. Santilli
challenged Dr. Goldstein’s assertion that exposure to mold did not contribute to Meniere’s disease,
hearing loss, or chronic fatigue syndrome, noting that it was currently unknown whether mold was
a factor in these conditions and that it thus could not be eliminated as a cause. He opined that mold
exposure had triggered appellant’s allergic rhinitis. Dr. Santilli related, “All of Dr. Goldstein’s
conclusions that mold exposure does not cause any medical problems are not backed up by any
medical references, and are, therefore, only his opinion and are not medically backed by current
research.” He diagnosed allergic rhinitis, chronic sinusitis, and reactive airways disease due to
appellant’s mold exposure at work. Dr. Santilli advised that skin tests supported his findings.

5

On January 10, 2020 appellant, through counsel, requested reconsideration. He advised
that photographs supported that appellant had a positive skin reaction to the allergy tests performed
by Dr. Goldstein, and that consequently Dr. Goldstein’s opinion was based on an inaccurate
medical history. Counsel also argued that Dr. Santilli was more qualified than Dr. Goldstein as he
was an expert in reactions to environmental pathogens.
By decision dated June 8, 2020, OWCP denied modification of its January 31, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 6 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
period of FECA, 7 that an injury was sustained while in the performance of duty as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury. 8 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 9
In an occupational disease claim, appellant’s burden of proof requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.10
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence. 11 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.12
6

Supra note 2.

7

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
8

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
9

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

11

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008).

12

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).

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Section 8123(a) of FECA provides, in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”13 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case. 14 Where a case is referred to an impartial medical
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based on a proper factual background, must be given special weight. 15
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP determined that a conflict arose between appellant’s physicians, Dr. Shoemaker
and Dr. Santilli, and OWCP’s referral physician, Dr. Kaufman, regarding whether appellant had
sustained a diagnosed condition due to his accepted employment-related mold exposure. In order
to resolve the conflict, it properly referred him, pursuant to section 8123(a) of FECA, to
Dr. Goldstein, a Board-certified allergist, for an impartial medical examination.
The Board notes that the SOAF provided to Dr. Goldstein was deficient in that it indicated
only that appellant claimed that he was exposed to mold at work. The SOAF did not specify that
OWCP had accepted his mold exposure or provide any exposure data, both of which are essential
elements of the SOAF under OWCP’s procedures. 16
Further, when a case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight. 17 The Board finds, however, that
Dr. Goldstein’s report is insufficiently rationalized to constitute the special weight of the evidence.
In a report dated August 28, 2018, Dr. Goldstein found that CIRS was not a recognized
diagnosed medical condition. He asserted tinnitus, hearing loss, Meniere ’s disease, cognitive
problems, and chronic fatigue syndrome were unrelated to mold exposure. Dr. Goldstein further
found that appellant had no symptoms of allergic rhinitis at the time of his examination. He noted
that skin testing performed on that date had demonstrated a negative response to mold.
Dr. Goldstein opined that the medical evidence failed to support the diagnosis of chronic
rhinosinusitis. The Board notes, however, that his opinion is conclusory in nature. 18 The Board
has held that to be entitled to special weight, the opinion of the impartial medical examiner (IME)
13

5 U.S.C. § 8123(a).

14

C.W., Docket No. 18-1536 (issued June 24, 2019).

15

V.K., Docket No. 18-1005 (issued February 1, 2019).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.5(f)
(September 2009).
17

Id.

18

See G.B., Docket No. 19-1510 (issued February 12, 2020).

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must contain clear, persuasive rationale on the critical issue in the claim. 19 Dr. Goldstein failed to
provide rationale for his opinion other than to note that appellant did not have positive mold test
results or symptoms of rhinitis at the time of his examination. 20 He did not explain the discrepancy
between the negative mold testing results he obtained and the positive skin tests for mold found in
2013 by Dr. Santilli and in 2016 by Dr. Lee, an OWCP referral physician. The Board has found
that, when an IME fails to provide medical reasoning to support his or her conclusions about a
claimant’s condition, the opinion is insufficient to resolve a conflict in medical evidence. 21 Thus,
the Board finds that Dr. Goldstein’s opinion is of insufficient probative value to carry the special
weight of the evidence. 22
The Board has held that, when OWCP obtains an opinion from an IME for the purpose of
resolving a conflict in the medical evidence and the IME’s opinion requires clarification or
elaboration, it must secure a supplemental report to correct the defect in his or her original report. 23
Upon return of the case record, OWCP shall prepare a SOAF setting forth appellant’s accepted
mold exposure in accordance with its procedures and obtain a supplemental report from
Dr. Goldstein clarifying whether appellant sustained a diagnosed condition due to his accepted
mold exposure. If the IME is unable to clarify or elaborate on his original report, or if the
supplemental report is also vague, speculative, or lacking in rationale, OWCP must submit the case
record and a detailed SOAF to another IME for the purpose of obtaining a rationalized medical
opinion on the issue. 24 Following this and other such further development as deemed necessary,
OWCP shall issue a de novo decision.25
CONCLUSION
The Board finds that this case is not in posture for decision.

19

C.T., Docket No. 19-0508 (issued September 5, 2019); A.R., Docket No. 17-1358 (issued February 1, 2018).

20

See T.S., Docket No. 18-1702 (issued October 4, 2019).

21

B.J., Docket No. 18-1186 (issued July 9, 2019); A.R., Docket No. 12-0443 (issued October 2, 2012).

22

S.A., Docket No. 18-1353 (issued May 22, 2020).

23

R.O., Docket No. 19-0885 (issued November 4, 2019); Talmadge Miller, 47 ECAB 673 (1996); see also supra
note 6 at Part 2 -- Claims, Developing and Evaluation Medical Evidence, Chapter 2.810.11(c)(1)-(2)
(September 2010).
24

Id.

25

V.K., Docket No. 19-0422 (issued June 10, 2020); Douglas M. McQuaid, 52 ECAB 382 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the June 8, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion of the Board.
Issued: January 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.C., Appellant
and
U.S. POSTAL SERVICE, NORTHERN
ILLINOIS PERFORMANCE CLUSTER,
Carol Stream, IL, Employer
__________________________________________

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

Docket No. 11-1561
Issued: February 15, 2012

Case Submitted on the Record

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

JURISDICTION
On June 21, 2011 appellant filed a timely appeal from the March 25, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) terminating her compensation.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met is burden of proof to terminate appellant’s wage-loss
compensation and medical benefits on the grounds that she ceased to have residuals of her work
injuries.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on March 11, 2001 appellant, then a 46-year-old general expeditor,
sustained a right wrist sprain, right hip contusion, cervical and lumbosacral strains and
contusions, cervical spondylosis and bulging discs at C3 through C7 due to a fall on ice at work.
Her claim was later expanded to include acceptance of a right knee medial meniscal tear with
arthroscopic repair surgery on December 5, 2003.2 Appellant stopped work on March 11, 2001
and was paid appropriate compensation. She returned to part-time work in April 2001 and
stopped work completely on May 11, 2001. Appellant returned to limited-duty full-time work in
November 2001 before stopping all work on May 7, 2002. She was paid disability compensation
beginning May 7, 2002 and was placed on the periodic rolls effective August 10, 2003.
On September 28, 2005 appellant underwent a second opinion examination with
Dr. Leonard Smith, a Board-certified orthopedic surgeon, who provided an October 26, 2005
report and a February 16, 2006 addendum report. Dr. Smith opined that her November 2, 1998
and March 11, 2001 work injuries had resolved and that any need for continued physical
restrictions was due to nonoccupational conditions.
On April 20, 2006 OWCP issued a notice of proposed termination of wage-loss
compensation and medical benefits on the basis that the weight of the medical evidence
demonstrated that appellant was no longer disabled on account of the accepted work injuries. It
found that the medical opinion of Dr. Smith held greater weight than the opinion of her
Board-certified internist, Dr. Karim Yunez, who found appellant totally disabled from all
employment.
On August 9, 2006 OWCP issued a final decision terminating all benefits effective that
date on the basis that appellant had no continuing work-related residuals or disability. After a
hearing and the submission of new medical evidence, an OWCP hearing representative issued a
January 25, 2007 decision that affirmed OWCP’s August 9, 2006 decision but found that the
submission of new medical evidence from Dr. Jacob Salomon, an attending Board-certified
general surgeon, created a conflict in medical opinion with the second opinion examiner.3 The
hearing representative directed OWCP to obtain an impartial medical examination in order to
resolve the conflict in medical opinion over whether appellant had a continuing work-related
condition that was disabling her from work.
On remand, OWCP referred appellant for an impartial medical examination with
Dr. Keith Rezin, a Board-certified orthopedic surgeon, who provided reports dated June 27 and
October 10, 2007. Based on Dr. Rezin’s opinion that her accepted conditions were no longer

2

Appellant had previously sustained a left elbow injury on November 2, 1998 when she was struck by a mail cart.
This claim was approved for a left elbow contusion and left elbow neuritis and it has been administratively
combined with the present case.
3

In a January 9, 2007 report, Dr. Salomon noted findings of traumatic arthritis in the right knee, positive Tinel’s
sign and tenderness at the left ulnar nerve and active disc bulges in the cervical spine. He stated that the accepted
contusion conditions had resolved, but opined that the work-related conditions of the right knee and cervical spine
were still active.

2

active and disabling her from work, OWCP issued a January 28, 2008 decision terminating all
ongoing benefits.
Following an oral hearing, an OWCP hearing representative issued an October 6, 2008
decision reversing the termination decision of January 28, 2008 on the grounds that Dr. Rezin’s
opinion could not be afforded special weight because it was not supported by sufficient medical
rationale. OWCP was directed to obtain a new impartial medical examination to resolve the
previously established conflict in medical opinion evidence and to determine whether appellant
had any continuing residuals due to her prior work injuries.
On remand, OWCP referred appellant to Dr. David H. Trotter, a Board-certified
orthopedic surgeon, for an impartial medical examination and opinion regarding whether she had
continuing work-related residuals.
In a December 4, 2008 report, Dr. Trotter opined that appellant no longer had residuals of
her November 2, 1998 and March 11, 2001 work injuries. He indicated that his physical
examination, prior medical tests and her mechanism of injury supported a finding that she no
longer had any continuing residuals or functionality deficit or disability attributable to either the
November 2, 1998 or March 11, 2001 work injury. Dr. Trotter also indicated that appellant
appeared to have been fully diagnosed and treated to complete resolution by the combination of
extensive medical and surgical intervention and therapy rendered on her behalf. He stated that
“there is no evidence of any residual or recurrent abnormalities attributable to the work injuries
noted above” and noted:
“[Appellant’s] current condition appeared to be exclusively attributable to
preexisting and ongoing degenerative abnormalities of the spine and extremity
joints and/or attributable to the conditions that predated both the workplace
injuries. These conditions do not appear to have been caused or chronically
aggravated whatsoever by the injuries sustained in March 2001 or
November 1998. Those injuries from March 2001 and November 1998 appeared
to have resolved in their entirety.... [Appellant] has no evidence that the bulging
disc at C3-7 was at all related to the injury dates. This individual’s current
conditions relate to preexistent or ongoing conditions and/or relate to plausible
and reported intervening injuries or conditions subsequent to the date of injury.”
By decision dated January 30, 2009, OWCP terminated appellant’s ongoing
compensation benefits on the basis that the weight of the medical evidence as represented by the
opinion of Dr. Trotter, the impartial medical specialist, demonstrated that she did not have any
continuing residuals from her work injuries.
Appellant requested a hearing before an OWCP hearing representative. In a
September 17, 2009 decision, the hearing representative set aside OWCP’s January 30, 2009
decision. He found that the opinion of Dr. Trotter was not sufficiently rationalized to constitute
the weight of the medical evidence with respect to the issue of her continuing work-related
residuals. The hearing representative remanded the case to OWCP for further development. He
directed OWCP to obtain copies of appellant’s magnetic resonance imaging (MRI) scan reports
and imaging films from her initial testing in 2001 or 2002 and from 2007 (for both the knees and

3

cervical spine) and to refer them to Dr. Trotter with a request that the impartial specialist submit
a supplemental report in which he provides additional explanation and rationale for why he
believed her current cervical disc condition was not causally related to the March 11, 2001 work
accident. Dr. Trotter was also directed to explain why he felt that her March 11, 2001 accident
did not aggravate what he felt was a preexisting degenerative bulging disc condition. The
hearing representative indicated that, in offering his opinion, Dr. Trotter should discuss whether
the mechanism of the March 11, 2001 work accident was sufficient or capable of directly causing
or aggravating a preexisting cervical condition and to also discuss the normal progression of
appellant’s preexisting cervical disease and whether her MRI scans over time revealed a
worsening of such a condition. With regard to her knee conditions, Dr. Trotter should review her
2007 MRI scan results and explain whether she had a tear present at the same location as the
prior meniscus tear for which surgery was performed in December 2003. The hearing
representative indicated that Dr. Trotter should also be requested to discuss the significance of
the degenerative conditions found at the time of her initial MRI scan of the right knee in relation
to her current knee problems. Dr. Trotter should discuss the probability or likelihood that
appellant developed left knee problems due to overcompensating for the prior right knee injury.
On remand, OWCP followed an OWCP hearing representative’s directives, including
requesting that Dr. Trotter prepare a supplemental report.4
In a December 29, 2009 report, Dr. Trotter noted that the x-rays and MRI scan testing
since 2001 showed what appeared to be exclusively degenerative changes of the spine. He stated
that the bulging discs noted on MRI scan testing were compatible with the preexistent and
nonmaterially affected degenerative changes that did not at all correlate with the mechanism of
the March 11, 2001 work injury. Dr. Trotter indicated that the March 11, 2001 work injury
mechanism did not aggravate what was likely a completely preexisting degenerative multilevel
bulging condition at the cervical disc. He stated that “had the original injury been sufficient to
have caused or even significantly aggravated what, in this evaluator’s opinion, was a completely
preexisting bulging natural wear and tear degenerative condition of the cervical spine at the level
of the disc, then there would have been a much more dramatic initial presentation of severity of
pain, essentially compatible with a severe cervical spine injury.”
Dr. Trotter stated that the normal progression of wear and tear at the level of the cervical
spine was the exclusive cause of the radiographic findings on the original MRI scan of the
cervical spine dated April 24, 2001. He stated that the normal progression of the exclusively
preexistent cervical disease appeared to have been the exclusive cause of the abnormalities of
multilevel degenerative disc disease noted on the April 30, 2007 MRI scan of the cervical spine.
Appellant’s MRI scans at that time reveal a minimal, but definite worsening of what appeared to
be a natural history of normal wear and tear of the cervical spine. Dr. Trotter stated that there
was no documentation or evidence that the current symptoms or examination findings were
causally related to the ongoing radiographic abnormalities of the multilevel cervical disc
abnormalities. Appellant’s subjective findings were markedly disproportionate to the objective
findings at the level of the cervical spine, which were minimal and, in any event, incompatible
with any symptomatic pain from the disc themselves.
4

OWCP ensured that Dr. Trotter had access to the relevant medical documents.

4

Regarding appellant’s knee condition, Dr. Trotter stated that, on reviewing the relevant
MRI scan findings, it appeared that the abnormalities at the level of the menisci were exclusively
attributable, especially at the level of the right knee, to the prior surgical intervention at the site
of meniscal debridement. Other findings that he observed, such as articular cartilage
abnormalities in the patellofemoral compartment and degenerative changes in the medial
compartment, were not located at the sites of the original work injuries. Dr. Trotter stated,
“Clearly, the only findings at the site of the original injury were at the medial meniscus and that
was an old finding that there was no evidence of repairs in that areas. The only additional
findings in the more recent MRI [scan testing] were those of articular cartilage abnormalities
distant from the original injury and unrelated to that original injury, i.e., a separate compartment.
Dr. Trotter indicated that he also reviewed the MRI scan of the contralateral left knee and
noted only minimal wear and tear degeneration of the medial meniscus and other aspects of the
medial compartment and the patellofemoral compartment compatible with wear and tear
degeneration. None of the findings appeared to have represented any type of findings that would
be at all unexpected and there was no evidence that appellant had any ongoing compensatory
stress placed on the left knee due to the injury to the right knee. Dr. Trotter indicated that
appellant had full diagnostic treatment with regard to the right knee and there was no evidence of
any residual or recurrent tear at the site of the prior injury or at any other location that was
causally related to the original work injury. He stated:
“[Appellant] has been noted to have, in this evaluator’s opinion, exclusively
degenerative changes of her left knee occurring in the areas that would have been
expected based on the natural history of 95 percent of all knees to have
degenerative changes in those specific areas. There is no evidence of any type of
surgeries that [she] has undergone or any injury to her right knee at all that has at
all caused directly or indirectly a tendency towards overloading or overuse of the
left knee at all.”
In a January 14, 2010 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits on the grounds that she ceased to have residuals of her work injuries. It
based its termination on the opinion of Dr. Trotter.
Appellant submitted numerous medical reports that had previously been submitted and
considered. She also submitted several new medical reports which discussed her current medical
condition.
In a March 25, 2011 decision, OWCP affirmed its January 14, 2010 termination decision.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.5 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
5

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

6

Id.

5

OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.7
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”8 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.9
ANALYSIS
OWCP accepted that on March 11, 2001 appellant sustained a right wrist sprain, right hip
contusion, cervical and lumbosacral strains and contusions, cervical spondylosis and bulging
discs at C3 through C7 due to a fall on ice at work. Appellant’s claim was later expanded to
include acceptance of a right knee medial meniscal tear with arthroscopic repair surgery on
December 5, 2003.10 In a January 14, 2010 decision, OWCP terminated her entitlement to wageloss compensation and medical benefits based on a December 29, 2009 report of Dr. Trotter, a
Board-certified orthopedic surgeon serving as an impartial medical specialist.
OWCP properly determined that there was a conflict in the medical opinion between
Dr. Smith, a Board-certified orthopedic surgeon serving as an OWCP referral physician, and
Dr. Salomon, an attending Board-certified general surgeon, on the issue of whether appellant
continued to have residuals of her employment injuries.11 In order to resolve the conflict, it
properly referred her, pursuant to section 8123(a) of FECA, to Dr. Trotter for an impartial
medical examination and an opinion on the matter.12
The Board finds that OWCP improperly found that the weight of the medical evidence
was represented by the December 29, 2009 report of Dr. Trotter, the impartial medical specialist
7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

5 U.S.C. § 8123(a).

9

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

10

Appellant had previously sustained a left elbow injury on November 2, 1998 when she was struck by a mail
cart. This claim was approved for a left elbow contusion and left elbow neuritis and it has been administratively
combined with the present case.
11

Dr. Smith provided an October 26, 2005 report and a February 16, 2006 addendum report. He opined that
appellant’s November 2, 1998 and March 11, 2001 work injuries had resolved and that any need for continued
physical restrictions was due to nonoccupational conditions. In contrast, Dr. Salomon indicated on January 9, 2007
that the work-related conditions of the right knee and cervical spine were still active.
12

See supra note 8 and accompanying text. OWCP had previously terminated appellant’s compensation based on
a December 4, 2008 report of Dr. Trotter. It later reversed this termination because it found that Dr. Trotter’s report
did not contain adequate medical rationale. In accordance with OWCP’s reversal, appellant was again referred to
Dr. Trotter for further clarification of his opinion.

6

selected to resolve the conflict in the medical opinion.13 The report of Dr. Trotter is not
sufficiently well rationalized to establish that appellant ceased to have residuals of her
employment injuries.
In his December 29, 2009 report, Dr. Trotter noted that the x-rays and MRI scan testing
since 2001 showed what appeared to be exclusively degenerative changes of the spine. He stated
that the bulging discs noted on MRI scan testing were compatible with the preexistent and
nonmaterially affected degenerative changes that did not at all correlate with the mechanism of
the March 11, 2001 work injury. Dr. Trotter indicated that the March 11, 2001 work injury
mechanism did not aggravate what was likely a completely preexisting degenerative multilevel
bulging condition at the cervical disc. He stated that, had the March 11, 2001 injury been
sufficient to cause the bulging cervical disc condition or even significantly aggravated a
preexisting bulging disc condition, appellant would have been a much more dramatic initial
presentation of severity of pain.
The Board finds that Dr. Trotter’s opinion is not based on a complete and accurate factual
and medical history and therefore it is of limited probative value regarding the question of
whether appellant continued to have work-related residuals, particularly residuals of her
March 11, 2001 work injury. It was accepted that appellant sustained bulging discs at C3
through C7 due to a fall on ice at work on March 11, 2001, but Dr. Trotter has categorically
denied that she sustained such an injury either through direct causation or aggravation of a
preexisting condition. Although Dr. Trotter discussed the relevant diagnostic testing, he did not
adequately explain the basis for his opinion. He suggested that appellant no longer had residuals
of her right wrist, right hip, lumbosacral, left elbow and right knee conditions, but he focused his
discussion on her right knee (along with the possibility of a consequential light knee injury) and
did not provide any notable discussion of the other areas affected by the work injuries. In
addition, Dr. Trotter did not provide any clear opinion on her ability to work or need for work
restrictions, either due to a work-related or nonwork-related cause.
For these reasons, Dr. Trotter’s December 29, 2009 report is of limited probative value
on the relevant issue of this case and OWCP improperly relied upon it to terminate appellant’s
compensation.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits on the grounds that she ceased to have residuals of
her work injuries.

13

See supra note 9 and accompanying text.

7

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 15, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 11-1985
Issued: May 18, 2012

Case Submitted on the Record

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

JURISDICTION
On August 29, 2011 appellant filed an appeal from a May 25, 2011 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.2
ISSUE
The issue is whether appellant established a left rotator cuff tear causally related to his
federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence for the first time on appeal. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore,
this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy, 47 ECAB
259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

On appeal appellant contends that OWCP accepted a prior claim for right rotator cuff tear
and argued that his current condition is a consequential injury resulting from the prior right
rotator cuff tear.
FACTUAL HISTORY
On March 16, 2011 appellant, then 53 years old, filed a claim for an occupational disease.
He listed the nature of his disease or illness as left shoulder rotator cuff tear, claiming it was a
consequential injury. When asked to explain the relationship to his employment, appellant
indicated that he had surgery on his right shoulder rotator cuff and consequently the left rotator
cuff now has a tear. In an accompanying statement, he indicated that in November 2010 his right
shoulder started to hurt. Appellant saw Dr. James C. Cohen, a Board-certified orthopedic
surgeon, who gave him a shot to relieve the pain in December 2010, but after three months the
pain was just as intense as before. He stated that a magnetic resonance imaging (MRI) scan
showed rotator cuff tear to his left shoulder and that Dr. Cohen decided that the tear had to be
repaired. In further support of his claim, appellant submitted a note from Dr. Cohen indicating
that he was scheduled for surgery due to a left rotator cuff tear on March 17, 2011 and was to be
off work effective March 9, 2011.
By letter dated March 30, 2011, OWCP asked appellant to submit further information. In
response, appellant submitted notes and reports from Dr. Cohen dated December 3, 2010 through
April 15, 2011. Dr. Cohen indicated in his December 3, 2010 report that he previously
performed a right rotator cuff repair on appellant’s right shoulder and that his right shoulder was
doing great,3 but that for the past few months he has been complaining of pain around the
anteriolateral aspect of the left shoulder. At that time he diagnosed impingement syndrome and
noted that appellant may or may not have a rotator cuff tear. Dr. Cohen tried a subacromial
injection which offered some relief, but appellant’s pain returned. In a March 8, 2011 report, he
indicated that he reviewed appellant’s MRI scan and that appellant had a massive tear with
retraction of his supraspinatus to the level of his glenoid. Dr. Cohen also noted degenerative
changes of his acromioclavicular joint and a large rotator cuff tear. He completed a report of
operation noting that on April 11, 2011 appellant underwent an open left rotator cuff repair and
acromioplasty and by report of April 15, 2011, he indicated that appellant was still having pain
but overall was doing very well. Dr. Cohen ordered continuous passive motion therapy for home
use.
By decision dated May 25, 2011, OWCP denied appellant’s claim as it found that the
medical evidence did not demonstrate that the claimed condition was related to the established
work events.

3

The Board notes that surgery for the right shoulder was performed on March 29, 2008.

2

LEGAL PRECEDENT
An employee seeking compensation under FECA4 has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence,5
including that he is an “employee” within the meaning of FECA6 and that he filed his claim
within the applicable time limitation.7 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.8 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.9
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.10
When the primary injury is shown to have arisen out of and in the course of employment,
every natural consequence that flows from the injury likewise arises out of the employment,
unless it is the result of an independent intervening cause.11 Once the work-connected character
of an injury has been established, the subsequent progression of that condition remains
compensable so long as the worsening is not shown to have been produced by an independent
nonindustrial cause. An employee who asserts that a nonemployment-related injury was a
consequence of a previous employment-related injury has the burden of proof to establish that
such was the fact.12
ANALYSIS
OWCP denied appellant’s claim as it found that although he established the claimed
employment factors and, although he established that a medical condition had been diagnosed,
4

5 U.S.C. §§ 8101-8193.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

6

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
7

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

8

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

9

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

10

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

11

K.R., Docket No. 11-391 (issued December 21, 2011).

12

See Kathy A. Kelley, 55 ECAB 206 (2004); Carlos A. Marerro, 50 ECAB 170 (1998).

3

he had not submitted medical evidence sufficient to establish that the medical condition was
causally related to any accepted work events.
The Board primarily notes that although OWCP indicated that appellant had established
an accepted work event, there is no evidence in the record with regard to what factors of federal
employment caused his injury. Appellant never describes his work duties nor does he indicate
any activities that he alleged caused his injury. Accordingly, his claim failed to provide evidence
of a compensable employment factor.
The Board also finds that OWCP properly denied appellant’s claim for failing to establish
a causal relationship between any factors of his federal employment and his left rotator cuff tear.
In support of his claim, appellant submitted medical reports from his treating physician,
Dr. Cohen, who noted that he had a large rotator cuff tear in his left shoulder, that on April 11,
2011 he performed a left rotator cuff repair and acromioplasty, and that, as of April 15, 2011,
appellant was still having pain but was doing well overall. Dr. Cohen, though, never related this
injury to appellant’s federal employment. Although he did note that he had previously
performed a right rotator cuff repair, he never indicated that appellant’s left rotator cuff tear was
related to the right rotator cuff repair nor that the previous surgery had been work related.
Accordingly, appellant did not submit medical evidence establishing that his left rotator cuff
injury was causally related to his federal employment or was a consequential injury.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was caused by his employment or that it was an
aggravation of a prior employment injury is sufficient to establish causal relationship.13 As
appellant has not submitted medical evidence establishing a causal relationship between his
federal employment and his left rotator cuff injury, OWCP properly denied his claim.
Appellant contends on appeal that this is a consequential injury related to his prior right
shoulder injury. He claims it did not have to occur during his employment to be compensable.
As previously noted, appellant provided no medical evidence that OWCP had previously
accepted his claim for a right rotator cuff injury. Accordingly, his arguments on appeal are
without merit.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that his left rotator cuff tear was causally
related to his federal employment.

13

M.P., Docket No. 11-1194 (issued February 23, 2012); Walter D. Morehead, 31 ECAB 188 (1986).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 25, 2011 is affirmed, as modified.
Issued: May 18, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION FACILITY, Bismarck, ND,
Employer
__________________________________________

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

Docket No. 18-1001
Issued: October 26, 2018

Case Submitted on the Record

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

JURISDICTION
On April 16, 2018 appellant filed a timely appeal from a March 30, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained bone spurs, a possible rotator cuff condition, or
tendinitis causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On February 20, 2018 appellant, then a 58-year-old parcel post distribution machine
operator, filed an occupational disease claim (Form CA-2) alleging that he sustained bone spurs,
1

5 U.S.C. § 8101 et seq.

a possible rotator cuff problem, tendinitis, and additional disorders due to repetitive trauma. He
first became aware of his claimed conditions on November 5, 2015 and attributed them to his
federal employment on July 1, 2017. Appellant missed no time from work and performed limitedduty employment beginning February 13, 2018.
Appellant, in a February 13, 2018 statement accompanying his claim, related that he
experienced bilateral shoulder pain greater on the right side and described his work duties.
In a February 13, 2013 employing establishment temporary reassignment to light-duty
form, Dr. Robert Bruce Canham, an orthopedic surgeon, found that appellant should perform light
duty from February 13 to 28, 2018 lifting no more than five pounds.
The employing establishment, on February 22, 2018, controverted the claim as appellant
had not submitted sufficient supporting medical evidence.
By development letter dated February 27, 2018, OWCP requested that appellant submit
additional factual and medical evidence in support of his claim, including a detailed report from
his attending physician addressing the causal relationship between any diagnosed condition and
identified work factors.
Appellant submitted a March 5, 2018 statement describing the employment factors to
which he attributed his condition, including lifting, pushing, and pulling mail.
Dr. Anthony M. Tello, an internist, indicated on November 5, 2015 that he had treated
appellant on that date. He found that appellant should only work 40 hours per day “due to right
shoulder strain and supraspinatus tendinitis of the shoulder.”
By decision dated March 30, 2018, OWCP denied appellant’s occupational disease claim.
It found that the medical evidence of record was insufficient to demonstrate that he sustained a
diagnosed condition causally related to the accepted work factors, as his physician had not
provided a rationalized medical opinion establishing an employment-related injury or condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4

2

5 U.S.C. § 8101 et seq.

3

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

2

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;5 (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition;6 and (3) medical evidence establishing the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.7
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he sustained
bone spurs, a possible rotator cuff condition, or tendinitis causally related to the accepted factors
of his federal employment.
In a February 13, 2018 form report, Dr. Canham opined that appellant should perform light
duty from February 13 to 28, 2018. As Dr. Canham did not provide findings on examination, a
causation finding, or a medical diagnosis, his report is of limited probative value.9
On November 5, 2015 Dr. Tello diagnosed right shoulder strain and supraspinatus
tendinitis. He found that appellant should not work over 40 hours per week. Dr. Tello, however,
did not address the cause of the diagnosed conditions. Medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.10
On appeal appellant asserts that OWCP failed to consider the medical evidence from
Dr. Canham and erred in failing to accept his claim. As discussed, Dr. Canham’s report is
insufficient to support his claim. OWCP advised appellant on February 27, 2018 of the type of
evidence necessary to support his claim, including the submission of a reasoned report from his
physician explaining how any diagnosed condition was caused or aggravated by employment

5

Michael R. Shaffer, 55 ECAB 386 (2004).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

Beverly A. Spencer, 55 ECAB 501 (2004).

8

See J.R., Docket No. 17-1781 (issued January 16, 2018); I.J., 59 ECAB 408 (2008).

9

See C.S., Docket No .14-0269 (issued May 12, 2014); P.A., Docket No. 10-2189 (issued June 21, 2011).

10

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

3

factors. As he did not submit such evidence, he has not met his burden of proof to establish his
claim.11
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he sustained
bone spurs, a possible rotator cuff condition, or tendinitis causally related to the accepted factors
of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the March 30, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 26, 2018
Washington, DC

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

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

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

11

See J.D., Docket No. 17-2016 (issued April 16, 2018).

4


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

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Appearances:
Capp Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-765
Issued: August 21, 2008

Case Submitted on the Record

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

JURISDICTION
On January 17, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated January 9, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an employment-related disability on
August 16, October 27 or November 12, 2005 or commencing September 7, 2006.
FACTUAL HISTORY
On February 21, 2005 appellant, then a 34-year-old baggage screener, filed a traumatic
injury claim (Form CA-1) alleging that he sustained left shoulder, low back and abdominal pain
when he slipped and fell while dislodging a box in the performance of duty on that date. He

returned to a light-duty job in May 2005, with restrictions that included a three-pound lifting
restriction.
By decision dated May 31, 2005, the Office denied the claim for compensation on the
grounds that the medical evidence was insufficient to establish the claim. Appellant continued to
work in a modified position. In a report dated April 5, 2006, Dr. Kenneth Jarolem, an attending
orthopedic surgeon, limited appellant to three pounds lifting, no excessive sitting, standing or
walking, no stooping, bending, twisting, crouching, crawling or working on ladders.
In a report dated April 20, 2006, Dr. Jarolem stated that he expected appellant to return to
full duty within 45 days. By an April 21, 2006 report, he diagnosed left shoulder tendinitis and
cervical disc herniations with myelopathy, caused by the February 21, 2005 incident.
Dr. Jarolem reported that appellant was unable to work from February 22 to May 3, 2005 and
indicated that appellant’s light-duty restrictions were permanent.
On May 25, 2006 the Office vacated the May 31, 2005 decision and accepted the claim
for left shoulder tendinitis and cervical herniated discs at C4-5 and C5-6.1 The record indicates
that appellant continued to work in a modified position. A May 2, 2006 light-duty job
assignment provided work restrictions in accord with Dr. Jarolem’s April 5, 2006 report.
On June 14, 2006 appellant completed a time analysis (Form CA-7a) indicating that he
was off work on August 16, October 27 and November 12, 2005. He also reported that he was
off work December 8 to 10, 2005, March 18 and June 4 to 6, 2006. Appellant filed a claim for
compensation (Form CA-7) for the intermittent dates of disability.
The employing establishment issued a notice of proposed removal dated July 12, 2006.
The reasons reported were failure to follow instructions, unauthorized absences and careless and
negligent performance. By letter dated July 13, 2006, the employing establishment stated that
appellant had been working light-duty assignments since his injury and a light-duty job within
his restrictions continued to be available. The employing establishment indicated that the
proposed removal was based on conduct issues, not appellant’s medical condition.
Effective September 7, 2006, appellant’s federal employment was terminated. On June 9,
2007 he filed a claim for compensation commencing September 26, 2006. With respect to
medical evidence, appellant submitted a September 19, 2006 report from Dr. Scott Tannenbaum,
a physiatrist, diagnosing left shoulder adhesive capsulitis, multiple cervical disc disorder and
radiculitis, who completed a work restriction evaluation (OWCP-5c) indicating that appellant
could lift up to 20 pounds with limitations on reaching above the shoulder. In an OWCP-5c
(work capacity evaluation) dated January 25, 2007, Dr. Tannenbaum indicated that appellant was
disabled for work. His narrative report of that date diagnosed lumbar radiculitis and cervical
myofascial pain, stating the pain was about the same.

1

A separate May 25, 2006 letter advised appellant that the claim was accepted for cervical disc disorder with
myelopathy and left shoulder adhesive capsulitis.

2

By decision dated August 9, 2007, the Office denied compensation for wage loss for
August 16, October 27 and November 12, 2005. It found that the medical evidence was
insufficient to establish an employment-related disability for the dates claimed. In a decision
dated October 5, 2007, the Office denied a claim for compensation as of September 7, 2006. It
found that the evidence did not establish an employment-related disability for the period claimed.
Appellant requested a hearing before an Office hearing representative, which was held on
November 26, 2007. He testified that he worked various light-duty jobs and sometimes had to
lift more than three pounds and to crouch or bend. Appellant also stated that he thought he was
terminated because he was injured and the employing establishment could not find a job for him.
By decision dated January 9, 2008, the hearing representative affirmed the August 9 and
October 5, 2007 decisions.
LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.2 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.3
When a claimant stops working at the employing establishment for reasons unrelated to
his employment-related physical condition, he has no disability within the meaning of the
Federal Employees’ Compensation Act.4 Office regulations state that there is a recurrence of
disability when a light-duty job is withdrawn “except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force.”5

2

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
3

Maurissa Mack 50 ECAB 498 (1999).

4

See Richard A. Neidert, 57 RCAB 474 (2006); John W. Normand, 39 ECAB 1378 (1988) (the claimant’s
employment was terminated due to misconduct and the Board found no employment-related disability was
established).
5

20 C.F.R. § 10.5(x).

3

ANALYSIS
The Office accepted the claim for left shoulder and neck injuries and appellant returned
to a light-duty position. With respect to the specific dates of August 16, October 27 and
November 12, 2005, it is appellant’s burden of proof to submitted medical evidence establishing
an employment-related disability for the dates claimed. In this case, none of the medical
evidence discusses disability for work on August 16, October 27 or November 12, 2005.
Dr. Jarolem submitted brief reports dated September 22 and December 6, 2005 continuing
appellant’s work restrictions without discussing disability on the relevant dates. Appellant
therefore did not meet his burden of proof.
With respect to the claim for compensation commencing September 26, 2006,6 the record
indicated that appellant’s light-duty job had been withdrawn as his employment had been
terminated effective September 7, 2006. As noted above, the withdrawal of the light-duty
position may result in an employment-related disability, unless it occurs for misconduct,
nonperformance of job duties or a reduction-in-force. Although appellant indicated that he felt
his termination was due to his employment injury, the evidence of record supports a finding that
the termination was based on misconduct. The decision on the proposed removal noted failure to
follow instructions and failure to notify a supervisor of absences, as well as careless and
negligent performance on May 13, 2006. The employing establishment specifically stated that a
light-duty job remained available to appellant and his removal was not based on a failure to have
a job within his employment-related work restrictions. Based on the evidence of record,
therefore, the Board finds the light-duty job in this case was withdrawn due to misconduct.
In addition, there was no medical evidence presented of a change in the nature and extent
of the injury-related condition. Dr. Tannenbaum treated appellant on September 19, 2006,
without indicating a change in the employment-related condition resulting in disability. The
OWCP-5c form he completed on September 19, 2006 showed increased work capacity from the
previous work restrictions of Dr. Jarolem. On January 25, 2007 Dr. Tannenbaum appeared to
find appellant totally disabled, without providing additional explanation as to how appellant’s
employment-related condition had changed such that he was unable to perform the duties of the
light-duty job as of that date.
Appellant has also raised the issue of working outside his work restrictions. A recurrence
of disability may be established “when the physical requirements of such [light-duty job] are
altered so that they exceed his or her established physical limitations.”7 In this case, it appeared
that appellant generally alleged that at various times since his return to work in May 2005 he had
to exceed his stated work restrictions. Appellant has claimed compensation commencing at or
about the time his employment was terminated. He did not stop work and provide evidence that
his job was altered so that it exceeded his work restrictions. The record indicated that appellant
was offered a light-duty job with limitations in accord with the existing work restrictions, he
6

The claim for compensation filed on June 9, 2007 was for compensation commencing September 26, 2006. The
Office decisions apparently determined that appellant was claiming compensation as of September 7, 2006, when his
employment was terminated.
7

Id.

4

continued to work in the position until he was removed from employment and the light-duty job
would have remained available to appellant.
The Board accordingly finds that appellant has not established an employment-related
disability commencing on or after September 7, 2006. The medical evidence does not establish a
change in the nature and extent of the employment-related condition resulting in disability for the
light-duty job. The factual evidence indicated that the withdrawal of the light-duty position was
for reasons unrelated to his employment-related physical condition.
CONCLUSION
The evidence of record does not establish that appellant is entitled to compensation for
wage loss on August 16, October 27 or November 12, 2005 or commencing on or after
September 7, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 9, 2008, October 5 and August 9, 2007 are affirmed.
Issued: August 21, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, MID-ISLAND
POSTAL & DELIVERY CENTER, Melville, NY,
Employer
__________________________________________

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Appearances:
Robert Lisso, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0703
Issued: November 14, 2018

Case Submitted on the Record

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

JURISDICTION
On February 12, 2018 appellant, through his representative, filed a timely appeal from an
August 23, 2017 nonmerit decision of the Office of Workers’ Compensation Program (OWCP).
As more than 180 days elapsed from OWCP’s last merit decision, dated August 12, 2016, to the

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.

filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the case.3
ISSUE
The issue is whether OWCP properly determined that appellant’s August 15, 2017 request
for reconsideration was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On July 23, 2014 appellant, then a 43-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that, on that day, he felt pain in his right shoulder while unloading a trailer
and pulling bulk mail containers/mail transport equipment (BMCs/MTE). He stopped work that
day.
Following initial development, by decision dated September 17, 2014, OWCP denied the
claim. It found that the medical evidence submitted was insufficient to establish causal
relationship between the diagnosed shoulder conditions and the accepted July 23, 2014 work
incident.
On May 18, 2015 appellant requested reconsideration. In support of his request, he
submitted additional medical evidence. By decision dated August 11, 2015, OWCP denied
modification of its September 17, 2014 decision. It found that the medical evidence appellant had
submitted was insufficient to establish causal relationship between the diagnosed conditions and
the accepted July 23, 2014 work incident.
On May 23 2016 appellant requested reconsideration.
In an April 12, 2016 report, Dr. Peter McCann, a Board-certified orthopedic surgeon,
diagnosed primary osteoarthritis of the right shoulder and disorder of rotator cuff syndrome of
right shoulder and allied disorder. He indicated that appellant was injured on July 23, 2014 while
unloading trailer boxes of BMCs and pulling the BMCs with his right arm behind him as he walked
forward. Dr. McCann noted that the BMCs weighed between 1,200 to 1,800 pounds. He opined
that the strain to the shoulder while pulling a BMC in the estimated range of 1,200 to 1,800 pounds
was a direct cause of appellant’s injury to the rotator cuff and arthritis of the glenohumeral joint
of the right shoulder. Dr. McCann explained that while appellant had preexisting injury to the
rotator cuff and arthritis of the glenohumeral joint of the right shoulder, he was not symptomatic
prior to the July 23, 2014 employment incident. He indicated that pulling heavy objects could
cause further injury to a shoulder that had preexisting conditions. Dr. McCann explained that any
activity that increased joint reaction force to the shoulder, such as pulling BMCs, could aggravate
2

5 U.S.C. § 8101 et seq.

3

The record provided the Board includes evidence received after OWCP issued its August 23, 2017 decision.
However, section 501.2(c)(1) of the Board’s Rules of Procedure provides: “The Board’s review of a case is limited
to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP
will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this evidence for the first time on appeal. Id.

2

a preexisting shoulder condition and cause further injury and inflammation to an underlying joint
that has had arthritic changes. He also noted that it was well known that physical activity could
exacerbate an underlying preexisting injury to the rotator cuff and osteoarthritis, which were
asymptomatic prior to such activity.
By decision dated August 12, 2016, OWCP denied modification of its prior decision. It
found that Dr. McCann’s opinion was equivocal in nature as to whether the accepted employment
factors directly caused, aggravated, or exacerbated appellant’s preexisting conditions.
Appellant requested reconsideration by a form dated August 10, 2017, postmarked
August 11, 2017, and received by OWCP on August 15, 2017. In an August 10, 2017 narrative,
he indicated that he reviewed the denial of his claim with his doctor and believed that the attached
medical narratives should clear up any concerns.
Medical reports from Dr. McCann previously of record dated July 29, 2014 and April 12,
2016 were received along with new reports dated November 24, 2015 and August 9, 2017.4 In his
November 24, 2015 report, Dr. McCann provided right shoulder assessments of disorder of rotator
cuff syndrome, allied disorder, and primary osteoarthritis. He indicated that appellant injured his
right shoulder on July 23, 2014 while pulling BMCs. Dr. McCann noted that appellant had a long
history of rotator cuff injury with previous surgical procedures and osteoarthritis of the right
glenohumeral joint. He noted that appellant’s right shoulder function was satisfactory prior to the
July 23, 2014 work injury. Dr. McCann opined that July 23, 2014 pulling of BMCs caused injury
to appellant’s rotator cuff and arthritis of the glenohumeral joint. He again explained that any
activity that increases joint reaction force to the shoulder joint, such as pulling BMCs, can
aggravate a preexisting arthritic shoulder and cause injury and inflammation to an underlying joint
that had previous arthritic changes. Dr. McCann also noted that it was a well-known fact that
physical activity may exacerbate the underlying condition of the shoulder which had a preexisting
injury to the rotator cuff and osteoarthritis.
In his August 9, 2017 report, Dr. McCann opined that the activity in which appellant was
engaged in on July 2, 20145 directly caused injury to his right shoulder. He indicated that his
opinion was based on appellant’s history and physical examination. Dr. McCann noted that the
act of unloading BMCs weighing 1,200 to 1,800 pounds caused injury to appellant’s right shoulder
and that the findings of injury to his rotator cuff and glenohumeral joint were consistent with his
physical examination findings. He noted that, while appellant had preexisting injury to his right
rotator cuff and glenohumeral joint, he had no symptoms in his right shoulder prior to his work
injury. It was for that reason that Dr. McCann indicated that appellant’s right shoulder condition
was causally related to the employment incident.
By decision dated August 23, 2017, OWCP denied appellant’s August 15, 2017
reconsideration request, finding that it was untimely filed and failed to demonstrate clear evidence
of error.

4

The record also contained a December 4, 2014 medical report pertaining to a different appellant.

5

The date of injury appears to be a typographical error.

3

LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.6 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.7 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).8 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.9
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s application for review is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error.10 If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.11
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted 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.12
OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made
an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error.13
6

5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

9

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

10

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

11

M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 8 at Chapter
2.1602.5 (February 2016) (the term clear evidence of error is intended to represent a difficult standard).
12

Robert G. Burns, 57 ECAB 657 (2006).

13

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 8 at Chapter 2.1602.5(a) (February 2016).

4

The Board makes an independent determination of whether a claimant has demonstrated clear
evidence of error on the part of OWCP.14
ANALYSIS
The Board finds that OWCP properly determined that appellant’s August 15, 2017 request
for reconsideration was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations15 and procedures16 establish a one-year time limit for requesting
reconsideration, which begins on the date of the original OWCP merit decision. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.17
The most recent merit decision was OWCP’s August 12, 2016 decision. Timeliness is determined
by the document receipt date (i.e., the “received date” in OWCP’s iFECS).18 Appellant had one
year from the date of OWCP’s August 12, 2016 decision to timely request reconsideration. As
one year from August 12, 2016 fell on Saturday, August 12, 2017, he had until Monday,
August 14, 2017 to timely file a request for reconsideration.19 OWCP received appellant’s
reconsideration request on Tuesday, August 15, 2017. As OWCP did not receive appellant’s
reconsideration request until August 15, 2017, one day past the one year deadline from the
August 12, 2016 merit decision, it was untimely filed. Consequently, appellant must demonstrate
clear evidence of error by OWCP in the denial of his claim.20
Appellant submitted an August 10, 2017 narrative statement which indicated that he
believed that the medical narratives he submitted established his claim. The issue in the case is a
medical one of whether he has established causal relationship between his diagnosed right shoulder
conditions and the accepted July 23, 2014 work incident through the submission of rationalized
medical opinion evidence. Appellant’s arguments regarding the weight of the medical evidence
lack probative value. His honest belief that his work activities on July 23, 2014 caused his medical
conditions is not in question, but that belief, however sincerely held, does not shift the weight of
the evidence in his favor and raise a substantial question as to the correctness of OWCP’s
decision.21

14

D.S., Docket No. 17-0407 (issued May 24, 2017).

15

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

16

Supra note 8 at Chapter 2.1602.4 (February 2016); see Veletta C. Coleman, 48 ECAB 367, 370 (1997).

17

Robert F. Stone, 57 ECAB 292 (2005).

18

Supra note 8 at Chapter 2.1602.4(b) (February 2016).

19

When determining the one-year period for requesting reconsideration, the last day of the period should be
included unless it is a Saturday, Sunday, or a federal holiday. Supra note 8 at Chapter 2.1602.4 (February 2016); see
also M.A., Docket No. 13-1783 (issued January 2, 2014).
20

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

21

Robert G. Burns, 57 ECAB 657 (2006).

5

Appellant also submitted duplicative reports, previously of record,22 and new reports dated
November 24, 2015 and August 9, 2017 from Dr. McCann. In his November 24, 2015 report,
Dr. McCann opined that July 23, 2014 pulling of BMCs caused injury to appellant’s rotator cuff
and arthritis of the glenohumeral joint. He explained that any activity that increased joint reaction
force to the shoulder joint, such as pulling BMCs, could aggravate and may exacerbate a
preexisting arthritic shoulder and cause injury and inflammation to an underlying joint that had
previous arthritic changes. In his August 9, 2017 report, Dr. McCann opined that the act of
unloading BMCs weighing 1,200 to 1,800 pounds caused injury to appellant’s right shoulder. He
advised that appellant’s physical examination findings to his rotator cuff and glenohumeral joint
were consistent with an injury and appellant had no symptoms in his right shoulder prior to his
work injury. However, evidence such as a detailed, well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error.23
As the evidence and argument submitted are of insufficient probative value to prima facie
shift the weight in favor of appellant and raise a substantial question as to the correctness of
OWCP’s last merit decision, appellant has failed to demonstrate clear evidence of error.24
On appeal appellant’s representative asserts that it was not his fault that OWCP received
his reconsideration request after the one year period as he had mailed it on Thursday,
August 10, 2017.25 As previously noted, timeliness is determined by the document receipt date
(i.e., the “received date” in iFECS).26 Appellant also maintained that Dr. McCann’s April 12, 2016
and August 9, 2017 medical reports are sufficient to establish his claim. As previously noted, the
Board does not have jurisdiction over the merits of the claim. Appellant has not presented evidence
or argument that raises a substantial question as to the correctness of OWCP’s decision for which
review is sought.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s August 15, 2017 request
for reconsideration was untimely filed and failed to demonstrate clear evidence of error.

22

These reports had previously been submitted to and considered by OWCP and appellant did not explain how their
mere resubmission demonstrated clear error in OWCP’s August 12, 2016 decision. See D.F., Docket No. 17-0745
(issued March 14, 2018); see also A.M., Docket No. 10-0526 (issued November 8, 2010) (appellant did not sufficiently
explain how largely duplicative evidence raised a substantial question as to the correctness of OWCP’s decision.
23

See supra note 13.

24

See W.A., Docket No. 18-0297 (issued July 18, 2018).

25

The record indicates that the reconsideration request was postmarked August 11, 2017.

26

Supra note 8 at Chapter 2.1602.4(b) (February 2016).

6

ORDER
IT IS HEREBY ORDERED THAT the August 23, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2018
Washington, DC

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

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

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

7