United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, SAINT JOSEPH POST
OFFICE, St. Joseph, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0649
Issued: November 10, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 30, 2020 appellant filed a timely appeal from a January 3, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a left knee condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On October 14, 2019 appellant, then a 41-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed Hoffa’s syndrome in her left knee due to
factors of her federal employment, including repetitive movement. She explained that she
1

5 U.S.C. § 8101 et seq.

experienced severe pain in the left knee and that her knee gives out. Appellant noted that she first
became aware of her condition and realized its relationship to her federal employment on
October 8, 2019. She did not stop work.
In a September 26, 2019 medical report, Dr. Corey Trease, a Board-certified orthopedic
surgeon, noted that appellant complained of left knee pain and that cortisone shots were no longer
helping her. He recommended a magnetic resonance imaging (MRI) scan of the left knee.
An October 4, 2019 left knee MRI scan revealed trace edema at the superior lateral aspect
of Hoffa’s fat pad and diffuse partial thickness cartilage thinning over the lateral patellar facet and
lateral trochlear ridge without underlying subchondral marrow edema. It demonstrated no acute
osseous injury.
In an October 8, 2019 medical report, Dr. Trease reviewed the October 4, 2019 MRI scan
and diagnosed Hoffa’s syndrome in the left knee.
In an undated statement, appellant noted that she had been seen by an orthopedic specialist
for severe pain in her left knee. She indicated that she walked 13 miles a day and that cortisone
shots no longer worked.
In a November 6, 2019 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and attached a factual questionnaire for her completion.
In a separate development letter of even date, OWCP requested that the employing establishment
provide additional information, including comments from a knowledgeable supervisor and an
explanation of appellant’s work activities. It afforded both parties 30 days to submit the necessary
evidence.
In a November 12, 2019 general medical and surgical authorization request, Dr. Trease
again noted a diagnosis of Hoffa’s syndrome.2
A December 3, 2019 letter from the employing establishment controverted appellant’s
claim, asserting that she also worked as a bartender and previously sustained multiple injuries
while riding a motorcycle, a four-wheeler, and horses. It also provided a job description for a city
carrier.
By decision dated January 3, 2020, OWCP denied appellant’s occupational disease claim
finding that the medical evidence of record was insufficient to establish that her diagnosed
condition was causally related to the accepted factors of her federal employment.

2
OWCP received physical therapy reports dated October 28 and 31, 2019, which the Board notes related to OWCP
File No. xxxxxx176.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that, an injury was sustained in the performance of duty in an occupational
disease claim, a claimant 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 claimant.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.8 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 specific employment factors identified by the employee.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted a series of medical reports from Dr. Trease
who diagnosed Hoffa’s syndrome in the left knee. While he provided a firm medical diagnosis,
he did not offer a specific opinion as to whether her employment caused or aggravated her
3

Supra note 1.

4

J.W., Docket No. 18-0678 (issued March 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5
J.S., Docket No.18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No.18-0914 (issued February 24, 2020);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

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

8

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
9
R.G., Docket No. 18-0792 (issued March 11, 2020); D.J., Docket No. 19-1301 (issued January 29, 2020); I.J., 59
ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

diagnosed condition. The Board has held that 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 These reports, therefore, are insufficient to establish appellant’s claim.
Finally, appellant submitted an October 4, 2019 left knee MRI scan. However, the Board
has held that reports of diagnostic tests, standing alone, lack probative value on the issue of causal
relationship as they do not provide an opinion as to whether the accepted employment factors were
sufficient to have caused the diagnosed conditions.11 Therefore, this evidence is also insufficient
to establish appellant’s claim.
As there is no rationalized medical evidence of record explaining how appellant’s accepted
factors of her federal employment caused or aggravated her condition, the Board finds that she has
not met her burden of proof to establish her claim.
On appeal appellant asserts that the left knee MRI scan and diagnosis of Hoffa’s disease
demonstrates that her condition was caused by repetitive action at work. However, as explained
above, the Board finds that she has not submitted sufficient medical evidence to have met her
burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted factors of her federal employment.

10

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

11

S.K., Docket No. 19-0272 (issued July 21, 2020); A.V., Docket No. 19-1575 (issued June 11, 2020).

4

ORDER
IT IS HEREBY ORDERED THAT the January 3, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
FEDERAL JUDICIARY, FEDERAL PUBLIC
DEFENDERS, Little Rock, AR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1988
Issued: June 6, 2012

Case Submitted on the Record

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

JURISDICTION
On August 27, 2011 appellant filed a timely appeal from a February 28, 2011 merit
decision of the Office of Workers’ Compensation Programs terminating her compensation
benefits and a July 21, 2011 merit decision denying authorization for left knee surgery. On
September 2, 2011 she filed a timely appeal of a March 3, 2011 nonmerit decision denying her
request for reconsideration on the grounds that it was untimely and failed to establish clear
evidence of error. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective March 14, 2010; (2) whether OWCP properly denied
reconsideration of its January 13, 2010 decision on the grounds that it was untimely and failed to
establish clear evidence of error; and (3) whether OWCP properly denied authorization for left
knee surgery.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 6, 2006 appellant, then a 41-year-old investigator, filed a traumatic injury
claim alleging that she sustained a left knee injury when she fell from a ladder retrieving a file.
The claim was initially accepted for left knee meniscus tear; left knee arthroscopy and anterior
cruciate ligament (ACL) disruption and ACL reconstruction.
Appellant returned to light duty on February 10, 2007. She was terminated by the
employing establishment on May 22, 2007 due to its inability to accommodate her medical
restrictions. OWCP accepted appellant’s claim for a recurrence of disability effective May 23,
2007 and placed her on the periodic rolls.
Appellant was treated by Dr. John Vander Schilden, a Board-certified orthopedic
surgeon, who performed left knee arthroscopic surgery, with medial and lateral meniscectomies
on October 29, 2008. On June 10, 2009 Dr. Vander Schilden performed left knee arthroscopic
meniscectomy and ACL revision surgery.
On January 27, 2009 appellant requested that her claim be expanded to include conditions
involving her neck, upper and lower extremities and back to include: thoracic outlet syndrome;
subluxation to C4 to C7; bilateral hand numbness; right shoulder rotator cuff tear and
subluxation; back, bowel and bladder disturbances; right lower extremity radiculopathy; left knee
tibia fracture; complete ACL disruption, lateral meniscus tear and bone contusion. The record
contains numerous medical reports relating to appellant’s claimed back, bowel and carpal tunnel
conditions.2
Appellant was treated by Dr. Syad Ashfaq Hasan, a Board-certified orthopedic surgeon,
for her left shoulder condition.
In a March 9, 2009 report, Dr. Hasan diagnosed
acromioclavicular (AC) joint arthritis and type-two superior labral tear of the right shoulder,
based on the results of a February 9, 2009 magnetic resonance imaging (MRI) scan.
On September 11, 2009 OWCP expanded appellant’s claim to include the conditions of
right shoulder AC sprain; left knee sprain and bone contusion and left knee retear of the medial
meniscus.
In an October 8, 2009 report, Dr. Hasan described the history of appellant’s November 1,
2006 shoulder injury and provided examination findings. He reiterated his diagnoses of AC joint
arthritis and type-two superior labral tear of the right shoulder and recommended arthroscopic
distal clavicle resection as well as arthroscopic superior labral repair versus debridement.

2

In a report dated November 15, 2006, Dr. Larry Nguyen, a Board-certified orthopedic surgeon, reported that
appellant had a previous history of a C3 pinched nerve since February 2006. On September 13, 2007 Dr. Robert
Holladay, a Board-certified orthopedic surgeon, opined that appellant’s carpal tunnel syndrome was not causally
related to her accepted injury. On December 7, 2007 Dr. Nguyen agreed with Dr. Holladay’s opinion that
appellant’s carpal tunnel syndrome was not causally related to her accepted injury. On August 28, 2009 Dr. John
Wilson, a treating physician, found no evidence of back disease and opined that appellant’s bladder and bowel
conditions were not related to her work injury.

2

On October 6, 2009 Dr. Vander Schilden released appellant to return to work with no
restrictions. In an outpatient note, he stated that she was totally asymptomatic, noting that range
of motion in the left knee was 0 to 135 degrees and symmetric, and Lachman and pivot shift
were zero.
By decision dated January 13, 2010, OWCP denied appellant’s request to expand her
claim to include neck and back conditions, right rotator cuff tear and subluxation, bowel and
bladder conditions and carpal tunnel syndrome, finding that the medical evidence was
insufficient to establish a causal relationship between those claimed conditions and the accepted
injury.
On January 21, 2010 OWCP notified appellant of its intent to terminate her compensation
for wage-loss benefits based on Dr. Vander Schilden’s October 6, 2009 report, which represented
the weight of the medical evidence and demonstrated that appellant no longer had any disability
due to her accepted injury. It advised her that she had 30 days within which to provide
additional evidence or argument if she disagreed with the proposed termination.
Appellant submitted a February 2, 2010 report from her newly authorized treating
physician, Dr. Bernard Crowell, an orthopedic surgeon, who provided a history of the
November 2006 injury, stating that appellant sustained injuries to her left knee and right shoulder
when she fell from a ladder at work. On examination of the left knee, she had a mild effusion.
There was some laxity of the ACL and a positive anterior and posterior drawer sign with
tenderness to palpation around the medial and lateral joint line. Dr. Crowell stated that the
description of appellant’s injury correlated with the fall and she could have sustained a superior
labral anteroposterior (SLAP) lesion of the right shoulder, along with a rotator cuff tear
secondary to suspending herself on a box six feet off the ground falling and traumatizing her left
knee. This compounded by appellant’s weight would have injured her ACL requiring
reconstruction of her left knee. Dr. Crowell recommended an MRI scan of the left knee.
In a letter dated February 20, 2010, and received by OWCP on February 24, 2010,
appellant objected to the proposed termination, contending that Dr. Vander Schilden’s October 6,
2009 report was insufficient to establish that she was no longer disabled due to the accepted
injury. She noted that Dr. Vander Schilden’s report addressed only her accepted knee condition,
but failed to address her accepted shoulder condition. Appellant alleged that the physician failed
to address her subjective complaints, the continued instability of the left leg or the fact that she
continued to use a crutch periodically. She stated that she was attaching a copy of a February 12,
2010 MRI scan report, which provided new medical evidence of continued disability, and a
report from her new physician, who was recommending surgery. Appellant requested an
extension of time pending receipt by OWCP of her doctor’s report.
Appellant submitted a February 12, 2010 report of an MRI scan of the left knee reflecting
postoperative changes to the menisci with a superimposed tear to the posterior horn and body
junction of the medial meniscus extending to the undersurface; osteoarthritic change; fullthickness cartilage defect of the patella; moderate to large-sized joint effusion with small loose

3

bodies and moderate prepatellar soft tissue swelling. She also submitted a February 16, 2010
letter from Dr. Crowell advising her that she had been scheduled for surgery on March 12, 2010.
By decision dated February 25, 2010, OWCP finalized its proposal to terminate
appellant’s compensation benefits effective March 14, 2010. The claims examiner stated that
appellant had submitted three documents in response to its proposal to terminate, namely a
February 2, 2010 treating note from Dr. Crowell, her request to change treating physicians to
Dr. Crowell and a February 13, 2010 request for accounting of disclosures. He found that
evidence sufficient to alter the recommendation to terminate appellant’s compensation for wage
loss had not been received.
In a letter dated February 26, 2010, OWCP informed appellant that it had not reviewed
her February 20, 2010 letter, the February 12, 2010 MRI scan report or Dr. Crowell’s
February 16, 2010 report prior to issuing its February 25, 2010 termination decision because the
documents were “not viewable at the time the decision was issued.” The claims examiner stated
that the medical documents received were not sufficient to support appellant’s inability to return
to work.
In a January 12, 2010 report, received by OWCP on March 2, 2010, Dr. Crowell stated
that appellant injured her right shoulder and back in November 2006 and had been experiencing
pain ever since. On examination of the right shoulder, range of motion with forward elevation
and abduction were 160 degrees. Appellant was able to perform a subscapulary lift-off test
without any difficulty. She had tenderness to palpation over the right AC joint and pain with
abduction over the tip of the acromion. Strength in the upper extremity was 5/5. Sensation was
intact. Speed test and drop arm test was negative. Appellant was able to perform an Apley's
scratch test. A February 9, 2009 MRI scan revealed a Type II SLAP tear involving the posterior
superior labrum. Also noted was a moderate AC joint arthrosis with subchondral cystic changes,
as well as posterior subluxation of the humeral head, low-grade articular surface tear involving
the anterior fibers of the supraspinatus, along with low-grade interstitial tear. Dr. Cromwell
diagnosed a SLAP tear, along with supraspinatus and infraspinatus articular surface tears along
with AC joint arthrosis. He recommended an AC joint or arthroscopic distal clavicle resection,
as well as arthroscopic superior labrum repair versus debridement.
In a February 16, 2010 report, Dr. Crowell reviewed the results of the February 12, 2010
MRI scan, which reflected medial and lateral meniscal tears, along with several loose bodies
ranging approximately 5.0 millimeters in size, as well as a large joint effusion. On examination
of the left knee, appellant was positive for effusion. There was mild laxity with anterior and
posterior drawer signs and a positive McMurray sign, both over the medial and lateral side of the
knee. Range of motion was 0 to 120. The patella was not subluxable. Dr. Crowell
recommended that appellant undergo an arthroscopic medial and lateral meniscectomy, along
with removal of loose bodies.
On March 5, 2010 OWCP routed the case record to the district medical adviser (DMA)
for review and an opinion as to whether the requested surgery was medically necessary. In a
report dated March 10, 2010, the DMA opined that an additional surgery was not warranted
because all other available treatment options, such as drainage and physical therapy, had not
4

been explored. He stated that Dr. Crowell had not properly correlated the tears that were evident
on MRI scan with examination findings, such as catching in the knee.
On April 6, 2010 Dr. Crowell responded to the DMA’s March 10, 2010 report, noting
that locking and catching are subjective terms used by physicians when they ask patients what is
causing their pain. The positive McMurray sign was an objective finding for patients who have
meniscal tears. Dr. Cromwell stated that the DMA’s recommendation for treatment options such
as aspiration of fluid from the knee and injecting steroids, were inappropriate in appellant’s case,
because they are treatment modalities used only when patients have advanced osteoarthritis of
the knees. He noted that appellant’s position as an investigator included driving across the state
and out of the state visiting court houses, hospitals, school institutions, and random facilities to
obtain medical records, modern day congeniality, land records going back hundreds of years,
going through vaults of storage rooms and warehouses. It also entailed climbing ladders,
walking over debris, crawling under tables, and removing discarded office furniture and
equipment. Dr. Crowell reiterated that the best treatment for appellant would be operative
intervention. He restricted her from carrying greater than 5 to 10 pounds or from squatting,
stooping or climbing ladders.
On April 22, 2010 appellant requested reconsideration of the February 25, 2010
termination decision. She contended that Dr. Vander Schilden’s report was insufficient to
establish that she was not disabled.
In an April 27, 2010 report, Dr. Crowell discussed the progression of appellant’s right
shoulder condition. He stated that prior to the MRI scan of 2007, there were hypertrophic
changes and inflammation of the AC joint consistent with the low-grade AC joint trauma and
joint arthropathy. In 2009 it had progressed to moderate AC joint arthrosis with subchondral
cystic changes and edema of the distal clavicle with spinal fluid in the AC joint. Dr. Cromwell
opined that her current shoulder condition was likely a progression of the trauma she suffered
from her accepted injury.
OWCP found a conflict in medical opinion between the DMA and Dr. Crowell as to
whether the recommended left knee surgery was medically necessary. Appellant was referred to
Dr. Harold H. Chakales, a Board-certified orthopedic surgeon, in order to resolve the conflict.
In a May 4, 2010 report, Dr. Chakales provided a history of injury and treatment. Noting
that appellant’s ACL was intact, he stated that she was developing progressive osteoarthritis of
the joint in her left knee and that because of her age, size and progression of the disease, he
would not recommend arthroscopic surgery.
By decision dated July 26, 2010, OWCP denied modification of its February 25, 2010
termination decision, finding that the medical evidence submitted was insufficient to establish
that she continued to be totally disabled from all work due to the accepted injury. The claims
examiner found that the medical evidence from Dr. Crowell did not establish that
Dr. Vander Schilden’s opinion releasing appellant to the regular duties of her investigator dateof-injury position on October 6, 2009 was a medical error on his part. OWCP informed
appellant that, if she had sufficient evidence to support a recurrence of disability beginning

5

April 6, 2010, the date Dr. Crowell recommended work restrictions, then she should pursue the
issue by filing a notice of recurrence (Form CA-2a).
In a letter dated May 5, 2010, appellant stated that OWCP had issued its January 13, 2010
decision denying surgery for the right shoulder only one day after an authorized appointment
with her new physician. She contended that her doctor was, therefore, not permitted to submit
his report prior to OWCP’s decision. Appellant alleged that she was deprived of procedural
rights to present evidence in support of her claims.
In a letter dated June 10, 2010, the office of Congressman Vic Snyder inquired on behalf
of appellant why OWCP had denied authorization for appellant’s right shoulder surgery in spite
of the recommendation of five Board-certified surgeons.
By decision dated August 10, 2010, OWCP denied authorization for left knee
arthroscopic surgery based upon the opinion of the impartial medical examiner. The claims
examiner found that Dr. Chakales’ report, which represented the weight of the medical evidence,
did not establish that the recommended surgery was warranted.
Appellant requested a review of the written record. In a decision dated December 5,
2010, an OWCP hearing representative set aside the August 10, 2010 decision. He found that
OWCP had improperly found a conflict in medical opinion where none existed between the
DMA and appellant’s physician, noting that the DMA had merely opined that surgery should not
be considered until all other options had been explored. The hearing representative found
therefore that Dr. Chakales’ report should not be awarded the special weight granted to a referee,
but rather served to create a conflict with the opinion of Dr. Crowell. He remanded the case to
OWCP with instruction to refer appellant to a new impartial medical specialist in order to resolve
the conflict.
In a December 7, 2010 report, Dr. Crowell stated that appellant had a documented right
shoulder injury. He provided examination findings and diagnosed a SLAP tear, along with
inflammation with tears of the supraspinatus and infraspinatus tendons with AC joint arthrosis.3
In a letter dated January 12, 2011, appellant requested an extension of time to file a
request for reconsideration of the January 13, 2010 decision. She stated that she had been unable
to finalize her appeal due to the untimely death of her father on January 10, 2011. OWCP
recorded appellant’s letter as being received on January 19, 2011. The record does not contain a
copy of the envelope in which the January 12, 2011 letter arrived.
In a letter dated January 21, 2011, OWCP informed appellant that her request for an
extension of time to file her reconsideration request was denied.

3

The record contains numerous follow-up reports relating to appellant’s right shoulder condition from
Dr. Crowell dated through December 7, 2010.

6

On remand, OWCP referred appellant, together with a statement of accepted facts and the
medical record to Dr. Charles Varela, a Board-certified orthopedic surgeon, in order to resolve
the conflict in medical opinion regarding the need for knee surgery. In a January 31, 2011
report, Dr. Varela provided a history of injury and examination findings. Examination of the left
lower extremity revealed slight varus deformity of approximately five degrees, with slight
effusion present. Appellant had full range of motion from 0 to 130 degrees and good medial and
lateral stability. Anterior drawer did reveal a solid end point, which was slightly more lax than
the opposite side. No medial or lateral joint pain was exhibited on palpation. X-rays of the left
lower extremity revealed slight varus deformity, as was noted on physical examination, of
approximately five degrees. There was decreased medial joint space compared to the opposite
side. Two metallic screws were present, which were in satisfactory position. Dr. Varela
reported that, although appellant complained of instability, he did not find any evidence of gross
instability of left knee; rather, that there was only slight anterior laxity versus the opposite side,
which he opined would be satisfactory stability for normal everyday activities. He stated that
appellant’s subjective complaints were not confirmed by objective findings.
After examining appellant and reviewing her medical records, Dr. Varela opined that
further surgical intervention was not warranted. He stated that appellant had obvious chronic
degenerative changes, which were present prior to her work injury and would explain the
multiple findings on the MRI scan. Dr. Varela opined that the meniscal findings were likely
artifact in nature (due to her multiple surgeries and obesity), as she had no symptoms or physical
findings indicative of significant meniscal pathology.
On February 14, 2011 appellant submitted a 22-page document supporting a request for
reconsideration of the January 13, 2010 decision denying expansion of her claim. She contended
that her claim for rotator cuff tear was denied because she misidentified the injury on her
Form CA-1. Appellant argued that OWCP should have considered Dr. Crowell’s January 12,
2010 report in its January 13, 2010 decision.4
In support of her request, appellant submitted: a November 2, 2007 letter and March 13,
2007 clinic note from Dr. Lon Burba; a July 20, 2009 referral to a back specialist from a
Dr. Barrow; A March 22, 2010 letter and a September 30, 2009 clinic note from Dr. Ronald J.
Kuhn, a Board-certified urologist, regarding a bladder condition; an emergency room report
dated July 26, 2009; clinic notes dated March 5, 2008 to January 5, 2011; an October 9, 2009
report from Cedars-Sinai; a December 31, 2009 report from Dr. Thomas P. Rooney, a Boardcertified orthopedic surgeon; a March 19, 2010 report from Dr. Brad A. Thomas, a Boardcertified neurological surgeon, regarding back, neck, right leg and right knee pain; e-mails dated
November 16, 2008 to June 12, 2009 from Dr. Vander Schilden regarding injury to left knee in
physical therapy and problems with aggravation to back problem; and medical records related to
a 2004 motor vehicle accident.
In a February 17, 2011 decision, OWCP denied authorization of the left knee
arthroscopic medial and lateral meniscectomy. It found that the weight of medical evidence,
4

The Board notes that Dr. Crowell’s January 12, 2010 report was not received by OWCP until March 2, 2010.

7

which was represented by Dr. Varela’s well-rationalized report, did not support that the
procedure would cure, give relief, reduce the degree or period of disability, or aid in lessening
the amount of monthly compensation, in accordance with the provisions of section 8103(a) of
FECA.
By decision dated February 28, 2011, OWCP denied modification of its July 26, 2010
decision finding that the evidence submitted was not sufficient to establish that appellant
continued to be totally disabled from all work because of the accepted work-related conditions.
The claims examiner stated:
“The evidence received since the prior decision does not contain a well
rationalized medical opinion that is sufficient to overcome Dr. Vander Schilden’s
conclusion on October 6, 2009 you could perform the regular duties of your
former date[-]of[-]injury position of investigator. Dr. Vander Schilden provided a
well[-]rationalized opinion that at that time you were able to return to your
date[-]of[-] injury position.”
By decision dated March 3, 2011, OWCP denied appellant’s request for reconsideration
of the January 13, 2010 decision on the grounds that it was untimely and failed to establish clear
evidence of error.
On March 19, 2011 appellant requested a review of the written record regarding the
February 17, 2011 decision denying authorization for left knee surgery. She submitted follow-up
reports from Dr. Crowell dated January 25 through March 29, 2011 reiterating his opinion that
left knee arthroscopic surgery was appropriate.
By decision dated July 21, 2011, an OWCP hearing representative affirmed the
February 17, 2011 decision denying authorization for left knee surgery on the grounds that it was
not medically warranted. He found that the weight of the medical evidence was represented by
the well-rationalized report of the impartial medical examiner, Dr. Valera, whose opinion was
entitled to special weight.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.5 After it has determined that an
employee has disability causally related to her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.6 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.7
5

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

6

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

7

See I.R., Docket No. 09-1229 (issued February 24, 2010); J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB
284 (1988).

8

ANALYSIS -- ISSUE 1
OWCP initially accepted appellant’s claim for left knee meniscus tear; left knee
arthroscopy and ACL disruption and ACL reconstruction. It later expanded the accepted
conditions to include right shoulder AC sprain; left knee sprain and bone contusion; left knee
retear of the medial meniscus. By decision dated February 25, 2010, OWCP terminated
appellant’s compensation benefits effective March 14, 2010 based on Dr. Vander Schilden’s
October 6, 2009 report, which purportedly demonstrated that appellant no longer had any
disability due to her accepted injury. In decisions dated July 26, 2010 and February 28, 2011,
OWCP denied modification of its February 25, 2010 decision. The Board finds that OWCP did
not meet its burden of proof to terminate appellant’s compensation effective March 14, 2010.
In its February 28, 2011 decision, OWCP found that appellant had not met her burden to
establish that she continued to be totally disabled from all work because of the accepted workrelated conditions. As noted, however, once it accepts a claim and pays compensation, OWCP
has the burden of justifying modification or termination of an employee’s benefits.8 After it has
determined that an employee has disability causally related to her federal employment, OWCP
may not terminate compensation without establishing that the disability has ceased or that it is no
longer related to the employment.9 The Board finds that OWCP improperly placed the burden of
proof on appellant in this case.
The decision to terminate appellant’s compensation was based upon
Dr. Vander Schilden’s October 6, 2009 report, which the claims examiner found to be well
rationalized and sufficient to establish that she was able to return to her date-of-injury position.
The Board finds, however, that his report is insufficient to establish that appellant was no longer
disabled. On October 6, 2009 Dr. Vander Schilden released appellant to return to work with no
restrictions. He did not, however, discuss the duties of her date-of-injury job in the context of
her accepted conditions. In a brief outpatient note, Dr. Vander Schilden stated that she was
totally asymptomatic, noting that range of motion in the left knee was 0 to 135 degrees and
symmetric, and Lachman and pivot shift were 0. He provided no medical rationale, however, to
support his conclusory opinion. The Board has long held that a medical opinion without
rationale is of limited probative value.10 Moreover, Dr. Vander Schilden did not provide
examination findings or an opinion on disability related to appellant’s accepted right shoulder
condition. For all of these reasons, the report is insufficient to establish that appellant was able
to perform the duties of her date-of-injury job as an inspector.

8

Supra note 5

9

Supra note 6.

10

T.F., 58 ECAB 128 (2006); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006) (a medical report is of limited
probative value on a given medical question if it is unsupported by medical rationale); see also S.D., 58 ECAB
713 (2007).

9

The Board notes that OWCP did not address the issue of whether appellant had any
continuing disability after March 14, 2010.11 Rather, it reviewed the numerous medical reports
submitted subsequent to October 6, 2009 to determine whether they established that
Dr. Vander Schilden’s opinion that appellant was able to return to her date-of-injury position at
that time was erroneous. Although the termination was not effective until March 14, 2010,
OWCP did not address Dr. Crowell’s February 2, 2010 report reflecting objective symptoms
related to the left knee and right shoulder conditions; the February 12, 2010 MRI scan of the left
knee reflecting, among other things, a superimposed tear to the posterior horn and body junction
of the medial meniscus; or Dr. Crowell’s February 16, 2010 letter indicating that appellant had
been scheduled for surgery on March 12, 2010. These documents were relevant to the issue of
appellant’s disability and were properly before OWCP prior to its February 25, 2010 decision.
Therefore, OWCP was required to consider them.12 Although OWCP’s noted its failure to
review these reports prior to the issuance of its February 25, 2010 decision, the contents of these
reports were never addressed in any formal decision, including the February 28, 2011 decision.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
compensation benefits effective March 14, 2010. Therefore, the February 28, 2011 decision
must be reversed.
LEGAL PRECEDENT -- ISSUE 2
FECA provides that the Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.13 OWCP, through its
regulations, has imposed limitations on the exercise of its discretionary authority under section
8128(a). To be entitled to a merit review of OWCP’s decision denying or terminating a benefit,
a claimant must file her application for review within one year of the date of that decision.14 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.15

11

OWCP advised appellant to file a notice of recurrence if she believed that she was disabled after
March 14, 2010. As the issue of continuing disability was not addressed in the February 28, 2011 decision, the
Board will not address it in this appeal.
12

The Board notes that OWCP informed appellant by letter dated February 26, 2010 that the aforementioned
documents were not available for viewing prior to its February 25, 2010 decision. Board precedent requires OWCP
to review all evidence submitted by a claimant and received by OWCP prior to the issuance of its final decision,
including evidence received on the date of the decision. See Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, 41 ECAB 548 (1990) (OWCP did not consider new evidence received four days prior to the date
of its decision); see Linda Johnson, 45 ECAB 439 (1994) (applying Couch where OWCP did not consider a medical
report received on the date of its decision). It makes no difference that the claims examiner may not have been
directly in possession of the evidence. Indeed, Board precedent envisions evidence received by OWCP but not yet
associated with the case record when the final decision is issued.
13

5 U.S.C. § 8128(a).

14

20 C.F.R. § 10.607(a).

15

Supra note 13; Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

10

OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.16 OWCP regulations and procedure provide that it will reopen a claimant’s
case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R.
§ 10.607(a), if the claimant’s application for review shows clear evidence of error on the part of
OWCP.17
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.18 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.19 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.20 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.21 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.22 The Board
makes an independent determination of whether a claimant has submitted clear evidence of error
on the part of OWCP such that it abused its discretion in denying merit review in the face of such
evidence.23
ANALYSIS -- ISSUE 2
In its March 3, 2011 decision, OWCP denied appellant’s February 14, 2011 request for
reconsideration of the January 13, 2010 decision, finding that it was not timely filed and failed to
present clear evidence of error. The underlying issue in the January 13, 2010 decision was
appellant’s request to expand her claim. The Board finds that OWCP improperly determined
that her request for reconsideration was not timely filed within the one-year time limitation
period set forth in 20 C.F.R. § 10.607.

16

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

17

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004). 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. Id. at Chapter 2.1602.3c.
18

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

19

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

20

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

21

See M.L., Docket No. 09-956 (issued April 15, 2010). See Leona N. Travis, supra note 19.

22

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

23

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

11

Appellant had until January 13, 2011 to make a timely request for reconsideration.24 She
submitted a 22-page document dated February 14, 2011, which OWCP determined to be her
request for reconsideration. The Board finds, however, that appellant notified OWCP of her
intent to seek reconsideration of the January 13, 2010 decision, and submitted evidence and
argument in support of her request, within the required one-year time period.
In a letter dated January 12, 2011, appellant requested an extension of time to file a
request for reconsideration of the January 13, 2010 decision, explaining that she had been unable
to finalize her appeal due to the untimely death of her father on January 10, 2011.25 The Board
finds that appellant’s January 12, 2011 letter placed OWCP on notice of her intent to request
reconsideration of the January 13, 2010 decision. The record reflects that appellant’s letter was
received on January 19, 2011. The record, however, does not contain a copy of the envelope in
which the January 12, 2011 letter arrived. The Board notes that OWCP’s procedure manual
provided at that time that timeliness for a reconsideration request is determined not by the date
OWCP receives the request, but by the postmark on the envelope, if available. Otherwise, the
date of the letter itself should be used.26 As the envelope was not retained, the date of receipt of
the appellant’s letter is the date of the letter itself. Therefore, OWCP received notice of
appellant’s intent to seek reconsideration of the January 13, 2010 decision within the required
one-year period.
Subsequent to the January 13, 2010 decision denying her request to expand her claim,
appellant submitted medical reports from Dr. Crowell reflecting the progression of her right
shoulder condition. In a December 7, 2010 report, Dr. Crowell stated that appellant had a
documented right shoulder injury and diagnosed a SLAP tear, along with inflammation with
tears of the supraspinatus and infraspinatus tendons with AC joint arthrosis. On May 5, 2010
appellant argued that OWCP had issued its January 13, 2010 decision denying surgery for the
right shoulder only one day after an authorized appointment with her new physician, contending
that her doctor was not permitted to submit his report prior to the decision and that she was
deprived of procedural rights to present evidence in support of her claims. She contacted her
congressman, who in turn inquired on behalf of appellant why OWCP had denied authorization
for right shoulder surgery in spite of the recommendation of five Board-certified surgeons. The
Board finds that appellant’s January 13, 2011 letter, together with the above-referenced
submissions, constituted a timely request for reconsideration.
Appellant timely filed her request for reconsideration within one year of the January 13,
2010 decision. The Board finds that OWCP improperly denied her reconsideration request by
applying the legal standard reserved for cases where reconsideration is requested after more than
one year. Since it erroneously reviewed the evidence submitted in support of appellant’s
24

The one-year time limitation for requesting reconsideration begins to run on the date of the original OWCP
decision, 20 C.F.R. § 10.607(a); see A.F., 59 ECAB 714 (2008). A right to reconsideration within one year
accompanies any merit decision on the issues. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3(a) (January 2004).
25

As noted, OWCP denied her request for an extension of time.

26

Id. at Chapter 2.1602.3(b)(1).

12

reconsideration request under the clear evidence of error standard, the Board will remand the
case for review of this evidence under the proper standard of review for a timely reconsideration
request.27
LEGAL PRECEDENT -- ISSUE 3
Section 8103(a) of FECA provides for the furnishing of “services, appliances and
supplies prescribed or recommended by a qualified physician” which OWCP, under authority
delegated by the Secretary, “considers likely to cure, give relief, reduce the degree or the period
of disability, or aid in lessening the amount of monthly compensation.”28 In interpreting section
8103(a), the Board has recognized that OWCP has broad discretion in approving services
provided under FECA to ensure that an employee recovers from his or her injury to the fullest
extent possible in the shortest amount of time.29 OWCP has administrative discretion in
choosing the means to achieve this goal and the only limitation on OWCP’s authority is that of
reasonableness.30
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.31 Proof of causal relationship in a case
such as this must include supporting rationalized medical evidence.32 Therefore, in order to
prove that the surgical procedure is warranted appellant must submit evidence to show that the
procedure was for a condition causally related to the employment injury and that the surgery was
medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.33
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.34

27

See Donna M. Campbell, 55 ECAB 241 (2004).

28

5 U.S.C. § 8103(a).

29

Dale E. Jones, 48 ECAB 648, 649 (1997).

30

Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
31

See Debra S. King, 44 ECAB 203, 209 (1992).

32

Id.; see also Bertha L. Arnold, 38 ECAB 282 (1986).

33

See Cathy B. Millin, 51 ECAB 331, 333 (2000).

34

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

13

ANALYSIS -- ISSUE 3
The Board finds that OWCP did not abuse its discretion when it denied appellant’s
request for right knee surgery in the July 21, 2011 decision. Although the requested procedure
was deemed to be work related, appellant did not meet her burden of proof to establish that it
was medically warranted.
OWCP found a conflict in medical opinion between appellant’s treating physician,
Dr. Crowell, who recommended that appellant undergo an arthroscopic medial and lateral
meniscectomy of the left knee, and Dr. Chakales, a second opinion physician, who opined that
surgery was not advisable due to appellant’s age and the progression of the disease. It
appropriately referred appellant, together with a statement of accepted facts and the medical
record, to Dr. Varela in order to resolve the conflict.
In a January 31, 2011 report, Dr. Varela provided a history of injury and detailed
examination findings. Appellant had full range of motion. Dr. Varela reported that, although
appellant complained of instability, he did not find any evidence of gross instability of left knee;
rather, that there was only slight anterior laxity versus the opposite side, which he opined would
be satisfactory stability for normal everyday activities. He stated that appellant’s subjective
complaints were not confirmed by objective findings. After examining appellant and reviewing
her medical records, Dr. Varela opined that further surgical intervention was not warranted. He
stated that appellant had obvious chronic degenerative changes, which were present prior to her
work injury and would explain the multiple findings on the MRI scan. Dr. Varela opined that the
meniscal findings were likely artifact in nature (due to her multiple surgeries and obesity), as she
had no symptoms or physical findings indicative of significant meniscal pathology. The Board
finds that Dr. Varela’s report, which was based on a proper history of injury and contained
detailed physical findings, was sufficiently rationalized to constitute the special weight of the
medical evidence.
The only limitation on OWCP’s authority in approving, or disapproving, services under
FECA is that of reasonableness.35 In the instant case, after two prior authorized knee surgeries,
appellant requested authorization of an arthroscopic left knee surgery. Based on the wellrationalized opinion of an impartial medical examiner, OWCP concluded that authorization for
the requested surgery should be denied. The Board finds that OWCP’s refusal to authorize the
left knee surgery was reasonable and did not constitute an abuse of discretion.
On appeal, appellant contends that the July 21, 2011 decision was biased and that
Dr. Chakales was improperly selected as a referee physician. The Board notes that Dr. Chakales
was treated as a second opinion physician. The claims examiner relied on the well-rationalized
opinion of Dr. Varela, who served as the impartial medical examiner in this case. The Board
finds that appellant has presented no evidence of bias. For reasons stated, the Board finds that
OWCP did not abuse its discretion in denying authorization for left knee surgery.

35

Daniel J. Perea, supra note 30.

14

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 OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective March 14, 2010. The Board finds that appellant’s request for
reconsideration of OWCP’s January 13, 2010 decision was timely filed. The Board further finds
that OWCP did not abuse its discretion in denying authorization for left knee surgery.
ORDER
IT IS HEREBY ORDERED THAT the July 21, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed. IT IS FURTHER ORDERED THAT the
March 3, 2011 decision is set aside and remanded for action consistent with this decision. IT IS
FURTHER ORDERED THAT the February 28, 2011 decision is reversed.
Issued: June 6, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Lansing, MI,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1313
Issued: April 11, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 20, 2018 appellant, through counsel, filed a timely appeal from a March 2, 2018
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.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish more than
two percent permanent impairment of his left lower extremity, for which he previously received a
schedule award; and (2) whether he has met his burden of proof to establish a date of maximum
medical improvement (MMI) prior to May 17, 2016.
FACTUAL HISTORY
On September 8, 2008 appellant, then a 49-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on September 5, 2008 he twisted his left knee when pulling a
wire container while in the performance of duty. He stopped work on September 5, 2008. OWCP
accepted the claim for aggravation of tear of the left knee medial meniscus.3 Appellant underwent
left knee arthroscopy, partial medial meniscectomy on September 22, 2009.4
On April 26, 2016 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated May 4, 2016, OWCP notified appellant that the evidence of
record did not contain a medical report providing an opinion on the issue of permanent impairment.
Appellant was instructed to obtain a narrative medical report for a physician containing an
evaluation of his permanent impairment, if any, with citation to the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 He
was afforded 30 days to provide the necessary report.
By decision dated June 9, 2016, OWCP found that appellant had not established permanent
impairment of a scheduled member or function of the body in accordance with the A.M.A., Guides.
On June 16, 2016 counsel requested a telephonic hearing before an OWCP hearing
representative.
Submitted to the record was a September 6, 2016 report by Dr. Catherine Watkins
Campbell, Board-certified in occupational and family medicine, who indicated that appellant was
seen on May 17, 2016 for evaluation. She noted appellant’s history of injury, medical treatment,
and physical examination findings. Dr. Watkins Campbell referenced the sixth edition of the

3

The present claim, OWCP File No. xxxxxx606 has been administratively combined OWCP File No. xxxxxx645,
with File No. xxxxxx645 serving as the master file. In OWCP File No. xxxxxx645, OWCP accepted that on
November 23, 2007 appellant sustained a left shoulder strain when he was pulling a mail container from a semi-truck.
Appellant also had a prior claim under OWCP File No. xxxxxx666, which has been administratively combined with
the instant claim. OWCP accepted that appellant sustained a left shoulder sprain, with impingement, on December 14,
2007 when he pushed a cart loaded with mail in the performance of duty. By April 18, 2013 decision, OWCP
determined that the claimant had established 12 percent permanent impairment of the right and left upper extremity
and awarded schedule award compensation accordingly.
4

On April 2, 2010 OWCP also accepted that appellant sustained a right shoulder lateral tear, impingement
syndrome, and acromioclavicular degenerative disease under this claim.
5

A.M.A., Guides at (6th ed. 2009).

2

A.M.A., Guides, Table 16-36 and found that appellant sustained two percent permanent
impairment of the left lower extremity. She explained that appellant’s left knee meniscal injury
was rated as a diagnosis-based impairment (DBI) under Table 16-3, class 1 for partial (medial or
lateral meniscectomy) with a default rating of two percent permanent impairment. Dr. Watkins
Campbell then explained that appellant was assigned a 0 grade modifier for functional history
(GMFH), a grade modifier of 1 for physical examination (GMPE), and a grade modifier of 1 for
clinical studies (GMCS). She explained that the net adjustment of 0 resulted in the default 2
percent permanent impairment rating for the left lower extremity.
By decision dated November 14, 2016, OWCP’s hearing representative set aside the
June 9, 2016 decision and directed that Dr. Watkins Campbell’s report be referred to an OWCP
district medical adviser (DMA) for further review.
On November 18, 2016 Dr. Watkins Campbell’s report, a statement of accepted facts
(SOAF), and appellant’s medical record were referred to Dr. Arthur S. Harris, a Board-certified
orthopedic surgeon acting as an OWCP DMA, for an opinion as to whether appellant had sustained
permanent impairment of the left lower extremity.
In a November 21, 2016 report, Dr. Harris reviewed the SOAF and the medical evidence
including Dr. Watkins Campbell’s report. He referred to Table 16-3, Knee Regional Grid of the
A.M.A., Guides, and explained that appellant had undergone a partial medial meniscectomy of the
left knee. Dr. Harris concurred with Dr. Watkins Campbell’s calculation that appellant had two
percent permanent impairment of the left lower extremity, pursuant to Table 16-3.7 He opined that
the date of MMI was May 17, 2016, the date that appellant was seen for evaluation by Dr. Watkins
Campbell.
By decision dated January 11, 2017, OWCP denied appellant’s claim for an additional
schedule award. It explained that, while appellant had two percent permanent impairment of the
left lower extremity, he had previously been granted a schedule award for “12 percent permanent
impairment of the left lower extremity” in OWCP File No. xxxxxx606 on April 18, 2013, and he
was therefore not entitled to an additional schedule award.
By letter dated January 23, 2017, counsel requested a telephonic hearing before an OWCP
hearing representative.
By decision dated May 5, 2017, OWCP’s hearing representative found that at the time there
was no evidence of record establishing that appellant had previously received a schedule award
for 12 percent permanent impairment of the left lower extremity. She returned the case record to
OWCP for issuance of a schedule award for two percent permanent impairment of the left lower
extremity.

6

Id. at 509.

7

Id.

3

By decision dated June 28, 2017, OWCP granted appellant a schedule award for two
percent permanent impairment of the left lower extremity. The period of the award ran from
May 17 to June 26, 2016, for a total of 5.76 weeks of compensation.
By letter dated July 6, 2017, counsel requested a telephonic hearing before an OWCP
hearing representative, which was held on December 6, 2017. He explained that appellant agreed
with the percentage of permanent impairment. However, the date of MMI should be changed to
February 8, 2010 to avoid a Social Security offset.
By decision dated March 2, 2018, OWCP’s hearing representative affirmed the June 28,
2017 decision. She found that no medical evidence had been submitted which established that
appellant’s permanent impairment of the left lower extremity had been improperly calculated or
that appellant had a greater impairment. OWCP’s hearing representative also explained that
OWCP had properly found that appellant reached MMI on May 17, 2016, the date he was seen for
evaluation by Dr. Watkins Campbell. She found that there was no strong persuasive proof to
establish that appellant reached MMI on an earlier date.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,8 and its implementing federal regulations,9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.10 For decisions issued
after May 1, 2009, the sixth edition will be used.11
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based
on GMFH, GMPE, and GMCS.12 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX)
+ (GMCS-CDX).13
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s DMA for an opinion concerning the nature and percentage of
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404(a).

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6 (March 2017).
12

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

13

A.M.A., Guides 521.

4

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.14
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish more than two
percent permanent impairment of the left lower extremity, for which he previously received a
schedule award.
Dr. Watkins Campbell examined appellant on May 17, 2016, related appellant’s physical
examination findings, and provided her opinion as to appellant’s left lower extremity permanent
impairment. She explained that appellant had undergone a partial medial meniscectomy of the left
knee and that, under Table 16-3 of the A.M.A., Guides, this diagnosis resulted in two percent
permanent impairment of appellant’s left lower extremity.
Subsequently, Dr. Harris reviewed Dr. Watkins Campbell’s report, again referenced Table
16-3, and concluded that appellant’s partial medial meniscectomy resulted in two percent
permanent impairment of the left lower extremity. Both Dr. Watkins Campbell and Dr. Harris
were in agreement that appellant had two percent permanent impairment of the left lower extremity
due to his accepted left knee tear of the medial meniscus for which he underwent a partial
meniscectomy.
Counsel has stipulated that appellant’s permanent impairment of the left lower extremity
was properly calculated. As the record contains no other probative, rationalized medical opinion
which indicates that appellant has greater permanent impairment of his left lower extremity based
upon the A.M.A., Guides, appellant has not met his burden of proof to establish greater than two
percent left lower extremity permanent impairment, for which he previously received a schedule
award.15
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
It is well established that the period covered by a schedule award commences on the date
that the employee reaches MMI from the residuals of the employment injury. The Board has
defined MMI as meaning that the physical condition of the injured member of the body has
stabilized and will not improve further. The Board has also noted a reluctance to find a date of
MMI which is retroactive to the award, as retroactive awards often result in payment of less
compensation benefits. The Board, therefore, requires persuasive proof of MMI in the selection

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (March 2017).
15

See A.T., Docket No. 17-1940 (issued December 20, 2018).

5

of a retroactive date of MMI.16 The determination of whether MMI has been reached is based on
the probative medical evidence of record and is usually considered to be the date of the evaluation
by the attending physician, which is accepted as definitive by OWCP.17
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish a date of MMI
prior to May 17, 2016.
The Board notes that MMI means that the physical condition of the injured member of the
body has stabilized and will not improve further,18 and date of MMI is usually considered to be
the date of the evaluation accepted as definitive by OWCP.19 The Board requires persuasive proof
of MMI if a retroactive date is selected.20 Dr. Watkins Campbell examined appellant on May 17,
2016 and provided an impairment rating. Dr. Harris agreed with Dr. Watkins Campbell’s
permanent impairment rating. He selected May 17, 2016 as the date of MMI as that was the date
appellant had been examined by the treating physician and formed the basis of the definitive
permanent impairment rating. There is no persuasive evidence that choosing a retroactive date of
MMI would be appropriate in the present case. The Board therefore finds that appellant reached
MMI on May 17, 2016.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than two
percent permanent impairment of his left lower extremity, for which he previously received a
schedule award. The Board also finds that appellant has not met his burden of proof to establish a
date of MMI prior to May 17, 2016.

16

J.H., Docket No. 14-1584 (issued October 5, 2016).

17

Mark A. Halloway, 55 ECAB 321, 325 (2004).

18

Adela Hernandez-Piris, 35 ECAB 839 (1984).

19

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3.a (January 2010).

20
C.S., Docket No. 12-1574 (issued April 12, 2013); P.C., 58 ECAB 539 (2007); James E. Earle, 51 ECAB
567 (2000).

6

ORDER
IT IS HEREBY ORDERED THAT the March 2, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 11, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-333
Issued: September 3, 2010

Case Submitted on the Record

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

JURISDICTION
On November 18, 2009 appellant filed a timely appeal from an October 19, 2009 merit
decision of the Office of Workers’ Compensation Programs. 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 established that he sustained an injury in the performance
of duty on January 29, 2009, causally related to his employment.
FACTUAL HISTORY
On February 4, 2009 appellant, a 63-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) for a left shoulder, neck and lower back injury he sustained on January 29,

2009 after lifting a tray of mail.1 He alleged that he was attempting to transfer mail from the
back to the front of his mail truck when his injury occurred.
In an undated note, Marco Noriega, a customer service supervisor, reported that, on
January 29, 2009, while appellant was delivering his route, his route was also being inspected.
Pat Ambrosino, the route inspector, telephoned the employing establishment and reported that an
“industrial incident” occurred. Mr. Noriega and the station manager “rushed to the scene” where
they found appellant being loaded into a “fire-rescue ambulance.” The carrier told him that
appellant was “suffering from some type of panic disorder and was unable to speak.”
On January 29, 2009 Mr. Ambrosino, reported that, after appellant dropped a tray of
mail, he “proceeded to [a] Pizza Hut where he called his wife and 911.” He observed that
appellant was “shaking” and complaining that his left shoulder hurt. Mr. Ambrosino reported
that fire and rescue arrived on the scene, took appellant’s vitals, which “were fine,” and that
appellant’s wife arrived and gave him a blood pressure pill that “he said he forgot to take …
[that] morning.”
Appellant was taken to Kendal Regional Hospital for observation and treatment. He
submitted hospital reports, dated January 29, 2009, diagnosing “anxiety.” The report noted that
appellant presented to the emergency room complaining of shoulder pain, dizziness and
headaches.
Appellant submitted reports bearing illegible signatures. He also submitted a report dated
February 4, 2009 in which Dr. David E. Font-Rodriguez, an orthopedic surgeon, noted that a
magnetic resonance imaging (MRI) scan taken prior to January 29, 2009 showed a small
recurrence of rotator cuff tear. Dr. Font-Rodriquez stated that appellant’s left shoulder “gave
way” while he was lifting a heavy box on January 29, 2009. He then diagnosed “recurrent
rotator cuff tear.” Dr. Font-Rodriquez noted that appellant “reinjur[ed]” his rotator cuff on
January 29, 2009, while “at work.”2 He concluded his report by recommending that appellant
undergo a new MRI scan to “reflect what possible additional damage and rotator cuff tear
extension has occurred.” In another report (Form CA-17), also dated February 4, 2009, Dr. FontRodriguez diagnosed rotator cuff tear and advised appellant not to return to work.
On February 12, 2009 Dr. Douglas Hornsby, a Board-certified diagnostic radiologist,
reported that an MRI scan of appellant’s left shoulder revealed a chronic enlargement of the
acromioclavicular joint with superficial and deep spurring impingement upon the underlying
supraspinatus muscle. He noted that the MRI scan revealed that appellant’s glenoid labrum was
intact, the interspace teres minor and subscapuluas muscle had normal appearance and there was
no evidence of excessive fluid within the glenoid humeral joint space.
1

Appellant has a prior claim, File No. xxxxxx105, which was accepted for shoulder sprain. He underwent left
shoulder surgery on August 11, 2008 but, by decision dated February 25, 2009, the Office denied authorization for
the surgery.
2

The Board notes that the Office issued a (Form CA-16). A properly executed CA-16 form creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989). The CA-16 form issued to
appellant authorized examination and treatment and was therefore properly executed.

2

On February 18, 2009 Dr. Font-Rodriguez diagnosed “recurrent rotator cuff tear.” He
disputed the results of the February 12, 2009 MRI scan because they were “completely
contradictory to [appellant’s] prerecent injury, [sic] and goes against his clinical findings [sic].”
Dr. Font-Rodriquez recommended that appellant undergo another MRI scan examination.
By letter dated February 19, 2009, the employing establishment controverted appellant’s
claim.
By decision dated March 19, 2009, the Office denied the claim because the evidence of
record did not demonstrate that the established employment incident caused a medicallydiagnosed condition.
On March 24, 2009 appellant requested an oral hearing. On March 24, 2009 the Office
received an additional report from Dr. Font-Rodriguez. In this March 17, 2009 report CA-17
form, Dr. Font-Rodriguez noted that MRI scan examination prior to January 29, 2009 showed a
small recurrence of rotator cuff tear, but post injury there was no progression of the tear. He
diagnosed recurrent rotator cuff tear.
At the hearing conducted on July 17, 2009, appellant and his attorney were present and
he provided testimony concerning his medical condition, prior workers’ compensation claims,
his employment duties, his history of injury and the events of January 29, 2009.
By decision dated October 19, 2009, the Office affirmed its prior decision because the
evidence of record did not demonstrate that the established employment incident caused a
medically-diagnosed condition. The hearing representative also concluded that appellant had not
submitted any medical evidence establishing causal relationship between appellant’s emotional
condition and the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,4
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.5 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.6 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,

3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
6

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

3

the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.8 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
The Office accepted that the January 29, 2009 incident occurred as alleged: appellant
lifted and dropped a tray of mail while in the performance of duty. Appellant’s burden is to
demonstrate the accepted employment incident caused a medically-diagnosed condition. Causal
relationship is a medical issue that can only be proven by probative medical opinion evidence.
The medical opinion evidence of record lacks the requisite reasoning to establish the causal
relationship between appellant’s condition and the identified employment incident. Accordingly,
the Board finds that he has not established that on January 29, 2009 he sustained an injury in the
performance of duty causally related to his employment.
The illegibly signed notes have no probative value on the issue of causal relationship
because, as they cannot be identified as prepared by a “physician” for purposes of the Act, they
do not constitute competent medical evidence.11 Accordingly, this evidence does not establish
the required causal relationship.

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

8

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

9

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
10

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

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007) (medical form reports with illegible
signatures did not constitute competent medical evidence).

4

Appellant’s claim alleged a shoulder, neck and lower back condition. The hospital
reports have no probative value on the issue of causal relationship regarding the alleged
conditions because they diagnosed “anxiety.” Although these reports stated that appellant
presented to the emergency room complaining of shoulder pain, dizziness and headaches, “pain”
is a symptom, not a compensable diagnosis.12 Furthermore, this particular section of the report
lacks proper identification that it was prepared by a “physician” as defined by the Act. Thus, this
evidence does not establish the requisite causal relationship.
While appellant’s counsel has not formally claimed an emotional condition, the Office
hearing representative found that the evidence of record did not establish a causal relationship
between appellant’s emotional condition and the accepted incident. The Board concurs in this
finding. There is no medical evidence of record causally relating a diagnosed emotional
condition to appellant’s act of lifting and dropping a tray at work on January 29, 2009. While the
hospital reports note anxiety, no opinion was provided regarding the cause of this condition.
The reports signed by Dr. Font-Rodriguez have limited probative value on causal
relationship because they lack an opinion explaining how the established employment incident
caused the diagnosed condition.13
Although Dr. Font-Rodriguez notes that appellant
“reinjur[ed]” his rotator cuff on January 29, 2009, while “at work,” such a statement does not
establish the requisite causal relationship because his opinion is not sufficiently rationalized. He
explained in his reports that appellant had a recurrent rotator cuff tear which was evident on MRI
scan before the January 29, 2009 incident. Dr. Font-Rodriquez recommended that appellant
undergo an additional MRI scan, which was performed on February 12, 2009. In his March 17,
2009 report, he stated that the post injury MRI scan showed no progression of the tear. While
Dr. Font-Rodriquez also opined on February 18, 2009 that he believed the February 2009 MRI
scan findings contradicted his clinical findings, he did not describe the mechanism of injury, the
January 29, 2009 employment incident or explain how it caused appellant’s condition. The
weight of a medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts of the
case, the medical history provided, the care of analysis manifested and the medical rationale
expressed in support of stated conclusions.14
An award of compensation may not be based on surmise, conjecture or speculation.15
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.16 The fact that a condition manifests itself or worsens during a
12

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

13

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).
14

See Anna C. Leanza, 48 ECAB 115 (1996).

15

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
16

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

5

period of employment17 or that work activities produce symptoms revelatory of an underlying
condition18 does not raise an inference of causal relationship between a claimed condition and an
employment incident.
Because appellant has not submitted medical opinion evidence containing a reasoned
discussion of causal relationship that, explains how the accepted employment incident caused or
aggravated a firmly diagnosed medical condition, the Board finds that he has not established the
essential element of causal relationship.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on January 29, 2009, causally related to his employment
ORDER
IT IS HEREBY ORDERED THAT the October 19, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 3, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

18

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Pocatello, ID,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
David E. Alexander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2430
Issued: July 2, 2009

Case Submitted on the Record

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

JURISDICTION
On September 10, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated June 13, 2008, which denied her reconsideration request
on the grounds that it was untimely filed and failed to establish clear evidence of error. Because
more than one year has elapsed between the last merit decision dated September 21, 2006 and
the filing of this appeal on September 10, 2008, the Board lacks jurisdiction to review the merits
of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
Appellant, a 45-year-old archive technician, filed a claim for benefits on August 4, 2004,
alleging that she developed a chronic cough and lung condition as a result of reviewing

50-year-old malodorous case files on July 19, 2004. She stated that another employee noticed
the smell emitted by the files and told her she had burst a blood vessel in her right eye.
In a memorandum dated September 22, 2005, the employing establishment stated that the
U.S. Public Health Service had conducted testing on the files in question, the results of which
were negative. It stated that, “since initial testing did not substantiate significant microbial or
bacterial growth coupled with the fact that the file in question is indistinguishable from other
files, it is difficult to form a medically plausible hypothesis which would explain the file as the
cause for your continuing medical problems.” The employing establishment stated, however,
that chemical residues were not part of the testing protocol.
In a letter to the Office dated June 22, 2006, received by the Office on July 3, 2007,
appellant stated that she had obtained numerous statements from witnesses who would attest that
the files to which she was exposed on July 19, 2004 bore an odor unlike any to which she had
ever been exposed in her office. She stated that she was told by management that these files
were sprayed with an insecticide to treat for a termite infestation shortly before the suspect file
was shipped to her office for review in July 2004. In addition, appellant stated that she would
submit medical evidence which would establish the causal connection between her claimed
condition and her July 2004 exposure to toxic chemicals. She stated:
“In an effort to force the FBI to make this information available, to have this file
tested for volatile chemicals as requested previously or to provide the file to us so
we can have it tested, I have retained an attorney, David Alexander, 201 East
Center Street, Pocatello, Idaho 83204, telephone number (208) 232-6101, who has
begun taking legal action.”
By decision dated September 21, 2006, the Office denied the claim. It stated that the
employing establishment’s September 22, 2005 memorandum indicated that the files to which
appellant was exposed on July 2004 had been subjected to testing which did not substantiate the
presence of any significant toxic elements.
In a request dated September 21, 2007, received by the Office on September 26, 2006,
appellant’s attorney requested reconsideration. In support of this request, appellant submitted
numerous medical reports and affidavits, which indicated that her claimed condition was
causally related to her exposure to toxic elements at the workplace on July 19, 2004.
By letter dated January 31, 2008, the Office informed appellant that, although her
attorney Mr. Alexander had submitted a request for reconsideration, signed by him on
September 21, 2007 (which was within one year of the September 21, 2006 decision), the Office
had advised her on October 23, 2007 that Mr. Alexander was not an authorized representative, as
there was no record on file of a signed statement authorizing him to represent her in this specific
claim. It stated that her June 22, 2006 letter, which identified Mr. Alexander by name and
address as her attorney did not constitute sufficient authorization for his representation under
20 C.F.R. § 501.11(a); therefore, since Mr. Alexander was not authorized to represent her in her
claim before the Office, the request for reconsideration dated September 21, 2007 was not valid.

2

By decision dated June 13, 2008, the Office denied appellant’s request for
reconsideration without a merit review, finding that she had not timely requested reconsideration
and had failed to submit factual or medical evidence sufficient to establish clear evidence of
error. It stated that she was required to present evidence which showed that the Office made an
error and that there was no evidence submitted that showed that its final merit decision was in
error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act1 does not entitle an
employee to a review of an Office decision as a matter of right.2 This section, vesting the Office
with discretionary authority to determine whether it will review an award for or against
compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).3 As one such limitation, it has stated that it
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.4 The Board has found that the imposition of
this one-year time limitation does not constitute an abuse of the discretionary authority granted
by the Office granted under 5 U.S.C. § 8128(a).5
The Office’s regulations provide that “the appointment [of a representative] must be in
writing.6

1

5 U.S.C. § 8128(a).

2

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon., denied,
41 ECAB 458 (1990).
3

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a point of law; (2) advancing a relevant legal
argument not previously considered by the Office; or (3) constituting relevant and pertinent new evidence not
previously considered by the Office. See 20 C.F.R. § 10.606(b).
4

20 C.F.R. § 10.607(b).

5

See cases cited supra note 2.

6

20 C.F.R. § 10.700(a).

3

ANALYSIS
The Office improperly found that appellant failed to file a timely application for review.
It issued its last merit decision in this case on September 21, 2006. Appellant, through her
attorney, requested reconsideration on September 21, 2007. The Office advised appellant by
letter dated January 31, 2008 that the request for reconsideration dated September 21, 2007 was
not valid because Mr. Alexander was not an authorized representative at the time he made the
request. It noted that, under 20 C.F.R. § 501.11, “no person shall be recognized as representing
an appellant ... unless there shall be filed with the Board a statement in writing, signed by the
party to be represented, authorizing such representation.”7 The Office found that appellant’s
June 22, 2006 letter stating that she had retained Mr. Alexander as her attorney was not sufficient
to constitute valid proof of authorization of his representation under section 501.11.
The Board notes, however, that section 501.11(a) applies to proceedings before the
Board; it does not address the proper procedures for attorney authorization in proceedings before
the Office. In addition, the appeal form checked and signed by Mr. Alexander on September 21,
2007 was complete and accompanied by affidavits from him and appellant, which argued the
merits of her claim. The Board finds that appellant’s June 22, 2006 letter, in conjunction with
the documents she and Mr. Alexander submitted on September 21, 2007, constitute sufficient
indicia of Mr. Alexander’s authorization to represent appellant pursuant to 20 C.F.R.
§ 10.700(a). In addition, these documents, taken together, manifest the requisite intent on
appellant’s part to request reconsideration as of September 21, 2007. As this was within one
year of the date of the Office’s most recent merit decision, September 21, 2006, the Board finds
that appellant’s request cannot be found untimely pursuant to section 10.607 of the Office’s
regulations.8 The case will be remanded for the Office to further review appellant’s
September 21, 2007 reconsideration request in accordance with its regulations and procedures.9
Accordingly, the Office erred in finding that appellant’s request for reconsideration was
untimely filed. The Board will set aside the June 13, 2008 decision and the case is remanded for
a review of the merits of her claim and any other proceedings deemed necessary by the Office, to
be followed by an appropriate decision.
CONCLUSION
The Board finds that the Office erred by finding that appellant’s request for
reconsideration was untimely filed.

7

20 C.F.R. § 501.11(a).

8

The record does not contain a postmark for the September 21, 2007 reconsideration request.

9

See 5 U.S.C. § 8128.

4

ORDER
IT IS HEREBY ORDERED THAT the June 13, 2008 decision of the Office of
Workers’ Compensation Programs is reversed. The case is remanded for a review of the merits
of appellant’s claim and any other proceedings deemed necessary by the Office, to be followed
by an appropriate decision.
Issued: July 2, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5