United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, SOUTH BEND P&DC,
South Bend, IN, Employer
__________________________________________

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

Docket No. 14-490
Issued: December 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 2, 2014 appellant filed a timely appeal from an August 6, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration.1 As more than 180 days elapsed from the last merit decision of March 22, 2013
to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).

1

Appellant originally requested an oral argument before OWCP. However, on April 9, 2014, he advised the
Clerk of the Board that he no longer desired an oral argument. The case will proceed on the record.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 17, 2011 appellant, then a 53-year-old mail processing clerk, sustained a left
shoulder injury in the performance of duty. OWCP accepted the claim for left shoulder sprain
and rotator cuff tear. On July 5, 2011 appellant underwent authorized left shoulder arthroscopic
labral debridement with proximal biceps tenotomy, rotator cuff repair, subacrominal
decompression and distal clavicle resection. OWCP paid wage-loss compensation. On
February 13, 2012 appellant was released to full-time unrestricted work.
On February 2, 2012 appellant filed a Form CA-7 claim for a schedule award. In a
February 13, 2012 report, Dr. Brian Ratigan, a Board-certified orthopedic surgeon, opined that
appellant had reached maximum medical improvement. On examination, appellant had full
range of motion of the left shoulder without pain and the majority of his strength had returned.
Under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), Dr. Ratigan rated 10 percent left upper extremity
impairment under Table 15-5.
In a November 15, 2012 report, Dr. Nabil F. Angley, an OWCP medical adviser,
reviewed the statement of accepted facts and Dr. Ratigan’s February 13, 2012 report. He found
that Dr. Ratigan’s impairment rating should be discarded as appellant had restricted left shoulder
motion and Table 15-5 was not applicable. He recommended that appellant be referred for a
second opinion on any permanent impairment.
OWCP referred appellant to Dr. Emmanuel Obianwu, a Board-certified orthopedic
surgeon, for an impairment evaluation. In a January 7, 2013 report, Dr. Obianwu found that
appellant had 10 percent left upper extremity impairment under Table 15-5 for s/p distal clavical
resection, class 1 grade C. He discussed the grade modifiers under the sixth edition of the
A.M.A., Guides. On January 31, 2013 Dr. Angley agreed with Dr. Obianwu’s impairment rating
of 10 percent to the left arm.
By decision dated March 22, 2013, OWCP granted appellant a schedule award for 10
percent left arm impairment. Appellant received 31.2 weeks of compensation for the period
July 1, 2012 through February 4, 2013.
On April 23, 2013 appellant filed a claim for an increased schedule award. On July 22,
2013 OWCP received a reconsideration request from him. In an undated letter appellant noted
that his left biceps cramped whenever he lifted items over five pounds. He contended that he
experienced daily pain and that his daily activities were affected by his injury. Appellant stated
that his left arm was worse and it was almost impossible to lift his 16-month-old grandson. No
medical evidence was submitted.
On September 16, 2013 OWCP received another undated statement from appellant
requesting reconsideration on the grounds that his left arm condition has worsened. Appellant
noted that the August 28, 2013 magnetic resonance imaging (MRI) scan detailed damage to his
left biceps since his last MRI scan. He stated that he was informed surgery would not help his
condition. Appellant indicated that he can only lift 10 to 15 pounds with his left arm for a short
period before his biceps start to cramp.

2

Progress reports from Dr. Ratigan dated February 11, 2013, August 21 and 30, 2013
noted appellant should modify his activities to avoid an increase in pain and that he should
continue working on strengthening. He indicated that the previous permanent partial impairment
would stand and appellant can return to work without restrictions. An August 28, 2013 MRI
scan of the left shoulder was also received.
By decision dated August 6, 2013 but issued on December 2, 2013, OWCP denied
appellant’s request for reconsideration without reviewing the merits of the case.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.5 When a claimant fails to
meet one of the above standards, it will deny the application for reconsideration without
reopening the case for review on the merits.6
ANALYSIS
OWCP’s most recent merit decision dated March 22, 2013 granted appellant a schedule
award for 10 percent left upper extremity impairment. It denied his reconsideration request,
without a merit review and he appealed this decision to the Board.
As noted, the Board does not have jurisdiction over the March 22, 2013 OWCP decision.
The issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In his
request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. He did not identify a specific point of law or show that it was
erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument.
The Board notes that the underlying issue in this case is whether appellant has greater
than 10 percent impairment of the left upper extremity. That is a medical issue which must be

3

Under section 8128 of FECA, [t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

3

addressed by relevant medical evidence.7 However, appellant failed to submit any new and
relevant medical evidence in support of his claim.
Appellant submitted progress reports from Dr. Ratigan dated February 11, August 21 and
30, 2013, which noted that he should modify his activities to avoid an increase in pain and
continue working on strengthening. Dr. Ratigan also indicated that the previous permanent
partial impairment would stand and appellant could return to work without restrictions. He also
included an August 28, 2013 MRI scan of the left shoulder. The Board finds that these reports
are not relevant because they do not specifically address whether appellant has greater
impairment to the left arm. Dr. Ratigan specifically stated that the previous permanent partial
impairment would stand. The MRI scan report does not address permanent impairment.
Appellant did not submit any new and relevant medical evidence addressing whether he had
increased permanent impairment in his left arm. Therefore, this material is not relevant and is
insufficient to warrant reopening the case for a merit review.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.8
On appeal, appellant reiterated that his left arm condition has worsened. He may request
an increased schedule award based on evidence of a new exposure or medical evidence showing
progression of an employment-related condition resulting in permanent impairment or increased
impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for merit review under
5 U.S.C. § 8128(a).

7

See Bobbie F. Cowart, 55 ECAB 746 (2004).

8

Robert E. Cullison, 55 ECAB 570 (2004); M.E., 58 ECAB 694 (2007) (when an application for reconsideration
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the
application for reconsideration without reopening the case for a review on the merits).

4

ORDER
IT IS HEREBY ORDERED THAT the August 6, 2013 decision of the Office of
Workers’ Compensation Programs issued on December 2, 2013 is affirmed.
Issued: December 17, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 09-336
Issued: July 13, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 17, 2008 appellant filed a timely appeal from a September 30, 2008 merit
decision of the Office of Workers’ Compensation Programs, denying her claim for
compensation. 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 a back injury on October 12, 2007.
FACTUAL HISTORY
On December 19, 2007 appellant, then a 42-year-old computer operator, filed an
occupational disease claim (Form CA-2) alleging that she sustained lumbar muscle strain and
spasms when she bent down on October 12, 2007 to pick up mail and felt a pull as she stood up.
She sought medical treatment on October 15, 2007 and she left work early on October 19, 2007.
In a brief statement dated December 12, 2007, appellant advised that she went to a hospital

emergency room on October 15 and December 4, 2007. She stated that she was required to
remove mail from bins and on October 12, 2007 she felt a pull in her back as she lifted the mail.
In a note dated October 24, 2007, Dr. Dennis Treece, a family practitioner, diagnosed
back pain and indicated that appellant should not engage in lifting over 10 pounds. A January 3,
2008 note diagnosed sciatica and lumbar radiculopathy. A magnetic resonance imaging scan of
the lumbar spine was performed on January 8, 2008, revealing severe degenerative disc disease
at L4-5 and L5-S1. A duty status report (Form CA-17) dated January 16, 2008 from a family
practitioner provided a history of the October 12, 2007 incident.1 The diagnosis due to injury
was severe degenerative disc disease.
By decision dated February 5, 2008, the Office denied the claim for compensation. It
found that the medical evidence was insufficient to establish an injury arising from the accepted
incident.
Appellant requested a hearing before an Office hearing representative, which was held on
July 14, 2008. At the hearing, appellant’s representative asserted that she had a back spasm at
work on April 25, 2008 and fell. In a report dated May 9, 2008, Dr. Abulhasan Sayed, a
physiatrist, indicated that appellant was seen for chronic low back pain that started on
October 12, 2007 when she picked up mail and felt a pop. Dr. Sayed provided results on
examination and diagnosed chronic low back pain. Appellant also submitted physical therapy
reports.
By decision dated September 30, 2008, an Office hearing representative affirmed the
February 5, 2008 decision. She found that the medical evidence was insufficient to establish the
claim as the physicians of record failed to provide a history of her employment or address causal
relation.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for the payment of compensation
for “the disability or death of an employee resulting from personal injury sustained while in the
performance of duty.”2 The phrase “sustained while in the performance of duty” in the Act is
regarded as the equivalent of the commonly found requisite in workers’ compensation law of
“arising out of and in the course of employment.”3 An employee seeking benefits under the Act
has the burden of establishing that he or she sustained an injury while in the performance of
duty.4 In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally “fact of injury” consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
1

The signature is illegible.

2

5 U.S.C. § 8102(a).

3

Valerie C. Boward, 50 ECAB 126 (1998).

4

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

2

actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury and generally, this can
be established only by medical evidence.5
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.6
ANALYSIS
Although appellant filed a Form CA-2, which is intended for claims of injury occurring
over more than one workday or shift,7 she attributed her condition to an October 12, 2007
incident when she bent over to pick up mail. The Office accepted that the incident occurred as
alleged. The issue is whether there is rationalized medical opinion evidence establishing a
diagnosed condition causally related to the October 12, 2007 incident.8
The Board finds there is no rationalized medical evidence on the issue of causal
relationship. The diagnoses from Dr. Treece included sciatica, lumbar radiculopathy and lumbar
degenerative disc disease. He did not provide any narrative opinion with supporting medical
rationale addressing causal relationship with the accepted incident. Similarly, Dr. Sayed did not
provide an opinion on causal relationship. He diagnosed chronic low back pain. As noted, a
rationalized opinion must be based on a complete and accurate factual background and must be
supported by medical rationale. It is appellant’s burden of proof. The Board finds that appellant
did not meet her burden in this case based on deficiencies in the medical reports of record.
CONCLUSION
The Board finds that appellant did not establish a back injury causally related to the
October 12, 2007 incident.

5

See John J. Carlone, 41 ECAB 354, 357 (1989).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

7

See 20 C.F.R. § 10.5(q).

8

It is not clear whether appellant filed a claim with respect to an April 25, 2008 incident. To the extent she is
alleging a consequential injury from the October 12, 2007 incident, appellant would have to establish an
employment injury, and then submit evidence establishing an injury on April 25, 2008 that resulted from the natural
progression of the accepted employment injury. See Bernitta L. Wright, 53 ECAB 514 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 30 and February 5, 2008 are affirmed.
Issued: July 13, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., claiming as widow of G.B., Appellant
and
AGENCY FOR INTERNATIONAL
DEVELOPMENT, Saigon, Vietnam, Employer
__________________________________________

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

Docket No. 09-723
Issued: November 4, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 22, 2009 appellant filed a timely appeal from an October 22, 2008 merit
decision of the Office of Workers’ Compensation Programs denying her claim for death
benefits.1 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 the employee’s death was causally related to his accepted work
injury.
FACTUAL HISTORY
In 1972, the Office accepted that the employee, then a 44-year-old public safety adviser,
sustained a generalized anxiety disorder and erectile impotence as a result of work performed in
1

The record also contains an October 23, 2008 overpayment decision. Appellant has not appealed this decision
and thus it is not before the Board at this time. 20 C.F.R. § 501.2(c).

Vietnam from April 1968 to January 1972. He stopped work in 1972 and did not return. The
Office paid the employee compensation for total disability.
The employee died on May 28, 2008 and appellant, his widow, requested death benefits.2
The June 4, 2008 death certificate provided the cause of death as ischemic heart disease. The
certificate listed stress-induced cardiomyopathy and work-related anxiety neurosis as other
significant conditions contributing to death but not resulting in the underlying cause of death.
On July 10, 2008 the Office requested that appellant submit a comprehensive medical
report from the employee’s attending physician addressing the cause of the employee’s death. In
a report dated July 18, 2008, Dr. Eran Matalon, a Board-certified internist, related that he had
treated the employee since 1992. He diagnosed stress-induced cardiomyopathy due to an
underlying anxiety neurosis. Dr. Matalon stated:
“[The employee] did have numerous other comorbidities including hypertension,
hyperlipidemia, valvular and ischemic heart disease. Clearly, most of his
comorbidities developed after his stress[-]induced cardiomyopathy. He also had
dementia that is thought to be due to normal pressure hydrocephalus. [The
employee] had numerous surgical procedures for lung cancer, colon cancer,
prostate cancer and the hydrocephalus. He had aortic placement and bypass
surgery. According to his psychiatrist and his wife, he was extremely anxious the
day prior to his death. Thus, it is my opinion, that his anxiety neurosis was a
significant factor leading to his death.”
On July 30, 2008 Dr. Neil Ehrlich, a Board-certified psychiatrist, referenced a
January 15, 2008 report that he had recently provided comments regarding the employee’s
condition.3 He asserted that the employee’s anxiety disorder “was a significant contributing
proximate cause to his death.” Dr. Ehrlich evaluated the employee on the date of death and
related:
“At that time, [the employee’s] anxiety level was quite high and he was clearly
agitated and struggling emotionally. Although he appeared to be in good physical
health at the time, he was clearly dealing with considerable emotional distress -feeling overwhelmed, anxious and frustrated with his ability to cope. These
symptoms had been building over time. [The employee] had problems adjusting
to his declining level of functioning and worsening age-related cognition. There
had been an attempt to place a shunt in his brain for Normal Pressure
Hydrocephalus at the VA [Veterans Affairs] Hospital in San Francisco in early

2

The record does not contain a claim form from appellant requesting death benefits.

3

In a report dated January 15, 2008, Dr. Ehrlich related that he had treated appellant since January 2001 for his
“accepted work-related disability” of anxiety neurosis, now known as a generalized anxiety disorder. He asserted
that the employee’s symptoms of anxiety interfered with his functioning and was “compounded by the fact that he is
elderly with both declining physical and cognitive functioning.” Dr. Ehrlich opined that the employee’s anxiety
levels and difficulty concentrating were the “natural evolution of a long-standing problem that began with his
original work injury.”

2

2008. This failed due to an infection and had to be removed. [The employee’s]
emotional equilibrium was compromised by the stress of that situation.”
Dr. Ehrlich noted that the employee was initially diagnosed with anxiety neurosis while
working for the Federal Government in Vietnam. The employee also developed cardiac
problems concurrent with this diagnosis of anxiety neurosis. Dr. Ehrlich indicated that he had
not seen early medical records but stated:
“I would have to assume that it was felt that high levels of anxiety triggered his
cardiovascular problems. Similarly, it is quite apparent to me that his anxiety and
agitation prior to his death were of such a degree that they contributed to his
demise. It is certainly well known that stress and anxiety can contribute to or
exacerbate cardiovascular conditions; and I feel that this was very likely in [the
employee’s] situation.”
On October 1, 2008 the Office referred the medical records to Dr. Ajit B. Raisinghani, a
Board-certified internist, for a second opinion regarding whether the accepted condition or
generalized anxiety disorder or factors of employment described in the statement of accepted
facts caused, aggravated or accelerated the employee’s death.4 In a report dated October 3, 2008,
Dr. Raisinghani discussed the employee’s work history and reviewed the medical evidence of
record. He described the employee’s history of colon cancer, lung cancer, cardiac neurosis,
normal pressure hydrocephalus and suspected Alzheimer’s disease. Dr. Raisinghani noted that
he experienced premature ventricular contractions (PVCs) in the early 1970s. A cardiac
catheterization showed mildly depressed left ventricle function. The employee later developed
severe aortic stenosis and underwent an aortic value replacement in September 2004.
Dr. Raisinghani related:
“Overall, in reviewing the claimant’s history, his initial problem appeared to be
PVCs. He did have mild cardiomyopathy documented by an angiogram in the
early l980s; however, subsequent echoes done within the last 5 [to] 10 years
revealed normal LV [left ventricle] function. It would be difficult to attribute his
aortic stenosis and the single vessel coronary artery disease documented at the age
of 75 or 76 to be attributed to events that took place in 1972, especially
considering that the subsequent echoes revealed normal LV function.
“Therefore, my assessment would be that the claimant’s death from ischemic
heart disease (which incidentally there is no report available of) could not be
attributed to his initial accepted disabilities of anxiety neurosis.”
By decision dated October 22, 2008, the Office denied appellant’s claim for death
benefits.

4

The statement of accepted facts described the employee’s work in Saigon, Vietnam and his exposure to
hazardous work conditions and the need to work overtime.

3

LEGAL PRECEDENT
The United States shall pay compensation for the death of an employee resulting from
personal injury sustained while in the performance of duty.5 An appellant has the burden of
proving by the weight of the reliable, probative and substantial evidence that the employee’s
death was causally related to his or her federal employment. This burden includes the necessity
of furnishing medical opinion evidence of a cause and effect relationship based on a proper
factual and medical background. The opinion of the physician must be one of reasonable
medical certainty and must be supported by medical rationale.6 The mere showing that an
employee was receiving compensation for total disability at the time of death does not establish
that the employee’s death was causally related to his or her federal employment.7
ANALYSIS
The Office accepted that the employee sustained a generalized anxiety disorder due to
work factors occurring from April 1968 to January 1972. He stopped work in 1972 and received
compensation for total disability. The employee died on May 28, 2008 and appellant, his widow,
requested death benefits.
In a report dated July 18, 2008, Dr. Matalon diagnosed stress-induced cardiomyopathy
due to an underlying anxiety disorder. He discussed the employee’s noncardiac conditions of
lung cancer, colon cancer, prostate cancer and hydrocephalus. Dr. Matalon noted that the
employee’s wife and his attending psychiatrist advised that he was anxious the date before his
death and thus opined that “his anxiety neurosis was a significant factor leading to his death.”
He did not, however, specifically attribute the anxiety experienced by the employee to the effects
of his work injury or describe the mechanism by which anxiety resulting from the employee’s
work injury over 35 years prior caused or contributed to death. A medical report is of limited
probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship which is unsupported by medical rationale.8
In a report dated July 30, 2008, Dr. Ehrlich asserted that the employee’s anxiety disorder
was a significant contributing cause of his death. He indicated that he had treated the employee
the date of his death and that he was “clearly agitated and struggling emotionally.” Dr. Ehrlich
found that he had difficulty “adjusting to his declining level of functioning and worsening agerelated cognition.” He noted that an attempt to treat the employee’s normal pressure
hydrocephalus failed due to an infection and that his “emotional equilibrium was compromised
by the stress of that situation.” Dr. Ehrlich opined that the employee’s anxiety at the time he
initially received disability may have resulted in his cardiovascular problems. He advised that
stress and anxiety could exacerbate cardiovascular conditions and that he felt “this was very
likely in [the employee’s] situation.” Dr. Ehrlich, however, appeared to relate the employee’s
5

5 U.S.C. § 8102(a).

6

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

7

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139 (2001).

8

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009).

4

stress and anxiety to difficulty coping with his decline in cognitive function due to age and the
failure to adequately treat his hydrocephalus rather than his employment-related generalized
anxiety disorder. He opined that the employee’s anxiety at the time of his initial diagnosis may
have precipitated his cardiac condition but noted that he did not have the contemporaneous
medical reports to review.9 Further, Dr. Ehrlich did not provide any rationale for his opinion.
Medical conclusions that are speculative or unsupported by rationale are of diminished probative
value.10
Moreover, in a report dated October 3, 2008, Dr. Raisinghani found that the employee’s
death did not result from his accepted work injury or other factors of his federal employment.
He noted that the employee experienced premature ventricular contractions in the early 1970s
and that a cardiac catheterization revealed mildly depressed left ventricle function.
Dr. Raisinghani indicated that the employee had mild cardiomyopathy in the early 1980s but that
subsequent studies were normal. He found that the employee’s aortic stenosis and single vessel
coronary artery disease were unrelated to events from 1972 in view of his subsequent normal left
ventricle functions on echocardiogram. Dr. Raisinghani opined that the employee’s death due to
ischemic heart disease “could not be attributed to his initial accepted disabilities of anxiety
neurosis.” His opinion is rationalized and thorough and represents the weight of the evidence.
Consequently, appellant has not met her burden of proof to establish that the employee’s death
was causally related to his accepted work injury.
On appeal appellant noted that the Office paid the employee’s cardiac bills from 1972 to
2004. The fact that the Office authorized and paid for some medical treatment, however, does
not establish that the condition for which the employee received treatment was employment
related.11 Appellant also indicated that the employee received psychiatric treatment twice a
month until his death and that on the day of his death he was extremely anxious. She believed
that his anxiety contributed to his death. Appellant quoted the death certificate which provided
that stress-induced cardiomyopathy and work-related anxiety neurosis were significant
conditions contributing to death. She, however, has the burden of proof to submit rationalized
medical evidence showing that the employee’s death was causally related to his accepted
employment injury.12 Appellant has not submitted a medical report from a physician who
provides an accurate history of the employee’s work injury, addresses the cause of death on
May 28, 2008 and explains with sound medical reasoning how the injury contributed to the
death. Consequently, she has not met her burden of proof.13

9

Medical conclusions based on an inaccurate or incomplete factual history are of diminished probative value; see
M.W., 57 ECAB 710 (2006).
10

See T.M., supra note 8; Jacquelyn L. Oliver, 48 ECAB 232 (1996).

11

See Glen E. Shriner, 53 ECAB 165 (2001); Dale E. Jones, 48 ECAB 648 (1997).

12

Jacqueline Brasch (Ronald Brasch), supra note 6.

13

Appellant also argued that the Office erroneously believed that the employee took certain medication; however,
the medication taken by the employee is not pertinent to the relevant issue of whether his death was causally related
to his accepted work injury.

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CONCLUSION
The Board finds that appellant has not established that the employee’s death was causally
related to his accepted work injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 22, 2008 is affirmed.
Issued: November 4, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 19-1224
Issued: November 15, 2019

Case Submitted on the Record

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

JURISDICTION
On May 12, 2019 appellant filed a timely appeal from a May 8, 2019 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 8, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective May 9, 2019, as she no longer had residuals or
disability causally related to her accepted April 4, 2018 employment injury.
FACTUAL HISTORY
On April 19, 2018 appellant, then a 37-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 4, 2018 she strained her right lower back and felt extreme pain
in her back, right leg, and right arm when lifting a relay bag while in the performance of duty. She
stopped work on April 7, 2018 and received continuation of pay (COP). On June 4, 2018 OWCP
accepted appellant’s claim for lumbar and cervical sprain. It paid wage-loss compensation for
temporary total disability from May 24, 2018 to March 29, 2019 on the supplemental rolls.
In a narrative report dated October 10, 2018, Dr. Marina Neystat, Board-certified in
internal medicine, noted that appellant had a previous diagnosis of arthritis. She related that
appellant’s current condition was caused by a job-related event when she reinjured her back lifting
a heavy weight. Dr. Neystat diagnosed lumbar radiculopathy, lumbar polyneuropathy, lumbar and
cervical sprain. In a form progress report dated October 21, 2018, she diagnosed lumbar
radiculopathy and polyneuropathy. In a narrative report dated November 28, 2018, Dr. Neystat
diagnosed lumbar sprain preexistent and exacerbated, lumbar radiculopathy, and cervical sprain.
In a November 28, 2018 work capacity evaluation (Form OWCP-5c), she checked a box marked
“yes” in response to a question as to whether appellant was able to work with restrictions.
Dr. Neystat noted that appellant was able to work an eight-hour shift, with frequent breaks and no
lifting or carrying over 10 pounds.
On December 27, 2018 OWCP referred appellant, along with a statement of accepted facts
and a copy of the record, to Dr. Andrew Farber, an osteopathic physician Board-certified in
orthopedic surgery, for a second-opinion evaluation regarding the status of her work-related injury
and work capacity.
In a January 15, 2019 report, Dr. Farber reviewed appellant’s history of injury, which
included a previous back injury in 2016, and appellant’s accepted claim for lumbar and cervical
strain. He examined appellant and provided findings, which included that she was nontender to
palpation, had strength in the lower extremity of 5/5, and no focal neurovascular deficits noted.
Dr. Farber also provided goniometric measurements for range of motion. He concluded that the
accepted conditions of cervical and lumbar sprains were no longer active, nor were they causing
objective symptoms. Dr. Farber indicated that appellant was able to return to work with a lifting
restriction of 20 pounds.
In a letter dated February 5, 2019, OWCP requested that Dr. Farber explain why there was
a need for physical restrictions since he had indicated that the accepted conditions had resolved
without objective symptoms.
In a February 14, 2019 addendum, clarifying his original report, Dr. Farber related that
appellant’s accepted conditions had resolved and she could return to work without restrictions. He

2

explained that appellant no longer had tenderness in her cervical or lumbar spine and she had full
range of motion and strength. Dr. Farber concluded that appellant had no lifting restrictions and
no need for further treatment.
On March 18, 2019 OWCP proposed to terminate appellant’s medical benefits and wageloss compensation because she no longer had residuals or disability due to her accepted April 4,
2018 employment injury. It found that the weight of the medical evidence rested with the
January 15 and February 14, 2019 reports of Dr. Farber, who found that appellant’s lumbar and
cervical sprains had resolved, that she was no longer disabled from work, and that there was no
need for further treatment. OWCP afforded appellant 30 days to submit additional evidence or
argument in writing, if she disagreed with the proposed termination.
By decision dated May 8, 2019, OWCP finalized the termination of appellant’s wage-loss
compensation and medical benefits, effective May 9, 2019. It found that the weight of the medical
evidence rested with Dr. Farber, OWCP’s second-opinion examiner.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s benefits.3 It may not terminate compensation
without establishing that the disability had ceased or that it was no longer related to the
employment injury.4 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5 The right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability
compensation.6 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition, which require further
medical treatment.7
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective May 9, 2019, as she no longer had residuals or
disability causally related to her accepted April 4, 2018 employment injury.
OWCP referred appellant to Dr. Farber for a second-opinion evaluation to determine the
status of her accepted conditions and her work capacity. In his January 15, 2019 report and
February 14, 2019 addendum, Dr. Farber described appellant’s April 4, 2018 employment injury
3

See M.H., Docket No. 19-0782 (issued September 9, 2019); A.G., Docket No. 18-0749 (issued November 7, 2018);
S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
4

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

5

R.R., Docket No. 19-0173 (issued May 2, 2019); Del K. Rykert, 40 ECAB 284 (1988).

6

L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).

3

and noted that her claim was accepted for lumbar and cervical strain. He indicated that appellant’s
physical examination revealed no objective findings of the accepted conditions. Dr. Farber found
that appellant had no tenderness of her cervical or lumbar spine, and full range of motion and
strength. He opined in his addendum report that the accepted conditions had resolved, that
appellant could return to work without restrictions, and there was no need for further medical
treatment.
The Board finds that OWCP properly accorded the weight of the medical evidence to
Dr. Farber. Dr. Farber based his opinion on a proper factual and medical history and physical
examination findings and provided medical rationale for his opinion. He provided a wellrationalized opinion based on medical evidence regarding the accepted conditions causally related
to appellant’s April 4, 2018 employment injury. Accordingly, OWCP properly relied on
Dr. Farber’s second-opinion report in terminating appellant’s wage-loss compensation and
medical benefits.8
The Board notes that appellant’s treating physician, Dr. Neystat, reported on October 10,
2018 that appellant had a preexisting diagnosis of arthritis and that she had reinjured her back
lifting a heavy weight at work. Dr. Neystat diagnosed lumbar radiculopathy, lumbar
polyneuropathy, lumbar and cervical sprain. In a progress report dated October 21, 2018, she only
noted diagnoses of lumbar radiculopathy and polyneuropathy. In her November 28, 2018 narrative
report, Dr. Neystat diagnosed lumbar sprain preexistent and exacerbated, lumbar radiculopathy,
and cervical sprain. In her November 28, 2018 work capacity evaluation, she related that appellant
could work an eight-hour shift, with frequent breaks and a 10-pound lifting restriction. However,
in this report, Dr. Neystat did not provide an opinion as to whether appellant’s restrictions were
due to the accepted employment injury. Therefore, his opinion is insufficient to overcome the
weight of the medical evidence accorded to Dr. Farber.9
The Board thus finds that OWCP properly terminated appellant’s wage-loss compensation
and medical benefits, effective May 9, 2019.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective May 9, 2019, as she no longer had residuals or
disability causally related to her accepted April 4, 2018 employment injury.

8

See N.G., Docket No. 18-1340 (issued March 6, 2019); A.F., Docket No. 16-0393 (issued June 24, 2016).

9

See E.O., Docket No. 19-0472 (issued August 15, 2019); J.P., Docket No. 16-1103 (issued November 25, 2016).

4

ORDER
IT IS HEREBY ORDERED THAT the May 8, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 15, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 08-408
Issued: December 16, 2008

Case Submitted on the Record

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

JURISDICTION
On August 29, 2007 appellant filed a timely appeal from the November 15, 2006 decision
of the Office of Workers’ Compensation Programs, which denied her traumatic injury claim and
a July 27, 2007 decision denying her request for an oral hearing. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant sustained a right knee injury on September 5, 2006
in the performance of duty, as alleged; and (2) whether the Office properly denied her request for
an oral hearing as untimely filed.
FACTUAL HISTORY
On September 11, 2006 appellant, then a 53-year-old mail clerk, filed a traumatic injury
claim alleging that on September 5, 2006 she injured her right knee when she slipped while
walking down a hallway at the employing establishment.
She stopped work on
September 6, 2006.

Appellant was treated on September 6, 2006 by Dr. Scott Miller, an internist, who
obtained a history that she felt acute tenderness in the right knee while walking at work. She did
not recall twisting her leg. On examination, Dr. Miller noted swelling of the right knee with
tenderness in the medial region. He ordered diagnostic testing. On September 8, 2006
Dr. Gregory Altman, a Board-certified orthopedic surgeon, treated appellant at the request of
Dr. Miller. He obtained a history that she fell on water approximately one-month prior and
sustained a twisting injury to her right knee. Appellant denied any prior knee problems.
Dr. Altman reported that x-rays of the right knee did not reveal any bony abnormality.
A September 12, 2006 magnetic resonance imaging (MRI) scan revealed the anterior
cruciate and lateral collateral ligaments to be intact with normal chondral surfaces. A small
vertical tear of the medial meniscus was observed with degenerative lobular signals throughout
the remainder of the body of the meniscus. Medial and anterior compartment degenerative joint
disease was diagnosed with findings consistent with quadriceps tendinopathy and a possible
synovial cyst or ganglion. On September 20, 2006 Dr. Altman reviewed the MRI scan and
diagnosed a medial meniscus tear. He noted that she would be scheduled for arthroscopic
evaluation.
Nancy J. Cheskey and Gail Carr, coworkers, provided statements concerning the incident.
Ms. Cheskey stated that on September 5, 2006 she was walking down the hall with appellant,
who reached down and commented that her knee hurt. Appellant rubbed her right knee for a
minute before they walked back to her office. A nearby coworker commented that appellant was
wearing two different shoes. Ms. Cheskey did not observe appellant trip, slip or fall while they
were walking together. Ms. Carr noted that, on September 6, 2006, appellant told her that she
was experiencing knee pain following an injury in the hallway the previous day. Appellant could
not recall how she injured her knee, other than walking with Ms. Cheskey. Ms. Carr asked
Ms. Cheskey about the injury, she stated that appellant had winked at her about filling out an
accident report.
By letter dated October 2, 2006, the Office requested that appellant submit additional
evidence in support of her claim. It subsequently received a statement from Jane Rahenkamp,
manager of marketing, who spoke to appellant on September 6, 2006 and related that she was
walking down the hall with Ms. Cheskey on the prior day when she twisted her knee and almost
fell. Ms. Rahenkamp instructed appellant on filing a claim. Subsequently, Ms. Cheskey and
Ms. Carr mentioned their belief that appellant stopped work to be with her husband while he was
undergoing medical tests. Ms. Cheskey challenged appellant’s description of having twisted her
knee while walking down the hall. She informed Ms. Rahenkamp that appellant’s knee was
swollen when she arrived at work that day.
On October 5, 2006 appellant responded to the statements of her coworkers regarding the
September 5, 2006 incident. She related that she experienced terrible pain in her knee as they
were walking down the hall. Appellant grabbed onto a nearby U-cart and her knee went out
from under her. She contended that Ms. Cheskey did not assist her but walked away laughing at
her. Another coworker, James Joyce, assisted appellant back to her office. Appellant denied
wearing different styles of shoes on her feet or of complaining of knee pain to Ms. Cheskey prior
to the incident. The following day, Ms. Rahenkamp instructed appellant to notify her supervisor
and fill out an accident report. Appellant subsequently underwent medical evaluation.

2

On October 12, 2006 Dr. Altman advised that appellant was totally disabled. He noted a
history that she twisted her right knee at work on a wet floor on September 5, 2006.
In a November 15, 2006 decision, the Office denied appellant’s claim, finding that the
evidence was insufficient to establish that she sustained the September 5, 2006 incident at the
time, place and in the manner alleged.
On June 4, 2007 appellant requested an oral hearing before an Office hearing
representative. Additional evidence was submitted to the record.
In a July 27, 2007 decision, the Office denied appellant’s request for an oral hearing. It
found that her request was untimely made more than 30 days after the November 15, 2006
decision. The Office also denied the hearing on the grounds that she could submit additional
evidence with a request for reconsideration.1
LEGAL PRECEDENT -- ISSUE 1
An employee has the burden of establishing the essential elements of her claim, including
the fact that she is an “employee of the United States” within the meaning of the Federal
Employees’ Compensation Act, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty, as alleged and that any
disability or specific conditions for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of every claim for compensation
regardless of whether the claim is based on a traumatic injury or an occupational disease.3
An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury while in the performance of duty. However, the
employee’s statements must be consistent with the surrounding facts and circumstances and his
or her subsequent course of action.4 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may cast doubt on an employee’s statements in
determining whether he or she has established a prima facie claim for compensation. The
employee has the burden of establishing the occurrence of an alleged injury at the time, place
and in the manner alleged by a preponderance of the evidence.5 An employee has not met this
burden when there are such inconsistencies in the evidence that cast serious doubt upon the
validity of the claim. However, an employee’s statement alleging that an injury occurred at a
1

The Board notes that the Office issued a December 6, 2007 decision denying appellant’s November 5, 2007
request for reconsideration. As this decision was issued after appellant filed her appeal with the Board on
August 29, 2007, it is null and void. See Douglas E. Billings, 41 ECAB 880 (1990); Oren E. Beck, 33 ECAB
1551 (1982).
2

See James P. Bailey, 53 ECAB 494 (2002).

3

See Christine S. Hebert, 49 ECAB 616 (1998).

4

See Mary Jo Coppolino, 43 ECAB 988 (1992).

5

S.B., 58 ECAB ___ (Docket No. 06-978, issued March 5, 2007).

3

given time and in a given manner is of great probative value and will stand unless refuted by
strong and persuasive evidence.6
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained injury to her right knee on September 5, 2006 while
walking down a hall at work. The Office denied her claim, finding that there were
inconsistencies in the evidence concerning how she injured her knee.
On her claim form, appellant noted that she slipped while walking in a hallway at the
employing establishment on September 5, 2006. She was accompanied by Ms. Cheskey, a
coworker, who stated that appellant reached down and commented that her knee hurt. Appellant
rubbed her knee for a moment before they walked back to her office. Ms. Cheskey advised that
she did not see appellant slip while they were walking together.7
When treated by Dr. Miller on September 6, 2006, appellant related that she felt
tenderness in her right knee while walking at work. He noted that she did not recall having
twisted her leg. However, on September 8, 2006, Dr. Altman obtained a history that appellant
had fallen on water approximately a month prior and sustained a twisting injury to the right knee.
Ms. Rahenkamp, a manager, spoke with appellant on September 6, 2005. Appellant
reported that she twisted her knee while walking with Ms. Cheskey and almost fell. When
requested to explain the discrepancies in the depiction of the September 5, 2006 incident,
appellant stated that she felt terrible pain in her right knee while walking with Ms. Cheskey and
grabbed onto a nearby cart for support when her knee went out from under her. Appellant
contended that Ms. Cheskey did not assist her and walked away.
The Board finds that there are such inconsistencies in the evidence to cast doubt upon the
validity of appellant’s claim that she sustained a right knee injury while walking at work on
September 5, 2006. Appellant’s account of having slipped or that her knee came out from under
her while walking that day was not supported by her coworker. Ms. Cheskey did not observe
appellant slip or grab onto a nearby cart for support. This evidence casts doubt on the validity of
the claim. Moreover, the histories related to appellant’s physicians are not consistent. Dr. Miller
noted that appellant did not recall twisting her right leg on September 5, 2006 when treated the
next day. This is inconsistent with appellant’s statements of how the injury occurred.
Dr. Altman obtained a history of a right knee injury approximately a month prior to September 5,
2006 after appellant slipped on water and twisted her right leg. This history is not consistent as
to the date the incident occurred. For these reasons, the Board finds that the evidence of records
does not establish that appellant sustained injury on September 5, 2006 at the time or in the
manner alleged.
6

Allen C. Hundley, 53 ECAB 551 (2002); Earl David Seal, 49 ECAB 152 (1997).

7

The mere fact that a condition manifests itself during a period of employment does not raise an inference of
causal relationship between the two. Neither the fact that a condition becomes apparent during a period of
employment nor the belief of the employee that the condition was caused or aggravated by employment factors is
sufficient to establish a causal relation. See Roy L. Humphrey, 57 ECAB 238 (2005).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant not satisfied with a decision of the
Office is entitled to a hearing before an Office hearing representative when the request is made
within 30 days after issuance of the Office’s decision.8 A claimant is not entitled to a hearing as
a matter of right if the request is not made within 30 days of the Office’s decision.9 The Office
has the discretion to grant or deny any request that is made after the 30-day period.10 The
Office’s procedures require that it exercise its discretion to grant or deny a hearing when the
request is untimely or made after reconsideration under section 8128(a).11
ANALYSIS -- ISSUE 2
The Office denied appellant’s claim for compensation in a November 15, 2006 decision.
On June 4, 2007 appellant requested an oral hearing before an Office hearing representative. As
her request was not filed within 30 days of the November 15, 2006 decision it was untimely and
appellant was not entitled to a hearing as a matter of right. The Board has held that section
8124(b)(1) “is unequivocal in setting forth the limitation in requests for hearings….”12
The Office exercised its discretionary authority under section 8124 by considering
whether to grant a hearing. It found that appellant’s claim could equally well be addressed by
requesting reconsideration under section 8128 and submitting additional evidence. The only
limitation on the Office’s authority is reasonableness. The Board has held that it is an
appropriate exercise of such discretion to apprise an appellant of the right to further proceedings
under the reconsideration provisions of section 8128.13 There is no evidence to establish that the
Office abused its discretion in denying appellant’s request for a hearing.
CONCLUSION
The Board finds that appellant did not establish that she sustained a right knee injury on
September 5, 2006 in the manner alleged. The Board also finds that the Office properly denied
her request for a hearing under section 8124(b)(1).

8

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

9

20 C.F.R. § 10.616(b).

10

Id. See Hubert Jones, Jr., 57 ECAB 467 (2006); Andre’ Thyratron, 54 ECAB 257 (2002).

11

See Teresa M. Valle, 57 ECAB 542 (2006); Henry Moreno, 39 ECAB 475 (1988).

12

Ella M. Garner, 36 ECAB 238 (1984); Charles E. Varrick, 33 ECAB 1746 (1982).

13

See Andre’ Thyratron, supra note 10.

5

ORDER
IT IS HEREBY ORDERED THAT the July 27, 2007 and November 15, 2006
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: December 16, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 18-1770
Issued: March 20, 2019

Case Submitted on the Record

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

JURISDICTION
On August 27, 2018 appellant filed a timely appeal from an August 1, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met his burden of proof to establish left ear hearing
conditions causally related to the accepted May 31, 2018 employment incident.
FACTUAL HISTORY
On June 26, 2018 appellant, then a 37-year-old air traffic controller, filed a traumatic injury
claim (Form CA-1) alleging that, while in the performance of duty, he sustained immediate pain
and hearing loss on May 31, 2018 as a result of a “loud squelch in left ear.” He indicated that he
put his headset on his other ear and stayed on position. Appellant did not stop work.
In a development letter dated June 27, 2018, OWCP requested additional factual and
medical evidence in support of appellant’s claim. It advised him of the type of factual and medical
evidence needed and provided a factual questionnaire for his completion. By separate letter of the
same date, OWCP contacted the employing establishment and requested that it provide further
factual background of the claim. It afforded appellant 30 days to submit the requested evidence.
In response, appellant submitted a report dated June 5, 2018 from Dr. Mark Wladecki, a Boardcertified otolaryngologist, who diagnosed sudden idiopathic hearing loss and tinnitus, left ear.
Dr. Wladecki noted that appellant had been exposed to a loud, sudden high-pitched noise which
caused pain in his left ear and a temporary threshold shift. He reported that appellant was treated
with prednisone for three days and then returned for a follow-up examination which revealed that
he had no pain and his hearing was normal. Dr. Wladecki prescribed medication for appellant to
take at night for a short period of time to increase blood flow to the ear.
In two responsive letters dated July 25, 2018, the employing establishment controverted
appellant’s claim. It confirmed that communication equipment caused the tone, which was a onetime occurrence that lasted approximately three to five seconds, but the facility lacked the
engineering capability to provide the decibel and frequency level of the noise exposure. The
employing establishment argued that, although appellant’s physician diagnosed hearing-related
medical conditions, he did not state the date of injury or indicate that the noise exposure occurred
at work and, therefore, failed to establish causal relationship.
In a July 26, 2018 medical report, Dr. Wladecki noted that appellant had a problem with a
high-pitched squeal at work in his left ear. He indicated that appellant had been exposed to a
sudden high volume, causing hearing loss, and it was painful. Dr. Wladecki diagnosed acute
hearing loss in the left ear and indicated that the symptom was ongoing. Additionally, he found
that appellant presented with tinnitus.
By decision dated August 1, 2018, OWCP accepted that the May 31, 2018 employment
incident occurred as alleged, but denied the claim finding that the medical evidence of record was
insufficient to establish causal relationship between appellant’s diagnosed conditions and the
May 31, 2018 employment incident. It found that Dr. Wladecki had not identified the source of
what caused the sound or its relationship to appellant and his federal employment duties.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 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.4 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.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a personal
injury.7 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.8
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.10
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the diagnosed
condition and appellant’s specific employment factor(s). Id.
8

Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10
K.V., Docket No. 18-0723 (issued November 9, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).

3

Neither, the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish left ear hearing
conditions causally related to the accepted May 31, 2018 employment incident.
In his reports, Dr. Wladecki diagnosed sudden, acute idiopathic hearing loss and tinnitus
in the left ear. He indicated that appellant developed a problem with his left ear due to being
subjected to a high-pitched squeal at work. Dr. Wladecki noted that appellant had been exposed
to a sudden, high volume, and high-pitched noise which caused his hearing to go out and a
temporary threshold shift. However, he did not identify the date of injury, the source of the noise
exposure, or the federal duties appellant was performing at the time of the noise exposure.
Dr. Wladecki noted that appellant’s conditions occurred while he was at work, but such
generalized statements do not establish causal relationship because they merely repeat appellant’s
allegations and are unsupported by adequate medical rationale explaining how his employment
activities actually caused or aggravated the diagnosed conditions.12 The fact that a condition
manifests itself during a period of employment is insufficient to establish causal relationship.13 A
physician’s opinion must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and appellant’s specific employment exposure.14
Although he presented the diagnoses of appellant’s acute idiopathic hearing loss and tinnitus in
the left ear, Dr. Wladecki failed to provide a rationalized medical opinion explaining how the
May 31, 2018 “loud squelch” incident caused or aggravated appellant’s hearing conditions. For
these reasons, the Board finds that his reports are insufficient to establish causal relationship
between appellant’s diagnosed left ear conditions and the accepted May 31, 2018 employment
incident.
As appellant has not submitted rationalized medical evidence sufficient to establish his
claim that he sustained a left ear hearing condition causally related to the accepted May 31, 2018
employment incident, he has not met his burden of proof to establish his 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.

11

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

12

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

13

20 C.F.R. § 10.115(e). See also Joe T. Williams, 44 ECAB 518, 521 (1993).

14

Victor J. Woodhams, supra note 7.

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish left ear hearing
conditions causally related to the accepted May 31, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 1, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 20, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
U.S. POSTAL OFFICE, MAIN POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 16-0177
Issued: April 15, 2016

Case Submitted on the Record

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

JURISDICTION
On November 9, 2015 appellant, through counsel, filed a timely appeal from a
September 15, 2015 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 met his burden of proof to establish that he sustained a left
knee injury causally related to an April 22, 2014 employment incident.
On appeal counsel asserts that the September 15, 2015 decision is contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 23, 2014 appellant, then a 48-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on April 22, 2014 he injured his left knee when it gave way
while delivering mail. He did not return to work.
In support of his claim appellant submitted physician work activity status reports from
Concentra Medical Centers dated April 23 to May 14, 2014. On April 23, 2014 Dr. Mana T.
Elmo, a Board-certified internist, diagnosed left knee sprain and advised that appellant could
return to restricted duty. On April 25 and May 14, 2014 Felicia McKelvin, a physician assistant,
diagnosed left knee sprain and pain. She advised that appellant could perform modified duty.
Dr. Qi Chen, Board-certified in preventive medicine, and Dr. Michael V. Williams, a family
medicine specialist, reiterated the diagnoses and restrictions on April 30 and May 7, 2014
respectively. On May 14, 2014 Ms. McKelvin reiterated the diagnoses and advised that
appellant could return to restricted duty.
In correspondence dated May 20, 2014, Charlene D. Richburg, health and resource
manager with the employing establishment, challenged the claim. She noted that until the date
of injury appellant had been off work for 11 months due to an accepted May 3, 2013 right knee
injury. Ms. Richburg related that, after being on the street for two hours and delivering mail for
20 minutes, he claimed this new injury and stated that he needed to go to the doctor. Bryant
Hubbard, customer service manager, noted that appellant had just returned to work after a right
knee injury. He related that appellant returned to the employing establishment at 12:11 p.m. on
April 21, 2014, stating that his knee hurt, and he left. Mr. Hubbard related that appellant did not
claim a new injury until he reported to work on April 22, 2014 and asked to be taken to
Concentra, and then claimed he hurt his left knee.
By letter dated May 21, 2014, OWCP informed appellant of the evidence needed to
support his claim. In letters dated May 23 and 24, 2014, appellant indicated that he had left knee
pain before the claimed April 22, 2014 injury, due to altered gait mechanics related to his May 3,
2013 right knee injury. He maintained that he injured his left knee when he put weight on it. On
June 2, 2014 appellant reported that he was on the street for two hours, but only delivered mail
for 20 minutes. He stated that, after he injured his left knee and returned to the employing
establishment, he reported the injury to Mr. Hubbard.
Appellant submitted additional medical reports from Concentra dated April 25 to
June 18, 2014. Ms. McKelvin completed treatment notes on April 25 and May 14 and 19, 2014
in which she noted a history that he hurt his knee at work. She provided physical examination
findings and diagnosed muscle strain of left knee and acute knee pain. On April 30 and May 7,
2014 Dr. Chen and Dr. Aisha Rivera, Board-certified in preventive medicine, noted seeing
appellant for follow-up of left knee sprain. Each described physical examination findings and
provided work restrictions.
A May 29, 2014 magnetic resonance imaging (MRI) scan of the left knee demonstrated
scarring at the anterior cruciate ligament, likely from chronic sprain without acute injury, a
suspected nondisplaced oblique tear at the posterior horn of the medial meniscus, and minimal
chondrosis in the medial compartment.

2

Dr. Michael A. Hill provided a physician work activity status report on May 30, 2014.
He diagnosed knee sprain, derangement of posterior horn of medial meniscus, and knee pain and
advised that appellant could work with restrictions. In reports dated June 4, 2014, Ms. McKelvin
reiterated her diagnoses and conclusions. In reports dated June 11, 2014 Namat Said, a physician
assistant, provided physical examination findings. On June 18, 2014 Dr. Williams provided
findings and diagnosed acute knee pain, posterior horn derangement of the medial meniscus, and
muscle strain of the left knee and provided work restrictions.
By decision dated July 3, 2014, OWCP denied appellant’s claim because the medical
evidence of record did not demonstrate that the claimed medical condition was caused by the
established work-related incident.
On July 11, 2014 appellant, through counsel, requested a hearing. He submitted medical
evidence previously of record. Karen Ramos, a physical therapist, reported that functional
capacity evaluation on June 24, 2014 demonstrated that appellant could perform medium work
duties with limitations.
In a July 2, 2014 report, Dr. Michael Wallace, a Board-certified orthopedic surgeon,
reported a history that appellant, who was recovering from a right knee arthroscopy, had
misstepped while climbing stairs, and injured his left knee. He described left knee examination
findings, reviewed the MRI scan, and diagnosed a possible medial meniscus tear in the posterior
horn. Dr. Wallace advised that appellant could work with restrictions.
A notice of termination during probation period dated April 24, 2014 indicated that
appellant was terminated effective that day because he failed to work in a safe manner.
At the hearing, held on January 26, 2015, appellant described his right and left knee
injuries. He testified that on April 22, 2014 when he put weight on his left knee while walking
up steps, the knee gave out and he fell to the ground. Appellant indicated that he called the
employing establishment, but no one answered, and he then went back to the employing
establishment, and Mr. Hubbard told him to finish his route and when appellant stated that he
could not due to pain, Mr. Hubbard told appellant he was terminated. The record was held open
for 30 days.
By decision dated March 10, 2015, an OWCP hearing representative found that the
medical evidence was insufficient to establish causal relationship and affirmed the July 3, 2014
decision.
On May 22, 2015 appellant, through counsel, requested reconsideration. In an April 20,
2015 report, Dr. Wallace noted that in April 2014 appellant went up a step delivering mail and
his left leg gave out on him, causing a pretty severe left knee injury. He provided knee
examination findings, noting full range of motion, but pain at the limits of flexion, and a positive
McMurray’s test on the medial joint line. Dr. Wallace diagnosed knee joint pain and advised

3

that appellant’s history and examination were consistent with a meniscal tear. He recommended
a new MRI scan.2
In a merit decision dated September 15, 2015, OWCP denied modification of its prior
decision, finding that Dr. Wallace’s April 20, 2015 report was neither detailed nor well
rationalized concerning the causal relationship between a left knee meniscal tear and the
accepted incident.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,3 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.4 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.8 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.9

2

A right knee MRI scan dated April 21, 2015 was submitted. The record does not include an additional left knee
MRI scan.
3

J.P., 59 ECAB 178 (2007).

4

R.C., 59 ECAB 427 (2008).

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

T.H., 59 ECAB 388 (2008).

7

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

8

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

9

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

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Medical opinion, in general, can only be given by a qualified physician.10 Section
8101(2) of FECA provides that “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their
practice as defined by State law.11 Registered nurses, licensed practical nurses and physicians’
assistants are not “physicians” as defined under FECA. Their opinions are of no probative
value.12
ANALYSIS
The Board finds that the claimed April 22, 2014 incident occurred as alleged. The
medical evidence submitted by appellant, however, is insufficient to establish that this incident
caused a medical condition related to the April 22, 2014 incident.
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically sound explanation of how the claimed work
event caused or aggravated the claimed condition.13 No physician of record did so in this case.
A physician assistant is not considered a physician under FECA.14 The record includes a
number of reports from Ms. McKelvin and Mr. Said. As they are not considered physicians as
defined under FECA,15 their reports are of no probative medical value on the issue of whether
appellant sustained a left knee injury causally related to the April 22, 2014 incident.
Appellant also submitted a number of physician work activity status reports from
physicians at Concentra Medical Centers. These activity status reports merely included
diagnoses and work restrictions and did not contain an opinion regarding the cause of any
diagnosed condition. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.16
Similarly, the May 29, 2014 MRI scan of the left knee did not provide a cause of any diagnosed
condition. Likewise, in reports dated April 30 to June 18, 2014, while Drs. Chen, Rivera, Hill,
and Williams provided physical examination findings and diagnoses that included acute knee
pain, posterior horn derangement of the medial meniscus, and muscle strain/sprain, none of the
physicians discussed the history of injury or the cause of any diagnosed condition. These
reports, therefore, are insufficient to establish that appellant sustained a left knee injury causally
related to the April 22, 2014 incident.

10

E.K., Docket No. 09-1827 (issued April 20, 2010).

11

5 U.S.C. § 8101(2); see Roy L. Humphrey, 57 ECAB 238 (2005).

12

Roy L. Humphrey, id.

13

D.D., Docket No. 13-1517 (issued April 14, 2014).

14

Roy L. Humphrey, supra note 11.

15

Supra note 11.

16

Willie M. Miller, 53 ECAB 697 (2002).

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In his reports dated July 2, 2014 and April 20, 2015, Dr. Wallace reported a history that
appellant took a misstep while climbing stairs and injured his left knee. He described left knee
examination findings, reviewed the MRI scan, and diagnosed a possible medial meniscus tear.
Dr. Wallace opined that appellant’s history and examination were consistent with a meniscal
tear. The Board finds that his opinion lacks sufficient detailed medical rationale to discharge
appellant’s burden of proof that he sustained an employment-related left knee injury on
April 22, 2014. At no time did Dr. Wallace positively link the possible medial meniscus tear or
any other diagnosed left knee condition with the April 22, 2014 incident. He did not explain
how a misstep could have caused any injury to the left knee. Without a detailed medical report
describing how and why appellant sustained a left knee condition caused by the April 22, 2014
incident, he has not met his burden of proof.17
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to a
claimant’s federal employment and such relationship must be supported with affirmative
evidence, explained by medical rationale and be based upon a complete and accurate medical
and factual background of the claimant.18 As Dr. Wallace did not adequately explain or describe
physiologically how or why the April 22, 2014 employment incident caused a left knee
condition, his opinion is of diminished probative value.19
It is appellant’s burden to establish that the claimed left knee condition is causally related
to the April 22, 2014 incident. He submitted insufficient evidence to establish a left knee
condition caused by this incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a left knee injury causally related to an April 22, 2014 employment incident.

17

See W.S., Docket No. 14-1022 (issued July 1, 2014).

18

A.D., 58 ECAB 149 (2006).

19

See M.L., Docket No. 14-1128 (issued September 17, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the September 15, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 15, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.E., Appellant
and
DEPARTMENT OF THE AIR FORCE, KELLY
AIR FORCE BASE, San Antonio, TX, Employer
__________________________________________

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

Docket No. 13-1280
Issued: September 26, 2013

Case Submitted on the Record

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

JURISDICTION
On April 29, 2013 appellant timely appealed the February 5, 2013 nonmerit 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 does not have
jurisdiction over the merits of this claim.2
ISSUE
The issue is whether OWCP properly deniedappellant’s request for reconsideration on the
basis that it was untimely filed and did not establish clear evidence of error.

1
2

5 U.S.C. §§ 8101-8193 (2006).

Appellant submitted additional medical evidence that was not part of the record at the time OWCP issued its
February 5, 2013 decision. The Board is precluded from considering evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1) (2012).

FACTUAL HISTORY
This case was previously before the Board.3 Appellant, a 73-year-old former packer,
sustained an employment-related lower back injury on October 8, 1970.He has undergone
multiple surgical procedures beginning with a July 1971 lumbar fusion. On October 7, 1986
OWCP issued a loss of wage-earning capacity (LWEC) determination based on appellant’s
part-time weekly wages as a supply clerk effective November 25, 1985.4Appellant worked
four hours per day and OWCP compensated him for four hours of lost wages per day. The
October 1986 LWEC determination remained in effect through March 8, 2005.
Since March 9, 2005, OWCP has paid wage-loss compensation for total disability.5
However, appellant claimed that he should have been receiving compensation for total disability
dating back to July 5, 1989.6 On numerous occasionshehas reiterated his claim for an additional
four hours of compensation per day from July 5, 1989 through May 8, 2005.
When the case was last on appeal, the Board affirmed OWCP’s October 29, 2009
decision denying reconsideration. Appellant had filed a request for reconsideration on
April 7, 2009. Because the request was filed more than a year after OWCP’s award of total
disability compensation effective March 9, 2005, his reconsideration request was deemed
untimely. The Board further found that appellant had not established clear evidence of error on
the part of OWCP in finding him totally disabled as of March 9, 2005.7 The Board’s
December 3, 2010 decision is incorporated herein by reference.
By letter dated December 15, 2012, appellant requested four hours of additional
compensation per day for the period July 5, 1989 to March 8, 2005. He explained that he was
requesting “reconsideration or modification of [his] former [wage-earning] capacity of
September 1986.” Appellant also indicated that he had enclosed some letters from his
orthopedic physician that may be pertinent.
3

Docket No. 10-1063 (issued December 3, 2010).

4

Appellant had been working 20 hours per week.

5

March 9, 2005 was the date appellant underwent another OWCP-approved lumbar surgery. By letter dated
June 16, 2005, OWCP formally advised that he would be compensated for total disability beginning March 9, 2005
and that he had been placed on the periodic rolls effective May 15, 2005.
6

Appellant previously filed a notice of recurrence of disability (Form CA-2a) beginning June 30, 1989, with
associated wage-loss effective July 5, 1989. By decision dated April 24, 1991, OWCP denied appellant’s recurrence
claim on the basis that the evidence did not establish that he was disabled from performing his part-time limitedduty position on or after July 5, 1989. It subsequently denied modification in a May 23, 1991 decision. This latter
decision found that an intervening incident occurred on or about July 5, 1989 when appellant reportedly reinjured
his back lifting trash at work. Thus, appellant’s claimed disability beginning July 5, 1989 was unrelated to the initial
October 8, 1970 lumbar injury. OWCP subsequently denied reconsideration on October 15 and December 3, 1992.
In a decision dated August 3, 1994, the Board affirmed OWCP’s October 15 and December 3, 1992 decisions.
(Docket No. 93-697).
7

Under the circumstances, the Board did not interpret appellant’s April 7, 2009 filing as a request for modification
of the October 7, 1986 LWEC determination, which was effectively set aside once OWCP commenced payment of
compensation for total disability as of March 9, 2005.

2

OWCP received three reports from Dr. James W. Simmons, Jr., a Board-certified
orthopedic surgeon,whose January 4, 2000 report noted, inter alia, that appellant had reinjured
his back on June 30, 1989 and thus, was unable to work four hours per day. Appellant also
resubmitted Dr. Simmons December 19, 2000 report,which similarly noted that appellant had
reinjured his back on June 30, 1989 while lifting trash at work.In a report dated December 3,
2012, Dr. Simmons explained that in 1984 appellant had been placed on restricted duty, working
four-hour days. The restricted duty persisted through June 30, 1989 at which time appellant
experienced an exacerbation of his pain while at work that day. Based on the June 30, 1989
exacerbation, Dr. Simmons recommended that appellant remain off work entirely. He further
stated that appellant’s off-work status carried through 2005 at which time he was medically
retired.
By decision dated February 5, 2013, OWCP denied appellant’s December 15, 2012
request for reconsideration. The request was considered untimely and appellant failed to
demonstrate clear evidence of error. OWCP noted that Dr. Simmons’ January 4 and
December 19, 2000 reports were previously of record and his December 3, 2012 report reiterated
information contained in earlier reports regarding appellant’s claimed disability beginning
July 5, 1989.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.8 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.9 One such limitation is that the application for
reconsideration must be sent within one year of the date of the merit decision for which review is
sought.10
A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.11 When a timely application for reconsideration does not meet at least
one of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.12 If the request for reconsideration is untimely,

8

This section provides in pertinent part:“[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”5 U.S.C. § 8128(a).
9

20 C.F.R. § 10.607.

10

Id. at § 10.607(a).

11

Id. at § 10.606(b)(2).

12

Id. at § 10.608(b).

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OWCP will undertake a limited review to determine whether the application presents “clear
evidence of error” on the part of OWCP in its “most recent merit decision.”13
ANALYSIS
OWCP paid appellant four hours of wage-loss compensation per day through March 8,
2005 based on its October 7, 1986 LWEC determination. That decision was effectively set aside
when OWCP awarded compensation for total disability beginning March 9, 2005,but appellant
had earlier claimed entitlement to compensation for total disability beginning July 5, 1989. In
October 1989, hefiled a claim for recurrence of disability on or after June 30, 1989, which
OWCP originally denied by decision dated April 24, 1991. OWCP later determined that
appellant’sJuly 5, 1989 work stoppage was the result of an intervening injury and not because of
his original October 8, 1970 lumbar injury. As noted, it ultimately paid himcompensation for
total disability beginning March 9, 2005 when he underwent additional lumbar surgery.
Appellant has repeatedly requested that OWCP pay him an additional four hours of
compensation per day for the period of July 5, 1989 to March 8, 2005.
The last time the case was on appeal, the Board affirmed OWCP’s October 29, 2009
nonmerit decision denying reconsideration. Since then OWCP has not issued another merit
decision regarding entitlement to additional compensation for the claimed period of July 5, 1989
to March 8, 2005. In fact, the Board’s December 3, 2010 nonmerit decision was the most recent
decision issued prior to the current OWCP decision on appeal.Because there has been no merit
decision issued in the year prior to appellant’s December 15, 2012 request, the Board finds his
request untimely. As such, appellant must demonstrate “clear evidence of error” on the part of
OWCP in determining his entitlement to wage-loss compensation for total disability.14
The three reports from Dr. Simmons dated January 4and December 19, 2000 and
December 3, 2012 do not support appellant’s claimed entitlement to additional compensation
beginning July 5, 1989. As OWCP correctly noted, either the specific report or the relevant
information contained therein was already part of the record. The January 4, 2000 report
contained essentially the same information as Dr. Simmons’ January 11, 2000 report, which
OWCP received on January 13, 2000. Dr. Simmons’ December 19, 2000 report had been
submitted on at least six prior occasions. In fact, the Board specifically referenced his
December 19, 2000 report in its December 3, 2010 decision at page two. Lastly, Dr. Simmons’

13

Id. at § 10.607(b). To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise and
explicit and it must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 ECAB
227 (1991). It is not enough to merely show that the evidence could be construed to produce a contrary conclusion.
Id. Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision is
insufficient to establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence
submitted must not only be of sufficient probative value to create a conflict in medical opinion or establish a clear
procedural error, but must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision. Thankamma Mathews,
44 ECAB 765, 770 (1993).
14

20 C.F.R. § 10.607(b).

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latest report dated December 3, 2012 essentially reiterated information included in both his
January 4 and December 19, 2000 reports.
Apart from the repetitive nature of the above-noted evidence, these reports are
insufficient to establish that appellant’s July 5, 1989 work stoppage was causally related to his
October 8, 1970 employment-related lumbar injury. Dr. Simmons has repeatedly attributed
appellant’s disability on or after July 5, 1989 to an intervening injury that occurred on June 30,
1989 while lifting trash.OWCP advised appellant as early as May 1991 that this intervening
injury justified denial of his claimed recurrence of disability beginning July 5, 1989.
The Board finds that appellant has not demonstrated clear evidence of error. As such,
there is no justification for further merit review. Accordingly, OWCP properly declined to
reopen appellant’s case under 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that OWCP properly denied merit review with respect to appellant’s
December 15, 2012 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THATthe February 5, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 26, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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