United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WRIGHT-PATTERSON AIR FORCE
BASE, OH, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0937
Issued: December 28, 2018

Case Submitted on the Record

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

JURISDICTION
On March 30, 2018 appellant, through counsel, filed a timely appeal from a March 7, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an occupational
disease causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On October 29, 2014 appellant, then a 64-year-old retired senior aerospace engineer, filed
an occupational disease claim (Form CA-2) alleging that workplace exposure to mercury, lead,
cadmium, arsenic, and aluminum caused multiple medical conditions including diabetes, multiple
sclerosis, and Parkinson’s disease. The employing establishment indicated that appellant had been
on leave for long periods of time from the summer of 2012 and had retired on June 3, 2013.
By development letter dated December 8, 2014, OWCP advised appellant that the evidence
of record was insufficient to establish her claim. It requested that she provide additional factual
and medical evidence. OWCP provided appellant a questionnaire for her completion and afforded
her 30 days to submit additional evidence.
After initial development, OWCP denied the claim on March 12, 2015. On April 9, 2015
appellant, through counsel, requested a hearing before a representative of OWCP’s Branch of
Hearings and Review.
Results of March 2, 2015 laboratory testing ordered by Dr. L. Terry Chappell, an attending
Board-certified family physician, found that appellant had positive results to aluminum, antimony,
cadmium, cesium, gadolinium, lead, nickel, and uranium. In an October 7, 2015 report,
Dr. Chappell advised that he first saw appellant on March 2, 2015 and had reviewed her medical
records since 1983. He noted that she had multiple gynecological problems, infections,
pneumonias, respiratory problems, frequent fractures and falls, digestive problems, and profound
fatigue. Dr. Chappell opined that appellant’s immune system had been compromised. He noted
that appellant was exposed to toxic materials at work and advised that her health problems
stemmed from this exposure.
OWCP continued to receive a series of medical reports pertaining to diverse medical
conditions which did not explain the cause of any diagnosed conditions.
During the hearing, held on November 3, 2015, appellant testified regarding her
employment exposure to toxic materials. The hearing representative explained the type of medical
evidence needed if exposure were accepted.
By decision dated January 27, 2016, an OWCP hearing representative found that the case
was not in posture for decision and remanded the case for OWCP to obtain additional evidence
from the employing establishment regarding appellant’s chemical exposures.
In letters dated February 9 and April 5, 2016, OWCP asked the employing establishment
to furnish information regarding appellant’s exposure to specific toxic elements. The employing
establishment did not respond.

2

By decision dated May 23, 2016, OWCP found that, based on medical testing on March 2,
2015 and the absence of a response from the employing establishment, appellant had experienced
exposure to aluminum, antimony, arsenic, barium, beryllium, bismuth, cadmium, cesium 133,
gadolinium, lead, mercury, nickel, thallium, tin, tungsten, and uranium at the employing
establishment. It found she had not established exposure to palladium, platinum, tellurium, and
thorium. Following review of the medical evidence submitted, OWCP found that appellant had
not established a diagnosed medical condition causally related to the accepted work exposures to
toxic heavy metals.
On December 28, 2016 appellant, through counsel, requested reconsideration and
submitted a December 21, 2016 report from Dr. Ernest P. Chiodo, Board-certified in internal and
occupational medicine.
In the December 21, 2016 report, Dr. Chiodo described appellant’s employment and
exposure history and advised that she gradually developed a significant neurological disease
during the course of her employment. He noted his review of some medical records and advised
that appellant’s symptoms included difficulty with balance and walking, difficulty with
concentration and impaired short-term memory, which continued to the present and rendered her
unable to work. Dr. Chiodo indicated that appellant had been evaluated medically for Parkinson’s
disease, thyroid and Lyme disease, diabetes, and multiple sclerosis, but was found not to suffer
from any of these ailments. He noted his review of a medical publication, Neuropathology of
Heavy Metal Intoxication,3 regarding exposure to heavy metal causing neuropathy. Dr. Chiodo
indicated that appellant had a long-term exposure to rocket propellants and the combustion
products of rocket propellants that included hydrazine and heavy metals, opining that these were
well known to cause the neurological manifestations from which she is suffering. He noted that,
despite extensive medical evaluations, no alternative explanation for her neurological disease had
been found and, therefore, a differential diagnosis of etiology pointed only to her federal
employment as the cause for her neurological impairment. Dr. Chiodo diagnosed neuropathy and
encephalopathy. He concluded, within a reasonable degree of medical and scientific certainty, that
appellant’s neurological disease was caused by her long-term exposure to rocket propellants and
the combustion products of rocket propellants including hydrazine and heavy metals during the
course of her federal employment, which caused her to be permanently disabled.
By merit decision dated March 24, 2017, OWCP denied modification of its May 23, 2016
decision. It noted that, as it did not appear that Dr. Chiodo examined appellant and because he did
not specifically reference any of her prior medical records, his opinion that she suffered from
employment-related neuropathy and encephalopathy was of diminished probative value.
Appellant, through counsel, requested reconsideration on August 3, 2017. In a report dated
April 11, 2017, Dr. Chiodo opined that appellant’s occupational exposure caused neuropathy and
encephalopathy, noting that despite extensive work-up, no alternative explanation had been found.
He indicated that he had physically examined appellant, and related that he observed that she had
difficulty with ambulation, required a cane to walk, and had difficulty processing and answering

3

Neuropathology of Heavy Metal Intoxication, 26 Environmental Health Perspectives, 117-120 (1978).

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questions. Dr. Chiodo reiterated that, upon his review of records and his observation of appellant,
she had neuropathy and encephalopathy caused by occupational exposure.
By merit decision dated March 7, 2018, OWCP found that appellant had not submitted
medical evidence substantiating that her exposure to heavy metals in the course of her federal
employment caused her diagnosed medical conditions. It noted that, although Dr. Chiodo
indicated that he observed appellant ambulate and respond to questions, he did not provide
complete physical examination findings. OWCP further noted that, although Dr. Chiodo again
indicated that he reviewed medical records, he did not reference any specific report. It concluded
that the evidence present was not of sufficient probative value to modify its prior decisions.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that he or she sustained an injury in the performance of duty, and that any
specific condition or disability from work for which he or she claims compensation is causally
related to that employment injury.5
In an occupational disease claim, a claimant must submit the following: (1) medical
evidence establishing the presence or existence of the disease or condition for which compensation
is claimed; (2) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; and (3) medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.6
Causal relationship is a medical issue, and the medical evidence required to establish 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

4

Supra note 2.

5

M.S., Docket No. 17-0980 (issued June 19, 2018).

6

E.M., Docket No. 18-0275 (issued June 8, 2018).

7

A.M., Docket No. 18-0685 (issued October 26, 2018).

8

E.V., Docket No. 18-0106 (issued April 5, 2018).

9

A.M., supra note 7; Dennis M. Mascarenas, 49 ECAB 215 (1997).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an occupational
disease causally related to the accepted factors of her federal employment.
In his October 7, 2015 report, Dr. Chappell maintained that toxic exposure at work caused
appellant’s health problems. However, he merely indicated that she had a history of multiple
gynecological problems, multiple infections, pneumonias, respiratory problems, frequent fractures
and falls, digestive problems, and profound fatigue, and generally opined that her immune system
had obviously been compromised. Medical evidence must be of reasonable medical certainty, and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.10 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.11 Dr. Chappell’s report
is of insufficient rationale to establish causal relationship.12
Dr. Chiodo diagnosed neuropathy and encephalopathy. The Board, however, finds that he
did not provide sufficient explanation regarding whether the conditions he diagnosed were caused
or aggravated by appellant’s work exposure. The Board has held that, in assessing medical
evidence, the weight of a physician’s opinion is determined by the opportunity for and
thoroughness of the examination, the accuracy and completeness of the physician’s knowledge of
the facts and medical history, the care of analysis manifested, and the medical rationale used to
explain the conclusions reached.13
Dr. Chiodo indicated that appellant was exposed to rocket propellants and the combustion
products of rocket propellants at work on a long-term basis. He opined that a differential diagnosis
of etiology pointed only to her federal employment as the cause for her neurological impairment
and concluded that these caused her to be permanently disabled from work. Although he reported
that appellant had an extensive work-up which ruled out other causes of her condition, Dr. Chiodo
did not reference specific examinations, tests, or studies that led to the formation of his opinion.
Moreover, his only description of examination findings was that he observed that she had difficulty
with ambulation and required a cane to walk and had difficulty processing and answering
questions. Dr. Chiodo did not provide specific neurological or neuropsychological test findings.
Thus, contrary to counsel’s assertion on appeal, Dr. Chiodo’s reports are insufficient to meet
appellant’s burden of proof.14 To establish causal relationship, a claimant must submit a
physician’s report in which the physician reviews the employment factors identified as causing the
claimed condition and, taking these factors into consideration as well as findings upon
examination, explains how the employment factors caused or aggravated the diagnosed conditions
10

See D.R., Docket No. 09-1723 (issued May 20, 2010).

11

See W.S., Docket No. 17-1769 (issued July 26, 2018); Roma A. Mortenson-Kindschi, 57 ECAB 148 (2006).

12

A.M., supra note 7.

13

T.P., Docket No. 17-1468 (issued August 6, 2018)

14

E.M., supra note 6.

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and presents medical rationale in support of his or her opinion.15 Dr. Chiodo did not provide the
necessary medical rationale to establish causal relationship between the accepted employment
factors and the diagnosed medical conditions.
As appellant has not submitted rationalized medical evidence to establish an occupational
disease causally related to the accepted factors of her federal employment, she has failed to meet
her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an occupational
disease causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the March 7, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 28, 2018
Washington, DC

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

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

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

15

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
K.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

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Appearances:
Matt Housh, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1832
Issued: August 28, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 4, 2011 appellant filed a timely appeal from the July 15, 2011 Office of
Workers’ Compensation Programs’ (OWCP) merit decision, which found that she failed to
establish that she sustained an injury as alleged. 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
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty.
1
2

5 U.S.C. § 8101 et seq.

Appellant requested oral argument before the Board. The Board has duly considered the matter and finds that
the request should be denied. Pursuant to section 501.5(a) of the Board’s regulations, oral argument may be held at
the discretion of the Board. 20 C.F.R. § 501.5(a). The Board finds that oral argument in this appeal would delay
issuance of a decision and not serve a useful purpose. Furthermore, the appeal can adequately be addressed in a
decision based on the case record submitted. For these reasons, oral argument is denied.

FACTUAL HISTORY
On February 3, 2011 appellant, then a 51-year-old automation clerk, filed a traumatic
injury claim alleging that on January 31, 2011 she sustained injuries to her lower back and upper
right arm and shoulder since being assigned the automation job. She stopped work on
February 4, 2011. The employing establishment controverted the claim and alleged that
appellant did not notify it until seven days after the incident. In a February 4, 2011 letter, Julie
Lukens, a health and resource management specialist with the employing establishment
controverted the claim.
By letter dated February 9, 2011, OWCP informed appellant of the evidence needed to
support her claim and requested additional evidence within 30 days.
OWCP subsequently received a February 4, 2011 statement from appellant, who was
assigned to a job in automation upon returning to work at the beginning of the year. This new
position required appellant to engage in more repetitive movement than she was used to over the
previous 15 years. On Friday morning, January 28, 2011, she injured her back. Appellant did
not believe that it was a particular event that triggered her condition, but rather it was the
“physical working of bending sweeping that was aggravated over the course of time.…” She
informed Barry Turley, her supervisor, and requested a “less paced machine.” Appellant
explained that she felt more stress in her back and shoulders while working and noted that certain
machines did not run as fast. She noted that Mr. Turley accommodated her. When she arrived at
work on Thursday, February 3, 2011, appellant was placed on delivery bar code sorter (DBCS)
number one. She noticed that a casual employee was working on number 14, and asked if she
could switch because of her back. Appellant’s supervisor denied her request and inquired about
her back. She was sent to the office to fill out paperwork.
In a letter dated February 16, 2011, Matthew Reed, an automation supervisor
controverted the claim. In a statement, Michale Redman, a supervisor, addressed the morning of
February 2, 2011. A statement from Mr. Turley was also received. They denied being aware
that appellant had a back injury on the job. In a February 11, 2011 letter, Ms. Lukens also noted
that appellant’s claim appeared to be more of an occupational disease claim.
In a February 18, 2011 response, appellant stated that she initially thought that she pulled
a muscle when she first sustained her injury. She believed her condition was both a traumatic
injury and an occupational disease.
OWCP received reports from Dr. David L. Jackson, a treating Board-certified physiatrist.
On September 27, 2010 Dr. Jackson advised that appellant was seen for chronic skin ulceration
related to allergic reactions at work and that she could not return to work. In a February 1, 2011
report, he treated her for chronic skin ulcerations. Dr. Jackson explained that appellant had to
return to work in January 2011 and since that time, her eruptions had recurred. He advised that
she had increasing lower back and right arm pain. Dr. Jackson diagnosed chronic allergic
reactions with subsequent skin ulcerations to lower extremities, chronic low back pain with
possible degenerative spinal abnormalities and right shoulder pain with evidence of right rotator
cuff impingement. He recommended that appellant stop work secondary to her chronic allergies
and skin eruptions and seek an orthopedic consultation for her right rotator cuff and obtain a

2

magnetic resonance imaging (MRI) scan of the lumbar spine to rule out any type of degenerative
changes. In a February 14, 2011 treatment note, Dr. Jackson indicated that she had right
shoulder and low back pain. He diagnosed skin eruptions, right shoulder impingement, low back
pain and sleep apnea.
A February 23, 2011 MRI scan of the lumbar spine, read by Dr. Dennis Whaley, a
Board-certified diagnostic radiologist, revealed degenerative changes at L5-S1. There was a
broad-based posterior disc bulge which was more prominent on the left, bilateral facet
arthropathy and mild bilateral neural foraminal narrowing. It also revealed that above the L5-S1
level the study was negative.
On February 28, 2011 Dr. Jackson indicated that appellant had low back pain and right
shoulder pain due to working on a machine at work. On March 28, 2011 he diagnosed low back
pain
By decision dated May 4, 2011, OWCP denied appellant’s claim. It found that the
claimed occupational activities occurred, but found that the medical evidence did not establish
causal relations.
On May 15, 2011 appellant requested reconsideration. In a May 10, 2011 report,
Dr. Jackson noted that she presented earlier in the year with complaints of back and shoulder
pain related to work activities. Appellant had been doing lifting at work with increased low back
and right shoulder pain. On examination, Dr. Jackson noted that muscle tightness and loss of
mobility in the lower spine and findings consistent with rotator cuff impingement of the right
shoulder and evidence of degenerative changes in the lumbar spine appear to have been
aggravated by her work conditions. He opined that appellant had severe lower back and right
shoulder pain related to work activities and advised that she could “not return to work at this
time.”
In a letter dated June 8, 2011, Ms. Lukens noted that appellant had not worked from
April 19 to December 31, 2010. She stated that appellant could not pinpoint an exact date for a
traumatic incident and had only worked from January 3 through February 3, 2011.
In a June 13, 2011 report, Dr. Jackson noted that on February 1, 2011 appellant had
complaint of low back and right shoulder pain. Appellant gave a history of returning to work on
January 1, 2011 after being off work for the previous eight months. Dr. Jackson related that she
was placed on “machines” that required lifting and loading mail that weighed up to 70 pounds.
Appellant had to lift it, twist and place it into the machine. While working on these machines,
she developed acute onset of lower back pain and right shoulder pain which only worsened and
was aggravated by sweeping the mail out of the machine. When Dr. Jackson saw appellant on
February 1, 2011 he diagnosed right rotator cuff tendinitis secondary to impingement and
overuse from work activity as described above. He indicated that she had low back pain with
diagnostic tests revealing evidence of an L5-S1 bulging disc with degenerative discs at multiple
levels. Dr. Jackson opined that appellant’s low back pain was related to the bulging disc that
was inflamed and created this discomfort secondary to the activities at work with lifting and
twisting while loading the machines. He also indicated that he “assumed that her right rotator
cuff tend[i]nitis was caused by the activity at work which required her to do lifting and twisting

3

which resulted in injury to her right rotator cuff tendon.” Dr. Jackson recommended an
orthopedic evaluation. He opined that appellant had an “L5-S1 bulging disc causing low back
pain that was caused by lifting, twisting and loading machines at work. Appellant also has a
right rotator cuff tendinitis secondary to impingement from lifting and twisting and loading mail
at work.”
In a June 20, 2011 statement, appellant noted that she promptly reported her claim and
repeated that her injury was work related. She also provided a timeline pertaining to her injury.
By decision dated July 15, 2011, OWCP denied modification of its prior decision.3
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA4 and that an injury was sustained in the performance of duty.5 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3)medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.7

3

OWCP explained that it was treating the matter as an occupational disease claim due to the fact that the work
events occurred over a period of time longer than a single day or work shift. See 20 C.F.R. § 10.5(q).
4

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

5

James E. Chadden Sr., 40 ECAB 312 (1988).

6

Delores C. Ellyett, 41 ECAB 992 (1990).

7

Id.

4

ANALYSIS
Appellant alleged that she developed injuries to her lower back and upper right arm and
shoulder due to her automation duties. The evidence supports that she performed such duties as
part of her job.
OWCP denied appellant’s claim for compensation finding that the medical evidence was
not sufficient to establish that her low back or upper right arm and shoulder conditions were
causally related to her employment. The Board notes that the medical evidence submitted by
appellant generally supports that her claimed conditions were caused or aggravated by the
repetitive bending and lifting at work. Dr. Jackson provided several reports in which he
attributed appellant’s lower back and upper right arm and shoulder condition to being placed on
the automation machines at work. On May 10, 2011 he noted that appellant had complaints of
back and shoulder pain related to work activities. Dr. Jackson obtained a history that he had
been performing lifting at work with low back and right shoulder pain and generally opined that
her conditions were related to such work activities and that she was unable to work. On June 13,
2011 he explained that he saw appellant on February 1, 2011 for complaints of lower back and
right shoulder pain. Dr. Jackson noted that she had returned to work on January 1, 2011 after
being off work for the prior eight months. Appellant worked on machines that required lifting
and loading mail weighing up to 70 pounds. While working on the machines, she developed an
acute onset of low back and right shoulder pain. Dr. Jackson generally supported that appellant’s
condition worsened by sweeping the mail out of the machine. He also diagnosed right rotator
cuff tendinitis secondary to impingement and overuse from the work activity described above.
Diagnostic testing revealed an L5-S1 bulging disc with degenerative discs at multiple levels.
Dr. Jackson opined that appellant’s low back pain was related to the bulging disc that was
inflamed with discomfort secondary to the activities at work upon lifting and twisting while
loading the machines. He also indicated that her right rotator cuff tendinitis secondary to
impingement was caused by lifting and twisting and loading mail at work.
Although the reports are not sufficiently rationalized to meet appellant’s burden of proof
they provide an accurate history of the implicated work activities with medical opinion
supporting aggravation. The evidence is sufficient to require further medical development of the
case.8 The Board will remand the case to OWCP for referral of appellant, to an appropriate
Board-certified medical specialist to determine whether her work activities caused or aggravated
her claimed conditions. Following any other medical development as deemed necessary, OWCP
shall issue an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

8

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

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ORDER
IT IS HEREBY ORDERED THAT the July 15, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision.
Issued: August 28, 2012
Washington, DC

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

Patricia Howard Fitzgerald, 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.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Paul, MN, Employer
__________________________________________

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

Docket No. 18-0086
Issued: March 28, 2018

Case Submitted on the Record

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

JURISDICTION
On October 13, 2017 appellant filed a timely appeal from a June 21, 2017 merit decision
and a September 12, 2017 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 has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a back
condition causally related to the accepted April 26, 2017 employment incident; and (2) whether
OWCP properly denied appellant’s request for a review of the written record pursuant to 5 U.S.C.
§ 8124 as untimely filed.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that her back condition was causally related to the accepted
employment incident.2
FACTUAL HISTORY
On April 27, 2017 appellant, then a 50-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging on April 26, 2017 she injured her lower back and experienced pain radiating
down her left leg while lifting mail tubs into a truck. She stopped work on April 27, 2017 and has
not returned.
In support of her claim, appellant submitted April 27 and May 8, 2017 reports wherein
Annette Lerew-Zimanski, a physician assistant, indicated that appellant had acute left-sided low
back pain without sciatica caused by lifting tubs of mail on April 27, 2017. In a May 5, 2017
report, Timothy Pampusch, a physician assistant, diagnosed low back pain.
On May 11, 2017 appellant underwent a magnetic resonance imaging (MRI) scan of her
lumbar spine. Dr. Peter Busselberg, a Board-certified neuroradiologist, found multilevel
degenerative changes.
By development letter dated May 18, 2017, OWCP informed appellant that additional
medical evidence was necessary to establish her claim. It afforded her 30 days to submit the
necessary information.
In a May 15, 2017 report, Dr. Paul Hartleben, a Board-certified orthopedic surgeon, related
appellant’s diagnoses as acute left leg L5 radiculopathy, secondary to work-related injury
occurring on March 28, 2017 causing a substantial aggravation of L4-5 degenerative-type
spondylolisthesis and severe subarticular impingement of the L5 nerve root and bilateral hip
osteoarthritis with minor symptoms, left worse than right. He provided a history of injury that she
was injured at work on March 26, 2017 when she was lifting and moving totes to the shelves, and
that on April 26, 2017 she had a recurrence of back and leg symptoms and left buttock pain
radiating down the calf and dorsum of the foot with numbness and tingling. Dr. Hartleben also
noted that appellant’s past history of bilateral hip arthritis. He indicated that she was planning to
undergo a right total hip replacement. Dr. Hartleben noted that appellant was in significant
distress, and that he recommended taking her off work for a period of temporary total disability
while she continued to pursue physical therapy as well as epidural injections. In a May 31, 2017
report, he noted persistent left L5 radiculopathy secondary to L4-5 disc disease and subarticular
stenosis substantially aggravated or induced by a work-related event occurring at the end of
April 2017. Dr. Hartleben noted that appellant’s activity tolerance did not allow even light work.
By decision dated June 21, 2017, OWCP denied appellant’s claim, as it determined that
the medical evidence of record did not establish that her claimed medical condition was causally
related to the accepted April 26, 2017 employment incident.

2
Appellant submitted new evidence with her appeal. The Board’s jurisdiction is limited to the evidence that was
before OWCP at the time of its final decision. Therefore, the Board is precluded from considering this evidence for
the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).

2

By appeal request form with a certified mail tracking slip dated August 19, 2017, and
received by OWCP on August 23, 2017, appellant requested a review of the written record by an
OWCP hearing representative.
By decision dated September 12, 2017, an OWCP hearing representative denied
appellant’s request for a review of the written record. She noted that the request for a review of
the written record was postmarked August 19, 2017, more than 30 days after the June 21, 2017
merit decision. Thus, she was not entitled to review of the written record as a matter of right,
OWCP’s hearing representative exercised her discretion to review appellant’s request, but
determined that the issue could be equally well addressed by requesting reconsideration from
OWCP and submitting evidence not previously considered.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 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 of FECA, that an injury was caused in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury.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 whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.6 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.7
The opinion of the physician must be based on a complete factual and medical background
of the employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.8 The weight of the medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.9

3

Id.

4

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

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

7

Id.

8

I.J., 59 ECAB 408 (2008); supra note 5.

9

James Mack, 43 ECAB 321 (1991).

3

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted April 26, 2017 employment incident.
In support of her claim, appellant submitted medical reports by Dr. Hartleben, who opined
that her left L5 radiculopathy secondary to L4-5 disc disease and subarticular stenosis were
substantially aggravated or induced by a work-related event occurring the end of April 2017. He
also however noted a prior March 28, 2017 injury. Although Dr. Hartleben’s opinion is generally
supportive of causal relationship, he did not provide sufficient rationale explaining the basis of his
conclusion that there was a causal relationship between appellant’s diagnosed medical conditions
and her accepted employment incident of April 26, 2017. He did not explain how lifting the tubs
of mail on April 26, 2017 caused her diagnosed medical conditions. This is especially important
as Dr. Hartleben had noted that appellant had a prior injury in March 2017 causing these similar
conditions.10 He failed to provide sufficient medical reasoning, or rationale, explaining how the
April 26, 2017 employment incident caused or aggravated a particular diagnosed condition. A
mere conclusion without necessary rationale explaining why the physician believes that a
claimant’s accepted employment incident resulted in the diagnosed condition is not sufficient.11
Thus, Dr. Hartleben’s reports are insufficient to establish causal relationship.
The remaining evidence is also insufficient to establish causal relationship. Dr. Busselberg
found that appellant’s MRI scan revealed multilevel degenerative changes, but provided no
opinion regarding causal relationship. Diagnostic studies are of limited probative value as they do
not address whether her federal employment caused the diagnosed conditions.12 As such, his
opinion is insufficient to establish causal relationship.
OWCP also received reports from two physician assistants. These reports are insufficient
to establish the claim as physician assistants are not considered physicians under FECA and, thus,
their reports have no probative value.13
Appellant’s belief that the April 26, 2017 employment incident caused a medical condition,
however sincerely held, does not constitute medical evidence sufficient to establish causal
relationship.14
10

See A.C., Docket No. 16-0452 (issued October 27, 2017).

11

S.K., Docket No. 15-0384 (issued May 7, 2015).

12

See M.M., Docket No. 17-1641 (issued February 15, 2018).

13

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as physician as defined in 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as
follows: (2) physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law. See Merton J. Sills, 39 ECAB 572,
575(1988). Healthcare providers such as licensed clinical social workers, nurses, acupuncturists, physician assistants,
and physical therapists are not considered physicians under FECA and their reports and opinions do not constitute
competent medical evidence to establish a medical condition, disability, or causal relationship. See D.F., Docket No.
17-0135 (issued June 5, 2017).
14

See V.D., Docket No. 17-1463 (issued December 19, 2017).

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP hearing representative, provides: Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of
this section is entitled, on request made within 30 days after the date of the issuance of the decision,
to a hearing on his or her claim before a representative of the Secretary.15 A hearing is a review
of an adverse decision by OWCP’s hearing representative. Initially, the claimant can choose
between two formats: an oral hearing or a review of the written record. In addition to the evidence
of record, the claimant may submit new evidence to the hearing representative.16 A request for
either an oral hearing or a review of the written record must be sent, in writing, within 30 days of
the date of the decision for which the hearing is sought.17 A claimant is not entitled to a hearing
or a review of the written record if the request is not made within 30 days of the date of the
decision.18
If the request is not made within 30 days, a claimant is not entitled to a review of the written
record as a matter of right. However, the Branch of Hearings and Review may exercise its
discretion to either grant or deny the request.19
ANALYSIS -- ISSUE 2
Appellant’s request for a review of the written record was sent on August 17, 2017, as
noted on the certified mail tracking slip. OWCP’s regulations provide that [t]he hearing request
must be sent within 30 days of the date of the decision for which a hearing is sought. Because
appellant’s request is postmarked on the tracking slip dated August 17, 2017, more than 30 days
after OWCP’s last merit decision, it was untimely filed and appellant was not entitled to a review
of the written record as a matter of right. OWCP exercised its discretion and reviewed appellant’s
request, but denied it, finding that the issue could be equally well addressed by requesting
reconsideration before OWCP. The Board thus finds that OWCP properly denied appellant’s
request for a review of the written record.20

15

5 U.S.C. § 8124(b)(1).

16

20 C.F.R. § 10.615.

17

James Smith, 53 ECAB 188 (2001); id. at § 10.616(a).

18

K.S., Docket No. 17-1814 (issued February 13, 2018).

19

5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467 472-73 (2006); Herbert C. Holley, 33
ECAB 140 (1981).
20
Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from known facts. See Andre Thyraton, 54 ECAB 257, 261 (2002).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted April 26, 2017 employment incident. The Board further finds that
OWCP properly denied appellant’s request for a review of the written record pursuant to 5 U.S.C.
§ 8124 as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 12 and June 21, 2017 are affirmed.
Issued: March 28, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Eau Clair, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0385
Issued: September 4, 2018

Case Submitted on the Record

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

JURISDICTION
On December 15, 2017 appellant filed a timely appeal from a November 1, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated May 16, 2016, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On March 21, 2014 appellant, then a 51-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that she injured her right shoulder on February 20, 2014 while performing
1

5 U.S.C. § 8101 et seq.

continuous reaching and stretching in the course of her federal employment. OWCP accepted the
conditions of right complete rotator cuff rupture and right sprain of shoulder, upper arm, and
rotator cuff.2
Appellant stopped work in April 2014 when Dr. John Drawbert, a Board-certified
orthopedic surgeon, performed surgical repair of a right rotator cuff tear. OWCP paid her wageloss compensation and placed her on the periodic compensation rolls in June 2014.
Appellant returned to modified duty on July 31, 2014 and gradually increased her work
hours. On October 30, 2014 OWCP accepted a recurrence of disability (Form CA-2a). Appellant
returned to part-time modified duty in November 2014 and continued to receive intermittent wageloss compensation.
Under OWCP File No. xxxxxx214, on January 28, 2015, OWCP accepted left rotator cuff
tear and left impingement syndrome.
On February 27, 2015 Dr. Drawbert performed left rotator cuff repair and left carpal tunnel
release. OWCP again placed appellant on the periodic compensation rolls. She returned to parttime modified duty on June 23, 2015, initially for two hours daily increasing to five hours a day in
August 2015. Appellant stopped work on October 20, 2015. She filed claims for compensation
(Form CA-7) for total disability for the period October 17 to November 13, 2015. OWCP
continued to pay compensation for three hours daily. Appellant returned to modified duty for two
hours daily.3
Under OWCP File No. xxxxxx214, by decision dated January 26, 2016, OWCP denied
appellant’s claim for compensation in excess of three hours daily on or after October 20, 2015. It
found her claims for compensation were inconsistent with the medical evidence of record that
indicated she could work five hours of limited duty daily. OWCP noted that it would reopen File
No. xxxxxx111 for full adjudication with a written decision.4 Appellant continued to receive
compensation for three hours daily under OWCP File No. xxxxxx214.
On February 16 and March 28, 2016 appellant requested reconsideration of the January 26,
2016 OWCP decision under File No. xxxxxx214. In reports dated February 1 and 25, April 1 and
19, and May 2, 2016, appellant’s attending physician, Dr. Joseph T. Hebl, a family physician who
practices occupational medicine, summarized her upper extremity and back conditions.5 On

2

OWCP assigned File No. xxxxxx214. The record indicates that five of appellant’s claims have been combined
with the instant case, OWCP File No. xxxxxx214, designated as the master file. Subsidiary files are OWCP File Nos.
xxxxxx606, xxxxxx111, xxxxxx331, and xxxxxx289.
3

The employing establishment indicated that she received continuation of pay from October 31 through
December 27, 2015. The record does not indicate when appellant returned to two hours of daily modified duty.
4

Under OWCP File No. xxxxxx111, appellant filed a traumatic injury claim on October 12, 2015 alleging that she
injured her neck lifting trays of mail on October 9, 2015.
5

Dr. Hebl began treating appellant in March 2014.

2

May 2, 2016 he advised that she could work only two hours of light work daily for five days a
week due to bilateral shoulder conditions and bilateral carpal tunnel syndrome.
An offer of limited duty was extended by the employing establishment on
December 2, 2015. This indicated that two hours of daily work were offered from 3:00 p.m. to
5:00 p.m. with duties of answering telephones, customer service, and administrative duties.
Appellant signed the offer on December 4, 2015.
Under OWCP File No. xxxxxx214, by decision dated May 16, 2016, OWCP reviewed the
merits of appellant’s claim and denied modification of the decision dated January 26, 2016. It
indicated that it had reviewed a report from Dr. Hebl dated February 1, 2016. OWCP noted that
even though Dr. Hebl found that she could work for five hours a day due to her shoulder condition,
he deemed her totally disabled because the neck and back prevented her from all work. It found
that the evidence submitted was insufficient to support an increase in disability causally related to
the work injury of February 20, 2014 without an intervening cause.
In a May 2, 2016 report, received by OWCP on May 16, 2016, Dr. Hebl summarized
appellant’s bilateral upper extremity conditions and described his treatment. He reiterated his
findings and conclusions, including that appellant could only work two hours of light duty daily
due to her upper extremity conditions.
On June 23, 2016, under OWCP File No. xxxxxx111, OWCP accepted cervical strain.6
Appellant thereafter filed claims for compensation (CA-7 forms) under OWCP File No.
xxxxxx111. On July 28, 2016, under OWCP File No. xxxxxx289, OWCP accepted cervical and
lumbar sprains.7
Under File No. xxxxxx111, by letter dated August 1, 2016, OWCP informed appellant of
the medical evidence needed to support causal relationship to establish her claims for wage-loss
compensation. In correspondence dated August 4 and 22, 2016, appellant informed OWCP that
she was claiming compensation from November 4, 2015 forward. She noted that she had received
intermittent compensation under File No. xxxxxx214. In undated correspondence, appellant
indicated that she wanted to be compensated for 40 hours a week since all her injuries were
employment related. She asked what additional information was needed. Appellant also submitted
a number of medical reports from Dr. Hebl found in both OWCP File No. xxxxxx111 and in
OWCP File No. xxxxxx289.
On September 29, 2016 OWCP combined OWCP File Nos. xxxxxx111 and xxxxxx289,
with the former becoming the master file.
Under File No. xxxxxx111, in October 2016, OWCP referred appellant to Dr. Patrick M.
Healy, a Board-certified orthopedic surgeon, for a second opinion evaluation. The statement of
accepted facts (SOAF) provided Dr. Healy included accepted conditions of cervical and lumbar
6

OWCP had initially denied the claim by decision dated March 9, 2016.

7
Under File No. xxxxxx289, appellant filed an occupational disease claim (Form CA-2) on April 1, 2016 alleging
that her job duties caused neck and back conditions.

3

strain, bilateral rotator cuff tear, right shoulder sprain, left impingement syndrome, and bilateral
carpal tunnel syndrome. OWCP asked Dr. Healy to provide an opinion on the specific disability
period due to the accepted cervical sprain.
In an October 26, 2016 report, Dr. Healy noted his review of the record and described
physical examination findings. He indicated that appellant continued to have residuals of the
accepted cervical strain including persistent areas of low-grade spasm and persistent pain and
weakness, and that she also had enough disability in her right shoulder that would prevent her
return to a normal rural carrier route. Dr. Healy opined that it would be difficult to identify a
specific period of disability.
On a work capacity evaluation (OWCP Form 5c) dated November 22, 2016, Dr. Hebl
advised that due to ongoing neck and shoulder spasm, weakness, and decreased range of motion,
appellant could only work restricted duty for up to three hours a day.
In a case doubling memorandum found in OWCP File No. xxxxxx111, on December 14,
2016, OWCP indicated that it had combined File Nos. xxxxxx214, xxxxxx111, xxxxxx606, and
xxxxxx331, with File No. xxxxxx214 becoming the master file.8 It informed appellant of the case
doubling in a letter dated December 14, 2016. A duplicate of the case doubling memorandum,
dated July 17, 2017, is found in OWCP File No. xxxxxx214.
Appellant continued to submit additional medical evidence from Dr. Hebl, contained in
OWCP File Nos. xxxxxx111 and xxxxxx289. OWCP File No. xxxxxx214 also contains medical
evidence submitted subsequent to OWCP’s May 16, 2016 merit decision.
On August 31, 2017, under OWCP File No. xxxxxx214, appellant requested
reconsideration. She maintained that her claim should be compensated fully since her cases had
been combined with additional accepted conditions.
New evidence submitted in support of her reconsideration request included work and offwork capability forms from Dr. Hebl dated October 21, 2015 to June 28, 2016. On October 27,
2015 Dr. Hebl advised that appellant could not work due to symptom flare-up caused by an
October 9, 2015 employment injury. On October 27, 2015 he advised that appellant could return
to light duty only for three hours daily, on November 4, 2015 he placed her off work again, and
on December 17, 2015 he advised that she could return to light duty for two hours a day. Dr. Hebl
continued these restrictions through June 28, 2016. On November 29, 2016 he indicated that
appellant could work three hours daily. Appellant also submitted treatment notes from Dr. Hebl
dated June 28, 2016 through September 27, 2017. In each of these reports he discussed appellant’s
condition and treatment up to that date.9
In the September 27, 2017 report, Dr. Hebl reported that beginning on October 9, 2015
appellant had worsening radiating cervical pain and stiffness which continued. He indicated that
8

The accepted conditions under the subsidiary files include bilateral carpal tunnel syndrome (OWCP File No.
xxxxxx606), cervical strain (OWCP File No. xxxxxx111), backache (OWCP File No. xxxxxx331), and cervical and
lumbar spine sprains (OWCP File No. xxxxxx289).
9

OWCP File Nos. xxxxxx111 and xxxxxx289 also contain evidence submitted on August 31, 2017.

4

beginning on December 29, 2016, after OWCP combined all her claims, he evaluated all
appellant’s work injuries, and that he continued to see appellant on a monthly basis. Dr. Hebl
noted in reports dated February 27, March 27, April 24, May 24, June 22, July 21, August 23, and
September 27, 2017 that she reported increased neck and shoulder pain and stiffness with further
loss of range of motion, and that she was struggling to work three hours a day. Physical
examination demonstrated spasm and multiple areas of trigger point tenderness of the neck;
significant weakness and positive Tinel’s and Phalen’s signs at the right wrist; and tenderness and
spasm in the upper and lower back with pain at extreme range of motion. Dr. Hebl’s diagnoses
included: chronic myofascial pain disorder of the cervical spine with cervicalgia; chronic
myofascial pain disorder of the thoracic spine; right shoulder pain, weakness, and loss of range of
motion, with clinical evidence of impingement syndrome, rule-out rotator cuff tear; bilateral hand
paresthesias and dysesthesias with increased symptoms on the left; and worsening left shoulder
pain, weakness, and loss of range of motion. He advised that all diagnosed conditions were
causally and directly related to the repetitive activities of her job duties as a rural mail carrier.
Dr. Hebl concluded that, due to worsening problems with her neck and shoulders, appellant could
not work beyond three hours of light duty daily.
By decision dated November 1, 2017, OWCP denied appellant’s reconsideration request
because it was untimely filed and failed to demonstrate clear evidence of error on the part of
OWCP. It noted that appellant submitted medical reports dated October 21, 2015 to November 29,
2016 and indicated that they were insufficient to demonstrate clear evidence of error. OWCP
advised that if appellant felt her disability after October 9, 2015 was the result of that employment
injury, she should submit a claim for wage-loss compensation under File No. xxxxxx111.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, an
application for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.10 When determining the one-year period for requesting
reconsideration, the last day of the period should be included unless it is a Saturday, Sunday, or a
federal holiday.11 Timeliness is determined by the document receipt date, i.e., the “received date”
in OWCP’s Integrated Federal Employees’ Compensation System.12 The Board has found that the
imposition of the one-year time limitation does not constitute an abuse of discretionary authority
granted OWCP under section 8128 of FECA.13
OWCP may not deny an application for review solely because the application was not
timely filed. When an application for review is untimely filed, it must nevertheless undertake a

10

20 C.F.R. § 10.607(a).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see
also M.A., Docket No. 13-1783 (issued January 2, 2014).
12

Federal (FECA) Procedure Manual, id. at Chapter 2.1602.4(b) (February 2016).

13

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

limited review to determine whether the application demonstrates clear evidence of error.14
OWCP’s regulations and procedures provide that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the
claimant’s application for review demonstrates clear evidence of error on the part of OWCP.15
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit, and
must manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to prima facie shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the correctness
of OWCP’s decision.16
OWCP procedures note that the term “clear evidence of error” is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made
an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error.17
The Board makes an independent determination of whether a claimant has demonstrated clear
evidence of error on the part of OWCP.18
ANALYSIS
The Board finds that appellant has demonstrated clear evidence of error.
In its November 1, 2017 decision, OWCP properly determined that appellant’s request for
reconsideration of the May 16, 2016 merit decision under OWCP File No. xxxxxx214 was
untimely filed. Its regulations provide that the one-year time limitation period for requesting
reconsideration begins on the date of the last merit decision.19 The last merit decision under that
claim file was dated May 16, 2016. Because appellant’s request for reconsideration was received
on August 31, 2017, more than one year after the May 16, 2016 merit decision, issued under

14

See 20 C.F.R. § 607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

15

20 C.F.R. § 607(b); Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.1602.5(a) (February 2016).

16

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

17

Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.1602.5(a) (February 2016); J.S., Docket No. 161240 (issued December 1, 2016).
18

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

19

20 C.F.R. § 10.607(a).

6

OWCP File No. xxxxxx214, OWCP properly determined that this request was untimely filed.20
Therefore, appellant must demonstrate clear evidence of error on the part of OWCP with regard to
the May 16, 2017 decision.
Appellant has continued to receive three hours of wage-loss compensation benefits daily
under OWCP File No. xxxxxx214. She, however, only worked two or three hours daily, leaving
a deficit in pay/compensation of two or three hours. Appellant has continued to claim
compensation for the additional hours under several of the combined OWCP files in this case.
On the day OWCP issued the last merit decision under OWCP File No. xxxxxx214,
May 16, 2016, appellant submitted a May 2, 2016 report from Dr. Hebl. It is well established that
when OWCP is adjudicating a claim, it is obligated to consider all evidence properly submitted by
a claimant and received prior to the issuance of its final decision.21 When OWCP fails to properly
consider relevant evidence submitted, it raises a substantial question as to the correctness of the
decision and demonstrates clear evidence of error.22 As OWCP did not properly review this
evidence, the Board finds that appellant demonstrated clear evidence of error in this case.23
Following OWCP’s May 16, 2016 merit decision, under OWCP File Nos. xxxxxx111 and
xxxxxx289, it accepted cervical and lumbar strains. Appellant thereafter submitted a number of
claims for compensation and additional medical evidence under OWCP File No. xxxxxx111. Even
though OWCP File No. xxxxxx111 and other files were combined, there is no indication in the
November 1, 2017 decision that OWCP considered those records, which were then part of the
instant record, OWCP File No. xxxxxx214, to determine if they were sufficient to demonstrate
clear evidence of error. As the Board found in the case of M.W., OWCP shall review the evidence
submitted and arguments raised in support of the request and determine whether such evidence is
sufficient to demonstrate error in its prior decision and shall then issue a decision containing
findings of fact and conclusions of law.24 In the case at hand, OWCP only indicated that it had
reviewed medical reports dated October 21, 2015 through November 29, 2016. It did not reference
Dr. Hebl’s September 27, 2017 report or evidence found in File Nos. xxxxxx111 and xxxxxx289,
submitted prior to the request for reconsideration on August 31, 2017.
The Board finds that appellant demonstrated clear evidence of error. OWCP combined
appellant’s files. It should have determined if the evidence in any of the combined files
demonstrated clear evidence of error. The decision dated November 1, 2017 is therefore reversed,
and the case is remanded to OWCP. After such development deemed necessary, OWCP shall
issue an appropriate decision.
20

Id. at § 10.607(a).

21
See J.H., Docket No. 15-0280 (issued November 18, 2015) (the Board found that OWCP is required to review
all evidence submitted by a claimant and received by it prior to the issuance of its final decision, including evidence
received on the date of the decision and a failure to do so demonstrates clear evidence of error).
22

Id.

23

A.D., Docket No. 16-1366 (issued April 6, 2017).

24

Docket No. 18-0111 (issued May 9, 2018).

7

CONCLUSION
The Board finds that appellant demonstrated clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2017 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 4, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
W.M., Appellant
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Chicago, IL, Employer
)
___________________________________________ )
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-63
Issued: April 17, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On October 9, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ hearing representative’s decision dated September 11, 2007 which
affirmed a March 27, 2007 decision denying his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the issues in this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained an injury in the performance of duty on January 26, 2007.
FACTUAL HISTORY
On February 1, 2007 appellant, then a 53-year-old medical supply technician, filed a
traumatic injury claim alleging that, on January 26, 2007, he sustained a herniated disc at L4-5

and chronic lower back pain as a result of an elevator malfunction at work.1 He stopped work on
January 26, 2007.
In support of his claim, appellant submitted physical therapy notes dating from
February 7 to 12, 2007. He also submitted the January 29, 2007 disability certificate and
February 1, 2007 report from Dr. Mangala Yeturu, Board-certified in internal medicine, who
indicated that appellant had low back pain, and L4-5 radiculopathy, which radiated to both lower
extremities. Dr. Yeturu noted that a recent injury on the elevator on January 26, 2007
“aggravated the pain.”
He indicated that appellant could not return to work until
February 20, 2007.
By letter dated February 26, 2007, the Office advised appellant that additional factual and
medical evidence was needed. The Office explained that a physician’s opinion was crucial to his
claim and allotted him 30 days within which to submit the requested information.
The Office subsequently received physical therapy notes dated February 7 to
March 8, 2007. It also received a March 6, 2007 treatment prescription from Dr. Aruna Kandula,
Board-certified in internal medicine.
On February 21, 2007 Dr. Yeturu diagnosed a disc herniation and chronic low back pain.
He advised that appellant was unable to return to work until he finished therapy and he saw a
neurosurgeon. A June 9, 2006 electromyogram (EMG) read by Dr. Abid M. Ali, a Boardcertified neurologist, revealed a very mild compression of the median nerves bilaterally at the
wrists involving sensory fibers with demyelinating features, bilateral carpal tunnel syndrome,
and electrophysiological evidence of irritation of roots involving L4 to S1 paraspinals on the
right and L5-S1 paraspinals on the left. An August 30, 2006 magnetic resonance imaging (MRI)
scan read by Dr. Glen Geremia, a Board-certified diagnostic radiologist, revealed degenerative
changes within the lower lumbar spine, herniated discs at L4-5 and L5-S1 and foraminal
stenosis.
By decision dated March 27, 2007, the Office denied appellant’s claim. The Office
found that the evidence was insufficient to establish that the events occurred as alleged and
further found that the medical evidence did not address how the injury occurred.
The Office subsequently received a July 20, 2004 report from Dr. D.H. Rogers, a Boardcertified internist, who noted evaluating appellant that date for worsening back pain, chest pain,
and left elbow pain with heavy lifting while at work. Dr. Rogers diagnosed lower back strain
and lateral epicondylitis, and a chest strain. In a March 20, 2007 report, he advised that appellant
reported “worsening problems with lower back pain.” Dr. Rogers also indicated that appellant
reported a back injury in 2003 related to straining and pushing items at work. He noted that on
January 26, 2007 appellant was involved in a “work-related task when he was violently jostled.”
Dr. Rogers determined that appellant had difficulty ambulating and used a cane. He stated that
appellant had low back pain, “which is reported to be exacerbated by an injury sustained while at
work.” Dr. Rogers indicated that appellant was “not able to perform work-related duties
1

The record reflects that appellant has four other claims, Nos. 102033102, 102037493, 102054300 and
102059335. These other claims are not before the Board on this appeal.

2

assigned to him secondary to the lower back pain.” He opined that appellant could not return to
full duty for at least six months after the injury. In a separate March 20, 2007 report, Dr. Rogers
noted that appellant related that he had “persistent problems with lower back pain since
experiencing an injury while on an elevator at work.” He noted that appellant had back pain
since 2003, and that he reported that he was “violently jostled while on an elevator when he was
performing his job” in January 2007. Dr. Rogers indicated that appellant had not worked since
the episode and reported continued back pain, and pain in the right hip and thigh. He diagnosed
back pain. Dr. Rogers stated that appellant had underlying disc disease and irritation of the nerve
roots in the lower back. He advised that appellant was undergoing physical therapy and unable
to return to full duty for at least six months postinjury.
In a March 22, 2007 report, Dr. Yeturu noted that appellant was in an elevator on
January 26, 2007, when it malfunctioned. He diagnosed low back pain with radiation to both
extremities. Dr. Yeturu checked the box “yes” in response to whether he believed that
appellant’s condition was caused or aggravated by an employment activity. He filled in that the
injury was aggravated by the recent injury on the elevator. Dr. Yeturu recommended that
appellant could return to work with restrictions on March 27, 2007.
In a March 23, 2007 report, Dr. Arnulfo Vielgo, a Board-certified internist, provided
restrictions from March 23 to September 30, 2007. He indicated that appellant was able to work
for eight hours per day with restrictions and would need a support chair and a cane. In an
April 9, 2007 report, Dr. Vielgo diagnosed cervical syndrome at L4-5, and L5-S1 with disc
herniation. He recommended that appellant return to work with restrictions.
On April 15, 2007 appellant’s representative requested a hearing, which was held on
August 9, 2007. In an April 29, 2007 statement, appellant explained that on January 26, 2007 he
was on the elevator when it stopped between floors and began moving up in a jerking motion.
He stated that his body was “violently jostled from left to right and from front to back.”
Appellant also submitted numerous copies of physical therapy notes from February 7 to
March 8, 2007 and evidence previously of record.
By decision dated September 11, 2007, the Office hearing representative modified the
Office’s March 27, 2007 decision to reflect that appellant had presented sufficient evidence to
establish that an employment incident occurred as alleged. However, the Office hearing
representative affirmed denial of his claim as the medical evidence was insufficient to show that
the incident caused a diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act3 and that an injury was
2

5 U.S.C. §§ 8101-8193.

3

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

3

sustained in the performance of duty.4 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.5
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
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.6 The medical evidence required to establish causal
relationship is usually rationalized medical evidence. Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7
ANALYSIS
Appellant alleged that, on January 26, 2007, he was in an elevator which malfunctioned.
He stated that he was violently jostled during the incident. The Office hearing representative
found that appellant presented sufficient evidence to establish the incident occurred, as alleged.
Therefore, the first component of fact of injury is established. However, the medical evidence is
insufficient to establish the second component of fact of injury, that the employment incident
caused an injury. The medical reports of record do not establish that the elevator incident caused
a personal injury on January 26, 2007. The medical evidence provides insufficient explanation
of how the incident of January 26, 2007 caused or aggravated an injury.8
In reports dated January 29 and February 1, 2007, Dr. Yeturu noted that appellant had
low back pain and L4-5 radiculopathy, which radiated to both lower extremities. He advised that
a recent injury on the elevator on January 26, 2007 “aggravated the pain.” The Board notes that
Dr. Yeturu did not provide a firm medical diagnosis or provide any explanation of how the
accepted incident aggravated appellant’s low back condition. Dr. Yeturu also completed a
February 21, 2007 report, in which he diagnosed a disc herniation and chronic low back pain.
On March 22, 2007 he noted that appellant was in an elevator on January 26, 2007, when it
4

James E. Chadden, Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyet, 41 ECAB 992 (1990).

6

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

7

Michael S. Mina, 57 ECAB ___ (Docket No. 05-1763, issued February 7, 2006).

8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

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malfunctioned. Dr. Yeturu again noted low back pain with radiation to both extremities and
checked the box “yes” in response to whether he believed that appellant’s condition was caused
or aggravated by an employment activity. He noted that appellant’s condition was aggravated by
the elevator incident but he did not provide his reasoning for his stated conclusion or address
appellant’s prior history of back problems. The checking of a box “yes” in a form report,
without additional explanation or rationale, is not sufficient to establish causal relationship.9
The reports from Dr. Rogers are also insufficient to establish appellant’s claim. The
July 20, 2004 report predated the claimed injury. The March 20, 2007 reports noted that
appellant reported “worsening problems with lower back pain,” listed his back injury of 2003
and noted the January 26, 2007 elevator incident in which he stated that appellant was “violently
jostled.” Dr. Rogers opined that appellant had low back pain “which is reported to be
exacerbated by an injury sustained while at work.” He also indicated that appellant had
underlying disc disease and irritation of the nerve roots in the lower back pain. However,
Dr. Rogers’ opinion is equivocal in that the physician stated that appellant’s pain was “reported”
to have been exacerbated by his work. He did not provide a full explanation or reasoned opinion
addressing how the elevator incident caused a new injury or aggravated appellant’s underlying
back condition. The Board has held that speculative and equivocal medical opinions regarding
causal relationship have no probative value.10 Dr. Rogers did not otherwise provide a reasoned
opinion explaining how the elevator incident caused or aggravated a diagnosed condition.
The other medical reports submitted by appellant are insufficient to establish his claim
because they do not specifically address whether the January 26, 2007 work incident caused or
aggravated a diagnosed condition.11 Numerous physical therapy reports were also submitted.
However, health care providers such as physical therapists are not physicians under the Act.12
The medical reports submitted by appellant do not adequately address how the
January 26, 2007 incident at work caused or aggravated his low back condition. The reports are
of limited probative value.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty on January 26, 2007.

9

Calvin E. King, 51 ECAB 394 (2000).

10

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
11

Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of diminished probative value on the issue of causal relationship).
12

See Jane A. White, 34 ECAB 515, 518 (1983). See 5 U.S.C. § 8101(2). This subsection defines the term
“physician.” See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in
general, can only be given by a qualified physician).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated September 11, 2007 is affirmed.
Issued: April 17, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6