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

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

Docket No. 19-1424
Issued: September 15, 2020

Case Submitted on the Record

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

JURISDICTION
On June 17, 20191 appellant filed a timely appeal from a December 17, 2018 nonmerit
decision of the Office of Workers’ Compensation Program (OWCP).2 As more than 180 days has
elapsed from OWCP’s last merit decision, dated November 16, 2017, to the filing of this appeal,

1

A claimant has 180 days from the date of OWCP’s decision to timely file an appeal. 20 C.F.R. § 501.3(e). One
hundred and eighty days from the December 17, 2018 decision expired on Saturday, June 15, 2019. If the last day to
file an appeal falls on a Saturday, Sunday, or federal holiday, the 180-day period runs until the close of the next
business day. 20 C.F.R. § 501.3(f)(2). The appeal in this case, received by the Board on Monday, June 17, 2019 was
therefore timely filed.
2

Appellant timely requested oral argument pursuant to the Board’s Rules of Procedure. 20 C.F.R. § 501.5(b). By
order dated September 8, 2020, the Board exercised its discretion and denied the request, finding that the arguments
on appeal could adequately be addressed based on the case record. Order Denying Request for Oral Argument, Docket
No. 19-1424 (issued September 8, 2020).

pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the case.4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
FACTUAL HISTORY
On June 28, 2016 appellant, then a 59-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 27, 2016 she injured her right knee when she stepped off a
stoop while in the performance of duty. She indicated that after her injury her right knee began to
swell. Appellant stopped work that day.
In a June 27, 2016 attending physician’s report,5 Dr. Iquinder Singh, a Board-certified
family physician, noted a history that appellant felt a crack in her right knee. She diagnosed right
knee pain and checked a box marked “Yes,” indicating that the condition was employment related.
Dr. Singh advised that appellant should return in two days for work clearance. She also provided
a work excuse of even date. Dr. Singh asked that appellant be excused from work on June 28
and 29, 2016, noting that appellant was seen on June 27, 2016 for a “medical concern.”
In a duty status report (Form CA-17) dated June 30, 2016, Dr. Zoila Flores, an osteopath
who practices family medicine, indicated that appellant could not work and that she was unable to
determine when appellant could return to work. In a second form report of even date, she reported
a date of injury of June 27, 2016 and diagnosed right knee pain. Dr. Flores indicated that appellant
could return to work on July 5, 2016.
The employing establishment controverted the claim. In a June 29, 2016 correspondence,
an injury compensation specialist noted that, two months prior, appellant had been cleared for full
duty, however, she had been unable to complete her full route without assistance. The specialist
indicated that, on the date of the alleged injury, appellant was instructed to deliver a 2-hour
20-minute walking route, but only delivered the business portion and did not deliver her walking
piece, returning to the employing establishment to report her injured knee. The specialist also
indicated that the employing establishment believed that the claim was fraudulent. A job

3

5 U.S.C. § 8101 et seq.

4

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.
5
This report, designated as Part B, was attached to an unsigned Authorization for Examination and/or Treatment
(Form CA-16).

2

description for city carrier was attached. The record reflects that appellant has two separate
accepted claims.
In a development letter dated July 1, 2016, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and attached a questionnaire for her completion. OWCP
afforded appellant 30 days to submit the necessary evidence.
Appellant returned to full-time regular duty on July 5, 2016.
In a treatment note dated July 25, 2016, Dr. Robert Garroway, a Board-certified orthopedic
surgeon, noted a history that appellant felt a pop in her right knee when she twisted her knee
descending stairs while at work on June 27, 2016. He indicated that she was currently not working
and that she complained of intermittent right knee pain that caused aches and difficulty walking.
Dr. Garroway described right knee examination findings and noted that a right knee x-ray taken
that day showed degenerative change and lateral joint space narrowing. He diagnosed right knee
acute pain, primary osteoarthritis, and sprain. Dr. Garroway advised that the incident described
by appellant was the competent medical cause of the injury, based on her symptoms and his
objective findings. He advised that she could return to work with physical restrictions and
recommended a right knee magnetic resonance imaging (MRI) scan. In a Form CA-17 report of
same date, Dr. Garroway advised that appellant could not use stairs.
By decision dated August 17, 2016, OWCP denied the claim. It found the evidence
insufficient to establish that the incident occurred as alleged. OWCP concluded, therefore, that
the requirements had not been met to establish an injury as defined by FECA.
In an August 15, 2016 report, received by OWCP on August 23, 2016 Dr. Garroway
reported his physical examination findings, and repeated appellant’s history of injury and his
diagnoses.
On September 13, 2016 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review.
At the hearing, held telephonically on December 22, 2016 appellant testified that on
June 27, 2016 she had delivered mail for one to two hours, working the residential walking part of
her route, and had delivered five or six blocks prior to the injury. She stated that she ascended five
steps to put mail in a box, and as she stepped off, she twisted her right knee, but not her leg, heard
a pop, and felt sharp pain that escalated as she walked away. Appellant noticed that her knee was
swelling and returned to the employing establishment. She stated that she had called a supervisor
to report the injury, who told her to return to the employing establishment. Appellant indicated
that all of the houses on her residential route had five to six steps, and that she still had a brace on
her knee, which remained “a little sore.” The hearing representative advised her that Dr. Garroway
needed to explain how the twist caused the injury, and left the record open for 30 days.
A December 23, 2016 MRI scan of appellant’s right knee demonstrated tearing of the mid
zone of the lateral meniscus and a probable free edge tear at the junction of the posterior horn and
mid zone of the medial meniscus with tricompartmental chondral loss, mild subchondral edema,
and osteophytes in the patellofemoral compartment with mild effusion, a patellofemoral synovitis,
3

and small popliteal cyst; slight laxity of the medial collateral ligament without acute tear; and mild
distal quadriceps tendinopathy without tear.
In January 16 and September 13, 2016 form reports, Dr. Garroway advised that appellant
had not reached maximum medical improvement and that her prognosis was guarded. He indicated
that she could work eight hours per day, but could not climb stairs.
By decision dated February 13, 2017, an OWCP hearing representative affirmed the
August 17, 2016 decision, as modified. He found that the June 27, 2016 employment incident had
been established, but denied the claim, finding that Dr. Garroway had not provided a rationalized
medical explanation of how the incident caused appellant’s medical condition.
On August 21, 2017 appellant, through her representative, requested reconsideration. He
submitted a March 27, 2017 report in which Dr. Garroway diagnosed tear of lateral meniscus of
right knee. The representative opined that appellant injured her knee by twisting it while
descending stairs completing her job duties on June 27, 2015 sic, indicating that he felt strongly
that the injury described caused the meniscus tear.
By decision dated November 16, 2017, OWCP denied modification of its prior decision.
It found Dr. Garroway’s March 27, 2017 report insufficient to establish appellant’s claim because
he failed to explain how the June 27, 2016 incident caused the diagnosed meniscus tear.
In an April 25, 2018 treatment note, Dr. Garroway described complaints of continued knee
pain, worse with activity, and noted that appellant was working, but avoiding stairs. He reported:
right knee examination findings and diagnosed primary osteoarthritis of right knee; peripheral tear
of medial meniscus, current injury, of right knee, with other tear of lateral meniscus; and acute
pain of right knee. Dr. Garroway advised that the meniscal tears were from the 2015 injury which
he felt was work related and that the injury also made appellant’s arthritis worse. He concluded
that stepping down at work that could involve load and twisting of knee could cause meniscal
tears, and that appellant described this as the mode of injury. Dr. Garroway also resubmitted a
copy of the December 23, 2016 right knee MRI scan.
On November 20, 2018 OWCP received appellant’s November 13, 2018 request for
reconsideration. Appellant described the June 27, 2017 employing establishment incident,
maintained that after she felt her right knee pop she tried to continue walking and deliver mail, but
the pain was excruciating. She indicated that she then called the employing establishment, drove
back, and immediately sought medical attention.
By decision dated December 17, 2018, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.6 This discretionary authority, however, is subject to certain restrictions. For
6

5 U.S.C. § 8128(a); see R.K., Docket No. 19-1474 (issued March 3, 2020).

4

instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.7 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS).8
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.9
OWCP may not deny a request for reconsideration solely because it was untimely filed.
When a request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether the request demonstrates clear evidence of error.10 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
request for reconsideration shows clear evidence of error on the part of OWCP.11
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP. The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.12
OWCP’s procedures note and the Board has held that the term “clear evidence of error” is
intended to represent a difficult standard. The claimant must present evidence that 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 that, if submitted before the denial
was issued, would have created a conflict in medical opinion requiring further development, is not
clear evidence of error.13 The Board makes an independent determination of whether a claimant

7

20 C.F.R. § 10.607(a); see T.L., Docket No. 19-1110 (issued August 11, 2020).

8

R.T., Docket No. 20-0298 (issued August 6, 2020); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4(b) (February 2016).
9

G.L., Docket No. 18-0852 (issued January 14, 2020).

10
20 C.F.R. § 10.607(b); A.K., Docket No. 20-0003 (issued June 2, 2020); R.S., Docket No. 19-0180 (issued
December 5, 2019).
11

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1602.5(a) (February 2016).

12

G.B., Docket No. 19-1762 (issued March 10, 2020); M.P., Docket No. 19-0674 (issued December 16, 2019).

13

Federal (FECA) Procedure Manual, supra note 8; supra note 9.

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has demonstrated clear evidence of error on the part of OWCP such that it abused its discretion in
denying merit review in the face of such evidence.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations and procedures establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case.15 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issue(s).16
The most recent merit decision regarding appellant’s claim was OWCP’s November 16, 2017
decision. As her November 13, 2018 request for reconsideration was not received by OWCP until
November 20, 2018, more than one year after the November 16, 2017 decision, the Board finds
that it was untimely filed. Because appellant’s request was untimely, she must demonstrate clear
evidence of error on the part of OWCP in denying her claim that she sustained an employment
injury caused by the accepted June 27, 2016 employment incident.
The Board further finds that appellant’s reconsideration request failed to demonstrate clear
evidence of error on the part of OWCP in its last merit decision.
In support of the untimely request for reconsideration, OWCP received an April 25, 2018
treatment note from Dr. Garroway and a duplicate report of a December 13, 2016 MRI scan of
appellant’s right knee. In his April 25, 2018 report, Dr. Garroway merely reiterated his belief that
the June 27, 2016 incident caused her diagnosed right knee meniscal tear. The Board finds this
evidence insufficient to demonstrate clear evidence of error in OWCP’s November 16, 2017
decision.17
The arguments raised in support of appellant’s untimely reconsideration request did not
establish that OWCP erred in denying her claim. She merely again described the June 27, 2016
incident and maintained that this caused her right knee injury. However, these arguments do not
demonstrate clear evidence of error, as they did not raise a substantial question as to the correctness
of OWCP’s November 16, 2017 decision.18
The Board finds that appellant has not raised an argument or submitted positive, precise,
and explicit evidence that manifests on its face that OWCP committed an error in the denial of her
claim.19 Appellant has therefore not provided evidence of sufficient probative value to raise a
14

T.N., Docket No. 18-1613 (issued April 29, 2020).

15

Supra notes 7, 8, and 9.

16

L.F., Docket No. 19-0324 (issued January 2, 2020).

17

M.C., Docket No. 18-1659 (issued December 2, 2019).

18

Supra note 9.

19

U.C., Docket No. 19-1753 (issued June 10, 2020).

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substantial question as to the correctness of OWCP’s November 16, 2017 decision. Thus, the
Board finds that the request failed to demonstrate clear evidence of error.20
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim as it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the December 17, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 15, 2020
Washington, DC

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

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

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

20

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
OFFICE OF DISABILITY ADJUDICATION &
REVIEW, Downey, CA, Employer
__________________________________________

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

Docket No. 08-730
Issued: August 5, 2008

Case Submitted on the Record

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

JURISDICTION
On January 14, 2008 appellant filed a timely appeal from an October 10, 2007 decision of
the Office of Workers’ Compensation Programs that denied her occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she developed
an occupational disease in the performance of duty.
FACTUAL HISTORY
On November 14, 2006 appellant, then a 61-year-old case technician, filed an
occupational disease claim alleging that she developed a left shoulder rotator cuff injury in the
performance of duty. She stated that she first realized her condition and related it to her
employment on June 1, 2006. Appellant attributed her claimed injury to performing repetitive

movements including reaching, heavy lifting, computer input and inputting mail in files, on the
job. She did not stop work.
In support of her claim, appellant provided an undated position description for a case
assistant. The description noted that the incumbent performed most work while sitting but
occasionally was required to walk, stand, bend, and carry files, records and books. It indicated
that some movement was required for retrieving records and files, visiting other offices and
visiting other buildings.
By correspondence dated January 22, 2007, the Office requested additional information
concerning appellant’s claim.
By decision dated February 27, 2007, the Office denied appellant’s occupational disease
claim on the grounds that the evidence submitted was insufficient to support that the events
occurred as alleged.
Following the Office’s February 7, 2007 decision, appellant submitted additional
evidence in support of her claim. In an October 18, 2006 report, concerning an x-ray of
appellant’s lumbosacral spine, Dr. Jacques Andre Blanc, a Board-certified diagnostic radiologist,
noted no evidence of fracture or lytic or blastic bony lesion. He found some mild degenerative
changes at the L4-5 disc of appellant’s lumbosacral spine. In a January 2, 2007 report,
concerning a magnetic resonance imaging (MRI) scan of appellant’s left shoulder, Dr. Marwan
Hassan Saab, a Board-certified diagnostic radiologist, diagnosed small focus of tendinitis or
partial tear in the supraspinatus tendon.
In an August 2, 2006 report, Dr. David Chiu, a Board-certified internist, noted appellant’s
complaints of persistent shoulder pain which she stated that she started to experience in
May 2006, during work. He explained that appellant reported that her job involved repetitive
tasks. Dr. Chiu found good range of motion, no palpable tenderness and some discomfort with
passive resistance during abduction of the left shoulder. He diagnosed left shoulder strain and
noted that other diagnoses included rotator cuff injury, strain and trauma. On September 27,
2006 Dr. Julian Paul Ballesteros, an orthopedist, noted appellant’s complaints of left shoulder
pain and weakness. On physical examination, he found no atrophy or winging but some
tenderness to palpation of the left shoulder. Dr. Ballesteros diagnosed left shoulder impingement
syndrome and rotator cuff tear. On May 11, 2007 he noted that a left shoulder MRI scan
revealed evidence of a supraspinatus tear and acromioclavicular degenerative joint disease.
Dr. Ballesteros diagnosed left shoulder impingement syndrome and rotator cuff tear.
By correspondence dated July 2, 2007, appellant requested reconsideration. In support of
her request, she provided an August 1, 2006 x-ray of her left shoulder from Dr. Blanc, who noted
no significant abnormality.
By decision dated October 10, 2007, the Office modified its February 27, 2007 decision
finding that the evidence was established that appellant performed repetitive tasks at work but
found that the medical evidence was insufficient to show a causal relationship between
appellant’s diagnosed left shoulder condition and her employment factors.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.2
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.3
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.4 The test for determining whether
appellant sustained a compensable occupational disease or injury is three-pronged. To establish
the factual elements of the claim, appellant must submit: “(1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the 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 factors identified by the claimant.”5
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.6 The
opinion of the physician must be based on a complete factual and medical background of the
claimant7 and must be one of reasonable medical certainty8 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.9

1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

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

5

Michael R. Shaffer, 55 ECAB 386, 389 (2004), citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, supra note 3.
6

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

7

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

8

John W. Montoya, 54 ECAB 306 (2003).

9

Judy C. Rogers, 54 ECAB 693 (2003).

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ANALYSIS
The evidence establishes that appellant performed repetitive tasks as part of her work
duties. However, the Board finds that the medical evidence is not sufficient to establish that
particular duties caused or aggravated appellant’s claimed left shoulder rotator cuff injury.
Appellant submitted several diagnostic testing reports, including Dr. Blanc’s August 1,
2006 x-ray of her shoulder and October 18, 2006 x-ray of her lumbosacral spine and Dr. Saab’s
January 2, 2007 MRI scan of her left shoulder. However, Dr. Blanc’s and Dr. Saab’s reports are
diagnostic in nature and do not proffer an opinion on causal relationship. The Board has
previously held that a medical report which does not include an opinion on causal relationship is
not probative on that issue.10 Accordingly, Dr. Blanc’s and Dr. Saab’s reports do not establish
that appellant’s diagnosed left shoulder condition was caused by her claimed repetitive activities
at work. Similarly, Dr. Ballesteros’s September 27, 2006 and May 11, 2007 reports do not
establish that appellant’s diagnosed left shoulder condition is causally related to her employment
because they do not address causal relationship, identify and discuss appellant’s claimed
employment factors, or offer an opinion on causation.
In an August 2, 2006 report, Dr. Chiu addressed causal relationship in relating appellant’s
complaints, noting that appellant reported that she first experienced pain at work and that she
engaged in repetitive activities on the job. However, he did not provide any additional details or
his own opinion in support of causation. The Board has held that, when a medical opinion
consists only of restating appellant’s complaints, it is insufficient to establish causal
relationship.11 Dr. Chiu did not provide a rationalized opinion, based on a complete factual and
medical history and supported by examination findings, explaining how appellant’s work duties
caused or contributed to her diagnosed condition. Consequently, his report is not sufficient to
establish appellant’s claim.
Accordingly, the Board finds that the medical evidence of record does not establish that
particular employment activities caused or aggravated appellant’s claimed left shoulder
condition.12
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
developed an occupational disease in the performance of duty.

10

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
11

William A. Archer, 55 ECAB 674 (2004); see also Dennis M. Mascarenas, 49 ECAB 215 (1997).

12

On appeal, appellant submitted a January 3, 2008 report from Dr. Chiu. However, the Board cannot consider
new evidence on appeal as the Board’s review is limited to the evidence which was before the Office at the time of
its final decision. 20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the October 10, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 5, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINSTRATION MEDICAL
CENTER, Yakima, WA, Employer
__________________________________________

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Appearances:
Derek L. Sutton, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-211
Issued: April 24, 2007

Case Submitted on the Record

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

JURISDICTION
On October 30, 2006 appellant filed a timely appeal of an August 14, 2006 decision of
the Office of Workers’ Compensation Programs, denying her request for reconsideration without
merit review of the claim. The last decision on the merits of the claim was dated July 14, 2005.
Since the Board’s jurisdiction is limited to Office decisions issued within one year of the filing of
the appeal, the Board does not have jurisdiction over the merits of the claim.1
ISSUE
The issue is whether the Office properly refused to reopen the claim for merit review
pursuant to 5 U.S.C. § 8128(a).

1

20 C.F.R. § 501.3(d)(2).

FACTUAL HISTORY
Appellant filed a traumatic injury claim, Form CA-1, on November 30, 2004 alleging that
she sustained sepsis and a shutdown of internal organs as a result of a dog bite on
November 17, 2004. She reported on the claim form that she was a readjustment counseling
technician and she was attempting to pet a client’s dog at the time of the incident. In response to
the inquiry from the Office, appellant submitted a statement on December 17, 2004 indicating
that she was in the parking lot of the employing establishment saying goodbye to a client. The
client’s truck was parked just outside the front door, with several dogs in the car. Appellant
stated that she reached in the truck to pet one of the dogs and was bitten.
An Office memorandum dated January 21, 2005 stated that, according to the office
manager at the employing establishment, appellant was walking a veteran and his wife to their
vehicle on November 17, 2004. There were hunting dogs in the vehicle and appellant reached in
the partially opened window to pet the animals. The office manager stated that the parking lot
was not owned or maintained by the employing establishment.
By decision dated January 21, 2005, the Office denied the claim for compensation. The
Office found that the medical evidence was insufficient to establish the claim.
In a letter dated January 31, 2005, appellant requested reconsideration of her claim. By
decision dated March 2, 2005, the Office found that the request for reconsideration was
insufficient to warrant merit review of the claim.
Appellant again requested reconsideration and submitted additional medical evidence
regarding her claim. In a decision dated July 14, 2005, the Office reviewed the case on its
merits. The Office modified the basis for the denial of the claim, finding that the injury did not
occur in the performance of duty. According to the Office, the action of reaching in the truck to
pet the dog was not a requirement of her job or reasonably incidental to her job duties.
On July 10, 2006 appellant again requested reconsideration. In addition to submitting
medical evidence, appellant submitted a job description, her own statement as well as witness
statements. She stated that her job was to assist Vietnam Veterans with readjustment to civilian
life. Appellant noted that the employing establishment had created programs involving the use
of pets to help veterans resocialize. According to her, the petting of a veteran’s dog was
equivalent to reaching out to the client and showing acceptance of their family. With respect to
November 17, 2004, appellant stated that she was saying goodbye to a veteran and his wife who
were in the process of moving. After verifying with the veteran that the dogs were safe, she
reached in the station wagon and was bitten.
In a statement dated July 6, 2006, appellant’s supervisor, Larry Wilson, stated that
veterans have difficulty readjusting to their community and it is important to demonstrate
acceptance of their pets. He stated that appellant’s attempt to pet the dogs on November 17,
2004 was a requirement of her job or reasonably incidental to her job as a readjustment
counseling technician. Appellant also submitted a statement from Farrell Udell, a former
supervisor, who discussed the “Vets with Pets” program and stated that veterans were
encouraged to bring in pets and it was part of the job responsibilities of all employees to pet the

2

animals. Mr. Udell concluded that appellant’s petting of the dog was a requirement of her
position. In a statement dated June 20, 2006, another former supervisor, Lillian Dorcas, opined
that reaching out and petting a veteran’s animal was necessary to establish rapport with the
veteran. Ms. Dorcas stated that she considered petting a veteran’s animal a requirement of the
job of readjustment counseling technician. There is also a July 3, 2006 statement from a veteran
who participated in the “Vets with Pets” program and received counseling from appellant.
In a decision dated August 4, 2006, the Office determined that the request for
reconsideration was insufficient to warrant merit review.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
Under 20 C.F.R. § 10.606(b)(2), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law, by
advancing a relevant legal argument not previously considered by the Office or by submitting
relevant and pertinent evidence not previously considered by the Office. Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of these three requirements the Office will deny the application for review without reviewing the
merits of the claim. Evidence that repeats or duplicates evidence already in the case record has
no evidentiary value and does not constitute a basis for reopening a case.2
ANALYSIS
In the present case, the Office determined that appellant was not in the performance of
duty as she was not, at the time of the dog bite, fulfilling her job duties or engaged in something
incidental to her job duties.3 On reconsideration, appellant submitted a job description, her own
statement and statements from current and former supervisors regarding her job duties. The
evidence is new evidence and relevant to the issue presented. The statements discuss appellant’s
responsibilities with respect to veterans and in particular the interaction with pets of veterans as
2

Eugene F. Butler, 36 ECAB 393 (1984).

3

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.”
Valerie C. Boward, 50 ECAB 126 (1998). One of the elements of “in the course of employment” is an employee
reasonably fulfilling the duties of his or her employment or engaged in doing something incidental thereto. Janet M.
Abner, 53 ECAB 275, 278 (2002).

3

part of her job duties. The supervisors opined that attempting to pet the veteran’s dogs was part
of appellant’s job duties or incidental to those duties. Since the basis for denial of the claim was
that an attempt to pet a veteran’s dog on November 17, 2004 was not fulfilling her job duties or
reasonable incidental thereto, evidence regarding job duties and the relationship to veteran’s
animals is clearly relevant to the issue.
As noted above, relevant and pertinent evidence not previously considered by the Office
is sufficient to warrant reopening the claim for merit review. The Board finds that appellant has
met the requirement of 20 C.F.R. § 10.606(b)(2)(iii) by submitting relevant and pertinent
evidence not previously considered by the Office. The case will be remanded for merit review.
CONCLUSION
Appellant submitted new and relevant evidence sufficient to warrant reopening the claim
for merit review.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 14, 2006 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: April 24, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rockingham, NC, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1393
Issued: November 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On June 2, 2014 appellant, through counsel, timely appealed the March 17, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
February 1, 2013.
FACTUAL HISTORY
On February 1, 2013 appellant, then a 50-year-old letter carrier, filed a claim for a knee
injury that reportedly occurred earlier that same day. After dismounting his mail delivery
vehicle, appellant took a couple steps and heard a loud popping noise in his knee. Although he
initially identified his left knee, appellant later clarified it was the right knee he injured on
February 1, 2013. Appellant previously sustained a work-related right knee injury on or about
1

5 U.S.C. §§ 8101-8193 (2006).

September 4, 2011, which OWCP accepted for torn medial meniscus (xxxxxx380). He reported
having undergone right knee arthroscopic surgery in September 2011. At the time of the
February 1, 2013 employment incident, appellant also had a preexisting left knee condition and
was awaiting left total knee arthroplasty.
Appellant was treated in the emergency room (ER) on February 1, 2013, but the ER
records he submitted did not include a specific diagnosis. He was excused from all work for two
days due to right knee pain and permitted to return to light-duty work effective February 4, 2013.
On February 25, 2013 appellant was seen by a physician’s assistant for complaints of
persistent right medial knee pain of three weeks’ duration.2 He reportedly stepped wrong getting
off his mail truck. An x-ray revealed right knee degenerative changes. Appellant received a
diagnosis of lateral meniscal tear and knee degenerative joint disease. A right knee intraarticular steroid injection was administered and appellant was advised to follow-up in two
months.
On February 27, 2013 appellant underwent left knee replacement surgery.
OWCP denied the claim on March 25, 2013. Appellant requested an oral hearing, which
was held on August 16, 2013. He also submitted February 1, 2013 ER nurse treatment notes and
a July 3, 2013 right knee magnetic resonance imaging (MRI) scan. The MRI scan revealed a
previous meniscectomy of the posterior horn of the medial meniscus, with only minimal residual
tissue evident posteriorly. The anterior horn remained intact, but there was a small apical tear of
the posterior horn of the lateral meniscus. There was also evidence of a prominent joint effusion,
with extensive articular cartilage loss at the medial femorotibial joint compartment.
OWCP also received another copy of the February 25, 2013 treatment notes; however,
this latest copy was countersigned by Dr. Jason E. Guevara, a Board-certified orthopedic
surgeon.
By decision dated November 13, 2013, the hearing representative modified OWCP’s
prior decision to reflect that appellant established fact of injury. However, the claim remained in
denial status because appellant failed to prove that his right knee condition was causally related
to the February 1, 2013 employment incident.3
Appellant timely requested reconsideration and submitted a January 28, 2014 report from
Dr. Matthew T. Manzo, a Board-certified family practitioner, who indicated that appellant had
been his patient for several years. Dr. Manzo further stated that appellant had degenerative joint
2

Certain health care providers such as physician assistants, nurse practitioners, physical therapists and social
workers are not considered “physician[s]” as defined under FECA. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t)(2014).
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing entitlement to
FECA benefits. K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report
from a physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a
qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013).
3

The hearing representative noted appellant’s September 4, 2011 right knee injury and his September 23, 2011
arthroscopic surgery under claim number xxxxxx380. He suggested that OWCP consider doubling appellant’s two
right knee claims.

2

disease of his knees along with a meniscal tear. He explained that the disease process, while not
due to appellant’s employment, was hastened by his work. Dr. Manzo also explained that the
tear was completed by appellant stepping out of a truck at work on February 1, 2013. He
described appellant’s employment as consisting of “walking and stepping.” Dr. Manzo stated
that over several years of this trauma, appellant ended up with his present condition.
On February 13, 2014 OWCP wrote to Dr. Manzo seeking clarification on the issue of
causal relationship. It placed particular emphasis on the question of aggravation of appellant’s
preexisting right knee condition, including his underlying degenerative joint disease.
In a February 25, 2014 report, Dr. Manzo explained that prior to February 1, 2013
appellant had right knee meniscal problems and had undergone a meniscectomy in 2011. He
further explained that appellant’s knee was apparently doing well until his work injury
aggravated the problem. Dr. Manzo also noted that a right knee MRI scan showed minimal
remnant meniscus with subchondral bone changes suggesting arthritis. He indicated that it was
difficult to say definitively whether the changes were due to the work injury, but it seemed
intuitive given that appellant’s symptoms began and increased after this injury. Although
Dr. Manzo believed that appellant’s job and the incident exacerbated the underlying degenerative
joint disease, he conceded that an orthopedist’s opinion would be of more value in this situation.
In a decision dated March 17, 2014, OWCP denied modification of the hearing
representative’s November 13, 2013 decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.4
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.5 The second component is whether the employment incident caused a
personal injury.6 An employee may establish that an injury occurred in the performance of duty

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question which generally requires
rationalized medical opinion evidence to resolve the issue. See 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.

3

as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.7
ANALYSIS
The Board finds that the case is not in posture for decision. Proceedings under FECA are
not adversarial in nature and OWCP is not a disinterested arbiter. The claimant has the burden to
establish entitlement to compensation; however, OWCP shares responsibility in the development
of the evidence to see that justice is done.8
In response to appellant’s latest reconsideration request, OWCP asked Dr. Manzo to
explain how the February 1, 2013 employment incident either caused or contributed to
appellant’s current right knee condition, which included a meniscal tear and underlying
degenerative joint disease. Dr. Manzo attributed the meniscal tear to the February 1, 2013
employment incident, and further indicated that the incident and appellant’s letter carrier duties
exacerbated the underlying degenerative joint disease. Although he is admittedly not an
orthopedist and his causal relationship analysis was somewhat inartful, Dr. Manzo nonetheless
provided prima facie evidence of a link between appellant’s employment and his current right
knee condition.
Appellant previously injured the same right knee at work on or about September 4, 2011.
The hearing representative suggested that OWCP combine appellant’s two right knee injury
claims, but it did not heed his advice. Accordingly, the March 17, 2014 decision shall be set
aside, and the case remanded to OWCP for further development. On remand, OWCP shall
double the current right knee injury claim with appellant’s previously accepted right knee injury
(xxxxxx380).9 The combined case records shall then be referred to the district medical adviser
for review. After such further development of the case record as OWCP deems necessary, a
de novo decision shall be issued.
CONCLUSION
The case is not in posture for decision.

7

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

8

William J. Cantrell, 34 ECAB 1223 (1983).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8
(February 2000).

4

ORDER
IT IS HEREBY ORDERED THAT the March 17, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: November 17, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
K.E., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Seattle, WA, Employer
_________________________________________

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Appearances:
Steven E. Brown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-296
Issued: June 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 20, 2012 appellant, through her attorney, filed a timely appeal from a
September 13, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
finding that she did not establish a recurrence of disability.1 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.
ISSUE
The issue is whether appellant sustained a recurrence of disability on July 28, 2008
causally related to her October 27, 2005 employment injury.

1

The record also contains a June 20, 2012 decision granting appellant a schedule award for a 16 percent
permanent impairment of the left lower extremity. She has not appealed from this decision and it is not before the
Board at this time. See 20 C.F.R. § 501.2(c).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a decision dated April 14, 2011, the
Board reversed a September 25, 2009 decision retroactively reducing appellant’s compensation
to zero based on OWCP’s finding that her actual earnings as a modified biologist effective
August 28, 2007 fairly and reasonably represented her loss of wage-earning capacity.3 The
Board noted that she had filed a recurrence of disability and a claim for compensation due to
disability beginning July 25, 2008. OWCP found that appellant had not established modification
of the established loss of wage-earning capacity determination as of July 25, 2008. The Board
found that, as there was no loss of wage-earning capacity in place at the time appellant stopped
work, OWCP should have adjudicated her claim for compensation as a recurrence of disability
rather than a request for modification of a loss of wage-earning capacity finding. The Board
concluded that OWCP improperly issued a retroactive loss of wage-earning capacity
determination after she stopped work and filed a claim for compensation. The facts and
circumstances as set forth in the Board’s prior decision are hereby incorporated by reference.
In a work restriction evaluation dated August 9, 2007, Dr. Robert W. Kunkle, a Boardcertified orthopedic surgeon, listed work restrictions that included no sitting for more than two
hours, walking for more than one hour at a time, lifting over 20 pounds and operating a motor
vehicle more than one and a half to two hours both at work and driving to and from work. On
August 28, 2007 appellant returned to work. She informed OWCP that she was working in her
usual position except for not walking on uneven surfaces.
In a July 15, 2008 work restriction evaluation, Dr. Kunkle listed the same work
restrictions but found that appellant could commute to work only four days a week.
On July 31, 2008 the employing establishment offered appellant a position as a modified
biologist.4 It eliminated the requirement for field work and noted that the “majority of the work
is sedentary and performed in an office setting.”
3

Docket No. 10-1211 (issued April 14, 2011). OWCP accepted that on October 27, 2005 appellant, then a 40year-old biologist, sustained a contusion and sprain of the left knee and lower leg and chondromalacia of the left
patella in the performance of duty. On April 25, 2006 she underwent an abrasion chondroplasty of the left
patellofemoral joint and on December 8, 2006 she underwent a left partial medial meniscectomy and scar revision.
In a decision dated February 5, 2008, OWCP reduced appellant’s compensation to zero after finding that her actual
earnings as a modified biologist effective August 28, 2007 fairly and reasonably represented her wage-earning
capacity. On June 26, 2008 an OWCP hearing representative reversed the February 5, 2008 decision. In a decision
dated July 30, 2008, OWCP again reduced appellant’s compensation to zero based on her actual earnings as a
modified biologist beginning August 28, 2007; however, on December 10, 2008 a hearing representative set aside
the July 30, 2008 decision. In decisions dated February 13 and September 25, 2009, OWCP reduced her
compensation based on her actual earnings as a modified biologist.
4

On August 6, 2008 the employing establishment advised appellant that it was changing her work hours to 8:00
a.m. to 4:30 p.m. due to her assertion that she was unable to take public transportation working 10.5-hour days. On
August 14, 2008 appellant accepted the job offer provided it met the limitations set forth in the July 15 and
August 14, 2008 medical reports. On August 15, 2008 the employing establishment advised her that her “attempted
modification of the offer constitutes a rejection of the offer.” On September 16, 2008 appellant’s attorney argued
that she was unable to accept a job offer due to her traveling restrictions. He maintained that she could not take
public transportation and arrive at the office by 8:00 a.m.

2

On August 4, 2008 appellant filed a notice of recurrence of disability beginning July 28,
2008 causally related to her October 27, 2005 employment injury. She stated that on July 16,
2008 Dr. Kunkle limited the numbers of days she could commute to work. As a result, appellant
worked 10.5 hours each day and was unable to take mass transit. She further asserted that she
could not drive for more than one and a half to two hours avoiding stop and go traffic. Appellant
stopped work on July 24, 2008 and did not return. The employing establishment asserted that it
had accommodated her work restrictions of not walking on uneven surfaces or performing field
work. It noted that it had returned her to a schedule of eight hours a day five days a week as she
contended that she had to drive to work on the compressed schedule.
In a report dated August 14, 2008, Dr. Kunkle diagnosed post-traumatic severe
chondromalacia patella following a fracture. He related that appellant could not drive more than
30 minutes due to knee pain with flexion.5
On October 9, 2008 Dr. Kunkle advised that appellant could perform her job duties with
the restriction of not driving more than one hour. In an accompanying treatment note, he related
that she wanted a work position with a commute under 45 minutes to lessen her knee pain.
Dr. Kunkle diagnosed status post excision of a patellar fragment with severe chondromalacia
patella.
In a statement dated October 23, 2008, appellant maintained that the employing
establishment’s finding that she should work from 8:00 a.m. to 4:30 p.m. conflicted with the
July 15, 2008 restrictions set forth by Dr. Kunkle.
In a work restriction evaluation dated November 14, 2008, Dr. Kunkle related that
appellant could commute to work only four days per week and should telework if possible. He
listed restrictions of sitting, walking, and standing for 30 minutes at a time and operating a motor
vehicle at work and to and from work 30 minutes at a time.
Appellant resigned from employment effective December 1, 2008.6
In a decision dated May 5, 2011, OWCP found that appellant did not establish a
recurrence of disability beginning July 28, 2008 as the medical evidence was insufficient to
5

On September 11, 2008 Dr. Kunkle noted that appellant had returned to work but stated that her
“chondromalacia has made her knee intolerable for activities such as long periods of driving, long periods of sitting,
long periods of walking, or going up and down stairs, to the point where she is disabled from doing many of the
activities that are required of her job.”
6

In a report dated January 6, 2009, Dr. Kunkle diagnosed progressive, degenerative chondromalacia patella and
related that appellant may need a total knee replacement. He discussed her physical limitations. On July 15, 2009
Dr. Kunkle related that appellant had permanent restrictions due to her knee injury and was unable to “keep her knee
flexed for long periods of time without significant pain.” On September 14, 2010 Dr. Spencer Coray, a Boardcertified orthopedic surgeon, discussed appellant’s history of a fall in 2005 and subsequent surgeries. He diagnosed
chronic knee pain on the medial side status post partial patellectomoy and arthroscopoy. On September 28, 2010
Dr. Coray diagnosed chronic left knee pain and advised against surgery. On June 1, 2011 he related that appellant’s
history was complicated and noted that her original attending physician, Dr. Kunkle, was deceased. Dr. Coray
indicated that on December 6, 2010 she did not have many objective findings and recommended an impairment
rating.

3

establish that she was disabled from employment due to her October 27, 2005 employment
injury.
On June 2, 2011 appellant, through her attorney, requested a telephone hearing before an
OWCP hearing representative. On July 27, 2011 counsel argued that she was unable to work as
a modified biologist as she was unable to travel due to residuals of her work injury.
In a work restriction evaluation dated July 27, 2011, Dr. John E. Nimlos, Board-certified
in preventive medicine, found that appellant was not able to perform her usual position as she
could not drive or perform field work. He opined that she could drive to and from work for a
total of one hour in separated half-hour segments.
In a July 27, 2011 narrative report, Dr. Nimlos reviewed the job offer from the employing
establishment and found that appellant could perform the physical duties “with [the] exception of
the commuting requirement to and from her home.” He found that she could drive no more than
30 minutes.
On August 11, 2011 OWCP referred appellant to Dr. Dana Covey, a Board-certified
orthopedic surgeon, to determine the extent of any permanent impairment.7 It also requested that
Dr. Covey review the position of modified biologist which restricted appellant from walking on
uneven surfaces and address whether she was capable to performing the job duties.
Following a preliminary review, on August 29, 2011 an OWCP hearing representative set
aside the May 5, 2011 decision. He determined that OWCP did not address the suitability of the
job that appellant held when she stopped work prior to adjudicating her notice of recurrence of
disability.
In a report dated August 31, 2011, Dr. Covey diagnosed congenital bipartite patella of the
left knee aggravated by a severe contusion of the patellofemoral joint on October 27, 2005 and
Grade 3 to 4 chondromalacia patellofemoral joint of the left knee due to her work injury. In a
work restriction evaluation, Dr. Covey advised that appellant could sit for six hours per day,
walk and stand for one to two hours per day, operate a motor vehicle at work and to and from
work one hour per day and push, pull and lift up to 20 pounds three hours per day.
By letter dated October 17, 2011, OWCP noted that, at the time of her July 25, 2008
recurrence of disability, appellant had been working in a position as a modified biologist
beginning August 28, 2007. It requested that she submit a narrative report from her physician
addressing whether her condition worsened such that she was unable to perform her limited-duty
employment.

7

In a disability certificate dated July 25, 2008, received by OWCP on August 25, 2011, Dr. Kunkle determined
that appellant should remain off work until her restrictions were “clarified.” On September 4, 2008 he found that
she was off work until her restrictions were met. On October 9, 2008 Dr. Kunkle found that appellant could perform
all job duties except that she could not drive more than one hour at a time.

4

On October 22, 2011 appellant related that she was not working in a modified biologist
position at the time she stopped work and that the job offer came after she left her position.8 She
maintained that she accepted the offered position with her physician’s restrictions but that it was
construed as a refusal of the offer. Appellant described OWCP’s actions in her claim and
asserted that the employing establishment changed her work hours in conflict with her
restrictions. She tried the new schedule which resulted in a recurrence of disability on
July 25, 2008.
On November 2, 2011 appellant’s attorney argued that the opinions of Dr. Kunkle and
Dr. Covey established that she could not perform her limited duty due to her driving restrictions.
He asserted that on July 21, 2008 the employing establishment changed her work hours such that
she could not “carpool or telework back and forth to work. On July 24, 2008 in order to try to
avoid the stop-and-go traffic it took appellant 2.75 hours to travel from work to her residence.”
On November 16, 2011 OWCP requested that Dr. Covey address whether appellant could
perform her modified biologist technician position if not for her driving restrictions. In a
December 5, 2011 response, Dr. Covey related that she could “perform her modified duties of a
biological technician if it were not for the driving restrictions” of 30 minutes.
By decision dated December 21, 2011, OWCP found that appellant had not established a
recurrence of disability beginning July 28, 2008 due to her accepted employment injury. It
found that when she stopped work on July 25, 2008 she was working with the restrictions
effective August 9, 2007. OWCP further determined that appellant only had to drive 26 minutes
from her home to reach a park and ride. It concluded that the medical evidence established that
she could perform the position except for her driving limitations, which it found was not a
physical requirement of the position.
On January 12, 2012 appellant requested a telephone hearing, which was held on
April 19, 2012.9 Her attorney argued that she had not received a written job offer prior to
July 31, 2008. Instead, appellant worked within her own limitations. The employing
establishment changed her schedule to 8:00 a.m. to 4:30 p.m. five days a week. Appellant
related that she would still have to drive to attend meetings and do inspections. She maintained
that her physician did not want her commuting over four days per week so the employing
establishment changed her daily work schedule such that she was unable to use public
transportation. Appellant’s condition worsened because of the increased driving.
In a decision dated July 18, 2012, an OWCP hearing representative set aside the
December 21, 2011 decision. She remanded the case for OWCP to determine whether appellant
was able to perform her limited-duty employment given her field work requirements.

8

In an October 18, 2011 response, appellant related that the August 28, 2007 modified biological position did not
exist.
9

By decision dated June 20, 2012, OWCP granted appellant a schedule award for a 16 percent permanent
impairment of the left lower extremity.

5

In a July 30, 2012 memorandum of conference, the employing establishment related that
appellant did not have to travel for meetings as these could be held in the office or by
telephone.10
In a decision dated September 13, 2012, OWCP found that appellant had not established
a recurrence of disability.
On appeal appellant’s attorney contends that it took her over 30 minutes to drive to a
location where she could use public transportation. Citing Board case law relevant to loss of
wage-earning capacity determinations and the termination of compensation for refusing suitable
work under 5 U.S.C. § 8106(c), he argued that OWCP had the burden to prove the position was
suitable and within her commuting restrictions. Appellant’s attorney also contended that she had
to attend meetings as part of her work duties.
LEGAL PRECEDENT
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.11
OWCP regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.12 This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn, (except when
such withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reductionin-force) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.13
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
14

10

By letter dated August 13, 2012, appellant related that she was required to participate in meetings and disagreed
that all meetings could occur in the office or telephonically.
11

Richard A. Neidert, 57 ECAB 474 (2006); Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB
222 (1986).
12

20 C.F.R. § 10.5(x).

13

Id.

14

See Vanessa Young, 55 ECAB 575 (2004); Jimmy A. Hammons, 51 ECAB 219 (1999).

6

justice is done.15 Accordingly, once OWCP undertakes to develop the medical evidence further,
it has the responsibility to do so in the proper manner.16
ANALYSIS
OWCP accepted that on October 27, 2005 appellant sustained a left knee sprain and
contusion and chondromalacia of the left patella. In an August 9, 2007 work restriction
evaluation, Dr. Kunkle found that she could resume work with limitations that included
operating a motor vehicle no more than one and a half to two hours. Appellant returned to
modified employment on August 28, 2007. On July 15, 2008 Dr. Kunkle found that she could
continue to work with the same restrictions but could only commute to the employing
establishment four days a week. Appellant stopped work on July 28, 2008 and filed a recurrence
of disability. She related that after her physician limited her to four days of commuting a week,
she began working 10-hour days and could not use mass transit. The employing establishment
stated that it had returned appellant to a schedule of eight-hour days, five days a week due to her
contention that she could not use public transportation working only four hours a day.
The issue is whether appellant has established either a change in her limited-duty
employment or a change in her employment-related condition such that she could no longer
perform her modified employment at the time she stopped work on July 28, 2008.17 If either her
limited-duty assignment changed or her condition worsened such that she could no longer
commute to work, this would constitute a recurrence of disability.18 On the other hand, if the
commute itself caused in increase in disability, this would not be compensable as driving to and
from work is not a work factor under FECA.19
The Board finds that the case is not in posture for decision as OWCP did not adequately
develop the issue of whether appellant sustained a recurrence of disability such that she was no
longer able to commute to work. On August 14, 2008 Dr. Kunkle diagnosed severe posttraumatic chondromalacia patella and found that she could not drive more than 30 minutes due to
pain. In a work restriction evaluation dated November 14, 2008, he again found that appellant
could only commute four days per week and operate a motor vehicle no more than a half hour at
a time.

15

Richard E. Simpson, 55 ECAB 490 (2004).

16

See K.H., Docket No. 12-1930 (issued March 28, 2013); Melvin James, 55 ECAB 406 (2004).

17

The suitability of the July 31, 2008 job offer is not an issue in this case as at the time the employing
establishment made the offer she had already stopped work and filed a claim for compensation for disability.
18

See generally Betty S. Thompson, Docket No. 01-2039 (issued July 2, 2002) (where the Board found that the
medical evidence was insufficient to establish that the claimant was unable to commute to work due to her
employment injury). If, however, a claimant relocates following an injury, an inability to commute due to the
decision to move away from work would result from an intervening cause and would not be compensable. See T.C.,
Docket No. 09-268 (issued October 8, 2009).
19

See Robert J. Pribula, Jr., Docket No. 05-1239 (issued February 17, 2006).

7

On July 27, 2011 Dr. Nimlos reviewed a July 31, 2008 job offer from the employing
establishment and found that appellant could perform the duties except for the commute from her
home. He advised that she could not drive more than 30 minutes.
OWCP referred appellant to Dr. Covey for a second opinion examination. It requested
that he address whether she was capable of working as a modified biologist position at the time
she stopped work in July 2008 excluding her driving restrictions. On August 31, 2011
Dr. Covey diagnosed congenital bipartite patella of the left knee aggravated by an employmentrelated severe contusion of the patellofemoral joint and employment-related Grade 3 to 4
chondromalacia of the patellofemoral joint. He found that appellant could operate a motor
vehicle at work and commuting to and from work for one hour per day. On December 5, 2011
Dr. Covey determined that she could perform the duties of a biological technician if not for her
30-minute driving restriction.
Once OWCP undertakes to develop the medical evidence further, it has the responsibility
to do in a manner that will resolve the relevant issues in the case.20 It specifically informed
Dr. Covey not to consider appellant’s ability to commute in evaluating whether she was capable
of performing her modified employment at the time she stopped work. Accordingly, the Board
finds that the case must be remanded to OWCP. On remand, OWCP should clarify her hours of
employment at the time she stopped work on July 28, 2008 and outline her various commuting
options. It should then request that Dr. Covey review appellant’s work duties at the time she
stopped work on July 28, 2008 and her commuting options and provide an opinion regarding
whether she has established that she sustained a recurrence of disability such that she was unable
to perform the duties of her limited-duty position or commute to and from her employment.
Dr. Covey should also address whether any increase in disability resulted from the commute
itself, which would not be compensable, or constituted a spontaneous worsening of her condition
due to her accepted work injury. Following this and any other development deemed necessary,
OWCP shall issue a de novo decision on the recurrence issue.
CONCLUSION
The Board finds that the case is not in posture for decision.

20

See Melvin James, supra note 16.

8

ORDER
IT IS HEREBY ORDERED THAT the September 13, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: June 6, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF THE ARMY, CIVILIAN
PERSONNEL ADVISORY CENTER,
Fort Hood TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0303
Issued: December 7, 2020

Case Submitted on the Record

ORDER REVERSING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On November 25, 2019 appellant filed a timely appeal from a July 11, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as Docket No. 20-0303.
On May 26, 1995 appellant, then a 61-year-old federal employee, filed a traumatic injury
claim (Form CA-1) alleging that on April 12, 1995 he was injured while in the performance of
duty. OWCP accepted the claim for sprain of the lumbar region of the back, cervical spondylosis
without myelopathy, and prolonged depressive reaction.
On July 5, 2018 OWCP received a Social Security Administration (SSA) dual benefits
calculation form indicating appellant’s SSA benefit rates with a Federal Employees Retirement
System (FERS) offset and without a FERS offset from February 1996 to December 2017.
In a preliminary determination dated December 7, 2018, OWCP informed appellant that
he received an overpayment of compensation in the amount of $62,548.61, for which he was not
at fault, because the SSA/FERS offset was not applied to his FECA compensation payments for
the period February 1, 1996 through September 15, 2018.

By decision dated July 11, 2019, an OWCP hearing representative finalized the preliminary
overpayment determination finding an overpayment of compensation in the amount of $62,548.61
for the period February 1, 1996 through September 15, 2018. The hearing representative
explained that the overpayment occurred because OWCP had failed to offset appellant’s
compensation payments by the portion of his SSA age-related retirement benefits that were
attributable to his federal service. The hearing representative further found that appellant was
without fault in the creation of the overpayment, but denied waiver of recovery of the overpayment
because the evidence of record did not fully document expenses and failed to establish that
recovery of an overpayment would defeat the purpose of FECA or would be against equity and
good conscience, as appellant’s assets exceeded the resource base. The hearing representative
found that OWCP would recover the overpayment by deducting $1,000.00 every 28 days from
appellant’s continuing compensation payments.
The Board has duly considered the matter and finds that the case is not in posture for
decision.
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA age-related retirement benefits that are attributable to
federal service of the employee.1 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit.2
Upon review of the case record the finds that it is unable to determine whether appellant
received SSA age-related retirement benefits under FERS as the necessary documentation is not
of record. The record submitted to the Board is incomplete as it does not contain the claim form
originally filed by appellant, OWCP’s formal acceptances of his work-related conditions, nor a
Notification of Personnel Action (Standard Form (SF)-50) which would indicated appellant’s
appropriate retirement program. Moreover, substantial portions of the record, including
documents submitted prior to 2002, are not of record. The Board is, therefore, unable to determine
whether appellant was enrolled in a FERS retirement plan and thus whether he actually received a
prohibited dual benefit.
The case, therefore, is reversed.

1

20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802
(issued August 20, 2018).
2

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

2

IT IS HEREBY ORDERED THAT the July 11, 2019 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: December 7, 2020
Washington, DC

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

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

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

3


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

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

Docket No. 19-1051
Issued: December 2, 2020

Case Submitted on the Record

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

JURISDICTION
On April 12, 2019 appellant, through counsel, filed a timely appeal from a February 5,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more
than 180 days has elapsed from the last merit decision, dated May 2, 2018, to the filing of this

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

The Board notes that, following the February 5, 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.

appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 3, 2016 appellant, then a 30-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 2, 2016 she injured her left ankle and bruised her left
elbow when she tripped and fell while in the performance of duty. OWCP accepted the claim for
a left ankle sprain and resolved contusion of the left elbow. Appellant stopped work on February 4,
2016 and underwent left ankle surgery on November 2, 2016. She returned to modified work on
February 24, 2017, but stopped work again on March 21, 2017. Appellant resumed her usual
employment on June 21, 2017. She stopped work again on August 31, 2017 and returned to fulltime modified employment on December 11, 2017.4
On February 20, 2018 Dr. Naim Kalhor, a podiatrist, noted that appellant had “severe
swelling and edema” on evaluation of the left lower extremity. In a work status note of even date,
he advised that he was treating her for a left ankle injury and that she could resume work after a
magnetic resonance imaging (MRI) scan.
In a March 5, 2018 progress report, Dr. Kalhor discussed appellant’s complaints of left
ankle pain, swelling, and edema. On examination he found loss of sensation on the third and fourth
digit of the left foot. Dr. Kalhor diagnosed Morton’s neuroma of the left foot, to rule out a tendon
rupture, and a left foot and ankle contusion. He found that appellant was unable to work due to
left ankle swelling/edema. In a work status report of even date, Dr. Kalhor indicated that she was
totally disabled from work.
An MRI scan of the left ankle dated March 10, 2018 revealed no acute abnormality, tendon
tear, or tenosynovitis.
On March 12, 2018 appellant filed a claim for compensation (Form CA-7) for disability
from work for the period February 20 to March 9, 2018.5 She continued to file Form CA-7 claims
for wage-loss compensation for total disability until June 2018.
In a March 22, 2018 state workers’ compensation form report, Dr. Stephen R. Greene, an
internist, diagnosed a left ankle sprain and found that appellant could resume modified
employment alternating sitting and standing. In a work status report of even date, he found that
3

5 U.S.C. § 8102 et seq.

4

Appellant’s restrictions included a driving route and walking no more than 20 minutes at a time intermittently.

5
By decision dated March 20, 2018, OWCP denied appellant’s claim for wage-loss compensation from
December 29, 2017 through January 3, 2018 and January 12 through 14, 2018.

2

she could not stand for over 50 percent of the time. In March 29, 2018 work status reports and
state workers’ compensation form reports, Dr. Greene determined that appellant could perform
sitting work only; however, he further indicated that she could stand no more than 75 percent of
the time, and perform intermittent walking up to 30 minutes per hour.
In a report dated April 9, 2018, Dr. Kalhor diagnosed a left ankle sprain, to rule out a tendon
rupture, and a contusion of the left foot and ankle.6 He reviewed the MRI scan, which he noted
showed scarring from the ligament rupture, but no tear. Dr. Kalhor advised that on February 20,
2018 appellant had informed him that she had experienced “another sprain while she was getting
off her truck and she had severe swelling and edema.” He took her off work beginning that date
“to avoid any chronic pain issues.” Dr. Kalhor indicated that appellant could return to work sitting
only.
By decision dated May 2, 2018, OWCP found that appellant had not established a
recurrence of disability beginning February 20, 2018 causally related to her February 2, 2016
employment injury. It noted that she had not submitted evidence supporting that the employing
establishment withdrew her modified employment beginning February 20, 2018. OWCP further
explained that the medical evidence of record did not establish that appellant was disabled from
work due to a material change or worsening of the accepted employment conditions.
Thereafter, appellant resubmitted numerous reports already of record, including progress
reports dated February 20, March 5, and April 9, 2018 from Dr. Kalhor, state workers’
compensation form reports dated March 5, 22, and 29, 2018, and work status reports from March
and April 2018. She additionally submitted medical evidence predating her claimed recurrence of
disability beginning February 20, 2018.
Appellant further submitted an April 9, 2018 state workers’ compensation form report from
Dr. Kalhor. Dr. Kalhor diagnosed a left ankle sprain and found that she could perform modified
employment.
In a report dated May 10, 2018, Dr. Kalhor evaluated appellant for left foot and ankle pain,
noting that she experienced swelling and edema with extensive standing and walking. He
diagnosed a left foot and ankle contusion, an unstable ankle and foot, and left foot edema.
Dr. Kalhor opined that appellant could work with restrictions of no prolonged standing or walking.
In a work status form of the same date, he found that she could intermittently walk as tolerated for
20 minutes.
In a May 17, 2018 employing establishment request for or notification of absence form,
appellant requested time off due to her accepted employment injury from May 7 to June 7, 2018,
noting that there was no work available. Her supervisor signed the form.
On June 7, 2018 Dr. Kalhor advised that appellant had numbness and pain in the third and
fourth digits extending to the ankle of the left foot. He noted that she was status post ligament

6

In work status reports dated April 9, 2018, Dr. Kalhor found that appellant could perform modified employment.

3

repair of the left ankle and diagnosed a left foot and ankle contusion and sprain. In a work status
form of even date, Dr. Kalhor provided the same work restrictions.
On June 16, 2018 appellant accepted a position as a modified city carrier at the employing
establishment.
Appellant submitted medical evidence addressing her current condition following her
return to work in June 2018.
On July 25, 2018 Dr. Kalhor performed a left ankle ligament repair, excision of an
osteochrondral lesion, and excision of scar tissue and tenosynovitic tissue.
In an October 24, 2018 report of telephone call (Form CA-110), appellant advised that she
had submitted her claims for compensation as there was no work available at the employing
establishment. In a statement of even date, she questioned why she had not received wage-loss
compensation beginning February 20, 2018. Appellant asserted that from February 20 to June 15,
2018 management had not provided her with work within her restrictions. She advised that she
had filed an Equal Employment Opportunity (EEO) complaint as she was not provided with
available work within her restrictions.
On January 25, 2019 appellant, through counsel, requested reconsideration. He asserted
that he was submitting a June 15, 2018 settlement agreement from the Equal Employment
Opportunity Commission (EEOC) not previously considered.
In a June 15, 2018 EEOC settlement agreement, the employing establishment agreed to
provide appellant with a temporary job as a lobby director beginning June 15, 2018 and ending
July 7, 2018 at which point it would conduct a search for a position within her updated work
restrictions.
By decision dated February 5, 2019, OWCP denied appellant’s request for reconsideration
of the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

7
5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.9 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.10 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.11
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law nor did she advance a new and relevant legal argument not previously considered. On
reconsideration she contended that the employing establishment failed to provide her work within
her restrictions. OWCP, however, previously addressed whether appellant had established that the
employing establishment withdrew her modified employment. Consequently, appellant was not
entitled to a review of the merits based on the first or second above-noted requirements as she did
not show that OWCP erred in interpreting or applying the law nor did she advance a new and
relevant legal argument.12
The underlying issue on reconsideration is whether appellant has established that she
sustained a recurrence of disability beginning February 20, 2018 because either the employing
establishment withdrew her modified employment or she submitted sufficient medical evidence to
establish that she was disabled from her limited-duty work. On reconsideration she submitted a
form requesting absence from May 7 to June 7, 2018 due to her employment injury as there was
no work available. Appellant’s supervisor signed the form. She also submitted an EEOC
settlement agreement providing appellant with a temporary job as a lobby director beginning
June 15, 2018. The Board finds that this evidence addresses the underlying issue of whether
appellant sustained a recurrence of disability due to the employing establishment’s withdrawal of
8

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

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
10

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

11

Id. at § 10.608(b); Y.K., Docket No. 18-1167 (issued April 2, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
12

20 C.F.R. § 10.606(b)(3); see J.W., Docket No. 19-1795 (issued March 13, 2020).

5

her modified position. Consequently, it is relevant and pertinent new evidence and its submission
requires reopening of appellant’s claim for merit review pursuant to the third prong of section
10.606(b).13
The Board will therefore set aside OWCP’s February 5, 2019 decision and remand the case
for an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 5, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: December 2, 2020
Washington, DC

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

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

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

13
See M.E., Docket No. 20-0067 (issued October 15, 2020); C.H., Docket No. 17-1065 (issued
December 14, 2017).

6