United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Billings, MT, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-871
Issued: February 11, 2008

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 February 11, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated November 8, 2006, in which a hearing representative
affirmed the termination of her monetary compensation based on her refusal of suitable work and
finalized a prior denial of appellant’s request for subpoenas. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d), the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation on
the grounds that she refused an offer of suitable work; and (2) whether the Office properly
denied her request to subpoena witnesses and documents.
FACTUAL HISTORY
On July 7, 2000 appellant, then a 43-year-old clerk, filed an occupational disease claim
for a hip condition. The Office accepted the claim for left contusion of hip resolved on June 28,
2000 and later expanded her claim to include hip fracture and authorized a left total hip

replacement which was performed in May 2001. Appellant worked limited duty commencing
July 7, 2000 and elected disability retirement on March 2, 2004.1
Appellant sought treatment from Dr. Joseph M. Erpelding, a Board-certified orthopedist, who
noted a history of her work injuries starting in 1985 when she had a stress fracture of the left
femoral neck that required a total hip replacement in 1993. In reports dated February 7 and
March 19, 2001, Dr. Erpelding advised that x-rays demonstrated additional significant osteolysis
in the weight bearing dome of the acetabulum and recommended a revision of appellant’s left
hip. On April 16, 2001 the Office denied appellant’s surgery request. Appellant requested a
hearing and submitted a May 1, 2001 operative report from Dr. Erpelding dated May 1, 2001,
who performed a revision of the left total hip. In reports dated May 21, 2001 to August 21,
2002, Dr. Erpelding opined that the primary cause of appellant’s accelerated wear of her left hip
since 1989 was her work duties. On June 17, 2002 a hearing representative set aside the
April 16, 2001 decision, found that the evidence established that appellant had a work-related left
hip fracture and directed appellant’s referral for a second opinion physician to determine if the
May 1, 2001 hip surgery was medically necessary. Thereafter, Dr. Erpelding submitted reports
indicating that appellant had a stress reaction around her femoral component of the left hip that
would require revision. On January 6, 2003 he performed a left hip revision. In an October 15,
2003 report, Dr. Erpelding stated that appellant was reaching maximum medical improvement
and had 50 percent permanent impairment of the left leg.2
On November 11, 2003 the Office referred appellant for a second opinion to Dr. Dean C.
Sukin, a Board-certified orthopedic surgeon, to determine if appellant had residuals of her workrelated condition. In a November 21, 2003 report, Dr. Sukin noted reviewing appellant’s history
and listing examination findings. He diagnosed fracture of the left femoral neck, left
hemiarthroplasty, left total hip arthroplasty and left osteolysis requiring revision to current total
hip arthroplasty. Dr. Sukin opined that appellant would not reach maximum medical
improvement until January 2004 and still had her work injury. He opined that appellant could
work eight hours per day subject to various restrictions.
On January 30, 2004 appellant was referred for vocational rehabilitation.
On
February 13, 2004 the employing establishment offered appellant a full-time limited-duty
position as a modified mail processing clerk effective February 17, 2004 with a tour of duty from
3:30 p.m. to 12:00 a.m. and an annual salary of $43,664.00. The position complied with the
restrictions set forth by Dr. Sukin, the Office referral physician. In a note dated March 2, 2004,
Dr. Erpelding advised that appellant could not perform the job duties in the February 13, 2004
job offer because the position would require pushing, pulling of less than 20 pounds, sitting,
1

On May 13, 1985 appellant filed a claim for a left hip injury which was accepted for enthesopathy of the hip,
resolved, File No. 14-0272875. On February 18, 1994 she filed a claim for a back injury, which was accepted by the
Office for contusion of the back, File No. 14-00291469, which is closed. On February 25, 2000 appellant filed a
claim for a left hip injury that occurred when she slipped and fell at work which the Office accepted for left hip and
thigh contusion, File No. 12-0192399. On May 10, 2002 she filed a claim for a left hip injury that occurred when
she was struck by a container and which the Office accepted for left contusion of the lower leg, left sprain/strain of
the knee and leg, File No. 12-2009123.
2

On February 26, 2004 appellant filed a claim for a schedule award. Dr. Erpelding continued to recommend 50
percent impairment of the left leg.

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standing and walking. On May 11, 2004 appellant refused the job offer. She submitted a June 8,
2004 report from Dr. Erpelding, who noted disagreeing with Dr. Sukin’s opinion that she could
perform the offered position.
On June 21, 2004 the Office found that a conflict of medical opinion existed between
Dr. Erpelding, who indicated that appellant was unable to return to the offered position and
Dr. Sukin, an Office referral physician, who determined that appellant had residuals of her
accepted conditions but could work full time subject to restrictions.
To resolve the conflict the Office referred appellant to Dr. B. Max Iverson, a Boardcertified orthopedic surgeon, who indicated, in a report dated July 21, 2004, that he reviewed her
history and listed examination findings. Dr. Iverson diagnosed status post revision of multiple
failed surgical procedures of the left hip, status post total hip replacement revision femoral and
acetabular aspects, leg length discrepancy, irregular and disfiguring scarring with lateral hip
incisions and persistent pain of the left hip secondary to scarring and multiple surgical
procedures. He indicated that appellant reached maximum medical improvement but continued
to have residuals relating to her work-related injuries and opined that appellant’s residuals were a
consequence of problems related to a fracture that occurred at work in 1988. In a July 21, 2004
work capacity evaluation, Dr. Iverson advised that appellant could work 4 to 6 hours per day,
with no twisting, bending/stooping, operating a motor vehicle, squatting, kneeling or climbing,
sitting limited to 3 to 4 hours, walking limited to 30 minutes, standing limited to 1 to 2 hours,
reaching and reaching above the shoulder limited to 30 minutes, pushing, pulling and lifting
limited to 30 minutes and 10 pounds, with 15-minute breaks every 2 hours and appellant may use
cane, crutches and walker as needed.
On September 7, 2004 the employing establishment offered appellant a part-time, sixhour-per-day, limited-duty position as a modified mail processing clerk effective September 8,
2004 with a tour of duty from 3:30 p.m. to 9:30 p.m. and an annual salary of $43,872.00. The
offer noted that appellant would work six hours per day in conformance with Dr. Iverson’s
restrictions. The duties included modified casing of manual letters with 15-minute breaks every
2 hours, may use cane, crutches and walker as needed. The physical requirements of the position
included no lifting, pushing, pulling more than 10 pounds intermittently, no twisting, bending,
stooping, squatting, kneeling or climbing, sitting for 3 to 4 hours, walking no more than 30
minutes, standing no more than 1 to 2 hours and no reaching above the shoulder more than 30
minutes.
In an October 25, 2004 letter, the Office advised appellant that the job offer constituted
suitable work. She was informed that she had 30 days to accept the position or provide reasons
for refusing it; otherwise, she risked termination of her compensation benefits.
In a letter dated October 26, 2004, appellant rejected the job offer and asserted that the
job requirements exceeded the restrictions set forth by Dr. Iverson.3

3

Appellant submitted a November 17, 2004 report from Dr. Erpelding who opined that appellant had 50 percent
impairment of the left leg. On December 28, 2004 the Office granted appellant a schedule award for 50 percent
impairment of the left leg. The period of the award was from March 21, 2004 to December 23, 2006.

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On December 2, 2004 the Office advised appellant that the position of a modified mail
processing clerk was suitable work. The Office noted that it considered the reasons given by her
for refusing the position and found them to be unacceptable. The Office afforded appellant 15
additional days to accept the job offer.
Appellant submitted letters dated December 9 to 14, 2004 and advised that she was
rejecting the job offer because it exceeded the restrictions set forth by Dr. Iverson, specifically
that she could only work four to six hours per day.
In a decision dated December 28, 2004, the Office terminated appellant’s compensation
benefits on the grounds that she refused an offer of suitable work.
By letter dated January 25, 2005, appellant requested an oral hearing. She submitted a
May 24, 2005 report from Dr. Erpelding who diagnosed a stable hip revision.
In a decision dated May 2, 2005, the hearing representative reversed the Office decision
dated December 28, 2004 and remanded the case for further medical development. The Office
instructed the Office to send the September 7, 2004 job offer to Dr. Iverson to obtain an opinion
on whether appellant could perform the position six hours per day.
On May 25, 2005 the Office asked that Dr. Iverson review the September 7, 2004 job
offer and advise whether appellant could perform the position for six hours daily. In a May 26,
2005 report, Dr. Iverson indicated that he reviewed the job description which outlined a 6-hour
workday with mainly sitting activities where appellant could move around for 30 minutes during
the day and opined that she more likely than not could perform these duties 6 hours per day. He
indicated that the lifting, pushing, pulling and bending restrictions remained in effect.
On August 24, 2005 appellant was referred for vocational rehabilitation.
In
correspondence dated August 25, 2005, she notified the Office that she moved to Miles City,
Montana.
On September 20, 2005 the employing establishment offered appellant a part-time, sixhour-per-day, limited-duty position as a modified mail processing clerk effective September 20,
2005 with a tour of duty from 3:30 p.m. to 9:30 p.m. and an annual salary of $45,997.00. The
offer noted that appellant would work six hours per day in conformance with Dr. Iverson’s
restrictions. The duties included computerized forwarding system reworking of waste mail up to
four hours per day, manual casing in modified case up to four hours per day, switchboard relief
up to five hours per day and applying code and labels up to two hours per day. Physical
requirements included lifting, pushing, pulling up to 10 pounds no more than 30 minutes per day,
no twisting, bending, stooping, squatting, kneeling or climbing, sitting for 3 to 4 hours per day,
walking no more than 30 minutes, standing no more than 1 to 2 hours, no reaching above the
shoulder more than 30 minutes with a wheelchair available as needed. The job was subject to
Dr. Iverson’s limitations.
In a November 2, 2005 letter, the Office advised appellant that the job offer constituted
suitable work. She was informed that she had 30 days to accept the position or provide reasons
for refusing it; otherwise, she risked termination of her compensation benefits.

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In a letter dated November 23, 2005, appellant rejected the position. She advised that
there were issues in her claim that had not been addressed and indicated that she moved 150
miles away to Miles City, Montana.
On February 15, 2006 the Office advised appellant that the position of a modified mail
processing clerk was suitable work. The Office noted that it considered the reasons given by her
for refusing the position and found them to be unacceptable. The Office afforded appellant 15
additional days to accept the job offer.
In a decision dated March 8, 2006, the Office terminated appellant’s monetary
compensation effective March 19, 2006 because she refused an offer of suitable work.
On April 3, 2006 appellant requested an oral hearing which was held on August 22, 2006.
She submitted a report from Dr. Iverson dated July 27, 2006 and reported that her symptoms had
worsened in the past two years and advised that she could not work for six hours per day as her
employer required. Dr. Iverson indicated that it appeared that appellant was unable to work a
regular six-hour day and would more likely than not be confined to a part-time work involving
four hours per day.
In a report dated May 2, 2006, the rehabilitation counselor closed her case file.
On May 31, 2006 appellant requested subpoenas for Dr. Erpelding and Dr. Iverson to
attend the oral hearing. She advised that the documentation produced by Drs. Iverson and
Erpelding has been misinterpreted and asserted that subpoenas would be the only method to
obtain a complete and accurate assessment of the reports previously submitted.
In a July 6, 2006 decision, the Office denied the subpoena request finding that appellant
had failed to explain why a subpoena was the best way to obtain such evidence and that there
was no other means to obtain the documents or testimony.
In a decision dated November 8, 2006, the hearing representative affirmed the Office
decision dated March 8, 2006.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c)(2) of the Act states that a partially disabled employee who refuses to
seek suitable work or refuses or neglects to work after suitable work is offered to, procured by or
secured for him is not entitled to compensation.4 The Office has authority under this section to
terminate compensation for any partially disabled employee who refuses or neglects suitable
work when it is offered. Before compensation can be terminated, however, the Office has the
burden of demonstrating that the employee can work, setting forth the specific restrictions, if
any, on the employee’s ability to work and has the burden of establishing that a position has been
offered within the employee’s work restrictions, setting forth the specific job requirements of the
position.5 In other words, to justify termination of compensation under 5 U.S.C. § 8106(c)(2),
4

5 U.S.C. § 8106(c)(2).

5

Frank J. Sell, Jr., 34 ECAB 547 (1983).

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which is a penalty provision, the Office has the burden of showing that the work offered to and
refused or neglected by appellant was suitable.6
The implementing regulations provide that an employee, who refuses or neglects to work
after suitable work has been offered or secured for the employee has the burden of showing that
such refusal or failure to work was reasonable or justified and shall be provided with the
opportunity to make such a showing before entitlement to compensation is terminated.7 To
justify termination, the Office must show that the work offered was suitable and that appellant
was informed of the consequences of her refusal to accept such employment.8
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.9 In assessing medical evidence, the number of physicians supporting one
position or another is not controlling; the weight of such evidence is determined by its reliability,
its probative value and its convincing quality. The factors that comprise the evaluation of
medical evidence include the opportunity for and the thoroughness of physical examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.10 Office procedures state that acceptable reasons for refusing an offered position
include withdrawal of the offer, medical evidence of inability to do the work or travel to the job
or the claimant found other work which fairly and reasonably represents his or her earning
capacity (in which case compensation would be adjusted or terminated based on actual earnings).
Furthermore, if medical reports document a condition which has arisen since the compensable
injury and the condition disables the employee, the job will be considered unsuitable.11 Lastly, if
the employee is required to move to a certain area, isolated or otherwise, because of health
conditions which were caused by the injury or which predated it, the issue of availability must be
considered with respect to the new area of residence.12
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a left hip and thigh contusion, left contusion
of the lower leg, left sprain/strain of the knee and left hip fracture and authorized a left total hip
replacement which was performed in May 2001.
The Office terminated appellant’s
6

Glen L. Sinclair, 36 ECAB 664 (1985).

7

20 C.F.R. § 10.517(a) (1999); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.5(a)(5) (July 1997).
8

Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

9

See Marilyn D. Polk, 44 ECAB 673 (1993).

10

See Connie Johns, 44 ECAB 560 (1993).

11

Supra note 7, Chapter 2.814.4(b)(4) (July 1997).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(b) (July 1997); see Edward J. Stabell, 49 ECAB 566 (1998).

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compensation effective March 8, 2006 based on appellant’s refusal of suitable work. The Board
finds that the Office established that the offered position of September 20, 2005 was suitable.
The Office reviewed the medical evidence and determined that a conflict in medical
opinion existed between appellant’s attending physician, Dr. Erpelding, a Board-certified
orthopedist, and the Office referral physician, Dr. Sukin, a Board-certified orthopedist, regarding
whether appellant’s accepted conditions had resolved and whether she was totally disabled.13
Thus, the Office properly referred appellant to Dr. Iverson to resolve the conflict.
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.14
In his July 21, 2004 report, Dr. Iverson indicated that he reviewed the entire case record
and statement of accepted facts. He examined appellant thoroughly and related his clinical
findings. Dr. Iverson diagnosed status post revision of multiple failed surgical procedures of the
left hip, status post total hip replacement revision femoral and acetabular aspects, leg length
discrepancy, irregular and disfiguring scarring with lateral hip incisions and persistent pain of the
left hip secondary to scarring and multiple surgical procedures. He indicated that appellant
continued to have residuals of her work injuries but he opined that she was not totally disabled
and could work in a sedentary position four to six hours daily. Dr. Iverson noted restrictions of
no twisting, bending/stooping, operating a motor vehicle, squatting, kneeling or climbing, sitting
limited to 3 to 4 hours, walking limited to 30 minutes, standing limited to 1 to 2 hours, reaching
and reaching above the shoulder limited to 30 minutes, pushing, pulling and lifting limited to 30
minutes and 10 pounds, with 15-minute breaks every 2 hours and may use cane, crutches and
walker as needed. On May 26, 2005 he noted reviewing the September 7, 2004 job description
opined that more likely than not appellant could accomplish these duties for six hours daily.
The Board finds that, under the circumstances of this case, the opinion of Dr. Iverson is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that appellant could work a modified position subject to the
restrictions set forth above. His opinion as set forth in his reports of July 21, 2004 and May 26,
2005 are found to be probative evidence and reliable and represents the weight of the medical
evidence. Dr. Iverson clearly opined that appellant could return to work subject to the
restrictions set forth in his work restriction reports of July 21, 2004 and May 26, 2005. The
Board finds that his opinion with respect to appellant’s work limitations is based on a proper
factual background and is sufficient to establish that the position is medically suitable to her
work restrictions.15

13

5 U.S.C. § 8123(a), in pertinent part, provides: “If there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a third physician
who shall make an examination.”
14

Solomon Polen, 51 ECAB 341 (2000).

15

See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (discussing the factors that bear on the probative
value of medical opinions).

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The record reflects that the physical restrictions of the modified position offered to
appellant on September 20, 2005 conformed to the limitations provided by Dr. Iverson. In his
reports of July 21, 2004 and May 26, 2005, Dr. Iverson, as noted, advised that appellant could
work, within restrictions, a sedentary position for six hours per day. The job offered by the
employing establishment specifically indicated that appellant would work six hours per day as a
modified mail processor and the duties included reworking waste mail up to four hours per day,
manual casing in modified case up to four hours per day, switchboard relief up to five hours per
day, and apply code and labels up to two hours per day. The physical requirements of the
position included lifting, pushing, pulling up to 10 pounds no more than 30 minutes per day, no
twisting, bending, stooping, squatting, kneeling or climbing, sitting for 3 to 4 hours per day,
walking no more than 30 minutes, standing no more than 1 to 2 hours, no reaching above the
shoulder more than 30 minutes with a wheelchair available if needed.16 The Board finds that the
physical requirements of the offered position are consistent with the work restrictions set forth by
Dr. Iverson and that the offered position is medically suitable to appellant’s work restrictions.
To properly terminate compensation under section 8106(c), the Office must provide
appellant notice of its finding that an offered position is suitable and give her an opportunity to
accept or provide reasons for declining the position.17 The Office properly followed its
procedural requirements in this case. By letter dated November 2, 2005, the Office advised
appellant that a partially disabled employee who refused suitable work was not entitled to
compensation, that the offered position had been found suitable and allotted her 30 days to either
accept or provide reasons for refusing the position.18 Appellant responded by letter dated
November 23, 2005 and advised that she moved 150 miles away to Miles City, Montana, and
asserted that there were unresolved issues in her case. This evidence was insufficient to show
that the offered position was not medically suitable. The evidence suggests that appellant’s
relocation was voluntary and constitutes a personal reason for the relocation, and the Board has
held that relocation for personal reasons is insufficient to constitute a reasonable basis for refusal
of suitable work.19 The medical evidence thus establishes that, at the time the job offer was
made, appellant was capable of performing the modified position.20

16

The Board notes that the September 20, 2005 job offer was essentially the same as the September 7, 2004 offer
but noted that a wheelchair was available if needed.
17

See Maggie L. Moore, supra note 8.

18

See Bruce Sanborn, 49 ECAB 176 (1997).

19

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2-814.5(c) ( July 1997) indicates that unacceptable reasons for refusing an offer of suitable work
include the claimants; preference for the area in which he or she currently resides, personal dislike of the position
offered or the work hours scheduled, potential for promotion, and job security; see also Susan L. Dunnigan, 49
ECAB 267 (1998) (finding that appellants explanation that she had to relocate with her husband who was in the
military was exemplary, but also constituted a personal reason for the relocation, and found to be unacceptable);
Fred L. Nelly, 46 ECAB 142 (1994) (finding that appellant’s reason for refusing suitable work, that he lived 1,200
miles from the employing establishment, was unacceptable).
20

See Gayle Harris, 52 ECAB 319 (2001).

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Thereafter, on February 15, 2006 the Office advised appellant that the reasons given for
not accepting the job offer were unacceptable. The Office advised that she had 15 days to accept
the offer and if she did not, a final decision under 5 U.S.C. § 8106(c)(2) would be made.
Appellant did not submit any medical evidence to show that the offered position was not
medically suitable.21 Thus, under section 8106(c), her compensation was properly terminated.
As the Office met its burden of proof to terminate appellant’s compensation based on her
refusal of suitable work, the burden then shifted to appellant to show that her refusal to work in
that position was justified.22
Following the Office’s March 8, 2006 decision, appellant testified at the hearing and
argued that her condition had worsened in the last two years and she could not work six hours
per day. She submitted a report from Dr. Iverson dated July 27, 2006 in which he indicated that
it appeared that appellant was unable to work a regular six-hour day and would more likely than
not be confined to working four hours per day. However, this report is insufficient to establish
that the position offered appellant was unsuitable as the physician did not provide a reasoned
opinion explaining how or why appellant’s diagnosed conditions prevented her from performing
the job duties of the modified position at the time her compensation was terminated, nor did
Dr. Iverson retract or distinguish his prior reports that found that appellant could work a limitedduty position six hours per day subject to restrictions. These reports are insufficient to establish
that the position offered appellant was unsuitable as the physician did not explain how any
particular diagnosed conditions prevented her from performing specific job duties of the
modified position. This evidence is insufficient to meet appellant’s burden of proof.
On appeal, appellant alleged that the Office improperly terminated her schedule award
when she refused the job offer. The Board notes that Congress has defined compensation to
include money payments made for schedule awards under section 8107 of the Act,23 the Board
finds that appellant’s refusal to accept suitable work constitutes a bar to his receipt of a schedule
award for any impairment which may be related to the July 7, 2000 employment injury after she
refused suitable work. Applying the section 8106(c) penalty provision to the statute, as a whole,
is in accordance with the rules of statutory construction set forth and consistent with prior Board

21

See Les Rich, 54 ECAB 290 (2003).

22

See Ronald M. Jones, 52 ECAB 190 (2000).

23

5 U.S.C. § 8107.

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precedent which has given effect to section 8132 and section 8106(b)(2) to the whole statute as
enacted.24
LEGAL PRECEDENT -- ISSUE 2
Section 812625 of the Act provides that the Secretary of Labor, on any matter within her
jurisdiction, may issue subpoenas for and compel attendance of witnesses within a radius of 100
miles. This provision gives the Office discretion to grant or reject requests for subpoenas.
Subpoenas for witnesses will be issued only where oral testimony is the best way to ascertain the
facts.26
In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method to obtain such evidence because there is
no other means, by which the testimony could have been obtained.27 Additionally, no subpoena
will be issued for attendance of employees of the Office acting in their official capacities as
decision-makers or policy administrators.28
The Office hearing representative retains discretion on whether to issue subpoenas. The
function of the Board on appeal is to determine whether there has been an abuse of discretion.
Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonably
exercise of judgment, or action taken, which is clearly contrary to logic and probable deductions
from established facts.29
ANALYSIS -- ISSUE 2
By letter dated May 31, 2006, appellant requested subpoenas for Drs. Iverson and
Erpelding to appear at the oral hearing and provide testimony. In a July 6, 2006 decision, the
Office denied the subpoena request finding that appellant had failed to explain why the
documents, or person, requested were directly related to the issue at hand or that a subpoena was
the best method for obtaining the requested information.
To establish that the Office abused its discretion, appellant must show proof of manifest
error, a clearly unreasonably exercise of judgment, or action taken, which is clearly contrary to
logic and probable deductions from established facts. The mere showing that the evidence
would support a contrary conclusion is insufficient to prove an abuse of discretion.30
24

5 U.S.C. § 8106(c)(2); see Arthur E. Anderson, 43 ECAB 691 (1992); Stephen R. Lubin, 43 ECAB 564 (1992).

25

5 U.S.C. § 8126.

26

See 20 C.F.R. § 10.619.

27

Id.

28

20 C.F.R. § 10.619(b).

29

Dorothy Bernard, 37 ECAB 124 (1985).

30

See Joseph P. Hofmann, 57 ECAB ___ (Docket No. 05-1772, issued March 9, 2006).

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In the present case, appellant has not met her burden to show abuse of discretion.
Although she advised that the documentation produced by Drs. Iverson and Erpelding has been
misinterpreted and that subpoenas would be the only method to obtain a complete and accurate
assessment of the reports previously submitted, she failed to provide an explanation of why the
testimony of the persons would be relevant to the issue in his claim or why a subpoena was the
best method or opportunity to obtain such evidence. Appellant did not provide any evidence to
support that any additional probative information would be elicited by compelling the attendance
of the persons requested. Therefore, the Board finds that the hearing representative did not abuse
his discretion in denying subpoenas, as he found that the testimony could be obtained by other
means.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s
disability compensation under 5 U.S.C. § 8106(c)(2) for refusal of suitable employment. The
Board further finds that the Office properly denied appellant’s subpoena requests.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 8 and July 6, 2006 are affirmed.
Issued: February 11, 2008
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

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

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

Docket No. 13-212
Issued: May 17, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 7, 2012 appellant filed a timely appeal from a July 18, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision which denied her claim for an
employment-related injury.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.3

1

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant to confirm a
continuing desire for an oral argument in Washington, DC. No written confirmation was received. The Board, in its
discretion, will decide the appeal on the record, as her contentions on appeal can be adequately addressed.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the July 18, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant met her burden of proof to establish that she developed an
occupational disease causally related to factors of her federal employment.
On appeal, appellant contends that OWCP failed to acknowledge a February 28, 2012
report from her attending physician, Dr. Jon Silver, a Board-certified neurosurgeon, stating his
opinion that the condition of pseudoarthrosis was aggravated by pushing and pulling flats.
FACTUAL HISTORY
On July 27, 2011 appellant, then a 48-year-old mail processor, filed an occupational
disease claim (Form CA-2) alleging that her cervical pseudoarthrosis in the inferior end plate of
C4 and fractured screws were aggravated by factors of her federal employment, such as pushing
and pulling.
In a May 6, 2011 report, Dr. Silver stated that appellant had increasing neck pain and it
was difficult to know if it was from a new cervical disc problem or if there was truly nonunion at
the C4-6 corpectomy site, which led to fracture of the screws. He reported that x-rays of the
neck showed fracture through both C4 screws, with some dislodgement of the right-sided screw.
Appellant had increasing discomfort in the back of her neck, into the trapezii bilaterally, and into
the right shoulder, with occasional pain and some numbness radiating down the right arm into
the forearm.
Appellant submitted a May 24, 2011 computerized tomography (CT) scan of the cervical
spine which showed fracturing of the bilateral C4 screws and a May 25, 2011 magnetic
resonance imaging (MRI) scan of the cervical spine which revealed mild spondylosis with
features of fusion and nonunion.
On June 2, 2011 Dr. Silver reviewed the May 24, 2011 CT scan and the May 25, 2011
MRI scan and opined that the pseudoarthrosis was responsible for the fractured screw. In a
report dated June 14, 2011, he opined that appellant’s heavy pushing and pulling at work
possibly could have aggravated the pseudoarthrosis to the point where the screws became
fractured.
In an August 22, 2011 letter, OWCP informed appellant of the deficiencies of her claim
and afforded her 30 days to submit additional evidence. Appellant submitted an undated form
signed by Jean Stryker, a physician’s assistant, who opined that heavy pushing and pulling added
to neck movement resulting in a screw fracture.
In a May 6, 2011 report, Dr. Silver provided the following work restrictions, no lifting
greater than 15 pounds. On September 29, 2011 he opined that while it was unclear whether or
not appellant’s current duties caused the actual pseudoarthrosis it was certainly possible that
repetitive motion led to aggravation of this condition. Dr. Silver indicated that had appellant had
complete sedentary work this may have gone on to successful fusion and certainly there may not
have been further fracture of the screws. He explained that it was difficult to determine this for
certain but appellant stated that most of her repetitive movement came about in the workplace.

2

Dr. Silver stated that he did not know of any other way to confirm whether or not the actual work
itself caused this or if this was caused by daily activities.
By decision dated November 9, 2011, OWCP denied appellant’s claim on the basis that
the evidence of record failed to establish causal relationship between appellant’s condition and
factors of her federal employment.
On April 25, 2012 appellant requested reconsideration and submitted a December 6, 2011
report from Dr. Silver who indicated that appellant was satisfied with continuing her weight
limitations of 15 pounds at work as well as the addition of no overhead lifting, which had been
problematic for her. She also submitted a November 15, 2011 report from Dr. Dennis P. White,
a Board-certified physiatrist, who indicated that her symptoms increased with axial loaded
activities.
By decision dated July 18, 2012, OWCP denied modification of its November 9, 2011
decision on the basis that the medical evidence submitted was not sufficient to establish causal
relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury5 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of

4

5 U.S.C. §§ 8101-8193.

5

OWCP’s regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
6

See J.C., Docket No. 09-1630 (issued April 14, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004).

7

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

3

the relationship between the diagnosed condition and the specific employment factors identified
by the employee.8
ANALYSIS
The Board finds that appellant failed to establish that she developed an occupational
disease in the performance of duty. The record reflects that she has a cervical condition and that
her federal employment requires pushing and pulling. However, appellant has not established
that her condition is causally related to any of these factors of her federal employment.
Dr. Silver reviewed diagnostic testing and opined that pseudoarthrosis was responsible
for the fractured screws in appellant’s neck. He provided work restrictions and opined that
appellant’s heavy pushing and pulling at work possibly could have aggravated the
pseudoarthrosis to the point where the screws became fractured. On September 29, 2011
Dr. Silver opined that while it was unclear whether or not appellant’s current duties caused the
actual pseudoarthrosis it was certainly possible that repetitive motion led to aggravation of this
condition. He indicated that had appellant had complete sedentary work this may have gone on
to successful fusion and certainly there may not have been further fracture of the screws.
Dr. Silver noted that it was difficult to determine this for certain but appellant stated that most of
her repetitive movement came about in the workplace. He stated that he did not know of any
other way to confirm whether or not the actual work itself caused this or if this was caused by
daily activities. Dr. Silver provided firm diagnoses and identified appellant’s work duties, but
his opinion on causal relation is speculative. He failed to provide a rationalized opinion
explaining how factors of appellant’s federal employment, such as pushing and pulling, caused
or aggravated her cervical condition. The Board has held that the mere fact that appellant’s
symptoms arise during a period of employment or produce symptoms revelatory of an
underlying condition does not establish a causal relationship between appellant’s condition and
her employment factors.9 Lacking thorough medical rationale on the issue of causal relationship,
Dr. Silver’s reports are insufficient to establish that appellant sustained an employment-related
injury.
In his November 15, 2011 report, Dr. White indicated that appellant’s symptoms
increased with axial loaded activities. He did not provide a rationalized medical opinion
explaining how factors of her federal employment, such as pushing or pulling, caused or
aggravated her condition. Thus, the Board finds that appellant did not meet her burden of proof
with the submission of Dr. White’s report.

8

See I.J., 59 ECAB 408 (2008). See also Victor J. Woodhams, 41 ECAB 345 (1989).

9

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

4

The report from Ms. Stryker, a physician’s assistant, is of no probative value as she is not
a physician under FECA.10 As such, the Board finds that appellant did not meet her burden of
proof with this submission.
The May 24, 2011 CT scan and May 25, 2011 MRI scan are diagnostic in nature and
therefore do not address causal relationship. As such, the Board finds that they are insufficient to
establish appellant’s claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.11 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence. As
appellant has not submitted any medical evidence to support her allegation that she sustained an
injury causally related to the indicated employment factors, she failed to meet her burden of
proof to establish a claim.
On appeal appellant contends that OWCP failed to acknowledge a February 28, 2012
report from Dr. Silver stating his opinion that the condition of pseudoarthrosis was aggravated by
pushing and pulling flats. The Board has reviewed the record and finds that it does not contain a
report from Dr. Silver dated February 28, 2012. As OWCP did not receive the medical evidence
from appellant, the Board finds that her argument is not substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
developed an occupational disease in the performance of duty causally related to factors of her
federal employment.

10

5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N. Fassi,
42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).
11

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

5

ORDER
IT IS HEREBY ORDERED THAT the July 18, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2013
Washington, DC

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

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

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

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

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

Docket No. 15-1772
Issued: October 7, 2016

Case Submitted on the Record

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

JURISDICTION
On August 13, 20151 appellant filed a timely appeal from a February 18, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1

On February 9, 2016 the Board issued an order dismissing the appeal finding that appellant’s appeal was
untimely filed. Order Dismissing Appeal, Docket No. 15-1772 (issued February 9, 2016). Appellant subsequently
submitted a U.S. Postal Service postmark confirming that the appeal was timely filed. In an order dated
September 8, 2016, the Board granted appellant’s petition for reconsideration and reinstated the current appeal.
Order Granting Petition for Reconsideration and Reinstating Appeal, Docket No. 15-1772 (issued
September 8, 2016).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP after the February 18, 2015 decision
was issued. The Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the
time of its final decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether appellant met her burden of proof to establish bilateral carpal tunnel
syndrome causally related to factors of her federal employment.
On appeal, appellant contends that her treating physicians and physical therapist
submitted supporting evidence to prove that her bilateral carpal tunnel syndrome was due to
repetitive use of her hands and twisting and grasping mail in the performance of duty.
FACTUAL HISTORY
On November 22, 2013 appellant, a 48-year-old mail carrier, filed a recurrence claim
(Form CA-2a), alleging a recurrence of total disability on November 13, 2013 due to repetitive
motions with her arms and hands, including repetitively casing mail, lifting packages, trays of
letters, and flats, and gripping and grasping letters and flats. OWCP had previously accepted
bilateral/lateral epicondylitis under File No. xxxxxx511, with an August 13, 2008 date of injury.
In reports dated October 29 and November 13, 2013, Dr. Douglas Thierer, a Boardcertified occupational medicine specialist, diagnosed bilateral carpal tunnel syndrome and
bilateral lateral epicondylitis. He advised appellant to avoid repetitive and forceful gripping,
grasping, and pinching activities, especially with her hands in awkward positions. Dr. Thierer
recommended 5-minute breaks every 25 minutes from repetitive activities involving the hands in
order to allow for stretching.
In a December 27, 2013 letter, OWCP advised appellant that it had administratively
created a new claim for an occupational disease because she indicated an injury or medical
condition to her bilateral hands and arms on November 13, 2013 due to factors of her federal
employment. It notified appellant of the deficiencies of her claim and afforded her 30 days to
submit additional evidence and respond to its inquiries.
In response, appellant submitted a January 8, 2014 narrative statement reiterating the
factual history of her claim.
By decision dated February 19, 2014, OWCP denied the claim because the medical
evidence of record failed to establish a causal relationship between appellant’s conditions and
factors of her federal employment.
By letter dated October 20, 2014, received November 21, 2014, appellant requested
reconsideration and submitted an occupational disease claim (Form CA-2) alleging bilateral hand
and arm conditions as a result of repetitive grasping, gripping, and twisting in the performance of
duty.
She further submitted physical therapy reports dated November 11 through
December 3, 2013.
In reports dated June 5, 2012 through October 29, 2014, Dr. Thierer reiterated his
diagnoses and opined that appellant’s symptoms had been present since 2008 and her conditions
developed over time due to repetitive use of her hands, repetitive gripping, and repetitive
grasping related to sorting, casing, and delivering mail. On October 29, 2014 he further opined
that there was strong evidence that a causal relationship existed between a combination of risk
2

factors (including repetition, force, and posture) and lateral epicondylitis and carpal tunnel
syndrome. Dr. Thierer observed that appellant’s job included both repetitive and forceful
activities and noted that she already had an accepted claim for bilateral lateral epicondylitis. He
concluded that since appellant had already established a causal relationship between her job
duties and her bilateral lateral epicondylitis condition, it followed that her bilateral carpal tunnel
syndrome was also causally related to the same repetitive and forceful activities required by her
job duties.
In reports dated April 22 and 25, 2014, Dr. Leslie H. Kim, a Board-certified orthopedic
surgeon, diagnosed chronic progressive left heel plantar fasciitis. On May 5, 2014 she diagnosed
carpal tunnel syndrome and lateral epicondylitis and reported that appellant believed that her
injury occurred gradually over time as her work was repetitive in nature due to lifting, pushing,
and pulling.
By decision dated February 18, 2015, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA, and that an injury4 was sustained in the performance
of duty. These are the essential elements of each compensation claim, regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature

4

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

6

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

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of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish her claim that
federal employment factors caused or aggravated her bilateral carpal tunnel syndrome.
Appellant identified the factors of employment that she believed caused the condition, including
repetitive lifting, grasping, gripping, pinching, and twisting with her hands at work, which
OWCP accepted as factual. However, in order to establish a claim for an employment-related
injury, she must also submit rationalized medical evidence which explains how her medical
condition was caused or aggravated by the implicated employment factors.8
In his reports, Dr. Thierer diagnosed bilateral carpal tunnel syndrome and bilateral lateral
epicondylitis. He opined that appellant’s symptoms had been present since 2008 and her
conditions developed over time due to repetitive use of her hands, repetitive gripping, and
repetitive grasping related to sorting, casing, and delivering mail. Dr. Thierer further opined that
there was strong evidence that a causal relationship existed between a combination of risk factors
(including repetition, force, and posture) and lateral epicondylitis and carpal tunnel syndrome.
He noted that appellant’s job included both repetitive and forceful activities and that she already
had an accepted claim for bilateral lateral epicondylitis. Dr. Thierer concluded that since
appellant had already established a causal relationship between her job duties and her bilateral
lateral epicondylitis condition, it followed that her bilateral carpal tunnel syndrome was also
causally related to the same repetitive and forceful activities required by her job duties. He
failed, however, to provide a rationalized opinion explaining how factors of appellant’s federal
employment, such as repetitive lifting, grasping, gripping, pinching, and twisting with her hands
at work, caused or aggravated her bilateral carpal tunnel syndrome. Dr. Thierer noted that
appellant’s condition occurred while she was at work, but such generalized observations do not
establish causal relationship because they merely repeat appellant’s allegations and are
unsupported by adequate medical rationale to explain how her physical activity at work actually
caused or aggravated the diagnosed conditions.9 The Board has held that the mere fact that
appellant’s symptoms might arise during a period of employment or produce symptoms
revelatory of an underlying condition does not establish a causal relationship between appellant’s
condition and her employment factors.10 Dr. Thierer failed to provide a rationalized opinion
explaining how factors of appellant’s federal employment, such as lifting, grasping, gripping,
pinching, and twisting, caused or aggravated her bilateral carpal tunnel syndrome. Thus, the
Board finds that Dr. Thierer’s reports are insufficiently rationalized to establish that appellant’s
condition was caused or aggravated by factors of her federal employment.

7

See O.W., supra note 5.

8

See A.C., Docket No. 08-1453 (issued November 18, 2008).

9

See K.W., Docket No. 10-98 (issued September 10, 2010).

10

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

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In his May 5, 2014 report, Dr. Kim diagnosed carpal tunnel syndrome and lateral
epicondylitis and reported that appellant believed that her injury occurred gradually over time as
her work was repetitive in nature due to lifting, pushing, and pulling. As noted, the mere fact
that appellant’s symptoms arise during a period of employment or produce symptoms revelatory
of an underlying condition does not establish a causal relationship between appellant’s condition
and her employment factors.11 Therefore, the Board finds that Dr. Kim’s report is insufficient to
establish that appellant sustained an employment-related injury.
In support of her claim, appellant submitted physical therapy reports dated November 11
through December 3, 2013. These documents do not constitute competent medical evidence
because a physical therapist is not considered a “physician” as defined under FECA.12 As such,
this evidence is also insufficient to meet appellant’s burden of proof.
On appeal, appellant contends that her treating physicians and physical therapist
submitted supporting evidence to prove that her bilateral carpal tunnel syndrome was due to
repetitive use of her hands and twisting and grasping mail in the performance of duty. Based on
the findings and reasons stated above, the Board finds appellant’s arguments are not
substantiated. As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to the accepted employment factors, she
failed to meet her burden of proof to establish a claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish bilateral
carpal tunnel syndrome causally related to factors of her federal employment.

11

See id.

12

5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law);
See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA).

5

ORDER
IT IS HEREBY ORDERED THAT the February 18, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 7, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
O’Fallon, IL, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 14-1041
Issued: November 10, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On March 27, 2014 appellant, through counsel, filed a timely application for review of a
March 5, 2014 merit decision by the Office of Workers’ Compensation Programs (OWCP)
denying his claim for a traumatic injury. The Board docketed the appeal as No. 14-1041.
Having reviewed the case record submitted by OWCP, the Board finds that this case is not in
posture for decision.
This case has been before the Board. The facts as set forth in the Board’s prior decision
are hereby incorporated by reference.1
By letter dated November 1, 2012 and received by OWCP on November 5, 2012,
appellant, through counsel, requested reconsideration.
In support of the request for
reconsideration, appellant’s counsel submitted two new medical reports, a February 23, 2012
report by Dr. Rob Fast, a chiropractor, and a November 12, 2011 report by Dr. William H.
Thom, a physician Board-certified in anesthesiology and pain medicine. Although this medical
1

S.J., Docket No. 11-321 (issued September 9, 2011). (On February 22, 2010 appellant, then a 45-year-old mail
carrier, filed a traumatic injury claim alleging that on February 13, 2010, due to weather conditions, he slipped and
fell on concrete injuring his head and hip. The Board affirmed OWCP’s October 20, 2010 denial of appellant’s
claim. The Board found that, although appellant established that an employment incident occurred as alleged, he did
not establish that an injury resulted from the fall).

report was not new (it had previously been received by OWCP on December 12, 2011) it has
never been reviewed by OWCP. By decision dated March 5, 2014, it denied modification of the
denial of appellant’s claim. In the decision, OWCP discussed Dr. Fast’s report, but only referred
to earlier reports of Dr. Thom which had been reviewed by the Board in its September 9, 2011
decision.
OWCP denied appellant’s claim for the reason that he did not submit medical evidence
sufficient to establish a causal relationship between his accepted employment incident of
February 13, 2010 and his medical diagnoses. As the Board’s jurisdiction of a case is limited to
reviewing that evidence that was before OWCP at the time of its final decision,2 it is necessary
that OWCP review all the evidence submitted by a claimant and received by OWCP prior to the
issuance of its final decision.3
Accordingly, the Board finds that this case is not in posture for decision as OWCP did
not review all the relevant evidence before issuing its decision. On remand, OWCP shall review
all submitted evidence and, following any necessary further development, issue a de novo
decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 5, 2014 is set aside, and the case is remanded for further
development consistent with this order of the Board.
Issued: November 10, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board
2

20 C.F.R. § 501.2(c)(1).

3

See William A. Couch, 41 ECAB 548 (1990).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, HARVEST POST
OFFICE, Harvest, AL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0585
Issued: March 11, 2022

Case Submitted on the Record

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

On March 5, 2021 appellant filed a timely appeal from a November 13, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 21-0585.
On May 7, 2018 appellant, then a 58-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 4, 2018,1 at approximately 8:30 a.m., he strained his back when
picking up a delivery point sequence (DPS) tray while in the performance of duty. He stopped
work on the alleged date of injury. OWCP assigned the claim OWCP File No. xxxxxx463.2

1

Appellant indicated on his claim form that the injury occurred on May 5, 2018. In a June 11, 2018 letter, however,
appellant clarified that the correct date of injury was May 4, 2018. In a June 13, 2018 letter, the employing
establishment notified OWCP that the correct date of injury was May 4, 2018. In a June 19, 2018 letter, OWCP
notified appellant that his date of injury was changed to May 4, 2018.
2

The record reflects that appellant has a prior cla im for a February 4, 2009 traumatic injury, that was accepted for
lumbar sprain under OWCP File No. xxxxxx873. Appellant also has a prior claim for a June 7, 2011 traumatic injury
accepted for shoulder and upper arm sprains; abrasions/friction burn; contusion; face, neck, and scalp
abrasions/friction; neck sprain; lumbar sprain; and concussion under OWCP File No. xxxxxx378. Additionally, he
filed a Form CA-1 on September 29, 2017 alleging that he sustained a work-related back and neck injury on that date
under OWCP File No. xxxxxx574. Appellant subsequently filed a nother Form CA-1 alleging that on November 16,
2017 he strained his mid-back under OWCP File No. xxxxxx665.

By decision dated January 14, 2019, OWCP accepted that the May 4, 2018 incident
occurred as alleged, but denied appellant’s claim as the medical evidence of record was insufficient
to establish causal relationship between a diagnosed medical condition and the accepted
employment incident.
OWCP received additional medical evidence.
On September 21, 2019 appellant requested reconsideration.
By decision dated November 8, 2019, OWCP modified the January 14, 2019 decision to
find that appellant had not established the factual component of his claim.
On February 4, 2020 appellant requested reconsideration and submitted additional medical
evidence.
By decision dated March 23, 2020, OWCP denied modification.
On June 19, 2020 appellant requested reconsideration. By decision dated September 11,
2020, OWCP denied modification of the March 23, 2020 decision.
On October 1, 2020 appellant requested reconsideration and submitted additional evidence.
By decision dated November 13, 2020, OWCP denied modification.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files. 3 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required. 4 In the present claim,
appellant alleged injuries to his back, shoulders, and neck. He has prior claims before OWCP
alleging neck, shoulder, and back injuries, including previously accepted claims under OWCP File
Nos. xxxxxx873 and xxxxxx378. However, OWCP has not administratively combined appellant’s
claims.
For a full and fair adjudication of appellant’s current claim, the case must be remanded to
OWCP to administratively combine the current case record with OWCP File Nos. xxxxxx873,
xxxxxx378, xxxxxx574, and xxxxxx665.5 Following this and other such further development as
OWCP deems necessary, it shall issue a de novo decision.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; L.M., Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

5

Id.

2

IT IS HEREBY ORDERED THAT the November 13, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 11, 2022
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, FAYETTEVILLE
MAIN POST OFFICE, Fayetteville, GA,
Employer
__________________________________________

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

Docket No. 10-896
Issued: December 13, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 18, 2010 appellant, through counsel, filed a timely appeal of the
December 15, 2009 nonmerit decision of the Office of Workers’ Compensation Programs
denying her request for reconsideration on the grounds that it was not timely filed and failed to
establish clear evidence of error. Because more than one year elapsed between the most recent
merit decision dated April 27, 2007 and the filing of this appeal, the Board lacks jurisdiction to
review the merits of the case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
On appeal, counsel contends that the Office did not conduct a limited review of
appellant’s claim and failed to address his legal argument that appellant was entitled to wage-loss
compensation for total disability from September 17, 2005 to June 25, 2006 as a modified job
offer from the employing establishment and a loss of wage-earning capacity determination by the

Office had not be made in light of a February 20, 2007 medical opinion of an Office referral
physician who found that appellant was unable to perform the duties of her date-of-injury
position. He contends that the medical opinion of a second Office referral physician is sufficient
to establish that appellant sustained an emotional condition as a consequence of her accepted
employment injuries and that she is entitled to wage-loss compensation for the claimed period.
FACTUAL HISTORY
The Office accepted that on December 10, 2001 appellant, then a 43-year-old rural carrier
associate, sustained a sprain and strain of the right wrist and temporary aggravation of right
carpal tunnel fracture while in the performance of duty.
In a February 20, 2007 medical report, Dr. Harold H. Alexander, a Board-certified
orthopedic surgeon and Office referral physician, listed essentially normal findings on physical
examination and diagnostic study. He stated that appellant’s subjective complaints of pain
outweighed the objective findings. Dr. Alexander advised that she had continuing residuals of
her December 10, 2001 employment injuries.1 He opined that appellant could not perform her
usual work duties as a mail carrier, but could perform sedentary light-duty work with restrictions
based on a functional capacity evaluation.
Appellant filed claims for wage-loss compensation for the period September 17, 2005 to
June 25, 2006.
In an August 17, 2006 report, Dr. Brian K. Teliho, a Board-certified psychiatrist and
Office referral physician, reviewed a history of appellant’s December 10, 2001 employment
injuries. He listed his findings on mental examination and diagnosed dysthymic disorder,
anxiety and personality disorders, not otherwise specified and a history of right wrist injury.
Appellant had a reported diagnosis of reflex sympathetic dystrophy and chronic pain, work
difficulty and limited social supports. She also had a global functioning assessment of 60/60.
Dr. Teliho stated that appellant most likely had an underlying personality disorder, symptoms of
which included depression and anxiety. He opined that her preexisting emotional condition was
likely exacerbated by her December 10, 2001 employment injuries. Dr. Teliho further opined
that the degree of her anxiety, which included auditory hallucinations, was not directly caused by
her accepted employment-related injuries. He advised that appellant could return to part-time
work as a mail carrier with restrictions.

1

The Board notes that it appears Dr. Alexander inadvertently stated that appellant had residuals of her
October 10, 2001 rather than December 10, 2001 employment injuries. This error is harmless as Dr. Alexander
correctly stated in his history of injury that the accepted injuries occurred on December 10, 2001.

2

By decision dated April 27, 2007, the Office denied appellant’s claims for wage-loss
compensation for the period September 17, 2005 to June 25, 2006. It accorded determinative
weight to Dr. Teliho’s medical opinion.2
In a November 16, 2009 letter, appellant, through her attorney, requested reconsideration.
Counsel contended that the Office misconstrued Dr. Teliho’s August 17, 2006 medical opinion
in finding that appellant’s diagnosed emotional condition was not causally related to her
accepted December 10, 2001 employment injuries. He stated that Dr. Teliho’s opinion
established that her preexisting emotional condition was likely exacerbated by the December 10,
2001 employment injuries and should be accepted as a consequential injury. Counsel noted
Dr. Alexander’s February 20, 2007 medical opinion and contended that since the employing
establishment did not offered appellant a modified position and the Office had not made a loss of
wage-earning capacity determination, she was entitled to wage-loss compensation through the
present. No new medical evidence was submitted.
In a December 15, 2009 decision, the Office denied appellant’s November 16, 2009
request for reconsideration on the grounds that it was not timely filed and failed to present clear
evidence of error. It found that her request was not timely filed within one year of the April 27,
2007 decision. The Office also found that the evidence submitted failed to establish clear
evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act3 does not entitle a claimant
to a review of an Office decision as a matter of right.4 The Office, through its regulations, has
imposed limitations on the exercise of its discretionary authority under section 8128(a). Section
10.607(a) of the Office’s implementing regulations provide that an application for
reconsideration must be sent within one year of the date of the Office decision for which review
is sought.5
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent

2

In a September 3, 2008 decision, the Office granted appellant a schedule award for 19 percent impairment of the
right arm based on the August 29, 2008 medical opinion of an Office medical adviser. The award ran for 59.28
weeks from July 4, 2005 to August 22, 2006. Compensation was based on a weekly pay rate of $367.00. By
decision dated January 2, 2009, an Office hearing representative affirmed the September 3, 2008 decision, finding
that the Office properly used the pay rate of $367.00 a week to calculate appellant’s schedule award. As more than
one year elapsed from the date of issuance of the September 3, 2008 Office decision to the filing of the appeal on
February 18, 2010, the Board has no jurisdiction to review the September 3, 2008 decision. See 20 C.F.R.
§ 501.3(d)(2).
3

5 U.S.C. § 8128(a).

4

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

20 C.F.R. § 10.607(a).

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merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.6
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.7 The evidence must be positive, precise and explicit and
must be manifest on its face that the Office committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by the Office 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 the Office.11
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office decision.12 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of the Office such that the Office abused its discretion in denying merit
review in the face of such evidence.13
ANALYSIS
The Board finds that appellant did not file a timely request for reconsideration. The
Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.14 However, a right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.15
The Office denied appellant’s claim for wage loss in an April 27, 2007 decision.
Appellant requested reconsideration on November 16, 2009. She contended that the Office erred
in its April 27, 2007 decision which denied wage-loss compensation for the period
6

Id. at § 10.607(b).

7

Nancy Marcano, 50 ECAB 110, 114 (1998).

8

Leona N. Travis, 43 ECAB 227, 241 (1991).

9

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

10

Supra note 8.

11

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

12

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

13

Thankamma Mathews, 44 ECAB 765, 770 (1993).

14

20 C.F.R. § 10.607(a); see A.F., 59 ECAB 714 (2008).

15

D.G., 59 ECAB 455 (2008); Robert F. Stone, 57 ECAB 292 (2005).

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September 17, 2005 to June 25, 2006. As appellant’s November 16, 2009 reconsideration
request was made more than one year after the April 27, 2007 merit decision, the Board finds
that it was not timely filed.
The Board further finds that, appellant’s November 16, 2009 letter does not raise a
substantial question as to whether the Office’s decision denying wage-loss compensation from
September 17, 2005 to June 25, 2006 was in error. The request does not shift the weight of the
evidence in her favor. Appellant’s attorney contended that Dr. Teliho’s prior August 17, 2006
report supported a consequential emotional condition and was sufficient to establish that she was
totally disabled during the claimed period. The argument raised by counsel addressed the
relative merits of the report, suggesting that it was generally supportive of appellant’s claim.
The Office previously weighed this evidence. To establish clear evidence of error, it is not
enough to show that the evidence could be construed so as to produce a contrary result.16 The
Board finds that counsel’s contention does not raise a substantial question as to the correctness of
the Office’s April 27, 2007 decision and is insufficient to establish clear evidence of error.
Counsel also contended that Dr. Alexander’s February 20, 2007 report established that
appellant was totally disabled during the claimed period. Dr. Alexander found that she had
residuals of her December 10, 2001 employment injuries. He opined that appellant could not
perform her regular work duties, but was able to perform sedentary light-duty work within
restrictions. Although Dr. Alexander indicated that appellant was disabled for work, he did not
address how her disability was due to the accepted employment injuries. He did not explain the
basis for appellant’s disability during the period September 17, 2005 to June 25, 2006. The
Board finds, therefore, that counsel’s contention is insufficient to establish that the Office’s
denial of wage-loss compensation was erroneous. The evidence does not raise a substantial
question as to the correctness of the Office’s determination that her total disability during the
claimed period was not causally related to the accepted employment injuries.
The Board finds that appellant’s contention on appeal, that she is entitled to wage-loss
compensation for the period September 17, 2005 to June 25, 2006 based on the medical opinions
of Dr. Teliho and Dr. Alexander has not been established. As stated, this evidence does not
provide a firm or definitive diagnosis and a rationalized medical opinion addressing the causal
relationship between the diagnosed conditions and any resultant total disability during the
claimed period and the December 10, 2001 employment injuries.
CONCLUSION
The Board finds that appellant’s November 16, 2009 request for reconsideration was
untimely filed and failed to show clear evidence of error.

16

See D.E., 59 ECAB 438 (2008); Leona N. Travis, supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the December 15, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 13, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
C.J., Appellant
and
FEDERAL JUDICIARY, DC SUPERIOR
COURT, Washington, DC, Employer
_________________________________________

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

Docket No. 12-1570
Issued: January 16, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 16, 2012 appellant filed a timely appeal from the March 9, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Since more than 180
days have elapsed since the most recent merit decision of January 6, 2011 to the filing of this
appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2 and 501.3.3

1

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant to confirm a
continuing desire for an oral argument in Washington, DC. No written confirmation was received; thus the Board
has decided the appeal on the record.
2
3

5 U.S.C. §§ 8101-8193.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration on the merits as her request was untimely filed and failed to show clear evidence
of error.
FACTUAL HISTORY
On October 20, 2006 appellant, then a 45-year-old deputy clerk, filed a traumatic injury
claim stating that on October 19, 2006, while putting file jackets on top shelf, the file jackets fell
on her head causing her to lose balance and hit her back against the steel shelf. OWCP accepted
a contusion of the lumbar region of the back and paid benefits. Appellant returned to work with
restrictions.
Appellant subsequently claimed a recurrence of disability beginning August 22, 2007. In
order to determine the extent of her disability, OWCP referred her to Dr. Robert A. Smith, a
Board-certified orthopedic surgeon for a second opinion. In a January 21, 2008 report, Dr. Smith
opined that appellant’s neck condition was not related to her work-related claim. He stated that
there was no evidence of exacerbation or precipitation of appellant’s preexisting degenerative
disease related to the October 19, 2006 work injury. Dr. Smith also found no evidence of
ongoing residuals and opined that appellant required no further treatment and could return to
regular-duty work. By decision dated March 24, 2008, OWCP terminated appellant’s medical
and wage-loss benefits effective March 24, 2008. However, on April 8, 2008 an OWCP
representative vacated OWCP’s March 24, 2008 decision as the argument from appellant’s
attorney was received before the issuance of the final decision but was not viewable in the
imaged case record until after the decision was released. Following further development, OWCP
declared a conflict in medical opinion and referred appellant to Dr. Hamid Quraishi, a Boardcertified orthopedic surgeon, for an impartial medical opinion on the issue of what conditions
and disability were related to the accepted work injury. In a June 26, 2008 report, Dr. Quraishi
opined that the worsening symptoms beginning on August 22, 2007 did not require her to be off
work from July 3, 2007 through January 10, 2008 and they were not related to the original work
injury. No further treatment was recommended.
Appellant subsequently filed claims for wage-loss compensation for the periods
August 1, 2007 through January 10, 2008. By decision dated October 22, 2009, OWCP denied
appellant’s claim for compensation for the period August 1, 2007 through January 10, 2008 and
for the period commencing May 31, 2007.
On October 15, 2010 appellant requested reconsideration of OWCP’s October 22, 2009
decision and submitted additional evidence in support of her contention that she was entitled to
compensation from August 1, 2007 through January 10, 2008. By decision dated January 6,
2011, OWCP denied modification of its October 22, 2009 decision. It found appellant did not
provide well-rationalized detailed narrative medical documentation to establish the relationship
between any ongoing condition and disability and the original injury of October 19, 2006 for the
period August 1, 2007 through January 10, 2008 and the period of disability commencing after
May 31, 2007.

2

In an April 22, 2011 report, an OWCP medical adviser indicated that appellant’s
preexisting cervical degenerative disc disease had been permanently aggravated by her fall and
back contusion which had progressed to the point where surgery was indicated. The medical
adviser found that the requested procedures C3 through C6 anterior cervical discectomy and
arthrodesis with plating to decompress the spinal cord nerve roots was appropriate and related to
the October 19, 2006 work injury.
On December 16, 2011 appellant requested reconsideration and submitted statements
dated May 26 and December 16, 2011. She also submitted magnetic resonance imaging (MRI)
scan findings from January 19, 2010 and January 28, 2011, an October 19, 2010 x-ray and
authorization requests. Other evidence included 2010 and 2011 progress reports from
Dr. Faheem A. Sanahu, a Board-certified neurosurgeon, concerning her neck, arm and shoulder
pain and an August 4, 2011 report from Dr. Mark Klein, a Board-certified neurosurgeon,
concerning her cervical spondylosis.
By decision dated March 9, 2012, OWCP denied appellant’s reconsideration request on
the grounds that it was untimely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.4
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.5 The oneyear period begins on the date of the original decision. However, a right to reconsideration
within one year accompanies any subsequent merit decision on the issues. This includes any
hearing or review of the written record decision, any denial of modification following
reconsideration, any merit decision by the Board and any merit decision following action by the
Board.6
ANALYSIS
In its March 9, 2012 decision, OWCP denied appellant’s December 16, 2011 request for
reconsideration finding that it was untimely filed and failed to present clear evidence of error.
The Board finds that OWCP improperly determined that her request for reconsideration was not
timely filed within the one-year time limitation period set forth in 20 C.F.R. § 10.607.
On January 6, 2011 OWCP issued a decision denying modification of its October 22,
2009 decision. Accordingly, appellant had one year from January 6, 2011 to make a timely

4

20 C.F.R. § 10.607(a).

5

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

6

D.G., 59 ECAB 455 (2008); Veletta C. Coleman, 48 ECAB 367 (1997); Leon D. Faidley, Jr., supra note 5 at
111 (1989).

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request for reconsideration.7 OWCP determined that the request for reconsideration submitted
on December 16, 2011 was not within the one-year time limitation. However, the December 16,
2011 request for reconsideration is within one year of the last merit decision of January 6, 2011.
Her December 16, 2011 request for reconsideration is therefore timely.
Appellant timely filed a request for reconsideration in this case. The Board finds that
OWCP, therefore, improperly denied her reconsideration request by applying the legal standard
for cases where reconsideration is requested after more than one year has elapsed. OWCP
should have applied the standard reserved for timely reconsideration requests as set forth in 20
C.F.R. § 10.606(b)(2).8 Since it erroneously reviewed the evidence submitted in support of
appellant’s reconsideration request under the more stringent clear evidence of error standard, the
Board will remand the case for review of this evidence under the proper standard of review for a
timely reconsideration request.9
CONCLUSION
The Board finds that OWCP improperly found that appellant’s request for
reconsideration of OWCP’s January 6, 2011 decision was untimely filed.

7

See supra note 6. A right to reconsideration within one year accompanies any subsequent merit decision on the
issues.
8

20 C.F.R. § 10.606(b)(2) of OWCP’s regulations provide that an application for reconsideration must be in
writing and set forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent new evidence not previously considered by OWCP.
9

In light of the disposition of this case, the Board will not address appellant’s arguments on appeal.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated March 9, 2012 is set aside and remanded for action consistent with this decision.
Issued: January 16, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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