United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Salisbury, NC, Employer
__________________________________________

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

Docket No. 16-1691
Issued: January 5, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 23, 2016 appellant filed a timely appeal from a May 23, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established bilateral shoulder and upper back strains
causally related to the May 4, 2016 work incident.

1
2

5 U.S.C. § 8101 et seq.

Appellant also has another appeal, Docket No. 16-1692, involving a different OWCP claim that is before the
Board. This other appeal is being adjudicated separately from the present matter.

FACTUAL HISTORY
On December 3, 2015 appellant, than a 44-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on November 19, 2015, she sustained upper back and bilateral
shoulder strain/sprains while performing unspecified patient care. The employing establishment
controverted the claim, contending that there were conflicting accounts of the claimed injury that
cast doubt on its occurrence.
Appellant provided December 3 and 10, 2015 reports from the employing establishment’s
occupational health clinic, restricting her to lifting five pounds or less.
In a December 22, 2015 letter, OWCP advised appellant of the evidence needed to
establish her claim, including factual evidence corroborating the December 19, 2015 incident
occurred as alleged, and a report from her attending physician diagnosing an injury related to that
incident. It afforded appellant 30 days to submit such evidence.
In response, appellant submitted a December 17, 2015 report from Dr. Harrison A.
Latimer, an attending Board-certified orthopedic surgeon. Dr. Latimer related appellant’s
account of upper back and bilateral shoulder pain after performing a prolonged dressing change
on a bedbound patient. He obtained x-rays showing degenerative disc disease at C5-6 and
diagnosed an exacerbation of degenerative disc disease. Dr. Latimer opined that vigorous
pushing motions during the dressing change aggravated appellant’s preexisting cervical
degenerative disc disease. He restricted appellant to lifting, pulling, pushing, and carrying five
pounds or less.
On December 28, 2015 Dr. Latimer explained that appellant’s symptoms were consistent
with cervical radiculitis, and not with a muscular strain as appellant believed. He noted that
appellant “clearly [did] not have a mechanism that explains a muscle strain that would cause the
severity of her symptoms that do not allow her to raise her arms above 120 degrees four weeks
after the inciting event.” Dr. Latimer renewed the five-pound lifting restriction.
By decision dated January 28, 2016, OWCP denied appellant’s claim, finding that
appellant submitted insufficient factual evidence to corroborate that the November 19, 2015
incident occurred as alleged.
In a February 24, 2016 letter, appellant requested reconsideration. She explained that on
November 19, 2015 she worked with a nursing assistant to reposition a 330-pound, bedbound
patient to perform a dressing change. Appellant recalled that, while she was bracing the patient
on his left side, he became resistant and began to push against her, causing a “pulling pain” in
her shoulders. She provided a March 21, 2016 witness statement from the nursing assistant,
corroborating her account of events. Appellant also submitted new medical evidence.
A February 4, 2016 cervical magnetic resonance imaging (MRI) scan showed a broadbased central to right paracentral disc protrusion, with slight pressure on the right side of the
cord, and mild degenerative foraminal narrowing and moderate left foraminal stenosis.
In a February 23, 2016 report, Dr. Eugene A. Eline, an attending osteopath Boardcertified in orthopedic surgery, provided a history of injury and treatment. On examination he
2

found mild tenderness to palpation in the cervical spine and trapezial regions bilaterally, mild
restriction of cervical spine motion in all planes, positive Spurling’s maneuver on the right, and
signs of right shoulder impingement. Dr. Eline obtained x-rays showing left C5-6 foraminal
narrowing. He diagnosed cervical radiculopathy, cervical stenosis, and right shoulder
impingement. Dr. Eline opined on February 24, 2016 that appellant’s symptoms were due to the
herniated C5-6 disc. He found appellant’s condition unchanged on April 3, 2016 examination.
By decision dated May 23, 2016, OWCP modified its January 28, 2016 decision to accept
that the claimed incident occurred as alleged. However, it denied the claim, finding that the
medical evidence of record did not contain sufficient rationale explaining how and why the
accepted work incident would have caused the diagnosed injuries.
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 filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered
conjunctively. First, the employee must submit sufficient evidence to establish that she actually
experienced the employment incident that is alleged to have occurred.5 An employee has not
met his or her burden of proof in establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.6 Second,
the employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
3

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

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Gary J. Watling, 52 ECAB 278 (2001).

6

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

7

Deborah L. Beatty, 54 ECAB 340 (2003).

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rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
Appellant claimed that she sustained upper back and bilateral shoulder strains/sprains
while performing patient care on November 19, 2015. OWCP denied the claim as the medical
evidence of record was insufficient to establish causal relationship.
Dr. Latimer, an attending Board-certified orthopedic surgeon, opined on December 17,
2015 that vigorous pushing motions during the November 19, 2015 dressing change aggravated
appellant’s preexisting C5-6 cervical degenerative disc disease. He opined on December 28,
2015 that appellant’s symptoms were consistent with cervical radiculitis. However, Dr. Latimer
did not explain how and why appellant’s upper extremity movements while caring for the patient
would aggravate appellant’s degenerative disc disease or cause cervical radiculitis. Similarly,
Dr. Eline, an attending osteopathic physician Board-certified in orthopedic surgery, opined on
February 23 and 24, 2016 that appellant had cervical radiculopathy due to a herniated C5-6 disc
with stenosis, but did not explain how the November 19, 2015 workplace incident caused or
could impact those conditions. In the absence of such rationale, the opinions of Dr. Latimer and
Dr. Eline are of insufficient probative value to meet appellant’s burden of proof.9
OWCP advised appellant by December 22, 2015 letter of the type of evidence needed to
establish her claim, including her physician’s rationalized opinion supporting causal relationship.
As appellant failed to submit sufficient medical evidence explaining how and why the accepted
incident would cause or aggravate the diagnosed conditions, OWCP properly denied the claim.10
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 established bilateral shoulder and upper back
strains causally related to the November 19, 2015 work incident.

8

Solomon Polen, 51 ECAB 341 (2000).

9

Supra note 7.

10

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 23, 2016 is affirmed.
Issued: January 5, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
UNDERSEA WARFARE CENTER DIVISION,
Keyport, WA, Employer
__________________________________________

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

Docket No. 06-1137
Issued: January 29, 2007

Case Submitted on the Record

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

JURISDICTION
On April 18, 2006 appellant filed a timely appeal from a February 3, 2006 decision of the
Office of Workers’ Compensation Programs finding that she did not sustain a recurrence of
disability causally related to her May 5, 1997 employment injury. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability causally related to the
May 5, 1997 employment injury.
FACTUAL HISTORY
On May 6, 1997 appellant, then a 52-year-old mechanical parts assembler, filed a
traumatic injury claim alleging that on May 5, 1997 she strained her right shoulder while putting
a fuel tank into a box. She returned to light-duty work on May 8, 1997. By letter dated July 1,
1997, the Office accepted appellant’s claim for right rotator cuff tendinitis. On July 8, 1997 the

employing establishment advised the Office that her employment was terminated on May 24,
1997 as part of a reduction-in-force.
In a letter dated May 27, 2002, appellant, through her attorney, inquired about the status
of a schedule award. In letters dated August 26, 2002, the Office advised her that she should file
a claim for a schedule award if she sustained impairment and reached maximum medical
improvement. It requested that appellant submit, a medical report from her attending physician
that provided an estimate of any permanent impairment based on the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001). The Office
informed her that her claim was closed effective January 9, 1998 and that it had not received any
medical reports or bills from a physician showing ongoing medical treatment or residuals of the
May 5, 1997 employment injury. It requested that appellant submit all medical records for
consideration.
The Office received medical reports dated October 10 to December 14, 2002 from
Dr. Bruce E. Carlton, a Board-certified internist, who stated that appellant sustained a right
rotator cuff tear as demonstrated by an April 26, 2001 magnetic resonance imaging (MRI) scan.
Dr. Carlton estimated that she had a 43 percent impairment of the right arm which was the
equivalent of a 26 percent impairment of the whole person.
On February 6, 2003 appellant filed a claim for a schedule award. In an April 22, 2003
letter, the Office advised her that it had not accepted that she sustained a right rotator cuff tear
causally related to the May 5, 1997 employment injury. The Office defined a recurrence of
disability as set forth by the provisions of the Federal Employees’ Compensation Act. It
addressed the factual and medical evidence that appellant needed to submit to establish
entitlement to a schedule award or other compensation benefits.
In a July 8, 2003 letter, appellant, through her attorney, stated that she had not worked
since May 24, 1997 and that she had not sustained any new injuries to the right shoulder. She
indicated that a report from her doctor was forthcoming.
By decision dated December 1, 2003, the Office found that appellant did not sustain a
recurrence of disability causally related to the May 5, 1997 employment injury. It noted that the
requested medical evidence had not been received. The Office also denied appellant’s
entitlement to a schedule award on the basis that her current shoulder condition was not causally
related to the employment-related right rotator cuff tendinitis.
In a December 12, 2003 letter, appellant, through her attorney, requested an oral hearing
before an Office hearing representative. She contended that Dr. Carlton had provided a medical
opinion establishing that she had continuing employment-related residuals.
At a June 21, 2004 hearing, appellant requested that her case be reopened for medical
benefits and a schedule award. She did not seek compensation for total disability. Following the
hearing, appellant submitted the August 11 and 16, 2004 reports of Dr. James M.T. Garrity,
Board-certified in occupational medicine, who provided a history that she was treated for
aggravation of the right shoulder after washing an automobile in March 2001. Dr. Garrity

2

opined that she sustained a rotator cuff tear and strain and that her recurrent symptomatology
was “more likely than not” related to the May 5, 1997 employment injury.
On September 17, 2004 an Office hearing representative affirmed the denial of
appellant’s claim for a recurrence of disability causally related to the May 5, 1997 employment
injury. He found that appellant failed to submit rationalized medical evidence to establish her
claim. The medical evidence did not establish a causal relationship between the right rotator cuff
tear and the accepted right rotator cuff tendinitis.
Appellant requested reconsideration on October 1, 2004. She submitted an unsigned
report dated July 26, 2004 from Dr. Gregory P. Duff, a Board-certified orthopedic surgeon, who
diagnosed a chronic right rotator cuff tear/supraspinatus tear based on a history of the May 5,
1997 employment injury and his findings on physical and x-ray examination.
In a December 15, 2004 decision, the Office denied modification of the September 17,
2004 decision. It found that the evidence submitted by appellant was not well rationalized and
insufficient to establish a causal relationship between the claimed right rotator cuff tear and the
May 5, 1997 employment injury.
The Office received Dr. Garrity’s October 6, 2005 progress note which provided a history
of the May 5, 1997 employment injury. He indicated that, at that time, appellant was diagnosed
as having tendinitis and impingement syndrome. Dr. Garrity reiterated his prior opinion that
appellant sustained a right rotator cuff tear that was “more likely than not” related to the May 5,
1997 employment injury. He stated that tendinitis and impingement were often all part of the
continuum involved with injuries to the shoulder.
On November 14, 2005 appellant, through her attorney, requested reconsideration of the
Office’s December 15, 2004 decision.
By letter dated November 30, 2005, the Office referred appellant, together with a
statement of accepted facts, the case record and a list of questions to be addressed, to
Dr. Stanley A. Kopp, a Board-certified orthopedic surgeon, for a second opinion medical
examination.
The Office received Dr. Garrity’s December 9, 2005 x-ray report which found that
appellant sustained a right shoulder sprain with resultant rotator cuff tendinitis. Dr. Garrity
expressed concern about early rotator cuff arthropathy.
In a December 14, 2005 report, Dr. Kopp provided a history of the May 5, 1997
employment injury and appellant’s medical, family and social background. He reviewed her
medical records including an April 26, 2001 MRI scan which he believed was an inadequate
study due to severe motion artifact. Dr. Kopp stated that it was not clear how the radiologist read
the MRI scan because the motion artifact was pretty severe which made it of poor quality. On
physical examination, he reported limited range of motion to appellant’s shoulders. On sensory
examination, Dr. Kopp reported a little bit sharper sensation on the forearm. Appellant had
positive Neer’s and Hawkins’ signs, painful cross-body adduction, a negative load, shift, lift-off
and belly press and O’Brien signs. Her vascular examination was normal. Dr. Kopp provided
the measurements of appellant’s right and left arms and forearms. He reported no atrophy or
3

scapular winging at the supraspinatus fossa. Dr. Kopp stated that appellant experienced some
pain with abduction and external rotation but, otherwise, her strength was good and her motor
function was excellent. He agreed with the MRI scan diagnosis of a rotator cuff tear and stated
that he would have repaired the 1997 rotator cuff tear at that time. Dr. Kopp recommended that
an adequate MRI scan be taken before determining whether surgery was appropriate. He opined
that appellant aggravated the May 1997 employment injury while washing a car in March 2001
and that this aggravation was related to the May 1997 employment injury. Dr. Kopp further
opined that the 1997 mechanism “could have” torn her rotator cuff. He stated that the
mechanism was consistent and that appellant had signs of impingement and/or a rotator cuff tear.
Dr. Kopp further stated that, based on her age group, she “probably” had a rotator cuff tear. He
opined that appellant sustained a recurrence of disability when she aggravated the accepted
employment injury while washing a car in March 2001.
By letter dated January 12, 2006, the Office requested that Dr. Garrity review Dr. Kopp’s
December 14, 2005 report and state whether he agreed with his findings. In a January 19, 2006
letter, Dr. Garrity stated that he essentially agreed with Dr. Kopp. He disagreed with Dr. Kopp’s
finding that the 1997 mechanism could have torn appellant’s rotator cuff, stating that, otherwise,
the 2001 aggravation due to washing a car would not have likely occurred. Dr. Garrity reiterated
his opinion that the May 5, 1997 employment injury and its mechanism caused the rotator cuff
tear on a “more likely than not” basis. He stated that this condition was work related and that
appellant merely sustained a nonwork-related aggravation in 2001 as the rotator cuff had already
been torn.
In a January 20, 2006 progress note, Dr. Garrity diagnosed a rotator cuff tear. In
clarifying Dr. Kopp’s statement regarding appellant’s tear, Dr. Garrity stated that the original
injury was of sufficient force to tear the rotator cuff. Appellant sustained only an aggravation of
this condition as a result of the car washing incident.
By decision dated February 3, 2006, the Office denied modification of the December 15,
2004 decision. It found that both Drs. Kopp and Garrity opined that the March 2001 car washing
incident aggravated appellant’s May 5, 1997 employment-related injury. The Office, however,
found that this incident constituted an intervening cause. Therefore, appellant failed to establish
that she sustained a recurrence of disability causally related to the accepted employment injury.
LEGAL PRECEDENT
A “recurrence of disability” means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment.1
A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which he claims
compensation is causally related to the accepted employment injury.2 Appellant has the burden
1

20 C.F.R. § 10.5(x).

2

Kenneth R. Love, 50 ECAB 193, 199 (1998).

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of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between his recurrence of disability and his employment injury.3 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.4 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.5
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.6 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.7 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.8
ANALYSIS
In this case, the Office accepted that appellant sustained right rotator cuff tendinitis on
May 5, 1997 as a result of putting a fuel tank into a box. She contends that she sustained a
rotator cuff tear of the right shoulder as a result of the May 5, 1997 injury. Appellant submitted
evidence establishing a tear of the right rotator cuff. The Office found that the claimed injury
was not caused by the accepted employment injury and she did not sustain a recurrence of
disability causally related to the May 5, 1997 employment-related injury. The Board finds that
this case is not in posture for decision regarding whether appellant’s rotator cuff tear of the right
shoulder is causally related to the May 5, 1997 employment-related injury.
The Office referred appellant to a second opinion examination by Dr. Kopp. In a
December 14, 2005 report, he stated that the April 26, 2001 MRI scan was inadequate and he did
not understand how the radiologist could have read the scan due to a severe motion artifact
which rendered the scan of poor quality. Yet, Dr. Kopp stated that he agreed with the MRI scan
finding that appellant sustained a rotator cuff tear of the right shoulder. Dr. Kopp did not
provide a definitive opinion explaining the causal relationship between appellant’s rotator cuff
tear and the May 5, 1997 employment-related injury. He opined that the accepted employment
injury “could have” torn her rotator cuff. In addition, Dr. Kopp stated that he would have
repaired the 1997 rotator cuff tear at that time. He also noted that appellant “probably” sustained
3

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

4

Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

5

Alfredo Rodriquez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

6

See Ricky S. Storms, supra note 4; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).
7

For the importance of bridging information in establishing a claim for a recurrence of disability, see Richard
McBride, 37 ECAB 748 at 753 (1986).
8

See Ricky S. Storms, supra note 4; Morris Scanlon, 11 ECAB 384, 385 (1960).

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a rotator cuff tear based on her age. The Board has held that medical opinions that are
speculative or equivocal in character are of diminished probative value.9 While Dr. Garrity
agreed with Dr. Kopp that appellant sustained a rotator cuff tear of the right shoulder. However,
he attributed the tear to the May 5, 1997 employment injury.
The Board finds that Dr. Kopp’s opinion is not well rationalized as the physician did not
adequately address the issue of causal relationship. His opinion on causal relation appears
internally inconsistent and speculative and he failed to provide sufficient discussion of the
history, case record and clinical examination of appellant. As such, the issue of whether
appellant’s rotator cuff tear of the right shoulder was caused by the May 5, 1997 employmentrelated injury remains unresolved. As the Office referred appellant to Dr. Kropp, it has the
responsibility to resolve the issue in this case.10 The Office should seek clarification from
Dr. Kopp as to whether the May 5, 1997 employment injury involved an undiagnosed rotator
cuff tear which was concealed by other symptoms and was not diagnosed until 2001 when it
worsened or whether the accepted employment injury weakened the right shoulder which made
appellant more susceptible to sustaining a consequential rotator cuff tear which was caused or
worsened by the March 2001 car washing incident or whether the rotator tear was due to the
physical stress of some activity unrelated to appellant’s federal employment. Following this and
any other further development as deemed necessary, the Office should issue an appropriate merit
decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether appellant
sustained a recurrence of disability causally related to her May 5, 1997 employment-related
injury.

9

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006); Cecelia M. Corley, 56 ECAB ___
(Docket No. 05-324, issued August 16, 2005).
10

See Mae Z. Hackett, 34 ECAB 1421 (1983).

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ORDER
IT IS HEREBY ORDERED THAT the February 3, 2006 decision of the Office of
Workers’ Compensation Programs be vacated and the case remanded to the Office for further
proceedings consistent with this decision.
Issued: January 29, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


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

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Appearances:
James S. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1301
Issued: February 7, 2011

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 April 6, 2010 appellant filed a timely appeal from a March 12, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit
decision. The last Office merit decision is dated November 4, 2008 decision denying appellant’s
traumatic injury claim. The Board lacks jurisdiction to review the merits of the claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely and failed to establish clear
evidence of error.

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

FACTUAL HISTORY
On February 15, 2008 appellant, then a 56-year-old city mail carrier, filed a traumatic
injury claim alleging that she sustained a lacerated tendon of the right calf on February 14, 2008
while reaching to place mail in a curbside box.
In a February 21, 2008 report, Dr. Louis Bouillon, an attending Board-certified
orthopedic surgeon, stated that she sustained a right lower extremity injury a week earlier while
delivering mail. He noted that appellant put a lot of pressure on her right calf as she leaned from
her truck to reach a mailbox and felt a sudden sharp pain in the middle aspect of posterior right
calf. Dr. Bouillon provided findings on examination and diagnosed a plantaris tendon rupture of
the right calf.
By decision dated April 7, 2008, the Office denied appellant’s claim on the grounds that
the evidence was insufficient to establish that she sustained an injury in connection with the
accepted incident.
On August 26, 2008 appellant requested reconsideration. In an August 4, 2008 report,
Dr. Bouillon repeated the history of injury described in his prior report and diagnosed status post
ruptured plantaris tendon with soft tissue complications, namely tibialis posterior tendinitis,
Achilles tendinitis and paresthesias. A February 14, 2008 hospital emergency room report,
signed by a Dr. Amjad AAzeer, diagnosed a gastrocnemius strain and planteris tendon rupture.
In a November 4, 2008 decision, the Office denied the claim, finding that the medical
evidence did not provide a rationalized medical opinion from a physician explaining the
relationship between appellant’s diagnosed condition and the February 14, 2008 employment
incident.
On December 9, 2009 appellant, through her representative, requested reconsideration.
Counsel noted that he was enclosing a report from Dr. Bouillon which included a diagnosis of
postruptured plantaris tendon with soft tissue complications including tibialis posterior tendinitis,
Achilles tendinitis and paresthesias. He also contended that the February 14, 2008 emergency
room record also documented that appellant was injured on the job.
In a December 8, 2009 report, Dr. Bouillon reiterated the history of injury and reviewed
his February 21, 2008 examination findings. He provided a diagnosis of plantaris tendon
rupture, complicated subsequently by numerous soft tissue complications, including tibialis
posterior tendinitis, Achilles tendinitis and paresthesias. Dr. Bouillon stated:
“There is no question that the injury [appellant] sustained was sustained on
February 14, 2008 at work. There is no question that the numerous, symptomatic
residual soft tissue complications are a direct result of the original injury she also
sustained at that time.”
By decision dated March 12, 2010, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error.
2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Secretary of Labor may
review an award for or against payment of compensation at any time on his own motion or on
application.2 The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 8128(a). To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant must file her application for review within one year
of the date of that decision.3 The Board has found that the imposition of the one-year limitation
does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.4
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.5 Office regulations and procedure provide that the Office will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on the
part of the Office.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
manifest on its face that the Office committed an error.8 Evidence which 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 The Board
makes an independent determination of whether a claimant has submitted clear evidence of error

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607(a).

4

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

5

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

6

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004).
7

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

8

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

9

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

10

See M.L., 60 ECAB ___ (Docket No. 09-956, issued April 15, 2010). See Leona N. Travis, supra note 8.

11

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

3

on the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.12
ANALYSIS
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely and failed to establish clear
evidence of error.
The Office properly determined that appellant failed to file a timely application for
review. Its procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.13 A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.14 As appellant’s
December 9, 2009 request for reconsideration was submitted more than one year after the date of
the last merit decision of record on November 4, 2008, it was untimely. Consequently, she must
demonstrate clear evidence of error by the Office in denying her claim.15
Counsel’s reference to Dr. Bouillon’s report and his contention that the February 14,
2008 emergency room record that appellant was injured on the job, does not allege or establish
clear error on the part of the Office, but merely repeats arguments considered previously.
Therefore, his contentions are insufficient to raise a substantial question concerning the
correctness of the Office’s decision.
The medical evidence submitted by appellant is insufficient to establish that the Office
committed an error. In a December 8, 2009 report, Dr. Bouillon reiterated the history of injury
and reviewed his February 21, 2008 examination findings, which revealed a diagnosis of
plantaris tendon rupture, complicated subsequently by numerous soft tissue complications,
including tibialis posterior tendinitis, Achilles tendinitis and paresthesias. He stated again that
appellant sustained a work-related injury on February 14, 2008 and that her residual soft tissue
complications were a direct result of the original injury. Although Dr. Bouillon’s reports
generally support appellant’s claim, they repeat the information contained in his prior reports that
were previously considered and fail to raise a substantial question as to the correctness of the
Office’s decision. The term “clear evidence of error” is intended to represent a difficult
standard. The submission of a detailed, well-rationalized medical report which, if submitted
before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.16
The Board finds that the evidence submitted in support of appellant’s untimely request
for reconsideration does not constitute positive, precise and explicit evidence, which manifests
12

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

13

20 C.F.R. § 10.607(a).

14

Robert F. Stone, 57 ECAB 292 (2005).

15

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

16

Joseph R. Santos, 57 ECAB 554 (2006).

4

on its face that the Office committed an error. Therefore, appellant has failed to meet her burden
of proof.
On appeal, counsel contends that there was clear error in the decision of November 4,
2008 because Dr. Bouillon’s report of August 4, 2008 was sufficient. He noted that the
emergency room record provided a diagnosis and indicated that appellant was injured on the job.
As noted, the Board finds that appellant has failed to establish clear evidence of error on the part
of the Office.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely and failed to
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 7, 2011
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1313
Issued: October 23, 2013

Case Submitted on the Record

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

On May 15, 2013 appellant filed a timely appeal from the December 10, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs’ (OWCP), which found that her
reconsideration request was untimely and did not present clear evidence of error. The appeal
was docketed as number 13-1313.
In this case, OWCP denied appellant’s claim for a traumatic injury on June 15, 2011. It
found that the medical evidence did not establish that the January 8, 2011 employment incident
caused an injury. Appellant subsequently requested reconsideration on September 12, 2011. On
October 28, 2011 OWCP denied modification of the June 15, 2011 decision.
The Board notes that appellant then requested reconsideration on October 22, 2012. The
request was received by OWCP on October 29, 2012. Appellant submitted new arguments and
medical evidence in support of her claim. In a decision dated December 10, 2012, OWCP found
that the request was untimely filed and failed to present clear evidence of error.
The record reflects that appellant’s request for reconsideration was timely. Section
10.607(a) of the implementing regulations provide, that an application for reconsideration must
be received within one year of the date of OWCP’s decision for which review is sought.1 The
1

20 C.F.R. § 10.607(a).

Board notes that the last merit decision was dated October 28, 2011 and appellant’s request for
reconsideration was received by OWCP on October 29, 2012. The Board notes that the one year
from October 28, 2011 would be Sunday, October 28, 2012. However, as the 365th day fell, on a
Sunday, appellant had until Monday, October 29, 2012 for her request to be timely received.2 As
appellant’s request was received on October 29, 2012, it was timely filed.
The Board finds that OWCP improperly reviewed the evidence under section 8128 and
the clear evidence of error standard. As appellant made a timely request for reconsideration of
the last merit decision, which was dated October 28, 2011, OWCP should have reviewed her
request under the standard for a timely request,3 as opposed to the standard for untimely requests.
The Board will set aside OWCP’s December 10, 2012 decision and remand the case for
an appropriate final decision on appellant’s timely request for reconsideration.
IT IS HEREBY ORDERED THAT the December 10, 2012 decision is set aside and
remanded.
Issued: October 23, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

See John B. Montoya, 43 ECAB 1148 (1992) (in computing a time period the date of the event from which the
designated period of time begins to run shall not be included while the last day of the period so computed shall be
included unless it is a Saturday, a Sunday or a legal holiday).
3

See 20 C.F.R. § 10.606(b).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.S., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, COLEMAN FEDERAL
CORRECTIONAL COMPLEX Coleman, FL,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0428
Issued: October 28, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On January 11, 2021 appellant filed a timely appeal from August 24 and December 14,
2020 merit decisions of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards docketed the appeal as No. 21-0428.1
On January 7, 2020 appellant, then a 42-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that on January 4, 2020 she injured her left knee while
removing property from a cell while in the performance of duty.2 She did not stop work.
1

The Board notes that OWCP received additional evidence after the December 14, 2020 decision. The Board’s
Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

OWCP previously accepted a September 5, 2010 traumatic injury claim for a left knee sprain under File No.
xxxxxx882 and a November 30, 2010 traumatic injury claim for a left knee sprain and derangement of lateral meniscus
under File No. xxxxxx398. Appellant filed subsequent traumatic injury claims alleging that she sustained left knee
conditions on October 21, 2011 and May 22, 2020 under OWCP File Nos. xxxxxx304 and xxxxxx813, respectively,
which were denied.

By decision dated June 2, 2020, OWCP denied appellant’s claim, finding that the evidence
of record was insufficient to establish that the January 4, 2020 incident occurred, as alleged.
On June 14, 2020 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review.
By decision dated August 24, 2020, the hearing representative affirmed the June 2, 2020
decision, as modified, finding that the medical evidence of record was insufficient to establish
causal relationship between the accepted January 4, 2020 employment incident and the diagnosed
condition. The hearing representative noted appellant’s previously accepted claims under OWCP
File Nos. xxxxxx882 and xxxxxx398, as well as the previously denied traumatic injury claims
under OWCP File Nos. xxxxxx304 and xxxxxx813.
On September 9, 2020 appellant requested reconsideration of the August 24, 2020
decision.
By decision dated December 14, 2020, OWCP denied modification of the August 24, 2020
decision.
The Board, having duly considered this matter, finds 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 previo usly filed an injury claim for a similar
condition or the same part of the body, doubling is required. 4 Herein, appellant’s claims under
OWCP File Nos. xxxxxx882, xxxxxx398, xxxxxx304, and xxxxxx813 also involved injuries to
the left knee. Therefore, for full and fair adjudication, the case must be returned to OWCP to
administratively combine the current case record with OWCP File Nos. xxxxxx882, xxxxxx398,
xxxxxx304, and xxxxxxx813 so it can consider all relevant claim files and accompanying evidence
in adjudicating appellant’s current traumatic injury claim.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.; M.L., Docket No. 20-1176 (issued April 29, 2021); L.M., Docket No. 19-1490 (issued January 29, 2020); L.H.,
Docket No 18-1777 (issued July 2, 2019).
5

Supra note 3 at Chapter 2.400.8(c)(1); W.D., Docket No. 19-0961 (issued March 31, 2021); L.P., Docket Nos. 181558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867, 17-1868 (issued April 18, 2018); W.S.,
Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576 (issued March 9, 2015).

2

IT IS HEREBY ORDERED THAT the August 24 and December 14, 2020 decisions of
the Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: October 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


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

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

Docket No. 19-0464
Issued: May 22, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On December 27, 2018 appellant filed a timely appeal from a September 7, 2018 merit
decision and an October 9, 2018 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a recurrence
of disability from work for the period June 18 through 22, 2018 causally related to her accepted

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 9, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

January 27, 2018 employment injury; and (2) whether OWCP properly denied appellant’s request
for reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 29, 2018 appellant, then a 39-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 27, 2018 she sustained pain and pressure in the right
side of her lower back when she was shutting a door that jammed while in the performance of
duty. OWCP accepted the claim for a lesion of the sciatic nerve of the right lower limb, a sprain
of ligaments of the lumbar spine, and inflammatory spondylopathy of the sacral and
sacrococcygeal region.
Appellant stopped work on January 29, 2018 and first returned to modified employment
on January 31, 2018.
On June 14, 2018 Dr. Peyman Sarrafian, Board-certified in family practice, evaluated
appellant for increased right sacroiliac pain. On examination he noted spasms and tenderness of
the thoracolumbar spine and paravertebral musculature, a positive straight leg raise, and restricted
range of motion. Dr. Sarrafian diagnosed lumbar sprain and arthritis, instability, and pain of the
right sacroiliac joint. He noted that appellant was working modified duty. Dr. Sarrafian advised
that her condition had “worsened without clinical reason” and administered an injection of the
right sacroiliac joint. He advised that appellant should remain off work until June 18, 2018. In a
duty status report (Form CA-17) of even date, Dr. Sarrafian diagnosed lumbar sprain and right
sacroiliitis and found that appellant should not work.
In a report dated June 18, 2018, Dr. Sarrafian indicated that appellant’s condition had not
substantially improved, noting that she complained of moderately severe back pain with
paresthesia, numbness, and tingling of the lower extremities. He diagnosed a lumbar disc
herniation and advised that she should remain off work through June 25, 2018.
On June 25, 2018 Dr. Sarrafian found that appellant could resume work with restrictions
of lifting, pushing, and pulling no more than 10 pounds.3 On June 29, 2018 appellant filed a claim
for wage-loss compensation (Form CA-7) for the period June 14 through 22, 2018. On the reverse
side of the claim form, a supervisor indicated that appellant was in leave without pay (LWOP)
status from June 18 through 22, 2018 and had been working without restrictions since
April 24, 2018.
In a development letter dated July 3, 2018, OWCP requested that appellant submit
additional factual and medical evidence supporting that she was disabled from employment for the
claimed period. It noted that she had returned to her usual employment on April 24, 2018 and
stopped work on June 18, 2018. OWCP provided a questionnaire for appellant’s completion and
requested a report from her physician addressing the relationship between her disability and her
employment injury. It afforded her 30 days to submit the necessary evidence.

3
On June 27, 2018 appellant accepted a job offer for modified duty, with physical requirements of lifting, carrying,
pushing, or pulling up to 10 pounds.

2

In a July 6, 2018 statement, appellant reported that her low back pain had returned on
June 12, 2018 and that the next day she had to leave work early because of her pain.
Subsequently, appellant submitted reports dated July 9 and 24 and August 23, 2018 from
Dr. Sarrafian, who provided findings on examination and work restrictions. She also submitted
acupuncture reports dated July 2018 and an August 14, 2018 progress report from Dr. Hrair
Darakjian, a Board-certified orthopedic surgeon, who found that she could perform modified
employment.
By decision dated September 7, 2018, OWCP denied appellant’s claim for a recurrence of
wage-loss compensation beginning June 18, 2018. It found that the medical evidence was
insufficient to establish that she had recurrent disability from work on or after June 18, 2018 due
to her accepted January 27, 2018 employment injury.
Thereafter, appellant submitted notes from physical therapists dated from July 5 through
24, 2018. She also resubmitted the June 14 and 18, 2018 reports of Dr. Sarrafian, as well as the
acupuncture notes from a physical therapist dated from July 5 through 24, 2018.
In a report dated September 20, 2018, Dr. Sarrafian noted that appellant’s condition had
improved and that she was currently working in a modified-duty capacity. On examination he
found spasms and tenderness of the thoracolumbar spine and paravertebral musculature.
Dr. Sarrafian diagnosed lumbar sprain and recommended work restrictions of lifting, pushing, and
pulling up to 20 pounds.
On September 27, 2018 appellant requested reconsideration of OWCP’s September 7,
2018 decision.
By decision dated October 9, 2018, OWCP denied appellant’s request for reconsideration
finding that she had not raised a pertinent argument or submitted new and relevant evidence
sufficient to warrant reopening her case for further merit review under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim.5 Under FECA the term disability means incapacity, because
of an employment injury, to earn the wages that the employee was receiving at the time of injury.6
For each period of disability claimed, the employee has the burden of proof to establish that he or
she was disabled from work as a result of the accepted employment injury.7 Whether a particular
injury causes an employee to become disabled from work, and the duration of that disability, are

4

Supra note 1.

5

See L.S., Docket No. 18-0264 (issued January 28, 2020); B.O., Docket No. 19-0392 (issued July 12, 2019).

6

20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).

7

T.W., Docket No. 19-1286 (issued January 13, 2020).

3

medical issues that must be proven by a preponderance of probative and reliable medical opinion
evidence.8
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition that had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness. The term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the work-related injury or
illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such
an assignment are altered so that they exceed his or her established physical limitations.9
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden of proof to establish by
the weight of reliable, probative, and substantial evidence a recurrence of total disability. As part
of this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the limited-duty requirements.10
An employee who claims a recurrence of disability resulting from an accepted employment
injury has the burden of proof to establish that the disability is related to the accepted injury. This
burden requires furnishing medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disabling condition is causally related to
the employment injury and supports that conclusion with sound medical reasoning.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish recurrent
disability from work for the period June 18 through 22, 2018 causally related to her accepted
January 27, 2018 employment injury.12
Initially, the Board notes that while appellant claimed wage loss from June 14 through 22,
2018, the employing establishment, on the Form CA-7, indicated that she had used LWOP from
June 18 through 22, 2018.
In a report dated June 14, 2018, Dr. Sarrafian diagnosed lumbar sprain and right sacroiliac
joint arthritis, pain, and instability. On examination he found a positive straight leg raise and
spasms and tenderness of the spine and paravertebral musculature. Dr. Sarrafian found that
8

S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

20 C.F.R. § 10.5(x); see D.T., Docket No. 19-1064 (issued February 20, 2020).

10

See R.N., Docket No. 19-1685 (issued February 26, 2020); Terry R. Hedman, 38 ECAB 222 (1986).

11

Id.

12
The Board notes that OWCP adjudicated the Form CA-7 as a notice of recurrence of disability (Form CA-2a);
however, appellant filed a claim for wage-loss compensation rather than alleging a recurrence of disability.

4

appellant’s condition had “worsened without a clinical reason.” He administered a steroid
injection and advised that she should remain off work. Dr. Sarrafian also completed a Form CA-17
of even date finding that appellant was disabled from employment. On June 18, 2018 he noted
that her condition had not significantly improved, diagnosed a lumbar disc herniation, and opined
that she should remain off work until June 25, 2018. Dr. Sarrafian did not, however, explain why
appellant was unable to perform the duties of her position on or after June 18, 2018 due to a
recurrence of her accepted employment injury. A mere conclusion without medical rationale
supporting a period of disability due to the accepted employment condition is insufficient to meet
a claimant’s burden of proof.13
Appellant submitted reports from Dr. Sarrafian dated July 9 and 24 and August 2, 2018
and a report from Dr. Darakjian dated August 14, 2018. In these reports, Dr. Sarrafian and
Dr. Darakjian failed to address her disability status from June 18 through 22, 2018, and thus this
evidence is insufficient to meet her burden of proof.14
OWCP received reports from physical therapists; however, these reports are also of no
probative value as physical therapists are not considered physicians as defined under FECA.15 On
appeal counsel asserted that the physician’s office had confirmed that appellant’s treatment in
June 2018 was related to her original employment injury. However, the issue of whether a
claimant’s recurrent disability from work is related to an accepted condition must be established
by a physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disability is causally related to the employment injury and supports that conclusion with
sound medical reasoning.16 Appellant failed to submit such evidence and thus has not met her
burden of proof.17
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.

13

A.A., Docket No. 19-1165 (issued December 16, 2019); S.H., Docket No. 19-1128 (issued December 2, 2019).

14

J.S., Docket No. 17-1121 (issued April 17, 2019); K.M., Docket No. 17-1730 (issued February 9, 2018).

15

See F.D., Docket No. 18-0199 (issued March 20, 2019); S.E., Docket No. 15-0888 (issued September 14, 2016);
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 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).
16

See G.B., Docket No. 16-1033 (issued December 5, 2016).

17

See K.A., Docket No. 17-1718 (issued February 12, 2018).

5

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his or her own motion or on application.18
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (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.19
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP decision for which review is sought.20 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.21 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.22
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
The Board finds that appellant has not alleged or demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Moreover, appellant has not advanced a relevant
legal argument not previously considered. Consequently, she is not entitled to a review of the
merits of her claim based on the first and second above-noted requirements under section
10.606(b)(3).23
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of her reconsideration request. Appellant resubmitted the June 14 and 18, 2018 reports
of Dr. Sarrafian and acupuncture notes dated from July 5 through 24, 2018. Evidence which is
duplicative, cumulative, or repetitive in nature is insufficient to warrant reopening a claim for merit

18

5 U.S.C. § 8128(a).

19

20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

20

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees Compensation System (iFECS). Id. at Chapter 2.1602.4b.
21

Id. at § 10.608(a); see also A.P., Docket No 19-0224 (issued July 11, 2019).

22

Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

23

C.B., Docket No. 18-1108 (issued January 22, 2019).

6

review.24 Appellant also submitted a report from Dr. Sarrafian dated September 20, 2018. While
not previously of record, Dr. Sarrafian failed to address the issue of her claimed disability from
June 14 through 22, 2018. The Board has held that the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.25
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.26
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish recurrent
disability for the period June 18 through 22, 2018 causally related to her accepted January 27, 2018
employment injury. The Board further finds that OWCP properly denied her request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

24

See L.C., Docket No. 19-0503 (issued February 7, 2020); Denis M. Dupor, 51 ECAB 482 (2000).

25

See Y.K., Docket No. 18-1167 (issued April 2, 2020); C.N., Docket No. 08-1569 (issued December 9, 2008).

26
See L.S., Docket No. 19-1790 (issued March 11, 2020); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006).

7

ORDER
IT IS HEREBY ORDERED THAT the October 9 and September 7, 2018 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: May 22, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Metro, GA, Employer
__________________________________________

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Appearances:
Jason Sloan, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1826
Issued: January 8, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 19, 2014 appellant, through her representative, filed a timely appeal from a
July 22, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability as of
February 22, 2014.
FACTUAL HISTORY
On July 26, 2006 appellant, a 44-year-old sales/service clerk, injured her back while
pulling a pallet of mail from an elevator. She filed a claim for benefits, which OWCP accepted
for thoracic sprain, left shoulder, and upper arm sprain, acromioclavicular joint.
1

5 U.S.C. § 8101 et seq.

Appellant returned to full duty without restrictions on August 2, 2006. On March 29,
2014 she filed a recurrence of disability claim. Appellant alleged that her inability to work as of
February 22, 2014 was caused or aggravated by her accepted July 26, 2006 employment injury.
On the (Form CA-2a) she indicated that the recurrence happened on November 23, 2013 when
she was lifting heavy trays and flat boxes of mail overhead. On May 29, 2014 appellant again
filed a recurrence of disability claim similarly alleging that she felt severe pain in her left arm
and shoulder, neck and lower back while taking down a pie rack on November 23, 2013. She
stated that the pain was in the same area of her body that she previously injured.
On November 23, 2013 Karen Beach, a nurse practitioner, examined appellant and wrote
a report at the behest of Dr. Stephen Dawkins, Board-certified in occupational medicine, which
stated that appellant was excused from work on that date; appellant was slated to be released to
modified duty as of November 25, 2013. The report indicated that she advised that appellant
sustained an injury to her left shoulder which occurred when she was lifting heavy mail off a pie
rack repetitively and began to experience shoulder pain. Appellant was restricted from lifting,
pushing, pulling, and overhead work with her left arm; continuous bending/stooping, standing
and walking; and repetitive use of her left arm. The report diagnosed tendinitis, and sprain/strain
of the muscle in the left shoulder. Appellant related that she sustained an injury to her left
shoulder while pulling heavy trays of mail from a machine and setting them down; she felt
immediate pain in her left shoulder and had since experienced difficulty moving her left arm.
She stated that this injury was similar to the work injury to her left shoulder she sustained in
2006. On examination it was noted that appellant’s left shoulder appeared essentially normal,
although she was not able to raise both arms to a vertical position at the sides of her head, place
her hands behind her neck in external rotation, and place her hands behind her midback in
internal rotation. X-rays of the left shoulder showed no fracture, dislocation, or abnormal
calcification.
In a November 23, 2013 work capacity evaluation cosigned by Ms. Beach and
Dr. Dawkins, appellant was given restrictions, which essentially reiterated those set forth in the
November 23, 2013 report. She was also restricted from continuous lifting exceeding 25 pounds.
In a December 10, 2013 report, received by OWCP on June 4, 2014 Dr. Pran N. Sood,
Board-certified in orthopedic surgery, stated that appellant was experiencing increased pain in
her left shoulder. He advised that she was seen and evaluated a few weeks prior with her neck
pain, back pain, and left shoulder pain. Dr. Sood recommended that appellant undergo a
magnetic resonance imaging (MRI) scan and electromyogram (EMG) of the neck and left
shoulder. He asserted that ultrasound evaluation showed that she had bursitis and tendinitis in
the shoulder, but that the main rotator cuff appeared intact. Dr. Sood advised that he told
appellant that she should be able to move it, but that she was exerting poorly overall. He
recommended therapy and aggressive movement of the shoulder in order to prevent it from being
frozen.
In a January 31, 2014 report, Dr. Sood stated that appellant had complaints of severe low
back pain, severe neck pain, right and left upper extremity radiculopathy, difficulty moving the
left shoulder, and pain and numbness in the lower extremities. He stated that he administered
injections to the left shoulder, but that she still had marked loss of movement in the shoulder.
Dr. Sood stated that appellant’s MRI scan findings had been consistent with bursitis, tendinitis,

2

and rotator cuff syndrome with a partial mild small tear. An MRI scan of her neck showed
marked straightening of the cervical curve; cervical spondylosis with bulging cervical discs at
C4-5 and C5-6. Dr. Sood opined that appellant also had two bulging discs, at the L4-5 and L5S1 levels, which extended onto the foraminal regions. He noted that she was presently out of
work and was unable to ascertain when she could return to work.
In a February 4, 2014 report, Dr. Sood essentially reiterated his previous findings and
conclusions.
In a report dated March 11, 2014, received by OWCP on June 6, 2014 Dr. Sood stated
that appellant had complaints of low back pain which were getting better. He stated that on
examination of her back she showed improved flexion with limited extension and side bending
still limited. Dr. Sood stated that appellant was neurologically stable. He advised that she had
back pain secondary to lumbar disc disease with spondylosis. Dr. Sood recommended a bilateral
transforaminal epidural injection at L4-5 and L5-S1 because appellant’s previous injection
resulted in some improvement with the first one. He related that she also had complaints
regarding the left shoulder with increasing stiffness. Dr. Sood opined that, as appellant’s clinical
examination was consistent with these complaints, he recommended an ultrasound evaluation
and a possible guided injection into the left shoulder.
By letter dated June 6, 2014, OWCP advised appellant that it required additional factual
and medical evidence, including a comprehensive medical report, to support her claim that her
condition/or disability as of February 22, 2014 was causally related to her accepted thoracic
sprain, left shoulder, and upper arm conditions. It noted that she had filed a claim for a new
injury which allegedly occurred on November 23, 2013 under case number xxxxxx613, and that
she had stopped work pursuant to that claim on February 22, 2014. OWCP indicated that
appellant was currently receiving compensation and medical benefits under the new claim, as
opposed to sustaining a recurrence of disability under the instant claim under case number
xxxxxx178.
OWCP informed appellant that in order to be entitled to additional medical treatment and
compensation for wage loss as a result of a recurrence of disability, she needed to provide factual
and medical evidence to substantiate that her disability has occurred or increased due to a
spontaneous change in the medical condition which resulted from a previous injury or
occupational illness without an intervening injury or new exposure to factors causing the original
illness; or a withdrawal of a light-duty assignment made specifically to accommodate her
condition due to the work-related injury. It stated that if the evidence established that disability
was due to a new work-related injury or illness, a new claim would have to be filed, even if the
new incident or exposure involved the same part of the body as previously affected. OWCP
advised appellant that the evidence it had received was insufficient to establish her claim for
recurrence because it did not describe a spontaneous worsening of her previously accepted
conditions.
By decision dated July 22, 2014, OWCP denied the claim for a recurrence of disability.

3

LEGAL PRECEDENT
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury, and who supports that conclusion with sound medical
reasoning.2 A recurrence of disability is defined as the inability to work caused by a spontaneous
change in a medical condition which results from a previous injury or illness without an
intervening injury or new exposure in the work environment that caused the illness.3
ANALYSIS
In the instant case, appellant has failed to submit any medical opinion containing a
rationalized, probative report which relates her claimed recurrence of disability for work as of
February 22, 2014 to her July 26, 2006 work injury. For this reason, she has not discharged her
burden of proof to establish her claim that she sustained a recurrence of disability as a result of
her accepted employment conditions. Appellant has failed to submit evidence to show that she
sustained a worsening of her accepted thoracic strain, left shoulder strain, and left upper arm
injuries as of February 22, 2014. As she did not submit medical evidence sufficient to establish
that she sustained a recurrence of her July 26, 2006 work injury, OWCP properly denied the
claim for a recurrence of disability.
In support of her claim appellant submitted reports from Drs. Dawkins and Sood. In his
November 23, 2013 report, Dr. Dawkins stated that she sustained an injury to her left shoulder,
which occurred when she was repetitively lifting heavy trays of mail. He diagnosed tendinitis,
sprain/strain and muscle in the left shoulder and restricted her from lifting, pushing, pulling, and
overhead work with her left arm; continuous bending/stooping, standing, and walking; and
repetitive use of her left arm. Dr. Dawkins stated that left shoulder x-ray showed no fracture,
dislocation, or abnormal calcification. He excused appellant from work on November 23, 2013
and released her to modified duty on November 25, 2013. In a November 23, 2013 work
capacity evaluation, Dr. Dawkins restricted her from continuous lifting exceeding 25 pounds. In
his December 10, 2013 report, Dr. Sood advised that appellant was experiencing increased pain
in her left shoulder and referred her for MRI scans and EMG tests of the neck and left shoulder.
He stated that ultrasound tests revealed that she had bursitis and tendinitis in the shoulder, but
that the main rotator cuff appeared intact. Dr. Sood prescribed therapy and aggressive movement
of the shoulder in order to prevent it from being frozen. In a January 31, 2014 report, he noted
complaints of severe low back pain, severe neck pain, right and left upper extremity
radiculopathy, difficulty moving the left shoulder, and pain and numbness in the lower
extremities. Dr. Sood advised that appellant’s left shoulder MRI scan findings had been
consistent with bursitis, tendinitis, and rotator cuff syndrome with a partial mild small tear; an
MRI scan of her neck showed marked straightening of the cervical curve; cervical spondylosis
with bulging cervical discs at C4-5 and C5-6. He stated that appellant had two bulging discs in
2

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.121(a).

3

See 20 C.F.R. § 10.5(x); Donald T. Pippin, 54 ECAB 631 (2003).

4

her lower back at the L4-5 and L5-S1 levels, which extended onto the foraminal regions.
Dr. Sood advised that she was presently out of work and could not state with certainty as to when
she could return to work. In his March 11, 2014 report, he advised that appellant had complaints
of low back pain, but was neurologically stable. Dr. Sood stated that she had back pain
secondary to lumbar disc disease with spondylosis. He also advised that appellant also had
complaints of left shoulder with increasing stiffness.
The opinions of Dr. Dawkins and Dr. Sood on causal relationship are of limited probative
value in that they did not provide adequate medical rationale in support of their conclusions.4
They did not describe how appellant’s accepted thoracic sprain, left shoulder, and upper arm
sprain conditions would have been competent to cause the claimed recurrence of disability as of
February 22, 2014. Moreover, Drs. Dawkins and Sood’s opinions are of limited probative value
for the further reason that they are generalized in nature and equivocal. As noted, appellant has
the burden of proof to submit rationalized medical evidence establishing the relationship of the
claimed recurrence to the original injury. The weight of the medical opinion is determined by
the opportunity for and thoroughness of examination, the accuracy, and completeness of
physician’s knowledge of the facts of the case, the medical history provided, the care of analysis
manifested, and the medical rationale expressed in support of stated conclusions.5 Appellant has
not submitted a physician’s reasoned opinion in which the physician explains the reasons why
appellant’s current condition as of February 22, 2014 was causally related to the July 26, 2006
work injury. For these reasons, the medical evidence is insufficient to establish a recurrence of a
medical condition causally related to the accepted thoracic strain, left shoulder strain, and left
upper arm injuries. The Board will affirm OWCP’s July 22, 2004 decision.
CONCLUSION
The Board finds that appellant has not met her burden to establish that she was entitled to
compensation for a recurrence of disability as of February 22, 2014 causally related to her
accepted thoracic strain, left shoulder strain and left upper arm conditions.

4

William C. Thomas, 45 ECAB 591 (1994).

5

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

5

ORDER
IT IS HEREBY ORDERED THAT the July 22, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.6
Issued: January 8, 2016
Washington, DC

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

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

6

James A. Haynes, Alternate Judge participated in the original decision but was no longer a member of the Board
effective November 16, 2015.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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

Docket No. 17-1535
Issued: February 12, 2018

Case Submitted on the Record

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

JURISDICTION
On July 6, 2017 appellant filed a timely appeal from a May 19, 2017 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.
ISSUE
The issue is whether OWCP met its burden of proof to rescind its acceptance of
appellant’s claim for lumbar disc displacement and radiculopathy.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 10, 2015 appellant, then a 35-year-old city carrier assistant, filed an
occupational disease claim (Form CA-2) alleging that he sustained an occupational disease of his
low back due to the performance of his work duties over a period of time. He asserted that his
job required him to lift mail packages weighing up to 20 pounds, constantly step in and out of his
postal vehicle, walk for long distances, and engage in bending and twisting. Appellant indicated
that on February 24, 2014 he first became aware of his claimed condition and that it was caused
or aggravated by factors of his federal employment.
On the reverse of his claim form, E.C., a supervisor of customer services, indicated that
appellant last worked for the employing establishment on April 25, 2014.3 He noted his
understanding that appellant stopped work due to an off-duty vehicular accident and advised that
the employing establishment was controverting the occupational disease claim.
In a December 9, 2015 report, Dr. Ronnie B. Shade, an attending Board-certified
orthopedic surgeon, indicated that appellant presented complaining of a low back injury on
February 24, 2014. He noted that appellant had reported that he had been employed as a city
carrier assistant for a total of one year and 10 months and that his day-to-day job duties included
prolonged walking/standing, carrying mail and packages weighing up to 15 pounds with a mail
carrier bag, bending, stooping, climbing stairs, lifting, sorting, and casing and delivering mail for
8 to 12 hours per day for 5 to 6 days per week. Appellant reported to Dr. Shade that, while
performing his regular job duties as a city carrier assistant, he felt an onset of pain and popping
into his lower back. Appellant’s initial back and right leg complaints dated to 2008 and he
underwent a series of lumbar epidural injections at that time. He further reported that in 2013 he
underwent a left “lumbar biopsy” for suspected infection at which time he experienced the onset
of left leg pain and weakness, and that on May 26, 2015 he underwent lumbar disc fusion
surgery by Dr. Henrik Mike-Mayer, an attending Board-certified orthopedic surgeon.
With respect to his low back, the medical notes document that appellant complained of
moderate-to-severe pain, cramps, stiffness, and muscle spasms and, with respect to his lower
extremities, he complained of pain, numbness, tingling sensation, cramps, weakness, give way
sensation, and stiffness.4
Dr. Shade reported the findings of the physical examination he conducted on
December 9, 2015. He noted that bilateral iliolumbar tenderness and spasm were present and
there was loss of normal lumbar lordosis. The motor examination revealed 4/5 weakness of the
lower extremities and the sensory examination in the right lower extremity revealed decreased
sensation in the right L5 nerve distribution and in the left L4 and S1 nerve distributions.
3

E.C. indicated that he was not appellant’s immediate supervisor when he stopped work in March 2014.

4
Dr. Shade discussed the discectomy and fusion surgery at L5-S1 that appellant underwent on May 26, 2015. He
noted that an April 21, 2015 magnetic resonance imaging (MRI) scan of appellant’s low back had contained an
impression of broad-based far right paracentral/posterolateral disc osteophyte complex at the L5-S1 level which
resulted in right subarticular recess narrowing, and cortical endplate edema enhancement at the L5-S1 level most
consistent with degenerative changes.

2

Dr. Shade diagnosed other interverbal disc displacement of the lumbar region, radiculopathy of
the lumbar region, chronic pain syndrome, obesity (unspecified), and bilateral flat foot (pes
planus). He again noted appellant’s history of one year and ten months in the postal position and
then posited that the mechanism of injury was directly causally related to the injury that
appellant sustained on February 24, 2014. Dr. Shade noted that it was his medical opinion that
the injuries to appellant’s lower back were caused by performing his day-to-day regular job
duties as a city carrier assistant which included prolonged walking, prolonged standing, carrying
mail and packages up to 15 pounds with a mail carrier bag, bending, stooping, climbing stairs,
lifting, sorting, and casing and delivering mail for 8 to 12 hours a day for 5 to 6 days a week. He
noted, “Again, it is my strong opinion that the injury, which this patient has sustained to the
lower back, is directly causally related to his injury on [February 24, 2014].”
On April 15, 2016 appellant wrote to his United States Senator noting that he had been
employed “with the Postal Service since 2014” when he commenced his employment in a noncareer position. He noted that he was “in training in February 2014” when he sustained a work
injury. Appellant explained his course of medical treatment and discussed his complaint on file
with the Equal Employment Opportunity Commission. He also noted his filing for disability
from the Social Security Administration.
On May 26, 2016 OWCP accepted appellant’s claim for lumbar disc displacement and
radiculopathy.
The record contains a May 25, 2016 letter to appellant’s Senator in which an employing
establishment official refuted parts of his April 15, 2016 correspondence. She summarized time
records showing only 16 intermittent days of employment, between February 10 and April 25,
2014, that appellant worked in 2014.5 The employing establishment official noted the specific
hours which appellant had worked between the commencement of his employment and his final
day of performance of work duties on April 25, 2014 when he worked 6.5 hours. She also
alleged facts relating to whether appellant fell into a hole and whether his personal vehicle had
been in an accident while he was in the performance of duty.
On June 3, 2016 OWCP received an undated letter in which the employing establishment
controverted appellant’s occupational disease claim. The employing establishment official
indicated that appellant had used his private vehicle to perform his work duties and it had been
damaged that day, but appellant was not in the vehicle. The official noted that appellant only
worked 16 days in 20146 and that he gave varying accounts of how he was injured.
In a June 8, 2016 letter, OWCP advised appellant that it proposed to rescind its
acceptance of his claim for lumbar disc displacement and radiculopathy. It noted that the
medical evidence of record did not support the acceptance of these conditions. OWCP indicated
that Dr. Shade’s December 9, 2015 report, the ostensible basis for the acceptance of appellant’s
5

The correspondence noted that appellant’s employment with the employing establishment was effective
beginning February 8, 2014 but he did not work his first day until February 10, 2014.
6
The official noted that, despite not having worked since April 25, 2014, appellant was still an employee of the
employing establishment at the time he filed his occupational disease claim in December 2015.

3

claim, was not based on a complete and accurate factual history as Dr. Shade was under the
impression that appellant worked for more than 16 days in 2014. It also noted that Dr. Shade’s
December 9, 2015 report contained inconsistencies because it suggested other possible work
factors such as stepping into a hole. OWCP afforded appellant 30 days to submit evidence and
argument challenging the proposed rescission action.7
In response to the notice of proposed rescission, appellant submitted a copy of the
December 9, 2015 report of Dr. Shade, which had already been submitted to OWCP. He also
submitted a report of the May 26, 2015 lumbar disc fusion surgery performed by Dr. MikeMayer.
By decision dated August 12, 2016, OWCP rescinded the acceptance of appellant’s claim
for lumbar disc displacement and radiculopathy. It found that the rescission was justified
because appellant had not established fact of injury because the evidence of record did not
support that the injury occurred as alleged. OWCP noted that appellant did not complete and
return the questionnaire it provided on June 8, 2016.
Appellant submitted a November 17, 2016 report in which Dr. Daniel D. Lee, an
attending Board-certified orthopedic surgeon, provided examination findings and diagnosed right
hip joint pain and herniated lumbar disc with radiculopathy.
Appellant, through counsel, requested a telephone hearing with a representative of
OWCP’s Branch of Hearings and Review. During the hearing held on April 12, 2017, counsel
argued that OWCP had no basis to rescind its acceptance of appellant’s claim for lumbar disc
displacement and radiculopathy.
By decision dated May 19, 2017, an OWCP hearing representative affirmed OWCP’s
August 12, 2016 decision rescinding the acceptance of appellant’s claim for lumbar disc
displacement and radiculopathy. She noted that there was no contemporaneous evidence of
appellant experiencing an employment incident at work on February 8, 2014 as later alleged, i.e.,
stepping into a hole and falling. The hearing representative noted that the medical evidence of
record did not support acceptance of appellant’s claim for lumbar disc displacement and
radiculopathy. She indicated that the reports of appellant’s attending physicians were not based
on complete and accurate factual histories because they either diagnosed conditions due to a nonestablished employment incident (stepping into a hole on February 24, 2014) or due to being
exposed to work duties over an extended period (despite the fact that appellant only worked 16
days in 2014).

7

In a June 8, 2016 letter, OWCP requested that appellant complete and return a questionnaire which posed
various questions regarding the work activities which he believed contributed to his medical condition. In another
June 8, 2016 letter, the employing establishment also requested additional information from the employing
establishment.

4

LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.8 The Board
has upheld OWCP’s authority to reopen a claim at any time on its own motion under section
8128 of FECA and, where supported by the evidence, set aside or modify a prior decision and
issue a new decision.9 The Board has noted, however, that the power to annul an award is not an
arbitrary one and that an award for compensation can only be set aside in the manner provided
by the compensation statute.10
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud. It is well established
that once OWCP accepts a claim, it has the burden of justifying the termination or modification
of compensation benefits. This holds true where, as here, OWCP later decides that it erroneously
accepted a claim. In establishing that its prior acceptance was erroneous, OWCP is required to
provide a clear explanation of the rationale for rescission.11
ANALYSIS
Appellant filed an occupational disease claim alleging an occupational disease of his low
back due to the performance of his work duties over a period of time. He asserted that his job
required him to lift mail packages weighing up to 20 pounds, constantly step in and out of his
postal vehicle, walk for long distances, and engage in bending and twisting. Appellant indicated
that he first became aware of his claimed condition on February 24, 2014 and first realized on the
same date that it was caused or aggravated by factors of his federal employment. He later noted
that he had stepped in a hole at work on February 24, 2014 as causing his claimed work injuries.
On May 26, 2016 OWCP accepted appellant’s claim for lumbar disc displacement and
radiculopathy, but it later rescinded its acceptance of these medical conditions.
The Board finds that OWCP has met its burden of proof to rescind its acceptance of
appellant’s claim for lumbar disc displacement and radiculopathy. The acceptance of appellant’s
claim was based upon the medical reports of Dr. Shade. In those medical notes he specifically
discussed appellant’s work history in his employment position as lasting “one year and ten
months” prior to the development of the occupational disease claim. However, this history of
injury is not supported by the evidence of record.12 Specifically, the employing establishment
8

5 U.S.C. § 8128.

9

John W. Graves, 52 ECAB 160, 161 (2000).

10

See 20 C.F.R. § 10.610.

11

See John W. Graves, supra note 9.

12

Within the August 12, 2016 and May 19, 2017 decisions OWCP also found that there was no contemporaneous
evidence of appellant experiencing an employment incident at work on February 8, 2014 as later alleged, i.e.,
stepping into a hole and falling. OWCP also noted that the medical evidence did not support acceptance of
appellant’s claim for lumbar disc displacement and radiculopathy.

5

expressly noted the dates of appellant’s commencement of employment, his intermittent and
sporadic work over a period of 16 days, and the last date of his employment. Appellant
confirmed his limited time in his position prior to his alleged injury within the letter he wrote to
his Senator. Therefore, the reports of appellant’s attending physicians were not based on
complete and accurate factual histories because they noted and were premised upon exposure to
work duties over an extended period of time, despite the fact that appellant only worked
intermittently for 16 days in 2014.13 The Board finds that Dr. Shade’s medical reports are
insufficient to support acceptance of a claim and, as such, OWCP met its burden of proof to
rescind acceptance of appellant’s claim for lumbar disc displacement and radiculopathy.
On appeal counsel argues that OWCP did not justify its rescission of the acceptance of
appellant’s claim for lumbar disc displacement and radiculopathy because it did not submit
“new” and “different” evidence to support its action. However, he did not present support for
applying such a standard. As noted above, OWCP has the obligation to provide a clear
explanation of the rationale for rescission and it met its obligation in the present case for the
reasons explained above.14
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to rescind its acceptance of
appellant’s claim for lumbar disc displacement and radiculopathy.

13

OWCP had indicated that Dr. Shade’s December 9, 2015 report, the ostensible basis for the acceptance of
appellant’s claim, was not based on a complete and accurate factual history as Dr. Shade was under the impression
that appellant worked for more than 16 days in 2014.
14

See supra note 9.

6

ORDER
IT IS HEREBY ORDERED THAT the May 19, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2018
Washington, DC

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

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

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

7