United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRUBTION CENTER, Tulsa, OK, Employer
__________________________________________

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

Docket No. 13-781
Issued: December 5, 2013

Case Submitted on the Record

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

JURISDICTION
On February 19, 2013 appellant filed a timely appeal of a November 28, 2012 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an occupational
disease due to factors of her federal employment.
FACTUAL HISTORY
On January 27, 2012 appellant, then a 41-year-old mail handler, filed an occupational
disease claim alleging that she developed a condition on March 1, 2011, which she related to her
federal employment on that date. In an accompanying narrative statement, she described her
1

5 U.S.C. § 8101 et seq.

work at the employing establishment beginning on January 30, 1998 as a mail handler.
Appellant stated that in August 1999 she sustained a right wrist injury which was accepted. She
also sustained a rotator cuff injury and back surgery but continued to work full time. In her
current position, appellant moves equipment and has to bend and squat to attach the equipment.
She stated that driving the tow mule caused pain in her wrist. Appellant noted that she also
drove a forklift which moved boxes of trays to the mule. She noted that she had problems with
her back, arms, neck and wrist. Appellant stated that she could not sleep due to pain in her arms
and that she could not close her hands in the morning and that her hands, especially the right,
were numb.
In reports dated November 15 and 22 and December 13, 2011 and January 24, 2012,
Dr. Mark Stephen Wilson, an orthopedic surgeon, examined appellant due to injuries to her
cervical spine, thoracic spine, both shoulder and both hands and wrists that she sustained as a
result of cumulative trauma from work activities. He listed her work-related duties of driving a
forklift, bending and pulling of equipment weighting up to 3,000 pounds, bending and pulling.
Dr. Wilson also noted appellant’s previous work-related injuries and performed a physical
examination. He stated, “Due to the repetitive nature of [appellant’s] job, she began to have pain
in her cervical spine and her bilateral upper extremities with her duties at work.” Dr. Wilson
diagnosed cervical spine sprain/strain, cervical radiculopathy, thoracic sprain/strain, bilateral
shoulder impingement and bursitis, bilateral elbow lateral epicondylitis, bilateral carpal tunnel
syndrome, bilateral thumb arthritis and right second and third digit trigger fingers all of which he
attributed to cumulative trauma.
In a letter dated March 22, 2012, OWCP requested additional factual and medical
information from appellant in support of her claim. It allowed 30 days for a response.
Appellant submitted additional medical evidence. Dr. Don R. Barney, an osteopath,
examined her on March 4 and 19, 2010 noting that she attributed her left wrist condition at that
time to turning the wheel while driving a forklift or mule in the performance of her job duties.
He diagnosed carpal tunnel syndrome and tenosynovitis of the left wrist.
On January 24, 2012 Dr. Aletha C. Oglesby, a Board-certified family practitioner,
examined appellant due to back pain. She had previously treated appellant on January 11,
February 7, May 9 and 20, 2011 and February 9 and 28, 2012 and found appellant’s pain to be
stable, but increased when she worked overtime. Dr. Oglesby diagnosed unspecified disc
disorder of the lumbar region.
On April 29, 2011 Dr. Sreelatha K. Krishna, a Board-certified internist, stated that
appellant had an onset of back pain two weeks earlier. Appellant reported sharp pain while
bending and performing the activities of daily living. Dr. Randall L. Hendricks, a Boardcertified orthopedic surgeon, examined her on May 18, 2011 and stated that she had a solid
fusion at L5-S1 with minimal spondylosis at L3-5 based on magnetic resonance imaging (MRI)
scan.
In a letter dated April 10, 2012, OWCP requested that appellant resubmit her narrative
statement as it was illegible. It allowed 30 days for a response.

2

Appellant underwent a cervical MRI scan on March 6, 2012. This report demonstrated a
small central disc protrusion at C4-5 and central canal stenosis with disc extrusion at C5-6 as
well as central canal stenosis with broad based central disc protrusion at C6-7.
In a report dated March 28, 2012, Dr. Hendricks stated that appellant reported neck pain,
headaches and pain radiating down her right arm into her hand. He reviewed the MRI scan of
her cervical spine, which demonstrated C6-7 disc herniation and a smaller C6-7 disc protrusion.
Dr. Hendricks recommended an epidural steroid injection.
Appellant resubmitted a portion of her narrative statement, which described her work
duties of moving equipment full of mail by pushing, pulling, hooking equipment, bending
squatting and driving a tow mule. She listed her work injuries including a wrist injury in 1999,
2003 rotator cuff surgery, 2005 back surgery and 2008 hardware removal surgery on her back.
In a narrative statement dated May 4, 2012, appellant provided her work duties as a mail handler
in the processing and distribution plant. She stated that OWCP accepted her claim for right
carpal tunnel syndrome in 1999. Appellant injured her back in November 2000 and had surgery
and hardware removal. She injured her right shoulder on January 24, 2003 which resulted in
accepted rotator cuff surgery.
By decision dated June 29, 2012, OWCP denied appellant’s claim finding that, although
she had submitted a narrative statement, she did not specify the claimed condition resulting from
her employment duties. Appellant requested a review of the written record by an OWCP hearing
representative on July 13, 2012.
On March 6, 2012 Dr. Darnell Blackmon, a Board-certified orthopedic surgeon,
examined appellant due to bilateral upper extremity pain. He noted that she performed heavy
lifting at the employing establishment and had developed neck pain as well as bilateral hand pain
while she was at work. Dr. Blackmon found that Spurling’s test produced symptoms that
radiated into appellant’s right upper extremity with patchy paresthesias in both upper extremities.
Appellant also had a bilateral positive Durkan’s compression test, positive Tinel’s sign and
positive Phalen’s test. Dr. Blackmon found no atrophy of her hands. He diagnosed cervical
radiculopathy and bilateral carpal tunnel syndrome.
On March 15, 2012 Dr. Yogesh Mittal, a Board-certified orthopedic surgeon, diagnosed
bilateral neck pain and bilateral carpal tunnel syndrome. He noted that appellant’s
electromyography (EMG) showed bilateral carpal tunnel syndrome with no electrodiagnostic
evidence of right or left medial nerve entrapments and no brachial plexus or cervical
radiculopathy.
In a report dated April 11, 2012, Dr. Hendricks diagnosed cervical radiculopathy and
provided a cervical epidural steroid injection. He reviewed appellant’s EMG on April 25, 2012
and stated that she did not have any hard identifiable radiculopathy. Dr. Hendricks stated that
the EMG tended to suggest that she had carpal tunnel but no cervical radiculitis. In a note dated
May 25, 2012, he stated that the cervical epidural eased appellant’s pain for 12 days and that she
reported intermittent right arm pain. Dr. Hendricks recommended a second cervical epidural.
He examined appellant on June 22, 2012 and stated that her cervical epidural injections did not

3

reduce her cervical pain. Dr. Hendricks stated that she complained of severe neck pain with
radiation into her arm. He recommended an anterior cervical discectomy and fusion.
In a note dated March 4, 2010, Dr. Barney noted that appellant was a mail handler and
equipment operator driving a mule and forklift, which required use of her wrist. He found
tenderness to the right wrist and pain with flexion and extension. Dr. Barney stated that
appellant had positive Tinel’s sign and Phalen’s test. He diagnosed carpal tunnel syndrome of
the right wrist. Dr. Barney stated:
“In my medical opinion the injuries described above and the results of the
physician exam[ination] as revealed above are due to [appellant’s] job as a mail
handler at the [employing establishment] distribution plant. The job of operating
the mule, operating the forklift has caused her to put extreme pressure on her left
wrist due to having pain in the right wrist and right shoulder. This pain had now
caused the carpal tunnel strap to be painful and has resulted in carpal tunnel
syndrome.”
By decision dated November 28, 2012, the hearing representative noted that appellant
claimed injury on March 1, 2011. Appellant had two prior work-related injuries a traumatic
work injury on November 1, 2000 accepted for lumbar strain, degenerative disc disease and
lumbar surgery. On November 12, 2002 she filed a claim for right shoulder strain, which OWCP
accepted for right rotator cuff strain and surgical repair. Appellant received a schedule award for
four percent impairment of the right upper extremity. The hearing representative denied her
current claim on the grounds that she did not state which conditions she was claiming or
specifically identify the work duties she believed caused her conditions. The hearing
representative stated that since no factors of employment in the performance of duty had been
established the medical evidence would not be discussed.
LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”2 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.3 A medical report is of limited probative value on a given
2

20 C.F.R. § 10.5(q).

3

Lourdes Harris, 45 ECAB 545, 547 (1994).

4

medical question if it is unsupported by medical rationale.4 Medical rationale includes a
physician’s detailed opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment activity. The opinion of the
physician must be based on a complete factual and medical background of the claim, must be
one of reasonable medical certainty and must be supported by medical reasoning explaining the
nature of the relationship between the diagnosed condition and specific employment activity or
factors identified by the claimant.5
ANALYSIS
Appellant stated that she developed injuries to her back, arms, neck and right wrist due to
her employment duties. She has submitted medical reports from several physicians providing
specific diagnoses of conditions in her implicated body parts. Dr. Wilson diagnosed cervical
spine sprain/strain, cervical radiculopathy, thoracic sprain/strain, bilateral shoulder impingement
and bursitis, bilateral elbow lateral epicondylitis, bilateral carpal tunnel syndrome, bilateral
thumb arthritis and right second and third digit trigger fingers. Dr. Barney diagnosed carpal
tunnel syndrome and tenosynovitis of the left wrist as well as carpal tunnel syndrome of the right
wrist. Dr. Oglesby diagnosed unspecified disc disorder of the lumbar region. Dr. Hendricks
diagnosed C6-7 disc herniation and a smaller C6-7 disc protrusion based on a cervical MRI scan
with cervical radiculopathy. Dr. Blackmon diagnosed cervical radiculopathy and bilateral carpal
tunnel syndrome. The Board finds that appellant has provided the initial medical evidence
necessary to establish the existence of diseases or conditions of her back, arms, neck and right
wrist as alleged.
Appellant also identified specific employment duties, which she felt caused or
contributed to her diagnosed conditions including moving equipment, bending and squatting to
attach the equipment, driving a forklift to move boxes of trays to the mule as well as driving a
tow mule.
However, only two of the medical reports submitted discuss the causal relationship
between appellant’s diagnosed conditions and her employment duties. In support of a causal
relationship between her implicated employment duties and her diagnosed conditions, appellant
submitted Dr. Wilson’s November 15, 2011 report listing her work-related duties of driving a
forklift, bending and pulling of equipment weighting up to 3,000 pounds. Dr. Wilson stated,
“Due to the repetitive nature of [appellant’s] job, she began to have pain in her cervical spine and
her bilateral upper extremities with her duties at work.” He diagnosed cervical spine
sprain/strain, cervical radiculopathy, thoracic sprain/strain, bilateral shoulder impingement and
bursitis, bilateral elbow lateral epicondylitis, bilateral carpal tunnel syndrome, bilateral thumb
arthritis and right second and third digit trigger fingers.
Dr. Wilson provided a proper factual background, noting appellant’s work duties and
provided diagnoses of her back, neck and arm conditions. In support of his opinion that her
diagnosed conditions were due to her employment, he opined that the repetitive nature of her job
4

T.F., 58 ECAB 128 (2006).

5

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

5

caused her pain. While Dr. Wilson’s report includes an opinion on the causal relationship
between appellant’s diagnosed condition and her employment duties, he failed to provide the
necessary medical rationale to explain how her duties of driving a forklift as well as bending and
pulling equipment resulted in the diagnosed conditions. As he did not provide any medical
reasoning, his reports are not sufficient to meet her burden of proof in establishing her
occupational disease claim.
Dr. Barney stated that appellant attributed her left wrist condition to driving a forklift or
mule in the performance of her job duties. He diagnosed bilateral carpal tunnel syndrome based
on a physical examination including positive Tinel’s sign and Phalen’s test. Dr. Barney stated:
“In my medical opinion the injuries described above and the results of the
physician exam[ination] as revealed above are due to [appellant’s] job as a mail
handler at the [employing establishment] distribution plant. The job of operating
the mule, operating the forklift has caused her to put extreme pressure on her left
wrist due to having pain in the right wrist and right shoulder. This pain had now
caused the carpal tunnel strap to be painful and has resulted in carpal tunnel
syndrome.”
Dr. Barney provided an opinion that there was a causal relationship between appellant’s
work duties including driving tow mules and forklifts. While he offered some medical
reasoning, he did not explain how the repeated trauma from appellant’s employment activities
resulted in her diagnosed carpal tunnel syndrome. Dr. Barney did not explain the process by
which her duties would cause or contribute to her diagnosed carpal tunnel syndrome. Due to the
lack of detailed medical reasoning, his report is insufficient to meet appellant’s burden of proof
in establishing carpal tunnel syndrome.
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 established diagnosed conditions and implicated work
factors as causing or contributing to her medical conditions. However, the Board finds that she
failed to submit the necessary medical opinion evidence to establish a causal relationship
between her diagnosed medical conditions and her job duties.

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ORDER
IT IS HEREBY ORDERED THAT the November 28, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: December 5, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.D., Appellant
and
DEPARTMENT OF AGRICULTURE,
AGRICULTURAL MARKETING SERVICE,
Bronx, NY, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0890
Issued: November 8, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On March 21, 2019 appellant, through counsel, filed a timely appeal from a February 25,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant

1

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

The Board notes that following the February 25, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board will only consider the nonmerit issue.4
ISSUES
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.5 The facts and circumstances of the case
as set forth in the Board’s prior order are incorporated herein by reference. The relevant facts are
as follows.
On May 30, 2013 appellant, then a 38-year-old agricultural commodity grader, injured his
right shoulder when he slipped while carrying a carton of grapes on his right shoulder. OWCP
adjudicated this claim under File No. xxxxxx474 and accepted right shoulder sprain.
Appellant filed a claim for recurrence (Form CA-2a) on January 2, 2014. By decision
dated August 11, 2015, OWCP determined that the claimed recurrence was actually a new
occupational disease claim and assigned the new claim File No. xxxxxx795.
OWCP subsequently received an October 26, 2015 report from Dr. Arnold Wilson, a
Board-certified orthopedic surgeon, who had performed authorized right shoulder arthroscopic
surgery for diagnoses of right shoulder impingement and partial rotator cuff tear.
Under OWCP File No. xxxxxx795, by decision dated January 8, 2016, the occupational
disease claim was denied because fact of injury had not been established. On January 28, 2016
appellant, through counsel, filed a request for an oral hearing. The hearing was held on
September 7, 2016. By decision dated November 2, 2016, an OWCP hearing representative
affirmed the denial of the claim, as modified to find that causal relationship had not been
established.
OWCP subsequently received an October 26, 2016 report, submitted to File No.
xxxxxx795, from Dr. Wilson who described appellant’s preinjury job duties.
On December 21, 2016 appellant, through counsel, filed a request for reconsideration.
By decision dated February 8, 2017, OWCP denied modification of the prior decisions.

3

5 U.S.C. § 8101 et seq.

4

Counsel did not request that the Board review the January 25, 2019 merit decision. See 20 C.F.R. § 501.3. In the
appeal request and brief to the Board, counsel specifically limited his appeal to the nonmerit decision.
5

Order Remanding Case, Docket No. 17-0988 (issued February 2, 2018).

2

Appellant, through counsel, filed an appeal with the Board from the November 2, 2016 and
February 8, 2017 decisions. By order dated February 2, 2018, the Board remanded the case to
OWCP for it to combine File No. xxxxxx474 and File No. xxxxxx795, and issue a de novo
decision.6
OWCP administratively combined the files on February 20, 2018.
On February 23, 2018 OWCP referred appellant to Dr. Andrew Farber, an osteopath who
practices orthopedic surgery, for a second opinion evaluation. In a report dated March 12, 2018,
Dr. Farber described his review of the medical record and provided physical examination findings.
He diagnosed right shoulder sprain, impingement syndrome, and partial thickness rotator cuff tear,
noting symptoms of ongoing pain, alleged weakness, and loss of motion. Dr. Farber noted
magnetic resonance imaging (MRI) scan findings consistent with these diagnoses. He opined that
appellant’s right shoulder injury had resolved, that he needed no further treatment, and that he
could return to full duty as an agricultural commodity grader without restrictions.
By decision dated March 23, 2018, issued under File No. xxxxxx795, OWCP found that
appellant’s occupational disease claim was accepted for impingement syndrome of the right
shoulder, right shoulder sprain, and partial right rotator cuff tear, resolved by March 12, 2018. The
decision was based upon the March 12, 2018 second opinion report of Dr. Farber.
On May 26, 2018 appellant, through counsel, requested reconsideration. Counsel
maintained that additional cervical conditions should be accepted and that Dr. Farber’s opinion
was of insufficient rationale to establish that appellant’s shoulder conditions had resolved.
Appellant filed claims for compensation (Form CA-7) for the period beginning
December 12, 2013 and continuing.
By letter dated December 21, 2018, OWCP asked Dr. Farber to advise as to whether
additional conditions should be accepted.
In a report dated January 4, 2019, Dr. Farber advised that appellant’s right shoulder
conditions were caused by the May 30, 2013 employment injury (OWCP File No. xxxxxx474).
He opined that additional conditions should not be accepted.
By decision dated January 25, 2019, OWCP vacated the March 23, 2018 decision, in part,
as modification was warranted. However, the decision was also affirmed in part as the evidence
of record was insufficient to overturn the entire decision. It modified the prior decision to reflect
that appellant’s shoulder conditions should be accepted under File No. xxxxxx474. OWCP further
found, however, that the evidence continued to support that appellant’s right shoulder conditions
had resolved effective March 12, 2018.

6

Supra note 4.

3

On February 12, 2019 appellant, through counsel, requested reconsideration, reiterating
that cervical conditions should be accepted, and that Dr. Farber’s report was insufficient to
establish that appellant could return to work without restrictions.
By decision dated February 25, 2019, OWCP denied appellant’s reconsideration request.
It found that the evidence did not contain a relevant legal argument not previously considered.
LEGAL PRECEDENT -- ISSUE 1
Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a
matter of right.7 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.8 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.9
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.10 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
With his February 12, 2019 request for reconsideration, counsel merely reiterated that
cervical conditions should be accepted, and that Dr. Farber’s report was insufficient to establish
that appellant could return to work without restrictions. The Board finds these assertions are
duplicative of arguments counsel has made in the past. The Board has held that the submission of
evidence or argument which repeats or duplicates evidence or argument already in the case record
does not constitute a basis for reopening a case.12 Consequently, appellant was not entitled to a
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.607.

9

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). Chapter 2.1602.4b provides that
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).
10

20 C.F.R. § 10.606(b)(3); see J.B., Docket No. 18-1531 (issued April 11, 2019).

11

20 C.F.R. § 10.608.

12

J.B., supra note 10.

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review of the merits based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).
Furthermore, appellant submitted no new evidence in support of his request for
reconsideration.13 Thus, appellant is also not entitled to a review of the merits of his claim based
on the third above-noted requirement under section 10.606(b)(3).14
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.15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

13

Id.

14

T.M., Docket No. 19-0535 (issued July 25, 2019).

15

See S.M., Docket No. 18-0673 (issued January 25, 2019); A.R., Docket No. 16-1416 (issued April 10, 2017);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when an application for reconsideration does not
meet at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

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ORDER
IT IS HEREBY ORDERED THAT the February 25, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 8, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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Appearances:
Joyce Fuller, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1589
Issued: November 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 8, 2014 appellant filed a timely appeal of a June 4, 2014 decision of the Office of
Workers’ Compensation Programs (OWCP) finding that his request for reconsideration was
untimely filed and failed to show clear evidence of error. 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 June 4, 2014 decision. The Board does not have jurisdiction over a decision on the merits of
the claim.2
ISSUE
The issue is whether OWCP properly found the application for reconsideration was
untimely filed and failed to show clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

The last merit decision was an OWCP decision dated April 22, 2002. For OWCP decisions issued prior to
November 19, 2008, a claimant had one year to file an appeal. See 20 C.F.R. § 501.3(d)(2).

FACTUAL HISTORY
The case has previously been before the Board. Appellant filed a traumatic injury claim
alleging that he sustained shoulder injury, clavicle strain, and right rotator cuff injury on
August 9, 2000 when a coworker tapped him on the shoulder, causing him to “go to his knees.”3
By merit decisions dated November 22, 2001 and April 22, 2002, OWCP denied the claim on the
grounds that the medical evidence did not establish that the diagnosed conditions were causally
related to the alleged incident.
In a decision dated December 21 2005, the Board affirmed an August 27, 2004 OWCP
decision finding that appellant’s request for reconsideration was untimely filed and failed to
show clear evidence of error.4 In a decision dated August 17, 2007, the Board dismissed the
appeal as there was no final decision issued within one year of the filing of the appeal.5 By
decision dated June 20, 2008, the Board affirmed an October 12, 2007 OWCP decision, holding
that appellant’s application for reconsideration was untimely and did not show clear evidence of
error.6 In a decision dated December 17, 2009, the Board affirmed its February 13, 2009
decision finding his application for reconsideration was untimely and failed to show clear
evidence of error.7 In a decision dated August 16, 2011, the Board affirmed an August 3, 2010
OWCP decision, finding appellant’s application for reconsideration was untimely and failed to
show clear evidence of error.8 By decision dated February 5, 2013, the Board affirmed a
June 21, 2012 OWCP decision, again finding appellant’s reconsideration request was untimely
and failed to show clear evidence of error.9 The history of the case as contained in the Board’s
prior decisions and orders is incorporated herein by reference.
By letter dated August 21, 2013, appellant, through his representative, requested
reconsideration. He asserted that the request was timely, and provided a history of the case.
Appellant argued that the evidence was sufficient to establish the claim and show clear evidence
of error. By letters dated December 31, 2013 and March 26, 2014 to OWCP, he noted that
OWCP had not acted on her request for reconsideration.

3

The record indicates that appellant had a May 3, 2000 claim accepted for right shoulder strain and a
September 18, 1991 claim accepted for left elbow lateral epicondylitis, left shoulder adhesive capsulitis, left brachial
plexus lesions, left tenosynovitis of the hand/wrist and sprain/strains of the right shoulder, upper arm and
acromioclavicular joint. The September 18, 1991 claim has been established as a master file with both the
May 3, 2000 and the current August 9, 2000 claim on appeal as subsidiary files.
4

Docket No. 04-2283 (issued December 21, 2005).

5

Docket No. 07-978 (issued August 17, 2007).

6

Docket No. 08-271 (issued June 20, 2008).

7

Docket No. 09-1027 (issued December 17, 2009).

8

Docket No. 10-2378 (issued August 16, 2011).

9

Docket No. 12-1749 (issued February 5, 2013).

2

By decision dated June 4, 2014, OWCP found the application for reconsideration was
untimely. It denied the request without merit review on the grounds appellant had not shown
clear evidence of error.
LEGAL PRECEDENT
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.10
The employee shall exercise this right through a request to the district office. The request, along
with the supporting statements and evidence, is called the “application for reconsideration.”11
According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP
decision as a matter of right.12 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.13 OWCP, through
regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
§ 8128(a) of FECA.14 As one such limitation, 20 C.F.R. § 10.607 provides that an application
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.15 OWCP will consider an untimely application only if the application
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The
evidence must be positive, precise and explicit and must manifest on its face that OWCP
committed an error.16
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.17 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to

10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.605.

12

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

13

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
14

5 U.S.C. §§ 8101-8193.

15

20 C.F.R. § 10.607. OWCP procedures state that for its decisions issued between June 1, 1987 and
August 28, 2011, the request must be mailed within one year of the decision. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(e) (October 2011).
16

D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005).

17

Annie L. Billingsley, 50 ECAB 210 (1998).

3

establish clear evidence of error.18 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.19 A determination of whether the claimant has
established clear evidence of error entails a limited review of how the evidence submitted with
the reconsideration request bears on the evidence previously of record.20
ANALYSIS
In the present case, appellant submitted an application for reconsideration dated
August 21, 2013 and received by OWCP on August 27, 2013. Although he refers to the
June 21, 2012 OWCP decision, the appeal rights to that decision were limited to an appeal to the
Board. Appellant filed an appeal and the Board reviewed the June 21, 2012 decision in its
February 5, 2013 decision. However the Board’s February 5, 2013 decision was not a review of
the merits of the claim. The right to request reconsideration within one year accompanies a
decision on the merits of the claim.21 For the purposes of timeliness, the relevant decision is the
last decision on the merits of the claim which is dated April 22, 2002, denying the claim for an
August 9, 2000 injury. Appellant stated that the reconsideration request was timely without
discussing any relevant evidence. Since the application for reconsideration was dated more than
one year after the last merit decision, it is untimely.22
As an untimely application for reconsideration was filed, appellant must establish clear
evidence of error. The history of the case documents that the Board has considered his
arguments with respect to the evidence of record in prior appeals. For example, the Board noted
in its December 17, 2009 decision that appellant had submitted a detailed history of the case and
argued that OWCP did not properly consider the evidence of record. As the Board has explained
in its prior decisions, the evidence of record does not establish clear evidence of error in this
case. Appellant may submit new evidence which would, as noted above, be subject to a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record. He did not submit new evidence in this case. Appellant reiterated his prior
arguments that he believed the evidence showed clear evidence of error. The Board’s prior
decision is therefore res judicata.23
On appeal, appellant repeatedly argues that the request for reconsideration was timely.
For the reasons noted, the request dated August 21, 2013 was untimely with respect to the
April 22, 2002 merit decision. Appellant also reiterates the argument that there was clear
evidence of error by OWCP. The Board has addressed these arguments on prior appeals. The
application for reconsideration was untimely and did not show clear evidence of error. OWCP
therefore properly denied merit review of the case.
18

Jimmy L. Day, 48 ECAB 652 (1997).

19

Id.

20

K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010).

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a) (October 2011).

22

As noted above, for decisions prior to August 29, 2011, the date of mailing is used to determine timeliness.

23

See R.M., Docket No. 14-1213 (issued October 15, 2014).

4

CONCLUSION
The Board finds that the August 21, 2013 application for reconsideration was untimely
and failed to show clear evidence by OWCP.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 4, 2014 is affirmed.
Issued: November 24, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0593
Issued: February 24, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 26, 2018 appellant, through counsel, filed a timely appeal from a November 14,
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 to consider the merits of this case.3

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.

3
The Board notes that following the November 14, 2017 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
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish total disability for
the period beginning January 17, 2017 causally related to his accepted employment-related
condition of left hip sprain.
FACTUAL HISTORY
On October 4, 2016 appellant, then a 58-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed pain in his left hip and groin area due to factors of
his federal employment including repetitive standing, turning, mounting, and dismounting his mail
truck.4 He noted that he first became aware of his condition and first realized it was causally
related to factors of his federal employment on June 23, 2016. OWCP accepted appellant’s claim
for left hip sprain, but denied additional claims for left thigh, groin, and left knee injury. Appellant
stopped work on June 18, 2016 and worked intermittently thereafter.
A magnetic resonance imaging (MRI) scan of the left hip dated September 12, 2016
revealed: severe left hip osteoarthrosis, with extensive degenerative left hip acetabular labral
tearing superiorly, superolaterally, and laterally; moderate right hip osteoarthrosis; acquired
femoroacetabular impingement bilaterally; moderate degenerative changes of the pubis
symphysis; and mild tendinosis of the hamstring tendons bilaterally.
Appellant was treated by Dr. Christopher P. DeCarlo, a Board-certified physiatrist, on
September 29, 2016, for left hip pain radiating to the groin. He reported working as a mail carrier
for 32 years performing repetitive duties. Dr. DeCarlo diagnosed severe left hip osteoarthrosis,
acetabular labral tearing at the left hip, moderate right hip osteoarthritis, degenerative changes at
pubic symphysis, and bilateral hamstring tendinosis. He opined that appellant had developed a
cumulative trauma injury to his left hip which contributed to the severity of the degenerative
disease.5 Dr. DeCarlo returned him to limited-duty work on September 29, 2016 subject to
restrictions of: lifting intermittently up to 5 pounds; sitting and standing for 10 minutes; no
walking climbing, kneeling, bending/stooping, twisting, or pushing/pulling; simple grasping as
required; fine manipulation/keyboarding as required; no reaching above shoulder level; no driving
for more than 10 minutes; and no overtime. He noted that he must wear a back brace while
working.
On November 21, 2016 the employing establishment offered appellant a modified position
as a lobby director for 3.5 hours per day effective November 22, 2016. The physical requirements
included lifting up to 5 pounds intermittently over 3.5 hours, standing and sitting one hour each,

4
Appellant has filed 12 injury claims with OWCP. The current claim has been administratively combined with
OWCP File No. xxxxxx852 which has been accepted for the conditions of intervertebral disc degeneration of the
lumbar spine and plantar fascial fibromatosis. By decision dated July 11, 2017, OWCP denied wage-loss
compensation for greater than 4.5 hours per day for the period November 25, 2016 through January 16, 2017 as 3.5
hours of medically-suitable work per day was made available.
5

In a report dated October 31, 2016, Dr. DeCarlo indicated that x-rays of appellant’s left hip showed bone on bone
severe left hip osteoarthrosis. He opined that his medical condition was a direct result of performing his letter carrier
duties.

2

walking 30 minutes per hour intermittently, and no driving a vehicle. Appellant accepted the
position.
In a report dated December 15, 2016, Dr. DeCarlo diagnosed severe left hip osteoarthrosis,
acetabular labral tearing at the left hip, degenerative changes at the pubic symphysis, and left
hamstring tendinosis. In a duty status report (Form CA-17) of even date, he continued appellant’s
September 29, 2016 work restrictions.
On January 24, 2017 appellant filed a wage-loss compensation claim (Form CA-7) for
leave without pay (LWOP) for partial disability for the period January 17 to 20, 2017. In an
attached time analysis form (Form CA-7a), he indicated that there was no work available from the
employing establishment. Appellant’s supervisor indicated that three and half hours of work was
available each day within appellant’s restrictions, but he had stopped coming to work. Appellant
then worked approximately 30 minutes per day through April 5, 2017.
In support of his claim appellant submitted a December 29, 2016 report by Dr. Charles
Herring, a Board-certified orthopedist. In his report Dr. Herring diagnosed severe left hip
osteoarthrosis, moderate right hip osteoarthrosis, and femoroacetabular impingement bilaterally.
He opined that appellant’s job duties as a letter carrier had accelerated and aggravated the
development of osteoarthritis in the hip. Dr. Herring continued appellant on modified duty.
In a Form CA-17 dated January 16, 2017, Dr. DeCarlo opined that constant walking,
standing, and mounting, and dismounting his truck accelerated and aggravated the development of
appellant’s left hip osteoarthritis. He diagnosed severe left hip osteoarthrosis, acetabular labral
tearing at the left hip, degenerative changes at pubic symphysis, and left hamstring tendinosis. In
a Form CA-17 dated February 14, 2017, Dr. DeCarlo diagnosed a lumbar spine injury and returned
appellant to work with restrictions of five pounds intermittent weight limit; sitting and standing
for 1 hour per day; walking up to 30 minutes per day; no climbing, kneeling, bending, stooping,
twisting, pulling or pushing, or reaching over shoulder; simple grasping as required, fine
manipulation as required; back brace required; no overtime; and no driving at work.
In a development letter dated February 14, 2017, OWCP requested that appellant submit
additional information to support his claim for intermittent wage-loss compensation, including
medical evidence establishing that his disability was due to the accepted condition for the period
claimed. It specifically indicated that the employing establishment noted that three and a half
hours of work remained available to him per day. OWCP afforded appellant 30 days to respond.
On February 16, 2017 appellant was treated by Dr. Judith Kraft, a Board-certified family
practitioner, for a left hip injury. She continued Dr. DeCarlo’s February 14, 2017 work
restrictions.
In a February 17, 2017 statement, appellant indicated on January 17, 2017 that he informed
his supervisor, E.C., that the new claim for his hip would over-ride the previous claim for his back,
OWCP File No. xxxxxx852, and that his work restrictions would change. He advised that pursuant
to the new restrictions he could not work the available three and half hours per day. Appellant
reported that he did not get a modified-job offer from E.C., but on February 1, 2017 the acting
postmaster instructed him to report to the North Hollywood location for 25 minutes per day, five
days per week. He indicated that he received a verbal order, but had not received a modified-job

3

offer. Appellant asserted that he had continued to work 25 minutes per day and was entitled to
7.75 hours of compensation per day for five days per week.
Appellant filed additional wage-loss compensation claims (Form CA-7) for LWOP for
partial disability for the period January 21 through March 3, 2017. In an attached Form CA-7a,
he indicated that he worked 25 minutes per day and requested LWOP for 7.75 hours per day. On
an OWCP time loss logging sheet, appellant’s supervisor indicated that three and a half hours of
work was available within his restrictions each day.
In a report dated February 16, 2017, Dr. Kraft treated appellant for left hip pain and
weakness in the left lower extremity, noting that he was awaiting determination on whether his
condition of osteoarthritis would be accepted. She noted that appellant’s restrictions permitted
him to work approximately 25 minutes per day. Dr. Kraft noted findings on examination and
diagnosed severe left hip osteoarthrosis, acetabular labral tearing at the left hip, degenerative
changes at pubic symphysis, and left hamstring tendinosis. She continued his prior work
restrictions.
In a development letter dated March 23, 2017, OWCP requested that appellant submit
additional information to support his claim for intermittent compensation for the period
January 17, 2017 and continuing. It noted that he had stopped work on January 17, 2017 and
returned to a partial workday on February 4, 2017. OWCP advised appellant that the medical
evidence did not substantiate that the disability was caused by the work injury because he was
provided with work restrictions for conditions that have not been accepted by OWCP as work
related. It requested that he submit a narrative report from his physician as to whether his
restrictions were due to the accepted sprain and not the more severe degenerative conditions which
were not accepted.
Appellant filed additional wage-loss compensation claims (Form CA-7) for LWOP for
partial disability for the additional period from March 4 through 30, 2017.6 In an attached Form
CA-7a, he indicated that he worked 25 minutes per day and requested LWOP for 7.75 hours per
day. On an OWCP time loss logging sheet, appellant’s supervisor indicated that three and a half
hours of work within his restrictions was available each day.
In a March 15, 2017 report, Dr. DeCarlo requested that the acceptance of appellant’s claim
be expanded to include severe left hip osteoarthrosis, acetabular labral tearing at the left hip,
degenerative changes at pubic symphysis, and left hamstring tendinosis. In a Form CA-17 dated
April 10, 2017, he provided restrictions of: use of a walker for ambulation while at work; 5 pounds
intermittent lifting; sitting and standing for 10 minutes; walking up to 5 minutes per day; no
climbing, kneeling, bending, stooping, twisting, pulling, or pushing; simple grasping and fine
manipulation as required; no reaching above the shoulders; and no driving at work. In a report
dated April 10, 2017, Dr. DeCarlo noted appellant’s condition was deteriorating and he was having
trouble ambulating and again recommended the use of a walker.
On March 29 and April 13, 2017 appellant, through counsel, requested that the acceptance
of his claim be expanded to include the additional conditions of severe left hip osteoarthrosis,
6

On March 16, 2017 Dr. Rody A. Yoshinaka, a Board-certified gastroenterologist, noted that appellant had a
personal medical procedure and would be excused from work for one day.

4

acetabular labral tearing at the left hip, degenerative changes at pubic symphysis, and left
hamstring tendinosis as work related.
Appellant filed additional wage-loss compensation claims (Form CA-7) for LWOP for
partial disability for the period April 3 through 5, 2017.
By decision dated May 2, 2017, OWCP denied appellant’s wage-loss compensation claim
for partial disability for the period beginning January 17, 2017. On May 8, 2017 appellant,
through counsel, requested an oral hearing before an OWCP hearing representative.
Appellant submitted reports from Dr. Joseph Pham, a Board-certified anesthesiologist,
dated June 20, 2012 to November 24, 2014, who treated him for chronic low back and bilateral leg
pain. He was treated by Dr. Michael Chen, a Board-certified internist, from May 13, 2013 to
February 21, 2014, for left hip pain gradually worsening since a fall five to six years prior. Reports
from Dr. James T. Tran, a Board-certified neurosurgeon, dated May 13, 2013 to January 20, 2017,
noted treating appellant in follow-up for back pain and recommended a lumbar laminotomy and
foraminotomies.
In a report dated May 5, 2017, Dr. DeCarlo requested that appellant’s claim be upgraded
and that appellant be returned to work subject to the restrictions noted in an April 24, 2017
functional capacity evaluation (FCE).7 In reports dated May 10 and June 5, 2017, he noted that
appellant had reported difficulty ambulating and he recommended use of a walker. Dr. DeCarlo
maintained appellant’s work restrictions and noted that he was basing his work restrictions on an
FCE and a diagnoses of degenerative hip disease and not just a hip sprain. In May 10 and June 5,
2017 Form CA-17 reports, he restricted appellant to work for six hours per day, pursuant to the
restrictions of an FCE performed April 24, 2017. Additional restrictions included: use of a walker
for ambulation at all times; 23 pounds intermittent lifting; sitting for eight hours per day; standing
and walking for one hour per day; no climbing, squatting, or kneeling; bending/stooping and
twisting for one hour per day; pulling/pushing limited to 55 pounds for one hour per day; simple
grasping, fine manipulation, and reaching above the shoulders for eight hours per day; and driving
one hour per day at work and one hour per day to and from work. In a report dated June 16, 2017,
Dr. DeCarlo diagnosed severe left hip osteoarthrosis, acetabular labral tearing of the left hip,
degenerative changes at the pubic symphysis, and left hamstring tendinosis. He opined that
appellant required a total left hip arthroplasty due to degenerative disease in his left hip and could
not be expected to return to full or part-time work.
On May 8, 2017 OWCP referred appellant to Dr. Kevin F. Hanley, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In his report dated June 29, 2017, Dr. Hanley
discussed appellant’s work history and noted that appellant walked with a Trendelenburg limp and
had significant loss of range of motion of the left hip consistent with a degenerative disease of the
hip joint. He diagnosed advanced degenerative disc disease of the lumbar spine and advanced
osteoarthritis of the left hip. Dr. Hanley noted that appellant did not have a left hip sprain, rather,
he had a preexisting and progressive left hip osteoarthritis advancing for a long period, since at
least 2013, with findings of limitation in range of motion, atrophy of the leg, and MRI scan
7
An April 24, 2017 FCE demonstrated that appellant could return to work six hours per day; sitting, reaching, and
reaching above the shoulder for eight hours per day; walking, standing, twisting, bending/stooping, and operating a
motor vehicle limited to one hour; pushing and pulling limited to one hour at 55 pounds; lifting limited to 23 pounds
for one hour; and no squatting, kneeling, or climbing.

5

evidence of degenerative disease. He opined that the left hip osteoarthritis was not a consequence
of a specific traumatic injury and was unrelated to any type of cumulative exposure.8 Dr. Hanley
indicated that prolonged standing and walking would aggravate a degenerative problem, but this
would be temporary and was no longer present. He advised that appellant could not work as a
letter carrier without restrictions due to his nonindustrial left hip arthritis. In a work capacity
evaluation report (Form OWCP-5c), Dr. Hanley noted that he could return to work full time in a
sedentary position, walking and standing limited to one hour, and with pushing, pulling, and lifting
limited to 10 pounds for one hour.
Appellant filed additional wage-loss compensation claims (Form CA-7) for LWOP for
partial disability for the period April 20 through June 7, 2017. In an attached time analysis form
(Form CA-7a), he indicated that he was requesting 2 hours of LWOP on April 20 and May 23, and
2.25 hours of LWOP from April 21 through June 7, 2017 to attend water therapy. The employing
establishment noted that work had been made available within appellant’s work restrictions.
In a report dated July 6, 2017, Dr. DeCarlo diagnosed severe left hip osteoarthrosis,
acetabular labral tearing at the left hip, degenerative changes at the pubic symphysis, and left
hamstring tendinosis. In Form CA-17 reports dated July 6 and August 10 2017, he continued
appellant’s work restrictions and on August 10, 2017 he released appellant from his care.9
In a development letter dated August 10, 2017, OWCP requested that appellant submit
additional information to support his claim for intermittent compensation for the period April 20
through June 7, 2017.
On October 4, 2017 a telephonic hearing was held before a hearing representative with
OWCP’s Branch of Hearings and Review.
On October 10, 2017 appellant filed additional wage-loss compensation claims (Form
CA-7) for LWOP for partial disability for the period September 29, 2016 through June 5, 2017.
By decision dated November 14, 2017, an OWCP hearing representative affirmed OWCP’s
May 2, 2017 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.10 For each period of disability
8

On August 25, 2017 OWCP found that there was a conflict of medical opinion with regard to causation and
disability between Dr. DeCarlo, appellant’s treating physician, who indicated that appellant had severe left hip
osteoarthrosis, acetabular labral tearing, degenerative changes of the pubic symphysis, left hamstring tendinosis,
moderate right hip osteoarthrosis and femoroacetabular impingement bilaterally causally related to his employment
duties, and Dr. Hanley, an OWCP referral physician, who determined that appellant’s left hip condition was
preexisting, naturally progressing condition not related to work factors. There is no final adverse decision on the issue
of claim expansion. Thus, it is not before the Board in the current appeal and will therefore not be addressed. See 20
C.F.R. §§ 501.2(c) and 501.3.
9

Appellant attended physical therapy treatment from April 20 to August 1, 2017 and submitted accompanying
notes from physical therapists.
10

F.H., Docket No. 18-0160 (issued August 23, 2019); T.A., Docket No. 18-0431 (issued November 7, 2018).

6

claimed, the employee has the burden of proof to establish that he or she was disabled for work as
a result of the accepted employment injury.11 Whether a particular injury causes an employee to
become disabled for work, and the duration of that disability, are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.12
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.13 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn wages.
An employee who has a physical impairment causally related to his or her federal employment,
but who nonetheless has the capacity to earn the wages that he or she was receiving at the time of
injury, has no disability and is not entitled to compensation for loss of wage-earning capacity.14
When, however, the medical evidence establishes that the residuals or sequelae of an employment
injury are such that, from a medical standpoint, they prevent the employee from continuing in his
or her employment, he or she is entitled to compensation for any loss of wages.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish total disability
for the period beginning January 17, 2017 causally related to his accepted employment-related
condition of left hip sprain.
In support of his wage-loss compensation claim, appellant submitted a series of narrative
medical reports from his attending physician, Dr. DeCarlo. In reports dated September 29,
October 31, and December 15, 2016, Dr. DeCarlo diagnosed multiple conditions including severe
left hip osteoarthrosis, acetabular labral tearing at the left hip, moderate right hip osteoarthritis,
degenerative changes at pubic symphysis, and bilateral hamstring tendinosis. Based upon these
diagnoses he assigned work restrictions which limited appellant’s ability to return to work.
Similarly, in reports dated March 15, May 5, June 16, and July 6, 2017, Dr. DeCarlo noted
restrictions and formally requested that the accepted conditions in the claim be expanded to include
severe left hip osteoarthrosis, acetabular labral tearing at the left hip, degenerative changes at pubic
symphysis, and left hamstring tendinosis. However, the only accepted condition in this claim at
the time of the November 14, 2017 decision was left hip strain. The additional diagnoses provided
by Dr. DeCarlo are not accepted conditions. The Board has held that to establish a period of
disability the medical evidence must provide a discussion of how objective medical findings,
attributable to the accepted conditions, support a finding that appellant could not perform his job
duties.16 These reports are therefore insufficient to establish appellant’s claim.
11

B.L., Docket No. 18-1786 (issued April 17, 2019); D.R., Docket No. 18-0232 (issued October 2, 2018).

12

Id.

13

M.B., Docket No. 19-1049 (issued October 21, 2019); B.K., Docket No. 18-0386 (issued September 14, 2018);
20 C.F.R. § 10.5(f).
14

See B.A., Docket No. 17-1471 (issued July 27, 2018).

15

Supra note 7.

16

See S.G., Docket No. 18-0209 (issued October 4, 2018); R.A., Docket No. 17-1472 (issued December 6, 2017);
Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

7

In a series of Form CA-17 reports, including those dated December 15, 2015 and
January 16, February 14, April 10, May 10, June 5, July 6, and August 10, 2017, Dr. DeCarlo
provided detailed work restrictions for appellant’s diagnosed conditions. However, these
restrictions are based not only upon the accepted condition of left hip sprain, but also include
diagnoses of severe left hip osteoarthrosis, acetabular labral tearing at the left hip, moderate right
hip osteoarthritis, degenerative changes at pubic symphysis, and bilateral hamstring tendinosis.17
The Form CA-17 reports also contain no narrative by Dr. DeCarlo explaining how or why the
assigned restrictions are causally related to the accepted condition. The Board has held that a
medical opinion, not fortified by medical rationale explaining how or why a period of disability is
due to the accepted conditions in the claim, is of little probative value.18 Therefore these reports
are insufficient to establish appellant’s claim.
In a report dated December 29, 2016, Dr. Herring diagnosed severe left hip osteoarthrosis,
moderate right hip osteoarthrosis, and femoroacetabular impingement bilaterally. He opined that
appellant’s job restricted his ability to work consistent with Dr. DeCarlo’s December 29, 2016
Form CA-17 report. Likewise, the February 16, 2017 report by Dr. Kraft notes diagnosed
conditions, including osteoarthritis, and adopts work restrictions by Dr. DeCarlo. As the reports
by Dr. Herring and Dr. Kraft fail to establish a period of disability attributable to the accepted
conditions in the claim, their reports are insufficient to establish entitlement to wage-loss
compensation benefits.19
In a report dated June 29, 2017, Dr. Hanley, an OWCP referral physician, diagnosed
advanced degenerative disc disease of the lumbar spine and advanced osteoarthritis of the left hip.
He noted that appellant did not have a left hip sprain, rather, he had preexisting progressive left
hip osteoarthritis advancing over a long period as evidenced by the MRI scan. Dr. Hanley opined
that the left hip osteoarthritis was not the consequence of specific traumatic injury and was
unrelated to any type of cumulative exposure. He indicated that work activities would aggravate
his degenerative problem, but this would be temporary. Dr. Hanley indicated that appellant had a
primary problem of degenerative arthritis of the hip, a naturally occurring disease of life, unrelated
to work exposure. He advised that appellant could not work as a letter carrier without restrictions
due to his nonindustrial left hip arthritis. In a Form OWCP-5c, Dr. Hanley noted appellant’s
restrictions due to his personal medical conditions. As these reports by Dr. Hanley negate
disability during the claimed period, they are insufficient to establish appellant’s claim for wageloss compensation.20
Appellant submitted reports from Dr. Pham, dated June 20, 2012 to November 24, 2014,
Dr. Chen, from May 13, 2013 to February 21, 2014, and Dr. Tran dated May 13, 2013 which do
not provide an opinion on whether appellant sustained lost time from work due to his left knee
sprain. The Board has held that medical evidence that does not offer an opinion regarding the

17

Id.

18

See D.Q., Docket No. 17-1220 (issued May 18, 2018); George Randolph Taylor, 6 ECAB 986, 988 (1954).

19

Supra note 16.

20

M.J., Docket No. 19-1287 (issued January 13, 2020).

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cause of an employee’s disability is of no probative value on the issue of causal relationship.21
Therefore, these medical reports are insufficient to establish appellant’s claim.
Appellant submitted a left hip MRI scan. The Board has held, however, that diagnostic
test reports lack probative value as they fail to provide an opinion on causal relationship the
accepted conditions and period of disability.22
Appellant submitted physical therapy treatment reports from April 20 to August 1, 2017
and an FCE dated April 24, 2017. These reports were completed by physical therapists. The Board
has held that treatment notes signed by a physical therapist23 are not considered medical evidence
as these providers are not considered “physician[s]” as defined under FECA.24 Therefore these
notes lack probative value and are sufficient to establish appellant’s wage-loss compensation
claim.
On appeal appellant asserts that he submitted sufficient medical evidence supporting
disability for the period claimed. The Board finds that he failed to submit rationalized medical
evidence establishing a causal relationship between the specific period of claimed disability and
the accepted conditions. Consequently, appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish total disability
for the period beginning January 17, 2017 causally related to his accepted employment-related
condition of left hip sprain.

21

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

22

See J.M., Docket No. 17-1688 (issued December 13, 2018).

23

V.W., Docket No. 16-1444 (issued March 14, 2017).

24
See David P. Sawchuk, 57 ECAB 316 (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).

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ORDER
IT IS HEREBY ORDERED THAT the November 14, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 24, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
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Docket No. 18-0055
Issued: March 8, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On October 9, 2017 appellant, through counsel, filed a timely appeal from a September 13,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The appeal
was docketed as No. 18-0055.
On April 19, 2016 appellant, then a 47-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 18, 2016 his right knee became swollen when a dog attempted
to attack him and he protected himself while in the performance of duty. He stopped work on
April 19, 2016. By decision dated May 12, 2016, OWCP accepted appellant’s claim for right knee
sprain. It paid continuation of pay benefits and wage-loss compensation benefits on the
supplemental rolls. On December 2, 2016 OWCP expanded appellant’s claim to include right
knee medial meniscus tear and right knee osteoarthritis.

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.

On September 8, 2016 and February 21, 2017 appellant underwent right knee arthroscopic
surgery. He continued to receive medical treatment.
In a July 14, 2017 report, Dr. Alois J. Binder, a Board-certified orthopedic surgeon, noted
appellant’s history of right knee pain and lateral and medial meniscus tears. He related that
appellant was currently four months post status right knee arthroscopy and still continued to have
moderate pain and buckling sensations while ambulating. Upon physical examination of
appellant’s right knee, Dr. Binder explained that because appellant had failed a long course of
conservative measures, he recommended right total knee arthroplasty.
On July 18, 2017 Dr. Binder formally requested authorization for total right knee
arthroplasty.
OWCP referred the request to Dr. Nathan Hammel, a Board-certified orthopedic surgeon
and OWCP district medical adviser. In an August 14, 2017 report, Dr. Hammel opined that the
proposed total right knee replacement surgery was not medically necessary to treat appellant’s
April 18, 2016 employment injury. Dr. Hammel explained that the medical evidence submitted
lacked historical elements, examination findings, and clear imaging findings to determine that the
request was medically necessary. He noted that the medical records had no discussion of
appellant’s functional limitations, recent weight bearing x-rays, or reporting of body mass index
to ensure reduction of risk of infection.
By letter dated August 16, 2017, OWCP informed appellant: “the request for right knee
total knee replacement is denied.” It explained that there was insufficient evidence of record to
establish that the proposed surgery was medically necessary to treat his accepted injury.2
On August 28, 2017 appellant, through counsel, requested a telephonic hearing before a
hearing representative from OWCP’s Branch of Hearings and Review. He submitted additional
reports by Dr. Binder regarding treatment for his right knee injury.
By decision dated September 13, 2017, an OWCP hearing representative denied
appellant’s request for a hearing before the Branch of Hearings and Review. He noted that there
was no final, adverse decision of record upon which an appeal could be made.
The Board has duly considered the matter and finds that this case is not in posture for
decision. In its August 16, 2017 letter, OWCP notified appellant that his physician’s request for
authorization of right knee surgery was denied. The Board finds that this correspondence apprised
appellant of an adverse action and constituted an appealable decision.3 It contained findings of
fact and a statement of reasons.4 The August 16, 2017 letter notified appellant that his request for
authorization was denied and indicated that the basis for the denial was explained in the August 14,
2017 district medical adviser’s report. As the August 16, 2017 letter was an appealable decision,
there was an adverse, final decision on the record upon which an appeal could be made, contrary
2

The August 16, 2017 correspondence did not include a notice of appeal rights or an appeal request form.

3

See C.M., Docket No. 16-1569 (issued May 3, 2017).

4

20 C.F.R. § 10.126.

2

to OWCP’s finding in its September 13, 2017 hearing representative decision. Because appellant’s
August 28, 2017 hearing request was timely filed within 30 days of the August 16, 2017 decision,
he was entitled to a hearing before a hearing representative from OWCP’s Branch of Hearings and
Review.5
The case shall be remanded to OWCP for proper consideration of appellant’s August 28,
2017 request for a telephonic hearing.
IT IS HEREBY ORDERED THAT the September 13, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further action consistent with this
decision of the Board.
Issued: March 8, 2019
Washington, DC

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

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

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

5

A claimant is entitled to a hearing or review of the written record as a matter of right only if the request is filed
within the requisite 30 days as determined by postmark or other carrier’s date marking and before the claimant has
requested reconsideration. 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

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