United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH Employer
__________________________________________

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

Docket No. 08-2035
Issued: February 24, 2009

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 July 17, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated December 21, 2007 finding that she had not established a
recurrence of disability and an April 15, 2008 nonmerit decision. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over both the merit and nonmerit issues of this
case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
sustained a recurrence of disability on December 6, 2005; and (2) whether the Office properly
refused to reopen appellant’s case for further consideration of the merits of her claim pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 25, 2005 appellant, then a 43-year-old mail handler, filed an occupational disease
claim and alleged that she developed bilateral avascular necrosis due to her accepted condition of

dermatitis. The Office accepted appellant’s claim for aggravated bilateral avascular necrosis of
the hips on October 6, 2006. Appellant worked four hours a day until her retirement on
December 5, 2005. She received compensation for partial disability from June 24, 2005 through
November 30, 2005.
Appellant filed a recurrence of disability claim alleging that on December 6, 2005 she
became disabled due to her accepted employment injuries. She submitted a note dated July 15,
2005 from Dr. Dirk T. Prius, a Board-certified orthopedic surgeon, indicating that appellant
could work 20 hours a week in the early hours only. On November 1, 2005 appellant completed
a request for accommodation form and asked to work from 2:00 to 6:00 p.m. In a letter dated
April 19, 2007, the Office requested additional factual and medical evidence from appellant.
The employing establishment responded to a request for information and stated that
appellant requested early hours for her limited-duty assignment and that the employing
establishment was unwilling to change her work schedule as requested. Appellant then elected
disability retirement. The employing establishment stated that had appellant not retired the
limited-duty assignment would still be available.
By decision dated June 25, 2007, the Office denied appellant’s claim for recurrence of
disability. It found that there was no medical evidence establishing a change in appellant’s
employment-related condition or that she stopped work due to a change in the nature and extent
of her light-duty job requirements.
Appellant requested an oral hearing on July 3, 2007. She testified at the oral hearing on
November 5, 2007 that she worked from 2:00 to 6:00 p.m. until her retirement. By decision
dated December 21, 2007, the hearing representative affirmed the Office’s June 25, 2007
decision, finding that appellant had not met her burden of proof in establishing a recurrence of
disability.
In a letter dated February 28, 2008, appellant requested reconsideration, contending that
the employing establishment improperly interpreted and weighed medical evidence. She
submitted documentation regarding her Family Medical Leave Act (FMLA) benefits. By
decision dated April 15, 2008, the Office declined to reopen appellant’s claim for consideration
of the merits.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment which
caused the illness. The term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical

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limitations.1 When an employee who is disabled from the job held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that he or she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the limited-duty job requirements.2
ANALYSIS -- ISSUE 1
Appellant worked in a light-duty position four hours a day from 2:00 to 6:00 p.m. from
June 24, 2005 through her retirement on December 5, 2005. She then stopped work and received
benefits from the Office of Personnel Management (OPM). Appellant has failed to submit any
medical evidence in support of her claim that she experienced a change in the nature and extent
of her accepted employment-related condition on or after December 5, 2005. Dr. Prius’ note that
appellant should work only early hours was conclusory with no supporting rationale for the
change. Therefore appellant has failed to establish this aspect of her recurrence claim.
Further, appellant has alleged that the employing establishment attempted to change her
light-duty job requirements by requiring her to report to work for the second half of her shift.
The employing establishment stated that it was not able to accommodate appellant’s request to
work the first four hours of her shift. The Board notes, however, that appellant never actually
worked the alternative work schedule. As appellant retired while still working from 2:00 to 6:00
p.m., the change in her employment duties never took place. Therefore she has not established a
change in the nature and extent of her light-duty job requirements.3
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,4 the Office regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.5 When a claimant fails to meet one of the above standards, the Office
will deny the application for reconsideration without reopening the case for review on the
merits.6
1

20 C.F.R. § 10.5(x).

2

Joseph D. Duncan, 54 ECAB 471, 472 (2003); Terry R. Hedman, 38 ECAB 222, 227 (1986).

3

Cecilia M. Corley, 56 ECAB 662, 669 (2005).

4

5 U.S.C. §§ 8101-8193, § 8128(a).

5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.608(b).

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ANALYSIS -- ISSUE 2
Appellant filed a request for reconsideration on February 28, 2008 and argued that the
employing establishment improperly attempted to interpret and weigh medical evidence. She
also submitted documentation regarding her FMLA benefits.
The Office reviewed appellant’s argument and evidence and found that she failed to
comply with the requirement of relevance. The evidence regarding appellant’s FMLA benefits
does not bear on the central issue in this case, whether appellant sustained a recurrence of
disability due to a change in the nature and extent of her injury-related condition or light-duty job
requirements. Furthermore, appellant’s arguments that the employing establishment improperly
weighed the medical evidence and found that it did not support her request for reasonable
accommodation is not relevant to the issue of whether there was a change in the nature and
extent of her light-duty job requirements. As she failed to submit pertinent new evidence or
argument, the Office properly denied her request for reconsideration.
CONCLUSION
The Board finds that appellant has failed to submit the necessary factual and medical
evidence to meet her burden of proof in establishing a recurrence of disability on
December 5, 2005. The Board further finds that the Office properly declined to reopen
appellant’s claim for consideration of the merits on April 15, 2008.

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ORDER
IT IS HEREBY ORDERED THAT the April 15, 2008 and December 21, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 24, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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

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

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Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1386
Issued: November 25, 2014

Case Submitted on the Record

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

JURISDICTION
On June 2, 2014 appellant, through her representative, filed a timely appeal from a
January 16, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained bilateral carpal tunnel syndrome or a right index
trigger finger causally related to factors of her federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 8, 2010 appellant, then a 56-year-old medical technologist, filed an
occupational disease claim alleging that she sustained bilateral carpal tunnel syndrome and a
right index trigger finger due to repetitive motion in the course of her federal employment. She
became aware of her condition on April 1, 2004. Appellant did not stop work.
On October 31, 2006 appellant underwent a right carpal tunnel release.
On
November 19, 2009 she underwent a left carpal tunnel release and release of the right index
finger.
By decision dated February 15, 2011, OWCP denied appellant’s claim. It found that she
had not submitted sufficient medical evidence to establish a causal relationship between a
diagnosed condition and the established work factors.
On February 22, 2011 appellant requested a telephone hearing before an OWCP hearing
representative. In a report dated May 10, 2011, Dr. Arthur M. Sharkey, a Board-certified
orthopedic surgeon, related that she had a long history of carpal tunnel syndrome as a result of
working for 30 years as a laboratory technician at the employing establishment. He diagnosed
bilateral carpal tunnel syndrome and right index trigger finger with flexor tenosynovitis.
Dr. Sharkey stated, “It is my unequivocal opinion that the causal relationship of her activities as
a laboratory technologist which include repetitive pipefitting, repetitive removal of specimen
tops and protracted computer use has a causal relationship to her diagnoses.”
By decision dated August 18, 2011, an OWCP hearing representative set aside the
February 15, 2011 decision. She found that the opinion of Dr. Sharkey was sufficient to warrant
further development of the medical evidence and instructed OWCP to refer appellant for a
second opinion examination.
On August 9, 2012 OWCP referred appellant to Dr. Steven J. Lancaster, a Board-certified
orthopedic surgeon, for a second opinion examination. It requested that he address whether the
2006 and 2009 procedures to appellant’s wrists and right index finger were warranted and
causally related to her employment. The accompanying statement of accepted facts described
appellant’s work duties as a medical technologist beginning in 1992. OWCP also noted that she
had a long history of preexisting or concurrent numbness and pain of the hands.
In a report dated September 28, 2012, Dr. Lancaster discussed appellant’s history of
surgeries for bilateral carpal tunnel syndrome and right index trigger finger. On examination, he
found a negative Tinel’s sign and Phalen’s test bilaterally with no atrophy and no triggering of
any digit. Dr. Lancaster diagnosed status post bilateral carpal tunnel releases and status post
right index trigger finger release with residual tenosynovitis and pain. He attributed appellant’s
current symptoms of trigger finger and some symptoms from the carpal tunnel releases to “scar
tissue from the surgeries for the accepted condition of carpal tunnel syndrome and trigger
finger.” Dr. Lancaster found that her current symptoms outweighed the objective findings. He
stated that the prior surgeries were warranted to treat the accepted employment-related
conditions of carpal tunnel syndrome and index trigger finger.

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On October 4, 2012 OWCP advised Dr. Lancaster that it had not accepted any condition
as employment related. It requested that he clarify whether appellant’s work duties as a medical
technologist caused or exacerbated her diagnosed conditions.
In a supplemental report dated October 10, 2012, Dr. Lancaster found that appellant’s
work duties did not cause or contribute to her carpal tunnel syndrome or trigger finger. He
opined that pipefitting was not a “significant enough repetitive movement to cause a carpal
tunnel syndrome. As such my opinion is that the claimant was going to develop her carpal
tunnel syndrome independent of her activities as a medical technologist.”
By decision dated November 2, 2012, OWCP denied appellant’s claim on the grounds
that she did not establish that she sustained a medical condition due to the identified work
factors. It found that Dr. Lancaster’s opinion represented the weight of the evidence and
demonstrated that she did not have bilateral carpal tunnel syndrome or right trigger finger due to
factors of her federal employment.
On November 11, 2012 appellant, through her representative, requested an oral hearing.
Following a preliminary review, on January 7, 2013, an OWCP hearing representative set aside
the November 2, 2012 decision. She found that the record contained a conflict in medical
opinion between Dr. Sharkey and Dr. Lancaster.
By letter dated March 15, 2013, OWCP referred appellant to Dr. Raul B. Zelaya, a
Board-certified orthopedic surgeon, for an impartial medical examination to determine whether
she sustained carpal tunnel syndrome due to factors of her federal employment. It advised that a
conflict arose between Dr. Sharkey and Dr. Lancaster regarding whether her condition arose
from work factors beginning April 1, 2004.
In a report dated April 18, 2013, Dr. Zelaya reviewed appellant’s history of upper
extremity symptoms and the medical reports of record, including the results of 2005
electrodiagnostic studies showing carpal tunnel syndrome. He noted that she underwent a right
tunnel release in 2006 and a left carpal tunnel and right index finger release in 2009. Dr. Zelaya
stated:
“On March 2, 2010 [appellant] underwent an MRI [magnetic resonance imaging]
[study] of the right hand that shows degenerative changes of the proximal phalanx
of the right index finger in addition to tenosynovitis as well as tendinosis of the
flexor synovial sheet that more likely than not was a contributing factor to her
previous CTS [carpal tunnel syndrome], already released and currently
asymptomatic.”
Dr. Zelaya noted that appellant’s job duties included referral testing, preparing
specimens, and capping and uncapping tubes. He stated that these actions did not put pressure
on the carpal canal and noted that he had given her a test tube to cap and uncap during his
examination.2 On examination, Dr. Zelaya found normal two-point discrimination, a negative
Tinel’s sign and Phalen’s test and a loss of sensation to light touch and pinwheel along the C4,
2

Dr. Zelaya indicated that appellant’s hobby of bicycle riding did increase pressure on the carpal canal.

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C5, and C6 distribution, especially on the right side. He interpreted x-rays as showing
discogenic disease at these levels which he indicated could be confused with symptoms of carpal
tunnel syndrome. Dr. Zelaya diagnosed cervical radiculopathy with discogenic disease at C4,
C5, and C6. He determined that appellant’s cervical radicular symptoms were unrelated to her
employment. Dr. Zelaya opined that she did not currently have carpal tunnel syndrome.
By decision dated May 3, 2013, OWCP denied appellant’s claim. It found that
Dr. Zelaya’s opinion represented the weight of the evidence and established that she did not have
a diagnosed condition due to factors of her federal employment.
On May 10, 2013 appellant, through her representative, requested an oral hearing. On
October 29, 2010 counsel requested a review of the written record in lieu of an oral hearing.
In a report dated November 14, 2013, Dr. Sharkey discussed appellant’s history of
surgery for carpal tunnel syndrome and right trigger finger. He opined that her repetitive work
duties, including pipefitting, removing specimen tops and computer use caused her condition.
Dr. Sharkey also diagnosed de Quervain’s syndrome and residual synovitis of the right index
finger.
By decision dated January 16, 2014, an OWCP hearing representative affirmed the
May 3, 2013 decision.
On appeal appellant’s representative asserts that electromyogram (EMG) testing
demonstrates that she has carpal tunnel syndrome. He notes that Dr. Zelaya failed to discuss the
July 13, 2010 EMG which confirmed the diagnosis of carpal tunnel syndrome and instead relied
on less objective findings on clinical examination. Counsel maintains that Dr. Zelaya based his
opinion on x-rays that were not provided to her attending physician and failed to provide
sufficient rationale explaining why the diagnosed cervical condition was unrelated to
employment. He contends that Dr. Zelaya’s opinion is insufficient to resolve the conflict in
medical opinion.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was 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.4 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.5

3

5 U.S.C. § 8101 et seq.

4

See Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Ellen L. Noble, 55 ECAB 530 (2004).

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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;6 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;7 and (3) medical evidence establishing 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.8
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.9 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.10
When OWCP secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting a defect in the original report.11 When the impartial
medical specialist’s statement of clarification or elaboration is not forthcoming or if the specialist
is unable to clarify or elaborate on the original report or if the specialist’s supplemental report is
also vague, speculative or lacks rationale, OWCP must submit the case record and a detailed
statement of accepted facts to a second impartial specialist for a rationalized medical opinion on
the issue in question.12 Unless this procedure is carried out by OWCP, the intent of section
8123(a) will be circumvented and the impartial medical examiner’s report is insufficient to
resolve the conflict in medical evidence.13

6

See Michael R. Shaffer, 55 ECAB 386 (2004).

7

See Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

8

See Beverly A. Spencer, 55 ECAB 501 (2004).

9

5 U.S.C. § 8123(a).

10

20 C.F.R. § 10.321.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.11(d)(2) (September 2010).
12

See D.T., Docket No. 14-332 (issued May 14, 2014); Talmadge Miller, 47 ECAB 673 (1996); see also Federal
(FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11(e)
(September 2010).
13

See D.T., id.

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ANALYSIS
Appellant attributed her wrist and trigger finger conditions to repetitive work as a
medical technologist. OWCP accepted the occurrence of the claimed employment factors. The
issue, therefore, is whether the medical evidence establishes a causal relationship between the
claimed conditions and the identified employment factors.
OWCP found that a conflict arose between Dr. Sharkey, an attending physician, who
found that appellant sustained bilateral carpal tunnel syndrome and right index trigger finger due
to her employment duties; and Dr. Lancaster, an OWCP referral physician, who found that her
work duties did not cause her carpal tunnel syndrome and trigger finger. It referred her to
Dr. Zelaya, a Board-certified orthopedic surgeon, for an impartial medical examination.
When a case is referred to an impartial medical examiner for the purpose of resolving a
conflict, the opinion of such specialist, if sufficiently well rationalized and based on a prior
factual and medical background, must be given special weight.14 The Board finds, however, that
Dr. Zelaya’s opinion is insufficient to resolve the conflict in medical opinion as he did not
adequately address the causation issue. In a report dated April 18, 2013, Dr. Zelaya described
appellant’s work duties, noting that the laboratory procedures that she performed did not increase
the pressure on her carpal canal. On examination, he found a negative Tinel’s sign and Phalen’s
test but reduced sensation to touch and pinwheel in the C4, C5 and C6 distribution. Dr. Zelaya
diagnosed cervical radiculopathy and discogenic disease at C4, C5 and C6 unrelated to
employment. He determined that appellant did not currently have carpal tunnel syndrome.
Dr. Zelaya, however, discussed only her current condition and its relationship to her federal
employment. He noted that a March 2, 2010 MRI scan study showed degenerative changes of
the right index finger and tenosynovitis and tendinosis of the flexor synovial sheet. Dr. Zelaya
found that these conditions most likely contributed to appellant’s previous bilateral carpal tunnel
syndrome that was no longer symptomatic and had been treated with releases. He did not
adequately address whether appellant’s history of bilateral carpal tunnel syndrome and right
index trigger finger and resulting surgeries were due to factors of her federal employment.
Consequently, Dr. Zelaya’s opinion is insufficient to resolve the conflict in medical opinion.
When OWCP secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting a defect in the original report.15 On remand, OWCP
should ask Dr. Zelaya to clarify whether appellant sustained bilateral carpal tunnel syndrome or
right index trigger finger as a result of her work duties. Following such further development as
deemed necessary, OWCP should issue a de novo decision on her claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
14

L.W., 59 ECAB 471 (2008).

15

See K.C., Docket No. 14-791 (issued August 8, 2014); Guiseppe Aversa, 55 ECAB 164 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the January 16, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: November 25, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 09-185
Issued: July 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 27, 2008 appellant, through his representative, filed a timely appeal from the
Office of Workers’ Compensation Programs’ nonmerit decision dated August 29, 2008. The
Board’s jurisdiction to consider final decisions of the Office extends only to those decisions
issued within one year prior to the filing of the appeal.1 Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board only has jurisdiction over the nonmerit issue.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
FACTUAL HISTORY
This is the second appeal in this case. By decision dated February 19, 2008, the Board
affirmed a December 21, 2006 Office decision denying appellant’s claim that his left plantar
1

20 C.F.R. §§ 501.2(c); 501.3(d)(2). See also Linda Beale, 57 ECAB 429 (2006).

fasciitis was employment related, and a June 4, 2007 Office decision denying appellant’s request
for reconsideration.2 The facts of the case as set forth in the prior decision are incorporated
herein by reference.3
On July 27, 2007 the Office received a February 1, 2007 report by Dr. Peter G. Gerbino,
an examining Board-certified orthopedic surgeon, diagnosing plantar fasciitis. Dr. Gerbino
provided a history that appellant had worked 20 years as a postman and that his foot pain began
in 2005. A physical examination revealed bilateral foot dorsiflexion of 20 degrees, no tenderness
in the calcanei or Achilles tendon and moderate to severe tenderness along the left plantar fascia
and at the left plantar fascia insertion. Dr. Gerbino noted that this condition was caused by
walking and other activities involving the lower extremities. He opined that appellant’s
employment duties caused his condition.
On June 3, 2008 appellant, through his representative, requested reconsideration and
submitted additional evidence.
By decision dated August 29, 2008, the Office denied appellant’s request for
reconsideration on the grounds that it was not timely filed within one year of the most recent
merit decision dated December 21, 2006 and the evidence did not establish clear evidence of
error in the 2006 decision.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act4 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.5 To be entitled to a merit review of an Office decision denying
or terminating a benefit, a claimant must file his or her application for review within one year of
the date of that decision.6 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.7

2

Docket No. 07-2219 (issued February 18, 2008).

3

On September 20, 2006 appellant, then a 44-year-old letter carrier, filed an occupational disease claim alleging
that his left heel pain was employment related. He stated that he first became aware of his condition in July 2005
and that he first realized that his injury was caused or aggravated by his employment duties, which included standing
and walking for long periods of time, in July 2006.
4

5 U.S.C. § 8101 et seq.

5

20 C.F.R. § 10.605.

6

Id. at § 10.607(a).

7

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

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Title 20 of the Code of Federal Regulations, section 10.607(b) provides that the Office
will consider an untimely application only if it demonstrates clear evidence of error by the Office
in its most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office. The evidence must be positive,
precise and explicit, and must manifest on its face that the Office committed an error. Evidence
which does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.8 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion. 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. The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of the Office such that the Office abused its
discretion in denying merit review in the face of such evidence.9
ANALYSIS
The Board previously reviewed the merits of this claim in a February 19, 2008 decision.
A merit decision of the Board extends the one-year period to request reconsideration of a final
decision before the Office.10 Appellant’s request for reconsideration was dated June 3, 2008. As
this request was filed within one year after the Board’s merit decision, it is timely.
As appellant filed a timely request for reconsideration, the Office improperly evaluated
his request for reconsideration pursuant to the clear evidence of error standard. The case will
therefore be remanded to the Office for a decision regarding whether the evidence submitted
with the June 3, 2008 request for reconsideration was sufficient to warrant a review of the merits
of appellant’s claim under 20 C.F.R. § 10.606(b).
CONCLUSION
The Board finds that appellant filed a timely request for reconsideration. Accordingly,
this case must therefore be remanded to the Office for an appropriate decision consistent with
this opinion.

8

See Alberta Dukes, 56 ECAB 247 (2005); see also Leon J. Modrowski, 55 ECAB 196 (2004).

9

See Alberta Dukes, supra note 8.

10

Howard Y. Miyashiro, 51 ECAB 253 (1999); Veletta C. Coleman, 48 ECAB 367 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 29, 2008 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: July 7, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, RULEVILLE POST
OFFICE, Ruleville, MS, Employer
__________________________________________

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

Docket No. 20-1541
Issued: April 19, 2021

Case Submitted on the Record

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

JURISDICTION
On August 16, 2020 appellant filed a timely appeal from a July 24, 2020 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 has met his burden of proof to establish greater than 10
percent permanent impairment of the right upper extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On August 7, 2018 appellant, then a 43-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 17, 2018 he pulled his right shoulder when reaching to place
1

5 U.S.C. § 8101 et seq.

mail into a mailbox while in the performance of duty. By decision dated October 19, 2018, OWCP
accepted the claim for impingement syndrome of the right shoulder.
The record reflects that appellant underwent an OWCP-authorized arthroscopic right
shoulder extensive debridement, a distal clavicle excision, and subacromial decompression on
December 4, 2018, performed by Dr. Jay Culpepper, a Board-certified orthopedic surgeon. The
report notes a pre- and postoperative diagnosis of a right shoulder rotator cuff tear.
OWCP referred appellant for a second opinion evaluation with Dr. Daniel Dare, a Boardcertified orthopedic surgeon, for an evaluation of appellant’s right shoulder. Dr. Dare reviewed
the medical evidence of record in relation to his accepted July 17, 2018 employment injury. On
examination he found that appellant’s complaints of pain were fairly minimal and opined that his
work-related condition had resolved with no further need for treatment. Dr. Dare diagnosed right
shoulder impingement syndrome, status post decompression and debridement of partial rotator
cuff tear.
On December 4, 2019 appellant filed a claim for a schedule award (Form CA-7).
In a January 10, 2020 letter, Dr. Culpepper found that appellant had reached maximum
medical improvement (MMI) for his right shoulder on May 20, 2019. He opined that appellant
was unable to return to work in a full-duty capacity and, using the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),2
found 25 percent permanent impairment to the right upper extremity.
On June 3, 2020 OWCP referred appellant’s case to Dr. Alan Goodman, a Board-certified
allergist serving as an OWCP district medical adviser (DMA). It requested that he review the
statement of accepted facts (SOAF), the medical evidence of record and Dr. Culpepper’s
January 10, 2020 letter and provide an opinion on permanent impairment under the sixth edition
of the A.M.A., Guides. In a June 26, 2020 report, Dr. Goodman noted that appellant had reached
MMI on May 20, 2019, per Dr. Culpepper’s report. He noted appellant’s previous diagnoses and
findings that his subjective complaints of pain were fairly minimal. Dr. Goodman utilized the
diagnosis-based impairment (DBI) rating method to find that, under Table 15-5 (Shoulder Region
Grid), page 403, the class of diagnosis (CDX) for appellant’s right shoulder impingement
syndrome resulted in a class 1, grade C with a default value of 10 percent. He derived a grade
modifier for functional history (GMFH) and grade modifier for physical examination (GMPE).
Dr. Goodman excluded the grade modifier for clinical studies (GMCS) as it was used to make a
determination of the injury. He utilized the net adjustment formula, (GMFH - CDX) + (GMPE CDX) + (GMCS - CDX), which resulted in a grade C or 10 percent permanent impairment of the
right upper extremity. Dr. Goodman excluded the range of motion (ROM) upper extremity
impairment (UEI) from his analysis, reasoning that multiple observers noted normal or within
functional limits ROM and that no specific numerical data was provided. He recommended against
using Dr. Culpepper’s rating reasoning that he failed to provide any supporting documentation to
support his finding of 25 percent permanent impairment.

2

A.M.A., Guides (6th ed. 2009).

2

By decision dated July 24, 2020, OWCP granted a schedule award for 10 percent
permanent impairment for appellant’s right upper extremity. The award ran for 31.2 weeks from
August 31, 2019 to April 5, 2020 and was based on the June 26, 2020 report from Dr. Goodman.
LEGAL PRECEDENT
The schedule award provisions of FECA3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter, which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.5 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.6
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning Disability and Health
(ICF).7 Under the sixth edition, the evaluator identifies the CDX, which is then adjusted by the
GMFH, GMPE, and GMCS.8 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).9 Evaluators are directed to provide reasons for their impairment rating, including
the choice of diagnoses from regional grids and the calculation of the modifier score.10
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in

3

Supra note 1.

4

20 C.F.R. § 10.404.

5

For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
6

See G.W., Docket No. 19-0430 (issued February 7, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018);
Isidoro Rivera, 12 ECAB 348 (1961).
7

A.M.A., Guides 494-531.

8

Id.

9

Id. at 521.

10

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

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accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than 10
percent permanent impairment of his right upper extremity.
The Board finds that the opinion of Dr. Goodman, OWCP’s DMA, demonstrates that
appellant only has 10 percent permanent impairment of his right upper extremity under the sixth
edition of the A.M.A., Guides. In his June 26, 2020 medical report, Dr. Goodman reviewed
previous physical findings, noting that appellant’s subjective complaints were fairly minimal. He
observed other physical examination findings, providing that appellant had reached MMI on
May 20, 2019, per Dr. Culpepper’s January 10, 2020 report. Dr. Goodman then addressed
appellant’s permanent impairment rating, reasoning that multiple observers noted normal or within
functional limits ROM and that no specific numerical data was provided and that a ROM
impairment rating was not available as no specific numerical data was provided within the medical
evidence of record. He indicated that, under Table 15-5, the CDX for appellant’s right shoulder
injury resulted in a class 1, grade C with a default value of 10 percent. Dr. Goodman derived a
GMFH and a GMPE of 1 (based on noted pain with strenuous activity), respectively. He excluded
the GMCS as it was used to make a determination of the injury. Dr. Goodman utilized the net
adjustment formula (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (1-1) + (1-1) + (NA)
= 0, which resulted in no movement from the grade C default value of 10 percent permanent
impairment of the right upper extremity. He recommended against using Dr. Culpepper’s rating,
reasoning that he failed to provide any supporting documentation to support his finding of 25
percent permanent impairment.12
The Board finds that Dr. Goodman properly applied the DBI rating method under the
standards of the sixth edition of the A.M.A., Guides to determine that appellant had 10 percent
permanent impairment of his right upper extremity. Dr. Goodman properly determined that it was
not possible to use the ROM rating method due to the fact that no specific numerical data was
provided within the medical evidence of record.13 As such, the Board finds that appellant had no
more than the10 percent permanent impairment of his right upper extremity previously awarded.
Appellant may request a schedule award or increase schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.

11

Supra note 5 at Chapter 2.808.6(f) (March 2017).

12
See L.M., Docket No. 12-0868 (issued September 4, 2012); John L. McClanic, 48 ECAB 552 (1997) (finding
that when the attending physician fails to provide an estimate of impairment conforming to the A.M.A., Guides or
does not discuss how he or she arrives at the degree of impairment based on physical findings, his or her opinion is of
diminished probative value in establishing the degree of impairment such that OWCP may rely on the opinion of the
DMA to apply the A.M.A., Guides to the findings reported by the attending physician).
13

A.M.A., Guides 464 (providing detailed procedures for obtaining valid ROM findings).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than 10
percent permanent impairment of his right upper extremity for which he previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the July 24, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 19, 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

5


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

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

Docket No. 10-996
Issued: November 12, 2010

Case Submitted on the Record

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

JURISDICTION
On March 1, 2010 appellant filed a timely appeal from the October 28, 2009 decision of
the Office of Workers’ Compensation Programs denying her request for further review of the
merits of her case. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
this nonmerit decision. The last merit decision of record was the Office’s October 10, 2008
decision terminating her compensation. Because more than one year has elapsed between the
last merit decision and the filing of this appeal, the Board lacks jurisdiction to review the merits
of this claim.1
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
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 (2008).

FACTUAL HISTORY
The Office accepted that on September 19, 1975 appellant, then a 32-year-old special
delivery messenger, sustained a low back contusion, lumbar strain, mild concussion and left knee
strain due to a fall at work. It later accepted a consequential left knee patellectomy of
September 19, 1977. Appellant stopped work following the injury and did not return. The
Office paid her compensation for periods of disability.
In an April 4, 2008 decision, the Office terminated appellant’s compensation effective
April 13, 2008 on the grounds that she had no residuals of her accepted employment injuries
after that date. It based its termination on the December 5, 2007 and January 15, 2008 reports of
the Dr. Jack C. Tippett, a Board-certified orthopedic surgeon who served as an Office referral
physician.
Appellant requested review of her claim before an Office hearing representative. At the
August 6, 2008 hearing, appellant’s counsel, at the time, presented various arguments. He
asserted that there were irregularities with respect to the statement of facts provided to
Dr. Tippett, that the physician’s opinion was not well rationalized, that referrals should have
been made to additional specialists and that appellant was not adequately apprised of her right to
have her doctor attend the second opinion examination. Appellant testified regarding the
examination with Dr. Tippett and asserted that he refused to look at medical records she brought
with her. After the hearing, Robert Garfield submitted an undated nine-page brief in which he
expanded upon the arguments raised at the hearing.
In an October 10, 2008 decision, the Office hearing representative affirmed the April 4,
2008 decision. She discussed the various arguments made by Mr. Garfield as well as those
contained in the submitted brief, but found that they did not establish that the termination of
compensation was improper.
In a September 29, 2009 letter, appellant requested reconsideration of her claim and
argued that she continued to have numerous physical symptoms and limitations which showed that
she had residuals of her work injuries. She asserted that the opinion of Dr. Tippett contained
inaccuracies and was not sufficiently well rationalized to constitute the weight of medical opinion.
Appellant claimed she had a disabling emotional condition caused by her work injuries and
indicated that her claim was supported by a March 30, 1993 report of Dr. Samuel Bernstein, an
attending clinical psychologist.2 She submitted numerous other medical reports and a copy of the
brief previously of record.
In an October 28, 2009 decision, the Office denied appellant’s request for further review
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

2

Appellant submitted a copy of the report. Dr. Bernstein indicated that appellant had a depression and anxiety
condition and was unemployable in the labor market.

2

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.4 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.6 The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record7 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.8 While a reopening of a case may be predicated solely on a legal premise not
previously considered, such reopening is not required where the legal contention does not have a
reasonable color of validity.9
ANALYSIS
The Office accepted that on September 19, 1975 appellant sustained a low back
contusion, lumbar strain, mild concussion, left knee strain due to a fall at work. It later accepted
a consequential left knee patellectomy of September 19, 1977. The Office paid appellant
compensation for periods of disability but terminated her compensation effective April 13, 2008
based of the opinion of Dr. Tippett, a Board-certified orthopedic surgeon who served as an
Office referral physician.
In the September 29, 2009 reconsideration request, appellant argued that she continued to
have physical symptoms and limitations related to her accepted work injuries. She argued that the
opinion of Dr. Tippett was not sufficiently well rationalized to serve as the basis for the termination
of her compensation. The submission of this argument did not require reopening of appellant’s

3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

8

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

9

John F. Critz, 44 ECAB 788, 794 (1993).

3

claim for merit review as the Office has already considered the sufficiency of Dr. Tippett’s opinion
with respect to the termination of appellant’s compensation.10
Appellant claimed she had a disabling emotional condition caused by her work injuries and
submitted a March 30, 1993 report of Dr. Bernstein, an attending clinical psychologist. However,
this evidence and argument is not relevant to the underlying issue of the present case. The Office
has not accepted that appellant sustained an emotional condition and Dr. Bernstein did not provide
any opinion on the causal relation of such a condition.11 Appellant submitted numerous other
medical reports together with the brief from her former counsel; but all of these documents had
previously been submitted and considered by the Office. Evidence that is duplicative of that
previously of record and considered by the Office does not constitute a basis for further merit
review.12
On appeal appellant argued that the Office hearing representative did not consider the
arguments that she and Mr. Garfield made at the oral hearing; however, a review of the
October 10, 2008 decision shows that the Office hearing representative gave extensive
consideration to these arguments.
Appellant has not established that the Office improperly denied her request for further
review of the merits of its October 10, 2008 decision under section 8128(a) of the Act, because
the evidence and argument she submitted did not to show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office, or constitute relevant and pertinent new evidence not previously considered by the
Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

10

Appellant’s own opinion that she had work-related residuals would not be relevant because the main issue of
the present case, i.e., whether the Office presented medical evidence justify the termination of compensation, is
medical in nature and would usually be resolved by the submission of medical evidence.
11

Dr. Bernstein’s report is not relevant for the further reason that it pertains to a period many years before the
termination of appellant’s compensation in April 2008.
12

See Brent A. Barnes, 56 ECAB 336 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the October 28, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 12, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.E., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Deming, NM, Employer
__________________________________________

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Appearances:
Jeffrey Jacobson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-709
Issued: June 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 3, 2014 appellant, through counsel, filed a timely appeal from an August 8,
2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), which
denied his reconsideration request. Because more than 180 days has elapsed between the last
merit decision dated June 20, 2012 and the filing of this appeal, the Board lacks jurisdiction to
review the merits of appellant’s claim pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.

1

See 5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 34-year-old special agent, filed a claim for benefits on October 11, 2011,
alleging that he injured his right wrist on October 9, 2011 while searching a vehicle and moving
heavy objects.
By letter dated December 5, 2011, OWCP advised appellant that he needed to submit
additional factual and medical evidence in support of his claim. It provided 30 days to submit the
requested information.
By decision dated January 6, 2012, OWCP denied appellant’s claim. It found that he failed
to submit medical evidence in support of his claim that he sustained a right wrist injury due to
the October 9, 2011 incident.
On March 20, 2012 appellant requested reconsideration.
In a report dated February 7, 2012, received by OWCP on March 27, 2012, Dr. Robert M.
Stack, a specialist in orthopedic surgery, stated that a magnetic resonance imaging (MRI) scan of
the right wrist showed some extensor carpi ulnaris tendinitis, with no tears. He advised that
appellant’s right triangular fibrocartilage complex might have a central erosion. On examination,
however, appellant did not have tenderness over the extensor carpi ulnaris tendon, but had pain
with ulcer deviation of the wrist. Dr. Stack referred appellant to a hand surgeon, after which he
would be reevaluated.
By decision dated June 20, 2012, OWCP denied modification of the January 6, 2012
decision.
On June 15, 2013 appellant requested reconsideration.
By decision dated June 21, 2013, OWCP denied appellant’s application for review. It
found that he neither raised substantive legal questions nor included new and relevant evidence
sufficient to require OWCP to review its prior decision.
In a May 29, 2013 report, received by OWCP on July 12, 2013, Dr. Robert R. Bell, a
specialist in orthopedic surgery, stated that appellant had complaints of right wrist pain stemming
from an October 9, 2011 work injury. He related that the injury occurred when appellant was
reaching down to pick up a heavy suitcase in the line of duty. Appellant had his arms out in a
supinated position and, as he lifted, he felt a pop in his right wrist. Dr. Bell asserted that
appellant strained the extensor carpi ulnaris tendon and had a partial tear of his right triangular
fibrocartilage complex. He stated that lifting the suitcase in such a position and the sudden pop
in the wrist was a classic mechanism for injury to the extensor carpi ulnaris tendon. Dr. Bell
diagnosed a right wrist sprain and tenosynovitis of the hand and wrist.
In a letter received by OWCP on July 12, 2013, appellant requested reconsideration.
By decision dated August 8, 2013, OWCP denied appellant’s request for reconsideration
without a merit review. It found that he failed to timely request reconsideration and did not
submit factual or medical evidence sufficient to establish clear evidence of error.
2

LEGAL PRECEDENT
Section 8128(a) of the FECA2 does not entitle an employee to a review of an OWCP
decision as a matter of right.3 This section, vesting OWCP with discretionary authority to
determine whether it will review an award for or against compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review, may -(1) end, decrease or increase the compensation previously awarded; or
(2) award compensation previously refused or discontinued.”
OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).4 As one such limitation, OWCP has stated that
it will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.5 The Board has found that the imposition of
this one-year time limitation does not constitute an abuse of the discretionary authority granted
by OWCP under 5 U.S.C. § 8128(a).6
In those cases where a request for reconsideration is not timely filed, the Board had held
that OWCP must nevertheless undertake a limited review of the case to determine whether there
is clear evidence of error.7 OWCP procedures state that it will reopen an appellant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(b), if
appellant’s application for review shows “clear evidence of error” on the part of OWCP.8
To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by OWCP.9 The evidence must be positive, precise and explicit and
2

Id. at § 8128(a).

3

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).
4

Thus, although it is a matter of discretion on the part of OWCP whether to review an award for or against
payment of compensation, OWCP has stated that a claimant may obtain review of the merits of a claim by
(1) showing that OWCP erroneously applied or interpreted a point of law, or (2) advances a relevant legal argument
not previously considered by OWCP, or (3) constituting relevant and pertinent new evidence not previously
considered by OWCP. See 20 C.F.R. § 10.606(b).
5

20 C.F.R. § 10.607(b).

6

See cases cited supra note 3.

7

Rex L. Weaver, 44 ECAB 535 (1993).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

9

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

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must be manifested on its face that it committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.14 The Board makes an
independent determination of whether an appellant has submitted clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review in the face of such
evidence.15
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
It issued its most recent merit decision in this case on June 20, 2012. It received appellant’s
requested reconsideration on July 12, 2013; thus, the request is untimely as it was outside the
one-year time limit.
The Board finds that appellant’s July 12, 2013 request for reconsideration failed to show
clear evidence of error. Appellant’s attorney argued on appeal that appellant submitted medical
evidence to establish the causal relationship between the diagnosed conditions and the traumatic
incident of October 9, 2011. Appellant submitted reports from Dr. Stack and Dr. Bell, both of
whom indicated that appellant had complaints of right wrist pain stemming from an October 9,
2011 work injury and diagnosed strains of the extensor carpi ulnaris tendon and right triangular
fibrocartilage complex. Dr. Bell stated that the injury occurred when appellant was reaching
down to pick up a heavy suitcase in the line of duty; he opined that the lifting of the suitcase and
the sudden pop in the right wrist was a classic mechanism for the diagnosed injuries. Dr. Stack
indicates that an MRI scan of the right wrist showed some extensor carpi ulnaris tendinitis, with
no tears. While these reports could be construed as favorable to appellant, neither of the reports
appellant submitted with his request are 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. These opinions are not manifest on their face that OWCP committed an error
in denying appellant’s claim for compensation. Therefore, appellant has failed to demonstrate
clear evidence of error on the part of OWCP.
10

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

11

See Jesus D. Sanchez, supra note 3.

12

See Leona N. Travis, supra note 10.

13

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

14

Faidley, supra note 3.

15

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

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OWCP reviewed the evidence appellant submitted and properly found it to be insufficient
to shift the weight of the evidence in favor of appellant. Consequently, the evidence submitted
by appellant on reconsideration is insufficient to establish clear evidence of error on the part of
OWCP such that it abused its discretion in denying merit review. The Board finds that OWCP
did not abuse its discretion in denying further merit review.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of OWCP in her reconsideration request dated July 12, 2013. Inasmuch as appellant’s
reconsideration request was untimely filed and failed to establish clear evidence of error, OWCP
properly denied further review on August 8, 2013.
ORDER
IT IS HEREBY ORDERED THAT the August 8, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 24, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

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

Docket No. 14-1229
Issued: May 13, 2015

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 May 6, 2014 appellant, through counsel, filed a timely appeal from the April 1, 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received a
$22,225.27 overpayment of compensation; and (2) whether it properly determined that he was at
fault in the creation of the overpayment of compensation, thereby precluding waiver of recovery
of the overpayment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 5, 2006 appellant, then a 26-year-old casual mail clerk, filed a traumatic
injury claim alleging that on September 4, 2006 he injured his lower back due to dumping mail
while working on a mail processing machine at work. OWCP initially accepted that he sustained
a work-related lumbosacral sprain and his claim was later expanded to include acceptance of a
herniated disc at L5-S1. Appellant returned to work for the employing establishment on
October 18, 2006 in a limited-duty job. He stopped working on December 22, 2006 when his
temporary appointment ended. Compensation for total temporary disability was paid beginning
December 23, 2006 on the daily rolls. Appellant later received compensation on the periodic
rolls.
In a July 2, 2007 letter, OWCP advised appellant regarding his pay rate for disability
compensation purposes. It informed him that if he worked for any portion of the period he
received disability compensation, he must return any checks he received to OWCP. Otherwise,
an overpayment of compensation might result.
In a completed Form EN1032 received on March 2, 2010, appellant reported part-time
seasonal work activity with H&R Block beginning December 1, 2009. By correspondence dated
March 10, 2010, the Office of the Inspector General for the employing establishment notified
OWCP that appellant was employed in the fourth quarter of 2009 and that an investigation was
in process. OWCP received copies of H&R Block earnings records for periods between
February 20 and March 19, 2010. By telephone contact dated January 5, 2011, appellant
reported that he would begin working in a seasonal position on the same date with H&R Block.
On January 18, 2011 OWCP received a copy of his October 20, 2010 employment and earning
statements for the period November 27 to December 24, 2010. On a completed EN1032 form
dated February 17, 2011 appellant reported his seasonal employment with H&R Block.
By correspondence dated May 28, 2011, appellant was asked to submit copies of all pay
stubs for earnings from 2009 and to present details regarding his private employment, including
wages, hours, and tax documents. Numerous documents were received by OWCP on
May 10, 2011.
After another document request dated December 13, 2011, additional
employment and earnings documents were received on February 3, 2012. On a completed
EN1032 form dated March 1, 2011, appellant again reported his seasonal work activity with
H&R Block. Additional pay information was requested in a letter dated May 4, 2012 and
earnings records were received on June 8, 2012. OWCP received a July 27, 2012 report of
investigation from the Office of the Inspector General of the employing establishment along with
numerous documents and video footage relating to the investigation of appellant’s work and
other activities.2 Additional earnings records were received on March 6, 2013 regarding work
activity from January 5 to February 15, 2013.
In a February 10, 2014 notice, OWCP advised appellant of its preliminary determination
that he received a $22,225.27 overpayment of compensation because he performed seasonal
work for earnings in 2009 through 2013 with H&R Block at the same time he received
2

The record contains DVD discs, obtained by the Office of Inspector General, containing the video footage of
appellant’s physical activities. However, this video footage is not relevant to the issues of the present case.

2

compensation for total temporary disability on the periodic rolls. The periods of overpayment
were November 28, 2009 to April 16, 2010, October 2, 2010 to April 15, 2011, December 10,
2011 to April 27, 2012, and January 5 to February 15, 2013.3 OWCP also made a preliminary
determination that appellant was at fault in the creation of the overpayment because he accepted
payments that he knew, or reasonably should have known, were incorrect. In an accompanying
memorandum, OWCP explained in detail how the overpayment was calculated, noting that it
performed a series of informal wage-earning capacity determinations. It indicated that FECA
provides that a partially disabled employee shall be paid compensation based on the difference
between the monthly pay and the employee’s wage-earning capacity, as determined by the
employee’s actual earnings or by OWCP. OWCP stated that appellant’s case involved an
overpayment based on actual earnings.
In its February 10, 2014 preliminary determination, OWCP found that appellant was paid
$6,412.19 in total temporary disability payments for November 29, 2009 to April 16, 2010.
Appellant earned $4,531.61 in regular wages with H&R Block for November 28, 2009 to
April 16, 2010. During the 20 weeks worked, he earned $226.58 weekly. The correct
entitlement for a loss of wage-earning capacity during the period November 28, 2009 to
April 16, 2010 was $2,373.00. Appellant was paid $6,412.19 for this period while his correct
entitlement was $2,373.00. He, therefore, received an overpayment of $4,039.19. OWCP
indicated that appellant was paid $9,213.14 in OWCP total temporary disability payments for the
period October 2, 2010 to April 15, 2011. Appellant earned $10,088.43 in regular wages with
H&R Block for October 2, 2010 to April 15, 2011. Total regular wages of $10,088.43 divided
by the 28 weeks he worked yielded $360.30 earned weekly. There was no entitlement for a loss
of wage-earning capacity from October 2, 2010 to April 15, 2011 and therefore appellant
received an overpayment of $9,213.14 for this period. OWCP performed similar wage-earning
capacity calculations for the periods December 10, 2011 to April 27, 2012 and January 5 to
February 15, 2013 and found overpayment amounts of $6,754.08 and $2,044.50, respectively,
for these periods. OWCP attached worksheets which detailed these calculations.4
By decision dated March 13, 2014, OWCP adjusted appellant’s compensation in accord
with its determination that appellant’s wage-earning capacity was represented by the constructed
position of customer service representative.5
Appellant did not respond to OWCP’s February 10, 2014 preliminary determination
within the allotted time. In an April 1, 2014 decision, OWCP determined that appellant received
3

OWCP indicated that there was some evidence that appellant worked for H&R Block for other periods, but that
this ostensible work activity was not the subject of the present overpayment action.
4

As part of these calculations, OWCP used data regarding appellant’s actual wages and applied the Shadrick
formula to calculate appellant’s loss of wage-earning capacity. See infra note 13. In its February 10, 2014
preliminary determination, OWCP further advised appellant that he could submit evidence challenging the fact,
amount, or finding of fault and request waiver of the overpayment. It informed him that he could submit additional
evidence in writing or at prerecoupment hearing, but that a prerecoupment hearing must be requested within 30 days
of the date of the written notice of overpayment. OWCP requested that appellant complete and return an enclosed
financial information questionnaire within 30 days even if he was not requesting waiver of the overpayment.
5

The Board notes that appellant did not appeal OWCP’s March 13, 2014 decision and subject matter of the
decision is not currently before the Board.

3

a $22,225.27 overpayment of compensation. It found that appellant was at fault in the creation
of the overpayment, thereby precluding waiver of recovery of the overpayment.6
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.7 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”8
Section 8116(a) of FECA provides that while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the
expiration of the period during which the installment payments would have continued, the
employee may not receive salary, pay, or remuneration of any type from the United States,
except in limited specified instances.9 OWCP’s regulations state in pertinent part: compensation
for wage loss due to disability is available only for any periods during which an employee’s
work-related medical condition prevents him or her from earning the wages earned before the
work-related injury.10
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity.11 Generally, wages actually earned are the best measure of wage-earning
capacity and, in the absence of evidence showing that they do not fairly and reasonably represent
the injured employee’s wage-earning capacity, must be accepted as such measure.12 OWCP
applies the Shadrick formula to calculate a given claimant’s loss of wage-earning capacity, a
formula which was derived from principles contained in the case of Albert C. Shadrick.13

6

OWCP requested payment in full of the overpayment within 30 days.

7

5 U.S.C. § 8102(a).

8

Id. at § 8129(a).

9

Id. at § 8116(a).

10

20 C.F.R. § 10.500.

11

5 U.S.C. § 8115(a),

12

E.W., Docket No. 14-584 (issued July 29, 2014); Dennis E. Maddy, 47 ECAB 259, 262 (1995).

13

5 ECAB 376 (1953).

4

ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for the periods November 28, 2009 to April 16, 2010, October 2, 2010 to
April 15, 2011, December 10, 2011 to April 27, 2012, and January 5 to February 15, 2013
because he earned actual wages with H&R Block for these periods while receiving total
disability compensation. OWCP properly found that appellant could not receive all of his total
disability compensation payments for these periods14 and performed informal wage-earning
capacity determinations based on actual earnings to calculate the portion of his compensation
which represented an overpayment of compensation.15 For example, OWCP noted that appellant
was paid $6,412.19 in total temporary disability payments for the period November 29, 2009 to
April 16, 2010 and earned $4,531.61 in regular wages with H&R Block. For the 20 weeks
worked, he earned $226.58 weekly and the correct entitlement for this period was $2,373.00,
resulting in an overpayment of $4,039.19 for this period. OWCP conducted similar calculations
for the periods October 2, 2010 to April 15, 2011, December 10, 2011 to April 27, 2012, and
January 5 to February 15, 2013 and found overpayment amounts of $9,213.14, $6,754.08, and
$2,044.50, respectively, for these periods. The Board notes that these calculations are supported
by extensive documentation, including records of appellant’s earnings at H&R Block and the
disability compensation he received during the relevant periods. However, the total amount of
appellant’s overpayment must be modified to the amount of $22,050.91 because adding the
above-noted overpayment amounts for the periods November 28, 2009 to April 16, 2010,
October 2, 2010 to April 15, 2011, December 10, 2011 to April 27, 2012, and January 5 to
February 15, 2013 actually equals $22,050.91 rather than $22,225.27. For these reasons, the
Board finds that appellant received a $22,050.91 overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.16 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”17 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.18

14

See supra notes 7 through 10.

15

See supra notes 11 through 13. The Board notes that there is no evidence in the record showing that appellant’s
actual wages at H&R Block did not fairly and reasonably represent his wage-earning capacity at the time the wages
were earned. See supra note 12.
16

5 U.S.C. § 8129(a).

17

Id. at § 8129(b).

18

L.J., 59 ECAB 264 (2007).

5

In determining whether an individual is not “without fault” or alternatively “at fault” in
the creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations
provides in relevant part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or
she knew or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should
have known to be material; or
(3) Accepted a payment which he or she knew or should have
known to be incorrect….”19
Section 10.433(b) of OWCP’s regulations provide:
“Whether or not OWCP determines that an individual was at fault with respect to
the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”20
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly found that appellant was at fault in the creation of
the overpayment of compensation. It correctly found that he was at fault in the creation of the
overpayment because he accepted payments that he knew, or reasonably should have known,
were incorrect.21 In a July 2, 2007 letter, OWCP advised appellant regarding his pay rate for
disability compensation purposes. It informed him that if he worked for any portion of the
period he received disability compensation, he must return any checks he received to OWCP.
Otherwise, an overpayment of compensation might result. Therefore, appellant was advised that
he could not keep all of his total disability compensation when he received work earnings from
outside employment sources during the same period. However, appellant did not return the
impermissible compensation payments he received during the periods November 28, 2009 to
April 16, 2010, October 2, 2010 to April 15, 2011, December 10, 2011 to April 27, 2012, and
January 5 to February 15, 2013. The fact that OWCP may have been negligent in continuing to
issue appellant checks for total disability after it was informed he had actual earnings does not
excuse his acceptance of such checks which, he knew or should have been expected to know,
should have been returned to OWCP.22 The record contains numerous communications and
19

20 C.F.R. § 10.433(a).

20

Id. at § 10.433(b).

21

See supra note 19.

22

Robert W. O’Brien, 36 ECAB 541 (1985).

6

forms completed by appellant and there is no indication that he was not able to understand his
responsibility to return compensation checks to which he was not entitled.23
For these reasons, the Board finds that appellant was at fault in the creation of the
overpayment of compensation. Because he has been found to be at fault in the creation of the
overpayment, he is precluded from qualifying for waiver of recovery of the overpayment.24
CONCLUSION
The Board finds that appellant received a $22,050.91 overpayment of compensation. The
Board further finds that OWCP properly determined that appellant was at fault in the creation of
the overpayment of compensation, thereby precluding waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the April 1, 2014 decision of the Office of
Workers’ Compensation Programs is modified to reflect that appellant received a $22,050.91
overpayment of compensation and affirmed with respect to the denial of waiver of recovery.
Issued: May 13, 2015
Washington, DC

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

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

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

23

See supra note 20.

24

See supra notes 17 and 18.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Los Angeles, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0168
Issued: April 19, 2017

Case Submitted on the Record

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

JURISDICTION
On November 1, 2016 appellant filed a timely appeal from an October 20, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since the last OWCP merit decision dated November 17, 2015 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
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).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts of the case as presented in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On October 27, 2014 appellant, then a 42-year-old mail handler, submitted an October 1,
2014 traumatic injury claim (Form CA-1) alleging that he sustained a back injury on
November 9, 2010. On the claim form he reported that he was loading and unloading trucks.
Appellant later reported that, after unloading and loading containers on November 8, 2010, he
had felt muscle spasms and he “called off from work” on November 9, 2010. On the reverse side
of the claim form appellant’s supervisor asserted that appellant had never reported an injury and
he had not seen a physician. The employing establishment submitted an October 27, 2014 letter
from a human resources specialist, which indicated that he had worked on November 9, 2010
and had never reported an injury to his supervisor. The specialist wrote that appellant had also
filed CA-2 forms claiming back injuries due to unloading and loading trucks, with dates of injury
as May 24 and July 12, 2010. According to the human resources specialist, appellant’s
employment was terminated as of July 13, 2012 due to violation of a “last chance” agreement.3
By decision dated December 18, 2014, OWCP denied appellant’s claim finding that it
was untimely filed under 5 U.S.C. § 8122. It indicated that the date of injury was November 9,
2010, but the claim was not filed until October 1, 2014.
On December 31, 2014 OWCP received a request for a review of the written record by an
OWCP hearing representative. By decision dated May 8, 2015, the hearing representative
affirmed the December 18, 2014 OWCP decision. She found that the evidence of record did not
establish the claim was timely filed. The hearing representative noted that appellant had claimed
the employing establishment had timely notice of injury, but the use of sick leave did not
establish notification of an employment injury.4
Appellant requested reconsideration on May 21, 2015, indicating that he was submitting
additional evidence. OWCP however never received additional evidence. By decision dated
August 11, 2015, it reviewed the merits of the claim and denied modification. OWCP again
found that the claim was untimely filed under 5 U.S.C. § 8122.
On August 21, 2015 appellant again requested reconsideration. He argued that the
evidence submitted was sufficient to modify the denial of the claim. Appellant discussed other
claims that he had filed and then indicated that the current claim should be considered an
occupational claim, as it involved activity on November 9, 19, and 30, 2010. He also argued that
2

Docket No. 16-0601 (issued June 21, 2016).

3

A notice of removal dated June 4, 2012 indicated that appellant had signed a “last chance agreement” on
October 18, 2010, which was intended to provide him a last opportunity to show that he could be a productive and
dependable employee.
4

Appellant had also alleged that notice was given to the employing establishment in investigative interviews on
June 7 and 30, 2011. The hearing representative indicated that these interviews were more than 30 days after the
date of injury, and in any case only provided notification that sick leave was used on November 9, 2010.

2

OWCP had not properly considered evidence and he should not have been removed from
employment.
In a decision dated November 17, 2015, OWCP reviewed the case on its merits and
denied modification. It reviewed appellant’s arguments and again found that the claim for
compensation was untimely filed.
Appellant again requested reconsideration on November 23, 2015. By decision dated
January 27, 2016, OWCP determined the reconsideration request was insufficient to warrant a
merit review of the claim. It found that appellant had failed to submit relevant evidence or
argument with respect to the issue presented. Appellant appealed to the Board.
By decision dated June 21, 2016, the Board affirmed the November 17, 2015 and
January 27, 2016 OWCP decisions.5 The Board found that there was no probative evidence of
record to establish that appellant had timely filed a claim for injury on November 8, 2010.
On June 29, 2016 appellant again requested reconsideration. He alleged that his claim
should have been converted to an occupational disease claim and that he had given notice within
30 days of injury. Appellant referred to the last chance agreement and alleged that this provided
notice. On July 22, 2016 he submitted a copy of the Board’s June 21, 2016 decision with
handwritten notes. Appellant claimed that he had not “officially” received a copy of the decision
and disputed that he had filed a Form CA-1 alleging an injury on November 9, 2010.
By decision dated October 20, 2016, OWCP denied reconsideration of the merits of the
claim. It found that appellant had not met any of the requirements to warrant a merit review of
the claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6
OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
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 evidence not previously considered by OWCP.”7 20 C.F.R.
§ 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.8

5

Supra note 2.

6

5 U.S.C. § 8128(a) (providing that “[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”).
7

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

3

ANALYSIS
In the present case, appellant requested reconsideration of the determination that his
claim for an injury on November 8, 2010 was untimely filed.
Appellant has not shown that OWCP erroneously applied or interpreted a specific point
of law, or advance new and relevant legal argument. OWCP found that the injury claim was
untimely filed under 5 U.S.C. § 8122.
The Board finds that appellant has not shown that OWCP erroneously interpreted or
applied 5 U.S.C. § 8122. Appellant reiterated arguments that he felt his claim should have been
converted to an occupational disease claim. The claim filed was a traumatic injury claim for an
injury on November 8, 2010.9 As the Board noted, while appellant referred to taking sick leave
on November 19 and 30, 2010, he did not discuss job duties on additional dates. Appellant
initially identified the date of injury as November 9, 2010, but explained the loading and
unloading of the truck occurred on November 8, 2010 and he took sick leave on
November 9, 2010.
According to appellant, the last chance agreement provided notice within 30 days of the
injury. This argument has no color of validity, as the agreement was signed on October 18,
2010, before the alleged injury on November 8, 2010. Where the legal argument presented has
no reasonable color of validity, OWCP is not required to reopen the case for merit review.10
Appellant has also alleged that he did not file a traumatic injury claim as reported in the
Board’s prior decision. The record contains a Form CA-1 filed on October 27, 2014, and this is
the claim addressed by OWCP and the Board on appeal. Appellant also refers to not “officially”
receive a copy of the Board’s decision dated July 21, 2016, but he had a copy of the decision and
the Board’s decision was issued to his last known address.11 The Board has held that in the
absence of evidence to the contrary, it is presumed that a notice mailed to an addressee in the
ordinary course of business was received by the addressee.12
The Board also finds that, on reconsideration, appellant did not submit any additional
evidence. Therefore, appellant did not submit any relevant and pertinent new evidence not
previously considered by OWCP.
As appellant has not shown that OWCP erroneously applied or interpreted a specific
point of law, advanced a relevant legal argument not previously considered by OWCP, or
submitted relevant and pertinent evidence not previously considered by OWCP, he did not meet
any of the requirements of 20 C.F.R. § 10.606(b)(3).
9

A traumatic injury is condition caused by specific events or incidents within a single workday or shift.
20 C.F.R. § 10.5(ee).
10

See Norman W. Hanson, 40 ECAB 1160 (1989).

11

20 C.F.R. § 10.127 provides that a copy of the decision shall be mailed to the employee’s last known address.

12

See Larry L. Hill, 42 ECAB 596, 600 (1991).

4

On appeal, appellant has written notes on documents of record arguing that his claim was
timely filed. The issue before the Board is whether his reconsideration request met any of the
requirements of 20 C.F.R. § 10.606(b)(3). For the reasons discussed above, the Board finds that
appellant was not entitled to a merit review of his claim.
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).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 20, 2016 is affirmed.
Issued: April 19, 2017
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