United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Norfolk, NE, Employer
__________________________________________

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

Docket No. 07-1458
Issued: November 9, 2007

Case Submitted on the Record

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

JURISDICTION
On March 13, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated September 29 and November 30, 2006 and
February 1, 2007 addressing the degree of permanent impairment of her left upper extremity
entitling her to a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 12 percent impairment of her left upper
extremity for which she has received schedule awards.
FACTUAL HISTORY
This case has previously been before the Board on appeal. On February 17, 2004
appellant, then a 43-year-old mail carrier, filed a traumatic injury claim alleging that she slipped
and fell in the performance of duty injuring her left shoulder. The Office accepted her claim for
left shoulder rotator cuff tear and left shoulder distal clavicle arthroscopy with mini open rotator

cuff repair on March 16, 2004. The Office granted appellant a schedule award for two percent
impairment of her left upper extremity on March 28, 2005. By decision dated March 16, 2006,
the Office granted her a schedule award for an additional eight percent impairment of her left
upper extremity. Appellant appealed this decision to the Board. In a September 18, 2006
decision,1 the Board found that she was entitled to the combined value of 10 percent impairment
due to arthroplasty of the shoulder and 2 percent impairment due loss of range of motion
including 1 percent loss of abduction and 1 percent loss of external rotation. The Board found
that appellant had 11 percent impairment of her left upper extremity and affirmed the Office’s
June 15 and December 29, 2005 and March 16, 2006 decisions as modified. The facts and the
circumstances of the case as set out in the Board’s prior decision are adopted herein by reference.
Following the Board’s September 18, 2006 decision, appellant requested reconsideration
on October 9, 2006. In support of her request, she submitted a “corrected copy” of a
November 9, 2005 report from Dr. Kirk S. Hutton, a Board-certified orthopedic surgeon,
considered by the Board. Appellant stated that the range of motion figures applied to her left
upper extremity rather than her right as previously stated and that this report established
14 percent impairment of her left upper extremity. In the new version of the November 9, 2005
report, Dr. Hutton indicated that appellant had abduction of 160 degrees on the left, 30 degrees
of adduction and extension of 50 degrees on the left.
By decision dated November 30, 2006, the Office reviewed the merits of appellant’s
claim and found that Dr. Hutton’s report was not sufficient to modify the 11 percent schedule
award decision, as he had not signed or endorsed the “corrected copy.”
Appellant again requested reconsideration on January 2, 2007 and submitted additional
documentation from Dr. Hutton. In a signed report dated December 20, 2006, Dr. Hutton stated
that in the original November 8, 2005 report “‘right’ was dictated in three areas which were not
correct.” He stated that the note had been corrected to specify the impairments of the left
shoulder. The Office medical adviser reviewed Dr. Hutton’s reports and noted that appellant had
range of motion impairment of 1 percent due to 150 degrees of abduction, 1 percent due to 30
degrees of adduction and 2 percent due to 60 degrees of external rotation. He added these
figures to reach 4 percent impairment due to loss of range of motion and combined this number
with 10 percent impairment due to arthroplasty to reach a total impairment rating of 12 percent.
By decision dated February 1, 2007, the Office granted appellant a schedule award for an
additional one percent impairment of her left upper extremity. The Office found that appellant’s
total impairment for schedule award purposes was 12 percent.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
1

Docket No. 06-1367 (issued September 18, 2006).

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

2

sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.4 Effective February 1, 2001, the Office
adopted the fifth edition of the A.M.A., Guides as the appropriate edition for all awards issued
after that date.5
ANALYSIS
Appellant has previously received schedule awards totaling 11 percent due to undergoing
an arthroplasty of the left shoulder and experiencing loss of range of motion in the left shoulder.
In support of her claim, for an additional impairment of the left upper extremity, appellant
submitted a corrected copy of the November 9, 2005 note from Dr. Hutton, a Board-certified
orthopedic surgeon, addressing her loss of range of motion of the left upper extremity.
Dr. Hutton found that appellant’s left upper extremity demonstrated external rotation of 60
degrees. He also found internal rotation of 80 degrees. The A.M.A., Guides do not find that
these measurements constitute ratable impairments.6 Dr. Hutton found appellant’s left shoulder
demonstrated abduction of 160 degrees, 1 percent impairment under the A.M.A., Guides and
adduction of 30 degrees also 1 percent under the A.M.A., Guides.7 He found left shoulder
flexion of 180 degrees and extension of 50 degrees. Neither of these range of motion figures is
considered a ratable impairment under the A.M.A., Guides.8 Based on the allowable rating
under the A.M.A., Guides, appellant has established that she has two percent impairment of the
left upper extremity due to the loss of range of motion through Dr. Hutton’s report. When the
loss of range of motion of 2 percent is combined, as required by the A.M.A., Guides, with the
previously awarded 10 percent impairment due to left shoulder distal clavicle arthroplasty,9 then
an impairment of 11 percent results for schedule award purposes.10 Appellant has not submitted
any medical evidence substantiating a schedule award of more than 11 percent of her left upper
extremity.

4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
6

A.M.A., Guides 479, Figure 16-46.

7

Id. at 477, Figure 16-43.

8

Id. at 476, Figure 16-40.

9

Id. at 506, Table 16-27.

10

Id. at 505, 16.7 Arthroplasty; 604, Combined Values Chart.

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CONCLUSION
The Board finds that appellant has no more than 12 percent impairment of her left upper
extremity for which she has received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2007, November 20 and
September 29, 2006 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 9, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chanute, KS, Employer
__________________________________________

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

Docket No. 18-1702
Issued: October 4, 2019

Case Submitted on the Record

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

JURISDICTION
On September 10, 2018 appellant, through counsel, filed a timely appeal from April 10 and
August 24, 2018 merit decisions of the Office of Workers’ Compensation Programs (OWCP). 2
Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

The Board notes that appellant initially timely requested an oral argument before the Board. By lette r dated
September 24, 2018, appellant withdrew his request for oral argument due to his inability to travel to Washington, DC.
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a bilateral shoulder
condition causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On November 14, 2016 appellant, then a 50-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed a bilateral shoulder condition as a result of
his employment duties which had required repetitive reaching and lifting over the course of 23
years. He noted that he first became aware of his condition on October 1, 2016 and related it to
his federal employment on November 1, 2016. Appellant notified his supervisor of his injury on
November 14, 2016. He stopped work on October 19, 2016 when he elected Office of Personnel
Management disability retirement benefits.
In an accompanying narrative statement, appellant described the employment duties which
caused bilateral shoulder pain, and noted that the pain had worsened in the past few months.
By development letter dated December 6, 2016, OWCP informed appellant that the
evidence of record was insufficient to support his claim. It advised him of the factual and medical
evidence needed and provided him with a questionnaire for completion. OWCP afforded appellant
30 days to submit the necessary evidence.
On December 22, 2016 appellant responded to OWCP’s development letter and described
the circumstances surrounding his occupational disease injury.
In support of his claim, appellant also submitted medical reports dated November 1, 2016
and February 8, 2017 from Dr. Aaron M. McGuire, an osteopathic physician specializing in
orthopedic surgery. In his November 1, 2016 report, Dr. McGuire related that appellant was
evaluated on that date for cumulative occupational trauma of the bilateral shoulders, sustained
while working as a letter carrier. He noted that appellant worked at the employing establishment
for over 23 years, worked more than 45 hours per week, and had been in his current position for
eight years. Dr. McGuire described his employment duties which involved repetitive reaching,
lifting, casing, sorting, and delivering mail. He reported that all of appellant’s duties required
repetitive overhead and reaching away from the body. Dr. McGuire explained that this repetitive
motion can cause undue pressure and trauma to the muscle, tendons, and ligaments of the shoulders
which can result in progressively worsening pain. He further explained that cumulative trauma
disorders were injuries of the musculoskeletal system to joints, muscles, tendons, and ligaments,
due to overuse syndrome and repetitive motion. These cumulative trauma symptoms developed
from the accumulation of repeated small injuries or stresses to the musculoskeletal system which
was a response to excessive or repeated demands on the body without enough time to recover
before adding more stress. Dr. McGuire explained that, due to appellant’s physically demanding
repetitive job requirements, he had been suffering from progressively worsening pain in his
bilateral shoulders with decreased range of motion. He provided findings on physical examination
and reviewed x-rays of the left and right shoulders which revealed acromioclavicular (AC) joint
arthropathy and glenohumeral arthrosis. Dr. McGuire diagnosed bilateral shoulder impingement
syndrome, rotator cuff tear and osteoarthritis. He opined that appellant’s bilateral shoulder

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conditions were caused by the cumulative occupational trauma described and recommended a
magnetic resonance imaging (MRI) scan for further assessment. Dr. McGuire’s February 8, 2017
report responded to OWCP’s development letter and repeated the assertions provided in his prior
report.
On February 6, 2017 the employing establishment controverted the claim. It reported that
appellant had been seen delivering packages for FedEx when he was exhausting his leave from the
employing establishment. The employing establishment noted that the alleged injury was not
reported to local management until he retired. It described appellant’s employment duties as
casing mail, reaching in and out of the vehicle, and lifting packages which he performed on a daily
basis. The employing establishment reported that he had no specific accommodations in place and
that any overtime he worked was voluntary.
OWCP subsequently referred appellant, together with a statement of accepted facts
(SOAF) and the medical record, to Dr. Sami R. Framjee, a Board-certified orthopedic surgeon, for
a second opinion evaluation.
In his June 6, 2017 report, Dr. Framjee reported that appellant had developed complaints
regarding his bilateral shoulders approximately 6 to 12 months ago with no history of injury. He
reported that, based on appellant’s history, his physical examination findings, and review of
radiographic studies, he was unable to identify any evidence of any injury to the right or left
shoulder secondary to any occupational activity with the employing establishment. Dr. Framjee
noted that appellant had nonspeciﬁc symptoms in reference to the right and left right shoulders.
However, there was no evidence of any anatomical abnormality of the bilateral shoulders
secondary to his occupational activities and the physical examination was within normal limits.
Further medical care was not recommended and appellant could continue with his normal
occupational activities.
On November 2, 2017 OWCP found that a conflict of medical opinion existed between
Dr. Framjee, the second opinion physician, and Dr. McGuire, appellant’s treating physician. It
referred appellant, the case file, and a SOAF to Dr. Terry Sites, a Board-certified orthopedic
surgeon, for an impartial medical examination to determine whether his federal employment duties
caused, contributed, or aggravated any diagnosed bilateral shoulder conditions.
In his February 27, 2018 report, Dr. Sites provided findings on physical examination, noted
diagnostic testing findings, and diagnosed bilateral shoulder pain with acromioclavicular (AC)
arthropathy. He also reported that additional pathologies included rotator cuff tendinopathy/tear
and long head biceps tendinopathy. Subjective findings included pain, stiffness, and tenderness
over the greater tuberosity and AC joint. Dr. Sites reported that a diagnosis of rotator cuff tear
could not accurately be determined unless there was a massive tear that would demonstrate
superior migration of the humeral head on x-ray evidence and a positive drop arm sign on physical
examination which were not present in appellant’s case. He noted that an MRI scan of the bilateral
shoulders was indicated from a medical standpoint in this setting to obtain additional information
as it related to the rotator cuff and surrounding structures which would be important in treating
appellant’s shoulder pain. However, Dr. Sites found that additional testing was not indicated as it
related to any employment-related activity. He opined that the medical record did not support that
appellant’s bilateral shoulder pain was the result of a work-related injury because there was no

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documentation in the medical record of appellant having sustained a specific injury, that he lost
work during his period of employment as a result of right or left shoulder pathologies, or that he
claimed any shoulder problems prior to the cessation of his work activities on October 19, 2016.
Dr. Sites noted that the earliest documentation for treatment to the left shoulder was Dr. McGuire’s
November 1, 2016 evaluation.
Dr. Sites opined that there was no reasonable way to separate appellant’s nonwork activity,
including throwing sports such as softball, from his work activity as it may relate to right or left
shoulder pathology. He reported that certainly, some occupations may be more physically
demanding than others, but there was no testing available to accurately determine the timing or
speciﬁc cause of shoulder pathology such as a rotator cuff tear in this type of setting. Dr. Sites
stated that he was unaware of any well-designed proactive scientiﬁc studies that had deﬁnitively
determined the risk associated with speciﬁc work activities. He reported that the pain that occurred
in the shoulder from degenerative conditions such as rotator cuff pathology, AC arthropathy, and
impingement increased with each decade over the age of 40 and were very common in the
population regardless of activity levels. As such, Dr. Sites opined it was not likely that appellant’s
bilateral shoulder pain was as a result of his work activity as a letter carrier. He added that his
opinion was made within a reasonable degree of medical certainty based upon the objective factors
cited.
By decision dated April 10, 2018, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that his bilateral shoulder
conditions were causally related to the accepted factors of federal employment. It found that the
special weight of the medical evidence rested with Dr. Sites, serving as the referee physician, who
opined that appellant’s bilateral shoulder conditions were not related to his federal employment
duties.
On April 17, 2018 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative. In support of his claim, he submitted a June 1, 2018 medical report from
Dr. M. Stephen Wilson, a specialist in occupational and orthopedic surgery. Dr. Wilson provided
physical examination findings and diagnosed impingement syndrome, rotator cuff tear, and
osteoarthritis of the bilateral shoulders. He opined that appellant’s diagnoses were causally related
to his occupational duties and discussed the mechanism of injury pertaining to his bilateral
shoulder conditions.
A hearing was held on July 11, 2018 where appellant testified in support of his claim. He
explained that he applied for disability retirement as a result of his previously accepted OWCP
claims, but was in a paid status through November 2017 due to accumulated leave. Appellant
explained that he had no prior hobbies that would cause his shoulder conditions and no prior
injuries involving the same area. He described his employment duties over the course of 24 years.
Appellant further reported that he continued to deal with shoulder pain and was currently working
as a high school teacher. He explained that immediately after he retired, he delivered for FedEx
for the holiday rush season while he was in a paid leave status with the employing establishment.
Appellant provided the employing establishment as a reference who then informed him that he had
to quit his job, which he did. He explained that he was not delivering packages and was only
driving the vehicle while another employee ran the packages for delivery. Counsel argued that
employment factors need not be the only cause of appellant’s condition as FECA recognized dual

4

and proximate causation. He further argued that Dr. Wilson’s report established appellant’s
occupational disease claim. The record was held open for 30 days. No additional evidence was
received.
By decision dated August 24, 2018, OWCP’s hearing representative affirmed the April 10,
2018 decision denying appellant’s occupational disease claim. He found that the special weight
of the medical evidence rested with Dr. Sites, serving as the referee physician, who opined that
appellant’s bilateral shoulder conditions were not causally related to the accepted factors of federal
employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee. 7
Rationalized medical opinion evidence is required to establish causal relationship. 8 The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident. 9
This medical opinion must include an accurate history of the employee’s employment injury and
4

T.H., Docket No. 18-1585 (issued March 22, 2019); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

J.P., Docket No. 19-0303 (issued August 13, 2019); see Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994).
8

See 20 C.F.R. § 10.110(a); M.M., Docket No. 18-1366 (issued February 27, 2019); John M. Tornello, 35 ECAB
234 (1983).
9

S.S., Docket No. 18-1488 (issued March 11, 2019).

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must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.10
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination. 11
For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.12 Where OWCP has referred the case to an impartial medical examiner (IME) to resolve
a conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned
and based upon a proper factual background, must be given special weight. 13
When OWCP obtains an opinion from an IME for the purpose of resolving a conflict in the
medical evidence and the IME’s opinion requires clarification or elaboration, it must secure a
supplemental report from the specialist to correct the defect in his original report. 14 If the referee
physician fails to respond or does not provide an adequate response, it should refer appellant for a
new impartial medical examination.15
ANALYSIS
The Board finds that this case is not in posture for decision. 16
OWCP properly found a conflict in medical opinion between Dr. McGuire, appellant’s
treating physician, and Dr. Framjee, the second opinion physician, regarding whether his federal
employment duties caused or aggravated his bilateral shoulder conditions. On February 27, 2018
it referred appellant to Dr. Sites for an impartial medical evaluation to resolve the conflict, pursuant
to 5 U.S.C. § 8123(a).
The Board finds, however, that Dr. Sites’ opinion is equivocal and not well rationalized. 17
Therefore, his report is insufficient to resolve the conflict between Dr. McGuire and Dr. Framjee.
In his February 27, 2018 report, Dr. Sites opined that appellant’s bilateral shoulder conditions
could be caused by numerous factors. He related that there was no reasonable way to separate
appellant’s nonwork activity from his work activity as it may have related to his shoulder
pathology. Dr. Sites reported that, because there was no scientific way to decipher what caused
10

S.H., Docket No. 17-1660 (issued March 27, 2018); James Mack, 43 ECAB 321 (1991).

11

5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

12

C.H., Docket No. 18-1065 (issued November 29, 2018).

13

W.M., Docket No. 18-0957 (issued October 15, 2018).

14

C.B., Docket No. 16-1713 (issued April 21, 2017).

15

See also W.H., Docket No. 16-0806 (issued December 15, 2016); Federal (FECA) Procedure Manual, Part 2 -Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11(e) (September 2010).
16

R.W., Docket No. 18-1457 (issued February 1, 2019).

17

K.C., Docket No. 17-0844 (issued July 16, 2018).

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his condition, then it was not caused by his federal employment duties. His statement on causal
relationship is equivocal and speculative, opining that it was not likely that appellant’s bilateral
shoulder pain was a result of his work activity as a letter carrier. The Board has held that medical
opinions which are equivocal or speculative are of diminished probative value. 18 As such, the
Board finds that Dr. Sites did not provide adequate medical rationale to explain the basis of his
conclusion on causal relationship. 19 When an impartial medical report lacks medical reasoning to
support conclusory statements about the claimant’s condition, it is insufficient to resolve a conflict
in the medical evidence. 20 Thus, the Board finds that Dr. Sites’ opinion is of insufficient probative
value to carry the special weight of the evidence and the case must be remanded for further
development.21
Once OWCP undertakes development of the medical evidence, it has the responsibility to
do so in a manner that will resolve the relevant issues in the case. 22 On remand, it should refer
appellant, the case record, and an updated SOAF to an appropriate impartial medical specialist to
resolve the conflict pertaining to whether appellant’s bilateral shoulder conditions were causally
related to the accepted factors of his federal employment, either directly or through aggravation,
precipitation, or acceleration. 23 Following this and any other further development as deemed
necessary, OWCP shall issue a de novo decision on appellant’s occupational disease claim. 24
CONCLUSION
The Board finds this case is not in posture for decision.

18

See P.H., Docket No. 16-0654 (issued July 21, 2016); S.R., Docket No. 16-0657 (issued July 13, 2016). See also
S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has generally held that opinions such as the condition is
probably related, most likely related, or could be related are speculative and diminish the probative value of the
medical opinion); Cecilia M. Corley, 56 ECAB 662 (2005) (medical opinions which are speculative or equivocal are
of diminished probative value).
19

D.B., Docket No. 17-1845 (issued February 16, 2018); T.H., Docket No. 14-0326 (issued February 5, 2015).

20

R.T., Docket No. 17-0925 (issued December 14, 2017).

21

Id.

22

See K.S., Docket No. 18-0845 (issued October 26, 2018).

23

J.W., Docket No. 15-0020 (issued August 17, 2016).

24

C.T., Docket No. 19-0508 (issued September 5, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the August 24 and April 10, 2018 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
development consistent with this decision.
Issued: October 4, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Orlando, FL, Employer
__________________________________________

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

Docket No. 13-1292
Issued: January 10, 2014

Case Submitted on the Record

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

JURISDICTION
On May 7, 2013 appellant, through his attorney, filed a timely appeal from an April 4,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
schedule award 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.2
ISSUE
The issue is whether appellant is entitled to a schedule award for impairment to a
scheduled member.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the April 4, 2013 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
OWCP accepted that appellant, then a 46-year-old federal air marshal, sustained a neck
sprain and cervical bulging/displaced disc at C5-6 as a result of lifting exercise equipment in a
gym on April 27, 2011 while in the performance of duty. He received continuation of pay and
disability compensation for the period August 3 through 15, 2011. Appellant returned to fulltime, light-duty work effective August 16, 2011.
On November 30, 2011 appellant, through his attorney, filed a claim for a schedule
award. He submitted reports dated August 22 and 24, 2011 from Dr. Samuel A. Joseph, Jr., a
Board-certified orthopedic surgeon, who diagnosed a herniated disc at C5-6. Dr. Joseph
indicated that appellant’s date of maximum medical improvement was August 22, 2011 and
released him to regular duty, without restrictions effective August 23, 2011.
In a December 16, 2011 report, Dr. Joseph diagnosed post-traumatic cervical spine pain,
resolved with cervical radiculopathy. Appellant presented with right upper extremity numbness
and tingling that radiated out from the shoulder down through his biceps, down his forearm and
sometimes into his fifth digit status postemployment injury after lifting at a gym. Dr. Joseph
observed that appellant had very little to no neck pain, but more frequent numbness and tingling
down his arm. Upon examination, he found “no tenderness to the cervical spine.” Dr. Joseph
placed appellant in class 1 of Table 17-2 (Cervical Spine Regional Grid -- Spine Impairments)3
for intervertebral disc herniation and assigned grade modifier 1 for Functional History (GMFH),
grade modifier 1 for Physical Examination (GMPE) and grade modifier 2 for Clinical Studies
adjustment (GMCS). He stated that the total adjustment was one correlating with Grade D and
concluded that appellant had a six percent whole person impairment based on the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (6th ed. 2009).
On January 11, 2012 Dr. H.P. Hogshead, an OWCP medical adviser reviewed
Dr. Joseph’s December 16, 2011 report and found that appellant had no (zero percent)
impairment of the right or left upper extremities based on the sixth edition of the A.M.A.,
Guides. He stated that appellant was neurologically intact and surgery for this cervical injury
was not required. Dr. Hogshead noted that FECA did not provide for schedule awards due to
spinal conditions.
By decision dated January 17, 2012, OWCP denied appellant’s schedule award claim. It
found that the medical evidence did not establish any ratable impairment of the upper extremities
based on the accepted cervical condition.
On June 27, 2012 appellant, through his attorney, requested reconsideration and
submitted a narrative statement and physical therapy notes dated July 27, 2011. In a June 30,
2011 report, Dr. Marc Weinstein, a Board-certified orthopedic surgeon, diagnosed displacement
of a cervical intervertebral disc without myelopathy. He opined that appellant was capable of
returning to full activity. Dr. Weinstein did not address the issue of permanent impairment.
3

A.M.A., Guides (6th ed., 2009), pp.564-66.

2

On February 17, 2012 Dr. Joseph advised that he would provide a rating of the cervical
spine and stated that appellant had an approximately 15 percent permanent impairment rating
under Table 15-2 (Digit Regional Grid -- Digit Impairments),4 page 392 and Table 15-5
(Shoulder Regional Grid -- Upper Extremity Impairments)5 of the A.M.A., Guides. He
explained that the impairment rating was based on appellant’s C5-6 disc herniation with right
radicular symptoms radiating with decreased sensation in the distribution of C5, C6 and C7
dermatomes. Appellant had clinically significant radiculopathy verified by a magnetic resonance
imaging (MRI) scan study.
In a June 13, 2012 report, Dr. Rodney D. Rodrigo, a Board-certified physiatrist, reviewed
appellant’s medical history, conducted a physical examination and diagnosed cervical disc
herniation at C5-6 and C6-7, right ulnar neuropathy at the elbow and paraesthesias in the right
hand, mainly the fifth digit. Appellant presented with numbness and tingling in his right hand,
mainly the fifth digit and his symptoms occurred on an intermittent basis with no specific
aggravating or relieving factors. Regarding the right upper extremity symptoms, he appeared to
be at maximum medical improvement. Appellant found that May 2, 2011 x-rays of the cervical
spine and results showed mild osteophyte formation and mild listhesis on extension view, but the
alignment was with normal limits on flexion and neutral lateral views. A May 24, 2011 MRI
scan of the cervical spine revealed cervical herniated nucleus pulposus at C5-6 and C6-7.
Appellant underwent an electromyogram and nerve conduction studies (EMG/NCS), which
showed a right ulnar neuropathy at the elbow, mild in degree. Mild carpal tunnel syndrome on
the right could not be ruled out. There was no evidence of cervical radiculopathy on the right
side on EMG examination. Dr. Rodrigo concluded that “per the 1996 Florida Uniform
Permanent Impairment Rating Schedule, [appellant had] a 10 [percent] upper extremity
impairment due to his ulnar neuropathy at the elbow, which [was] mild in severity. This relates
to a [six percent] whole person impairment.”
On July 12, 2012 Dr. James W. Dyer, a medical adviser, reviewed the record. He noted
that the EMG/NCS tests confirmed no evidence of cervical radiculopathy. Dr. Dyer found that
the medical record did not support any ratable impairment of the right or left upper extremities
related to appellant’s accepted cervical conditions.
By decision dated July 31, 2012, OWCP denied modification of its January 17, 2012
decision.6
On March 20, 2013 appellant, through his attorney, requested reconsideration and
submitted a February 8, 2013 report from Dr. William C. Daniels, a Board-certified orthopedic
surgeon, who reviewed appellant’s medical history and conducted a physical examination.
Dr. Daniels found no evidence of radicular symptomatology. Examination of the shoulder,
elbow, wrist, fingers and thumb revealed no loss of motion, with no complaint of discomfort at
any of these levels. There was no obvious evidence of muscle atrophy in the neck, shoulder or
4

A.M.A., Guides (6th ed., 2009), pp.391-94.

5

Id. at pp. 401-05.

6

On November 12, 2012 appellant, through his attorney, filed a second claim for a schedule award.

3

upper extremity musculature, bilaterally. Dr. Daniels concluded that appellant had no (zero
percent) impairment of either upper extremity based on the sixth edition of the A.M.A., Guides.
Although appellant had some evidence of ulnar nerve involvement, primarily sensory, it
originated in the right elbow and did not correlate with cervical radiculopathy or cervical spine
involvement as noted in the allowed conditions. There was some evidence of diminished
sensation over the thumb and index finger, which was more consistent with a mild carpal tunnel
source, rather than the cervical spine. Dr. Daniels stated that the EMG/NCS tests essentially
confirmed the lack of any definite radicular problems originating from the cervical spine. He
noted that appellant also did not have any significant clinical symptomatology due to carpal
tunnel syndrome.
By decision dated April 4, 2013, OWCP denied modification of its July 31, 2012
decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim, including that he or she sustained an injury in the
performance of duty as alleged and that an employment injury contributed to the permanent
impairment for which schedule award compensation is alleged.7
The schedule award provision of FECA8 and its implementing regulations9 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. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.10 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.11 It is well established that in determining the amount of a
schedule award for a member of the body that sustained an employment-related permanent

7

See Bobbie F. Cowart, 55 ECAB 476 (2004). In Cowart, the employee claimed entitlement to a schedule award
for permanent impairment of her left ear due to employment-related hearing loss. The Board determined that
appellant did not establish that an employment-related condition contributed to her hearing loss and, therefore, it
denied her claim for entitlement to a schedule award for the left ear.
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id.

11

FECA Bulletin No. 09-03 (issued March 15, 2009).

4

impairment, preexisting impairments of the body are to be included.12 A schedule award is not
payable under section 8107 of FECA for an impairment of the whole person.13
A schedule award is not payable for a member, function or organ of the body not
specified in FECA or in the implementing regulations.14 As neither FECA nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back or spine,
no claimant is entitled to such an award.15 However, as FECA makes provision for the
extremities, a claimant may be entitled to a schedule award for permanent impairment to an
extremity even though the cause of the impairment originates in the spine, if the medical
evidence establishes impairment as a result of the employment injury.16
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.17
ANALYSIS
The Board finds that the medical evidence fails to establish that appellant sustained any
permanent impairment of either upper extremity. OWCP accepted his claim for neck sprain and
cervical bulging/displaced disc at C5-6. Although appellant may not receive a schedule award
for permanent impairment to his back or spine,18 he may be entitled to a schedule award for
impairment to his upper extremities, provided the medical evidence establishes such
impairment.19 The medical evidence of record does not establish that he sustained permanent
impairment of his upper extremities due to the accepted cervical spine conditions.
12

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.3(a)(3) (September 1995). This portion of OWCP’s procedures provides that the
impairment rating of a given scheduled member should include any preexisting permanent impairment of the same
member or function.
13

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

14

See Tania R. Keka, 55 ECAB 354 (2004).

15

See id. FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

16

See George E. Williams, 44 ECAB 530 (1993). In 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by the schedule
regardless of whether the cause of the impairment originated in a scheduled or nonscheduled member.
17

See Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

18

5 U.S.C. § 8101(19); Patricia J. Horney, 56 ECAB 256 (2005).

19

See George E. Williams, supra note 16.

5

On December 16, 2011 Dr. Joseph stated that appellant had six percent whole person
impairment under Table 17-2 of the A.M.A., Guides. The Board notes that FECA does not
authorize schedule awards for impairment of back or spine or the whole person.20 Dr. Joseph
thereafter found that appellant had approximately 15 percent permanent impairment under Table
15-2 and Table 15-5 of the A.M.A., Guides. On July 12, 2012 Dr. Hogshead reviewed the
medical evidence of record and noted that the EMG/NCS studies confirmed no evidence of
cervical radiculopathy. As the record did not support any ratable impairment of the right or left
upper extremity related to appellant’s accepted cervical conditions, the medical adviser properly
concluded that there was no medical basis for impairment to the upper extremities.
The February 8, 2013 report of Dr. Daniels found no evidence of radicular
symptomatology upon examination. Examination of the shoulder, elbow, wrist, fingers and
thumb revealed no loss of motion. There was no complaint of discomfort at any of these levels.
There was no obvious evidence of muscle atrophy in the neck, shoulder or upper extremity
musculature, bilaterally. Dr. Daniels concluded that appellant had no impairment of the upper
extremities based on the sixth edition of the A.M.A., Guides. He stated that although appellant
had some evidence of ulnar nerve involvement, it originated in the right elbow and did not
correlate with cervical radiculopathy or cervical spine involvement as related to the accepted
conditions. There was some evidence of diminished sensation over the thumb and index finger,
which was more consistent with a mild carpal tunnel source, rather than the cervical spine. The
diagnostic studies confirmed the lack of any definite radicular problems originating from the
cervical spine. Dr. Daniels noted that appellant also did not have any significant clinical
symptomatology due to carpal tunnel syndrome. Thus, the Board finds that there was no ratable
impairment of a scheduled member under the sixth edition of the A.M.A., Guides.
As the reports from Drs. Weinstein and Rodrigo do not provide an impairment rating
based on the sixth edition of the A.M.A., Guides, the Board finds that they are of reduced
probative value and are insufficient to establish appellant’s claim.
The July 27, 2011 physical therapy notes do not constitute medical evidence as they were
not prepared by a physician.21 Therefore, they are insufficient to establish a claim.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law.
Appellant has not submitted sufficient medical evidence based upon objective findings,
which establishes that he sustained any permanent impairment to his upper extremities. The
Board finds that he is not entitled to a schedule award as a result of his accepted cervical spine
injury. OWCP’s April 4, 2013 decision was proper under the facts of this case.22

20

See D.H., 58 ECAB 358 (2007). See also Thomas Martinez, 54 ECAB 623 (2003).

21

Physical therapists are not physicians under FECA. See 5 U.S.C. § 8101(2).

22

See J.D., Docket No. 13-627 (issued July 17, 2013).

6

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for impairment to a
scheduled member.
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 10, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sterling, KS, Employer
__________________________________________

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

Docket No. 10-1681
Issued: March 1, 2011

Case Submitted on the Record

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

JURISDICTION
On June 9, 2010 appellant filed a timely appeal from a May 12, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on March 1, 2008.
FACTUAL HISTORY
On October 22, 2008 appellant, then a 56-year-old rural letter carrier, filed a traumatic
injury claim alleging that she was loading a postal vehicle with mail on March 1, 2008 when she
tripped over a curb, fell and hit her back on a mail hamper causing a back injury. She did not
stop work.
In an October 31, 2008 letter, the Office informed appellant that additional evidence was
needed to establish her claim.

The employing establishment controverted the claim on November 6, 2008 on the basis
that appellant did not seek immediate medical attention after the March 1, 2008 incident. It
pointed out that she did not file the claim until seven months later.
In an October 31, 2008 statement, appellant specified that she could not rest and
recuperate after her fall because she did not have sufficient leave and no substitute was available
to cover for her. She denied any preexisting back conditions.
A November 7, 2008 report from Dr. Matthew Schlotterback, a Board-certified family
practitioner, noted that appellant fell and hit her back on a mail hamper on March 1, 2008. He
obtained spinal x-rays that appeared stable. Dr. Schlotterback diagnosed back pain and muscle
strain. He checked “yes” in response to a form question asking whether appellant’s condition
was caused or aggravated by her employment and remarked that her pain started after the fall.
By decision dated December 19, 2008, the Office denied appellant’s claim, finding that
the evidence supported that the March 1, 2008 incident occurred but the medical evidence did
not provide a definitive diagnosis.
Appellant requested reconsideration on December 17, 2009 and submitted a December 7,
2009 report from Dr. M. Camden Whitaker, a Board-certified orthopedic surgeon, who noted
that appellant presented with severe low back and lower extremity pain. She related that the pain
developed after she fell on March 1, 2008. Appellant told the physician that she had intermittent
low back pain for eight years before the workplace fall exacerbated her condition and caused it to
progress. A discogram and magnetic resonance imaging (MRI) scan demonstrated a degenerative
L5-S1 disc. Dr. Whitaker recommended an anterior lumbar interbody fusion at L5-S1.
Appellant requested a telephone hearing on January 27, 2010. By decision dated
March 1, 2010, the Office hearing representative denied her request on the grounds that it was
not made within 30 days of the Office’s December 19, 2008 decision. The Office hearing
representative noted that the matter could be further addressed through the reconsideration
process.1
In a March 24, 2010 report, Dr. Whitaker noted appellant’s history of injury and stated
that she had an anterior lumbar interbody fusion at L5-S1 about three months earlier. Appellant
reported having intermittent back and leg symptoms for about eight years. Dr. Whitaker advised
that she related having a fall on March 1, 2008 after which she had severe low back and leg
symptoms. Appellant advised that her symptoms gradually diminished over a few weeks but
after three months there was a gradual increase in the severity of her low back and bilateral leg
symptoms. Regarding the March 1, 2008 workplace fall, Dr. Whitaker noted that appellant “said
the injury occurred on March 1, 2008, when she tripped over a cement curb while loading a
vehicle with mail. She fell, hitting the mail cart with her upper back and buttock, twisting the
spine. [Appellant] mentioned that at that time the pain was so intense that she thought she would
vomit.”

1

Appellant did not appeal this decision to the Board.

2

In a May 12, 2010 decision, the Office denied appellant’s claim. It found the medical
evidence insufficient to establish that her low back condition was causally related to the March 1,
2008 work incident.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of her claim by the weight of reliable,
probative and substantial evidence,3 including that she is an “employee” within the meaning of
the Act and that she filed her claim within the applicable time limitation.4 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
The evidence supports that appellant was loading a vehicle with mail when she tripped
over a curb and fell on March 1, 2008. However, she has not submitted sufficient medical
evidence to establish that this employment incident caused or aggravated her low back condition.
Dr. Whitaker stated in his December 7, 2009 and March 24, 2010 reports that appellant
had cervical, lumbar and lower extremity pain related to the March 1, 2008 fall, notably cervical
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

T.H., 59 ECAB 388 (2008).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

spondylosis and a degenerative L5-S1 disc. He noted that appellant described the injury as
occurring on March 1, 2008, when she tripped over a cement curb, causing her to fall, hitting the
mail cart with her upper back and buttock, twisting the spine. However, Dr. Whitaker appeared
to relate appellant’s belief regarding causal relationship.8 He did not specifically offer his own
opinion regarding whether the March 1, 2010 work incident caused or aggravated her low back
condition. To the extent that his description of the work incident represents his opinion on
causal relationship, he did not provide adequate medical rationale to explain why the fall on
March 1, 2010 would cause or aggravate her low back condition. A medical opinion not fortified
by medical rationale is of little probative value.9 The need for medical reasoning is particularly
important as Dr. Whitaker pointed out that appellant had preexisting back problems for eight
years before the incident. Appellant had denied any preexisting back condition in an October 31,
2008 statement. It is not apparent that Dr. Whitaker had a full or accurate history of appellant’s
preexisting condition. This reduces the probative value of his opinion on causal relation.10
Dr. Schlotterback’s November 7, 2008 report is also insufficient to establish the claim.
While the physician checked a box “yes” that appellant’s condition was caused or aggravated by
the March 1, 2008 incident, he provided little reasoning in support of his opinion.11 The only
explanation he provided was that appellant’s pain started after the fall. He did not explain the
reasons why the type of fall experienced by appellant would cause or aggravate a diagnosed low
back sprain. The Board has held that the fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.12
Consequently, this report is insufficient to meet appellant’s burden of proof.
Appellant argues on appeal that the Office’s decision was contrary to fact and law. As
stated above, the medical evidence did not sufficiently explain how her March 1, 2008 fall
brought about her condition.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a traumatic injury in
the performance of duty on March 1, 2008.

8

See P.K., 60 ECAB ___ (Docket No. 08-2551, issued June 2, 2009) (an award of compensation may not be
based on a claimant’s belief of causal relationship).
9

See George Randolph Taylor, 6 ECAB 986, 988 (1954).

10

See Robert Broome, 55 ECAB 339 (2004).

11

See Alberta S. Williamson, 47 ECAB 569 (1996) (an opinion on causal relationship which consists only of a
physician checking “yes” on a form report without further explanation or rationale is of little probative value).
12

L.D., 61 ECAB ___ (Docket No. 09-1503, issued April 15, 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the May 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUPPLY SYSTEMS COMMAND, Gulfport, MS,
Employer
__________________________________________

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

Docket No. 12-1699
Issued: February 14, 2013

Case Submitted on the Record

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

JURISDICTION
On August 9, 2012 appellant filed a timely appeal from a July 26, 2012 nonmerit decision
in which an OWCP hearing representative denied his request for a hearing. 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 decision denying appellant’s hearing request.
ISSUE
The issue is whether OWCP properly denied appellant’s request for a hearing. On appeal
appellant generally asserts that he is entitled to wage-loss compensation and a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. In a November 15, 2010 decision, the
Board affirmed September 29, 2009 and January 4, 2010 OWCP merit decisions that denied

1

5 U.S.C. §§ 8101-8193.

appellant’s claim for a schedule award.2 The law and the facts of the previous Board decision
are incorporated herein by reference.
On June 25, 2012 appellant requested a hearing. In a July 26, 2012 decision, OWCP
denied appellant’s request for a hearing on the grounds that the last decision in this case was the
November 15, 2010 decision of the Board. It indicated that Board decisions were final, and
OWCP’s Branch of Hearings and Review did not have jurisdiction to review decisions of the
Board. OWCP also advised appellant that the issue in the case could equally be addressed by
requesting reconsideration with OWCP.
LEGAL PRECEDENT
A claimant dissatisfied with a decision of OWCP shall be afforded an opportunity for an
oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a review of the written record must be submitted, in writing, within 30 days of the
date of the decision for which a hearing is sought. If the request is not made within 30 days or if
it is made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.3 The Board has held that OWCP, in its broad discretionary
authority in the administration of FECA has the power to hold hearings in certain circumstances
where no legal provision was made for such hearings and that OWCP must exercise this
discretionary authority in deciding whether to grant a hearing.4
FECA provides OWCP with original jurisdiction in the processing of compensation
claims and 5 U.S.C. § 8124(a) provides OWCP with the duty and authority to issue an initial
decision on an employee’s claim for compensation. Once an initial decision is made in a
compensation case, the claimant’s rights arise by which the claimant may seek further review of
his claim: the right to a hearing before OWCP, the right to reconsideration before OWCP or an
appeal to the Board. The Board has clarified that OWCP does not have the discretionary
authority to grant a request for hearing immediately following a Board decision. OWCP’s
Branch of Hearings and Review may not assume jurisdiction in the claims process absent a final
adverse decision by the Director. Following the Board’s review of OWCP’s decision, there is no
final decision of OWCP left unreviewed over which the Branch of Hearings and Review can
assume jurisdiction to exercise its discretionary appellate authority.5
ANALYSIS
In its July 26, 2012 decision, OWCP denied appellant’s request for a hearing on the
grounds that the last decision in this case was the decision of the Board dated November 15,
2010 in which the Board affirmed September 29, 2009 and January 4, 2010 OWCP decisions. It
properly indicated that Board decisions were final, and OWCP’s Branch of Hearings and Review
2

Docket No. 10-823 (issued November 15, 2010). On July 8, 2008 appellant, a materials handler, sustained
employment-related sprains of the right elbow and forearm and right lateral epicondylitis when he injured his arm
unloading pallets. He was removed from his position for cause in April 2009.
3

Claudio Vazquez, 52 ECAB 496 (2001).

4

Marilyn F. Wilson, 52 ECAB 347 (2001).

5

K.H., Docket No.09-385 (issued September 14, 2009); Robert N. Thomas, 51 ECAB 180, 180-81 (1999).

2

did not have jurisdiction to review decisions of the Board.6 OWCP did not subsequently issue a
final decision before appellant requested a hearing. The Board has held that, following the
Board’s review of OWCP’s decision, a claimant does not have the right under 5 U.S.C.
§ 8124(b)(1) to request a hearing in the absence of a subsequent final OWCP decision.7 In the
instant case, appellant had no right to request a hearing following the issuance of the Board’s
November 15, 2010 decision because there is no final decision of OWCP left unreviewed over
which OWCP’s Branch of Hearings and Review could assume jurisdiction to exercise its
discretionary appellate authority.8 Therefore, the Board finds that OWCP properly denied
appellant’s request for a hearing on July 26, 2012.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the July 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 14, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6

See id.; 20 C.F.R. § 501.6(d).

7

See id.

8

Id. See also Eileen A. Nelson, 46 ECAB 377 (1994). The Branch of Hearings and Review stated in its July 26,
2012 decision that it had exercised its discretion in denying the request for a hearing. However, as discussed, it is
not within OWCP’s discretion to grant a hearing immediately following a Board decision. This was harmless error.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
__________________________________________

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Appearances:
Edward T. Kindall, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-766
Issued: July 9, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 25, 2007 appellant filed a timely appeal from nonmerit decisions of the
Office of Workers’ Compensation Programs dated September 12, October 23 and November 15,
2006 denying her requests for reconsideration on the grounds that they were untimely filed and
did not establish clear evidence of error. Because more than one year has elapsed between the
most recent merit decision dated November 3, 2003 and the filing of this appeal on January 25,
2007, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s requests for reconsideration
as untimely filed and lacking clear evidence of error.
FACTUAL HISTORY
This is the second appeal in this case to the Board. By decision dated July 17, 2006, the
Board affirmed the Office’s January 6, 2006 decision denying appellant’s request for merit

review. The facts and the circumstances of the case as set forth in the Board’s prior decision are
incorporated herein by reference.1 Facts pertinent to this appeal are provided below.
On July 11, 2002 appellant, then a 52-year-old letter carrier, filed an occupational disease
claim, alleging that she sustained an emotional condition due to factors of her federal
employment. She claimed that she was harassed, threatened, coerced, belittled, humiliated and
deceived by her supervisors. Appellant alleged that she was reassigned to positions and shifts
which she found objectionable and was sent for numerous “fitness[-]for[-]duty examinations.”
She further alleged that her supervisors had her followed and told her they had the power to
move her anywhere at any time. By decision dated October 17, 2002, the Office denied
appellant’s claim, finding that she had failed to allege a compensable factor of employment and
had not established that she was injured in the performance of duty.
At the July 8, 2003 oral hearing, appellant testified that she suffered from post-traumatic
stress disorder and depressive disorder because the employing establishment failed to place her
and treat her as a “rehab[ilitation]” employee following her prior accepted claim for carpal tunnel
syndrome. She reiterated her allegations of coercion and harassment by her supervisors and
indicated that she had filed an Equal Employment Opportunity (EEO) complaint.
By decision dated November 3, 2003, an Office hearing representative affirmed the
Office’s October 17, 2002 decision, finding that appellant had identified no compensable
employment factors. The hearing representative found further that appellant’s reactions of stress
were self-generated; that the employing establishment had not erred or acted abusively regarding
administrative or personnel matters; and that appellant had not submitted any corroborating
evidence substantiating her allegations.
On November 1, 2004 appellant’s representative requested reconsideration. By decision
dated January 6, 2006, the Office denied her request for reconsideration on the grounds that she
had not provided any new or relevant evidence supporting her claim.
Appellant sought review by the Board. By decision dated July 17, 2006, the Board
affirmed the Office’s denial of appellant’s request for reconsideration, finding that she had not
met any of the requirements of 5 U.S.C. § 8128(a).
On August 8, 2006 appellant requested reconsideration of the November 3, 2003
decision. She asserted that her emotional condition had precluded her from understanding legal
matters and that she did not fully comprehend what was required to establish her case. In a
“[l]etter in support of Petition for Reconsideration” dated “July 2006,” appellant reiterated that
her emotional condition was due to factors of employment and provided a chronology of events
alleged to have caused her condition.
Appellant submitted numerous documents in support of her request, including: offers
and acceptances of limited-duty jobs; notifications of personnel action dated March 24, 1999 and
November 24, 2000; a September 22, 1999 letter to appellant from the employing establishment,
scheduling her for a fitness-for-duty examination; affidavit questions to Linda Flippo pursuant to
1

Docket No. 06-1013 (issued July 17, 2006).

2

appellant’s EEO case; undated work restrictions, bearing an illegible signature; an undated
document entitled “Union’s Contentions and Disputes;” undated “Step A Discussion notes” and
an April 25, 1997 memorandum to the employing establishment from Kathy Matyas, R.N.,
regarding appellant’s work restrictions.
By decision dated September 12, 2006, the Office denied appellant’s request for
reconsideration as untimely and failing to present clear evidence of error. The Office determined
that the documents had previously been considered.
The record contains a copy of a September 14, 2006 letter to Congressman Jim Cooper,
in which appellant alleged that the employing establishment’s harassment and discrimination
was responsible for her post-traumatic stress disorder. She claimed that the overwhelming
medical evidence submitted was not considered by the Office. The record also contains an
undated “Letter for Reconsideration,” received by facsimile from Congressman Cooper’s office
on October 12, 2006 at 9:32 a.m. It repeated the allegations made in appellant’s August 8, 2006
request for reconsideration.
By decision dated October 23, 2006, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to show clear evidence of error.
The record contains a copy of an undated “Letter for Reconsideration,” received by
facsimile from Congressman Cooper’s office on October 31, 2006. It is a duplicate of the
undated “Letter for Reconsideration,” received by facsimile from Congressman Cooper’s office
on October 12, 2006 at 9:32 a.m. The record also contains a copy of the previously submitted
September 14, 2006 letter to Congressman Cooper. Appellant submitted a July 10, 2003 witness
statement from Florinda B. Lucas, a coworker, prepared in connection with her EEO case.
Ms. Lucas described what she perceived to be stress experienced by appellant as a result of
alleged actions of the employing establishment.
By decision dated November 15, 2006, the Office denied appellant’s request for
reconsideration, finding that it was untimely and failed to show clear evidence of error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act2 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.”3
20 C.F.R. § 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
2

5 U.S.C. § 8101 et seq.

3

20 C.F.R. § 10.605.

3

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.4 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. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision. 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.5
ANALYSIS
In July 2002, appellant filed an occupational disease claim alleging that she sustained an
emotional condition due to various incidents and conditions at work. In two merit decisions, the
Office denied her claim on the grounds that she did not establish any compensable employment
factors. In a January 6, 2006 decision, the Office denied appellant’s request for reconsideration,
finding that she had not raised a substantive legal issue and had not presented new or relevant
evidence. On July 17, 2006 the Board affirmed the January 6, 2006 decision. In decisions dated
September 12, October 23 and November 15, 2006, the Office denied appellant’s requests for
further review of the merits of her claim, on the grounds that her requests were untimely filed
and failed to demonstrate clear evidence of error.
In its September 12, October 23 and November 15, 2006 decisions, the Office properly
determined that appellant filed untimely requests for reconsideration.
Appellant’s
reconsideration requests were filed on August 8, October 12 and 31, 2006, respectively. As all
of the reconsideration requests were filed more than one year after the Office’s most recent merit
decision of November 3, 2003, appellant must demonstrate clear evidence of error on the part of
the Office.
Appellant has not demonstrated clear evidence of error on the part of the Office in issuing
its September 12, October 23 and November 15, 2006 decisions. She did not submit the type of
positive, precise and explicit evidence or argument which manifests on its face that the Office
committed an error.
In support of her August 8, 2006 request, appellant asserted that her emotional condition
precluded her from understanding legal matters and that she did not fully comprehend what was
required to establish her case. This contention is not relevant to the issue that was before the
4

See Alberta Dukes, 56 ECAB ___ (Docket No. 04-2028, issued January 11, 2005); see also Leon J. Modrowski,
55 ECAB 196 (2004).
5

See Alberta Dukes, supra note 4.

4

Office, namely, whether appellant had established a compensable factor of employment and is,
therefore, insufficient to establish clear evidence of error.6 Appellant reiterated that her
emotional condition was due to factors of employment and provided a chronology of events
alleged to have caused her condition. The information provided is merely a restatement of
allegations previously made and considered by the Office in its November 3, 2003 decision and
thus does not meet the standard for establishing clear evidence of error. Appellant submitted
duplicates of numerous documents of record, including: offers and acceptances of limited-duty
jobs; notifications of personnel action; a September 19, 2002 memorandum from Paul Robinson
to Patricia Johnson; a September 22, 2002 employing establishment response to appellant’s
allegations; a September 27, 1999 fax cover sheet containing comments from appellant; and a
December 14, 1998 job analysis report. Evidence that repeats or duplicates evidence already in
the case record has no evidentiary value and does not constitute a basis for reopening a case.7
Appellant also submitted a September 22, 1999 letter from the employing establishment,
scheduling her for a fitness-for-duty examination; affidavit questions to Ms. Flippo pursuant to
appellant’s EEO case; undated work restrictions, bearing an illegible signature; an undated
document entitled “Union’s Contentions and Disputes;” undated “Step A Discussion notes” and
an April 25, 1997 memorandum to the employing establishment from Ms. Matyas, R.N.,
regarding appellant’s work restrictions. This evidence does not demonstrate error on the part of
the Office. For these reasons, appellant has not raised a substantial question concerning the
correctness of the Office’s November 3, 2003 decision and the Office properly determined that
she failed to establish clear evidence of error in that decision.
In her October 12, 2006 request, appellant claimed that the overwhelming medical
evidence submitted had not been considered by the Office. In this case, the issue for
determination is whether appellant has established a compensable factor of employment.
Therefore, appellant’s contention is irrelevant. The Board has held that the submission of
evidence which does not address the particular issue involved does not constitute a basis for
reopening a case.8 Appellant submitted a copy of a September 14, 2006 letter to Congressman
Cooper alleging that the employing establishment’s harassment and discrimination was
responsible for her post-traumatic stress disorder. She also submitted an undated “Letter for
Reconsideration,” repeating the allegations made in her August 8, 2006 request for
reconsideration. As these documents are repetitious of evidence previously submitted and
reviewed by the Office, they have no evidentiary value and do not establish clear evidence of
error.
Appellant’s October 31, 2006 request for reconsideration was a duplicate of the undated
“Letter for Reconsideration,” received by the Office on October 12, 2006. She also submitted a
copy of her September 14, 2006 letter to Congressman Cooper. This duplicative evidence is
insufficient to show error on the part of the Office.9 Appellant submitted a July 10, 2003 witness
6

See Alberta Dukes, supra note 4.

7

Edward W. Malaniak, 51 ECAB 279 (2000); Eugene F. Butler, 36 ECAB 393 (1984).

8

See Arlesa Gibbs, 53 ECAB 204 (2001).

9

See supra note 7.

5

statement from Ms. Lucas, a coworker, prepared in connection with her EEO case. Ms. Lucas
described what she perceived to be stress experienced by appellant as a result of alleged actions
of the employing establishment. Again, while Ms. Lucas’ statement might be relevant to
appellant’s original emotional condition claim, it is not of sufficient probative value to
prima facie shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of the Office’s decision.
The Board finds that evidence submitted by appellant in support of her requests for
reconsideration, dated August 8, October 12 and 31, 2006, did not manifest on its face that the
Office committed an error and failed to raise a substantial question concerning the correctness of
the Office’s decision. Therefore, it was insufficient to establish clear evidence of error in each
case.10
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claims for
reconsideration of the merits on the grounds that they were untimely filed and failed to show
clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 15, October 23 and September 12, 2006 are affirmed.
Issued: July 9, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
10

See supra note 4.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-268
Issued: June 10, 2008

Case Submitted on the Record

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

JURISDICTION
On October 29, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 25, 2007 nonmerit decision which denied her request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over this nonmerit decision. The last merit decision of record was the Office’s September 20,
2006 decision. Because more than one year has elapsed between the last merit decision and the
filing of this appeal on October 29, 2007, the Board lacks jurisdiction to review the merits of this
claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

FACTUAL HISTORY
On December 26, 2003 appellant, then a 30-year-old mail processor, filed an
occupational disease claim alleging that she sustained an injury to her back, neck, legs and left
side of the body as a result of her employment duties. The Office accepted her claim for
aggravation of cervical, lumbar and thoracic strains as well as cervical, lumbar and thoracic
myofascitis.
On August 4, 2004 appellant filed two notices of recurrence claiming total disability for
the time periods June 4 to 11, 27 and July 22 to 25, 2004. She also filed several claims for
compensation for the periods May 16 to June 11, June 27 to July 25 and August 6 to 28, 2004.
On September 14, 2004 the Office denied appellant’s recurrence and subsequent wage
losses for the period June 3 to 11 and June 27 to July 25, 2004.
On September 20, 2004 the Office issued a revised decision which again denied
appellant’s claim.
On September 23, 2004 the Office issued a modified decision replacing the September 14
and 20, 2004 decisions and stating that the wage-loss claim for the period June 27 and July 22 to
25, 2004 was being developed and was not denied at that time.
Appellant filed additional claims for compensation for the time periods September 2 to
10 and 16 to 29, 2004. She had been working in limited duty since April 2004.
On September 30, 2004 appellant requested reconsideration and submitted additional
information.
In a November 9, 2004 merit decision, the Office denied modification of the
September 23, 2004 decision which denied appellant’s claim for recurrence.
Appellant filed additional claims for recurrence and compensation for the following time
periods October 1, 14 and 17, October 3 to November 5, November 21 to December 5 and
November 26 to December 8, 2004, January 19 to February 4, February 5 to 18 and February 19
to March 4, 2005.
On December 29, 2004 the Office accepted appellant’s claim for the following
conditions: aggravation of cervical strain; cervical and thoracic myofascitis; thoracic sprain;
lumbar sprain and lumbar myofascitis.
In an April 8, 2005 decision, the Office denied appellant’s claim for recurrence and
subsequent claims for compensations for the time periods June 27, August 11 to 27 and
October 1 to November 5, 2004, January 19 to February 4 and February 5, 2005 and continuing
finding that the evidence did not establish that appellant was unable to perform restricted-duty
work due to a worsening of her accepted conditions.
Appellant filed additional claims for recurrences and compensation for the time periods
January 9 to 19, January 9 to 16, March 21 to May 20 and April 7 to May 20, 2005.

2

On May 27, 2005 appellant requested reconsideration.
In a July 19, 2005 merit decision, the Office denied modification of the April 8, 2005
decision.
On March 22, 2006 the Office issued an amended decision modifying the April 8, 2005
decision to include the period November 21 to December 5, 2004 to the list of time periods
denied compensation.
Appellant filed additional claims for compensation for the periods November 4, 2005 to
March 31, 2006, and March 17 to May 3, 2006.
On June 20, 2006 appellant requested reconsideration of the March 22, 2006 decision.
Appellant filed additional claims for compensation for the periods May 5 to July 14 and
July 21 to August 18, 2006.
On September 20, 2006 the Office modified the March 22, 2006 decision to accept that
appellant sustained a recurrence on June 3, 2004 and was entitled to compensable wage loss for
the period June 3 to 11, 2004 and wage loss for medical care on August 15, October 14 and 15,
2004 for a total of 61.33 hours of combined wage loss.
In a September 20, 2006 letter, Dr. Annemarie Poleck, an osteopath, provided
impairment rating of appellant’s conditions.
Appellant submitted office notes from the Eisman Clinic, which stated that she had an
appointments on certain dates in 2006 and 2007. In a November 20, 2006 letter, Dr. Jeffrey
Eisman, a chiropractor, listed the dates appellant was seen in the office during the fall of 2006.
In a May 1, 2007 letter, Dr. Polek addressed the Office’s questions regarding appellant’s current
condition. In a June 14, 2006 letter, Dr. Eisman addressed the second opinion physician’s report
regarding appellant’s need for continuing treatment.
In a September 21, 2007 letter, appellant requested reconsideration of the September 20,
2006 decision.
On October 25, 2007 the Office issued a nonmerit decision denying reconsideration on
the grounds that appellant’s request was untimely and did not present clear evidence that the
Office’s last merit decision was incorrect.
LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.1
The Office 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.2 When an application for review is
1

5 U.S.C. §§ 8101-8193.

2

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

3

untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.3 The Office procedures states
that the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review shows clear
evidence of error on the part of the Office.4 In this regard, the Office will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.5
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
be 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.6 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. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinions or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.7 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.8
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. The Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision. A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.9 In this case,
appellant’s September 21, 2007 letter requesting reconsideration was submitted more than one
year after the last merit decision issued on September 20, 2006 and is therefore untimely. As

3

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

4

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: The Office will consider an untimely
application for reconsideration only if the application demonstrates clear evidence of error on the part of it in its
most recent decision. The application must establish, on its face, that such decision was erroneous. 20 C.F.R.
§ 10.607(b).
5

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

6

Leon J. Modrowski, 55 ECAB 196 (2004); Dorletha Coleman, 55 ECAB 143 (2003).

7

Id.

8

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

9

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

4

appellant’s request was untimely she must demonstrate clear evidence of error by the Office in
denying her recurrence and claims for compensation.10
Appellant has not demonstrated clear evidence of error on the part of the Office in issuing
its September 20, 2006 decision. She did not submit the type of positive, precise and explicit
evidence which manifests on its face that the Office committed an error. The September 20,
2006 decision modified the March 22, 2006 decision which denied appellant’s claim on the
grounds that she did not establish that her claims for recurrences and subsequent claims for
compensation for the periods June 27, August 11 to 27,11 October 1 to November 5,12
November 21 to December 5, 2004, January 19 to February 4 and February 5 to March 4, 200513
were causally related to her accepted conditions.
Appellant did not submit any evidence relevant to the time periods at issue therefore she
did not raise a substantial question concerning the correctness of the Office’s October 25, 2007
decision and the Office properly determined that appellant did not show clear evidence of error
in the decision.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

10

20 C.F.R. § 10.607(b).

11

Except August 15, 2004 which was accepted for wage loss in the September 20, 2006 decision.

12

Except October 14 and 15, 2004 which were accepted for wage loss in the September 20, 2006 decision.

13

The original denial on April 8, 2005 stating the time period was “February 5, 2005 and continuing” but as
appellant has filed additional claims for compensation the closed time period of “February 5 to March 4, 2005” will
be used.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 25, 2007 decision is affirmed.
Issued: June 10, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6