United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, GREENE POST
OFFICE, Greene, NY, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0644
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On March 19, 2021 appellant, through counsel, filed a timely appeal from an October 5,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1
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
3

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the October 5, 2020 decision. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include additional conditions as a consequence of the accepted
December 12, 2014 employment injury.
FACTUAL HISTORY
This case has been previously before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 5, 2015 appellant, then a 51-year-old rural carrier, filed a notice of recurrence
(Form CA-2a) claiming disability under OWCP File No. xxxxxx938.5 She alleged that she
reinjured her left shoulder moving mail from her vehicle to her supervisor’s vehicle on
December 12, 2014 while in the performance of duty. Appellant stopped work on that date.
OWCP converted the recurrence claim to a new traumatic injury claim (Form CA-1) and assigned
OWCP File No. xxxxxx312. On January 14, 2016 OWCP accepted the claim for partial rotator
cuff tear of the left shoulder and paid appellant retroactive wage-loss compensation on the
supplemental rolls as of February 1, 2015 and on the periodic rolls as of July 24, 2016.
In a May 5, 2016 report, Dr. Thomas Van Gorder, a Board-certified orthopedic surgeon,
diagnosed status post shoulder repair for rotator cuff tear of the left shoulder and a partial cuff tear
of the right shoulder. He noted her initial injury to her left shoulder in June 2013, and her
subsequent injury to her left shoulder in December 2014. He related that appellant had developed
discomfort in the right shoulder, noting that she did not have specific trauma to the right shoulder,
and opined that her right shoulder condition resulted from favoring her left shoulder. Dr. Van
Gorder noted that a right shoulder magnetic resonance imaging (MRI) scan in June 2015 revealed
a partial cuff tear and tendinitis, and that appellant was unable to obtain treatment for the right
shoulder. He also noted that the right shoulder had excellent strength and a little subacromial
crepitus.
In a July 28, 2016 report, Dr. Van Gorder diagnosed status post rotator cuff tear of the left
shoulder and a partial tear with tendinitis of the right shoulder. Regarding the right shoulder, he
explained that appellant developed impingement pain, tendinitis, and discomfort of the right
shoulder, which he opined “is definitely related to her left shoulder injury.” Dr. Van Gorder
concluded that her right shoulder condition was caused by overuse secondary to favoring her left
shoulder, which had been injured at work.
In an August 3, 2016 report, Dr. Van Gorder repeated his opinion from his July 28, 2016
report regarding the status and casual relationship of the right shoulder condition.

4

Docket No. 18-1514 (issued July 18, 2019).

5

In OWCP File No. xxxxxx938, OWCP accepted appellant’s July 22, 2013 occupational disease claim (Form
CA-2) for complete tear of the left rotator cuff.

2

In a letter dated August 29, 2016, counsel requested that the acceptance of appellant’s
claim be expanded to include the additional conditions of impingement, tendinitis, and a partial
rotator cuff tear of the right shoulder. He alleged that the conditions were a consequence of overuse
of the right shoulder due to her accepted left shoulder conditions. Counsel argued that
Dr. Van Gorder provided an unequivocal opinion and the requisite medical rationale to establish
that appellant’s right shoulder condition was related to overuse to compensate for the work-related
injury to her left shoulder.
In a development letter dated November 18, 2016, OWCP advised appellant of the
evidence needed to establish her claim for consequential injury to her right shoulder. It afforded
appellant 30 days to submit additional evidence.
OWCP thereafter received a June 12, 2015 MRI scan of the right shoulder interpreted by
Dr. Imanual Somers-Dehaney, a Board-certified diagnostic radiologist, which revealed a partial
tear of the supraspinatus partial articular surface tendon with avulsion of approximately 50 percent,
impingement on the myotendinous junction of the supraspinatus tendon with fluid along both
articular and bursal substance of subacromial subdeltoid bursa, bursitis, and biceps tendon
tenosynovitis.
On December 16, 2016 OWCP requested that a district medical adviser (DMA) provide an
opinion as to whether the accepted employment injury to appellant’s left shoulder was competent
to produce the injury to the right shoulder. It requested that the DMA review and specifically
comment on the opinion provided by Dr. Van Gorder in his July 28 and August 3, 2016 reports
regarding the conditions of right shoulder impingement, right shoulder tendinitis, and right partial
rotator cuff tear.
In a December 29, 2016 report, Dr. David J. Slutsky, a Board-certified orthopedic hand
surgeon serving as a DMA, noted appellant’s history of injury and medical treatment. Regarding
the right shoulder conditions, the DMA concluded that the acceptance of appellant’s claim should
not be expanded to include the consequential conditions of right shoulder impingement, right
shoulder tendinitis, and right partial rotator cuff tear. He advised that it was impossible to
determine with any certainty whether the left shoulder condition had caused the right shoulder
condition, unless an MRI scan of the right shoulder was performed prior to the work-related injury
of the left shoulder on December 12, 2014. The DMA explained that an asymptomatic partial right
rotator cuff tear of the right shoulder could not be ruled out and that an MRI scan of the right
shoulder prior to the December 12, 2014 left shoulder injury was “the only way to determine if
this lesion was preexisting or whether it developed following the accepted work -related injury.”
He referred to Dr. Van Gorder’s December 18, 2014 notes that appellant was pain free with normal
shoulder ROM following the left rotator cuff repair and explained that overuse of the right shoulder
was “not medically probable in view of the normal functioning of her left shoulder. ” The DMA
also reviewed Dr. Van Gorder’s medical reports dated July 28 and August 3, 2016 and noted that
appellant stopped work in December 2014 and remained off work since that time, and that there
was no mention of appellant’s right shoulder pain until May 5, 2016, almost two years later. He
further noted that appellant had a right shoulder MRI scan on June 12, 2015, more than one year
following the left rotator cuff repair, and explained that if she “had remained working in some
capacity, especially at a job that required overhead lifting, it would be reasonable to assign the
patient’s development of right shoulder pain and partial rotator cuff tear to overuse, but this is not
the case.” The DMA noted that, if additional medical records were provided that documented the
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onset of appellant’s right shoulder pain while she was still employed by the employing
establishment or at any other job following the left rotator cuff repair, then the issue of causation
could be revisited.
By decision dated March 8, 2017, OWCP denied expansion of the acceptance of
appellant’s claim, finding that the medical evidence of record was insufficient to establish that the
conditions of right shoulder impingement, right shoulder tendinitis, and right partial rotator cuff
tear were consequential to the accepted left shoulder employment injury.
By letter dated June 20, 2017, OWCP referred appellant for a second opinion examination
with Dr. Kevin Scott, a Board-certified orthopedic surgeon, to assess appellant’s current condition.
An August 31, 2017 MRI scan of the right shoulder interpreted by Dr. Andrew
Goldschmidt, a Board-certified diagnostic radiologist, revealed the absence of a full-thickness
rotator cuff tear. In a July 13, 2017 report, Dr. Scott noted appellant’s history of injury and
treatment, examined appellant, and provided physical examination findings. He found full range
of motion (ROM) of both shoulders and diagnosed left shoulder rotator cuff tear. Dr. Scott
explained that there were no other injuries due to the December 12, 2014 employment injury. He
noted appellant’s preexisting left shoulder rotator cuff tear from her 2013 injury. Dr. Scott
reviewed the June 12, 2015 MRI scan of the right shoulder, which revealed partial tearing of the
supraspinatus tendon, subacromial bursitis, and biceps tendon tenosynovitis. He concluded that
the accepted conditions had resolved.
On March 6, 2018 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP had reached a false conclusion based upon the report of the DMA, Dr. Slutsky, that
the DMA’s report should not have been relied upon, and that appellant should have been referred
for a second opinion evaluation regarding the right shoulder.
OWCP received additional medical evidence.
In a March 20, 2018 report, Dr. Michael B. Lax, Board-certified in occupational medicine,
examined appellant and provided his findings. He diagnosed bilateral rotator cuff tears. Dr. Lax
opined that, within a reasonable degree of medical certainty, appellant’s work as a rural postal
delivery worker with many years of exposure to heavy lifting (40-pound buckets of mail) in small
spaces (her delivery car), repetitive movements (upwards of 500 stops for mail), and also a few
specific events, including lifting heavy buckets of mail in December 2014 and turning in her car
to grab a package, contributed significantly to the development of both bilateral chronic shoulder
pain and rotator cuff tears.
On April 30, 2018 OWCP requested clarification from Dr. Scott, regarding whether
appellant developed a right shoulder condition as a consequence of her accepted work-related left
shoulder condition.
In a May 3, 2018 addendum, Dr. Scott noted the definition of a consequential condition,
referred to his prior report and examination, and opined, “I do not find a consequential injury for
the left or right shoulder.”
By decision dated May 29, 2018, OWCP denied modification of the March 8, 2017
decision.
4

On August 2, 2018 appellant, through counsel, filed a timely appeal from the May 29, 2018
OWCP merit decision. By decision dated July 18, 2019, the Board affirmed the May 29, 2018
decision.6
OWCP continued to receive medical evidence regarding appellant’s left shoulder
condition.
On July 17, 2020 appellant, through counsel, requested reconsideration and submitted a
March 7, 2018 report from Dr. Lax. Counsel argued that a conflict existed between Dr. Lax and
the DMA, Dr. Slutsky, as to whether appellant suffered a consequential injury.
In a March 7, 2018 letter, Dr. Lax noted that he saw appellant on August 8, 2017,
referenced his physical findings from August 8, 2017, and advised that appellant suffered from a
right shoulder condition characterized by a rotator cuff tear and impingement. He related that
appellant gave a history that her right shoulder became symptomatic in 2014, shortly after she had
returned to work following a left shoulder rotator cuff repair and subsequent surgical repair related
to OWCP File No. xxxxxx938. Dr. Lax explained that appellant had just recuperated from surgery
and was protecting her left shoulder and utilizing her right arm to compensate. He opined that the
“same work duties, which caused the left shoulder injury then contributed to the injury in the right
shoulder. Consequently, it is my opinion that [appellant’s] right shoulder impingement and rotator
cuff tear was caused or aggravated by her attempting to compensate for the left shoulder injury.”
Dr. Lax noted that he had reviewed the DMA’s December 29, 2016 report and disagreed that
normal ROM and reduced pain in the left shoulder precluded the likelihood that appellant was
compensating for the left shoulder by using her right shoulder. He opined that “it was only natural
for her to protect the left shoulder from reinjury by using the right arm more.” Dr. Lax noted that
Dr. Van Gorder obtained an MRI scan of her right shoulder in June 2015, which supported that
the symptoms were present. He explained that an MRI scan was not usually pursued until the
symptoms became chronic.
By decision dated October 5, 2020, OWCP denied modification of the July 18, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, 7 that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

6

Supra note 4.

7

K.R., Docket No. 20-0995 (issued January 29, 2021); A.W., Docket No. 19-0327 (issued July 19, 2019); S.B.,
Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

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employment injury.8 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease. 9
The general rule respecting consequential injuries is that, when the primary injury is shown
to have arisen out of and in the course of employment, every natural consequence that flows from
the injury is deemed to arise out of the employment, unless it is the result of an independent
intervening cause, which is attributable to the employee’s own intentional conduct. 10 The
subsequent injury is compensable if it is the direct and natural result of a compensable primary
injury. With respect to consequential injuries, the Board has held that, where an injury is sustained
as a consequence of an impairment residual to an employment injury, the new or second injury,
even though nonemployment related, is deemed, because of the chain of causation, to arise out of
and in the course of employment and is compensable. 11
A claimant bears the burden of proof to establish a claim for a consequential injury.12 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the accepted employment injury. 13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that acceptance
of her claim should be expanded to include additional conditions as a consequence of the
December 12, 2014 employment injury.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s May 29, 2018 merit decision because the
Board considered that evidence in its July 18, 2019 decision. Findings made in prior Board
decisions are res judicata absent further review by OWCP under section 8128 of FECA. 14

8

J.B., Docket No. 20-1566 (issued August 31, 2021); see J.M., Docket No. 17-0284 (issued February 7, 2018);
R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
9

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).
10

See L.M., Docket No. 18-1514 (issued July 18, 2019); K.D., Docket No. 17-1894 (issued August 6, 2018); A.M.,
Docket No. 18-0685 (issued October 26, 2018); Mary Poller, 55 ECAB 483, 487 (2004); Arthur Larson & Lex K.
Larson, The Law of Workers’ Compensation § 10-1.
11

See K.D, id.; see also S.S., 59 ECAB 315 (2008).

12

See C.H., Docket No. 20-0228 (issued October 7, 2020); P.P., Docket No. 19-1359 (issued April 30, 2020).

13

See T.S., Docket No. 20-0968 (issued August 17, 2021); K.W., Docket No. 18-0991 (issued December 11, 2018);
P.M., Docket No. 18-0287 (issued October 11, 2018).
14

See M.F., Docket No. 21-0390 (issued August 23,2021); P.B., Docket No. 20-0124 (issued March 10, 2021);
J.S., Docket No. 19-0022 (issued November 4, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

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In a March 7, 2018 letter, Dr. Lax referred to appellant’s right shoulder MRI scan from
June 2015, which revealed a partial cuff tear and tendinitis. He explained that it was his “opinion
that [appellant’s] right shoulder impingement and rotator cuff tear was caused or aggravated by
her attempting to compensate for the left shoulder injury.” However, the record reflects that, while
appellant had returned to work following her left shoulder injury in OWCP File xxxxxx938, she
did not return to work following the accepted December 12, 2014 employment injury. Therefore,
it is unclear how Dr. Lax formulated his opinion that appellant compensated for her left shoulder,
following the accepted December 12, 2014 employment injury. The Board has held that a medical
opinion that lacks medical rationale is of limited probative value. 15 Moreover, in this letter,
Dr. Lax opined that the “same work duties, which caused the left shoulder injury then contributed
to the injury in the right shoulder.” He did not further explain in this report what activities
appellant engaged in that caused her right shoulder conditions. His opinion was, therefore, not
based on a complete factual background.16 The Board also finds that as Dr. Lax attempted to relate
appellant’s diagnosed right shoulder conditions to performance of her employment duties, and
conversely attempted to opine that her right shoulder condition was a consequence of her
December 12, 2014 left shoulder injury, his opinion was internally consistent. The Board has held
that medical reports are of limited probative value if they are internally inconsistent.17
In his March 20, 2018 report, Dr. Lax opined that, within a reasonable degree of medical
certainty, appellant’s work as a rural postal delivery worker with many years of exposure to heavy
lifting (40-pound buckets of mail) in small spaces (her delivery car), repetitive movements
(upwards of 500 stops for mail), and also a few specific events, including lifting heavy buckets of
mail in December 2014 and turning in her car to grab a package, contributed significantly to the
development of both bilateral chronic shoulder pain and rotator cuff tears.
As Dr. Lax did not provide the necessary medical rationale to establish that appellant’s
right shoulder conditions were a consequence of the accepted left shoulder injury of December 12,
2014, his reports were insufficient to overcome the weight accorded to Dr Scott or to create a
conflict in the medical opinion evidence. The Board thus finds that appellant has not met her
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include the additional conditions as a consequence
of the accepted December 12, 2014 employment injury.

15

J.P., Docket No. 19-0129 (issued April 26, 2019).

16

Y.H., Docket No. 19-0835 (issued October 4, 2019); see F.C., Docket No. 19-0594 (issued August 13, 2019).

17

S.H., Docket No. 19-0631 (issued September 5, 2019); L.L., Docket No. 18-0861 (issued April 5, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the October 5, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

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

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

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

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

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

Docket No. 16-1692
Issued: January 5, 2017

Case Submitted on the Record

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

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

1
2

5 U.S.C. § 8101 et seq.

Appellant also has another appeal, Docket No. 16-1691, involving a different OWCP claim that is before the
Board. This other appeal is being adjudicated separately from the present matter.

FACTUAL HISTORY
On May 4, 2016 appellant, than a 44-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that earlier that day, she sustained a right shoulder and cervical spine strain while
pushing a patient on a gurney. She stopped work that day.
In a May 11, 2016 letter, OWCP advised appellant of the evidence needed to establish
her claim, including medical evidence diagnosing an injury related to the May 4, 2016 incident,
and a report from her physician explaining how and why that incident would cause the claimed
injuries. It afforded appellant 30 days to submit such evidence.
A supervisor provided a May 4, 2016 statement noting that appellant reported a “right
shoulder spasm” to her that morning.
In a May 16, 2016 letter, the employing establishment controverted the claim, noting that
she had claimed a November 19, 2015 right shoulder injury under a separate file, denied by
OWCP on January 28, 2016.
Dr. Eugene A. Eline, an attending osteopathic physician Board-certified in orthopedic
surgery, provided a June 7, 2016 narrative report. He noted treating appellant for a
November 29, 2015 shoulder and neck injury sustained while performing a dressing change on a
bedbound patient. Dr. Eline opined that the May 4, 2016 incident was a “reinjury to the neck
and right shoulder.” On examination, he noted severe causal and thoracic spinal tenderness on
the right, right trapezial tenderness, and decreased cervical range of motion, 4/5 weakness of the
right deltoid and right biceps, right shoulder restrictions with impingement signs, a positive
Spurling’s maneuver on the right, and hypersensitivity in the right C5-6 and C6-7 dermatomes.
Dr. Eline obtained x-rays demonstrating degenerative disc disease at C5-6 with anterior
osteophyte formation, and no abnormal findings of the right shoulder. He noted that a
February 4, 2016 magnetic resonance imaging (MRI) scan showed disc degeneration at C5-6.
Dr. Eline diagnosed cervical radiculopathy, cervical stenosis, right shoulder impingement,
cervical spine pain, and thoracic spine pain, aggravated by the May 4, 2016 incident. He limited
appellant to light duty, with no use of the right arm. Dr. Eline prescribed physical therapy.
Appellant accepted a light-duty job offer on June 3, 2016.
In a June 10, 2016 statement, a coworker recalled that on May 4, 2016 he saw appellant
emerging from a diagnostic suite clutching her right shoulder. Appellant then related to him that
she injured her shoulder while pushing a patient on a gurney that morning.
By decision dated June 23, 2016, OWCP denied the claim, finding that appellant had
failed to submit sufficient medical evidence to establish causal relationship between the accepted
May 4, 2016 work incident and the claimed right shoulder injury. It noted that Dr. Eline
characterized the May 4, 2016 event as a reinjury or reactivation of a preexisting condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
2

time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered
conjunctively. First, the employee must submit sufficient evidence to establish that she actually
experienced the employment incident that is alleged to have occurred.5 An employee has not
met his or her burden of proof in establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.6 Second,
the employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
Appellant claimed that she sustained right shoulder and cervical spine strains on May 4,
2016 while pushing a patient on a gurney. In support of her claim, appellant submitted
supervisory and coworker statements affirming that the incident occurred as alleged. She also
provided a May 31, 2016 report from Dr. Eline, an attending Board-certified orthopedic surgeon,
diagnosing cervical radiculopathy, cervical stenosis, right shoulder impingement, cervical spine
pain, and thoracic spine pain. Dr. Eline opined that the May 4, 2016 incident aggravated these
conditions, which were caused by a claimed November 29, 2015 occupational incident.
OWCP accepted that the May 4, 2016 incident occurred at the time, place, and in the
manner alleged, but denied the claim because of the lack of medical evidence supporting causal
relationship. It found that Dr. Eline had not provided sufficient medical rationale explaining how
and why the May 4, 2016 incident could have caused or aggravated the diagnosed conditions.
3

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

4

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

5

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

6

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

7

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

8

Solomon Polen, 51 ECAB 341 (2000).

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Dr. Eline mentioned the November 29, 2015 occupational incident, denied by OWCP, but did
not explain how he was able to differentiate between the sequelae of the two events, nor did he
provide medical rationale on the issue of causation. In the absence of such rationale, his opinion
is of insufficient probative value to meet appellant’s burden of proof.9
OWCP advised appellant on May 11, 2016 of the evidence needed to establish her claim,
including her physician’s rationalized opinion supporting causal relationship. As appellant failed
to submit medical evidence diagnosing an injury related to the accepted incident, OWCP
properly denied the claim.10
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established neck and right shoulder injuries
causally related to the May 4, 2016 work incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 23, 2016 is affirmed.
Issued: January 5, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
9

Supra note 7.

10

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF THE ARMY, PROVOST
MARSHAL OFFICE, Fort Stewart, GA,
Employer
__________________________________________

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

Docket No. 20-1441
Issued: July 30, 2021

Case Submitted on the Record

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

JURISDICTION
On July 27, 2020 appellant filed a timely appeal from a February 27, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish greater than
five percent permanent impairment of her right arm and two percent permanent impairment of the
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 27, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

left arm for which she previously received schedule award compensation; (2) whether OWCP
properly determined that appellant received an overpayment of compensation in the amount of
$13,221.97, for which she was not at fault, for the period December 9, 2013 through May 10, 2014,
because she received schedule award compensation for the right and left arms to which she was
not entitled; and (3) whether OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On August 14, 1995 appellant, then a 33-year-old office automation clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel
syndrome in her hands and wrists due to factors of her federal employment, including typing.
OWCP accepted the claim for bilateral carpal tunnel syndrome3 and paid her wage-loss
compensation on the daily rolls, effective February 6, 2002.
Appellant retired on disability effective March 2003.
In a March 19, 2014 report, Dr. Stephen Pappas, a Board-certified neurologist, noted that
the repetitive nature of appellant’s job caused bilateral wrist/hand pain and paresthesia. Utilizing
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),4 he found that she had five percent permanent impairment of the
right upper extremity and two percent permanent impairment of the left upper extremity due to
carpal tunnel syndrome. Dr. Pappas indicated that appellant had a six percent whole person
impairment.
On September 29, 2014 OWCP referred appellant for a schedule award impairment rating
with its district medical adviser (DMA). In a September 29, 2014 report, the DMA reviewed the
medical evidence of record. He opined that appellant had reached maximum medical improvement
(MMI) on December 9, 2013. The DMA noted her carpal tunnel release procedures and indicated
that she still experienced pain, numbness, and tingling in her hands, fingers, and wrists. Utilizing
the sixth edition of the A.M.A., Guides,5 Table 15-23, page 449, he agreed with Dr. Pappas that
appellant had two percent permanent impairment of the left upper extremity and five percent
permanent impairment of the right upper extremity.
On October 27, 2014 OWCP granted appellant a schedule award for five percent
permanent impairment of the right arm and two percent permanent impairment of the left arm.
The award ran for 21.84 weeks during the period December 9, 2013 through May 10, 2014.
On October 18, 2018 appellant filed a claim for an additional schedule award (Form CA-7).

3

Appellant underwent OWCP-authorized right endoscopic carpal tunnel release on February 6, 2002, right open
carpal tunnel release and external neurolysis on April 10, 2002, left carpal tunnel release and external neurolysis on
June 2, 2003, right carpal tunnel release and right guyon canal release on June 2, 2011, left carpal tunnel release and
left long finger A1 pulley release on February 18, 2015, and right ring finger A1 pulley release on February 3, 2016.
4

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

5

Id.

2

In a development letter dated October 29, 2018, OWCP informed appellant that the medical
evidence of record was insufficient to establish her claim for an additional schedule award.6 It
requested that she submit a detailed narrative medical report from her treating physician based
upon a recent examination including a date of MMI, the diagnosis upon which the impairment
rating was based, a detailed description of any preexisting impairment, and a final rating of the
permanent impairment and discussion of the rationale for calculation of the impairment, with
references to the applicable criteria and tables of the sixth edition of the A.M.A., Guides.7 OWCP
afforded appellant 30 days to submit the necessary evidence.
OWCP subsequently received an April 9, 2018 report from Dr. Mark A. Winchell, a
Board-certified orthopedic surgeon, who noted that appellant was experiencing persistent wrist
pain. On examination, he found that she showed good grip strength bilaterally. He indicated that
appellant had no residual evidence of tennis elbow, carpal tunnel syndrome, or other common
extremity abnormalities. Dr. Winchell opined that she had reached MMI and diagnosed left
forearm pain, right wrist pain, and right elbow pain.
On February 12, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF), and a series of questions for a second opinion examination with Dr. H. Clark Deriso, a
Board-certified orthopedic surgeon. In a March 15, 2019 report, Dr. Deriso reviewed the SOAF
and medical record. He noted that appellant had night pain, numbness, tingling, and complaints
of weakness in both hands. Dr. Deriso examined her and indicated that she had a mildly positive
Tinel’s sign on the right and left and a Phalen’s test that affected all of her fingers. He diagnosed
bilateral carpal tunnel pain, history of left long trigger finger, and history of right ring trigger
finger. Dr. Deriso opined that appellant’s conditions had resolved and that she reached MMI on
March 15, 2019. Utilizing the A.M.A., Guides,8 he found that she had one percent permanent
impairment of the right wrist and one percent permanent impairment of the left wrist. Dr. Deriso
assigned a grade modifier of one, in accordance with Table 15-23, page 449, as appellant’s
electromyography showed mild residuals. He noted that her range of motion (ROM) was within
normal limits and that she had no impairment of the left long finger and right ring finger.
On April 2, 2019 OWCP requested clarification from Dr. Deriso regarding whether
appellant’s impairment rating of one percent permanent impairment of the right upper extremity
and one percent permanent impairment of the left upper extremity included the five percent
permanent impairment of the right upper extremity and two percent permanent impairment of the
left upper extremity previously awarded, or whether it should be considered an addition to the
prior percentage awarded.
In an April 9, 2019 supplemental report, Dr. Deriso noted that appellant’s prior impairment
rating was not performed by a physician and opined that his rating of one percent right wrist
impairment and one percent left wrist impairment was appropriate.

6

The development letter noted that appellant’s accepted conditions included bilateral trigger finger acquired.

7

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

8

Id.

3

On April 15, 2019 OWCP referred appellant’s medical record, along with a SOAF, for a
schedule award impairment rating with Dr. David J. Slutsky, a Board-certified orthopedic surgeon
serving as a DMA. In a May 19, 2019 report, the DMA reviewed the SOAF and medical record.
Utilizing the ROM method of the A.M.A., Guides,9 he found that appellant had zero percent
permanent impairment of the upper extremity for right carpal tunnel syndrome, left carpal tunnel
syndrome, triggering of the right ring finger, and triggering of the left middle finger. Utilizing
Table 15-23 (Entrapment/Compression Neuropathy Impairment), page 449, the DMA determined
that her right and left carpal tunnel syndrome should be rated using the diagnosis-based impairment
(DBI) method under Table 15-2, page 389. He identified the class of diagnosis (CDX) as a class
1 impairment for the diagnosis of nonspecific wrist pain. The DMA assigned a grade modifier for
functional history (GMFH) of 0, in accordance with Table 15-7, page 406, as appellant had no
documented wrist pain. He reported a grade modifier for physical examination (GMPE) of 0, in
accordance with Table 15-8, page 408, as there were no palpatory findings. The DMA noted that
a grade modifier for clinical studies (GMCS) was not applicable, in accordance with Table 15-9,
page 410, as there were no relevant imaging studies. He calculated that appellant had a net
adjustment of -2, resulting in movement from the default class of C to A and corresponding to a
zero percent upper extremity impairment. The DMA also found that her right ring trigger finger
and left middle trigger finger should be rated utilizing the method. He identified the CDX as a
class 0 impairment for the diagnosis of trigger digit with no residual symptoms under Table 15-2,
page 392. The DMA noted that appellant had previously received schedule award compensation
for five percent impairment for the right upper extremity and two percent impairment for the left
upper extremity; however, he found that she had zero percent upper extremity permanent
impairment and that, therefore, additional impairment was not indicated. He disagreed with
Dr. Deriso’s impairment rating as there were no preoperative diagnostic studies. The DMA opined
that appellant reached MMI on March 19, 2014.
By decision dated June 5, 2019, OWCP denied appellant’s claim for an additional schedule
award, finding that the medical evidence of record was insufficient to establish permanent
impairment of a scheduled member or function of the body. It noted that the weight of the medical
evidence rested with Dr. Slutsky, the DMA.
On June 10, 2019 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review.
In an August 1, 2019 report, Dr. Winchell noted that appellant experienced bilateral hand
and wrist pain. He examined her and diagnosed lateral epicondylitis of the right elbow, right
forearm pain, and bilateral hand pain.
A telephonic hearing was held on November 15, 2019. During the hearing, appellant
explained that she had continued bilateral hand and wrist pain despite extensive medical treatment.
The hearing representative held the case record open for 30 days for the submission of additional
evidence. No additional evidence was received.
By decision dated December 26, 2019, OWCP’s hearing representative affirmed the
June 5, 2019 decision, finding that the medical evidence of record was insufficient to establish
9

Id.

4

permanent impairment of either upper extremity. The hearing representative noted that, upon
return of the case record, OWCP should consider whether an overpayment existed with respect to
the prior award for five percent permanent impairment of the right upper extremity and two percent
permanent impairment of the left upper extremity.
On January 22, 2020 OWCP issued a preliminary overpayment determination, finding that
an overpayment of compensation in the amount of $13,221.97 had been created, for the period
December 9, 2013 through May 10, 2014, because appellant had previously received a schedule
award for five percent permanent impairment of the right upper extremity and two percent
permanent impairment of the left upper extremity when she had no upper extremity impairment.
It found her not at fault in the creation of the overpayment and forwarded an overpayment action
request form and an overpayment recovery questionnaire (Form OWCP-20). OWCP requested
that appellant provide supporting financial documentation including income tax returns, bank
account statements, bills and cancelled checks, pay slips, and any other records to support her
reported income and expenses. It afforded her 30 days to respond. No response was received.
By decision dated February 27, 2020, OWCP finalized its preliminary overpayment
determination that appellant had received an overpayment of compensation in the amount of
$13,221.97, for the period December 9, 2013 through May 10, 2014, because she received
schedule award compensation for the right and left upper extremities to which she was not entitled.
It further found that she was without fault in the creation of the overpayment, but denied waiver
of recovery of the overpayment because the evidence of record was insufficient to establish that
recovery of an overpayment would defeat the purpose of FECA or would be against equity and
good conscience. OWCP requested that appellant forward recovery of the $13,221.97
overpayment in full within 30 days.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,10 and its implementing federal regulations,11 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.12 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.13
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.14 In
10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

Id. at § 10.404(a).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Chapter 3.700.2 and Exhibit 1 (January 2010).
14

A.M.A., Guides 449.

5

Table 15-23, grade modifier levels (ranging from 0 to 4) are described for the categories Test
Findings, History, and Physical Findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down based on functional scale, an assessment of impact on daily
living activities.15
The sixth edition of the A.M.A., Guides provides a method of evaluation utilizing the
World Health Organization’s International Classification of Functioning Disability and Health.16
Under the sixth edition, the evaluator identifies the CDX, which is then adjusted by the GMFH,
GMPE, and GMCS.17 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).18 Evaluators are directed to provide reasons for their impairment rating,
including the choice of diagnoses from regional grids and the calculation of the modifier score.19
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of permanent
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.20
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
On April 15, 2019 OWCP referred appellant’s case, along with a SOAF, for a schedule
award impairment rating with Dr. Slutsky, the DMA. In a May 19, 2019 report, the DMA
reviewed the SOAF and medical record. Utilizing the method of the A.M.A., Guides, he identified
the CDX as a class 1 impairment for the diagnosis of nonspecific wrist pain. The DMA assigned
a GMFH of 0, in accordance with Table 15-7, page 406, as appellant had no documented wrist
pain. He reported a GMPE of 0, in accordance with Table 15-8, page 408, as there were no
palpatory findings. The DMA noted that a GMCS was not applicable, in accordance with Table
15-9, page 410, as there were no relevant imaging studies. He calculated that appellant had a net
adjustment of -2, resulting in movement from the default class of C to A and corresponding to a
zero percent permanent impairment of the right upper extremity. The DMA also found that her
right ring trigger finger and left middle trigger finger should be rated utilizing the method. He
identified the CDX as a class 0 impairment for the diagnosis of trigger digit with no residual

15

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
functional scale score. Id. at 448-49; see also J.H., Docket No. 19-0395 (issued August 10, 2020).
16

A.M.A., Guides, page 3, section 1.3, The International Classification of Functioning, Disability, and Health
(ICF): A Contemporary Model of Disablement.
17

Id. at 493-556.

18

Id. at 521.

19

E.W., Docket No. 19-1720 (issued November 25, 2020); R.R., Docket No. 17-1947 (issued December 19, 2018);
R.V., Docket No. 10-1827 (issued April 1, 2011).
20

See supra note 13 at Chapter 2.808.6(f) (March 2017).

6

symptoms under Table 15-2, page 392. The DMA therefore found that appellant had zero percent
permanent impairment. He opined that she reached MMI on March 19, 2014.
The Board finds that the DMA did not adequately explain his opinion in accordance with
the relevant standards. Although he identified the CDX as a class 1 impairment for the diagnosis
of nonspecific wrist pain and a class 0 impairment for the diagnosis of trigger digit with no residual
symptoms, the DMA did not sufficiently explain how he classified appellant’s conditions based
on severity.21 Further, as noted, GMFH, GMPE, and GMCS should be considered.22 While the
DMA cited to Table 15-7, Table 15-8, and Table 15-9, he did not adequately explain the
application of grade modifiers.23 He applied a GMFH of 0 as appellant had no documented wrist
pain. However, in an April 9, 2018 report, Dr. Winchell noted that appellant had persistent wrist
pain and diagnosed left forearm pain, right wrist pain, and right elbow pain. In a March 15, 2019
report, Dr. Deriso diagnosed bilateral carpal tunnel pain. Furthermore, the DMA reported a GMPE
of 0 as appellant had no palpatory findings. However, in a March 15, 2019 report, Dr. Deriso
noted that she had night pain, numbness, tingling, and complaints of weakness in both hands. He
examined appellant and indicated that she had a mildly positive Tinel’s sign on the right and left
and a Phalen’s test that affected all of her fingers. Consequently, the Board finds that the DMA’s
report requires clarification.
It is well established that proceedings under FECA are not adversarial in nature, and while
the employee has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.24 Once OWCP undertook development of the
evidence by referring appellant’s case file to an OWCP medical adviser, it had an obligation to do
a complete job and obtain a proper evaluation and report that would resolve the issue in this case.25
The case is therefore remanded to OWCP for referral of the case record and a SOAF to the DMA,
Dr. Slutsky, for a proper analysis under the A.M.A., Guides in order to determine the extent of
appellant’s permanent impairment of the right and left upper extremities. After this and such other
further development as deemed necessary, OWCP shall issue a de novo decision on appellant’s
schedule award claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.26 Section 8129(a) of FECA provides, in pertinent part, that when
21

See D.O., Docket No. 19-1729 (issued November 3, 2020); R.O., Docket No. 10-2143 (issued August 15, 2011).

22

Supra note 17.

23

See D.O., supra note 21.

24

See W.W., Docket No. 18-0093 (issued October 9, 2018); Donald R. Gervasi, 57 ECAB 281, 286 (2005);
William J. Cantrell, 34 ECAB 1233, 1237 (1983).
25

See G.M., Docket No. 19-1931 (issued May 28, 2020); Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi,
56 ECAB 234 (2004).
26

5 U.S.C. § 8102(a).

7

an overpayment has been made to an individual under this subchapter because of an error of fact
or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.27
OWCP’s procedures provide that if a schedule award decision is set aside (after a hearing
or review by the Board or as part of OWCP’s reconsideration process), and additional development
is undertaken to resolve the schedule award issue, a new schedule award decision should be issued
that fully addresses the reasons for the change in rating. Declaring an overpayment thereafter is
appropriate if the later decision substantiates a lesser degree of permanent impairment than
previously awarded, so long as both ratings are based on the same edition of the A.M.A., Guides.28
ANALYSIS -- ISSUE 2
In light of the Board’s finding in Issue 1, the Board finds that OWCP improperly
determined that an overpayment of compensation in the amount of $13,221.97 was created for the
period December 9, 2013 through May 10, 2014. Therefore, the February 27, 2020 decision must
be reversed.29
CONCLUSION
The Board finds that OWCP improperly determined that an overpayment of compensation
in the amount of $13,221.97 was created for the period December 9, 2013 through May 10, 2014.

27

Id. at § 8129(a).

28

See supra note 13 at Chapter 2.1601.8 (September 2020); see also L.L., Docket No. 19-0097 (issued
March 20, 2020).
29
See P.M., Docket No. 18-1215 (issued June 18, 2020). In light of the Board’s disposition in Issues 1 and 2, Issue
3 is rendered moot.

8

ORDER
IT IS HEREBY ORDERED THAT the February 27, 2020 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 30, 2021
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.T., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Carson, CO, Employer
__________________________________________

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

Docket No. 13-895
Issued: August 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 5, 2013 appellant, through his attorney, filed a timely appeal of a February 4,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease while in the performance of duty.
FACTUAL HISTORY
On March 1, 2010 appellant, then a 68-year-old retired floor layer, filed an occupational
disease claim alleging that he was exposed to asbestos while removing, repairing, replacing and
tearing down tiles, flooring, walls and ceilings from 1970 to 1975. He also used products
1

5 U.S.C. § 8101 et seq.

containing asbestos, such as joint and finishing compounds, paint, patching plaster and
adhesives.2 An April 16, 2009 chest x-ray obtained by Dr. Donald A. Breyer, a Board-certified
diagnostic radiologist, exhibited primary “s” and secondary “t” opacities in the middle and lower
lung fields with a profusion of 1/0. Dr. Breyer diagnosed bilateral interstitial fibrosis consistent
with asbestosis.
Dr. Roy P. Johnson, a Board-certified occupational physician, related in an October 26,
2009 report that appellant was exposed to asbestos at work while laying floor tiles and repairing
pipes from 1970 to 1975. Appellant did not wear a mask or any other protective equipment.
Following pulmonary function testing and a review of the April 16, 2009 chest x-ray,
Dr. Johnson opined that appellant sustained asbestosis with a latency period of approximately 30
years.
OWCP referred appellant for a second opinion examination to Dr. Lawrence H. Repsher,
a Board-certified internist. In a March 10, 2011 report, Dr. Repsher reiterated appellant’s former
job duties. On physical examination, he observed bilateral lower extremity thrombophlebitis
with brawny edema. Dr. Repsher pointed out that the April 16, 2009 chest x-ray did not reveal
any calcified pleural plaques, which “generally precede the onset of visible interstitial fibrosis.”
In a May 12, 2011 supplemental report, he stated that an April 22, 2011 chest x-ray was
unremarkable. In the absence of radiographic evidence to the contrary, Dr. Repsher concluded
that appellant did not sustain an industrial-related pulmonary disorder.
By decision dated May 20, 2011, OWCP denied appellant’s claim, finding that the weight
of the medical evidence did not establish that his occupational asbestos exposure resulted in a
pulmonary condition. On February 23, 2012 OWCP’s hearing representative found a conflict in
medical opinion existed between Dr. Johnson and Dr. Repsher on the issue of causal
relationship. The case was remanded for a referee examination.
Dr. Jeffrey S. Schwartz, a Board-certified internist, was selected as the impartial medical
specialist. In a May 25, 2012 report, based on a May 18, 2012 physical examination, he
reviewed the medical file and the February 2, 2011 statement of accepted facts. A highresolution computerized tomography (CT) scan of the chest, which he stated to be “more
sensitive in picking up pleural and parenchymal/interstitial lung disease,” exhibited right
pulmonary nodule, questionable pancreatic mass and coronary atherosclerosis, but did not show
evidence of interstitial lung disease or pleural abnormalities. In addition, physical examination
and a spirometry study were normal. Dr. Schwartz found that, while appellant may have had
significant exposure to asbestos products, he had no radiographic evidence of asbestos disease.
He noted that, although Dr. Breyer interpreted an April 16, 2009 x-ray as showing evidence of
interstitial lung disease consistent with asbestosis, the changes were deemed very mild.
Dr. Schwartz explained that, in retrospect, Dr. Breyer’s interpretation was in error as the
high-resolution CT scan did not show evidence of interstitial lung disease. Based on these
findings, he opined that appellant did not sustain industrial-related asbestosis.

2

Facts were incorporated into a statement of accepted facts dated February 2, 2011.

2

By decision dated July 9, 2012, OWCP denied appellant’s claim, finding that the weight
of the medical evidence did not establish that his occupational asbestos exposure caused or
contributed to a pulmonary disorder.
Counsel requested a telephonic hearing, which was held on November 13, 2012.
Appellant testified that he was exposed to asbestos fibers at work for seven years.
A December 4, 2012 chest x-ray obtained by Dr. Fred J. Bertoldo, a Board-certified
diagnostic radiologist, showed mild atelectasis of the right lung base and diminished lung
volumes. A December 6, 2012 report from Dr. Craig S. Shapiro, a Board-certified internist,
noted unremarkable physical examination findings.3
On February 4, 2013 OWCP’s hearing representative affirmed the July 9, 2012 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.6 To establish fact of injury in an
occupational disease claim, 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 generally required to establish causal
relationship. 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

3

Appellant also submitted a November 16, 2012 letter from the Colorado Medical Board acknowledging receipt
of his complaint against Dr. Schwartz pertaining to the physician’s conduct during the referee examination and the
validity of the May 25, 2012 report. The case record does not contain any further information regarding the
disposition of this complaint.
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

See S.P., 59 ECAB 184, 188 (2007).

7

R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

3

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
If there is a conflict in medical opinion between the employee’s physician and the
physician making the examination for the United States, OWCP shall appoint a third physician,
known as a referee physician or impartial medical specialist, to make what is called a referee
examination.9 Where OWCP has referred appellant to a referee physician to resolve a conflict,
the referee’s opinion, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.10
ANALYSIS
OWCP accepted that appellant was exposed to asbestos while he was a federal employee.
After a hearing representative determined that a conflict in medical opinion existed as to whether
this exposure caused or contributed to asbestosis or another asbestos-related respiratory illness,
the case was referred to Dr. Schwartz for a referee examination.
The Board finds that Dr. Schwartz’s May 25, 2012 report is entitled to special weight
because his opinion on causal relationship was well rationalized and based on a proper factual
and medical history. Dr. Schwartz reviewed the February 2, 2011 statement of accepted facts
and medical file. He conducted a physical examination and spirometry study, both of which
yielded unremarkable results. Also, in light of confusion between the opposing opinions of
Drs. Repsher and Johnson, Dr. Schwartz conducted a high-resolution CT scan of the chest did
not exhibit pleural abnormalities or any evidence of interstitial lung disease. Based on these
findings, he concluded that appellant did not sustain a pulmonary condition due to his
occupational asbestos exposure. Appellant did not furnish sufficient medical evidence to
overcome the special weight afforded to Dr. Schwartz’s opinion: neither Dr. Bertoldo’s
December 4, 2012 chest x-ray evaluation nor Dr. Shapiro’s December 6, 2012 report even
addressed the issue of causal relationship. Consequently, the Board finds that OWCP properly
denied his occupational disease claim.
Counsel contends that the February 4, 2013 decision is contrary to fact and law. The
Board has already addressed the deficiencies of this claim. Appellant may submit new evidence
or argument as part of a formal written request for reconsideration to OWCP within one year of
this merit decision, pursuant to 5 U.S.C. § 8128 (a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained an occupational disease
while in the performance of duty.

8

I.J., 59 ECAB 408 (2008); supra note 5.

9

5 U.S.C. § 8123(a); 20 C.F.R. § 10.321.

10

L.W., 59 ECAB 471 (2007); James P. Roberts, 31 ECAB 1010 (1980).

4

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2013 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: August 26, 2013
Washington, DC

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

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

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

5


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

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0331
Issued: October 27, 2020

Case Submitted on the Record

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

JURISDICTION
On November 18, 2019 appellant, through counsel, filed a timely appeal from a June 18,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most
recent merit decision was a Board decision dated June 14, 2018, which became final after 30 days
of issuance, and is not subject to further review.2 As there was no merit decision issued within
180 days from the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3

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

20 C.F.R. § 501.6(d); see M.S., Docket No. 18-0222 (issued June 21, 2018); J.P., Docket No. 17-0053 (issued
May 23, 2017); R.M., Docket No. 14-1213 (issued October 15, 2014).
3

5 U.S.C. § 8101 et seq.

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case was previously before the Board.4 The facts and circumstances as set forth in
the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On December 16, 2013 appellant, a 64-year-old mail processor, filed a notice of recurrence
(Form CA-2a), under OWCP File No. xxxxxx217, alleging that he had sustained a recurrence of
his October 30, 2008 accepted employment-related conditions of bilateral carpal tunnel syndrome
and right de Quervain’s tenosynovitis on November 23, 2013. He indicated that he returned to
limited-duty work on November 4, 2013, but stopped work again on November 23, 2013 because
the position required him to use his thumbs and hands in excess of four hours per day.
A September 5, 2013 rehabilitation assignment offer for the position of customer care agent
indicated that the duties required “occasional simple grasping (mouse); occasional pushing/pulling
using a computer mouse, interchangeable to right/left side as needed for comfort; and occasional
fine manipulation or use of single finger when using a keyboard.” The employing establishment
noted that the learning process encompassed three weeks of training with the first two weeks in a
classroom setting and the third week with an instructor on “live” customer calls.
On March 19, 2014 OWCP determined that appellant had sustained a new injury and
converted his claim from a recurrence of disability to a claim for an occupational disease (Form
CA-2). By decisions dated May 15 and August 15, 2014, it denied his occupational disease claim.
On December 5, 2014 appellant, through counsel, filed an appeal with the Board.
By decision dated April 3, 2015, the Board set aside OWCP’s August 15, 2014 decision
denying appellant’s claim for a new injury and remanded the case for OWCP to combine the
current case record, OWCP File No. xxxxxx656, with OWCP File No. xxxxxx217, and determine
whether he sustained either a recurrence of disability due to his October 30, 2008 employment
injury or a new employment injury.5
By decision dated June 14, 2016, OWCP denied appellant’s recurrence claim finding that
the evidence of record did not establish a change in the nature and extent of the injury-related
conditions or a change in the nature and extent of the limited-duty job requirements.

4

Docket No. 17-0120 (issued June 14, 2018); Docket No. 15-0359 (issued April 3, 2015).

5

Docket No. 17-0129 (issued June 14, 2018); Docket No. 15-0359 (issued April 3, 2015).

2

On October 25, 2016 appellant, through counsel, filed an appeal to the Board.
By decision dated June 14, 2018, the Board affirmed OWCP’s June 14, 2016 decision
denying appellant’s claim for a recurrence finding that the evidence of record was insufficient to
establish that his light-duty job requirements had changed such that the job requirements were no
longer within his medical restrictions and he was unable to perform his limited-duty position.6
On June 4, 2019 appellant, through counsel, requested reconsideration arguing that OWCP
had committed an error when the Board issued its June 14, 2018 decision because the evidence
clearly established appellant’s claim.7 Counsel further submitted a narrative statement from
appellant who indicated that the employing establishment was unprofessional and/or malicious
when offering appellant a suitable job and continued to argue that he experienced permanent
damage to his hands due to the repetitive nature of his limited-duty position.
By decision dated June 18, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.8 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.9 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.10
A timely request for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously

6

Docket No. 17-0120 (issued June 14, 2018). In an Order Denying Petition for Reconsideration (issued March 4,
2019), the Board denied appellant’s petition for reconsideration of its June 14, 2018 decision finding that it failed to
establish an error of fact or law warranting further consideration.
7
OWCP has no jurisdiction to review a Board decision. The decisions and orders of the Board are final as to the
subject matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R.
§ 501.6(d). Appellant had 30 days from the date of the Board’s June 14, 2018 decision to file a petition for
reconsideration with this Board of its decision. Id. at § 501.7. See also C.M., Docket No. 19-1211 (issued August 5
2020); B.B., Docket No. 14-0464 (issued June 4, 2014).
8

This section provides in pertinent part: [t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
9

20 C.F.R. § 10.607.

10

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

3

considered by OWCP.11 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits.12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In his timely application for reconsideration, appellant did not establish that OWCP
erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal
argument not previously considered by OWCP.13 Although he submitted a new narrative
statement and a statement from his representative, they merely reiterated contentions previously
reviewed by OWCP. Consequently, appellant is not entitled to a review of the merits of his claim
based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).14
Moreover, appellant’s request for reconsideration did not include relevant and pertinent
new evidence in support of his June 4, 2019 request for reconsideration. The underlying issue is
whether he submitted sufficient evidence to establish that his assigned duties exceeded his physical
limitations or caused or aggravated his accepted conditions. However, appellant did not submit
any additional evidence with his request for reconsideration. Because he did not provide any
relevant and pertinent new evidence, he is not entitled to a review of the merits based on the third
requirement under section 10.606(b)(3).15
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

11

Id. at § 10.606(b)(3).

12

Id. at § 10.608(a), (b).

13

See T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583 (issued December 9, 2008).

14
20 C.F.R. § 10.606(b)(3)(i)-(ii); K.L., Docket No 08-2444 (issued June 12, 2009). Evidence that repeats or
duplicates evidence already in the case record has no evidentiary value and does not constitute a basis for reopening
a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
15
Id. at § 10.606(b)(3)(iii); see M.C., Docket No. 18-0841 (issued September 13, 2019); D.P., Docket No. 17-0290
(issued May 14, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the June 18, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 27, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Douglas Sughrue, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-2141
Issued: March 14, 2014

Case Submitted on the Record

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

JURISDICTION
On September 25, 2013 appellant, through counsel, filed a timely appeal of a March 29,
2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
request for reconsideration. Because more than 180 days elapsed from the most recent merit
decision dated October 6, 2008 to the filing of this appeal, the Board lacks jurisdiction to review
the merits of appellant’s claim pursuant to the Federal Employees’ Compensation Act1(FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board.2 In a March 4, 2011 decision,
the Board affirmed the January 11, 2010 decision of OWCP, finding that OWCP properly
refused to reopen appellant’s claim for reconsideration of the merits on the grounds that it was
untimely filed within one year of OWCP’s October 6, 2008 decision and failed to show clear
evidence of error in OWCP’s decision that terminated her compensation benefits due to her
refusal of suitable work. The facts and history contained in the prior appeal are incorporated by
reference.
Appellant continued to submit evidence, including evidence previously of record and
claims for compensation subsequent to the termination of her benefits for refusing suitable
work.3 OWCP also received a newspaper clipping on identity theft and an order of protection
against domestic violence.
On March 20, 2013 appellant’s attorney requested reconsideration of OWCP’s October 6,
2008 decision. He argued that OWCP misapplied, or failed to apply the law in determining that
she was no longer entitled to disability or benefits compensation. Counsel also argued that
appellant was entitled to a merit review and he renewed her previous arguments in support of the
new evidence and requested that all of the prior statements and all previously submitted evidence
be made a part of the reconsideration request. He argued that OWCP in its January 11, 2010
decision erroneously indicated that the injury occurred in 1997, rather than 1987, and that she
was employed in Tampa as opposed to Venice, Florida. Counsel argued that the second opinion
physician, Dr. James Roy Edgar, a Board-certified psychiatrist, whose report was used to
terminate benefits, was charged with aggravated assault (involving a shotgun) on September 10,
2009 and on March 30, 2010 entered into a program that could lead to the charges being
dropped. He further argued that the modified position offered to appellant was represented to be
in Venice but was actually in North Port, Florida, 10 miles further away, and more than 50 miles
from her residence at that time. Counsel argued that no provision was made for relocation. He
also indicated that, at the time, appellant kept her actual place of residence private as she was
being stalked and abused by a significant other. Counsel argued that the employing
establishment knew it was using an old and irrelevant address where she had not lived for more
than 15 years. He also alleged that OWCP’s hearing representative used this incorrect
information deciding that appellant refused suitable employment. Counsel argued that appellant
lived further than 50 miles away from the offered position and contested the conclusion that she
voluntarily moved. He also argued that appellant was the victim of domestic violence and had
several protection orders in place, and moved on several occasions. Counsel asserted that the
location of the offered work station required her to travel through communities in which one or
more persons were located and who had abused her in the past and against whom she had one or
more orders of protection from abuse. He further argued that OWCP did not meet its burden to

2

Docket No. 10-1811 (issued March 4, 2011); petition for recon. denied (June 28, 2011).

3

On May 6, 2011, OWCP advised appellant that, as her entitlement to wage-loss and schedule award compensation
was terminated on January 2, 2008, there was no continuing entitlement to monetary compensation and that her
claim forms would be filed without further action.

2

establish that the offered employment was suitable. Counsel requested that the October 6, 2008
decision be vacated and appellant’s compensation be reinstated.
OWCP received a copy of an article related to Dr. Edgar and documents pertaining to
court orders for domestic abuse.
In a decision dated March 29, 2013, OWCP denied appellant’s request for
reconsideration for the reason that it was not timely filed and failed to present clear evidence of
error.
LEGAL PRECEDENT
Section 8128(a) of FECA4 vests OWCP with discretionary authority to determine
whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”5
OWCP’s imposition of a one-year time limitation within which to file an application for
review as part of the requirements for obtaining a merit review does not constitute an abuse of
discretionary authority granted OWCP under section 8128(a).6 This section does not mandate
that OWCP review a final decision simply upon request by a claimant.
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a). Thus, section 10.607(a) of the implementing regulations
provide that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought.7
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.8

4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8128(a).

6

Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

20 C.F.R. § 10.607(a).

8

Id. at § 10.607(b).

3

To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by OWCP. The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. 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 OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP.9 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision. The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.10
ANALYSIS
In its March 29, 2013 decision, OWCP properly determined that appellant failed to file a
timely application for review. It rendered its last merit decision on October 6, 2008. Appellant’s
March 20, 2013 letter requesting reconsideration was submitted more than one year after the
October 6, 2008 merit decision and was, therefore, untimely.
In accordance with internal guidelines and with Board precedent, OWCP properly
proceeded to perform a limited review to determine whether appellant’s application for review
showed clear evidence of error, which would warrant reopening appellant’s case for merit review
under section 8128(a) of FECA, notwithstanding the untimeliness of her application. OWCP
reviewed the evidence submitted by appellant in support of her application for review, but found
that it did not clearly show that OWCP’s most recent merit decision was in error.
The Board finds that the evidence submitted by appellant in support of her application for
review does not raise a substantial question as to the correctness of OWCP’s most recent merit
decision and is insufficient to demonstrate clear evidence of error. The critical issue in this case
is whether she has shown clear evidence of error in OWCP’s October 6, 2008 decision that
affirmed the January 2, 2008 termination of her monetary compensation benefits on the grounds
that she refused suitable work.
In his March 20, 2013 request for reconsideration, appellant’s attorney alleged that
OWCP’s January 2, 2008 decision to terminate benefits was in error and that appellant was
entitled to a merit review. He argued that OWCP improperly relied upon the report of its second
opinion psychiatrist, Dr. Edgar, who was subsequently involved in an altercation that involved
being charged with assault. Counsel also provided a newspaper article on the assault, which
occurred in 2009. The Board notes that these arguments do not raise a substantial question
9

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

10

Id.

4

concerning the correctness of OWCP’s January 2, 2008 or October 6, 2008 decision or establish
clear evidence of error. At the time of the January 2, 2008 decision, OWCP terminated
appellant’s entitlement to wage-loss compensation and schedule award benefits based on its
determination that appellant refused suitable work. The Board notes that the second opinion
examination provided by Dr. Edgar occurred in 2007, two years prior to the physician’s alleged
assault. There is no evidence to suggest that the medical findings provided by Dr. Edgar were
erroneous or that he was not qualified to render a medical opinion at the time he examined
appellant. Thus, counsel’s argument does not establish clear evidence of error.
Appellant’s arguments pertaining to the location of the offered position, her various
residences, which she did not wish to disclose due to a protective order, do not raise a substantial
question as to the correctness of OWCP’s decision. The hearing representative previously
considered arguments concerning appellant’s location in her October 6, 2008 decision and
appellant has not sufficiently explained how raising such allegations again establish clear
evidence of error.11 These assertions do not shift the weight of the evidence to show that the
offered position was beyond her physical capabilities or otherwise suitable at the time her
monetary compensation was terminated. Likewise, arguments that appellant was fearful of
traveling to work in communities where people may reside or had abused her in the past, do not
raise a substantial question as to the correctness of OWCP’s October 6, 2008 decision, which
affirmed the termination of her compensation because she refused suitable work.
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that OWCP made an error (for example,
proof of a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized
report, which if submitted prior to OWCP’s denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of a case.12
The Board finds that this evidence is insufficient to shift the weight of the evidence in
favor of appellant’s claim or raise a substantial question that OWCP erred in terminating
appellant’s compensation benefits on the grounds that she refused to accept suitable work.
Therefore, the Board finds that appellant has not presented clear evidence of error.
On appeal, appellant’s representative repeated the arguments submitted on
reconsideration. However, as found above, they were insufficient to establish clear evidence of
error.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.
11

See A.M., Docket No. 10-526 (issued November 8, 2010) (appellant did not sufficiently explain how largely
duplicative evidence raised a substantial question as to the correctness of OWCP’s decision).
12

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

5

ORDER
IT IS HEREBY ORDERED THAT the March 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 14, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6