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

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

Docket No. 10-554
Issued: November 3, 2010

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 December 23, 2009 appellant filed a timely appeal from a November 24, 2009 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 this case.
ISSUES
The issues are: (1) whether the Office properly found that an overpayment in
compensation of $993.07 was created for the period January 8 to 17, 2009 because he
concurrently received wages from the employing establishment and wage-loss compensation;
and (2) whether the Office properly found that appellant was at fault in the creation of the
overpayment and it was not subject to waiver.
On appeal, appellant asserts that he is not at fault because the Office forced him to return
to work in error and that he is financially unable to repay the overpayment.

FACTUAL HISTORY
On September 17, 2007 appellant, then a 43-year-old letter carrier, sustained lumbosacral
spondylosis without myelopathy, sprain of the medial collateral ligament of the right knee and a
left ankle sprain when he stepped in a hole and fell while delivering mail. He began limited
duty, but later that year stopped work.1 On March 7, 2008 appellant underwent a partial medial
meniscectomy of the right knee and returned to part-time modified duty on March 31, 2008. The
Office accepted that he sustained a recurrence of total disability on April 22, 2008. Appellant
was paid wage-loss compensation by check and was placed on the periodic compensation rolls.
In July 2008 appellant was referred to Dr. David Rubinfeld, a Board-certified orthopedic
surgeon, for a second opinion evaluation. Based on Dr. Rubinfeld’s reports dated August 7 and
September 6, 2008 the employing establishment offered appellant a full-time modified carrier
position. On January 8, 2009 appellant returned to work. He worked approximately six hours
and filed a recurrence claim. On March 11, 2009 the Office accepted the January 9, 2009
recurrence.
By letter dated March 26, 2009, the Office issued a preliminary determination that
appellant received an overpayment in compensation in the amount of $993.07 for the period
January 8 through 17, 2009 because he received disability compensation during a period in
which he had returned to work. It found him at fault in the creation of the overpayment because
he should have known he was not entitled to wage-loss compensation after his return to work.
Appellant was provided an overpayment action request form and an overpayment questionnaire.
Computer printouts and an overpayment worksheet indicated that appellant was paid wage-loss
compensation of $1,706.12 for the period December 21, 2008 through January 17, 2009 and
should have received compensation for the period December 21, 2008 through January 7, 2009
of $713.05, yielding an overpayment in compensation of $993.07.2
The employing
establishment advised on a leave form that appellant worked six hours on January 8, 2009 and
received eight hours of annual leave a day through January 17, 2009.
Appellant requested a prerecoupment hearing, stating that he used sick and annual leave
after he stopped work.3 He did not appear at a hearing scheduled for July 16, 2009. By letter
dated September 4, 2009, the Office notified him that a review of the written record would be
conducted. It also provided a second overpayment questionnaire, as none had been received.
In a November 24, 2009 decision, an Office hearing representative found that appellant
was at fault in creating the $993.07 overpayment because he received wage-loss compensation
after his return to work, when he had earnings and used leave. The Office hearing representative
noted that, as appellant was paid compensation by check that clearly advised the period the check
1

It is unclear from the record when appellant stopped work.

2

The Office explained that for the period December 21, 2008 through January 17, 2009 appellant received
compensation of $985.62 a week at the three quarters rate less health and life insurance, yielding compensation of
$1,706.12 and that for this period, with the same deductions, he should have received $713.05, yielding an
overpayment in compensation of $993.07.
3

Appellant again received wage-loss compensation, beginning January 26, 2009.

2

covered, he should have known he was not entitled to wage-loss compensation and wages from
salary or use of leave for the same period. The hearing representative found that appellant had
not provided an overpayment questionnaire or other financial information and a repayment
schedule was not possible. The overpayment was due in full.
LEGAL PRECEDENT -- ISSUE1
Section 8102(a) of the Federal Employees’ Compensation Act4 provides that the United
States shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of his duty.5 Section
8116 of the Act defines the limitations on the right to receive compensation benefits. This
section of the Act provides that while an employee is receiving compensation, he or she may not
receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.6 Section 10.500 of the Office’s regulations provide that “compensation for wage
loss due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.”7 Office procedures provide that an overpayment in compensation is created when a
claimant returns to work and continues to receive compensation.8
ANALYSIS -- ISSUE1
The Board finds that appellant received an overpayment in compensation in the amount
of $993.07. The record supports that he returned to work on January 8, 2009 and received wageloss compensation through January 17, 2009. The employing establishment advised that
appellant received wages and annual leave during this period. As noted, both the Act and Office
regulations provide that a claimant may not receive wage-loss compensation concurrently with a
federal salary.9 Computer printouts and an overpayment worksheet in the record support that
appellant received compensation in the amount of $993.07 for the period January 8
through 17, 2009. He therefore received an overpayment in compensation in that amount.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and

4

5 U.S.C. §§ 8101-8193.

5

Id.

6

Id.; see Danny E. Haley, 56 ECAB 393 (2005).

7

20 C.F.R. § 10.500.

8

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(a) (September 1994).
9

Id.

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when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”10
Section 10.433(a) of the Office’s regulations provide that the Office:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from [the Office] are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) Made
an incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; (2) Failed to provide information which he or she knew or
should have known to be material; or (3) Accepted a payment which he or she
knew or should have known to be incorrect. (This provision applies only to the
overpaid individual).”11
In determining whether a claimant is at fault in creating an overpayment, the Office will
consider the circumstances surrounding the overpayment. The degree of care expected by a
recipient of compensation may vary with the complexity of the circumstances and the
individual’s capacity to realize that he or she is being overpaid.12
ANALYSIS -- ISSUE2
The Office found that appellant was at fault in creating the overpayment because he knew
or should have known he was not entitled to wage-loss compensation for the period January 8
through 17, 2009 when he also received wages from the employing establishment. Each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives are proper13 and the recipient must show good faith and exercise
a high degree of care in reporting events that may affect entitlement to or the amount of
benefits.14
In this case, appellant received compensation by check which indicated the date of
compensation entitlement and also received wages from the employing establishment for the
period January 8 through 17, 2009. In a January 8, 2008 letter, in which the Office notified
appellant that his claim was accepted and in an August 19, 2008 letter when it notified him that
he was placed on the periodic rolls, the Office clearly advised him that he was to immediately
10

5 U.S.C. § 8129; see Joan Ross, 57 ECAB 694 (2006).

11

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also id. at § 10.430.

12

Id. at § 10.433(b); see Neill D. Dewald, 57 ECAB 451 (2006).

13

Danny E. Haley, supra note 6.

14

Sinclair L. Taylor, supra note 11.

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inform the Office upon his return to work to avoid an overpayment in compensation and that, if
he worked during any period covered by a compensation payment, he had to return the payment
to the Office. Under these circumstances, appellant knew or should have known that he could
not receive wage-loss compensation during any period that he worked or continued to receive
wages from the employing establishment.15 The Office was notified that he returned to work on
January 8, 2009. Appellant, however, did not return the compensation he received by check
dated January 17, 2009, for the period January 9 through 17, 2009. The Board finds that he
should have known at the time he returned to work on January 8, 2009 and began to receive
wages from the employing establishment, that he was not entitled to concurrently receive wageloss compensation for the same period and had an obligation to return a payment that he knew or
should have known was incorrect.16 Under section 10.433(a) of the Office’s regulations,
appellant is at fault and is not entitled to waiver of the overpayment in compensation.17
CONCLUSION
The Board finds that appellant was at fault in the creation of an overpayment in
compensation in the amount of $993.07 for the period January 8 through 17, 2009 because he
received wage-loss compensation after his return to work and was thus not entitled to waiver.

15

Neill D. Dewald, supra note 12.

16

Id.

17

Id. The Board also notes that had appellant been found without fault, he would not be entitled to waiver
because he did not submit requested financial information, even though provided overpayment questionnaires on
two occasions. His argument on appeal that he was forced to return to work in error is not relevant to the issue of
whether he knew or should have known that he was not entitled to both wage-loss compensation and earned wages
for the same period.

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ORDER
IT IS HEREBY ORDERED THAT the November 24, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 3, 2010
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

6


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

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

Docket No. 12-963
Issued: November 26, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 26, 2012 appellant filed a timely appeal from a January 5, 2012 merit decision
and a February 1, 2012 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying appellant’s 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 the
case.2
1
2

5 U.S.C. § 8101 et seq.

The Board notes that on February 8, 2012 appellant again requested reconsideration and submitted new
evidence. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its
final decision and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1);
Dennis E. Maddy, 47 ECAB 259 (1995). With regards to the request for reconsideration, by letter dated March 12,
2012, OWCP informed appellant that her only right of appeal was to the Board. This letter did not constitute a final
decision and the Board has no jurisdiction over it. 20 C.F.R. § 501.2(c). Appellant filed an appeal to this Board on
March 26, 2012. Subsequent to the appeal before the Board, OWCP issued a decision denying modification of her
claim on June 6, 2012. As appellant filed her appeal on March 26, 2012 and OWCP and the Board cannot have
jurisdiction over the same issue at the same time, this decision is null and void. Douglas E. Billings, 41 ECAB 880,
895 (1990). Appellant may submit this or any new evidence to OWCP, together with a request for reconsideration,
pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(3).

ISSUES
The issues are: (1) whether appellant met her burden of proof to establish an injury in the
performance of duty on March 17, 2011, as alleged; and (2) whether OWCP properly refused to
reopen her case for further review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that OWCP did not review all the information sent with
her reconsideration request, and that her request for reconsideration should have been reviewed
on the merits.
FACTUAL HISTORY
On November 19, 2011 appellant, then a 54-year-old mail carrier, filed a traumatic injury
claim alleging that on March 17, 2011 while checking to see if there was outgoing mail at an
address, she tripped when her toe caught in a crack and she fell and landed on her back and
sustained an injury to her back and toe. In support of her claim, she submitted a note dated
November 17, 2011 from Dr. Fawad H. Rizvi, appellant’s treating osteopath, wherein he
indicated that appellant was seen in his office on that date and that she was on bed rest and
unable to return to work until further evaluation on December 8, 2011. In another form
completed on the same date, Dr. Rizvi indicated that appellant would need to be off work from
November 18 to December 16, 2011.
By letter dated November 23, 2011, OWCP asked appellant to submit further
information, including additional detail about the incident and medical evidence, in support of
her claim. On December 9, 2011 appellant submitted a letter indicating that she tripped on a
crack and fell forward and, after taking three or four large steps, fell on the ground hard. She
stated that, although she knew she was hurt, she finished the day rather than “go in take the wrath
of management.” Appellant stated that she was already seeing Dr. Rizvi but that, as a result of
the fall, she had new pain going down her lower back and neck pain. She discussed her pain,
new symptoms and her medical treatment.
By letter dated November 23, 2011, OWCP informed appellant of deficiencies in her
claim and gave her 30 days to file a response. In response, it received multiple reports from
Dr. Rizvi, whose first report, dated March 15, 2011, revealed that appellant noted a one-year
history of aching in her low back associated with numbness and tingling in her buttocks that was
not associated with any inciting factor. Appellant noted a component of right lateral thigh and
hip pain which comes with back pain. At that time, Dr. Rizvi assessed her with low back pain;
radiculopathy-thoracic/lumbar and knee pain. He noted that appellant’s magnetic resonance
imaging (MRI) scan revealed an L5-S1 left paracentral and lateral disc osteophyte complex
causing moderate foraminal stenosis due to protrusion. Dr. Rizvi indicated that she had a history
and imaging consistent with lumbar spinal stenosis and a possible component of radicular
syndrome that has been partially managed on medications but persisting and progressing over the
last year. The record contains additional reports by him dated March 29 to December 8, 2011.
In these reports, Dr. Rizvi noted that appellant had a history of chronic right-sided low back pain,
worse since a fall. He assessed her with low back pain, radiculopathy -- thoracic/lumbar, knee
pain and spondylosis, lumbosacral. Dr. Rizvi discussed appellant’s treatment with medication,
lumbar medial branch blocks and a facet rhizotomy. Although he noted some progress, by his

2

November 17, 2011 report, he indicated that her lumbar pain was progressing and the frequency
of upper extremity pain was increasing as well.
Results of diagnostic tests were also submitted. These included a May 6, 2010 prefall
MRI scan that was interpreted by Dr. Joon Kim, a Board-certified radiologist, as showing L4-5
small central disc osteophyte complex and L5-S1 left paracentral and lateral disc osteophyte
complex. A November 24, 2011 x-ray was interpreted by Dr. Carolina Henein, an osteopath, as
showing spondylosis of the lumbar spine. Dr. Henein noted circumferential disc bulge effacing
the anterior thecal sac with moderate bilateral neural foramina narrowing and a small annular
fissure at L4-5. She further noted a left paracental and far lateral broad-based disc bulge effacing
the anterior and left lateral thecal sac with mass effect on the exiting left nerve root and moderate
left neural foramina narrowing and mild right neural foramina narrowing at L5-S1. In
December 11 and 22, 2011 notes, Dr. Arturo Paz, a Board-certified neurosurgeon, indicated that
appellant had a computerized tomography (CT) scan of her lumbar spine and that she had air in
the intervertebral disc space at L5-S1, marked degenerative changes, marked decrease of the
space and foramen encroachment. He noted that she was going to be scheduled for surgery
which will be decompression, laminectomy and fusion with instrumentation at L5-S1. The
record also contains a copy of the December 22, 2011 CT scan.
By decision of January 5, 2012,3 OWCP denied appellant’s claim as the medical evidence
did not demonstrate that the claimed condition was related to the established work-related event.
On January 25, 2012 appellant requested reconsideration. In support of her request, she
submitted a December 20, 2011 report by Dr. Paz wherein he noted that she had an onset of low
back pain in March 2011, when she claimed her back pain doubled. Dr. Paz noted that appellant
had epidural shots after physical therapy and complained of increasing urinary frequency. He
noted that she has been off work since November 17, 2011 and has difficulty sitting for a long
time. Appellant also submitted a duplicate copy of the CT scan of December 22, 2011.
On February 1, 2012 OWCP denied reconsideration of the claim as the evidence
submitted with appellant’s request was insufficient to warrant merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5

3

The decision is mistakenly dated January 5, 2011.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).

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To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.8 An employee may establish that the
employment incident occurred as alleged, but fail to show that his or her disability or condition
related to the employment incident.9
Under FECA, when employment factors caused an aggravation of an underlying physical
condition, the employee is entitled to compensation for the periods of disability related to the
aggravation.10 When the aggravation is temporary and leaves no permanent residuals,
compensation is not payable for periods after the aggravation ceased.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.12 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
specified employment factors or incident.13 The opinion of the physician must be based on a
complete factual and medical background of the employee, must be one of reasonable 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 employee.14
ANALYSIS -- ISSUE 1
Appellant alleged that she suffered a back and toe injury as a result of an employment
incident that occurred on March 17, 2011 when her toe caught a crack and she tripped and fell
and landed on her back. OWCP found that the incident occurred as alleged and that a medical
condition had been diagnosed, but denied her claim as she failed to establish that her medical
condition was causally related to the accepted employment incident.

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

Raymond W. Behrens, 50 ECAB 221, 222 (1999); James L. Hearn, 29 ECAB 278, 287 (1978).

11

Id.

12

D.A., Docket No. 12-540 (issued July 25, 2012).

13
14

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).
Id.

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Appellant submitted medical evidence that established that she had a history of back
problems. In a medical report dated March 15, 2011, two days prior to the employment incident,
Dr. Rizvi noted that she had a one-year history of aching in her low back and tingling in her
buttocks that was not associated with any inciting factor. He assessed appellant with low back
pain, radiculopathy (thoracic/lumbar) and knee pain. After the March 17, 2011 incident
Dr. Rizvi wrote numerous other reports dated from March 29 to December 8, 2011. These
reports indicated that appellant was treated for low back pain, radiculopathy (thoracic/lumbar),
knee pain and lumbosacral spondylosis. Dr. Rizvi indicated that her pain was worse since a fall.
However, he never discussed the fall. Dr. Rizvi did not explain how the fall occurred or even the
date of the fall. He never directly attributed any aggravation of appellant’s preexisting back
condition to the March 17, 2011 employment incident. Accordingly, Dr. Rizvi’s reports are not
sufficient to establish a causal relationship between her back injury and the employment incident
of March 17, 2011. The diagnostic reports in the record by Drs. Kim, Henein and Paz do not
address causal relationship.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition worsened during a period of employment nor her
belief that her condition was caused by her employment is sufficient to establish causal
relationship.15 Accordingly, as she did not submit rationalized medical evidence that her medical
condition was causally related to the March 17, 2011 employment incident, she failed to
establish her claim.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,16
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.17 To be entitled to a merit review
of OWCP’s decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.18 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.19

15

M.J., Docket No. 12-534 (issued July 26, 2012).

16

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
17

20 C.F.R. § 10.606(b)(2).

18

Id. at § 10.607(a).

19

Id. at § 10.608(b).

5

ANALYSIS -- ISSUE 2
In requesting reconsideration, appellant did not argue that OWCP erroneously interpreted
a specific point of law nor did she advance a relevant legal argument not previously considered.
She did submit two pieces of evidence: a copy of a CT report from December 22, 2011 and a
December 20, 2011 report by Dr. Paz. The CT report from December 22, 2011 is a duplicate of
a report already in the record. The Board has held that submission of evidence which repeats or
duplicates evidence already in the case record does not constitute a basis for reopening the
case.20 The December 20, 2011 report from Dr. Paz is a new piece of evidence. Although
Dr. Paz noted that appellant had onset of low back pain in March 2011, he does not address the
March 17, 2011 employment incident. Accordingly, the report of Dr. Paz does not address the
relevant issue of causal relationship. The Board has held that the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.21
Although appellant contends on appeal that OWCP did not review all of the evidence
submitted with her reconsideration request, the Board finds that this is not the case; all evidence
was considered. Accordingly, she has not submitted evidence sufficient to require OWCP to
reopen the case for further merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she was
injured in the performance of duty on March 17, 2011, as alleged. The Board further finds that
OWCP properly refused to reopen her case for further review of the merits pursuant to 5 U.S.C
§ 8128(a).

20

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

21

D.B., Docket No. 10-2036 (issued March 13, 2011); Edward Mathew Diekemper, 31 ECAB 224, 225 (1979).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 1 and January 5, 2012 are affirmed.
Issued: November 26, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
G.T., Appellant
and
U.S. POSTAL SERVICE, CINCINNATI
PERFORMANCE CLUSTER, Cincinnati, OH,
Employer
__________________________________________

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

Docket No. 10-315
Issued: September 8, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 13, 2009 appellant filed a timely appeal from an October 26, 2009
nonmerit decision of the Office of Workers’ Compensation Programs denying his request for a
telephonic hearing. The most recent Office merit decision of record is dated April 22, 2009.
Because more than 180 days has elapsed between the most recent merit decision of April 22,
2009 and the filing of this appeal, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board only
has jurisdiction to review the October 26, 2009 nonmerit decision.
ISSUE
The issue is whether the Office properly denied appellant’s request for a telephonic
hearing as untimely under 5 U.S.C. § 8124.
FACTUAL HISTORY
On March 23, 1992 appellant, then a 64-year-old mail handler, filed an occupational
disease claim alleging that his preexisting back condition had been aggravated by the heavy work
he performed. The Office accepted appellant’s claim for permanent aggravation of lumbar

degenerative disc disease. Appellant returned to modified-duty work until retirement in
February 1991. He then began receiving total disability compensation from the Office. In an
August 25, 1999 decision, the Office determined that appellant’s reemployment as a turret guard
at Brinks Security effective January 1, 1993 fairly and reasonably represented his wage-earning
capacity and reduced appellant’s compensation accordingly. As a result, appellant received
partial wage-loss compensation from the Office.
By decision dated April 22, 2009, the Office terminated appellant’s compensation
benefits and modified his August 25, 1999 loss of wage-earning capacity decision to zero
effective April 22, 2009. It determined that the medical evidence established that he no longer
had any residuals or disability on account of the accepted injury.
On September 10, 2009 appellant’s attorney requested a telephonic hearing. He indicated
that appellant had “previously filed the appeal.”
By decision dated October 26, 2009, the Office’s Branch of Hearings and Review denied
appellant’s request for a telephonic hearing on the grounds that it was untimely. It exercised its
discretion and further denied his request on the basis that the issue in the case could be addressed
by requesting reconsideration from the Office and submitting evidence not previously considered
which established that he was entitled to compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides in pertinent
part as follows:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary is entitled, on request made within
30 days after the date of issuance of the decision, to a hearing on his claim before
a representative of the Secretary.”1
The claimant can choose between two formats: an oral hearing or a review of the written
record.2 The requirements are the same for either choice.3 The Board has held that section
8124(b)(1) is unequivocal in setting forth the time limitation for requesting hearings or reviews
of the written record. A claimant is entitled to a hearing or review of the written record as a
matter of right only if the request is filed within the requisite 30 days as determined by postmark
or other carrier’s date marking and before the claimant has requested reconsideration.4 However,
when the request is not timely filed or when reconsideration has previously been requested, the

1

5 U.S.C. §§ 8101-8193, § 8124(b)(1).

2

20 C.F.R. § 10.615.

3

Claudio Vazquez, 52 ECAB 496, 499 (2001).

4

20 C.F.R. § 10.616(a); see Martha A. McConnell, 50 ECAB 129, 130 (1998).

2

Office may, within its discretion, grant a hearing or review of the written record and must
exercise this discretion.5
ANALYSIS
By decision dated April 22, 2009, the Office terminated appellant’s compensation
benefits and modified his loss of wage-earning capacity dated August 25, 1999 to zero effective
April 22, 2009. Appellant’s request for a hearing before an Office hearing representative was
dated September 10, 2009, more than 30 days after the April 22, 2009 decision. Therefore, his
request was not timely and appellant was not entitled to an oral hearing as a matter of right.6
Although appellant’s attorney indicated that appellant previously filed an appeal, the record does
not indicate that he requested a hearing within 30 days of the April 22, 2009 decision or that he
exercised any other appeal right regarding that decision.
The Office has the discretionary authority to grant a hearing even though a claimant is
not entitled as a matter of rights. In its October 26, 2009 decision, the Office properly exercised
its discretion. It considered the issue involved and had denied appellant’s request for an oral
hearing on the basis that his claim on the issue of whether he was entitled to compensation
benefits could be adequately addressed through the reconsideration process and the submission
of additional evidence. The Board has held that the only limitation on the Office’s authority is
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deduction from established facts.7 In the present case, the Office did not abuse its discretion in
denying a discretionary hearing.8
CONCLUSION
The Board finds that the Office properly found that appellant had filed an untimely
request for an oral hearing.

5

See R.T., 60 ECAB ___ (Docket No. 08-408, issued December 16, 2008); 20 C.F.R. § 10.616(b).

6

20 C.F.R. § 10.616(a).

7

Teresa M. Valle, 57 ECAB 542 (2006); Daniel J. Perea, 42 ECAB 214 (1990).

8

Appellant submitted new medical evidence subsequent to the Office’s April 22, 2009 decision and before the
Board. The Board has no jurisdiction to review new evidence on appeal. See 20 C.F.R. § 501.2(c). Appellant can
resubmit this evidence to the Office and request reconsideration under 5 U.S.C. § 8128.

3

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 26, 2009 is affirmed.
Issued: September 8, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, PLEASANT HILL
BRANCH, Des Moines, IA, Employer
__________________________________________

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

Docket No. 08-2266
Issued: May 12, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 18, 2008 appellant filed a timely appeal of the July 7, 2008 merit decision of
the Office of Workers’ Compensation Programs, denying his claim for a recurrence of total
disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this appeal.
ISSUE
The issue is whether appellant has established that he sustained a recurrence of total
disability on May 1, 2005 causally related to his accepted employment-related injuries.
FACTUAL HISTORY
On July 10, 2003 appellant, then a 55-year-old mail carrier, filed an occupational disease
claim alleging that on May 1, 2003, he became aware of his right knee problems and realized
that they were caused by being cramped up in a long-life vehicle for 3½ to 4 hours for 32 miles.
The Office accepted his claim for a strain and torn medial meniscus of the right knee. It
authorized arthroscopic surgery on the right knee which was performed on October 8, 2003.

By decision dated June 8, 2004, the Office terminated appellant’s wage-loss
compensation and medical benefits effective that date based on the April 20 and May 3, 2004
medical reports by Dr. Keith W. Riggins, an Office referral physician, which stated that appellant
could return to his mail carrier position with no employment-related restrictions. In an
October 18, 2004 decision, the Office denied appellant’s request for modification.
By decision dated January 4, 2005, the Office granted appellant a schedule award for a 20
percent impairment of the right lower extremity.
On March 26, 2008 appellant filed a claim alleging that he sustained a recurrence of
disability on May 1, 2005. He contended that his employment injury had worsened during the
last couple of years. Appellant limped and was tired most of the time. He worked eight hours
per day and stated that he was not limited in performing his regular work duties.
By letter dated May 6, 2008, the Office requested that appellant submit additional factual
and medical evidence including, a rationalized medical report from an attending physician which
described his medical history, results of examination and tests, diagnosis, treatment provided and
opinion with medical reasons on whether there was a causal relationship between appellant’s
current condition and his employment-related injuries. Appellant was allowed 30 days to submit
such evidence. He did not respond within the allotted time period.
In a decision dated July 7, 2008, the Office denied appellant’s recurrence of total
disability claim. It found that he failed to submit any medical evidence establishing that he
sustained a disability on May 1, 2005 causally related to his accepted employment-related
injuries.1
LEGAL PRECEDENT
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition, which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness. This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force (RIF)) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.2
When an employee claims a recurrence of or continuing disability causally related to an
accepted employment injury he or she has the burden of establishing by the weight of the
reliable, probative and substantial medical evidence that the claimed period of disability is
1

Following the issuance of the Office’s July 7, 2008 decision, it received additional evidence. The Board may
not consider evidence for the first time on appeal which was not before it at the time it issued the final decision in
the case. 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and request reconsideration.
5 U.S.C. § 8128; 20 C.F.R. § 10.606.
2

20 C.F.R. § 10.5(x).

2

causally related to the accepted injury.3 Appellant has the burden of establishing by the weight
of the substantial, reliable and probative evidence a causal relationship between his recurrence of
disability and his employment injury.4 This burden includes the necessity of furnishing evidence
from a qualified physician who, on the basis of a complete and accurate factual and medical
history, concludes that the condition is causally related to the employment injury.5 Moreover,
the physician’s conclusion must be supported by sound medical reasoning.6
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.7 In this regard, medical evidence
of bridging knee symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.8 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.9
ANALYSIS
The Office accepted that appellant sustained a strain and torn medial meniscus of the
right knee. When it issued its May 6, 2008 developmental letter, it specifically requested that
appellant submit a rationalized medical opinion from his attending physician as to whether his
recurrence of disability was causally related to his accepted employment-related injuries.
Appellant did not submit any medical evidence within the allotted time. An award of
compensation may not be based on surmise, conjecture, speculation, or upon his own belief that
there is causal relationship between his claimed condition and his employment.10 As appellant
has failed to submit any medical evidence containing a rationalized opinion establishing that he
sustained a recurrence of disability on May 1, 2005 causally related to his accepted employment
injuries, the Board finds that he has not met his burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a recurrence of
disability on May 1, 2005 causally related to his accepted employment-related injuries.
3

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

4

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

5

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

6

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

7

See Ricky S. Storms, supra note 5; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).
8

For the importance of bridging information in establishing a claim for a recurrence of disability, see
Richard McBride, 37 ECAB 748 at 753 (1986).
9

See Ricky S. Storms, supra note 5; Morris Scanlon, 11 ECAB 384, 385 (1960).

10

John D. Jackson, 55 ECAB 465 (2004); William Nimitz, 30 ECAB 57 (1979).

3

ORDER
IT IS HEREBY ORDERED THAT the July 7, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 12, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.Y., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Kearny, NJ,
Employer
__________________________________________

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Appearances:
Norman McNulty, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1969
Issued: February 26, 2013

Case Submitted on the Record

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

JURISDICTION
On September 27, 2012 appellant, through her representative, filed a timely appeal from a
July 11, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss benefits under
5 U.S.C. § 8106(c) on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On October 12, 2005 appellant, then a 56-year-old mail processing clerk, filed an
occupational claim (Form CA-2) alleging that she sustained cervical radiculopathy, cervical disc
1

5 U.S.C. § 8101 et seq.

herniations and bilateral carpal tunnel syndrome as a result of her federal employment. She
noted that her job involved working a letter sorting machine and carrying trays of mail. On
November 16, 2005 OWCP accepted the claim for bilateral carpal tunnel syndrome and brachial
neuritis/radiculitis.
Appellant returned to a light-duty position, stopped working on June 16, 2008 and filed a
claim for recurrence of disability. A second opinion physician, Dr. Jeffrey Lakin, a Boardcertified orthopedic surgeon, opined in an October 21, 2008 report that appellant’s current
diagnosis of cervical radiculopathy was causally related to her federal employment. By decision
dated July 24, 2009, an OWCP hearing representative found that cervical radiculitis should be
accepted as employment related and appellant had established a recurrence of total disability.
On August 29, 2009 the employing establishment offered appellant a modified clerk
position.
The record indicates that on September 18, 2009 OWCP accepted the claim for cervical
radiculitis. In a duty status report (Form CA-17) dated October 21, 2009, appellant’s attending
physician, Dr. Hong Pak, a physiatrist, advised that she was limited to five pounds lifting, seven
hours sitting and four hours pushing and pulling.
By letter dated November 17, 2009, OWCP notified appellant that it found the offered
position suitable. In a memorandum of telephone call dated November 24, 2009, appellant stated
her concern about the lifting required in the offered job. OWCP stated that it would seek
clarification. On November 27, 2009 it prepared a statement of accepted facts (SOAF), listing
the claim was accepted for bilateral carpal tunnel syndrome and brachial radiculitis, without
mention of cervical radiculitis.
OWCP referred appellant to Dr. Lakin and to Dr. Catherine Mazzola, a neurosurgeon, for
second opinion examinations. Drs. Lakin and Mazzola were asked to provide opinions as to the
employment-related conditions, disability and work capacity.
In a report dated December 22, 2009, Dr. Lakin reviewed a history of injury and medical
treatment. He stated that appellant’s current diagnoses appeared to be degenerative disc disease
and cervical radiculitis, noting the cervical radiculitis appeared to be work related. In response
to a question as to whether the accepted carpal tunnel syndrome and brachial radiculitis were still
active, Dr. Lakin opined that the conditions appeared to be no longer active. He stated that
appellant could return to full duty as there was no evidence of work-related injuries. In response
to a question as to maximum medical improvement, Dr. Lakin stated that, as far as appellant’s
complaints to the cervical spine radiculitis, there were no signs of active radiculitis or brachial
radiculitis.
The Board notes that Dr. Pak, the attending physician, submitted CA-17 reports dated
November 25, 2009 to February 25, 2010. The reports provided the same work restrictions as in
the October 21, 2009 Form CA-17 (five pounds lifting, seven hours sitting, four hours pushing
and pulling).

2

In a report dated March 2, 2010, the second opinion neurosurgeon, Dr. Mazzola, provided
results on examination.2 She opined that appellant did have clear evidence, both radiologically
and electrodiagnostically, of bilateral carpal tunnel syndrome and at least a C6 radiculopathy on
the right side. Although the accepted conditions were bilateral carpal tunnel syndrome and
brachial radiculitis, this was “not correct” and the diagnosis was bilateral carpal tunnel syndrome
and cervical radiculopathy with C4-5 and C5-6 disc herniations. Dr. Mazzola stated that the
symptomology experienced by appellant was likely accelerated or at least aggravated by the
work performed. She recommended that appellant have surgery. Dr. Mazzola opined that
appellant “probably could return to work with limited duty. However, any kind of significant
movement or hand movement will only aggravate her symptoms. Light desk duty would
probably be the optimal job for this claimant.” On a work capacity evaluation form (OWCP 5c),
Dr. Mazzola stated that appellant “could not work due to pain,” and indicated she could do
telephone work and desk work, but not mail sorting.
On April 5, 2010 the employing establishment offered appellant a modified clerk
position. The job requirements included sorting flats and mail, with a five-pound lifting
restriction. The employing establishment indicated that the physical restrictions were within the
reported restrictions of Dr. Pak on February 25, 2010.
By letter dated April 27, 2010, OWCP advised appellant that it found the offered position
to be suitable. It stated that she had 30 days to accept the position or provide reasons for
refusing. On May 20, 2010 appellant submitted a May 3, 2010 report from Dr. Pak, who stated
that he had reviewed the modified job offer. Dr. Pak noted that he had considered appellant’s
mental and physical condition, including insomnia, and stated that “based upon my professional
expertise and findings, the presented duties would exacerbate [appellant’s] health problems and
so are not suitable.” He noted that Dr. Lakin had found permanent restrictions in his October 21,
2008 report and appellant should be offered her previous light-duty job with a high back support
chair.
In a letter dated June 22, 2010, OWCP advised appellant that it found her reasons for
refusing the position unacceptable. It stated that she had 15 days to accept the position. The
record indicates that OWCP did not take action with respect to the June 22, 2010 letter after 15
days. Dr. Pak continued to submit duty status reports with the previously listed work
restrictions. In a Form CA-110 dated January 6, 2011, OWCP reported that, according to the
employing establishment, the light-duty job was still available.
By decision dated February 8, 2011, OWCP terminated appellant’s entitlement to wage
loss effective February 12, 2011 on the grounds that she had refused an offer of suitable work.
Appellant requested a review of the written record by an OWCP hearing representative.
By decision dated May 16, 2011, the hearing representative affirmed the termination of
compensation. The hearing representative found the job offer was within the restrictions of
Dr. Pak and his opinion as to a possible future injury was of diminished probative value.

2

The report of record appears to be incomplete and is missing the initial pages of the report.

3

Appellant, through her representative, requested reconsideration by letter dated
April 9, 2012. The representative argued that OWCP failed to consider the medical evidence of
record and/or to establish that the job was suitable.
By decision dated July 11, 2012, OWCP reviewed the case on its merits and denied
modification.
LEGAL PRECEDENT
Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee
who … (2) refuses or neglects to work after suitable work is offered ... is not entitled to
compensation.” It is OWCP’s burden to terminate compensation under section 8106(c) for
refusing to accept suitable work or neglecting to perform suitable work.3 To justify such a
termination, OWCP must show that the work offered was suitable.4 The determination of
whether an employee is physically capable of performing the job is a medical question that must
be resolved by medical evidence.5
With respect to the procedural requirements of termination under section 8106(c), the
Board has held that OWCP must inform appellant of the consequences of refusal to accept
suitable work, and allow appellant an opportunity to provide reasons for refusing the offered
position.6 If appellant presents reasons for refusing the offered position, OWCP must inform the
employee if it finds the reasons inadequate to justify the refusal of the offered position and afford
appellant a final opportunity to accept the position.7
ANALYSIS
In the present case, OWCP found that the modified clerk position, initially offered to
appellant on April 5, 2010, was medically suitable, but a review of the medical evidence in this
case indicates that OWCP did not properly develop the evidence in accord with established
principles.
The employing establishment stated that the April 5, 2010 modified clerk position was
within the February 25, 2010 work restrictions provided by Dr. Pak, the attending physician.
The Board notes that Dr. Pak submitted a May 3, 2010 report stating that he did not find the
offered position to be suitable. According to the hearing representative, Dr. Pak merely noted
that appellant might be subject to future injury if she took the position.8 OWCP never sought
3

Henry P. Gilmore, 46 ECAB 709 (1995).

4

John E. Lemker, 45 ECAB 258 (1993).

5

Id.

6

Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

7

Id.

8

The possibility of a future injury does not constitute an injury under FECA and therefore no compensation can
be paid for such a possibility. Gaetan F. Valenza, 39 ECAB 1349, 1356 (1988).

4

clarification from Dr. Pak to determine if his opinion as to suitability was based only on a fear of
a future injury.
The initial job offer of August 29, 2009 was made prior to the acceptance of cervical
radiculitis on September 18, 2009. Prior to February 25, 2010, OWCP had determined that the
medical evidence required further development with respect to appellant’s work restrictions. It
attempted to further develop the evidence by referring appellant to Dr. Lakin and Dr. Mazzola.
Once OWCP undertakes to develop the medical evidence on the issue, it has the
responsibility to properly develop the evidence.9 It is well established that, when OWCP further
develops the evidence and sends the claimant for a second opinion evaluation, it has an
obligation to secure probative medical opinion addressing the issue presented.10 The Board notes
that the November 27, 2009 SOAF was deficient as it did not properly state that cervical
radiculitis was an accepted condition.11 In addition, OWCP failed to properly develop the
evidence received from Dr. Mazzola, the second opinion neurosurgeon. There are initial pages
missing from her report, with no indication that a complete report was sought. Those of record
clearly do not support that the offered position was suitable. Dr. Mazzola found continuing
diagnosed conditions and opined that appellant could not perform mail sorting, recommending
more sedentary employment. OWCP did not request a supplemental opinion.
The delay from the letter finding the job suitable on April 27, 2010 to the issuance of the
February 8, 2011 decision did not eliminate the need to secure probative medical evidence from
the second opinion physicians. OWCP should have secured medical evidence that properly
determined appellant’s work restrictions and provided the basis for evaluating the suitability of
the offered position.12 The Board finds the medical evidence of record does not establish that the
offered position was medically suitable.
CONCLUSION
The Board finds OWCP did not properly terminate appellant’s compensation under
5 U.S.C. § 8106(c) on the grounds that she had refused an offer of suitable work.

9

Melvin James, 55 ECAB 406 (2004); see also C.H., Docket No. 12-1109 (issued December 14, 2012).

10

Peter C. Belkind, 56 ECAB 580 (2005).

11

See P.P., Docket No. 12-970 (issued November 6, 2012).

12

It is well established that, with respect to a suitable work termination, OWCP must consider preexisting and
subsequently acquired medical conditions, as well as employment-related conditions. Richard P. Cortes, 56 ECAB
200 (2004); Janice S. Hodges, 52 ECAB 379 (2001).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 11, 2012 is reversed.
Issued: February 26, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Concord, CA, Employer
__________________________________________

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

Docket No. 08-136
Issued: February 23, 2009

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 October 18, 2007 appellant filed a timely appeal from a July 24, 2007 Office of
Workers’ Compensation Programs’ decision denying her claim for a recurrence of disability.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on January 6, 2005
causally related to her January 20, 1999 employment injury.
FACTUAL HISTORY
On January 20, 1999 appellant, then a 45-year-old letter carrier, sustained an injury to her
neck and arms caused by casing mail on January 20, 1999. At this time she was on limited duty
due to a work-related lumbar strain on July 24, 1997.1 The Office accepted appellant’s claim for
1

The Office accepted a lumbar strain under OWCP File No. xxxxxx752.

a cervical strain. Appellant was placed on modified duty with physical limitations based on her
cervical and lumbar conditions.
On November 28, 2000 Dr. Norman B. Livermore, appellant’s attending physician,
placed her on limited duty for six hours a day, standing limited to five minutes, carrying and
lifting limited to 10 pounds and the ability to change positions frequently. Appellant filed a
claim for two hours of disability a day caused by her cervical condition. Her claim was denied
by decisions dated February 6, April 10 and July 24, 2001.
On September 20, 2001 appellant filed a claim for a recurrence of disability for two hours
a day beginning September 25, 2000, alleging that her limited-duty position aggravated her
cervical strain. The Office denied appellant’s claim by decisions dated January 23 and
November 14, 2002 under case file number xxxxxx758. Appellant’s claim for a recurrence of
disability from February 11 to 24, 2003 was denied by decision dated May 12, 2003.
On December 5, 2003 appellant filed a claim for a shoulder condition caused by
repetitive use of her arms at work. The Office accepted appellant’s claim for a left rotator cuff
tear and right shoulder strain under case file number xxxxxx422. As of June 2004, appellant’s
work restrictions included no lifting above the shoulders, no performing repetitive hand motions,
no casing mail and no lifting more than 10 pounds.2
Appellant stopped work on January 6, 2005. On February 9, 2005 she filed a claim for a
recurrence of disability beginning January 24, 2005.
On February 15, 2005 the Office asked appellant to provide evidence establishing that
she was unable to perform her light-duty job due to a change in the nature and extent of her
accepted cervical strain or a change in the nature and extent of her light-duty physical
requirements.
In a January 26, 2005 narrative report, Dr. David W. Chow, an attending Board-certified
physiatrist and specialist in pain management, stated that he had treated appellant since May 4,
2004 for lumbar disc herniations and radiculopathy, cervical disc herniations and radiculopathy,
rotator cuff tendinitis and bilateral wrist and elbow tendinitis. Magnetic resonance imaging
(MRI) scans revealed cervical and lumbar disc herniations and stenosis. Dr. Chow stated that
appellant’s symptoms had worsened and she was placed on total disability as of January 6, 2005.
Appellant was unable to perform any work for at least three months due to severe neck pain, low
back pain and upper and lower extremity pain. In a January 26, 2005 form report, Dr. Chow
diagnosed cervical disc displacement caused by repetitive motion of the hands and neck.
Appellant was totally disabled from January 6 to March 6, 2005. In a March 4, 2005 disability
certificate, Dr. Chow extended her period of disability to April 6, 2005. In a March 29, 2005
narrative report, he reviewed the medical history and provided findings on physical examination.
Dr. Chow advised that appellant remained totally disabled.

2

By letter dated May 16, 2006, the employing establishment provided a description of appellant’s work
restrictions and advised that she was never required to work outside her restrictions.

2

By decision dated April 19, 2005, the Office denied appellant’s claim on the grounds that
she failed to establish that her inability to perform her limited-duty job was due to a change in
the nature and extent of her accepted cervical strain or a change in her modified duties. On
May 9, 2005 appellant requested a hearing that was held on April 12, 2006.
In a February 24, 2006 report, Dr. Chow provided findings on physical examination and
stated that appellant was experiencing neck pain radiating into her upper extremities and low
back pain radiating into her lower extremities. Appellant had a longstanding history of cervical
degenerative disc protrusions causing neck pain and upper extremity tendinitis due to
repetitive/overuses injuries. Dr. Chow noted appellant’s complaint of increased neck pain
recently. He diagnosed cervical disc displacement at C4-5 and C5-6,3 cervical degenerative disc
disease, lumbar disc displacement at L4-5 and L5-S1, left L5 radiculopathy and neuroforaminal
stenosis, a left rotator cuff tear and bilateral rotator cuff tendinitis, bilateral and medial
epicondylitis, bilateral wrist tendinitis and bilateral acromioclavicular (AC) joint degenerative
arthritis. Dr. Chow opined that appellant was permanently disabled.
By decision dated June 14, 2006, an Office hearing representative affirmed the April 19,
2005 decision.
On May 18, 2007 appellant requested reconsideration and submitted new medical
evidence.4 In a September 14, 2004 report, Dr. Chow reviewed the medical history and provided
findings on physical examination. He noted that appellant’s complaint that her work duties
aggravated her bilateral neck pain and radiated into the bilateral trapezial regions of her
shoulders. Appellant’s duties included sitting and writing with her head down for prolonged
periods of time. Dr. Chow stated that appellant’s persistent neck pain symptoms were caused by
disc displacement and disc protrusions at C4-5 and C5-6. The symptoms were “not simply due
to a muscular neck strain [which] typically resolve[s] within three months.” Dr. Chow
recommended that cervical disc displacement be accepted as work related. On November 19,
2004 he stated that appellant reported worsening neck pain and low back pain which she
attributed to casing mail. In a November 19, 2004 disability certificate, Dr. Chow diagnosed
lumbar and cervical disc protrusions and bilateral rotator cuff and wrist tendinitis and stated that
she could not case mail.
In a January 6, 2005 report, Dr. Chow stated that he performed a cervical transforaminal
epidural steroid injection on the right at C5 and C6 to alleviate a cervical disc herniation,
radiculopathy and stenosis. On January 20, 2005 he provided findings on physical examination
and stated that appellant had a 50 percent reduction in neck and upper extremity pain following
her January 6, 2005 steroid injection. Dr. Chow indicated that, if she continued to show
improvement, she could undergo physical therapy and transition back to light-work duties. In a
March 4, 2005 report, he stated that appellant was unable to work beginning January 24, 2005
due to a worsening of her employment-related conditions. Dr. Chow stated that appellant’s
repetitive lifting, loading and transferring heavy objects on January 20, 1999 caused bilateral
neck pain, bilateral shoulder and upper extremity pain and bilateral low back pain radiating to
3

A February 7, 2003 MRI scan of appellant’s cervical spine revealed posterior disc bulging at C4-5 and C5-6.

4

Appellant also submitted four documents previously considered by the Office.

3

her lower extremities. He stated that there was a direct causal relationship between the
mechanism of injury, the repetitive lifting, loading and transferring heavy objects and appellant’s
low back and lower extremity symptoms, bilateral shoulder pain, bilateral wrist and hand pain
and right elbow pain. Dr. Chow stated that lumbar disc displacement at L4-5 and L5-S1, lumbar
radiculopathy and lumbar stenosis should be accepted as related to the January 20, 1999
employment injury. He opined that appellant’s bilateral shoulder pain, right elbow pain and
bilateral hand and wrist pain occurred in August or September 2004 due to her light-duty work
involving repetitive motions of the upper extremities. Appellant’s light-duty work exacerbated
her bilateral rotator cuff tendinitis and caused new injuries of right elbow tendinitis and bilateral
wrist tendinitis. Dr. Chow recommended these conditions be accepted as causally related to the
January 20, 1999 employment injury. He stated that appellant’s light-duty work exacerbated her
accepted cervical strain and caused cervical disc displacement. Dr. Chow stated that appellant’s
ability to return to light-duty work depended on a successful course of physical therapy. In a
March 21, 2005 form report, he diagnosed cervical and lumbar disc protrusions with
radiculopathy and stenosis, cervical disc displacement at C4-5 and C5-6, left L5 radiculopathy
and lumbar disc displacement at L4-5 and L5-S1. Dr. Chow stated that appellant was still
disabled.
In a June 23, 2006 report, Dr. Chow stated that appellant’s neck pain had been quite
severe over the past several months. He provided findings on physical examination and opined
that appellant was still totally disabled. In reports dated July 3 and 10, 2006 Dr. Chow stated
that appellant was totally disabled. Appellant had attempted light-duty work but was unable to
tolerate even light-duty activities due to pain caused by cervical and lumbar disc protrusions,
chronic left L5 radiculopathy, upper extremity tendinopathy and a rotator cuff tear. A March 1,
2007 MRI scan revealed bony and disc degenerative changes with reversal of the normal
lordosis, a broad-based C5-6 disc bulge and mild anterior flattening of the spinal cord. In a
March 13, 2007 statement, Dr. Chow stated that a simple cervical strain, such as appellant
sustained on January 20, 1999, would have improved over time but her condition did not. He
stated that appellant had an MRI and electromyogram (EMG) scan performed at the time of the
1999 employment injury, she would have been diagnosed with disc protrusions at C4-5 and
C5-6. Dr. Chow stated that appellant’s condition was exacerbated over time, to include shoulder
pain, right elbow pain and bilateral hand/wrist pain, by the repetitive upper extremity activities
required in her light-duty work, especially casing mail. He stated that cumulative repetitive
upper extremity activities directly caused appellant’s tendinitis. In a March 13, 2007 report,
Dr. Chow noted that the March 1, 2007 MRI scans revealed central focal disc protrusions at C3-4
and C5-6 and annular disc bulges at C4-5. He provided findings on physical examination and
indicated that appellant was still disabled.
By decision dated July 24, 2007, the Office denied appellant’s claim on the grounds that
the evidence did not establish that she sustained a recurrence of disability on January 6, 2005
causally related to her January 20, 1999 employment injury.5

5

Subsequent to the July 24, 2007 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.

4

LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty job requirements.6 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.7
ANALYSIS
Appellant has the burden to provide medical evidence establishing that she was disabled
on January 6, 2005 due to a worsening of her accepted cervical strain or a change in her job
duties such that she was unable to perform her light-duty work.
At the time of appellant’s January 20, 1999 cervical strain, she was on limited duty due to
a work-related lumbar strain on July 24, 1997. As of June 2004, prior to her claimed recurrence
of disability on January 6, 2005, her work restrictions included no lifting above the shoulders, no
performing repetitive hand motions, no casing mail and no lifting more than 10 pounds.
On September 14, 2004 Dr. Chow stated that appellant’s persistent neck pain symptoms
were caused by disc protrusions at C4-5 and C5-6. The symptoms were “not simply due to a
muscular neck strain [which] typically resolve[s] within three months.” Dr. Chow recommended
that cervical disc displacement be accepted as work related. However, his statement that a neck
strain typically resolves in three months is not consistent with his opinion that the cervical disc
displacement, diagnosed several years later in 2004, was caused by the January 20, 1999 cervical
strain. On November 19, 2004 Dr. Chow stated that appellant reported worsening neck pain and
low back pain which she attributed to casing mail. He diagnosed lumbar and cervical disc
protrusions and bilateral rotator cuff and wrist tendinitis and stated that she could not case mail.
However, the record reflects that casing mail was not included in appellant’s light-duty job.
Therefore, Dr. Chow’s opinion is not based on an accurate factual history regarding the
circumstances of appellant’s claimed recurrence of total disability. Further, these reports predate
6

Albert C. Brown, 52 ECAB 152, 154-55 (2000); Terry R. Hedman, 38 ECAB 222, 227 (1986); 20 C.F.R.
§ 10.5(x) provides, “Recurrence of disability means an inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous injury or illness without
an intervening injury or new exposure to the work environment that caused the illness. This term also means an
inability to work that takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn (except when such withdrawal
occurs for reasons of misconduct, non-performance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical limitations.”
7

Mary A. Ceglia, 55 ECAB 626, 629 (2004); Maurissa Mack, 50 ECAB 498, 503 (1999).

5

the claimed January 6, 2005 recurrence of total disability and are, therefore, of diminished
probative value. Moreover, a cervical disc displacement is not an accepted condition and
Dr. Chow provided insufficient rationale establishing causal relationship to the January 20, 1999
accepted cervical strain. In the 2004 reports, he did not provide sufficient medical rationale
explaining how there was a worsening of appellant’s accepted cervical strain or a change in her
light-duty job requirements such that it resulted in a recurrence of disability on January 6, 2005.
On January 20, 2005 Dr. Chow provided findings on physical examination and stated that
appellant had a 50 percent reduction in neck and upper extremity pain following a January 6,
2005 steroid injection. He indicated that, if appellant continued to show improvement, she could
undergo physical therapy and transition back to her light-duty work. However, on January 26,
2005, Dr. Chow stated that appellant’s symptoms had worsened and she was totally disabled
beginning January 6, 2005 due to severe neck pain, low back pain and upper and lower extremity
pain. He again diagnosed cervical disc displacement caused by repetitive motion of the hands
and neck. However, Dr. Chow indicated that appellant’s disability beginning January 6, 2005
was caused by several medical conditions. The sole accepted condition in this case is a cervical
strain. Appellant must establish that her total disability on January 6, 2005 was caused by a
change in the nature and extent of her cervical strain or a change in the nature and extent of her
light-duty job. As noted, Dr. Chow provided insufficient medical rationale explaining how
appellant’s other conditions were causally related to the January 20, 1999 employment injury.
On March 4 and 21, 2005 he stated that appellant was totally disabled. Dr. Chow stated that
lumbar disc displacement at L4-5 and L5-S1, lumbar radiculopathy and lumbar stenosis should
be accepted as related to the January 20, 1999 employment injury. However, he provided
insufficient rationale explaining how these conditions were causally related to appellant’s
accepted cervical strain. Dr. Chow opined that appellant sustained right elbow and bilateral wrist
tendinitis and an exacerbation of her bilateral rotator cuff tendinitis in August or September 2004
due to her light-duty work involving repetitive motions of the upper extremities. However, the
record reflects that repetitive hand motions were not included in her light-duty job requirements.
Therefore, Dr. Chow’s opinion is not based on an accurate factual background regarding the
circumstances of appellant’s claimed recurrence of total disability. Due to these deficiencies,
these reports are not sufficient to establish that appellant sustained a recurrence of total disability
on January 6, 2005 due to a change in the nature and extent of her cervical strain or a change in
the nature and extent of her light-duty job requirements.
On February 24, 2006 Dr. Chow diagnosed cervical disc displacement at C4-5 and C5-6,
cervical degenerative disc disease, lumbar disc displacement at L4-5 and L5-S1, left L5
radiculopathy and neuroforaminal stenosis, a left rotator cuff tear and bilateral rotator cuff
tendinitis, bilateral and medial epicondylitis, bilateral wrist tendinitis, and bilateral AC joint
degenerative arthritis. He opined that appellant was permanently disabled. In reports dated
July 3 and 10, 2006, Dr. Chow stated that appellant had attempted light-duty work but was
unable to tolerate even light-duty work due to pain caused by cervical and lumbar disc
protrusions, chronic left L5 radiculopathy, upper extremity tendinopathy and a rotator cuff tear.
On March 13, 2007 he indicated that a simple cervical strain, the accepted January 20, 1999
employment injury, should have improved over time but did not improve in appellant’s case.
Dr. Chow stated that, if an MRI and EMG scan had been performed at the time of the 1999
employment injury, appellant would have been diagnosed with disc protrusions at C4-5 and
C5-6. However, his opinion that appellant had cervical disc problems in 1999 is speculative and
6

not established by objective medical evidence. Dr. Chow stated that appellant’s condition was
exacerbated over time and she developed shoulder pain, right elbow tendinitis and bilateral hand
and wrist tendinitis caused by the cumulative repetitive upper extremity activities required by her
light-duty work, especially casing mail. However, his description of her light-duty activities is
not based on an accurate factual background because her light-duty job did not include casing
mail. Because Dr. Chow’s opinions regarding causal relationship are not based on an accurate
factual background and because he provided insufficient medical rationale in his reports, this
medical evidence does not establish that appellant sustained a recurrence of disability on
January 6, 2005 due to a change in the nature and extent of her cervical strain or a change in the
nature and extent of her light-duty job requirements.
The Board finds that appellant failed to establish that she was disabled on January 6,
2005 due to a change in the nature and extent of her employment-related cervical strain or a
change in the nature and extent of her light-duty job requirements. Therefore, the Office
properly denied her claim for a recurrence of disability.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a recurrence of
disability on January 6, 2005 causally related to her January 20, 1999 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 24, 2007 is affirmed.
Issued: February 23, 2009
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-646
Issued: July 18, 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 January 8, 2007 appellant filed a timely appeal from an October 2, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs that denied her reconsideration
request on the grounds that it was untimely filed and did not establish clear evidence of error.
Because more than one year has elapsed from the last merit decision dated July 13, 2004 to the
filing of this appeal, 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 request for reconsideration on
the grounds that it was untimely filed and did not present clear evidence of error.
FACTUAL HISTORY
On July 6, 1999 appellant, then a 38-year-old clerk, filed a traumatic injury claim stating
that she injured her left shoulder blade on July 5, 1999 when she pulled down a sack of mail.
She stopped work on July 7, 1999. On August 4, 1999 Dr. Charles D. Mitchell, a Board-certified

orthopedic surgeon, diagnosed cervical strain. The Office accepted a left shoulder strain and
later accepted cervical and lumbar strains. On September 8, 2000 appellant filed a second
traumatic injury claim alleging that she felt pain in her right shoulder and lower right arm while
working on September 6, 2000. She stopped work on September 9, 2000. Appellant returned to
light duty on July 11, 2001. The Office accepted right shoulder and cervical sprains. On
October 18, 2001 the Office combined the two claims under one file.
Appellant claimed a schedule award on September 20, 2001. On January 12, 2002
Dr. Mitchell provided an impairment rating and stated that appellant reached maximum medical
improvement on December 1, 2001.
On March 21, 2002 an Office medical adviser
recommended that the Office further develop the claim regarding diagnoses, causal relationship
and impairment. On May 14, 2002 the Office referred appellant to Dr. John Sklar, a Boardcertified physiatrist, for a second opinion evaluation in connection with her schedule award
claim. In a June 13, 2002 report, Dr. Sklar concluded that appellant had one percent impairment
of both the right and left upper extremities due to pain and found that appellant reached
maximum medical improvement on December 1, 2001. On August 7, 2002 the Office awarded
appellant a schedule award for one percent impairment of the right arm and one percent
impairment of the left arm. On August 7, 2002 appellant filed a recurrence of disability claim
asserting that she experienced neck pain after a training class on July 15, 2002. She stopped
work on July 17, 2002 and returned on July 31, 2002. The Office paid appropriate
compensation.
On January 6, 2003 appellant filed a recurrence of disability claim alleging disability
commencing November 20, 2002 after straining her neck for three weeks. She provided
treatment notes and factual evidence. On November 4, 2002 Dr. Mitchell diagnosed cervical
spine and left shoulder spasm but recommended that appellant continue working in her modified
assignment. In a December 23, 2002 report, he stated that appellant still experienced persistent
neck and back pain and diagnosed cervical strain and cervical disc disease. After the Office
requested additional information, appellant supplied treatment notes and progress reports. On
March 16, 2003 Dr. Mitchell reported that appellant had a recurrence of disability since “around
July 31, 2002,” which ultimately rendered her unable to work after November 20, 2002. In a
July 31, 2002 report, he noted that appellant had tightness and numbness in the shoulder and
neck regions as well as neck stiffness which she characterized as work related. Dr. Mitchell
noted: “[Appellant] has had similar problems before and was doing well until this problem
started again.”
By decision dated April 2, 2003, the Office denied appellant’s recurrence of disability
claim, finding that she did not establish that her disability was causally related to her July 6,
1999 employment injury.
On May 28, 2003 appellant requested reconsideration. She submitted a May 14, 2003
report from Dr. Mitchell, who stated that, after he released appellant to return to work on
November 4, 2002, she did apparently work until November 20, 2002, the date of her claimed
recurrence of disability.
By decision dated July 22, 2003, the Office accepted appellant’s recurrence of disability
claim for medical treatment only and denied modification of its April 2, 2003 decision with

2

regard to wage-loss compensation beginning November 21, 2002.
reconsideration on April 13, 2004.

Appellant requested

By decision dated July 13, 2004, the Office denied modification of its July 22, 2003
decision.
In a September 13, 2004 report, Dr. Mitchell stated that appellant complained of
worsening neck and shoulder pain. He diagnosed chronic left shoulder and cervical strain. On
January 10, 2005 Dr. Mitchell noted that appellant “continues to have intermittent neck and
shoulder pain related to her work-related injuries.” In an April 11, 2005 report, he reported that
appellant’s condition was unchanged. On July 11, 2005 Dr. Mitchell reported that appellant
“states that the problems are getting worse particularly in the shoulders and her hands as well.”
On August 2, 2005 appellant requested reconsideration. By decision dated September 9,
2005, the Office denied appellant’s request for reconsideration on the grounds that it was
untimely and did not present clear evidence of error.
Appellant subsequently submitted a September 6, 2005 report from Dr. Mitchell noting
that her condition remained unchanged. On November 16, 2005 Dr. Mitchell explained that
appellant “complains of neck pain, shoulder pain, and back pain as well. Appellant also
complains of numbness of both hands as well. Essentially her condition has not changed except
that she states the pain in her neck and shoulders has gotten progressively worse.” On
February 22, 2006 Dr. Mitchell reported that appellant complained that her condition was
worsening and becoming more painful. On May 22, 2006 he again noted that appellant’s
condition was unchanged, characterizing it as “chronic.” Appellant also provided a June 20,
2006 electrodiagnostic testing report from Dr. Michael Ellman, a Board-certified physiatrist, who
noted appellant’s complaints of bilateral hand pain and numbness and recorded an impression of
mild right carpal tunnel syndrome with “no evidence of cervical radiculopathy, plexopathy or
peripheral neuropathy.”
On September 8, 2006 appellant requested reconsideration of the Office’s July 13, 2004
decision.
By decision dated October 2, 2006, the Office denied appellant’s reconsideration request
on the grounds that it was untimely and did not present clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act1 does not entitle a claimant
to a review of an Office decision as a matter of right.2 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.3 The Office, through its regulations, has imposed limitations on the exercise of
1

5 U.S.C. § 8128(a).

2

Thankamma Mathews, 44 ECAB 765, 768 (1993).

3

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

3

its discretionary authority. One such limitation is that the Office will not review a decision
denying or terminating a benefit unless the application for reconsideration is filed within one
year of the date of that decision.4 The Board has found that the imposition of this one year time
limitation does not constitute an abuse of the discretionary authority granted the Office under
5 U.S.C. § 8128(a).5
The Office’s regulations provide:
“[The Office] will consider an untimely application for reconsideration only if the
application demonstrates clear evidence of error on the part of [the Office] in its
most recent merit decision. The application must establish, on its face, that such
decision was erroneous.”6
In those cases where requests for reconsideration are not timely filed, the Office must
undertake a limited review of the application for reconsideration to determine whether there is
clear evidence of error pursuant to the untimely request in accordance with section 10.607(b) of
its regulations.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.8 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 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.12 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

4

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
5

20 C.F.R. § 10.607(b); Thankamma Mathews, supra note 2 at 769; Jesus D. Sanchez, supra note 3 at 967.

6

20 C.F.R. § 10.607(b).

7

Thankamma Mathews, supra note 2 at 770.

8

Id.

9

Leona N. Travis, 43 ECAB 227, 241 (1991).

10

Jesus D. Sanchez, supra note 3 at 968.

11

Leona N. Travis, supra note 9.

12

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

4

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.13
ANALYSIS
The Board finds that the Office properly denied appellant’s request for reconsideration as
untimely. The Act’s implementing regulations provide that a request for reconsideration must be
filed within one year from the date of the Office decision for which review is sought.14 The most
recent merit decision was the Office’s July 13, 2004 decision that denied modification of
previous decisions denying her recurrence of disability claim. As appellant’s September 8, 2006
reconsideration request was made more than one year following the Office’s July 13, 2004 merit
decision, the Board finds that appellant’s request was untimely filed. Consequently, to have her
claim reopened, appellant must show clear evidence of error made by the Office in its July 13,
2004 decision. The Board finds that in the present case appellant has failed to present evidence
establishing that the Office’s decision was erroneous on its face or raising a substantial question
as to the correctness of the Office’s decision.
With her request for reconsideration, appellant submitted several new medical reports
from Dr. Mitchell and a diagnostic testing report from Dr. Ellman. Dr. Mitchell’s reports, dated
September 6 and November 16, 2005 and February 22 and May 22, 2006, did not present new
rationale or explanations of sufficient probative weight to raise a substantial question as to the
correctness of the Office’s decision. Dr. Mitchell merely maintained, as in previous reports, that
appellant’s condition was unchanged and chronic. His reports did not demonstrate clear error on
the part of the Office. Dr. Ellman’s report was diagnostic in nature and did not address causal
relationship between appellant’s continuing condition and her initial employment injury. His
report does not add sufficient probative value to raise a substantial question as to the correctness
of the Office’s decision. The evidence submitted is insufficient to shift the weight of the medical
evidence in appellant’s favor, or otherwise raise a substantial question as to the correctness of the
Office’s decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration as
it was untimely filed and did not present clear evidence of error.

13

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

14

20 C.F.R. § 10.607(a).

5

ORDER
IT IS HEREBY ORDERED THAT the October 2, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 18, 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

6