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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1978
Issued: May 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 24, 2007 appellant, through her attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ hearing representative’s merit decision dated February 23,
2007 finding that she had not established a recurrence of disability causally related to her
accepted employment injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained a recurrence of disability on September 2, 2000 causally related to her August 9, 2000
employment injury.
FACTUAL HISTORY
This case has previously been on appeal before the Board. On August 9, 2000 appellant,
then a 56-year-old letter carrier, bruised her left forearm and sustained a lumbosacral strain when
a large oak tree fell on her mail truck. She returned to work on August 10, 2000. The Office

accepted her claim for lumbar strain and contusion of the left forearm. Appellant filed a
recurrence of disability claim on March 15, 2001 alleging that she stopped work on September 2,
2000 and March 2, 2001 due to her accepted employment injury of August 9, 2000. She stated
that she performed her full duties following the injury with pain and that her comfort level had
decreased. On April 16, 2001 Dr. Howard S. Lubin, an osteopath, diagnosed left hip joint pain,
preexisting, which was aggravated by the trauma of August 9, 2000, lumbar radiculopathy
aggravated by the employment injury, bilateral sacroiliac strain, cervical strain and myositis and
myofascitis of the lumbar and thoracic paraspinal muscles. The Office referred appellant for a
second opinion examination. On November 28, 2001 Dr. Richard J. Mandel, a Board-certified
orthopedic surgeon, opined that the August 9, 2000 incident resulted only in a mild lumbar strain
and abrasion of the left forearm from which appellant had recovered. He found that appellant
had no work restrictions due to the August 2000 employment injury and exhibited no residuals.
By decisions dated December 5, 2001 and October 24, 2002, the Office denied appellant’s claim
for recurrence of disability beginning September 2, 2000 finding that Dr. Mandel’s report was
entitled to the weight of the medical evidence. On June 12, 2003 the Board found that there was
an unresolved conflict of medical opinion evidence between Dr. Lubin and Dr. Mandel which
required referral to an impartial medical specialist.1
On October 27, 2003 the Office referred appellant for an impartial medical examination
with Dr. Richard G. Schmidt, a Board-certified orthopedic surgeon. In a report dated
November 23, 2003, Dr. Schmidt noted appellant’s history of injury and medical treatment. He
performed a physical examination and found that appellant had normal alignment of the spine,
with no spasm. Dr. Schmidt also found that appellant’s diagnostic studies demonstrated facetal
arthritis, but no disc herniation. He stated that appellant exhibited no objective evidence of
residuals of the August 9, 2000 employment injury. Dr. Schmidt stated: “I would note that it is
not uncommon for patients with significant osteoarthritis of the hip to have lower back pain
referred to the lower back region.” He found that appellant’s low back was normal on
examination with no evidence of radiculopathy or sciatica. Dr. Schmidt noted that appellant
required restrictions due to her preexisting left hip condition, but stated that this condition was
not aggravated by the August 9, 2000 employment injury. He concluded that appellant had fully
recovered from her employment injury.
By decision dated January 6, 2004, the Office denied appellant’s claim for recurrence of
disability on September 2, 2000 due to her August 9, 2000 employment injury. Appellant,
through her attorney, requested an oral hearing on January 8, 2004. By decision dated May 11,
2004, the hearing representative vacated the June 6, 2004 decision and remanded the case to the
Office in order that Dr. Schmidt could review the statement of accepted facts and determine
whether appellant’s medical conditions and disability after September 2, 2000 were due to the
August 9, 2000 employment injury.
Dr. David N. Bosacco, a Board-certified orthopedic surgeon, completed a report on
March 26, 2004 and reviewed appellant’s history of injury as well as diagnostic studies. He
opined that appellant sustained a lumbar sprain and strain with internal disc disruption at L4-5
and aggravation of radiculopathy at L4-5 as well as aggravation of degenerative arthritis of the
1

Docket No. 03-633 (issued June 12, 2003).

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left hip. Dr. Bosacco stated that appellant’s left hip arthritis worsened following the August 9,
2000 employment injury “both symptomatically and radiologically.” On April 6, 2004 he opined
that appellant’s employment incident was consistent with her ongoing conditions. In a note
dated June 4, 2004, Dr. Bosacco stated that appellant stopped work on September 2, 2000 due to
symptoms from her August 9, 2000 employment injury.
In a supplemental report dated August 12, 2004, Dr. Schmidt reviewed the statement of
accepted facts as well as the medical reports of record. He stated: “I believe that [appellant]
recovered from her diagnosis of lumbar sprain and left forearm contusion. [Appellant] does have
preexisting degenerative joint disease and lumbar disc disease, but I do not see any aggravation
of this condition or worsening of this condition as a result of the episode of August 9, 2000 or
when she came out of work on August 11, 2000.
The Office requested an additional explanation from Dr. Schmidt on September 20, 2004
for his stated conclusion. Dr. Schmidt responded on November 28, 2004 and noted that his
physical examination of appellant on November 24, 2004 showed no evidence of radiculopathy
or sciatica. He further noted that appellant did not offer any radicular complaints at that time.
Dr. Schmidt stated that appellant’s September 8, 2000 electromyelogram (EMG) showed only
mild chronic L4-5 radiculopathy, but no acute radiculopathy. He opined: “A chronic situation
obviously would be something in place for a long period of time which would clearly transcend a
date of August 9, 2000. The EMG study of August 8, 2000 did not show any acute changes and,
therefore, it is clear that appellant did not experience any acute radiculopathy or any aggravation
of a chronic radiculopathy.” Dr. Schmidt also based his opinion on the lack of disc space
narrowing and malalignment shown on appellant’s November 2, 2000 x-rays, the lack of acute
changes on the October 17, 2002 x-rays and the lack of acute changes on the February 12, 2002
computerized axial tomography. He concluded that appellant fully recovered from the August 8,
2000 employment injury.
By decision dated December 23, 2004, the Office denied appellant’s claim for recurrence
on September 2, 2000. Appellant requested an oral hearing on December 28, 2004. In a
decision dated September 1, 2005, the hearing representative set aside the Office’s December 23,
2004 decision and remanded the case for the Office to request an additional supplemental report
from Dr. Schmidt addressing whether the August 9, 2000 employment injury aggravated her
preexisting left hip condition.
In a letter dated January 31, 2006, the Office requested that Dr. Schmidt address whether
the August 9, 2000 employment injury aggravated appellant’s preexisting left hip condition or
degenerative joint disease.
On January 30, 2006 Dr. Bosacco opined that, as a result of her August 9, 2000
employment injury, appellant sustained contusion and lumbar sprain with exacerbation of lumbar
radiculopathy and internal disc disruption syndrome at L4-5. He also diagnosed sprain left knee
with meniscal tear. Dr. Bosacco reviewed appellant’s February 12, 2002 discogram and found
internal disc disruption syndrome at L4-5. He noted that appellant previously sustained a left hip
fracture in 1985, which resulted in degenerative arthritis. Dr. Bosacco found that a March 12,
2004 magnetic resonance imaging scan showed a tear of the posterior horn of the medial
meniscus as well as tricompartmental osteoarthritis.

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Dr. Schmidt responded to the Office’s requests for information on March 12, 2006. He
stated that the August 9, 2000 employment injury did not aggravate appellant’s preexisting
degenerative joint condition. Dr. Schmidt noted that on August 15, 2000 appellant did not report
a hip condition, that contemporaneous x-rays showed old chronic changes and no evidence of
post-traumatic arthritis. He stated that there was no indication of any fracture or acute structural
alteration of the left hip as a result of the August 9, 2000 employment injury and that in his
opinion appellant’s work injury did not result in any aggravation of her preexisting degenerative
joint disease.
In a report dated May 26, 2006, Dr. Bosacco opined that appellant sustained a sprain and
aggravation of degenerative arthritis of the left hip due to her August 9, 2000 employment injury.
By decision dated July 24, 2006, the Office denied appellant’s claim for a recurrence of
disability on or after September 2, 2000 finding that Dr. Schmidt’s reports were entitled to the
weight of the medical opinion evidence. Appellant, through her attorney, requested an oral
hearing on July 27, 2006.
Appellant testified at the oral hearing on December 12, 2006. By decision dated
February 23, 2007, the hearing representative found that Dr. Schmidt’s reports were entitled to
the weight of the medical opinion evidence and established that appellant had not sustained a
recurrence of disability on or after September 2, 2000 due to her accepted employment injury of
August 8, 2000.
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 which
caused the illness. The term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.2 Where an employee claims a recurrence of disability due to an accepted
employment-related injury, he or she has the burden of establishing by the weight of reliable,
probative and substantial evidence that the recurrence of disability is causally related to the
original injury. The burden includes the necessity of furnishing evidence from a qualified
physician who, on the basis of a complete and accurate factual and medical history, concluded
that the condition is causally related to the employment injury. Moreover, sound medical
reasoning must support the physician’s conclusion.3
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury. In this regard, medical evidence
2

20 C.F.R. § 10.5(x).

3

Ricky S. Storms, 52 ECAB 349 351-52 (2001).

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of bridging symptoms between the recurrence of the accepted injury must support the
physician’s conclusion of a causal relationship. 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.4
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on proper factual and medical background must be given special weight.5
ANALYSIS
The Office referred appellant to Dr. Schmidt, a Board-certified orthopedic surgeon, to
resolve a conflict of medical opinion evidence regarding whether appellant had continuing
medical residuals and disability on or after September 2, 2000 due to her accepted employment
injuries of lumbar strain and contusion of the left forearm. He submitted a report dated
November 23, 2003, which found facetal arthritis with no disc herniation and no residuals of the
August 9, 2000 employment injury. Dr. Schmidt replied to a request for a supplemental report
on November 28, 2004 and stated that appellant did not demonstrate radiculopathy or sciatica
during his November 23, 2003 examination. He reviewed appellant’s September 8, 2000 EMG
and stated that her chronic radiculopathy predated her August 9, 2000 employment injury.
Dr. Schmidt found that, as the EMG did not demonstrate acute changes, appellant did not
experience an aggravation of her chronic radiculopathy on August 9, 2000. He also found that
the remainder of appellant’s diagnostic testing failed to demonstrate acute changes following her
accepted employment injury. Dr. Schmidt opined on March 12, 2006 that the accepted
employment injuries did not aggravate appellant’s preexisting degenerative joint condition. He
noted that appellant did not report a hip injury on August 15, 2000, that there was no indication
of fracture or other structural alteration of appellant’s left hip immediately following the
August 9, 2000 employment injury.
Dr. Schmidt was designated the impartial medical examiner to resolve a conflict of
medical opinion evidence between appellant’s physician, Dr. Lubin, an osteopath, and the Office
second opinion physician, Dr. Mandel, a Board-certified orthopedic surgeon, regarding
appellant’s continuing disability and medical residuals due to her accepted employment injury.
Dr. Schmidt based his reports on a proper history of injury, including the statement of accepted
facts, reviewed the medical evidence and concluded that appellant had no ongoing medical
condition or disability due to her August 9, 2000 employment injury. He noted that his physical
examination and review of diagnostic testing did not support that appellant had sustained an
aggravation of her preexisting degenerative joint disease in the left hip and that appellant had no
radicular symptoms when he examined her. Dr. Schmidt provided additional medical reasoning
supporting his conclusions, noting that the diagnostic testing immediately following appellant’s
employment injury did not demonstrate acute changes resulting from the employment injury, but
instead demonstrated only chronic radiculopathy which predated the August 9, 2000 employment
4

Id.

5

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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injury. For these reasons, the Board finds that Dr. Schmidt’s reports are sufficient to resolve the
existing conflict of medical opinion evidence between Dr. Lubin and Dr. Mandel thereby
constituting the special weight of the medical evidence.
Appellant submitted medical reports from Dr. Bosacco, a Board-certified orthopedic
surgeon, who initially diagnosed lumbar strain and sprain with internal disc disruption at L4-5
and aggravation of radiculopathy at L4-5 as well as sprain and aggravation of degenerative
arthritis of the left hip due to the August 9, 2000 employment injury. Dr. Bosacco attributed
appellant’s recurrence of disability on September 2, 2000 to her employment injury. On
January 30, 2006 he attributed exacerbation of lumbar radiculopathy and internal disc disruption
syndrome at L4-5 to the August 9, 2000 employment injury. Dr. Bosacco also diagnosed left
knee sprain with a meniscal tear. He noted that appellant’s degenerative arthritis of the left hip
was preexisting due to a 1985 injury. Dr. Bosacco reviewed diagnostic studies in reaching his
conclusions. While he opined that appellant’s currently conditions and disability were due to her
accepted employment injury, he did not provide any medical reasoning in support of his
opinions. Dr. Bosacco did not provide a clear history of injury, a definite medical history,
detailed findings on physical examination or a clear analysis of the diagnostic studies regarding
traumatic versus chronic conditions. He offered two different opinions regarding appellant’s left
hip condition and failed to clearly explain whether or not he believed appellant’s left hip
condition was aggravated by her employment injury. As his report lack the necessary factual
background, medical findings and detailed reasoning supporting a causal relationship between
appellant’s current conditions and disability and her accepted employment injury, his reports are
not sufficient to either create a new conflict or overcome the weight of Dr. Schmidt’s well
reasoned reports. For these reasons, the Board finds that appellant has not met her burden of
proof in establishing a recurrence of disability.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing a
recurrence of disability on September 2, 2000 causally related to her August 9, 2000 employment
injury.

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ORDER
IT IS HEREBY ORDERED THAT the February 23, 2007 decision of the Office of
Workers’ Compensation Programs’ is affirmed.
Issued: May 19, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Brownsville, TX, Employer
__________________________________________

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

Docket No. 17-1323
Issued: January 2, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 31, 2017 appellant filed a timely appeal from an April 10, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated January 14, 2016, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s January 10, 2017 request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument, pursuant to 20 C.F.R. § 201.5(b). After exercising its
discretion the Board, by a November 1, 2017 order, denied her request noting that her arguments on appeal could be
adequately addressed in a Board decision based on a review of the case record. Order Denying Request for Oral
Argument, Docket No. 17-1323 (issued November 1, 2017).

FACTUAL HISTORY
OWCP accepted that on or before March 21, 2011 appellant, then a 47-year-old customs
and border protection officer, sustained bilateral tibialis tendinitis. Dr. Thomas E. Brooks, III, an
attending podiatrist, diagnosed posterior tibial tendon dysfunction on October 8, 2011. He
provided work restrictions.
Dr. Raul O. Maldonado, an attending podiatrist, provided October 10, 2011 and May 21,
2012 reports in which he attributed bilateral posterior tibial tendinitis to prolonged standing and
walking while at work after appellant had sustained an occupational right ankle sprain in
June 2011.
On May 18, 2012 appellant voluntarily accepted a downgrade position she had requested
as a reasonable accommodation for the accepted bilateral lower extremity conditions.
On October 25, 2013 appellant filed a claim for wage-loss compensation benefits (Form
CA-7) for the period June 11 to October 21, 2011.
In July 9, 2014 reports, Dr. Maldonado restricted appellant to full-time sedentary duty
due to a ruptured right ankle tendon, bilateral tibialis tendinitis, and tenosynovitis. He opined
that her condition had become chronic and that she would require bilateral ankle braces on a
permanent basis.3
On October 30, 2014 appellant filed a claim for wage-loss compensation benefits (Form
CA-7) for the period June 5, 2012 to November 12, 2013 related to the voluntary downgrade she
had accepted on May 18, 2012.
By decision dated December 11, 2014, OWCP denied appellant’s claims for wage-loss
compensation commencing June 12, 2012, finding that she requested and accepted a new
position at a lower salary as part of a reasonable accommodation of the accepted bilateral lower
extremity conditions.
In an undated letter, received by OWCP on December 16, 2015, appellant requested that
OWCP “reinstate” her claim for wage-loss compensation benefits. She enclosed a June 25, 2012
claim for wage-loss compensation (Form CA-7) for the period June 3, 2012 and continuing.
Appellant then continued to submit additional claims for wage-loss compensation.
In a December 6, 2016 letter, OWCP notified appellant that it could not process her claim
for wage-loss compensation commencing June 3, 2012 as it had previously denied the claim by
its December 11, 2014 decision. It enclosed a copy of its December 11, 2014 decision and
suggested that appellant refer to the appeal rights attached. OWCP further found that there was

3

On September 25, 2014 appellant filed a claim for a schedule award (Form CA-7). Following additional
development, by decision dated May 29, 2015 and reissued January 14, 2016, OWCP granted her a schedule award
for one percent permanent impairment of the left lower extremity and one percent permanent impairment of the right
lower extremity. The period of the award, equivalent to 5.76 weeks, ran from March 26 to May 5, 2015.

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no evidence that the employing establishment had “downgraded [her] due to the accepted
work[-]related injury on March 21, 2011.”
On January 10, 2017 appellant requested reconsideration of OWCP’s December 11, 2014
decision which denied her claim for wage-loss compensation commencing June 12, 2012. In
support of her request, she submitted a December 27, 2016 letter, contending that she was
entitled to wage-loss compensation benefits commencing June 3, 2012 as she requested a
downgrade to a less arduous job to accommodate her accepted leg conditions, and she was then
terminated due to her inability to perform the essential functions of her date-of-injury position.
Appellant also provided an April 16, 2015 earnings and leave statement, a July 10, 2015 letter of
removal from the employing establishment, an August 21, 2015 status inquiry letter, April 8,
2016 claims for wage-loss compensation benefits (Form CA-7) for the period June 3, 2012
through April 16, 2016, and a May 20, 2016 employing establishment letter noting that she had
been disabled from her date-of-injury position due to bilateral tibialis tendinitis.
In an April 10, 2017 decision, OWCP denied appellant’s January 10, 2017 request for
reconsideration, finding that her request did not meet any of the requirements for further merit
review pursuant to 5 U.S.C. § 8128(a). It determined that the evidence submitted in support of
her January 10, 2017 request for reconsideration did not raise a substantive legal question nor
include relevant and pertinent new evidence or argument. OWCP further determined that the
submitted evidence was cumulative and “thus substantially similar to evidence or documentation
that is already contained in the case file and was previously considered.”
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation. The Secretary of Labor may review an
award for or against payment of compensation at any time on his own motion or on application.4
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that
an application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5
OWCP procedures require a review of the file to determine whether the application for
reconsideration was received within one year of a merit decision. The one-year period begins on
the date of the original decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues. This includes any hearing or review
of the written record decision, any denial of modification following a reconsideration, any merit
decision by the Board, and any merit decision following action by the Board, but does not
include prerecoupment hearing decisions.6 Timeliness is determined by the document receipt
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4.b (February 2016).

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date of the reconsideration request (the received date in the Integrated Federal Employees’
Compensation System (iFECS)). If the request for reconsideration has a document received date
greater than one year, the request must be considered untimely.7
OWCP will consider an untimely application only if the application demonstrates clear
evidence of error in its most recent merit decision. The application must establish, on its face,
that such decision was erroneous.8
The term clear evidence of error is intended to represent a difficult standard. If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.9
ANALYSIS
The most recent decision reviewing the merits of appellant’s case was OWCP’s
December 11, 2014 decision. As the appeal rights attached to that decision explained, she had
one calendar year from the date of that decision, or until December 11, 2015, to ensure receipt by
OWCP of any reconsideration request.
OWCP received appellant’s reconsideration request on January 10, 2017. As the
received date was more than one year after the December 11, 2014 decision, appellant’s request
must be considered untimely. The proper standard of review for an untimely reconsideration
request is the clear evidence of error standard.
In denying appellant’s reconsideration request, however, OWCP did not determine
whether her reconsideration request was untimely filed and did not review the request under the
clear evidence of error standard. Rather, it applied the standard of review for timely requests for
reconsideration. As OWCP applied the wrong standard of review to the untimely request for
reconsideration, the Board will set aside OWCP’s April 10, 2017 decision and remand the case
for proper review under the clear evidence of error standard.10
CONCLUSION
The Board finds that the case is not in posture for decision.

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Id.

8

20 C.F.R. § 10.607.

9

Supra note 6 at Chapter 2.1602.5.a (October 2011).

10

See 20 C.F.R. § 10.607(b). W.L., Docket No. 15-1842 (issued January 14, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 10, 2017 is set aside and the case is remanded for further
action consistent with this decision.
Issued: January 2, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF THE ARMY, DEFENSE
LANGUAGE INSTITUTE FOREIGN
LANGUAGE CENTER,
Presidio of Monterey, CA, Employer
__________________________________________

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Appearances:
Max Gest, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0923
Issued: August 15, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 22, 2017 appellant, through counsel, filed a timely appeal from a February 14,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

By order dated September 5, 2017, the Board dismissed the appeal because appellant had not signed the
application for review (AB-1) and there was no evidence that he had authorized counsel’s representation. Order
Dismissing Appeal, Docket No. 17-0923 (issued September 5, 2017). Counsel subsequently petitioned the Board for
reconsideration and submitted a September 21, 2017 document signed by appellant authorizing his representation
before the Board. On May 1, 2018 the Board issued an order vacating its September 5, 2017 order and reinstating the
appeal. Order Vacating Prior Board Order and Reinstating Appeal, Docket No. 17-0923 (issued May 1, 2018).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his diagnosed
lumbar conditions were causally related to the accepted July 28, 2016 employment incident.
FACTUAL HISTORY
On August 4, 2016 appellant, then a 73-year-old assistant professor, filed a traumatic injury
claim (Form CA-1) alleging that, while exiting the auditorium at the conclusion of a work meeting
on July 28, 2016, he tripped and fell over a chair that was in the aisle. He explained that his right
foot got stuck causing him to fall on the chair, and as he fell to the ground, he twisted and landed
on his left side. Appellant also explained that two months prior to the fall he had undergone back
surgery, which included lumbar fusion and decompression. The evening after the July 28, 2016
fall, appellant’s previous pain returned with intensity. He stopped work on July 29, 2016.
Appellant indicated that he had been referred back to his previous surgeon, who planned to do
surgery.
A July 29, 2016 clinical summary indicated that appellant was treated for low back pain.
He received medication for pain and inflammation, a muscle relaxant, and was referred for lumbar
x-rays. The July 29, 2016 clinical summary also indicated that appellant was referred to a back
surgeon. It was noted that he had previously undergone lumbar fusion in May 2016 and was status
post “fall and new back pain.”
On August 1, 2016 Dr. Pejman E. Shirazy, a Board-certified physiatrist, advised that
appellant was on medical leave from August 1 through September 1, 2016.
In an August 19, 2016 claim development letter, OWCP advised appellant that the evidence
received to date was insufficient to support his claim. It specifically noted that the July 29 and
August 1, 2016 medical documents did not “diagnose a medical condition.” OWCP afforded
appellant 30 days to submit a narrative medical report from a physician that included, inter alia, a
medical diagnosis and an explanation as to how the reported work incident either caused or
aggravated the claimed injury.
By decision dated September 23, 2016, OWCP accepted that the July 28, 2016
employment incident occurred as alleged, but denied the claim because appellant failed to establish
the medical component of fact of injury. It explained that appellant had not submitted any evidence
containing a medical diagnosis in connection with the employment incident. Appellant did not
respond to OWCP’s August 19, 2016 claim development letter within the time he had been
afforded.

3

5 U.S.C. § 8101 et seq.

2

On January 10, 2017 counsel requested reconsideration. He submitted several witness
statements regarding the accepted July 28, 2016 employment incident, as well as additional
medical evidence.
On July 29, 2016 Dr. Neeraj Satyanarayana, an internist, examined appellant for
complaints of low back pain. Appellant reported an acute fall the day before, noting that he tripped
over a chair and fell to the ground landing on his left side with his back twisted. He experienced
back pain and decreased range of motion similar to that experienced prior to his lumbar fusion in
May 2016. Dr. Satyanarayana noted findings of slowed gait, limited range of motion of the back,
and tenderness over the lumbar spine. He diagnosed low back pain. Dr. Satyanarayana performed
lumbar injections and referred appellant to a lumbar surgeon.
On October 3, 2016 Dr. Greg S. Khounganian, a Board-certified orthopedic surgeon,
examined appellant for complaints of back pain. He previously treated appellant in May 2016.
Dr. Khounganian noted that appellant returned on that date for follow-up after a July 28, 2016
injury at work when he fell over a chair. Since the injury, appellant reported continued low back
pain with radiating symptoms down the lower extremity. Dr. Khounganian reported that appellant
was currently using a cane and wearing a back brace due to his pain. He reviewed a May 19, 2016
lumbar x-ray, which demonstrated well-placed instrumentation at L4-5. Dr. Khounganian also
reviewed an October 3, 2016 lumbar x-ray, which revealed the implants at L4-5 were in good
placement, with no evidence of hardware failure or evidence of hardware loosening. He also noted
that there was no evidence of fractures on appellant’s latest lumbar x-rays. Dr. Khounganian
diagnosed lumbosacral spondylosis without myelopathy/radiculopathy, lumbosacral intervertebral
disc displacement, lumbar intervertebral disc degeneration, and sciatica. He referred appellant for
additional diagnostic studies. Dr. Khounganian explained that given appellant’s prior lumbar
surgery he needed to be extra cautious regarding reherniations or injury to the actual implants at
L4-5.
An October 4, 2016 lumbar magnetic resonance imaging (MRI) scan revealed mild
retrolisthesis of L1 with left disc extrusion and disc bulging, mild retrolisthesis of L2 with disc
bulging, mild retrolisthesis of L3 with disc bulging and mild posterior osteophytic spurring, and
L4-5 status post anterior and posterior surgical fusion. An October 5, 2016 lumbar computerized
tomography (CT) scan revealed status post anterior and posterior surgical fusion at L4-5 without
any bony bridging and status post resection of the left L1 laminectomy.
In an October 10, 2016 follow-up report, Dr. Khounganian reviewed the recent lumbar CT
and MRI scans. He explained that appellant was status post L1-2 discectomy on the left side, as
well as L4-5 posterior lumbar instrumented fusion, and prior to a July 28, 2016 fall at work,
appellant had been doing very well postoperatively. Based on the recent diagnostic studies,
everything appeared to be well placed with no failure of instrumentation. Dr. Khounganian also
noted that there appeared to be a left-sided disc bulge at L1-2. He noted that it was smaller than
prior to surgery, but may represent a reherniation from his recent injury. Dr. Khounganian further
noted that appellant’s symptoms of left posterior thigh pain and sciatica may be secondary to his
recent injury causing reexacerbation and inflammation of nerve roots radiating down the left leg.
He explained that the pattern of symptoms may be referred from L4-5 and L5-S1 on the left side.
Dr. Khounganian further explained that postoperative scar tissue may inflame from an injury like
appellant had on July 28, 2016, which can cause an exacerbation of his current symptoms. He also
noted that currently appellant did not have significant symptoms related to the L1-2 reherniation
3

on the left side. However, it may cause recurrent symptoms in the future. Dr. Khounganian
recommended that appellant return to his pain management specialist for selective nerve root
blocks at L4-5 and L5-S1 levels.
Dr. Shirazy also examined appellant on October 10, 2016 for complaints of severe pain in
his lumbar spine and left leg. Appellant reported difficulty with standing and walking, numbness,
tingling, and paresthesia in his left lower extremity. Dr. Shirazy noted appellant’s history was
significant for anterior and posterior fusion at L4-5 in May 2016. Postoperatively appellant was
doing quite well without using pain medication and with significant functional improvement.
Dr. Shirazy noted that since the industrial fall of July 28, 2016, appellant experienced increased
pain in his lumbar spine and left lower extremity and was using a cane for mobility. He noted that
an October 4, 2016 MRI scan of the lumbar spine revealed an L1-2 disc extrusion, which appeared
to correlate with appellant’s symptoms of pain and radiation to the left lower extremity.
Dr. Shirazy opined that this injury appeared to be new in nature and correlated to the industrial
injury sustained on July 28, 2016. He noted findings of tenderness to palpation of the lumbar
spine, paravertebral region, gluteus region, and piriformis regions. Dr. Shirazy diagnosed disc
herniation without myelopathy, lumbago, lumbar lordosis, lumbar enthesopathy, lumbar ligament
laxity, lumbar myalgia, lumbar myospasm, lumbar neuritis/radiculitis, lumbar nerve root injury,
sciatic neuritis, sensation disturbance of the limb, lumbar sprain/strain, and lower extremity
weakness. He recommended lumbar epidural injections and opined that appellant would
eventually require surgical fusion at L1-2.
In a December 6, 2016 report, Dr. Jacob E. Tauber, a Board-certified orthopedic surgeon,
noted that on July 28, 2016 appellant was walking in a crowded aisle when his right foot got caught
in a chair causing him to jerk his body and fall to the ground landing on his left side. He
experienced pain in his left hand and lower back radiating into his left leg. Appellant underwent
physical therapy and two lumbar injections, which provided temporary relief and he remained off
work. His history was significant for surgery to his lower back in May 2016. Dr. Tauber noted
findings of pain on lumbar motion, positive straight raise leg testing on the left, decreased sensation
to pinprick in the left lower extremity, depressed Achilles reflex, weakness, and atrophy. He noted
that appellant underwent an L4-5 decompression and fusion and an L1-2 decompression with
discectomy. Dr. Tauber diagnosed history of L4-5 fusion and L1-2 decompression with
subsequent work injury resulting in reherniation at L1-2, aggravation of stenosis at L3-4, and
aggravation of postoperative L4-5 fusion. He noted that appellant was progressing well
postoperatively and had returned to work and was carrying out his duties until he had the fall at
work. Dr. Tauber opined that appellant appeared to have a reherniation at L1-2 and an aggravation
of stenosis at levels proximal to the fusion. He noted that appellant had significant objective
findings of pathology and was unable to work.
By decision dated February 14, 2017, OWCP found that appellant had established that on
July 28, 2016 he “tripped and fell” while in the performance of duty. It also noted that, since the
prior denial, “a myriad of medical conditions” had been diagnosed. Thus, appellant established
both components of fact of injury. However, OWCP found that the case remained denied because
causal relationship had not been established. Accordingly, it modified its prior decision to reflect
that appellant established fact of injury, but the claim remained denied because the medical
evidence of record was insufficient to establish causal relationship.

4

LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a personal
injury.7 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.8
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.9 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.10 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
OWCP accepted that on July 28, 2016 appellant “tripped and fell” while in the performance
of duty. It also noted that “a myriad of medical conditions” had been diagnosed, thus satisfying
4

See supra note 2.

5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

John J. Carlone, 41 ECAB 354 (1989).

8

Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

Robert G. Morris, 48 ECAB 238 (1996).

10

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

Id.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

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both components of fact of injury. However, OWCP denied appellant’s traumatic injury claim
because the medical evidence was insufficient to establish that his diagnosed lumbar conditions
were causally related to the accepted July 28, 2016 employment incident. On appeal counsel
argued that appellant fully recovered from his May 2016 lumbar surgery, and that the reports of
Dr. Shirazy and Dr. Tauber establish that the July 28, 2016 employment incident caused a new
disc herniation (L1-2) and also aggravated appellant’s lumbar stenosis (L3-4). The Board finds
that appellant did not meet his burden of proof to establish causal relationship.
Appellant’s October 2016 lumbar MRI and CT scans are of limited probative value as they
fail to provide an opinion on the causal relationship between appellant’s work incident and his
diagnosed low back conditions.13 As such, this evidence is insufficient to meet his burden of proof.
Appellant was treated by Dr. Khounganian on October 3 and 10, 2016, for follow-up after
a work injury occurred on July 28, 2016 when he fell over a chair. Dr. Khounganian reported low
back pain with radiating symptoms since the injury. He diagnosed spondylosis without
myelopathy/radiculopathy in the lumbosacral region, disc displacement in the lumbosacral region,
disc degeneration in the lumbar region, and sciatica. Dr. Khounganian indicated that appellant
was doing well status post L1 discectomy and L4-5 lumbar instrumented fusion, but on July 28,
2016 he fell over a chair at work and has experienced significant pain to the lower back radiating
to the lower extremities bilaterally. Although Dr. Khounganian provides some support for causal
relationship, the medical report is of limited probative value because it contains a conclusion
regarding causal relationship which is unsupported by medical rationale.14 He did not explain the
process by which the accepted employment incident would have caused or aggravated a diagnosed
medical condition.
Similarly, on October 10, 2016, Dr. Khounganian noted that the CT and MRI scan
demonstrated an L1-2 left-sided disc bulge which “may” represent a reherniation from appellant’s
recent injury and his symptoms of left posterior thigh pain and sciatica “may be” secondary to his
recent injury causing reexacerbation and inflammation of nerve roots radiating down the left leg.
He indicated that scar tissue postoperatively “may” inflame from an injury like appellant had on
July 28, 2016 that could cause and exacerbation of his current symptoms. Dr. Khounganian
diagnosed spondylosis without myelopathy/radiculopathy in the lumbosacral region, disc
displacement in the lumbosacral region, disc degeneration in the lumbar region, and sciatica. The
Board notes that this report provides some support for causal relationship, but is insufficient to
establish the claimed conditions are causally related to appellant’s employment duties.
Dr. Khounganian’s report, at best, provides speculative support for causal relationship as he noted
that CT and MRI scan findings demonstrated L1-2 left-sided disc bulge which “may” represent a
reherniation from his recent injury and scar tissue postoperatively “may” inflame from an injury
like appellant had on July 28, 2016.15 In addition, Dr. Khounganian provided no medical

13
See A.D., 58 ECAB 149 (2006); Docket No. 06-1183 (issued November 14, 2006) (medical evidence which does
not offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship).
14
See T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
15

See D.D., 57 ECAB 734 (2006) (medical opinions that are speculative or equivocal in character are of diminished

6

reasoning explaining how the particular workplace incident caused or aggravated the diagnosed
conditions.
Appellant submitted an October 10, 2016 report from Dr. Shirazy who treated him for
severe pain in his lumbar spine and left leg. Dr. Shirazy noted appellant’s history was significant
for anterior and posterior fusion at L4-5 in May 2016 and indicated that he was doing well
postoperatively. Dr. Shirazy noted that since the industrial fall of July 28, 2016 appellant
experienced increased pain in his lumbar spine and left lower extremity and was using a cane for
mobility. He noted that an October 4, 2016 MRI scan of the lumbar spine revealed an L1-2 disc
extrusion which correlated with appellant’s symptoms of pain and radiation to the left lower
extremity. Dr. Shirazy diagnosed disc herniation without myelopathy, lumbago, lumbar lordosis,
lumbar enthesopathy, lumbar ligament laxity, lumbar myalgia, lumbar myospasm, lumbar
neuritis/radiculitis, sciatic neuritis, sensation disturbance of the limb, lumbar sprain/strain, and
lower extremity weakness. He opined that this injury appeared to be new in nature and correlated
to the industrial injury sustained on July 28, 2016. The Board finds that, although Dr. Shirazy
supported causal relationship, he did not provide medical rationale explaining the basis of his
conclusory opinion that appellant’s diagnosed lumbar conditions were due to the accepted work
incident of July 28, 2016.16 Dr. Shirazy did not explain the process by which tripping and falling
caused or aggravated the diagnosed conditions and why appellant’s condition was not related to
his recent lumbar fusion and compression surgery performed in May 2016.17 The Board notes that
medical rationale on causal relationship is particularly important as appellant has a preexisting
lumbar condition.18 Therefore, this report is insufficient to meet appellant’s burden of proof.
Appellant submitted a December 6, 2016 report from Dr. Tauber. He reported that on
July 28, 2016 he was walking in a crowded aisle when his right foot got caught in a chair causing
him to jerk his body and fall to the ground landing on his left side. Appellant experienced pain in
his left hand and lower back radiating into his left leg. Dr. Tauber diagnosed history of L4-5 fusion
and L1-2 decompression with subsequent work injury resulting in reherniation at L1-2,
aggravation of stenosis at L3-4, and postoperative L4-5 fusion. He noted that appellant was
progressing well postoperatively until he had a fall at work. Dr. Tauber opined that appellant
appeared to have a reherniation at L1-2 and aggravation of stenosis at levels proximal to the fusion.
The Board finds that, although Dr. Tauber supported causal relationship, he did not provide
medical rationale explaining the basis of his conclusory opinion that appellant’s reherniation at
L1-2 and aggravation of stenosis at levels proximal to the fusion was due to the accepted work
incident of July 28, 2016.19 Dr. Tauber did not explain the process by which tripping and falling
probative value).
16

See supra note 14.

17

Id.

18
J.M., 58 ECAB 478 (2007) (where the Board found that appellant did not meet his burden of proof in establishing
a work-related right wrist condition where his physician provided only conclusory support for causal relationship and
did not identify any of the job duties appellant performed or explain how his work duties caused or contributed to his
condition. Medical rationale was particularly necessary given that appellant injured his wrist while lifting luggage in
private employment. As the opinion of appellant’s physician regarding causal relationship was conclusory and
unexplained, it was insufficient to meet appellant’s burden of proof).
19

See supra note 14.

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would cause or aggravate the diagnosed conditions and why appellant’s condition was not related
to his recent lumbar fusion and compression surgery performed in May 2016.20 The Board notes
that medical rationale on causal relationship is particularly important as appellant has a preexisting
lumbar condition.21 Therefore, this report is insufficient to meet appellant’s burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed lumbar conditions are causally related to the accepted July 28, 2016 employment
incident.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 15, 2018
Washington, DC

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

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

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

20

Id.

21

See J.M., supra note 18.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, LYNCHBURG
REGIONAL AIRPORT, Lynchburg, VA,
Employer
__________________________________________

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

Docket No. 09-432
Issued: September 2, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 1, 2008 appellant, through her representative, filed a timely appeal from a
May 28, 2008 merit decision of the Office of Workers’ Compensation Programs and an
October 17, 2008 decision of an Office hearing representative denying her claim for fact of
injury. Pursuant to 5 U.S.C. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the case.
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty on March 6, 2008, as alleged.

FACTUAL HISTORY
On April 7, 2008 appellant, then a 39-year-old transportation security officer, filed a
traumatic injury claim alleging that on March 6, 2008 she experienced intense pain in her
shoulders and back while lifting bags at a checkpoint. She claimed that she had difficulty
operating the x-ray machine. The employing establishment controverted the claim and stated
that reports indicated that appellant pulled a muscle from coughing due to bronchitis.
Appellant submitted several medical reports dated September 10 through 25, 2007
addressing a left shoulder injury.
By letter dated April 23, 2008, the Office notified appellant of the deficiencies in her
claim and requested that she provide additional information.
In a March 11, 2008 medical report, Dr. Susan D. Hundley, Board-certified in family
medicine, noted appellant’s complaints of right arm pain with numbness and tingling in her right
hand. Physical examination revealed limited range of motion with abduction of 35 to 50 degrees
and pain with internal and external rotation. Pain was also present in the trapezius and
rhomboids up the side of the head. Dr. Hundley opined that compression and rotation of the
cervical spine were suggestive of nerve root compression and that symptoms radiating down into
the right index finger were suggestive of C5-6 radiculopathy. She diagnosed cervical spine
radiculopathy.
A March 19, 2008 magnetic resonance imaging (MRI) scan of appellant’s cervical spine
revealed degenerative disc disease primarily at C5-6 and C6-7 and slight narrowing of the canal
space with slight effacement of the cord at C6-7 secondary to a disc or osteophyte complex.
Lesser degenerative changes were also seen at C5-6. Dr. Kevin O. Hicks, a Board-certified
diagnostic radiologist, noted that clinical indications were a lifting injury, posterior neck pain
and bilateral shoulder pains.
On March 25, 2008 Dr. Hundley reviewed appellant’s MRI scan and diagnosed cervical
spine radiculopathy due to pathology at C5-6 and C6-7. She stated that it was unclear whether
the injury was actually a workers’ compensation injury, although appellant believed that it
should be covered as such.
In an April 17, 2008 report, Dr. Hundley stated that a cervical spine epidural injection
improved appellant’s symptoms. She advised appellant to return for another epidural, physical
therapy and a follow-up evaluation with a neurosurgeon when workers’ compensation was
available. In an April 17, 2008 health care provider certification, Dr. Hundley diagnosed right
cervical spine radiculopathy with pathology at C5-6 and C6-7. She indicated that the condition
commenced on February 11, 2006 with symptoms of parasthesias and numbness and
progressively worsened for approximately 30 months. Dr. Hundley indicated that appellant was
unable to work pending a neurological evaluation.
By decision dated May 28, 2008, the Office denied appellant’s claim on the grounds that
the medical evidence was insufficient to establish that she sustained an injury causally related to
her employment activities on March 6, 2008.

2

On June 23, 2008 appellant requested an oral hearing before an Office hearing
representative. On August 18, 2008 she requested that the oral hearing be changed to a review of
the written record.
In a May 14, 2008 report, Dr. Hundley stated that appellant experienced paresthesias,
diminished sensation in the right hand and diminished abduction with minimal improvement
after two steroid epidurals. She also noted symptoms including lower extremity paresthesias, left
foot numbness, hip pain and bilateral thoracic and lumbar pain suggestive of radicular-type
symptoms.
On June 3, 2008 Dr. Richard A. Bendall, Jr., Board-certified in family medicine, stated
that appellant presented with a workers’ compensation claim related to cervical and lumbar pain.
He noted the history that she was working as a checker at the airport and lifted heavy bags
resulting in an injury to her back and upper neck in February 2006. Appellant sustained a
gradual worsening of right shoulder pain and hand numbness and her current symptoms included
low back pain, right shoulder and neck pain and numbness in both feet and arms. She also
experienced spasms bilaterally in her legs and feet. Dr. Bendall diagnosed lower spine and
cervical osteoarthritis with diagnostic showing early nerve compression in both areas. He opined
that appellant injured her upper and lower back in February 2006 at the employing
establishment. Dr. Bendall stated that it was obvious that lifting heavy boxes and baggage at the
airport could have caused or aggravated her neck injury. He repeated that it was possible that
appellant’s injury occurred while she was working at the employing establishment.
By decision dated October 17, 2008, the Office hearing representative affirmed the
May 28, 2008 decision finding that appellant did not submit sufficient medical evidence to
establish the causal relationship between her back and neck conditions and the March 6, 2008
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,2
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.3 As part of her burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.4 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
4

G.T., supra note 3; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

3

the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.6
ANALYSIS
The issue is whether appellant established that she sustained an injury on March 6, 2008
while lifting bags at a checkpoint. The Board finds she has not met her burden of proof.
Appellant submitted medical reports from Dr. Hundley dated March 11 through
May 14, 2008. In the March 25, 2008 report, she diagnosed cervical spine radiculopathy and
stated that it was unclear whether this condition was actually a workers’ compensation injury.
Dr. Hundley merely noted that appellant believed that her condition should be covered as an
employment injury. On April 17, 2008 she indicated that appellant’s condition commenced on
February 11, 2006 and continued for approximately 30 months. Dr. Hundley did not otherwise
remark on the cause of appellant’s cervical or back injury or whether the condition was work
related.
The Board finds that Dr. Hundley’s reports are insufficient to establish appellant’s claim
of a March 6, 2008 employment injury. She did not provide a rationalized medical opinion
explaining the cause of appellant’s injury or its relationship to the March 6, 2008 employment
event.7 Rather, Dr. Hundley reported that appellant’s injury commenced in February 2006, two
years prior to the March 6, 2008 work incident.8 In this regard she did not address whether
appellant had preexisting degenerative disease or whether the accepted incident at work had
aggravated her conditions. Dr. Hundley questioned whether appellant’s condition was related to
her employment and stated that she was unsure whether the condition should be covered as a
workers’ compensation injury. The fact that appellant believed that her injury should be covered
by workers’ compensation is not sufficient to establish caused relationship.9

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
7

See T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008).

8

See C.B., 60 ECAB ___ (Docket No. 08-1583, issued December 9, 2008).

9

See Robert Broome, 55 ECAB 339 (2004).

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The diagnostic test reports dated March 19 and May 23, 2008 are also insufficient to
establish causation. Although Dr. Hicks noted in the March 19, 2008 report that clinical
indications of appellant’s condition was a lifting injury, he did not otherwise describe the lifting
incident or how it caused or aggravated her condition. Therefore, these reports are of diminished
probative value.10
On June 3, 2008 Dr. Bendall diagnosed lower spine and cervical osteoarthritis with early
nerve compression. He provided a history that appellant injured her neck and back in
February 2006, while working as a checker at the airport due to lifting heavy bags. Dr. Bendall
opined that obviously her lifting of heavy boxes and baggage at the airport could have caused or
aggravated her neck injury. The Board finds these reports are insufficient to establish appellant’s
claim. The issue on appeal is whether appellant sustained an injury on March 6, 2008 while
lifting bags at work.11 Dr. Bendall only addressed a February 2006 injury and did not provide
any opinion regarding the March 6, 2008 incident. Further, his opinion is speculative and lacks
medical rationale on the issue of causation, which renders his opinion of diminished probative
value.12 Similarly, the medical reports dated September 10 through 25, 2007 predate the claimed
work event and are not relevant to whether the March 6, 2008 incident caused an injury.13
The Board finds that appellant did not submit sufficient medical evidence to support her
claim that she sustained an injury on March 6, 2008.
CONCLUSION
The Board finds that appellant did not establish that she sustained an injury in the
performance of duty on March 6, 2008 as alleged.

10

See Conrad Hightower, 54 ECAB 796 (2003).

11

The Board notes that the record contains a traumatic injury claim, Form CA-1, for an alleged February 11, 2006
employment injury about the left shoulder and back resulting from appellant performing her employment duties in
her capacity as a transportation security officer. However, the Board’s jurisdiction is limited to the deliberation of
appeals from final decisions of the Office. The only issue addressed by the Office in the May 28 and October 17,
2008 decisions is whether the accepted March 6, 2008 work event resulted in an injury. Thus, the Board does not
have jurisdiction over the issue of whether appellant sustained a work injury on February 11, 2006. See 20 C.F.R.
§ 501.2(c). See also J.P., 58 ECAB ___ (Docket No. 06-1274, issued January 29, 2007).
12

See S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009); D.D., 57 ECAB 734 (2006).

13

See Robert Broome, supra note 9.

5

ORDER
IT IS HEREBY ORDERED THAT the October 17 and May 28, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 2, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.K., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
NATIONAL GUARD, Honolulu, HI, Employer
__________________________________________

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

Docket No. 21-0708
Issued: September 29, 2021

Case Submitted on the Record

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

JURISDICTION
On April 7, 2021 appellant filed a timely appeal from a November 19, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from the last merit decision, dated October 25, 2019, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On September 5, 2007 appellant, then a 47-year-old powered support systems mechanic,
filed an occupational disease claim (Form CA-2) alleging that he experienced wheezing and
1

5 U.S.C. § 8101 et seq.

coughing as a result of his exposure to cleaning materials used by a custodian mopping the floor
at work.2 He stopped work on August 14, 2007. OWCP accepted appellant’s claim for
aggravation of preexisting asthma, not otherwise specified.
On April 10, 2008 appellant filed a claim for wage-loss compensation (Form CA-7) for
disability from work, commencing December 19, 2007, as a result of his accepted employment
injury.3
By decision dated June 5, 2009, OWCP denied appellant’s claim for wage-loss
compensation for disability from work commencing December 19, 2007. It found that the weight
of the medical evidence of record rested with Dr. Samuel J. Evans, a Board-certified internist
specializing in pulmonary disease and critical care medicine and an OWCP referral physician, and
Dr. Julie A. Chang, an attending internist and pulmonologist, who opined that appellant could
perform full-time, light-duty work subject to restriction. In a January 5, 2010 decision, an OWCP
hearing representative affirmed the June 5, 2009 decision, finding that the weight of the medical
evidence continued to rest with the opinions of Dr. Evans and Dr. Chang. On February 1, 2010
the hearing representative reissued the January 5, 2010 decision to protect appellant’s appeal rights
after being informed that appellant did not receive the January 5, 2010 decision.
By subsequent decisions dated February 16, 2011, October 9, 2013, December 24, 2014,
March 11, 2016, July 6, 2017, September 26, 2018, and October 25, 2019, OWCP denied
modification of its denial of appellant’s claim for disability commencing December 19, 2007.
On October 30, 2020 appellant requested reconsideration of the October 25, 2019 decision.
In an accompanying letter dated October 4, 2020, he provided a history of the medical treatment
received for his respiratory condition in his claims under OWCP File Nos. xxxxxx987,4
xxxxxx423, and xxxxxx935.
In support of his reconsideration request, appellant submitted evidence previously of
record. He also submitted an Office of Personnel Management (OPM) disability retirement
application dated March 1, 2008, literature regarding indoor air pollution, a 2007 workweek
schedule, a March 18, 2008 letter from the Social Security Administration (SSA) requesting that
the employing establishment complete a work activity questionnaire, and the completed work
activity questionnaire dated March 20, 2008.
Subsequently, OWCP also received additional evidence previously of record and evidence
that predated the alleged period of total disability. Additionally, it received correspondence dated

2

Appellant has a prior claim for an occupational disease assigned OWCP File No. xxxxxx423. OWCP accepted
the claim for toxic effect of JP-8 jet fuel. It has not administratively combined that claim with the present claim,
assigned OWCP File No. xxxxxx935.
3

Appellant’s employment was terminated, effective May 30, 2008, due to his loss of military membership because
he failed to meet the physical requirements of his military assignment.
4
The Board notes that the record does not indicate whether OWCP has accepted appellant’s claim under OWCP
File No. xxxxxx987.

2

May 5, August 29, and September 13, 2007 between appellant and the employing establishment
regarding him leaving work on May 1, 2007.
A computerized tomography (CT) scan of the maxillofacia l sinuses performed on
December 16, 2009 by Dr. James E. Yamasaki, a diagnostic radiologist, revealed mild bilateral
ethmoid and left maxillary sinus disease. Dr. Yamasaki also reported that there was no change
compared to an October 1, 2008 CT scan.
By decision dated November 19, 2020, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.5 This discretionary authority, however, is subject to certain restrictions. A request
for reconsideration must be received within one year of the date of OWCP ’s decision for which
review is sought.6 Timeliness is determined by the document receipt date (i.e., the “received date”
in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)). 7 Imposition of this
one-year filing limitation does not constitute an abuse of discretion. 8
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 9 Its procedures provide that it will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s
request for reconsideration demonstrates clear evidence of error on the part of OWCP. 10 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record. 11

5

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
6

20 C.F.R. § 10.607(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

8

G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
9

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
10

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also id. at § 10.607(b); supra note 7 at Chapter 2.1602.5 (February 2016).
11
J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).

3

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 12 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error, but must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision. The Board makes an independent determination as to
whether a claimant has demonstrated clear evidence of error on the part of OWCP. 13
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations14 and procedures15 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues. 16
The most recent merit decision was OWCP’s October 25, 2019 decision, which denied
modification of its denial of appellant’s claim for disability commencing December 19, 2007. As
OWCP received his request for reconsideration on October 30, 2020, more than one year after the
October 25, 2019 decision, the Board finds that it was untimely filed. Because appellant’s request
was untimely filed, he must demonstrate clear evidence of error on the part of OWCP in having
denied his claim for disability compensation.
In support of his untimely reconsideration request, appellant submitted evidence, which
was previously of record as well as a new report of Dr. Yamasaki that failed to address the causal
relationship between appellant’s disability from work commencing December 19, 2007 and the
accepted employment injury. He did not sufficiently explain how this evidence raised a substantial
question as to the correctness of OWCP’s October 25, 2019 merit decision. 17

12

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 7 at Chapter 2.1602.5(a) (February 2016).

13

U.C., Docket No. 19-1753 (issued June 10, 2020).

14
20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB
247 (2005).
15

Supra note 7 at Chapter 2.1602.4 (February 2016); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
16

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

17

T.C., Docket No. 19-1709 (issued June 5, 2020); B.W., Docket No. 19-0626 (issued March 4, 2020).

4

Appellant also submitted an OPM disability retirement application, literature regarding
indoor air pollution, a 2007 workweek schedule, a March 18, 2008 letter from the SSA requesting
that the employing establishment complete a work activity questionnaire, the completed work
activity questionnaire dated March 20, 2008, correspondence dated May 5, August 29, and
September 13, 2007 between appellant and the employing establishment regarding him leaving
work on May 1, 2007 notification of his profile, and him returning his line badge. None of the
evidence manifests on its face that OWCP committed an error in denying appellant’s claim for
disability commencing December 19, 2007. Thus, the evidence is insufficient to demonstrate clear
evidence of error.18
The Board, thus, finds that appellant has not raised an argument or submitted any evidence
that manifests on its face that OWCP committed an error in denying his disability claim. 19 Thus,
the Board finds that his untimely request for reconsideration failed to demonstrate clear evidence
of error.20
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

18

J.C., Docket No. 20-1250 (issued May 24, 2021); W.D., Docket No. 19-0062 (issued April 15, 2019).

19

S.C., Docket No. 19-1424 (issued September 15, 2020); U.C., supra note 13.

20

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the November 19, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 29, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS-METROPOLITAN
DETENTION CENTER, Los Angeles, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 17-1777
Issued: January 16, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On August 17, 2017 appellant, through counsel, filed a timely appeal from a June 2, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined that the selected position of a customer
complaint clerk represented appellant’s wage-earning capacity as of July 24, 2016.
FACTUAL HISTORY
On January 25, 2006 appellant, then a 39-year-old communications specialist, filed a
traumatic injury claim (Form CA-1), alleging that, on January 13, 2006, he was ascending stairs
while carrying boxes of equipment when he tripped and hit his right knee on the stairs while in the
performance of his job duties. OWCP initially accepted the claim for a right knee contusion and
right knee patella chondromalacia. It subsequently expanded acceptance to the claim to include:
right knee derangement; right venous embolism and thrombosis of deep vessels of lower extremity
not otherwise specified; tear of the medial meniscus of the right knee; derangement of the right
meniscus, not elsewhere classified; and acromioclavicular sprain of the right shoulder and upper
arm.3 As appellant was unable to return to his date-of-injury position, OWCP paid wage-loss
compensation benefits.
Appellant underwent a right knee arthroscopy on July 7, 2009. He was totally disabled
from work from June 1, 2007 to January 13, 2008.
Appellant returned to work on
January 14, 2008. He remained off work until December 29, 2008. Appellant stopped work again
on January 19, 2009 because the employing establishment could no longer accommodate his work
restrictions.
In response to a November 23, 2015 request from OWCP for a medical opinion regarding
appellant’s ability to work, on December 11, 2015 Dr. Kourosh Shamlou, a Board-certified
orthopedic surgeon and treating physician, opined that appellant was not capable of performing
his usual job. However, Dr. Shamlou advised that appellant was capable of performing modified
duties. He advised permanent restrictions of no more than four hours of sitting, no more than one
hour of walking, standing, reaching, reaching above the shoulder, twisting, bending and stooping,
operating a motor vehicle to and from work and no more than two hours of operating motor
vehicles at work. Additionally, Dr. Shamlou recommended no more than one hour of pushing,
pulling, and lifting and no more than 10 pounds.
On December 23, 2015 OWCP referred appellant for vocational rehabilitation as the
employing establishment was unable to accommodate the restrictions.
On December 29, 2015 OWCP noted that the current medical evidence documented
appellant’s work abilities. It advised appellant that he was being referred for vocational

3

The present claim was assigned OWCP File No. xxxxxx937. Appellant also has other claims before OWCP,
including one wherein he alleged injury to his left knee on May 11, 1999 when restraining an inmate in this thencapacity as a correctional officer. OWCP assigned that claim File No. xxxxxx870 and accepted it for left knee strain.
It has administratively combined File Nos. xxxxxx937 and xxxxxx870, with File No. xxxxxx937 serving as the master
file.

2

rehabilitation as Dr. Shamlou opined that he was capable of performing modified duties with
imposed restrictions.
By letter dated January 28, 2016, OWCP requested that Dr. Shamlou clarify appellant’s
work restrictions. In particular, it requested that he clarify whether appellant was limited to four
hours of continuous sitting and whether he could work only six hours per day. OWCP also
explained that they were trying to determine if appellant was capable of performing sedentary
work, noting that the physical requirements required occasional lifting of up to 10 pounds, on an
intermittent basis. Furthermore, appellant must be able to sit, stand and walk up to two and a half
hours on an intermittent basis; however, he would be able to change positions (sit, stand, and walk
as needed) during the workday. OWCP also asked Dr. Shamlou if based upon the definition of
sedentary work, would appellant be able to work eight hours per day, if not, how many hours could
he work.
In a letter dated February 16, 2016, appellant indicated that he could not participate in the
vocational rehabilitation program as he had fallen on the weekend of February 12, 2016 when his
left leg gave out and he injured his knee, back, and shoulders. He noted that he may have to have
surgery and he was currently in a leg immobilizer. Appellant provided a copy of the hospital
records and a work excuse note.
By letter dated February 22, 2016, Jeanine Metildi, the vocational rehabilitation counselor,
advised that she was submitting appellant’s vocational rehabilitation plan and supporting
documentation without his signature because he cancelled their meeting on February 16, 2016 and
asserted that he had an accident and could not meet with her. She further noted that he indicated
he did not want the suggested plan and wanted to attend paralegal training.
In her report dated March 6, 2016, Ms. Metildi documented that she had spoken with
Dr. Shamlou’s office on February 5, 2016 and was informed that appellant could return to his usual
and customary occupation with the exception that he could have no contact with inmates and would
need to change positions as necessary.
In a March 21, 2016 letter advising her plan justification, Ms. Metildi noted that a job
placement plan had been developed for appellant due to his education background and skills. She
recommended job placement for information clerk and customer complaint clerk. Ms. Metildi
noted that appellant had a B.S. degree in computer systems security and an A.S. degree in computer
and electronic engineering, and his most recent work experience as a computer specialist with the
employing establishment. She explained that both of the selected jobs were appropriate for
appellant since they were sedentary and would not require lifting over 10 pounds. Ms. Metildi
also indicated that the treating physician, Dr. Shamlou recommended no prolonged standing and
walking, no kneeling and squatting, no lifting, pushing, pulling or carrying more than 10 to 15
pounds, no at or above the shoulder work with the right arm, and no repetitive bending, twisting
or stooping.
On June 1, 2016 OWCP notified appellant that it proposed to reduce his compensation for
wage loss to $2,759.00 “each four weeks” as the medical and factual evidence established that he
was no longer totally disabled, but rather partially disabled and had the capacity to earn wages as
customer complaint clerk, Department of Labor’s Dictionary of Occupational Titles (DOT)

3

#237.367-0-22 at the rate of $600.00 per week. It noted that his wage-earning capacity was “less
than the current pay” of his date-of-injury position. OWCP explained that the physical
requirements of the customer complaint clerk did not exceed the restrictions imposed by
Dr. Shamlou in his December 11, 2015 report or conversation with Ms. Metildi on
February 5, 2016. Appellant was advised that the rehabilitation counselor had reported that based
upon his experience, education, medical restrictions, and a labor market survey, he was employable
as a customer complaint clerk. OWCP informed appellant that his vocational rehabilitation
counselor had documented that the customer complaint clerk position was reasonably available in
his commuting area and that the entry pay level for the position was $400.00 per week; however,
as noted above, he was capable of earning $600.00 per week. It advised him that the physical
requirements of the position were deemed to be vocationally suitable and consistent with the
accepted work tolerance limitations. OWCP provided a calculation sheet indicating that
appellant’s pay rate when his disability recurred on January 18, 2009 was $1,406.32 per week; the
current adjusted pay rate for his job on the date of injury was $1,441.64 per week, effective
March 15, 2016. It determined that he was currently capable of earning $600.00 per week, the pay
rate for a customer complaint clerk. OWCP determined that appellant had 42 percent wageearning capacity, which resulted in an adjusted wage-earning capacity of $590.60 per week. It
determined that he had a loss of wage-earning capacity of $815.67 per week. OWCP concluded
that, based upon a three-fourths compensation rate, appellant’s compensation would be $611.75
per week, increased by cost-of-living adjustments to $611.75 or $2,759.00 every four weeks. It
provided appellant 30 days to submit additional evidence or argument in support of any objection
to the proposed reduction. No response was received.
By decision dated July 11, 2016, OWCP reduced appellant’s compensation, effective
July 24, 2016, based on his ability to work as a full-time customer complaint clerk, which was
found to be medically and vocationally suitable.
In a letter dated August 25, 2016, appellant noted that the decision to reduce his
compensation was based on the December 11, 2015 report of Dr. Shamlou. However, he explained
that he had sustained a new injury, which was directly related to his employment injuries and a
report was issued on February 14, 2016 that outlined his condition. Appellant argued that this
omission was a direct violation and the medical evidence supported that he was totally disabled
and did not have the capacity to earn wages. Subsequently, OWCP referred him for a second
opinion examination on October 31, 2016 to Dr. Joseph S. Klemek, a Board-certified orthopedic
surgeon to determine his ability to work.
In a November 15, 2016 report, Dr. Klemek noted appellant’s history of injury and
treatment, examined appellant and provided findings. He determined that for the right knee,
appellant reported right knee pain that was present all the time and weakness in the right knee with
a feeling of instability. Dr. Klemek found appellant had a scar from surgery with corresponding
operative report and limited range of motion. He found atrophy of the right quadriceps and no
evidence of laxity.
Regarding the right shoulder, Dr. Klemek found that subjectively, appellant reported pain
and grinding in the shoulder. However, objectively, there are no findings. Dr. Klemek opined that
appellant had a fair prognosis and no need for active ongoing medical treatment. He recommended
access to symptomatic medication, performing home exercises and explained that during flare ups,

4

he may benefit from cortisone injections. However, Dr. Klemek advised that appellant was not a
candidate for surgical intervention. He advised that appellant continued to suffer some residuals;
however, appellant’s subjective complaints outweighed his objective findings. Dr. Klemek
explained that there was evidence of residuals, and atrophy of the right quadriceps and some
limited motion of the right knee and right shoulder. He explained that this was “more so due to
guarding secondary to reported pain. I find no objective evidence of residuals for the right
shoulder.”
On July 21, 2016 counsel requested a telephonic hearing, which was held before an OWCP
hearing representative on March 20, 2017. During the hearing, counsel argued that the job title of
a customer complaint clerk was outdated. He noted that, despite living in an expansive job market
area and having the intellectual capacity to perform the position, the issue was whether appellant
had the physical capability to perform the position. Appellant testified that he had ongoing
swelling and pain on a daily basis. He noted that both knees and arms were affected and his hips
were also involved. Appellant explained that he still received medical treatment on both knees
and was under the care of Dr. Shamlou. Additionally, he noted that he received periodic cortisone
injections and required prescription medication on a daily basis.
By decision dated June 2, 2017, OWCP’s hearing representative affirmed the July 11, 2016
decision.4
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.5
Section 8115(a) of FECA,6 provides in determining compensation for partial disability, the
wage-earning capacity of an employee is determined by his actual earnings if his actual earnings
fairly and reasonably represent her wage-earning capacity. Generally, wages actually earned are
the best measure of a wage-earning capacity and in the absence of evidence showing they do not
fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.7 If the actual earnings do not fairly and reasonably represent wage-earning
capacity, or if the employee has no actual earnings, his/her wage-earning capacity is determined
with due regard to the nature of the injury, the degree of physical impairment, his/her usual
employment, age, qualifications for other employment, the availability of suitable employment
and other factors and circumstances which may affect his/her wage-earning capacity in the
disabled condition.8 Wage-earning capacity is a measure of the employee’s ability to earn wages
4

Although a reference is made to a customer service representative in the June 2, 2017 decision, this appears to be
a mistake, as the rest of the decision indicates customer complaint clerk.
5
Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984). See Pope D. Cox, 39
ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).
6

5 U.S.C. § 8115.

7

Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971).

8

See Pope D. Cox, supra note 5. 5 U.S.C. § 8115(a).

5

in the open labor market under normal employment conditions.9 The job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.10 In determining an employee’s wage-earning
capacity, OWCP may not select a makeshift or odd-lot position or one not reasonably available on
the open labor market.11
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in the
Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open labor
market, that fits that employee’s capabilities with regard to his/her physical limitation, education,
age and prior experience. Once this selection is made, a determination of wage rate and availability
in the open labor market should be made through contact with the state employment service or
other applicable service.12 Finally, application of the principles set forth in Albert C. Shadrick will
result in the percentage of the employee’s loss of wage-earning capacity.13
ANALYSIS
The Board finds that Dr. Shamlou, the treating physician, provided an opinion that
established that appellant could perform the customer complaint clerk position. Dr. Shamlou
provided a December 11, 2015 report recommending that appellant could not perform his usual
job, but advised that appellant was capable of performing modified duties. He recommended
permanent restrictions of no more than four hours of sitting, no more than, one hour of walking,
standing, reaching, reaching above the shoulder, twisting, bending and stooping, operating a motor
vehicle to and from work and no more than two hours of operating motor vehicles at work.
Additionally, Dr. Shamlou recommended no more than one hour of pushing, pulling, and lifting
and no more than 10 pounds. Ms. Metildi also contacted Dr. Shamlou and determined that
appellant could not engage in prolonged standing and walking, no kneeling and squatting, no
lifting, pushing, pulling or carrying more than 10 to 15 pounds, no at or above the shoulder work
with the right arm, and no repetitive bending, twisting or stooping.
Additionally, as the employing establishment could not accommodate appellant’s
restrictions, Ms. Metildi, the vocational rehabilitation counselor, identified two positions that were
suitable and in accordance with appellant’s restrictions. Ms. Metildi explained that both of the
selected jobs were appropriate for appellant since they were sedentary and would not require lifting
over 10 pounds. She reiterated that the treating physician, Dr. Shamlou recommended no
prolonged standing and walking, no kneeling and squatting, no lifting, pushing, pulling or carrying

9

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

10

Id.

11

Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

12

Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999).

13

Id. See Shadrick, 5 ECAB 376 (1953); codified at 20 C.F.R. § 10.403(c)-(e).

6

more than 10 to 15 pounds, no at or above the shoulder work with the right arm, and no repetitive
bending, twisting or stooping.
Ms. Metildi proceeded to identify an appropriate position that fit appellant’s capabilities.14
She identified a customer complaint clerk position as being sedentary with occasional lifting of up
to 10 pounds as within his physical limitations. Ms. Metildi indicated that the position fell within
appellant’s work restrictions and was reasonably available in appellant’s commuting area. She
noted that the position was available in sufficient numbers so as to make it reasonably available
within appellant’s commuting area and that the wage of the position was equal to $600.00 per
week. Evidence from the rehabilitation counselor also establishes that appellant has the
appropriate knowledge, training and background to perform the selected position. The Board finds
that the customer complaint clerk position conforms to work restrictions set forth by Dr. Shamlou.
The weight of the evidence of record establishes that appellant had the requisite physical ability,
skill and experience to perform the position of customer complaint clerk.
The Board also notes that during the hearing, counsel for appellant mentioned that the
position was somewhat old fashioned or outdated, however, he did not dispute that the positions
were not reasonably available.
Consequently, OWCP met its burden of proof to establish that the constructed position of
customer complaint clerk represented his wage-earning capacity effective July 24, 2016.
On appeal counsel argues that the decision references a customer service representative,
which is not what the vocational rehabilitation counselor recommended. However, the Board notes
that the decision indicates customer complaint clerk. Although a reference is made in the body of
the hearing representative’s June 2, 2017 decision to a customer service representative, this
appears to be a mistake, as the rest of the decision and the June 2, 2016 proposed notice refer to
the customer complaint clerk position.
CONCLUSION
The Board finds that OWCP properly determined that the selected position of a customer
complaint clerk represented appellant’s wage-earning capacity as of July 24, 2016.

14

See supra note 10.

7

ORDER
IT IS HEREBY ORDERED THAT the June 2, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 16, 2019
Washington, DC

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

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

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

8