United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WEST LOS ANGELES MEDICAL CENTER,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 08-1808
Issued: January 29, 2009

Case Submitted on the Record

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

JURISDICTION
On June 10, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ decision dated May 12, 2008 denying his claim for compensation. 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 his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty on February 26, 2008.
FACTUAL HISTORY
On March 12, 2008 appellant, then a 27-year-old information technology (IT) specialist,
filed a traumatic injury claim alleging that on February 26, 2008 he injured his back and right leg
while lifting at work. He stopped work on February 26, 2008 and returned to work on
February 27, 2008.

In a March 27, 2008 letter, the Office advised appellant of the type of factual and medical
evidence needed to establish his claim and allowed him 30 days to submit such evidence. In
particular, it noted that his CA-1 form was the only evidence of record and that this was
insufficient to support his claim.
In a May 12, 2008 decision, the Office denied appellant’s claim for compensation. It
found that, while the evidence supported that he actually experienced the claimed incident, no
medical evidence was provided to support that he sustained a diagnosed medical condition
causally related to the work incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; that the claim was filed
within the applicable time limitation; that an injury was sustained while in the performance of
duty as alleged and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.3
ANALYSIS
The record supports that appellant was lifting at work on February 26, 2008. Appellant
alleged that this caused a back and right leg injury. However, he has not submitted medical
evidence establishing that the February 26, 2008 employment incident caused or aggravated a
diagnosed medical condition to the back or right leg.
On March 27, 2008 the Office advised appellant of the type of medical evidence needed
to establish his claim and allowed him 30 days to submit such evidence. However, he did not
submit any medical evidence that was received prior to the Office’s May 12, 2008 decision.4 For
1

5 U.S.C. §§ 8101-8193.

2

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007).

3

Id.

4

The record on appeal contains evidence received after the Office issued the May 12, 2008 decision. The Board
may not consider evidence that was not before the Office at the time it rendered its final decision. 20 C.F.R.
§ 501.2(c). Appellant may submit such evidence to the Office with a request for reconsideration.

2

example, appellant did not submit a medical report from a physician explaining how a specific
lifting activity at work on February 26, 2008, caused or aggravated a particular back or right leg
diagnosis. Therefore, he did not meet his burden of proof in establishing that he sustained an
injury in the performance of duty causally related to his federal employment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a traumatic injury of February 26, 2008 causally related to his employment.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 12, 2008 decision is affirmed.
Issued: January 29, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 17-1540
Issued: July 24, 2018

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 July 6, 2017 appellant filed a timely appeal from a June 13, 2017 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). As more than one year elapsed from
OWCP’s last merit decision, dated October 6, 2003, 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.2

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its June 13, 2017 decision.
However, the Board’s jurisdiction is limited to the evidence that was part of the record at the time OWCP issued its
final decision. Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal.
20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly determined that appellant’s August 14, 2007 and
May 27, 2017 requests for reconsideration were untimely filed and failed to demonstrate clear
evidence of error.
FACTUAL HISTORY
On July 11, 2003 appellant, then a 34-year-old mail processing clerk, filed an occupational
disease claim (Form CA-2) alleging that his cervical disorder was caused or aggravated by his
employment in January 1998 when he was “promoted to regular and reassigned to automation,”
where he was required to lift trays of mail, push/pull containers full of mail, loading/sweeping mail
processing machines for 8 or sometimes 10 hours per day.3 He indicated that he first became
aware of his claimed condition on October 24, 1990 and that he had undergone cervical surgery in
1991 while he was serving in the U.S Air Force. Appellant added that he first realized that his
claimed condition was related to factors of his federal employment on January 20, 1998. He noted
that he had not filed a claim for his cervical condition because his lumbar condition, for which he
had filed a claim under OWCP File No. xxxxxx390, took priority.4 Appellant was last exposed to
the conditions alleged to have caused/aggravated his condition on December 31, 2002. No
medical evidence was received with the claim.
In a development letter dated July 25, 2003, OWCP advised appellant of the deficiencies
in his claim and requested that he provide additional factual and medical information, including a
well-rationalized report from his physician which discussed how his federal employment exposure
contributed to or aggravated his condition. Appellant was afforded 30 days to provide the
necessary evidence.
In a July 29, 2003 response, appellant stated that he retired from active military duty on
May 1, 1991 and was hired by the employing establishment on April 15, 1995. He noted that his
cervical condition occurred on October 24, 1990 and that he underwent cervical surgery on
January 4, 1991. Appellant also detailed his employment duties with the employing establishment.
Medical evidence received by OWCP included reports from Dr. Stanley Cho, a Boardcertified family practitioner, dated July 31 and August 8, 1996, which noted cervical radiculopathy
at C5 and C6, diagnostic testing and medical reports from the employer’s health clinic, and a
January 4, 1991 operative report for herniated nucleus pulposus C5-6. A modified job offer dated
May 8, 2002 pertaining to OWCP File No. xxxxxx390 was also received, along with an August 14,
2003 statement from appellant’s supervisor attesting to appellant’s job duties.

3

The present claim was assigned File No. xxxxxx895.

4

Under OWCP File No. xxxxxx390, OWCP accepted appellant’s occupational disease claim for aggravation of
spinal stenosis, lumbar region; and degeneration of lumbar or lumbosacral intervertebral disc. It authorized multiple
surgical procedures of the lumbar spine and accepted a recurrence of July 19, 2006. OWCP also issued schedule
awards for the left and right lower extremities. Appellant retired on disability from the employing establishment on
August 25, 2006.

2

In an August 27, 2003 letter, OWCP requested that Dr. Cho explain how appellant’s
current cervical spine diagnosis was caused, accelerated, exacerbated, or aggravated by appellant’s
modified duties. Dr. Cho was afforded 30 days for his response. However, no response was
received.
By decision dated October 6, 2003, OWCP denied appellant’s claim as the medical
evidence of record was insufficient to establish that the claimed medical condition was causally
related to the accepted work factors.
On July 17, 2007 OWCP received appellant’s June 30, 2007 request for an oral hearing
before an OWCP hearing representative. By decision dated August 9, 2007, a representative of
OWCP’s Branch of Hearings and Review denied appellant’s request for an oral hearing as it was
not made within 30 days of the last OWCP decision and appellant was not entitled to an oral
hearing or a review of the written record, as a matter of right, on his case. He advised that the
issue could be equally well addressed by requesting reconsideration from OWCP and submitting
evidence not previously considered which established that the claimed condition was related to the
established work factors.
By letter dated August 14, 2007, received on August 22, 2007, appellant requested
reconsideration of the October 6, 2003 merit decision.5 He argued that OWCP should reinstate his
claim in the current file. Appellant noted that he had not been paid since July 2006 and had been
using leave without pay (LWOP). He advised that on June 20, 2007 he had surgery to correct disc
problems which affected his legs and which required titanium instrumentation to be placed in the
L4, L5, and S1 portions of his spine. Appellant asked that OWCP take his June 20, 2007 surgery
into consideration when reinstating his claim. No additional evidence was received.
By letter dated May 27, 2017, received on June 9, 2017, appellant again requested
reconsideration of the October 6, 2003 merit decision. He indicated that he underwent cervical
surgery on January 3, 1991, April 13, 2000, November 5, 2009, August 25, 2014, and
November 4, 2015. Appellant stated that he was not aware if OWCP paid the physician,
Dr. Charles F. Engles, a Board-certified neurosurgeon, for any of the services provided during the
April 13, 2000 procedure. He stated that OWCP had not requested Dr. Engles to provide an
opinion as to whether his April 13, 2000 surgery was related to his job and indicated that his claim
should be reopened based on that error. Appellant indicated that Dr. Winston Fong, a Boardcertified orthopedic surgeon, who performed the 2014 and 2015 procedures, was not aware that
the surgeries he performed were workers’ compensation injuries. He also requested that Medicare
and his private health insurance carrier be reimbursed for payment of all his surgical
procedures/hospitalizations as this was a workers’ compensation claim. Appellant indicated that
he was attaching documentation which he received from OWCP. No additional documentation
was received.

5

The Board notes that the case record does not contain evidence of a postmark.

3

By decision dated June 13, 2017, OWCP found that appellant’s May 27, 2017 request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.6
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.7 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.8 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.9
OWCP will consider an untimely request for reconsideration only if the request
demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit decision.”10
The request must establish on its face that such decision was erroneous.11 Where a request is
untimely filed and fails to demonstrate clear evidence of error, OWCP will deny the request for
reconsideration without reopening the case for a review on the merits.12
ANALYSIS
The Board finds that OWCP properly determined that appellant’s May 27, 2017 request
for reconsideration was untimely filed. Its procedures provide that the one-year time limitation

6

Although OWCP erred in not adjudicating the April 14, 2007 request for reconsideration, that was harmless error
as it was also untimely filed and the May 27, 2017 reconsideration request raised substantially similar arguments.
7
This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
8

20 C.F.R. § 10.607.

9

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(February 2016). Timeliness is determined by the document receipt date of the request for reconsideration as indicated
by the received date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
The Board notes that, for merit decisions issued prior to August 29, 2011, OWCP’s procedures provided that the
timeliness for a reconsideration request was determined not by the date OWCP received the request, but by the
postmark on the envelope. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3(b)(1) (January 2004). In the instant case, the decision was issued before August 29, 2011. As the postmark
of the request is not available, the date of the request, August 14, 2007, is the date utilized for timeliness purposes.
10

Id. at § 10.607(b).

11

Id. To demonstrate clear evidence of error, a claimant must submit evidence relevant to the issue that was decided
by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise, and explicit and it
must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 ECAB 227 (1991). It is not
enough to merely show that the evidence could be construed to produce a contrary conclusion. Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise a substantial question
as to the correctness of OWCP’s decision. Thankamma Mathews, 44 ECAB 765, 770 (1993).
12

20 C.F.R. § 10.608(b).

4

period for requesting reconsideration begins on the date of the original OWCP decision.13 In the
instant case, OWCP’s last merit decision was issued on October 6, 2003. The Board notes
appellant requested reconsideration of the October 6, 2003 decision on May 27, 2017. As
appellant’s May 27, 2017 request for reconsideration was received by OWCP more than one year
after the last merit decision of October 6, 2003, it was untimely. Consequently, he must
demonstrate clear evidence of error by OWCP in denying his claim for compensation.14
The Board further finds that the arguments submitted by appellant in support of his request
for reconsideration did not raise a substantial question as to the correctness of OWCP’s October 6,
2003 merit decision and is insufficient to demonstrate clear evidence of error.
In his May 27, 2017 request for reconsideration, appellant indicated that the physicians
who performed his 2000, 2014, and 2015 cervical procedures were not aware that it was a workers’
compensation claim or asked to provide an opinion on whether his cervical surgeries were related
to his job.
The Board finds that appellant did not submit medical evidence that addresses the
underlying issue of whether his claimed cervical condition was causally related to the accepted
work factors. To demonstrate clear evidence of error, it is not sufficient merely to establish that
the evidence could be construed so as to produce a contrary conclusion. The term clear evidence
of error is intended to represent a difficult standard.15 None of the argument submitted manifests
on its face that OWCP committed an error in denying appellant’s claim for compensation.16 Thus,
the arguments raised by appellant on reconsideration do not raise a substantial question as to the
correctness of OWCP’s October 6, 2003 merit decision or demonstrate clear evidence of error.17
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and failed to
demonstrate clear evidence of error.

13

See supra note 7.

14

See D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005).

15

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

16

See James R. Mirra, 56 ECAB 738 (2005).

17
See G.B., Docket No. 13-1260 (issued December 2, 2013); see also W.R., Docket No. 09-2336 (issued
June 22, 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the June 13, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 24, 2018
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Richardson, AK, Employer
__________________________________________

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Appearances:
Edward Daniel, for the appellant
Office of Solicitor, for the Director

Docket No. 14-666
Issued: July 2, 2014

Case Submitted on the Record

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

JURISDICTION
On February 3, 2014 appellant, through her representative, filed a timely appeal from a
December 23, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an employment-related disability for the
period December 7, 2010 to January 23, 2012.
FACTUAL HISTORY
On December 16, 2010 appellant, then a 49-year-old health systems assistant filed a
traumatic injury claim (Form CA-1) alleging that she sustained injuries on December 6, 2010

1

5 U.S.C. § 8101 et seq.

while in the performance of duty when she slipped and fell in the parking lot and injured her
back and leg. She stopped work on December 7, 2010.
The record indicates that appellant received treatment for back pain at an emergency
room on December 6, 2010. She was treated on December 8, 2010 by Dr. Herbert Day, an
osteopath, who noted the history of injury and indicated that appellant had back surgery earlier in
the year. Dr. Day provided results on examination, noting a left hip contusion. He diagnosed
back sprain, cervicalgia and sciatica. In a separate report dated December 8, 2011, Dr. Day
indicated that appellant could return to work on December 13, 2010. In a report dated
December 9, 2010, Dr. Timothy Cohen, a Board-certified neurosurgeon, indicated that she had
L4-5 back surgery on June 13, 2010. He stated that appellant had done well until she fell on ice
and he recommended she be off work until January 4, 2011. By report dated January 21, 2011,
Dr. Day indicated that she could return to work on March 7, 2011. He indicated that appellant
reported that her back pain appeared to be worsening and she had weakness in the left leg.
Dr. Day diagnosed sciatica due to displacement of lumbar disc.
OWCP accepted the claim for a left hip contusion on January 24, 2011. On February 17,
2011 Dr. Day reported that appellant could return to work on April 11, 2011. He indicated that
she could not sit or stand for prolonged periods and would see a neurosurgeon in April.
In a report dated March 24, 2011, Dr. Cohen reported that a December 28, 2010 magnetic
resonance imaging (MRI) scan showed an L4-5 discectomy and fusion without recurrent disc
protrusion. He stated that the most recent MRI scan showed neuroforaminal stenosis at L5-S1
secondary to facet capsule hypertrophy. By report dated March 30, 2011, Dr. Day provided
results on examination and stated that the MRI scan showed a new L5-S1 disc bulge. In a note
dated March 31, 2011, he stated that appellant had been asymptomatic following her June 2010
surgery, but since the slip and fall at work she had back and leg pain that had not responded to
conservative management. Dr. Day indicated that the L5-S1 injury did not exist prior to the
injury and she remained unable to work.
By report dated September 25, 2011, Dr. Mark Hippenstiel, Board-certified in family
medicine, indicated that appellant had moved from Alaska in June 2011. He diagnosed chronic
low back pain with sciatica.
On November 16, 2011 OWCP indicated that the claim was also accepted for left lumbar
intervertebral disc disorder with myelopathy. The record contains a letter dated December 15,
2011 from the employing establishment stating that “we are offering you your current position”
in an attempt to have appellant return to work. The employing establishment stated that the
position was mainly sedentary and appellant would be allowed to sit or stand at her convenience.
OWCP prepared a statement of accepted facts and referred appellant for a second opinion
examination by Dr. Edward Gold, a Board-certified orthopedic surgeon. It asked Dr. Gold to
provide an opinion as to appellant’s employment-related disability, noting the December 15,
2011 job offer. In a report dated February 27, 2012, Dr. Gold provided a history and results on
examination. He diagnosed chronic lumbar strain and trochanteric bursitis left hip. Dr. Gold
opined that the hip and lumbar spine conditions remained medically connected to the
December 6, 2010 employment injury. He stated that appellant was capable of performing the

2

job offered to her on December 15, 2011. Dr. Gold reported that she was limited to 25 pounds
lifting with limited kneeling and squatting.
In a letter dated March 14, 2012, OWCP advised appellant that the December 15, 2011
job offer was suitable and she had 30 days to accept the position or provide a written
explanation. By decision dated June 11, 2012, it found that she had refused an offer of suitable
work under 5 U.S.C. § 8106.
Following a November 27, 2012 hearing, an OWCP hearing representative vacated the
suitable work termination decision. In a decision dated January 28, 2013, the hearing
representative found that the job offer was for appellant’s date-of-injury job and therefore there
was no basis for a suitable work decision. The hearing representative found the issue was
whether appellant had established an employment-related disability from December 13, 2010,
the date Dr. Day initially indicated that appellant could return to work. The hearing
representative reviewed the medical evidence and found that it did not contain probative medical
evidence explaining how the work injury “objectively disabled” appellant for the date-of-injury
position, but remanded the case for a decision on the issue.
In a decision dated April 18, 2013, OWCP denied wage-loss compensation from
December 7, 2010 to January 23, 2012.2 It stated that Dr. Day and Dr. Cohen did not provide
medical rationale, and Dr. Gold had opined that appellant could perform the offered position.
Appellant requested a hearing before an OWCP hearing representative, which was held
on November 5, 2013. By decision dated December 23, 2013, the hearing representative
affirmed the April 18, 2013 decision. The hearing representative found the weight of the
medical evidence failed to support an employment-related disability, noting Dr. Gold’s opinion.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.4 Whether a particular
injury causes an employee to be disabled for work, and the duration of that disability, are
medical issues that must be proved by a preponderance of the reliable, probative and substantial
medical evidence.5

2

The record contains a claim for compensation (Form CA-7) dated January 23, 2012 that claims compensation
from February 13, 2011 to January 23, 2012.
3

5 U.S.C. §§ 8101-8193.

4

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

3

ANALYSIS
In the present case, OWCP has accepted that appellant sustained a left hip contusion and
left lumbar intervertebral disc disorder as a result of a slip and fall on December 6, 2010.
Appellant stopped working on December 7, 2010, and the record indicates that OWCP has not
accepted any employment-related disability. It is appellant’s burden of proof on the issue, as
noted above.
Appellant was seen by Dr. Day on December 8, 2010 and while he initially indicated that
she could return to work on December 13, 2010, subsequent reports continued to opine that
appellant was disabled due to the employment injury. The March 31, 2011 report from Dr. Day
opined that appellant was disabled due to the employment injury. There is a May 24, 2011
report from Dr. Day, who noted that appellant reported worsening pain and numbness, but did
not specifically discuss disability.
OWCP referred appellant for a second opinion examination with respect to an
employment-related disability. It cites Dr. Gold’s opinion in support of its finding that appellant
was not entitled to wage-loss compensation from December 7, 2010 to January 23, 2012, but
clearly the record requires additional clarification on the issue. Dr. Gold did not offer an opinion
as to employment-related disability during the period December 7, 2010 to January 23, 2012.
His examination was on February 27, 2012 and his opinion was that appellant could perform the
health systems assistant job at that time. Since OWCP sought the opinion of Dr. Gold, they need
to secure a proper opinion on the issue presented.6
The case will be remanded to OWCP to secure an appropriate medical report. The
statement of accepted facts should provide a detailed description of the date-of-injury position,
and the physician should provide an opinion, based on a complete background and with sound
medical rationale, as to whether there was any period of employment-related disability for the
date-of-injury position during the period December 7, 2010 to January 23, 2012. After such
further development as is warranted by the evidence, OWCP should issue an appropriate
decision.
CONCLUSION
The Board finds the case is not in posture for decision and is remanded to OWCP for
further development of the evidence.

6

See Mae Z. Hackett, 34 ECAB 1421 (1983); Richard W. Kinder, 32 ECAB 863 (1981).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 23, 2013 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: July 2, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bala Cynwd, PA, Employer
__________________________________________

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

Docket No. 07-376
Issued: April 11, 2007

Case Submitted on the Record

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

JURISDICTION
On November 28, 2006 appellant filed a timely appeal from a September 7, 2006 Office
of Workers’ Compensation Programs’ merit decision, denying her claim for a right shoulder
condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether appellant’s right shoulder condition is causally related to factors of
her federal employment.
FACTUAL HISTORY
This case was previously before the Board. By decision dated April 18, 2006, the Board
affirmed a June 15, 2005 Office decision that denied modification of a denial of appellant’s

claim for a right shoulder condition.1 The April 18, 2006 Board decision is incorporated herein
by reference.
On June 8, 2006 appellant requested reconsideration and submitted additional evidence.
In a May 9, 2006 report, Dr. John D. Kelly, a Board-certified orthopedic surgeon, stated that he
treated appellant for a right shoulder rotator cuff tear which required surgery. He stated that this
condition, in appellant’s age group, was usually traumatic related, especially with retraction or
secondary to significant overuse. Dr. Kelly stated that appellant’s right shoulder condition was
directly related to her federal employment. He stated:
“I looked at my notes, and I do not have any significant episodes of injury
defined, but I believe that there is certainly an element of causation regarding
[appellant’s] work. This is very difficult to prove with any scientific basis[;] it is
based on association of the tear with the occupation and this is my understanding.
I hope it is of some help.”
By decision dated September 7, 2006, the Office denied modification of the June 15,
2005 decision denying modification of the denial of appellant’s claim for a right shoulder
condition.
LEGAL PRECEDENT
To establish a causal relationship between a claimant’s medical conditions and her
employment, she must submit rationalized medical opinion evidence based on a complete factual
and medical background supporting such a causal relationship.2 Rationalized medical opinion
evidence is medical evidence which includes a physician’s opinion on the issue of whether there
is a causal relationship between the claimant’s condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.3 Neither the fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.4

1

Docket No. 06-153 (issued April 18, 2006). Appellant, an operation support technician, submitted a claim for a
right shoulder condition. She alleged that she aggravated a prior injury by constantly lifting, pulling and pushing
items weighing 75 pounds or more while in the performance of duty. By decision dated June 20, 2003, the Office
denied her claim. On February 5, 2004 an Office hearing representative affirmed the June 20, 2003 decision but
modified it to reflect that the issue presented was whether appellant sustained an occupational disease, rather than a
traumatic injury. On June 15, 2005 the Office denied modification of the February 5, 2004 decision.
2

Michael S. Mina, 57 ECAB ___ (Docket No. 05-1763, issued February 7, 2006).

3

Gary J. Watling, 52 ECAB 278 (2001); Gloria J. McPherson, 51 ECAB 441 (2000).

4

Minnie L. Bryson, 44 ECAB 713 (1993).

2

ANALYSIS
It is not disputed that appellant’s job included pushing, pulling and lifting duties.
However, the medical evidence is not sufficient to establish that these job duties caused or
aggravated her claimed right shoulder condition.
Dr. Kelly stated that he treated appellant for a right shoulder rotator cuff tear which
required surgery. He indicated that appellant’s right shoulder condition was related to overuse
associated with her federal employment. Dr. Kelly stated that his past medical notes did not
reflect any significant episodes of injury but he believed that there was an element of causation
regarding appellant’s work. However, he did not address the specific job duties which
contributed to appellant’s right shoulder condition. Furthermore, Dr. Kelly did not provide
sufficient medical rationale in support of his opinion regarding causal relationship. Medical
reports not containing adequate rationale on causal relationship are of diminished probative value
and are generally insufficient to meet an employee’s burden of proof.5 Lacking a complete and
accurate factual background and sufficient medical rationale addressing the issue of causal
relationship, Dr. Kelly’s report is not sufficient to establish that appellant’s right shoulder
condition was caused or aggravated by factors of her employment. Additionally, his May 9,
2006 report is not consistent with his January 28, 2005 report, previously reviewed by the Board
in its April 18, 2006 decision. In the January 28, 2005 report, Dr. Kelly attributed appellant’s
right shoulder condition to a fall at work on May 3, 2002, rather than to occupational factors.
Due to these deficiencies, the May 9, 2006 report from Dr. Kelly is not sufficient to establish that
appellant’s right shoulder condition was caused or aggravated factors of her federal employment.
CONCLUSION
The Board finds that appellant failed to establish that her right shoulder condition was
causally related to factors of her federal employment.

5

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 7, 2006 is affirmed.
Issued: April 11, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF INDIAN AFFAIRS, Towaoc, CO, Employer
__________________________________________

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

Docket No. 15-1191
Issued: September 8, 2015

Case Submitted on the Record

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

JURISDICTION
On May 4, 2015 appellant filed a timely appeal from a March 26, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence on appeal. However, the Board cannot consider evidence that was not
before OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On February 3, 2015 appellant, then a 54-year-old correctional officer, filed a traumatic
injury claim alleging that on January 24, 2015 at 8:30 a.m., she sustained injuries to her left
shoulder blade, elbow, forearm, and wrist while booking-in and changing-out an intoxicated
woman. She stopped work on January 30, 2015. The employing establishment indicated that it
received notice of the claimed injury on February 6, 2015. It also checked a box on the form to
indicate that the claimed injury occurred in the performance of duty.
In a January 28, 2015 work status form, Dr. Larry Welling, Board-certified in emergency
medicine, advised that appellant should not return to work until further notice. He diagnosed left
upper extremity pain. On the form, Dr. Welling circled “yes” to the question of whether
appellant’s condition was work related. In a February 11, 2015 work status note, he diagnosed
persistent left upper extremity pain and again instructed that appellant should not return to duty
until further notice.
OWCP, in a February 23, 2015 letter, informed appellant that the evidence of record was
insufficient to support her claim. It requested that she submit a detailed description of how the
injury occurred and a medical report containing a physician’s opinion supported by a medical
explanation as to how work factors caused a diagnosed condition. With regard to the incident,
OWCP asked that appellant explain where she was and what she was doing at the time that the
injury occurred. It also asked that she provide statements from others who witnessed the incident
or had immediate knowledge of it.
In January 24, 2015 reports, Dr. Jay Johnson, a Board-certified diagnostic radiologist,
reported that appellant was seen for x-rays “after trauma.” X-rays of appellant’s left elbow,
humerus, forearm, and shoulder were negative for fracture and otherwise appeared normal.
X-rays of the thoracic spine exhibited no acute fractures or compression deformities.
Dr. Johnson diagnosed mild degenerative changes of the thoracic spine, noting a mild convex
right curvature of the mid thoracic spine, and age appropriate mild degenerative endplate
changes. Wrist x-rays revealed subtle oblique lucency through the ulnar styloid, suspicious for a
nondisplaced fracture. Dr. Johnson diagnosed suspected nondisplaced incomplete fracture
through the ulnar styloid.
In a medical report dated February 11, 2015, Dr. Welling reported that appellant was seen
for a follow-up examination for left elbow and shoulder pain. Physical examination revealed
slight tenderness over the left forearm and distal humerus, fair range of motion in the elbow,
fairly good range of motion of the shoulder, and a bit of tenderness to palpation in the left
thoracic and parascapular musculature. Dr. Welling noted that appellant reported nightmares of
“the incident.” He diagnosed anxiety, and left upper extremity sprain and strain.
In March 2 and 3, 2015 physical therapy reports, Physical Therapists Rebecca Emmett
and Anthony Valdez related that appellant presented with an injury that “occurred while trying to
subdue a combative inmate.” The report stated that appellant injured her left arm, to the shoulder
blade, while “involved in a combative, intoxicated inmate.” The mechanism of injury was
recorded as “dealing with a combative inmate” on January 24, 2015. Physical Therapists
Rebecca Emmett and Anthony Valdez noted findings and diagnosed lateral epicondylitis and

2

adhesive capsulitis. A March 12, 2015 physical therapy report, completed by Physical
Therapists William Little and Betsy Atchinson, reiterated the history of injury, examination
findings, and diagnosis provided by the preceding physical therapy reports.
Dr. Welling noted in a March 9, 2015 report that appellant was seen for a recheck of her
left shoulder injury. Appellant reported feeling significantly better. She showed decreased
upper extremity tenderness and a very good range of motion. Dr. Welling diagnosed appellant
with anxiety and an improving sprain and strain of the left upper extremity. He released
appellant to light duty, with restrictions on inmate contact and heavy lifting with the left arm. In
a March 9, 2015 work status note, Dr. Welling reported that appellant could return to partial duty
with restrictions. He advised against inmate contact.
By decision dated March 26, 2015, OWCP denied appellant’s claim, finding the evidence
insufficient to demonstrate that the employment incident occurred on January 24, 2015, as
alleged. It also found that she failed to submit medical evidence establishing a causal
relationship between the alleged incident and a diagnosed condition.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,3 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.4 The employee must also
establish that he or she sustained an injury in the performance of duty as alleged and that his or
her disability for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged. Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.6
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.7
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
3

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

4

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

5

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

6

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

7

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

3

course of action. An employee has not met his or her burden in establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement
in determining whether a prima facie case has been established.8
ANALYSIS
On February 6, 2015 appellant filed a claim alleging that she sustained an injury to her
left wrist, forearm, elbow, and shoulder while booking-in and changing-out an intoxicated
female on January 24, 2015. On February 23, 2015 OWCP requested that she provide a detailed
description of the claimed injury. Appellant did not respond prior to the March 26, 2015
decision. The Board finds that the factual evidence is insufficient to establish that the
January 24, 2015 employment incident occurred as alleged.
Appellant, on her claim form, indicated that she was injured at 8:30 a.m. on January 24,
2015, but she did not report the employment incident until February 6, 2015. On the claim form,
she alleged that she was injured while “booking-in and changing-out an intoxicated female.”
Appellant’s description fails to adequately detail the alleged work incident, as required in a
traumatic injury claim.9 Her description is vague. It does not relate with specificity the
circumstances of the injury, or identify the actual cause.10 Appellant has not identified the
inmate in question and she had not precisely stated what the inmate did to cause a left arm injury.
Physical therapy notes dated March 2, 3, and 12, 2015, relate that appellant was injured
while processing an intoxicated inmate. While this statement is consistent with appellant’s
account it is also vague, failing to elucidate the particular mechanism of injury. The history of
injury contained in other medical reports also does not clarify how appellant injured her arm
while subduing the female inmate. As noted, OWCP requested that appellant provide a detailed
description of how the injury occurred and to submit statements from persons who witnessed the
injury or who had immediate knowledge of it. Appellant did not submit a responsive statement
or supporting factual evidence.11
On appeal, appellant indicates that OWCP denied her claim because she did not file the
traumatic injury claim in a timely fashion. While late notification is a pertinent factor,12 the
Board looks at the totality of evidence to determine if an employment incident occurred as
alleged. In this case, the vague nature of the factual evidence, together with appellant’s failure to
respond to OWCP’s request for a detailed description of the incident, casts serious doubt on
8

Betty J. Smith, 54 ECAB 174 (2002).

9

See S.W., Docket No. 15-0396 (issued June 19, 2015); V.H., Docket No. 12-1621 (issued December 21, 2012).

10

See id.

11

S.W., supra note 9; see Q.D., Docket No. 14-1468 (issued December 23, 2014).

12

See supra note 8.

4

whether the employment incident occurred as alleged. Therefore, the Board finds that OWCP
properly denied appellant’s claim.13
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 did not meet her burden of proof to establish that she
sustained a traumatic injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 26, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 8, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

13

As appellant did not meet her burden to establish the occurrence of an employment incident, it is unnecessary
to consider the medical evidence with regards to causal relationship. See Bonnie A. Contreras, 57 ECAB
364 (2006).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stockbridge, GA, Employer
__________________________________________

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Appearances:
Elick Grant, for the appellant
Office of Solicitor, for the Director

Docket No. 08-399
Issued: June 18, 2008

Case Submitted on the Record

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

JURISDICTION
On November 19, 2007 appellant filed a timely appeal from the March 29, 2007 decision
of the Office of Workers’ Compensation Programs denying her traumatic injury claim. On
October 17, 2007 the Office denied her request for further merit review of her claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that she sustained a back injury in the
performance of duty on December 4, 2006, as alleged; and (2) whether the Office properly
denied appellant’s request for further review of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On December 4, 2006 appellant, then a 58-year-old window and distribution clerk, filed a
traumatic injury claim, Form CA-1, alleging that she developed sharp pain in her right hip from

twisting, walking, standing and rising from a chair over the course of that day. She sought
immediate treatment from Dr. Andre McShan, Board-certified in occupational medicine.
In a report dated December 4, 2006, Dr. McShan stated that appellant reported a one-day
history of low back pain that began at work. He stated that her pain was possibly related to
extended standing, bending and lifting. Appellant reported that she was performing her usual
duties when she felt sharp pain in her right hip and lower back. She stated that she had a 10- to
20-year history of similar back complaints. Dr. McShan noted that her gait and lower extremity
reflexes and sensation were normal. In the lumbar spine, he found tenderness on the right side
and decreased extension and bilateral rotation with pain. Dr. McShan stated that an x-ray
revealed degenerative changes, but no fractures. He diagnosed lumbar strain, prescribed
medication and returned her to regular duty. On December 6, 2006 a physician’s assistant,
Carla Harris provided appellant with work restrictions. On December 13, 2006 Dr. McShan
modified the work restrictions and added diagnoses of back pain and lumbar pain. From
December 4, 2006 to January 26, 2007 appellant received conservative treatment through
Dr. McShan.
On February 16, 2007 the Office notified appellant that the evidence she had submitted
was insufficient to establish that her injury was related to her employment.
On March 9, 2007 appellant provided a written statement and several medical records.
She stated that, on December 4, 2006, she was performing her usual duties, which included
lifting packages, twisting at the mid-section of the back, bending and other physical activities.
Over the course of the day, these actions aggravated her preexisting degenerative disc disease.
She provided the February 24, 2006 report of Dr. Carrie Collins, an osteopathic physician, who
stated that appellant had lumbar degenerative disc disease and osteoarthritis in both knees.
Dr. Collins requested that appellant be provided with a job that allowed her to change positions
frequently as her condition was worsened by prolonged standing. On December 4, 2006
Dr. McShan stated that appellant had a more than 10-year history of low back pain, which was
presumably related to bending and lifting. He opined that appellant’s condition was caused or
aggravated by her employment because her multiple-years of physical activity led to the
degenerative changes in her spine.
On February 5, 2007 appellant underwent a magnetic resonance imaging (MRI) scan of
her lumbar spine. The study revealed a right lateral disc bulge with mild-to-moderate neural
foramen narrowing at L4-5, broad-based disc bulge with mild neural foramen narrowing at L3-4
and mild to moderate disc desiccation from L3 to S1. On February 9, 2007 Dr. Francisco
Caycedo, an orthopedic surgeon, reported that appellant was working as usual on December 4,
2006, when she began feeling pain in the hips and lower back. Appellant indicated that she had
experienced back pain intermittently for 18 years. Dr. Caycedo noted that appellant’s MRI scan
showed multiple disc pathology with arthritic changes that showed the long duration of the
problem. He diagnosed lumbar strain. Dr. Caycedo opined that appellant’s spinal condition was
not a work-related injury because he found no episode or injury that could be connected with her
symptoms. On February 26, 2007 Dr. Claudio Bondulich, a Board-certified family practitioner,
stated that appellant was under his care for lumbar degenerative disc disease. He recommended
that appellant lift or push no more than 15 pounds and stand for no more than 30 minutes an
hour.

2

By decision dated March 29, 2007, the Office denied appellant’s claim. It accepted that
she performed the work-related activities as alleged, but found that she had not established that
her claimed condition was related to these events. Following this decision, the Office received
copies of several medical and physical therapy reports that were already in the record.
On October 2, 2007 appellant filed a request for reconsideration. The request was not
accompanied by new medical reports or new legal arguments.
By nonmerit decision dated October 17, 2007, the Office denied appellant’s request for
reconsideration on the grounds that she had presented no relevant and pertinent evidence not
previously considered, advanced no relevant legal argument and demonstrated no error on the
part of the Office is issuing its decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty; and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.2
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must first determine whether “fact of injury” has been
established. “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 is alleged to have occurred. The second component of “fact of injury”
is whether the incident caused a personal injury and, generally, this can be established only by
medical evidence.3
When determining whether the implicated employment factors caused the claimant’s
diagnosed condition, the Office generally relies on the rationalized medical opinion of a
physician.4 To be rationalized, the opinion must be based on a complete factual and medical
background of the claimant5 and must be one of reasonable medical certainty,6 explaining the

1

5 U.S.C. §§ 8101-8193.

2

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

5

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

6

John W. Montoya, 54 ECAB 306 (2003).

3

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant was bending, twisting and rising from seating while in
the performance of duty on December 4, 2006. The issue to be resolved is whether she has
established an injury causally related to these accepted activities.
The issue of causal relationship is medical in nature and must be resolved by probative
medical evidence. On the day of the accepted employment events, appellant was seen by
Dr. McShan, a Board-certified occupational physician, who reported that she had a 10 to 20 year
history of lumbar pain. Dr. McShan stated that, on December 4, 2006, she developed sharp pains
in her right hip and lower back that was possibly related to standing, bending and lifting at work.
He noted that appellant’s lower extremity movement, reflexes and sensation were normal, but
that she had tenderness on the right side of the lumbar area, decreased lumbar extension and
decreased bilateral rotation with pain. Dr. McShan stated that an x-ray of appellant’s lumbar
spine revealed degenerative changes. He diagnosed lumbar strain. On a physician’s report form
completed the same day, Dr. McShan made the additional diagnosis of degenerative joint
disease. He stated that appellant’s history of low back pain was presumably related to bending
and lifting at work. Dr. McShan opined that her condition was caused or aggravated by her
employment, because her years of physical activity had led to the degenerative changes in her
spine.
The Board finds that the opinion of Dr. McShan is insufficient to establish that
appellant’s back condition is related to the accepted employment factors because it is
speculative. Dr. McShan stated that appellant’s lumbar strain was “possibly” related to her
employment activities of standing, bending and lifting at work. The Board has held that medical
opinions that are speculative or equivocal in character are of diminished probative value.8 The
Board also finds that the opinion Dr. McShan expressed on the physician’s report was based on
factors of appellant’s employment that have not been accepted by the Office. Dr. McShan stated
that several years of physical activity at work led to degenerative changes in appellant’s spine.
However, the Office has accepted only the work activities of December 4, 2006. Additionally,
the Board notes that Dr. McShan did not provide rationale explaining how appellant’s
employment activities caused either the diagnosed strain or degenerative disc disease. The
Board therefore finds that the reports of Dr. McShan are insufficient to establish an injury
causally related to appellant’s accepted employment events.
On February 9, 2007 Dr. Caycedo, an orthopedic surgeon, noted that appellant had
experienced back pain intermittently for 18 years. He reported that she was performing her usual
work duties on December 4, 2006 when she began feeling pain in the hips and lower back.
Dr. Caycedo stated that an MRI scan conducted on February 5, 2007 showed multiple disc
pathology with arthritic changes, which indicated the long duration of the problem. He opined
7

Judy C. Rogers, 54 ECAB 693 (2003).

8

D.D., 57 ECAB 734 (2006).

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that appellant’s lumbar strain was not a work-related injury because there was no episode or
injury that could be connected with her symptoms. The Board finds that, on its face, this report
does not support appellant’s claim because Dr. Caycedo opined that appellant’s condition was
not work related.
On February 26, 2007 Dr. Bondulich, a Board-certified family practitioner, stated that
appellant was under his care for lumbar degenerative disc disease and provided work restrictions.
He did not offer an opinion as to the cause of appellant’s condition. In the absence of this
information, the Board finds that his opinion is of little probative value.9
The Board notes that the other medical reports in the record were completed by
physician’s assistants and physical therapists, who are not competent to render medical opinion
under the Act as they are not considered physicians as defined under the Act.10 Therefore, these
reports are not probative under the Act.
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted employment events.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act, the Office has the discretion to reopen a case for
review on the merits.11 Section 10.606(b)(2) of Title 20 of the Code of Federal Regulations
provides that the application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that: (i) shows that the Office erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by the Office; or (iii) constitutes relevant and pertinent new evidence not previously
considered by the Office.12 Section 10.608(b) provides that, when an application for
reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.13
ANALYSIS -- ISSUE 2
The Board finds that appellant met none of the regulatory requirements for a review of
the merits of the Office’s March 29, 2007 decision. Her October 2, 2007 request for
reconsideration was not accompanied by any evidence or argument and the medical documents
9

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 474 (2006) (“Medical reports not containing rationale
on causal relation are entitled to little probative value and are generally insufficient to meet an employee’s burden of
proof.”)
10

David P. Sawchuk, 57 ECAB 316 (2006) (physical therapists are not “physicians”); Roy L. Humphrey,
57 ECAB 238 (2005) (physician’s assistants are not “physicians” as defined under the Act).
11

5 U.S.C. § 8128(a).

12

20 C.F.R. § 10.606(b)(2).

13

20 C.F.R. § 10.608(b).

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submitted after March 29, 2007 had already been previously considered. Therefore, appellant
did not show that the Office erroneously applied or interpreted a specific point of law, did not
advance any relevant legal arguments and did not present any relevant and pertinent new
evidence. The Board finds that appellant is not entitled to further review on the merits of her
case because she did not meet any of the requirements of section 10.606(b)(2).14
CONCLUSION
The Board finds that appellant has not established that she sustained a back injury in the
performance of duty on December 4, 2006, as alleged. The Board further finds that the Office
properly denied appellant’s request for further review of the merits of her claim pursuant to 5
U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office Workers’ Compensation
Programs dated October 17 and March 29, 2007 are affirmed.
Issued: June 18, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

14

20 C.F.R. § 10.606(b)(2)(i)-(iii).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 08-752
Issued: August 5, 2008

Case Submitted on the Record

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

JURISDICTION
On January 16, 2008 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated October 31, 2007 denying his claim for wage-loss
compensation for the period December 15, 2006 through January 19, 2007 and rescinding
payment of continuation of pay for the period October 31 to December 14, 2006. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this decision.
ISSUES
The issues are: (1) whether appellant has established that he was disabled for work for
the period December 15, 2006 through January 19, 2007 due to his accepted October 23, 2006
employment injury; and (2) whether the Office properly rescinded acceptance of total disability
for the period October 31 to December 14, 2006.

FACTUAL HISTORY
On October 24, 2006 appellant, then a 32-year-old shipfitter helper, filed a traumatic
injury claim alleging that on October 23, 2006 he injured his right wrist when he slipped on oil
and hit his right hand on a cart rail. He did not stop work, but continued working in a light-duty
job until December 14, 2006. The Office accepted the claim for closed fracture of the right
upper end ulna and radius.
In reports dated October 31 and November 1, 2006, Dr. Kenneth R. Koskella, a treating
Board-certified orthopedic surgeon, reported that appellant injured his wrist on October 23, 2006
when he slipped and banged his right wrist against a railing. He noted that appellant was then
placed on light-duty work by the employing establishment. An x-ray interpretation revealed
“increased space between the lunate and triquetium” with a “probably small avulsion fracture of
the triquetium” seen on a lateral view. A physical examination of the right wrist revealed no
swelling, obvious instability of the wrist or obvious deformity, but did reveal significant
tenderness on palpation of the distal radioulnar joint. Range of motion of the right wrist included
50 degrees flexion, 45 degrees extension, 20 degrees radial deviation and 30 degrees ulnar
deviation, which was painful. Based upon the objective evidence, Dr. Koskella diagnosed a
sprained ligament and probable avulsion fracture. He stated that appellant was disabled from
performing his date-of-injury job as “he cannot use his hand forcefully or climb ladders.”
However, Dr. Koskella indicated that appellant would be capable of performing a sedentary
light-duty job which required minimal use of the right hand.
In a December 13, 2006 disability note, Dr. Koskella stated that appellant was totally
disabled for work “unless desk job is available.”
In a December 15, 2006 attending physician’s report (Form CA-20), Dr. Koskella
diagnosed avulsion fracture of the right triquetium based upon an x-ray interpretation. He noted
that he first saw appellant on October 31, 2006 and that he was currently totally disabled as of
October 31, 2006.
In a December 18, 2006 disability note, Dr. Koskella indicated that appellant was
currently disabled from working.
In a January 9, 2007 duty status report (Form CA-17), Dr. Koskella indicated that
appellant was disabled from using his right hand, but that he would be able to work a desk job.
In a January 9, 2007 disability note, he stated that appellant was disabled from work due to his
wrist injury and was waiting for authorization for surgery.
On January 9, 2007 appellant filed claims for compensation for the period December 15,
2006 through January 19, 2007.
In a letter dated January 12, 2007, the Office noted it had received appellant’s claims for
compensation (Form CA-7) for the period December 15, 2006 through January 19, 2007. It
informed appellant that the medical evidence of record was insufficient to support his recurrence
claim. The Office further noted that appellant had worked light duty for the period October 24
through 30, 2006 and received continuation of pay for the period October 31 through

2

December 14, 2006. It noted that his physician, Dr. Koskella, had indicated that he was capable
of working a desk job and, thus, it was unclear why he was unable to work his light-duty job
from December 15, 2006 through January 19, 2007. Appellant was then advised as to the type of
medical and factual information required to support his claim and given 30 days to provide the
requested information.
Subsequently, the Office received additional medical information including appellant’s
statement and January 9, 2007 treatment note and January 23, 2007 note by Dr. Koskella. In his
statement appellant noted that he has been unable to work due to pain and the medication he
takes makes him “extremely drowsy and generally fall asleep with[in] an hour of tak[ing] them.”
As a result, he related that he was unable to drive and usually did not hear his alarm clock going
off. Appellant stated that “[g]etting to work is just as much of a hassle as is trying to stay awake
while there.”
Dr. Koskella noted that appellant was “having fairly significant right wrist pain, worse
with any activity.” He reported that a magnetic resonance imaging (MRI) scan revealed a
lunatriquetral ligament tear of the right wrist and partial tear of the carpi ulnaris extensor.
Dr. Koskella concluded that appellant was disabled from work due to his right wrist ligament
tear. In the January 23, 2007 note, he noted that appellant was unable to drive due to his taking
narcotics for his pain.
On March 27, 2007 Dr. Koskella stated that appellant could not perform any work that
requires “other than minimal use of his right dominant hand” and that appellant “does
occasionally need narcotic pain medication for pain control.” He indicated that he was no longer
actively involved in appellant’s care as he was currently being treated by the University of
Washington.
In a March 28, 2007 report, appellant was diagnosed with triquetral evulsion and
lunatotriquetral tear. The report was electronically signed by Chad Carson Moloney, physician’s
assistant, and cosigned electronically on April 5, 2007 by Dr. Thomas E. Trumble, an attending
Board-certified orthopedic surgeon with a subspecialty certification in hand surgery. A physical
examination revealed decreased hand strength and ulnar dorsal wrist pain. Range of motion of
the right wrist included 45 degrees flexion, 55 degrees extension, 70 degrees supination and 70
degrees pronation. Dr. Trumble and Mr. Moloney indicated that appellant was disabled from
work due to his inability to use his right arm as a result of his employment injury. They also
stated that appellant “has been unable to return to limited duty or light duty secondary to the use
of narcotic pain medication.
On April 25, 2007 the Office requested that the Office medical adviser address whether
appellant’s pain and narcotic pain medication would preclude him from working. It noted the
narcotic medication appellant was prescribed included hydrocodone and oxycodone.
Specifically, the Office asked whether it was normal to immediately fall asleep after taking
narcotic pain medication and was it “highly likely that he could be so doped up at work every
day that he would fall asleep every day?” The Office medical adviser was also asked whether it
was normal for appellant to be in constant pain four months after the injury.

3

In a report dated April 28, 2007, the Office medical adviser noted that drowsiness can be
a reaction to the medication appellant was taking. He stated that appellant should not be driving
while taking this medication and “he should not be in any safety sensitive positions.” The Office
medical adviser noted that he could not “speak to the level of pain” appellant was having as this
varied from person to person. As to the use of pain medication, the Office medical adviser
recommended contacting appellant’s current physician, Dr. Trumble, with the Office’s concerns.
By decision dated May 8, 2007, the Office denied appellant’s claim for continuation of
pay/compensation for disability for the period December 15, 2006 through January 19, 2007. It
found that light-duty work was available at the employing establishment during this period and
that the medical evidence did not establish that she was totally disabled for work.
On August 6, 2007 the Office received appellant’s request for reconsideration dated
May 8, 2007.1
On August 7, 2007 the Office received a July 11, 2007 report by Dr. Trumble and
Mr. Moloney. With respect to appellant’s disability during the period December 18, 2006 to his
surgery in May 2007, he noted that “[i]t was imperative that the patient was off during that time,
as he was unable to use his right upper extremity and was requiring a significant amount of
narcotic medications for pain.” Dr. Trumble opined that the pain medication also precluded
appellant from performing any light-duty work.
By decision dated October 31, 2007, the Office denied appellant’s request for
modification of the denial of his claim for continuation of pay and wage-loss compensation for
the period December 19, 2006 through January 19, 2007.2 The Office also determined that
appellant was not entitled to continuation of pay for the period October 31 to December 14,
2006, which effectively rescinded acceptance of this period.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Compensation Act the term “disability” means incapacity,
because of an employment injury, to earn the wages that the employee was receiving at the time
of injury.3 Disability is, thus, not synonymous with physical impairment which may or may not
result in an incapacity to earn wages.4 An employee who has a physical impairment causally
related to his federal employment, but who nonetheless has the capacity to earn the wages he was
receiving at the time of injury, has no disability and is not entitled to compensation for loss of
wage-earning capacity.5 When, however, the medical evidence establishes that the residuals or
1

The attached envelope was postmarked August 1, 2007.

2

The Office noted that appellant’s claim for compensation for time lost during January 22 to April 27, 2007
would be addressed separately.
3

S.M., 58 ECAB ___ (Docket No. 06-536, issued November 24, 2006); Bobbie F. Cowart, 55 ECAB 746 (2004);
Conard Hightower, 54 ECAB 796 ( 2003); 20 C.F.R. § 10.5(f).
4

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

5

Merle J. Marceau, 53 ECAB 197 (2001).

4

sequelae of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in his employment, he is entitled to compensation for any loss of
wages.
To meet this burden, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factor(s).6 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.8
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained closed fracture of the right upper end ulna
and radius on October 23, 2006 in the performance of duty. On January 9, 2007 appellant filed
claims for compensation for the period December 15, 2006 through January 19, 2007. On
April 25, 2007 the Office requested an opinion from the Office medical adviser of whether
appellant’s pain and narcotic pain medication would preclude him from working. In a report
dated April 28, 2007, the Office medical adviser noted that drowsiness can be a reaction to the
medication appellant was taking. He stated that appellant should not be driving while taking this
medication and “he should not be in any safety sensitive positions.” As to appellant’s pain, level
he noted that pain levels varied from person to person.
It is well established that proceedings under the Act9 are not adversarial in nature.10
While appellant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.11 It has an obligation to see that justice is
done.12 In this case, the Office requested that the Office medical adviser answer a question as to
whether appellant’s pain medication would impact his ability to work and whether appellant’s
6

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).

7

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

8

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

5 U.S.C. §§ 8101-8193.

10

Rebecca O. Bolte, 57 ECAB 687 (2006); John J. Carlone, 41 ECAB 354 (1989).

11

Phillip L. Barnes, 55 ECAB 426 (2004); Dorothy L. Sidwell, 36 ECAB 699 (1989).

12

R.E., 59 ECAB ___ (Docket No. 07-1604, issued January 17, 2008); Donald R. Gervasi, 57 ECAB 281 (2005).

5

complaints of pain were normal. The Office medical adviser noted that pain levels varied from
person to person and that appellant should not be driving while using the medication he was
prescribed and did not directly address that portion of the Office’s inquiry regarding appellant’s
ability to work. As the Office undertook development of the medical evidence by questioning
the Office medical adviser regarding appellant’s pain and the impact of the medication he took,
issue, it should have secured an answer to its question or referred appellant for a second opinion
evaluation.13 It denied appellant’s claim even though the Office medical adviser did not respond
to the critical question posed by the Office. Moreover, the response provided is supportive of
appellant’s position that he was unable to work due to his medication. The case will be
remanded to the Office for appropriate development, including a medical opinion which
addresses the issue of disability. The Office shall then issue an appropriate decision in the case.
As the case must be remanded for further development on the issue of whether appellant
was disabled from work due to his pain and pain medication, the Board finds that the second
issue as to whether the Office properly rescinded acceptance of total disability for the period
October 31 to December 14, 2006 is moot.
CONCLUSION
The Board finds that the case is not in posture for a decision. The case will be remanded
for further development as to whether appellant was totally disabled from the light-duty job due
to his pain and the pain medication he was taking.

13

Peter C. Belking, 56 ECAB 580 (2005). (Once the Office has begun an investigation of a claim, it must pursue
the evidence as far as reasonably possible. The Office has an obligation to see that justice is done).

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ORDER
IT IS HEREBY ORDERED THAT the October 31, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with the above opinion.
Issued: August 5, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.C., Appellant
and
U.S. POSTAL SERVICE, SOUTH BERKLEY
STATION, Berkley, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1000
Issued: September 10, 2014

Case Submitted on the Record

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

JURISDICTION
On March 20, 2014 appellant filed a timely appeal from an October 16, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Because more than 180 days elapsed between the last merit decision dated
March 20, 2013 to the filing of this appeal and pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contended that she sustained an employment injury on
September 11, 2012 which aggravated a preexisting condition and caused a right knee traumatic
injury.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 11, 2012 appellant, then a 46-year-old lead sales associate, filed a
traumatic injury claim alleging that on that date she injured her right knee due to standing on an
uneven floor and mat for long periods of time.
In a September 26, 2012 letter, OWCP advised that additional information was required
to support appellant’s claim. It noted that initially it appeared to be a minor injury, which
resulted in minimal or no lost work time and that the merits of the claim had not been
adjudicated. Appellant was advised as to the medical and factual evidence required to support
her claim. OWCP requested additional information on the circumstances of the injury and
clarification on whether she was filing an occupational or traumatic injury claim. It gave
appellant 30 days to provide this information.
In response appellant submitted reports from Dr. Alica Rucekova, a treating physician
Board-certified in preventive medicine and occupational medicine. In California State form
reports for occupational injury or illness, dated September 25 and October 4, 2012, Dr. Rucekova
indicated that appellant was seen for a September 11, 2012 injury. In a September 25, 2012
report, she described the mechanism of injury as an aggravation of right leg swelling which
began in May 2012. Diagnoses included right knee joint swelling and pain. In the October 4,
2012 report, Dr. Rucekova diagnosed peripheral vascular disease, swelling of the limb,
lymphedema and popliteal cyst. Appellant, in the October 4, 2012 report, stated that the injury
occurred due to excessive standing and working for hours at a time on an uneven floor. In both
form reports, Dr. Rucekova stated, “y[es]” to the question of whether the diagnosed condition
was consistent with appellant’s description of how the injury occurred.
In a September 25, 2012 industrial work status report, Dr. Rucekova diagnosed joint
swelling and knee joint pain. She noted an injury date of September 11, 2012 and indicated that
appellant was unable to work due to uncontrollable symptoms from September 25 to
October 3, 2012. In an October 5, 2012 industrial work status report, Dr. Rucekova diagnosed
peripheral vascular disease, limb swelling, lymphedema and popliteal cyst, noting an injury date
of April 11, 2012 and that appellant was able to perform modified work for six hours per day for
the period October 5 to 26, 2012. In progress reports dated October 5, 9 and 26, 2012, she stated
that appellant was seen for left lower leg problems and increasing pain and swelling in her right
medial knee. Dr. Rucekova provided physical findings on examination and diagnosed peripheral
vascular disease, swelling of the limb, lymphedema and popliteal cyst. She indicated that
appellant was capable of working up to six hours with restrictions.
By decision dated November 7, 2012, OWCP denied appellant’s claim on the grounds
that the incident did not occur as alleged. It found that she failed to provide information
clarifying the mechanism of injury.
On November 15, 2012 appellant requested review of the written record by an OWCP
hearing representative. She attached a copy of her response to the questions posed by OWCP.
Appellant stated that the injury occurred when she backed up and then turned to put a parcel in
the hamper. While trying to avoid the damaged floor and mats, she twisted her right ankle and
leg.

2

In a November 13, 2012 progress note, Dr. Rucekova provided physical examination
finding and diagnoses of peripheral vascular disease, swelling of the limb, lymphedema and
popliteal cyst. She released appellant to full-duty work as of November 13, 2012.
On January 2, 2013 OWCP received additional October 1 and 9, 2012 industrial work
status form reports from Dr. Rucekova. In the October 1, 2012 form report, Dr. Rucekova noted
an injury date of September 11, 2012 and diagnosed limb swelling. She indicated that appellant
was disabled from working from October 1 to 3, 2012 and placed her on modified work for
October 4 to 19, 2012. On the October 9, 2012 form report, Dr. Rucekova diagnosed peripheral
vascular disease, swelling of the limb, lymphedema and popliteal cyst and reported an injury date
of September 11, 2012. She placed appellant off work from October 9 to 11, 2012 and released
her to return to modified work for the period October 12 to 26, 2012.
A February 6, 2013 magnetic resonance imaging (MRI) scan noted a September 2012
knee injury. Under impression, it noted findings of multidirectional junction body tear and
posterior medial horn mensicus; degenerative posterior horn and body tearing; moderate to highgrade focal chondral loss central to weightbearing medial femoral condyle surface; anterior
cruciate ligament cystic mucinous degeneration; and moderate grade chondral degeneration
medial trochlear facet inferiorly.
In a March 5, 2013 report, Dr. Laure Marie Bradford Lee, a treating Board-certified
internist, related that appellant sustained a twisting injury at work on September 11, 2012. She
stated that there appeared to be some confusion regarding the knee and ankle swelling and pain
from the September 11, 2012 incident and appellant’s preexisting leg swelling condition. A
review of a February 6, 2013 MRI scan revealed a mensical tear. A January 15, 2013 evaluation
and review of a prior x-ray interpretation revealed an internal knee injury.
By decision dated March 20, 2013, the hearing representative affirmed the denial of
appellant’s claim. He found that due to inconsistencies in the evidence and the lack of a clear
statement from her that the evidence was insufficient to establish that the September 11, 2012
incident occurred as alleged.
In a July 15, 2013 report, Dr. Michael E. Hebrard, a treating Board-certified physiatrist,
diagnosed right knee internal derangement, bilateral sciatica, lower extremity edema, right ankle
sprain and peripheral vascular disease, which were aggravated by appellant’s employment.
Appellant related twisting her leg as the result of lifting a package off the scale to put into a
hamper and that she informed her supervisor. She related the history of treatment and current
illness. Dr. Hebrard provided physical findings from his examination. Under assessment, he
opined that the diagnosed conditions were employment related. Dr. Hebrard stated that
appellant’s injury was consistent with repetitive squatting, standing for extending periods of time
and twisting of knee with the foot in a stationary position.
On August 30, 2013 OWCP received a February 11, 2013 report from Dr. Wendell Darby
Ferguson, a treating Board-certified orthopedic surgeon, reported that appellant was seen for a
right ankle and knee work injury sustained in September 2012. The injury occurred when
appellant twisted her ankle on a floor irregularity. At the time of the incident, she noted that a
swollen ankle with knee pain occurring that evening. Dr. Ferguson provided physical findings

3

and opined that it appeared to be a right knee work injury as there was no evidence of a
preexisting knee condition. He diagnosed some medial femoral condyle chondromalacia and
medial meniscus tear.
In an August 29, 2013 report, Dr. Hebrard indicated that appellant was seen for right
ankle and knee pain. Diagnoses included knee internal derangement, sciatica, edema, ankle
strain and peripheral vascular disease. Lastly, Dr. Hebrard stated that as a result of appellant’s
decreased mobility which was secondary to right knee and ankle weakness and instability that
she developed a stage two ulcer on her right leg.
On September 23, 2013 appellant’s counsel requested reconsideration and argued that
Dr. Ferguson’s report was new evidence sufficient to warrant merit review. Counsel also argued
that the September 11, 2012 incident aggravated a preexisting condition and was compensable
under FECA.
By decision dated October 16, 2013, OWCP denied reconsideration. It found that
appellant failed to provide any factual evidence addressing the inconsistencies in her description
as to how the injury occurred.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA2
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) submit relevant and pertinent new evidence not previously
considered by OWCP.3 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.5
ANALYSIS
In a November 7, 2012 decision, OWCP denied appellant’s claim on the grounds that the
evidence was insufficient to establish that the September 11, 2012 incident occurred as alleged.
On March 20, 2013 an OWCP hearing representative affirmed the November 7, 2012 decision
finding that she did not establish that the alleged incident occurred at the time, place and in the
2

Id. Section 8128(a) of FECA provides that the Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.
3

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
4

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

5

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

4

manner alleged due to inconsistencies. Appellant disagreed with the denial of her claim and
requested reconsideration on September 23, 2013.
The Board finds that appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant did not advance a relevant legal
argument not previously considered. In the September 23, 2013 request for reconsideration,
counsel alleged that Dr. Ferguson’s medical report warranted a merit review as it constituted
pertinent new and relevant evidence not previously considered by OWCP. He further contended
that medical reports were sufficient to establish that appellant sustained a work-related injury and
aggravation of a preexisting condition. These arguments are not new and are repetitious of
evidence already of record and considered by OWCP and, therefore, cumulative in nature.
Arguments which repeat or duplicate arguments already in the case record do not constitute a
basis for reopening a case for a merit review.6
With respect to the third requirement, the Board finds that the evidence submitted is not
relevant to the underlying reason for the denial of the claims by OWCP, that the factual evidence
of record did not establish that the September 11, 2012 incident occurred as alleged due to
factual inconsistencies in the record. While Dr. Ferguson reports that appellant sustained an
injury in September 2012 due to twisting her ankle on a floor irregularity, he does not indicate
the exact date of the incident. Moreover, on appellant’s traumatic injury claim she attributed her
condition to standing on an uneven mat and floor for a long period of time. Appellant also
submitted reports from Dr. Hebrard who, on the one hand, reported that she injured herself at
work while lifting a package off of a scale and later in the same report indicated that her injury
was consistent with repetitive squatting, standing for extended periods and twisting the knee.
However, as this evidence is not relevant to whether the September 11, 2012 incident occurred at
the time, place and in the manner as alleged, the reports from Drs. Hebrard and Ferguson are not
sufficient to warrant a new merit review.7
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her September 23, 2013 request for reconsideration.8
On appeal, appellant argues that the evidence is sufficient to support her claim and
provides a description of the September 11, 2012 incident. As noted above, she failed to provide
a statement clarifying the inconsistencies regarding the alleged incident when requested by
OWCP.

6

See A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Betty A. Butler, 56 ECAB
545 (2005).
7

See Freddie Mosley, 54 ECAB 255 (2002) (evidence that does not address the particular issue involved does not
warrant reopening a case for merit review).
8

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits); Robert E. Cullison, 55 ECAB 570 (2004).

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 16, 2013 is affirmed.
Issued: September 10, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6