United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carol Stream, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1332
Issued: January 7, 2011

Case Submitted on the Record

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

JURISDICTION
On April 16, 2010 appellant filed a timely appeal of the March 22, 2010 decision of the
Office of Workers’ Compensation Programs denying her request for reconsideration of a
November 7, 2005 merit decision. Because more than one year has elapsed from the last merit
decision to the filing of this appeal, the Board lacks jurisdiction to review the merits of his case
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that her request was untimely filed and failed to establish clear evidence of error.

1

For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to
the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On August 10, 2004 appellant, then a 37-year-old mail processor, filed a claim for an
occupational disease. She alleged that she developed a lower back condition due to repetitive
lifting, bending, pushing and pulling activities at work.
By decisions dated November 19, 2004 and November 7, 2005, the Office denied
appellant’s claim on the grounds that the medical evidence was insufficient to establish that her
back condition was causally related to her federal employment.2
On September 8, 2009 appellant, through her attorney, stated that a Dr. Montella had
requested reconsideration on her behalf by letter dated March 5, 2008.3 In a May 27, 2009
report, Dr. Bruce J. Montella, an orthopedic surgeon, provided a history that appellant had
ongoing back problems caused by her job that were consistent with lumbar disc herniation and
radiculitis, confirmed by a magnetic resonance imaging scan and electromyography.
On January 11, 2010 appellant submitted a copy of an undated letter from Dr. Nancy
Gryniewicz. She alleged that the original letter was sent to the Office on November 28, 2005
and was received by the Office on December 1, 2005.4 In this letter, Dr. Gryniewicz stated that
appellant’s back condition was caused by an incident when she lifted a tray of mail and
experienced back pain. She asked the Office to reexamine the case.
By decision dated March 22, 2010, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of error
in the last merit decision dated November 7, 2005.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of the
Office decision for which review is sought. The Office will consider an untimely application
only if the application demonstrates clear evidence on the part of the Office in its most recent
merit decision. The application must establish, on its face, that such decision was erroneous.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue which
was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.6
2

Appellant has a separate claim accepted for a herniated cervical disc under OWCP File No. xxxxxx872. The
cases were not combined.
3

There is no March 5, 2008 letter from Dr. Montella of record.

4

The case record does not contain a copy of the letter from Dr. Gryniewicz among the documents received by the
Office in 2005.
5

20 C.F.R. § 10.607.

6

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004).

2

ANALYSIS
The merits of appellant’s case are not before the Board. Her September 8, 2009 request
for reconsideration was submitted more than one year after the Office’s November 7, 2005 merit
decision and was not timely. The issue is whether appellant demonstrated clear evidence of error
in the Office’s November 7, 2005 decision denying her claim.
The November 7, 2005 decision denied appellant’s claim for a back injury. On
September 8, 2009 appellant requested reconsideration of the denial of her claim. In an undated
letter, Dr. Gryniewicz stated that appellant’s back condition was caused by an incident when she
lifted a tray of mail and experienced back pain. The history of a single incident causing a back
condition is not consistent with appellant’s underlying claim of a back condition caused by
repetitive job activities over a period of time. Dr. Gryniewicz did not provide any specific
diagnosis. She did not explain how appellant’s back condition was caused by specific work
activities. The report of Dr. Gryniewicz does not raise a substantial question as to the
correctness of the November 7, 2005 merit decision or establish clear evidence of error. The
Board has held that even a medical report which, if timely submitted, could cause a conflict in
medical opinion is insufficient to establish clear evidence of error.7
Appellant’s untimely request for reconsideration did not demonstrate clear evidence of
error in the November 7, 2005 merit decision. The Office properly denied her request for
reconsideration.
On appeal, appellant contends that in 2005 Dr. Gryniewicz timely submitted a request for
reconsideration of the November 7, 2005 decision on her behalf. As noted, the physician’s letter
is not of record until February 23, 2010.
The Office properly denied her untimely
reconsideration request in its March 22, 2010 decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely and failed to demonstrate clear evidence of error in the
November 7, 2005 merit decision.

7

D.G., 59 ECAB 455, 460 (2008).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 22, 2010 is affirmed.
Issued: January 7, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ROBLEY REX VA MEDICAL CENTER,
Louisville, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0602
Issued: March 10, 2022

Case Submitted on the Record

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

JURISDICTION
On March 9, 2021 appellant, through counsel, filed a timely appeal from a February 17,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted January 30, 2019 employment incident.
FACTUAL HISTORY
On October 29, 2019 appellant, then a 51-year-old health technician, filed a traumatic
injury claim (Form CA-1) alleging that on January 30, 2019 she sustained an injury to the left side
of her hip and lower back when she fell on a wet floor after exiting an elevator to walk to her
assigned clinic while in the performance of duty. She stopped work on February 1, 2019 and
returned to work on February 12, 2019. The employing establishment contended that appellant
was not injured in the performance of duty as she was en route to her workplace location, but had
not yet reported for duty.
In a development letter dated November 6, 2019, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence needed and
provided a questionnaire for her completion. By separate development letter of even date, OWCP
requested additional information from the employing establishment regarding the circumstances
of appellant’s claimed injury. It afforded both parties 30 days to respond.
OWCP subsequently received an emergency department report dated January 30, 2019,
wherein a physician assistant diagnosed right knee contusion with possible right knee strain and
right quadriceps strain.
A magnetic resonance imaging (MRI) scan of the left hip obtained on September 4, 2019
demonstrated no internal derangement of the hips, avascular necrosis, or fracture; bilateral gluteal
tendon pathology, worse on the left, where there is gluteus minimus tear/detachment and mo derate
peritendinous inflammation with adjacent peritrochanteric fluid; and minimal inferior sacroiliac
joint subarticular marrow edema without effusion or erosion, likely arthritic. An MRI scan of the
lumbar spine obtained on the same date demonstrated multilevel degenerative disc disease and
facet arthropathy with no significant change from a previous scan obtained on May 28, 2019. An
MRI scan of the pelvis obtained on October 8, 2019 demonstrated: mild left and minimal right
anterior inferior sacroiliac joint subarticular marrow edema, predominating on the sacral side
anteriorly on the left with minimal anterior spurring; intact subchondral bone plats; no evidence of
definitive erosive arthropathy; no effusion or periarticular inflammation; suspected m inimal
subarticular sclerosis; possible osteoarthrosis with stress-related marrow change favored over a
primary inflammatory or crystal arthritis; no change in end plate marrow edema at L4 -5 and
bilateral L4-5 facet arthrosis with a moderate inflammatory component; and no change in the
pelvis and hips compared to an MRI scan obtained in September 2019.
In an October 10, 2019 report, Dr. Gary Reasor, Board-certified in anesthesiology and pain
medicine, examined appellant for complaints of low back pain, beginning seven months prior.
Appellant also told Dr. Reasor that the pain was a result of an incident at work on January 30, 2019
when she slipped and fell on her left hip due to water on the floor, and that the pain became much
worse in March and April. Dr. Reasor noted past medical history including back pain, sciatica,
degenerative disc disease, and kidney stones. He related appellant’s physical examination findings

2

and diagnosed lumbar spondylosis without myelopathy or radiculopathy, lumbosacral
intervertebral disc degeneration, and low back pain. In an accompanying note of the same date,
Dr. Reasor recommended work restrictions of no standing for more than 15 minutes and no
repetitive bending or twisting of the waist.
In a letter dated October 25, 2019, Dr. Reasor noted that appellant had been seen on
October 10, 2019 on referral from her rheumatology office for severe back pain. Appellant told
Dr. Reasor that she was injured at work on January 30, 2019 when she entered the employing
establishment and slipped on a wet floor, landing on the left hip. She continued to have significant
back pain after the fall and was markedly increased after she was asked to participate in
cardiopulmonary resuscitation (CPR) training. Dr. Reasor reviewed his physical findings on
examination and MRI scan results. He opined that appellant developed significant low back pain
attributable to injury of her left sacroiliac joint as well as inflammation of the left lower lumbar
facet joints, directly related and caused by her fall at work as the history and mechanism of injury
matched her findings on examination.
In a note dated November 15, 2019, Dr. Reasor recommended work restrictions of no
lifting, bending, standing, or squatting for more than 15 minutes. In a note dated November 20,
2019, he recommended that appellant be excused from work from November 11 through 22, 2019.
On November 27, 2019 the employing establishment controverted appellant’s claim,
contending that a medical condition had not been diagnosed resulting from the claimed injury on
January 30, 2019 and that the medical evidence of record did not establish a causal relationship
between any diagnosed condition and the claimed January 30, 2019 injury.
In a letter dated December 7, 2019, Dr. Reasor diagnosed lumbar spondylosis with pain
derived from the lumbar facet joints. He opined that appellant was injured on January 30, 2019
and that the mechanism of injury was a slip and fall on a wet floor as she entered the workplace.
Dr. Reasor noted that appellant struck the floor on her left hip and has had back and hip pain since
that time. His physical examination revealed tenderness over the lumbar spine and he noted that
further examination of the lumbar facets demonstrated concordance between the facets and her
complaints of pain. Dr. Reasor stated that an MRI scan study demonstrated hypertrophy of the
lumbar facets and opined that without question, the lumbar facets were injured as a result of the
fall. He opined to a high degree of medical certainty that there was a direct cause and effect
relationship between appellant’s fall and her current back and hip pain.
By decision dated December 16, 2019, OWCP denied appellant’s claim, finding that the
factual evidence of record was insufficient to establish that the January 30, 2019 employment
incident occurred, as alleged. It noted that she had not provided a clear description of the events
supporting an injury at work on January 30, 2019. OWCP concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
On December 30, 2019 appellant requested reconsideration.
By decision dated February 27, 2020, OWCP reviewed the merits of appellant’s claim and
found that the medical evidence of record was sufficient to establish that the January 30, 2019
incident occurred as alleged; however, the claim remained denied as the medical evidence of

3

record was insufficient to establish causal relationship between her diagnosed lumbar spondylosis
and the accepted employment incident.
On July 1, 2020 appellant, through counsel, requested reconsideration. Submitted with the
request was a letter from Dr. Reasor dated June 7, 2020. Dr. Reasor explained that appellant was
referred on October 10, 2019 from an advanced practice registered nurse (APRN) who saw
appellant for widespread osteoarthritis and was asked to evaluate appellant’s complaints of left
back, buttock, and leg pain. Appellant recounted that she fell at work on January 30, 2019 when
she slipped on a wet floor, causing her to fall and land on her left hip. Over the course of the next
two to three months her pain worsened, particularly when she underwent mandatory CPR training.
Dr. Reasor reviewed his physical findings on examination and MRI scan findings. He diagnosed
lumbar spondylosis without myelopathy, lumbosacral intervertebral disc degeneration, and low
back pain. Dr. Reasor described administering the lumbar medial branch nerve blocks bilaterally
at L3, L4, and L5 on November 15, 2019 and January 24, 2020. He noted that to his knowledge,
there were no imaging studies of the lumbar spine or hip antedating the January 30, 2019 fall; but,
opined that taking that into account, it remained his medical opinion to a high degree of certainty
that her fall was the cause of her continued back pain. Dr. Reasor explained that assuming
appellant developed lumbar facet arthropathy before the fall in which she slipped on a wet floor
and landed on her left hip, it would have caused, at a minimum, an aggravation of underlying facet
arthropathy. He further noted that it was unknown if she had an annular tear of the L5 -S1 disc,
but that the fall “could have easily been the cause of the annular tear in an already-desiccated disc.”
Dr. Reasor stated that the fall on the left hip, wherein appellant landed on her left buttock, was
“the most likely cause of the torn or detached left gluteus minimus tendon. The mechanism of
injury, in my opinion, is clear to see.”
In a report dated May 6, 2019, an APRN, Sheena Steele, diagnosed cervical radiculopathy,
thoracic and low back pain. An MRI scan of appellant’s lumbar spine obtained on May 28, 2019
demonstrated a small central annular tear posterior disc margin at L5-S1 that could be a source of
back pain, but with no evidence of nerve root impingement, bilateral L4-5 facet arthropathy, and
mild inflammation/edema surrounding the L4-5 facet joints that may indicate an active process.
In a report dated May 30, 2019, Ms. Steele diagnosed thoracic spine and low back pain,
cervical radiculopathy, and unspecified joint pain.
An MRI scan of appellant’s thoracic spine obtained on June 5, 2019 demonstrated: a mild
chronic compression fracture of T11, healed with mild deformity; normal thoracic cord signal
intensity, no pathologic cord enhancement, no thoracic canal stenosis, and no significant foraminal
impingement; and thoracic degenerative changes.
In a report dated June 7, 2019, Lori Weiss, an APRN, diagnosed thoracic and low back
pain, cervical radiculopathy, and current long-term use of an opiate analgesic. In a report dated
August 15, 2019, she diagnosed thoracic spine, left hip, and low back pain, cervical radiculopathy,
and long-term current use of an opiate analgesic. Appellant told the nurse that while completing
a CPR class recently, she experienced increased pain to her back and reinjured her alread y-chronic
symptoms from earlier in 2019.

4

Additional reports received from Dr. Reasor indicated that on November 15, 2019 he
performed a medial branch nerve block at L3, L4, and L5 for treatment of diagnosed lumbar
spondylosis without radiculopathy.
In a report dated December 3, 2019, Dr. Reasor followed up with appellant after her
November 15, 2019 procedure. He opined that her pain was facet-related and due to her fall. On
physical examination, Dr. Reasor observed pain with palpation of the lumbar spine with bilateral
tenderness over the lumbar facets and pain on extension. He diagnosed lumbar spondylosis
without myelopathy or radiculopathy, low back pain, and lumbosacral intervertebral disc
degeneration.
On January 24, 2020 Dr. Reasor performed another medial branch nerve block at L3, L4,
and L5 bilaterally for treatment of diagnosed lumbar spondylosis without radiculopathy. He noted
post-procedure pain reduction of 100 percent.
In a report dated February 14, 2020, Dr. Reasor followed up with appellant after her
January 24, 2020 medial branch nerve block at L3, L4, and L5. He noted post-procedure relief of
eighty percent for several hours. Appellant advised Dr. Reasor that her pain remained at 8 out of
10 at this follow-up examination. On physical examination of the lumbar spine, Dr. Reasor
observed pain with palpation of the midline and bilateral facets and pain on flexion and extension.
He diagnosed lumbar spondylosis without myelopathy or radiculopathy, lumbosacral
intervertebral disc degeneration, and low back pain.
In a report dated March 5, 2020, Dr. Reasor examined appellant for low back, buttocks,
and left lower extremity pain with tingling. He noted that the pain began seven months prior and
that it was a result of a work-related incident. Dr. Reasor observed that appellant had an antalgic
gait. On physical examination of the lumbar spine, he observed pain with palpation, marked
tenderness of the left facets, decreased range of motion, and pain on flexion, e xtension, lateral
movement, and rotation. On examination of the thoracic spine, Dr. Reasor observed pain with
palpation, marked tenderness of the left facets, and pain on rotation. He diagnosed thoracic spine
pain, lumbar spondylosis without myelopathy or radiculopathy, lumbosacral intervertebral disc
degeneration, and low back pain.
By decision dated February 17, 2021, OWCP denied modification.3
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
3

The February 17, 2021 decision was a reissuance of a decision dated September 29, 2020, wherein OWCP
reviewed the merits of appellant’s claim and denied modification of the February 27, 2020 decision. A copy of this
decision was not mailed to appellant’s counsel of record. On October 8, 2020 the employing establishment requested
that a copy of the September 29, 2020 decision be mailed to appellant’s counsel of record, as it had not yet been
annotated as being forwarded to counsel. In a letter dated October 15, 2020, counsel requested an update as to the
request for reconsideration in appellant’s case.
4

Id.

5

States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
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. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted January 30, 2019 employment incident.
In his October 25, 2019 report, Dr. Reasor opined that appellant developed significant low
back pain attributable to injury of her left sacroiliac joint as well as inflammation of the left lower
lumbar facet joints. He opined that her condition was directly related and caused by her fall at
work, as the history and mechanism of injury matched her findings on examination. In his
December 3, and 7, 2019 reports, Dr. Reasor opined that appellant was injured on January 30,
2019 and that the mechanism of injury was a slip and fall on a wet floor as she entered the
5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

workplace. He opined that without question, the lumbar facets were injured as a result of the fall.
Dr. Reasor further opined to a high degree of medical certainty that there was a direct cause and
effect relationship between appellant’s fall and her current back pain. In the June 7, 2020 report,
he opined that it remained his medical opinion to a high degree of certainty that her fall was the
cause of her continued back pain. Dr. Reasor explained that assuming appellant developed lumbar
facet arthropathy before the fall in which she slipped on a wet floor and landed on her left hip, it
would have caused, at a minimum, an aggravation of underlying facet arthropathy . He further
noted that it was unknown if she had an annular tear of the L5-S1 disc, but that the fall could have
easily caused the tear in an already-desiccated disc. The Board has found that in any case where
a preexisting condition involving the same part of the body is present and the issue of causal
relationship therefore involves aggravation, acceleration, or precipitation, the physician must
provide a rationalized medical opinion that differentiates between the effects of the work-related
injury or disease and the preexisting condition.11 While Dr. Reasor noted appellant’s past medical
history including back pain, sciatica, and degenerative disc disease. He did not specifically
differentiate between appellant’s preexisting condition(s) and the effects of the January 30, 2019
employment incident. These reports were therefore insufficient to establish causal relationship
between the diagnosed lumbar conditions and the accepted January 30, 2019 employment incident.
Regarding appellant’s left hip condition, Dr. Reasor stated that the fall on the left hip,
wherein appellant landed on her left buttock, was “the most likely cause” of her torn or detached
left gluteus minimus tendon. He opined that the mechanism of injury was clear to see. The June 7,
2020 report is insufficient to establish appellant’s claim as Dr. Reasor couched his conclusions
that the fall “could have easily been” the cause of an annular disc tear and that her detached left
gluteus minimus tendon was “most likely” caused by the fall in equivocal terms. The Board has
held that while the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, it must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty. 12 The Board also notes that
Dr. Reasor did not discuss the apparent inconsistency between his account of appellant’s fall onto
her left side on January 30, 2019 and the emergency department report of January 30, 2019, in
which the fall was described involving her left leg extending to the front falling hard on her right
knee and upper front right thigh. Medical opinions based on an incomplete or inaccurate history
are of diminished probative value.13 Without a discussion of the apparent inconsistency between
his account of appellant’s fall onto the left side and the January 30, 2019 emergency department
report’s account of a fall onto the right knee and right thigh, Dr. Reasor’s opinions are therefore
insufficiently rationalized to establish appellant’s claim.
Appellant submitted additional reports and notes dated October 10, November 15,
November 20, and December 7, 2019; and January 24, February 14, and March 5, 2020 from
Dr. Reasor. These reports and notes did not offer a medical opinion regarding the cause of
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
L.C., supra note 6; R.D., Docket No. 18-1551 (issued March 1, 2019).
12

L.S., Docket No. 18-1494 (issued April 12, 2019); Ricky S. Storms, 52 ECAB 349 (2001).

13

See D.B., Docket No. 19-0663 (issued August 27, 2020); D.W., Docket No. 18-0123 (issued October 4, 2018);
L.G., Docket No. 09-1692 (issued August 11, 2010).

7

appellant’s diagnosed conditions. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 14 Therefore these reports are insufficient to establish appellant’s claim.15
Appellant also submitted a report dated January 30, 2019 from a physician assistant and
reports dated May 6, May 30, June 7, and August 15, 2019 from APR nurses. However, certain
healthcare providers such as physician assistants, nurse practitioners, and physical therapists are
not considered physicians as def ined under FECA. 16 Consequently, these reports will not suffice
for purposes of establishing entitlement to FECA benefits. 17
The remaining evidence consists of diagnostic reports dated May 28, June 5, September 4,
and October 8, 2019. The Board has held that diagnostic tests, standing alone, lack probative value
on the issue of causal relationship as they do not provide an opinion on the relationship between
the employment incident and a claimant’s diagnosed condition. 18
As appellant has not submitted rationalized medical evidence establishing that her
diagnosed medical conditions were causally related to the accepted employment incident of
January 30, 2019, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden proof to establish a medical condition
causally related to the accepted January 30, 2019 employment incident.

14

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
15

S.W., Docket No. 19-1579 (issued October 9, 2020); see L.B., id.; D.K., id.

Section 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law,”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket
No. 19-0221 (issued July 15, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (finding that lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA).
16

17

See M.C., Docket No. 19-1074 (issued June 12, 2020) (nurse practitioners are not considered physicians under
FECA); R.K., Docket No. 20-0049 (issued April 10, 2020) (physician assistants are not considered physicians under
FECA).
18

See C.F., Docket No. 18-1156 (issued January 22, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009).

8

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2022
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.Z., Appellant
and
U.S. POSTAL SERVICE, UNIVERSITY PARK
STATION, San Antonio, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1074
Issued: September 29, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 7, 2014 appellant, through his attorney, filed a timely appeal from a
February 6, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his request for a hearing and a March 3, 2014 merit decision terminating his
compensation for refusing suitable work. 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 and over the February 6, 2014 nonmerit decision.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s January 8, 2014 request
for an oral hearing under 5 U.S.C. § 8124 as it was made after he had received a review of the
written record; and (2) whether it properly terminated his compensation effective
January 17, 2013 on the grounds that he refused an offer of suitable work under
5 U.S.C. § 8106(c).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 24, 2008 appellant, then a 56-year-old city letter carrier, filed a traumatic
injury claim alleging that on October 21, 2008 he sustained slipped discs in his neck causally
related to factors of his federal employment. He stopped work on October 24, 2008. OWCP
accepted appellant’s claim for degeneration of a cervical intervertebral disc.2 It paid him
compensation for total disability beginning December 1, 2008. On February 5, 2010 appellant
underwent an anterior cervical discectomy at C3-4 and C4-5.
In a progress report dated August 24, 2010, Dr. Michael P. Barker, a Board-certified
physiatrist, diagnosed spinal stenosis at C3-4 and C4-5 following anterior discectomies and
fusions at C3 through C5. He released appellant to return to work with restrictions on
September 7, 2010. In a work restriction evaluation dated August 24, 2010, Dr. Barker found
that appellant could work eight hours per day with no overhead reaching. He further determined
that appellant could push, pull and lift no more than 15 pounds for eight hours per day.
On August 10, 2011 OWCP referred appellant for vocational rehabilitation.
Appellant had a previously accepted March 2003 occupational disease claim, assigned
file number xxxxxx500, for a ganglion cyst of the left wrist, bilateral carpal tunnel syndrome and
a bilateral ulnar nerve lesion. In a work restriction evaluation dated March 16, 2012,
Dr. Miguel J. Saldana, a Board-certified surgeon, released appellant to resume his usual work
without restrictions under file number xxxxxx500.
In a work restriction evaluation dated June 7, 2012, Dr. Barker again found that appellant
could work full time with restrictions on lifting, pushing and pulling up to 15 pounds for eight
hours per day and avoiding reaching over the shoulder.
By letter dated November 16, 2012, OWCP advised appellant that it proposed to reduce
his compensation based on its finding that he had the capacity to work in the selected position of
procurement clerk.
On November 20, 2012 the employing establishment provided OWCP with a copy of a
November 14, 2012 job offer. The position was available November 19, 2012 and the hours
were from 7:30 a.m. to 4:00 p.m.3 The duties of the position consisted of casing mail two to
three hours per day and carrying an assigned route for five to six hours per day. The physical
requirements entailed loading level trays weighing no more than 15 pounds, loading, pushing
2

By decision dated December 12, 2008, OWCP denied appellant’s claim after finding that the medical evidence
was insufficient to show that he sustained a medical condition as a result of his work duties. On March 6, 2009 an
OWCP hearing representative set aside the December 12, 2008 decision and remanded the case for further
development of the medical evidence.
3

The cover letter with the offered position provided that the employing establishment had been “able to find two
hours of work within [appellant’s] restrictions.” The job offer, however, specifies that the position was full time and
provides work hours from 7:30 a.m. to 4:00 p.m. and work duties of eight hours per day. Consequently, the
indication in the cover letter that the employing establishment had a position for only two hours per day appears to
be a typographical error.

2

and pulling level hampers weighing no more than 15 pounds and loading a level satchel
weighing no more than 15 pounds.
By letter dated November 27, 2012, OWCP advised appellant that it had determined that
the November 14, 2012 position of a modified city letter carrier was suitable. It informed him
that the position remained available and allowed him 30 days to accept the offer or provide a
written explanation of his reason for not accepting the position. OWCP further notified appellant
that section 8106(c) provides that an employee who refuses an offer of suitable work without
reasonable cause is not entitled to compensation.
On December 5, 2012 appellant responded to OWCP’s November 16, 2012 notice of
proposed reduction of his compensation. He related that he had persistent wrist and neck pain.
Appellant asserted that on November 3, 2011 Dr. Saldana performed a ganglionectomy. He
requested that OWCP schedule him for an evaluation of his neck pain.
On December 28, 2012 OWCP notified appellant that his reasons for refusing the offered
position were not acceptable and provided him 15 days to accept the offered position or have his
compensation terminated. It informed him that it would not consider further reasons for refusal.
On January 7, 2013 appellant refused the November 2012 job offer due to neck and hand
pain. On January 16, 2013 the employing establishment confirmed that the offered position
remained available.
By decision dated January 17, 2013, OWCP terminated appellant’s compensation and
entitlement to a schedule award effective that date on the grounds that he refused an offer of
suitable work under section 8106(c).
On January 28, 2013 appellant requested a review of the written record. In a letter dated
January 26, 2013, he related that he had scheduled appointments with Dr. Barker and his primary
care physician for an evaluation of his continued symptoms. Appellant related that he went to
the employing establishment on January 7, 2013. He asserted that the position was the same as
the job he was performing before his injury with the exception of two hours of work. When
appellant told a manager that he could not perform the work with his current injuries, the
manager told him to leave. He continued to experience daily neck and bilateral hand and arm
pain.
By decision dated April 24, 2013, an OWCP hearing representative affirmed the
January 17, 2013 decision. He noted that appellant had been released to return to work with no
restrictions under file number xxxxxx500 and released to return to modified work under the
current file number. The hearing representative found that the evidence established that
appellant could perform the offered position as it was within Dr. Barker’s work restrictions.

3

In a report dated June 17, 2013, Dr. Donald P. Atkins, a Board-certified neurosurgeon,
diagnosed cervical disc degeneration and cervical postlaminectomy syndrome.4
A magnetic resonance imaging (MRI) scan study of the cervical spine, performed on
June 25, 2013, showed status post cervical fusion at C3 to C5, flattening of the spinal cord at C4,
a disc bulge at C5-6 without neural encroachment and a broad-based disc herniation at C6-7 with
abutment of the cervical spinal cord and compression of both C7 nerve roots.
In a report dated July 30, 2013, Dr. Stephen Dinger, an osteopath, diagnosed brachial
neuritis or radiculitis, chronic pain syndrome and cervical postlaminectomy syndrome. He noted
that appellant had sustained a neck injury when he fell while delivering mail. Dr. Dinger
indicated that he continued to work.
On January 8, 2014 appellant requested an oral hearing on the January 17, 2013 decision.
On January 9, 2014 counsel requested reconsideration.
By decision dated February 6, 2014, OWCP denied appellant’s request for an oral
hearing as he had previously received a review of the written record. It exercised its discretion
and considered his request but found that it could be adequately addressed through a
reconsideration request and the submission of evidence showing that the offered position was not
suitable.
In a decision dated March 3, 2014, OWCP denied modification of its April 24, 2013
decision. It found that appellant had not submitted evidence showing that he was unable to
perform the duties of the offered position.
LEGAL PRECEDENT -- ISSUE 1
Section 8124(b) of FECA provides that before review under section 8128(a) of this title,
a claimant for compensation “not satisfied with a decision of the Secretary ... is entitled, on
request made within 30 days after the date of issuance of the decision, to a hearing on his claim
before a representative of the Secretary.”5
Section 10.615 of the federal regulations implementing this section of FECA provides
that the claimant shall be afforded a choice of an oral hearing or a review of the written record.6
OWCP’s regulations provide that the request must be sent within 30 days of the date of the

4

On June 18, 2013 appellant requested a change of physicians to Dr. Helo Chen, who specializes in occupational
medicine. On June 27, 2013 OWCP authorized a change in physicians from Dr. Barker to Dr. Chen. In a letter
dated June 30, 2013, appellant related that he returned to work on May 9, 2013 but that his supervisor told him to
return home pending an evaluation by his attending physician. Dr. Chen found that appellant could return to work
with restriction on June 18, 2013, but he was told there was no work available.
5

5 U.S.C. § 8124(b)(1).

6

20 C.F.R. § 10.615.

4

decision for which a hearing is sought and also that the claimant must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision.7
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA, has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and OWCP must exercise this discretionary authority in deciding
whether to grant a hearing.8 This includes the situation where a claimant requests a second
hearing on an issue. There is no provision in FECA for more than one hearing on the same
issue.9 If a request for a second hearing is made, appellant is not entitled to a hearing as a matter
of right, but OWCP must exercise its discretion in determining whether to grant a hearing.10
ANALYSIS -- ISSUE 1
On January 8, 2014 appellant requested an oral hearing on the January 17, 2013 decision
terminating his compensation for refusal of suitable work. He had previously, however,
requested and received a review of the written record regarding the January 17, 2013 decision.
As appellant previously received a review of the written record, he is not entitled to an oral
hearing as a matter of right. There is no provision in FECA for more than one hearing on the
same issue.11
When a claimant has previously requested reconsideration or requests a second hearing
on the same issue, OWCP must exercise its discretionary authority to grant or deny the hearing
request. It considered the issue and found that it could be equally well addressed by submitting
new and relevant evidence with an application for reconsideration. The Board finds that OWCP
properly exercised its discretion and did not abuse its discretion in denying appellant’s hearing
request.12
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.13 Section 8106(c)(2) of FECA14 provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or
secured for the employee is not entitled to compensation.15 To justify termination of
7

Id. at § 10.616(a).

8

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

9

See R.F., Docket No. 13-892 (issued July 5, 2013); John S. Baldwin, 35 ECAB 1161 (1984).

10

Id.

11

Id.

12

See Lawrence C. Parr, 48 ECAB 445 (1997).

13

Linda D. Guerrero, 54 ECAB 556 (2003).

14

Supra note 1.

15

Id. at § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

5

compensation, OWCP must show that the work offered was suitable and must inform appellant
of the consequences of refusal to accept such employment.16 Section 8106(c) will be narrowly
construed as it serves as a penalty provision, which may bar an employee’s entitlement to
compensation based on a refusal to accept a suitable offer of employment.17
Section 10.517(a) of FECA’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee has
the burden of showing that such refusal or failure to work was reasonable or justified.18 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.19
Before compensation can be terminated, however, OWCP has the burden of
demonstrating that the employee can work, setting forth the specific restrictions, if any, on the
employee’s ability to work, establishing that a position has been offered within the employee’s
work restrictions and setting forth the specific job requirements of the position.20 In other words,
to justify termination of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision,
OWCP has the burden of showing that the work offered to and refused by appellant was
suitable.21
Once OWCP establishes that the work offered is suitable, the burden shifts to the
employee who refuses to work to show that the refusal or failure to work was reasonable or
justified.22 The determination of whether an employee is physically capable of performing a
modified assignment is a medical question that must be resolved by medical evidence.23 OWCP
procedures state that acceptable reasons for refusing an offered position include medical
evidence of inability to do the work.24
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained degeneration of a cervical intervertebral disc
due to an October 21, 2008 employment injury. On February 5, 2010 appellant underwent an
anterior cervical discectomy at C3-4 and C4-5. He also had an accepted 2003 occupational
16

Ronald M. Jones, 52 ECAB 190 (2000).

17

Joan F. Burke, 54 ECAB 406 (2003).

18

20 C.F.R. § 10.517(a); see supra note 16.

19

Id. at § 10.516.

20

See Linda Hilton, 52 ECAB 476 (2001).

21

Id.

22

20 C.F.R., supra note 18.

23

Gayle Harris, 52 ECAB 319 (2001).

24

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Job Offer Refusal,
Chapter 2.814.5a (July 2013).

6

disease claim for a ganglion cyst of the left wrist, bilateral carpal tunnel syndrome and a bilateral
ulnar nerve lesion under file number xxxxxx500.
On November 14, 2012 the employing establishment offered appellant a position as a
modified city letter carrier. The determination of whether an employee has the physical ability to
perform a modified position offered by the employing establishment is primarily a medical
question that must be resolved by the medical evidence.25 The weight of the evidence in this
case clearly establishes that appellant was capable of performing the modified position. OWCP
considered his restrictions in both the current file number and file number xxxxxx500.26 In a
March 16, 2012 work restriction evaluation, Dr. Saldana released appellant to return to work
with no restrictions under file number xxxxxx500. In a June 7, 2012 work restriction evaluation
relevant to the current file number, Dr. Barker found that appellant could return to work with
restrictions on lifting, pushing and pulling of 15 pounds for eight hours per day and no reaching
over the shoulder. The employing establishment’s job offer, which requires loading level trays,
hampers and satchels weighing no more than 15 pounds, is within the restrictions set forth by
Dr. Barker. The Board thus finds that the offered position was medically suitable.
The Board further finds that OWCP complied with its procedural requirements in
advising appellant that the position was suitable, providing him with the opportunity to accept
the position or provide reasons for his refusal and notifying him of the penalty provision of
section 8106(c).27 Appellant informed OWCP that he had continued pain in his wrist and neck.
He, however, did not submit any medical evidence supporting that he was unable to perform the
duties of the offered position. On December 28, 2012 OWCP advised appellant that his reasons
for refusing the position were not valid and provided him an additional 15 days to accept the
position. The Board finds that it properly followed its procedures in terminating compensation
under section 8106.
Subsequent to OWCP’s termination of his compensation, appellant submitted a
June 17, 2013 report from Dr. Atkins, who diagnosed cervical disc degeneration and cervical
postlaminecomy syndrome. On July 30, 2013 Dr. Dinger diagnosed brachial neuritis or
radiculitis, chronic pain syndrome and cervical postlaminectomy syndrome. Neither physician,
however, addressed whether appellant was disabled from the duties of the modified position and
as such their opinions are of little probative value.
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 and
20 C.F.R. §§ 10.605 through 10.607.

25

See Robert Dickinson, 46 ECAB 1002 (1995).

26

When evaluating the suitability of a particular position, OWCP must consider the employment-related
condition(s) and any preexisting and subsequently acquired medical conditions. See Gayle Harris, 52 ECAB
319 (2001).
27

See Bruce Sanborn, 49 ECAB 176 (1997).

7

CONCLUSION
The Board finds that OWCP properly denied appellant’s January 8, 2014 request for an
oral hearing under 5 U.S.C. § 8124 as it was made after he received a review of the written
record. The Board further finds that it properly terminated his compensation effective
January 17, 2013 on the grounds that he refused an offer of suitable work under section 8106(c).
ORDER
IT IS HEREBY ORDERED THAT the March 3 and February 6, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 29, 2014
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Auburn, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-736
Issued: September 3, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 14, 2008 appellant filed a timely appeal from the November 30, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied disability
compensation for a specific period. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant was disabled from April 19 to May 19, 2007 as a result of
her accepted employment injury.
FACTUAL HISTORY
On December 4, 2006 appellant, then a 44-year-old rural letter carrier, filed a claim for
compensation alleging that the pain in her shoulders, upper back and hands was a result of her
federal employment: “Pain started on a heavy mail day and would go away with Tylenol. At
first only hurt when I cased mail. Then became worse and I would have pain when I delivered
mail also. On 11-29-06 after two days of snow I was ordered to take all the mail and I have not

stopped hurting.” The Office accepted her claim for bilateral shoulder impingement syndrome.
Appellant received compensation for temporary total disability through April 18, 2007.
On April 18, 2007 Dr. Richard Martin, the attending orthopedic surgeon, reported that
appellant had very good range of right shoulder motion, near full compared to the left. He noted
that impingement signs were minimal and that rotator cuff strength was full with minimal
discomfort. Dr. Martin stated: “Impingement syndrome improving with physical therapy. At
this point, I would recommend a work conditioning and hopefully we can get her back to work
after one month of that. We will set that up for her and I will see her back in followup in one
month to see how she is doing.”
On the same day that it received Dr. Martin’s April 18, 2007 report, the Office also
received an April 20, 2007 report on a different patient, named Diane. About this patient he
stated: “Diane is now approximately two months out from her shoulder arthroscopy and
subacromial decompression. She is doing remarkably well. She has regained all of her motion
and she is working on her strength and endurance and is feeling very well and wants to return to
work.” Dr. Martin found full range of motion and negative impingement signs. He noted a lack
of endurance compared to the left “but otherwise, she has no pain or any other problems.”
Dr. Martin sent his patient Diane back to work full duty but limited her to eight hours a day:
“No overtime for the next month or so.” He advised her to continue doing her physical therapy
to improve her endurance.
On or about October 18, 2007 appellant filed a claim for disability from April 19 to
May 19, 2007. On October 22, 2007 the Office requested additional information to support her
claim, including medical evidence establishing disability for work during the entire period. It
noted that her orthopedic surgeon, Dr. Martin, had released her to full duty on April 20, 2007.
The Office field nurse obtained documentation that Dr. Martin completed in March and
April 2007 keeping appellant off work. This included an April 18, 2007 duty status report
indicating that appellant was unable to perform regular work, as well as a physical status report
appearing to indicate that appellant was off work for an estimated one month following her last
treatment on April 18, 2007.1 The field nurse sent copies of these documents to the Office in
October 2007.
In a decision dated November 30, 2007, the Office denied appellant’s claim for disability
compensation for the period April 19 to May 19, 2007. It noted that it had received no new
supporting medical documentation from appellant or her physician establishing disability during
the period claimed. The Office found that Dr. Martin had released appellant to full duty on
April 20, 2007.

1

The copy of the physical status report is so light, the dates are difficult to read and the physician’s signature is
nearly invisible.

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.2
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.3
A claimant seeking benefits under the Act has the burden of proof to establish the
essential elements of her claim by the weight of the evidence.4 For each period of disability
claimed, the claimant has the burden of proving that she was disabled for work as a result of her
accepted employment injury.5 Whether a particular injury causes an employee to become
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 evidence.6
ANALYSIS
Appellant claimed compensation for disability from April 19 to May 19, 2007. The
Office denied her claim on the grounds that it received no medical documentation establishing
disability during this period and that Dr. Martin released appellant to full duty on April 20, 2007.
The Board finds that the evidence of record does not support the Office’s decision.
As for appellant’s release to full duty on April 20, 2007, the Office has mistaken the
identity of appellant with another patient of Dr. Martin. Dr. Martin examined appellant on
April 18, 2007, recommended a work conditioning program and reported that “hopefully we can
get her back to work after one month of that.” He indicated that she would be off work for about
a month, which is consistent with her claim. The April 20, 2007 report that the Office mentions
in its November 30, 2007 decision does not pertain to appellant. It relates to another of
Dr. Martin’s patients, a patient named Diane. The Office overlooked the patient identification
and the fact that appellant had not yet undergone shoulder surgery. It did not question why
Dr. Martin would reexamine appellant after only two days or why he would abandon his
recommendation for work hardening. Due to this oversight, the Board finds that Dr. Martin’s
April 20, 2007 report provides no basis for denying appellant’s claim.
As for receiving no supporting documentation, the Office field nurse reported in
October 2007 that she forwarded medical reports Dr. Martin had completed in March and
April 2007 keeping appellant off work. This included a duty status report dated April 18, 2007
indicating, consistent with his April 18, 2007 narrative report, that appellant was unable to
perform regular work. This also included a physical status report that appears to keep appellant
2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f).

4

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

5

David H. Goss, 32 ECAB 24 (1980).

6

Edward H. Horton, 41 ECAB 301 (1989).

3

off work for one month following her April 18, 2007 examination, again, consistent with
Dr. Martin’s April 18, 2007 narrative stating he would follow up with appellant in one month to
see how she was doing. The Office did not address this evidence when it denied appellant’s
claim for compensation.
The Board will set aside the Office’s November 30, 2007 decision and remand the case
for a proper adjudication of the evidence submitted. Following such further development of the
medical evidence as may be necessary, the Office shall issue an appropriate final decision on
appellant’s claim for compensation from April 19 to May 19, 2007.
CONCLUSION
The Board finds that this case is not in posture for decision. The Office did not properly
consider the evidence submitted. Further action is therefore warranted.
ORDER
IT IS HEREBY ORDERED THAT the November 30, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: September 3, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
FACILITY, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-984
Issued: December 6, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 11, 2011 appellant, through his representative, filed a timely appeal of a
November 18, 2010 Office of Workers’ Compensation Programs’ (OWCP) merit decision
terminating benefits. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c)(1) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s medical
benefits effective April 20, 2010 on the grounds that he had no residuals due to his accepted
conditions.
On appeal, counsel argues that the report of Dr. Robert F. Draper, Jr., a Board-certified,
orthopedic surgeon and second opinion physician, was not sufficient to meet OWCP’s burden of
proof as it was not based on an accurate factual or medical background and did not address the
specific questions posed by OWCP.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal. On April 16, 1999 appellant, then a 45-year-old
mail handler filed a traumatic injury claim alleging that on April 14, 1999 he lost control of a
tow motor which spun him around and drove him across a steel pole. He stated that he sustained
a chest wall contusion when the steering arm of the tow motor struck him in the chest. Initial
x-rays demonstrated no sternum fracture, but a moderately enlarged heart and relatively low lung
volumes.
Appellant returned to the emergency room on April 16, 1999 and his
electrocardiogram was abnormal when compared with April 14, 1999 with a possible inferior
infarction on or before April 14, 1999. He underwent an echocardiograph on April 27, 1999
which revealed mild aortic regurgitation and pulmonic regurgitation.
Appellant filed a notice of recurrence of disability on May 1, 1999 and stated that he
returned to work on April 19, 1999 and experienced increased intensity of his chest pain on
April 22, 1999. He sought treatment at the local emergency room. OWCP accepted appellant’s
claim for chest wall contusion on June 9, 1999.
By decision dated January 6, 2000, OWCP denied appellant’s claim for compensation
finding that the evidence did not establish any period of total disability for work due to his
accepted chest wall contusion.
Appellant filed a recurrence of disability on August 16, 2000 and alleging that he stopped
work on May 5, 2000 due to chronic pains in the upper gastrointestinal portion of his body.
OWCP denied this claim on February 15, 2001. Counsel requested an oral hearing. Branch of
Hearings and Review set aside OWCP’s February 15, 2001 decision on June 2, 2001. OWCP
again denied appellant’s claim on October 26, 2001. A June 10, 1999 bone scan demonstrated
increased tracer accumulation within the proximal body of the sternum and within the medial
right clavicle. This report was interpreted as revealing fractures of the medial right clavicle and
the proximal body of the sternum as well as degenerative changes of the shoulders, knees and
ankles. Appellant requested reconsideration on October 11, 2002. By decision dated January 29,
2003, OWCP accepted the additional conditions of fractured clavicle and fractured sternum as a
result of the April 14, 1999 employment injury. It also accepted recurrence of chest pain on
February 18, 2000 and the diagnosis of costochondritis. However, OWCP did not accept that
appellant was totally disabled beginning May 5, 2000 due to his accepted employment injuries.
In a decision and order dated November 13, 2008,2 the Board found that he had not established a
recurrence of disability on May 5, 2000 and that he had not established a new injury on
May 5, 2000. The facts and circumstances of the case as set out in the Board’s prior decision are
adopted herein by reference.
Following the Board’s decision, Dr. Ghassem Kalani, a physician Board-certified in
physical medicine and rehabilitation, continued to provide treatment and prescribe physical
therapy for appellant’s accepted conditions through December 7, 2009. Appellant reported pain
between his right shoulder and numbness in his right hand. He also reported sternal pain.
Dr. Kalani recommended another bone scan on December 23, 2009.
2

Docket No. 08-1073 (issued November 13, 2008).

2

OWCP referred appellant for a second opinion evaluation with Dr. Draper on
February 5, 2010. The statement of accepted facts included mention of the June 10, 1999 bone
scan as well as other testing. In a report dated March 4, 2010, Dr. Draper reviewed medical
evidence and performed a physical examination. He stated that appellant had a normal external
examination of the chest, clavicles and manubulum. Dr. Draper found no bony deformities. He
diagnosed contusion of the chest wall. Dr. Draper stated that the accepted conditions of fracture
of the medical clavicle, fracture of the sternum and ribs were not supported by the imaging
studies in the record. He suggested that additional medical records might support the accepted
diagnoses. Dr. Draper found no evidence for a need for physical therapy and opined that
appellant could return to his regular-duty work without restriction. He completed a work
capacity evaluation and found no restrictions.
Dr. Kalani completed a report on February 22, 2010 listing appellant’s accepted injuries
of fracture of the medial clavicle, contusion of the chest wall and fracture of the proximal
sternum as well as a complete rotator cuff tear on the right side and neurological disorders. He
stated that when he last examined appellant on January 18, 2010 appellant presented with
complaints of pain of his anterior chest and sternal region as well as tenderness in this area with
difficulty breathing and popping sensation on breathing and shortness of breath. Dr. Kalani
opined that appellant was symptomatic with these chronic injuries secondary to the accepted
conditions and that the injuries limited his functional capacity.
In a letter dated March 7, 2010, OWCP proposed to terminate appellant’s compensation
benefits based on Dr. Draper’s report.
By decision dated April 20, 2010, OWCP terminated appellant’s medical benefits
effective that date. Counsel requested an oral hearing on May 11, 2010. He submitted a report
from Dr. Kalani dated April 5, 2010. In the April 15, 2011 report, Dr. Kalani diagnosed chronic
injuries including fracture of the lateral clavicle and sternal fracture. He opined that appellant
had residual symptomatology and residual injuries from his April 14, 1999 employment injury.
Dr. Kalani stated that appellant remained disabled from his date-of-injury position and
recommended additional physical therapy. He submitted a treatment note dated May 10, 2010
noting appellant’s description of pain in his chest and sternal area as well as breathing problems.
Appellant testified at the oral hearing on September 10, 2010. He stated that he had pains
in his chest and his shoulder. Dr. Kalani submitted additional notes dated June 21 and
August 30, 2010 stating that appellant reported breathing problems as well as popping in his
chest and sternal area. He listed his impression as unchanged.
By decision dated November 18, 2010, OWCP’s hearing representative affirmed its
decision terminating appellant’s medical benefits.

3

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3 The right to
medical benefits for an accepted condition is not limited to the period of entitlement for
disability.4 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition which require further
medical treatment.5
ANALYSIS
OWCP accepted appellant’s claim for chest wall contusion, fractured clavicle and
fractured sternum as well as costochondritis. Appellant’s attending physician, Dr. Kalani,
continued to support appellant’s medical residuals from his accepted conditions noting his
complaints of chest and sternal pain as well as popping. OWCP referred appellant for a second
opinion evaluation with Dr. Draper to determine whether appellant had any medical residuals of
his accepted condition. On April 20, 2010 it terminated his medical benefits based on
Dr. Draper’s report finding that he had no medical residuals of the accepted conditions. OWCP
bears the burden of proof to justify termination of benefits.
In his March 4, 2010 report, Dr. Draper reviewed medical evidence submitted by OWCP.
He opined that the accepted conditions of fracture of the medical clavicle, fracture of the sternum
and ribs were not supported by the imaging studies in the record. Although the statement of
accepted facts specifically referenced the 1999 bone scan which was interpreted as
demonstrating the accepted fracture, Dr. Draper did not mention this report or otherwise address
the findings contained therein. He did suggest that perhaps there were additional medical
records that were not submitted to him that might support the accepted diagnoses. The Board
finds that this report is not based on a proper factual and medical background and cannot meet
OWCP’s burden of proof to terminate appellant’s medical benefits. As Dr. Draper did not
consider the medical evidence listed in the statement of accepted facts, the probative value of his
report is seriously diminished.6
The Board finds that Dr. Draper’s report is not sufficient to meet OWCP’s burden of
proof to terminate appellant’s medical benefits.
CONCLUSION
OWCP failed to meet its burden of proof to terminate appellant’s medical benefits.

3

Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

Furman G. Peake, 41 ECAB 361, 364 (1990).

5

Id.

6

Willa M. Frazier, 55 ECAB 379 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the November 18, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 6, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


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

)
)
)
)
)
)
)
)

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

Docket No. 10-845
Issued: November 5, 2010

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 February 12, 2010 appellant filed a timely appeal from a November 17, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on March 30, 2009 causally related to
her employment.
FACTUAL HISTORY
On April 6, 2009 appellant, a 55-year-old mail processing clerk, filed a claim for
traumatic injury to both arms. She attributed her condition to a March 30, 2009 incident when,
because of a fire drill, she was forced to exit from the employing establishment at approximately
3:45 p.m. and was exposed to cold and inclement weather for approximately 15 to 20 minutes

while wearing a T-shirt.1 In a supplemental statement dated April 2, 2009, appellant noted that,
at first, she refused to leave the building as she was not dressed for the weather conditions. The
employing establishment controverted appellant’s claim.
Appellant submitted copies of weather reports from the internet which indicated that the
high temperature in Gary reached 43 degrees on March 30, 2009, with a low of 30 degrees. She
submitted results from diagnostic tests regarding a possible rotator cuff tear as well as
investigative reports and a statement from a coworker concerning her initial reluctance to
participate in the fire drill.
On April 7, 2009 Dr. Vinay Reddy, a Board-certified rheumatologist, released appellant
from work because of an injury she sustained on March 30, 2009. He presented findings on
examination and diagnosed cervical radiculopathy, right shoulder tendinopathy and left
epicondylitis. Dr. Reddy noted that appellant had a history of oseteoarthritis of the thumbs. He
noted that these conditions were exacerbated by the alleged incident. Dr. Reddy noted, “I am
unclear how this could have happened as the patient did tell me that there was no physical job
that she did when she was out in the cold.” He concluded that the only possible explanation for
appellant’s condition was that exposure to cold and damp weather probably exacerbated her
underlying arthritis. Dr. Reddy released appellant from work again on April 14 and 24, 2009,
due to the March 30, 2009 injury.
In a progress note dated April 24, 2009, Dr. Reddy stated that cold and inclement weather
since the last week of March affected appellant’s neck and shoulders, producing a numbness
sensation which radiated through her arms and produced a tingling sensation in her hands. On
May 1, 2009 he released appellant to fully-duty work.
On May 29, 2009 Dr. Reddy presented findings on examination and diagnosed right
shoulder tendinopathy with a partial thickness tear, left medial epicondylitis, degenerative joint
disease in appellant’s fingers, carpal tunnel syndrome and myofascial neck pain. He noted that
“before the episode in March” appellant had been doing reasonably well, but that her symptoms
had been exacerbated. On June 16 and 23, 2009 Dr. Reddy excused her from work due to tennis
elbow and carpal tunnel.
By decision dated July 7, 2009, the Office accepted the March 30, 2009 incident, in
which appellant participated in a fire drill. It denied her claim because the medical evidence of
record did not establish that this incident caused her cervical or upper extremity conditions.
Appellant requested review of the written record on August 5, 2009.
On August 11, 2009 the Office received an August 5, 2009 note from Dr. Reddy who
stated that appellant was seen on March 31, 2009 for “frost nib” which she sustained on the
previous day when she participated in a fire drill at work. He described a frost nib as a
1

The Board notes that the Office issued a Form CA-16. A properly executed Form CA-16 creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989). The Form CA-16 issued to
appellant did not authorize either examination or treatment and was therefore not properly executed.

2

nonfreezing cold tissue injury which caused part of the skin to be chilled but not frozen, which
then caused significant pain to the affected areas as the skin rewarmed and blood flow was
reestablished. Dr. Reddy stated that the dull continuous pain changed to a throbbing sensation in
two or three days which could last from weeks to months until final tissue separation was
complete.
In a decision dated November 17, 2009, the Office hearing representative affirmed the
July 7, 2009 decision. She found that the medical reports of Dr. Reddy provided various
diagnoses and that the physician failed to provide sufficient rationale for how exposure to 40
degree temperatures for 15 minutes would cause or contribute to any diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,3
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.4 As part of her burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
2
3

5 U.S.C. §§ 8101-8193.
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

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

6

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

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

3

compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.9
ANALYSIS
The Office accepted that the March 30, 2009 fire drill occurred as alleged and that
appellant was exposed from 15 to 20 minutes to temperatures around 40 degrees. The Board
finds that appellant did not establish that this employment incident caused an injury.
Accordingly, the Board finds that the Office properly denied appellant’s claim.
The reports of Dr. Reddy are of diminished probative value on causal relationship
because the physician failed to provide a reasoned or detailed opinion explaining how the
accepted employment incident caused the various conditions he diagnosed.10 Dr. Reddy
attributed appellant’s absences from work to the accepted employment incident, but provided no
reasoned explanation for his opinion on disability.
On April 7, 2009 Dr. Reddy diagnosed cervical radiculopathy, right shoulder
tendinopathy and left epicondylitis. He noted appellant’s history, that she was outside for the
duration of a fire drill during the afternoon of March 30, 2009, but stated that it was “unclear”
how this work incident could have caused the diagnosed conditions since appellant did not
perform any work activities while she was outside. Dr. Reddy speculated that the only possible
explanation would be that the cold weather exacerbated appellant’s arthritis symptoms. The
Board notes that Dr. Reddy listed a preexisting history of osteoarthritis of the thumbs but failed
to explain how 15 to 20 minutes of exposure to 40 degree weather was sufficient to aggravate the
underlying arthritis condition of the thumbs or cause the diagnosed upper extremity conditions.
Use of the words “possible” and “probably” establish Dr. Reddy’s opinion as speculative and of
diminished probative value.11 This evidence does not establish the element of causal
relationship.
On August 5, 2009 Dr. Reddy diagnosed appellant with a “frost nib,” which he attributed
to her exposure on March 30, 2009. He did not explain the basis for this diagnosis or address
how it related to her accepted exposure. While he provided a definition of the term as a
nonfreezing cold tissue injury he did not specify which body part sustained “frost nib.”
Dr. Reddy stated that “frost nib” causes significant pain while the skin and blood rewarms, but
not explain how long any rewarming process would take. The diagnosis of frost nib is not well
explained as appellant was only exposed to temperatures of approximately 40 degree for 15 to 20
minutes. There was no discussion of what portion of appellant’s skin was exposed or how the
9

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

10

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).
11

Kathy Kelley, 55 ECAB 206 (2004) (the Board has held that opinions such as, the implant may have ruptured
and that the condition is probably related, most likely related or could be related are speculative and diminish
the probative value of the medical opinion)

4

ambient air temperature, moisture or other weather conditions were sufficient that day to
contribute to a specific injury or those conditions diagnosed by Dr. Reddy. While Dr. Reddy
stated that the pain symptoms would continue until final tissue separation was complete, he did
not provide any physical findings that appellant did, in fact, sustain tissue separation of any body
part.
An award of compensation may not be based on surmise, conjecture or speculation.12
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.13 The fact that a condition manifests itself or worsens during a
period of employment14 or that work activities produce symptoms revelatory of an underlying
condition15 does not raise an inference of causal relationship between a claimed condition and an
employment incident.
The medical evidence of record contains no reasoned discussion of causal relationship,
one that soundly explains how the March 30, 2009 employment incident caused or aggravated a
firm diagnosed medical condition. The Board finds that appellant has not established the
essential element of causal relationship.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury on
March 30, 2009, as alleged.

12

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
13

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

14

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

15

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155,157 (1960).

5

ORDER
IT IS HEREBY ORDERED THAT the November 17, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2010
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1951
Issued: February 3, 2014

Case Submitted on the Record

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

JURISDICTION
On August 23, 2013 appellant filed a timely appeal of a July 25, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP), denying her application for
reconsideration without merit review of the claim. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the July 25, 2013 nonmerit decision. Since more than 180 days has elapsed between the last
merit decision on August 31, 2012 and the filing of this appeal, the Board lacks jurisdiction to
review the merits of the claim pursuant to 20 C.F.R. § 501.3(e).
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant further review of the merits under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 22, 2010 appellant, then a 51-year-old management and program analyst,
filed an occupational claim (Form CA-2) alleging an emotional condition causally related to
factors of her federal employment. Appellant alleged that she was subject to a hostile work
environment, discrimination and retaliation.
By decision dated July 19, 2010, OWCP denied the claim for compensation. It found that
appellant did not establish a compensable work factor as she did not establish error or abuse with
respect to administrative matters.
Appellant requested a hearing before an OWCP hearing representative, which was held
on January 31, 2011. In a decision dated June 7, 2011, the hearing representative affirmed the
July 19, 2010 decision. The hearing representative reviewed Board case law regarding error or
abuse and harassment, and found the evidence did not establish a compensable work factor.
On December 11, 2012 appellant requested reconsideration of her claim. She argued that
she had established compensable work factors and that OWCP had not properly applied Board
case law. Appellant reviewed her allegations with respect to leave matters and disciplinary
actions, arguing that the employing establishment actions were abusive and harassing. She cited
Board case law with respect to the standard for establishing error or abuse and harassment.
Appellant resubmitted leave documents, disciplinary actions and e-mails to her supervisor.
By decision dated July 25, 2013, OWCP denied appellant’s request for reconsideration.
It found the evidence and arguments insufficient to warrant review of the claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2 its
regulations provide that a claimant may obtain review of the merits of the claim by submitting a
written application for reconsideration that sets forth arguments and contains evidence that
either: “(i) shows that [OWCP] erroneously applied or interpreted a specific point of law;
(ii) advances a relevant legal argument not previously considered by [OWCP]; or (iii) constitutes
relevant and pertinent evidence not previously considered by [OWCP].”3 20 C.F.R. § 10.608(b)
states that any application for review that does not meet at least one of the requirements listed in
20 C.F.R. § 10.606(b)(2) will be denied by OWCP without review of the merits of the claim.4
ANALYSIS
In the present case, appellant submitted an application for reconsideration dated
December 4, 2012. She cited generally to Board case law with respect to the requirement that a
2

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

2

compensable work factor is established with evidence of harassment, or error or abuse in an
administrative matter.
With respect to showing that OWCP erroneously applied or interpreted a specific point of
law, appellant did not meet this requirement. Appellant contended that her allegations of
harassment and error or abuse were established, but did not show that a specific point of law was
erroneously applied or interpreted. As to advancing a relevant legal argument not previously
considered by OWCP, the Board finds appellant did not meet this standard. The citation to
Board case law with respect to the establishment of a claim for compensation does not itself
establish a relevant legal argument not previously considered.5 OWCP reviewed appellant’s
allegations with respect to leave matters, work assignments and disciplinary actions in merit
decisions dated July 19, 2010, June 7, 2011 and August 31, 2012. Based on the evidence then of
record, it determined that she did not support her allegations of administrative error or abuse.
The relevant case law for establishing compensable work factors based on allegations raised by
appellant was discussed by OWCP. Appellant did not raise a specific legal argument that was
not previously considered. While she may disagree with OWCP’s interpretation of the evidence,
her disagreement does not establish a new and relevant legal argument.
Regarding the submission of relevant and pertinent evidence not previously considered,
the Board finds appellant has not met this requirement. Appellant submitted evidence on
December 11, 2012. The Board reviewed the evidence and found that it duplicates the evidence
previously of record. The correspondence between appellant and her supervisor, disciplinary
letters and leave documents were previously submitted and considered by OWCP prior to the last
merit decision on August 31, 2012. The Board finds appellant did not submit relevant and
pertinent evidence not previously considered by OWCP.
Appellant therefore did not meet the requirements of 20 C.F.R. § 10.606(b)(2). She did
not show that OWCP erroneously applied or interpreted a specific point of law, advance a
relevant legal argument not previously considered by OWCP, or submit relevant and pertinent
evidence not previously considered by OWCP. Pursuant to 20 C.F.R. § 10.608(b), OWCP
properly declined to reopen the case for merit review.
On appeal, appellant argues that she did raise new legal arguments, and OWCP
erroneously applied specific points of law. For the reasons noted above, the Board finds that
OWCP properly denied merit review in this case.
CONCLUSION
The Board finds OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim.

5

See P.J., Docket No. 13-376 (issued May 10, 2013); A.C., Docket No. 10-1232 (issued January 12, 2011);
Lewis W. Johnson, Docket No. 03-41 (issued February 11, 2003).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 25, 2013 is affirmed.
Issued: February 3, 2014
Washington, DC

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

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

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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 11-611
Issued: November 4, 2011

Case Submitted on the Record

ERRATUM
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

The Board issued a decision and order in the above-titled case on October 11, 2011. The
Board, on its own motion, hereby corrects an error in the Order section on page seven of its
decision and order. The date listed in the Order section will be corrected to read “October 4,
2010” instead of “October 10, 2010.” Accordingly,

IT IS HEREBY ORDERED THAT the Board’s October 11, 2011 decision and order is
corrected.
Issued: November 4, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

2