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

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 14-1187; 14-1215
Issued: February 2, 2015

Case Submitted on the Record

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

JURISDICTION
On April 28, 2014 appellant, through counsel, filed timely appeals from the
November 14, 2013 and March 19, 2014 nonmerit decisions of the Office of Workers’
Compensation Programs (OWCP). The last merit decision of record was the April 30, 2013
decision of OWCP. Because more than 180 days elapsed between the last merit decision and the
filing of appeals on April 28, 2014, and pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3,2 the Board lacks jurisdiction to review the merits
of the claims.3

1

5 U.S.C. §§ 8101-8193.

2

Appellant also filed an appeal of an OWCP “decision” dated February 26, 2014 but the Board notes that this
represents an informational letter rather than a final decision of OWCP and therefore it is not appealable to the
Board. 20 C.F.R. § 501.2(c). The appeals for Docket No. 14-1187 and Docket No. 14-1215 concern different work
injuries initially developed under separate file numbers (xxxxxx003 and xxxxxx402), but beginning in early 2013
these cases were administratively associated with the same file number (xxxxxx003).
3

See 20 C.F.R. §§ 501.2(c) and 501.3.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim as the request were untimely filed and failed to demonstrate
clear evidence of error.
FACTUAL HISTORY
OWCP accepted that on October 5, 2009 appellant, then a 34-year-old letter carrier,
sustained a medial meniscus tear of her left knee due to a fall down stairs at work. Appellant
stopped work on October 5, 2009 and began to receive compensation on the daily rolls.4
On January 12, 2010 Dr. Jeffrey F. Augustin, an attending Board-certified orthopedic
surgeon, performed a left knee arthroscopy with lateral meniscectomy and excision of plica. The
surgery was authorized by OWCP.
In a June 17, 2010 decision, OWCP terminated appellant’s wage-loss compensation and
medical benefits effective June 17, 2010 on the grounds that she ceased to have residuals of her
October 5, 2009 work injury after that date. It based its termination action on a May 30, 2010
report of Dr. Augustin and a May 3, 2010 report of Dr. Jerome D. Rosman, a Board-certified
orthopedic surgeon, who served as an OWCP referral physician.
By decision dated November 17, 2010, OWCP modified its June 17, 2010 termination
decision to reflect that only appellant’s wage-loss compensation was terminated effective
June 17, 2010. It indicated that the proposed notice of termination sent to appellant failed to
mention that her medical benefits related to the October 5, 2009 work injury would be
terminated.
On June 26, 2012 appellant alleged that she sustained a left knee injury at work on
June 20, 2012 when she stepped down off a curb. She indicated that she felt a tug and twist in
her knee and heard a popping sound.5
In an August 9, 2012 decision, OWCP denied appellant’s claim on the grounds that she
did not submit sufficient medical evidence to establish that she sustained a left knee injury in the
performance of duty on June 20, 2012.
On October 22, 2012 Dr. Allen Glushakow, an attending Board-certified orthopedic
surgeon, performed left knee surgery, including abrasion arthroplasty, chondroplasty,
arthrotomy, and partial lateral meniscectomy. He noted that during the surgery he observed an
effusion and osteochondral fracture of the medial femoral condyle and an acute tear of the lateral
meniscus. The surgery was not authorized by OWCP.
4

Appellant later began to receive compensation on the periodic rolls.

5

This claim was initially developed under file number xxxxxx402, but beginning in early 2013 the documents for
this claim were administratively associated with file number xxxxxx003, the file created for appellant’s October 5,
2009 injury.

2

In a decision dated February 20, 2013, an OWCP hearing representative modified
OWCP’s August 9, 2012 decision to accept the condition of left knee sprain as occurring on
June 20, 2012 “with entitlement to medical benefits being limited to the claimant’s emergency
room visit on June 20, 2012.” He stated, “The district office denial of the claim for any other left
knee condition and for benefits subsequent to June 20, 2012 is affirmed.”
In an April 30, 2013 decision, OWCP advised appellant that her claim for a traumatic
injury on June 20, 2012 had been formally accepted for a left knee sprain. It noted that, per its
February 20, 2013 decision, authorization for medical treatment was limited to treatment at the
emergency room on June 20, 2012. OWCP stated, “If the current accepted condition(s) need to
be revised or additional complications related to the current accepted condition(s) need to be
added, your physician should explain in writing, with medical rationale, the relationship between
any additional condition and the work injury or the current accepted condition(s) noted above.”
In an informational letter dated June 10, 2013, OWCP advised appellant that her claim
for compensation for the period October 22, 2012 to March 18, 2013 was not payable. It
informed appellant that, in its November 17, 2010 decision, it had terminated her wage-loss
compensation effective June 17, 2010.
In a July 17, 2013 letter received on that date, counsel, on behalf of appellant, sought
compensation for appellant’s October 22, 2012 left knee surgery and any periods of disability
related to her accepted work-related knee condition. He stated, “[Appellant] underwent surgery
by Dr. Glushakow under the above file in October 2012. Clearly, this is new evidence and was
not available on June 17, 2010. She is now disabled as a result of the effects of the surgery.”6
In a November 14, 2013 decision, OWCP denied appellant’s case finding that she filed an
untimely reconsideration request which failed to demonstrate clear evidence of error in a prior
OWCP decision. It indicated that the June 10, 2013 “decision” for which appellant was
considered to have requested reconsideration was an informational letter rather than a final
decision of OWCP and therefore appellant could not request reconsideration of this decision.
OWCP found that appellant’s July 17, 2013 reconsideration request was not timely filed with
respect to the November 17, 2010 decision (which modified the June 17, 2010 decision) and that
her application for review did not show clear evidence of error in that decision. It stated, “Your
attorney does not argue that the decision dated November 17, 2010 was incorrect when it was
issued.”
On January 30, 2014 appellant filed a claim for disability due to her work-related left
knee condition, alleging that she was unable to work for periods beginning June 20, 2012.
In an informational letter dated February 26, 2014, OWCP advised appellant that it only
accepted that she sustained a left knee sprain on June 20, 2012 and that her case was only open
for payment of medical bills related to an emergency room visit on June 20, 2012. It indicated
that appellant had previously been provided with appeal rights in connection with prior decisions
on this matter.
6

Counsel also stated he wished to “appeal” June 17, 2010 and June 10, 2013 “decisions” of OWCP. As noted
above, the June 10, 2013 document was an informational letter rather than a final decision of OWCP.

3

In a March 5, 2014 letter received on the same date, counsel, on behalf of appellant,
indicated that he was submitting evidence which he felt supported coverage of appellant’s
October 22, 2012 surgery. In the attached June 25, 2013 report, Dr. Glushakow explained why
he felt that appellant’s need for repeat left knee surgery on October 22, 2012 was due to her
June 20, 2012 injury rather than an earlier injury. He stated:
“While the [October 22, 2012] operative report did not show a tear of the medial
meniscus, there was an effusion and osteochondral fracture of the medial femoral
condyle as well as an acute tear of the lateral meniscus. In addition, a marked
synovitis was noted requiring a subtotal synovectomy, all of which is described in
the operative report. [Appellant] had made a full recovery from the surgery
performed on January 12, 2010. Prior operative report[s] did not note an
osteochondral fracture and did not note synovitis. Therefore, the combination of
these findings point to the cause of her surgery being the incident of
June 20, 2012.”7
In a March 19, 2014 decision, OWCP refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error. It found that the March 5, 2014 letter submitted by counsel
on behalf of appellant was an untimely reconsideration request and did not show clear evidence
of error in OWCP’s prior decisions, including its decision dated April 30, 2013.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,8
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.9 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.10 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.11
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
7

Counsel also stated that he wished to “appeal” the April 30, 2013 decision of OWCP and that he wished to
‘request reconsideration.”
8

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
9

20 C.F.R. § 10.606(b)(2).

10

Id. at § 10.607(a).

11

Id. at § 10.608(b).

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nevertheless undertake a limited review to determine whether the application establishes “clear
evidence of error.”12 OWCP regulations and procedure provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of error” on
the part of OWCP.13
In order to be entitled to reimbursement of medical expenses, it must be shown that the
expenditures were incurred for treatment of the effects of an employment-related injury or
condition.14 An employee seeking compensation for disability and/or a specific condition under
FECA has the burden of establishing the essential elements of his or her claim including the fact
that the individual is an “employee of the United States” within the meaning of FECA, that the
claim was timely filed within the applicable time limitation period of FECA, that an injury was
sustained in the performance of duty as alleged, and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.15 It is well
established that proceedings under FECA are not adversarial in nature, and while the claimant
has the burden to establish entitlement to compensation, OWCP shares responsibility in the
development of the evidence.16
ANALYSIS
OWCP accepted that on October 5, 2009 appellant sustained a medial meniscus tear of
her left knee due to a fall down stairs at work. On January 12, 2010 appellant underwent
OWCP-authorized left knee arthroscopy with lateral meniscectomy and excision of plica. In a
June 17, 2010 decision, OWCP terminated her wage-loss compensation and medical benefits
effective June 17, 2010 on the grounds that she ceased to have residuals of her October 5, 2009
work injury after that date. By decision dated November 17, 2010, it modified its June 17, 2010
termination decision to reflect that only appellant’s wage-loss compensation was terminated
effective June 17, 2010. OWCP indicated that the proposed notice of termination sent to
appellant failed to mention that her medical benefits related to the October 5, 2009 work injury
would be terminated.
Appellant’s claim for her October 5, 2009 injury was dormant until October 2012 after
she underwent left knee surgery. On October 22, 2012 Dr. Glushakow, an attending Boardcertified orthopedic surgeon, performed left abrasion arthroplasty, chondroplasty, arthrotomy,
and partial lateral meniscectomy. The surgery was not authorized by OWCP. In a July 17, 2013
letter received on that date, counsel, on behalf of appellant, sought compensation for appellant’s
12

See id. at § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

13

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5a
(October 2011). OWCP procedures further provide, “The term ‘clear evidence of error’ is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made a mistake.”
14

Bertha L. Arnold, 38 ECAB 282, 284 (1986).

15

J.F., Docket No. 09-1061 (issued November 17, 2009).

16

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

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October 22, 2012 left knee surgery and any period of disability related to her accepted workrelated left knee condition.
Under a separate case file (now combined with the file for the October 5, 2009 injury),
appellant alleged in late June 2012 that she sustained a left knee injury at work on June 20, 2012
due to stepping down off a curb. After initially being denied, her claim for a June 20, 2012 work
injury was accepted for left knee sprain in OWCP decisions dated February 20 and
April 30, 2013.17 In a March 5, 2014 letter, counsel, on behalf of appellant, indicated that he was
submitting evidence which he felt supported coverage of appellant’s October 22, 2012 surgery.18
The Board finds that OWCP improperly found that counsel’s communications on behalf
of appellant constituted a request for reconsideration of its November 17, 2010 decision which
modified its June 17, 2010 termination decision to reflect that only appellant’s wage-loss
compensation was terminated effective June 17, 2010. It is clear, however, that in a July 17,
2013 letter, counsel expressly sought compensation for appellant’s October 22, 2012 left knee
surgery and any periods of disability related to her accepted work-related knee condition. In a
March 5, 2014 letter, he indicated that he was submitting evidence which he felt supported
coverage of appellant’s October 22, 2012 surgery. Medical evidence was submitted in support of
this claim, including a June 25, 2013 report in which Dr. Glushakow stated that the October 22,
2012 surgery was necessitated by a work-related injury. Moreover, appellant filed a claim for
disability due to her work-related left knee condition, alleging that she was unable to work for
periods beginning June 20, 2012.19 Consequently, OWCP improperly analyzed appellant’s case
and wrongly determined, in November 14, 2013 and March 19, 2014 decisions, that she filed an
untimely request for merit review and failed to show clear evidence of error in its November 17,
2010 decision.20
The Board finds that appellant has an outstanding claim related to her October 22, 2012
left knee surgery and any periods of disability arising after June 20, 2012. The case shall be
remanded to OWCP for consideration of this claim. OWCP should consider all the relevant
documents relating to both appellant’s accepted October 5, 2009 left knee injury and her
accepted June 20, 2012 left knee injury.21 After carrying out this development, OWCP shall
issue an appropriate decision on the matter.

17

However, OWCP found in these decisions, with respect to the June 20, 2012 injury, appellant’s authorization
for medical treatment was limited to treatment at the emergency room on June 20, 2012.
18

On January 30, 2014 appellant filed a claim for disability due to her work-related left knee condition, alleging
that she was unable to work for periods beginning June 20, 2012.
19

Although counsel used the words “appeal” and “reconsideration” in some of his letters, the content and context
of the letters show that he actually sought payment for appellant’s October 22, 2012 left knee surgery and any
periods of disability arising after June 20, 2012.
20

See supra notes 7 through 12.

21

Beginning in early 2013, these cases were administratively associated with the same file number (xxxxxx003).

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CONCLUSION
The Board finds that the case shall be remanded to OWCP for consideration of her
outstanding claim for payment related to her October 22, 2012 left knee surgery and any periods
of disability arising after June 20, 2012.
ORDER
IT IS HEREBY ORDERED THAT the March 19, 2014 and November 14, 2013
decisions of the Office of Workers’ Compensation Programs are set aside and the case remanded
to OWCP for proceedings consistent with this decision of the Board.22
Issued: February 2, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

22

Michael E. Groom, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective December 27, 2014.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lake Mary, FL, Employer
__________________________________________

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

Docket No. 08-729
Issued: September 25, 2008

Case Submitted on the Record

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

JURISDICTION
On January 14, 2008 appellant filed a timely appeal from the December 27, 2007 merit
decision of the Office of Workers’ Compensation Programs’ hearing representative affirming a
May 10, 2007 decision denying his emotional condition and denying his request for a subpoena.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over these issues.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an emotional condition in the performance of duty; and (2) whether the Office properly
denied appellant’s request for a subpoena.
FACTUAL HISTORY
On January 9, 2007 appellant, then a 54-year-old mail handler, filed an occupational
disease claim alleging that his anxiety level was “so out of control” with his supervisors and
coworkers that he was escorted out of the building on several occasions. He first realized the

disease or illness was caused or aggravated by his employment on December 30, 2006, when he
stopped working.1 The employing establishment controverted the claim.
Appellant submitted a January 7, 2007 statement alleging that his condition began
sometime between 1971 and 1973 while serving in the Marine Corps. He was recently
diagnosed with generalized anxiety disorder, panic disorder, agoraphobia and depression.
Appellant alleged that his anxiety would worsen at work when he had negative interactions with
staff on the workroom floor. He would try to avoid stressful situations as they would trigger
anxiety and panic episodes. Appellant’s last interaction with his supervisor caused him to go to
the emergency room and see a psychiatrist. In an April 12, 2006 statement, he advised that on
April 7, 2006, the fire alarm went off at work. Appellant was in the break room at the time and
proceeded to go outside. He alleged that everyone returned inside and the alarm went off for a
second time causing everybody to go outside again. Appellant alleged that his supervisor then
instructed the mail handlers to return to their posts, despite the fact that the alarm was still
ringing. He alleged that he “would go, when everyone else went.” Appellant alleged that a
Bernie R. Cote, supervisor, instructed him to go to his office and an incident occurred in which
Mr. Cote was hit by the door. He stated that it later escalated to having a union steward present
and his being escorted off the premises.
In an April 9, 2006 e-mail, Mr. Cote responded to the allegations regarding the incident
on April 7, 2006. As they were waiting for the alarm to be disarmed he directed the mail
handlers to go back into the plant and begin processing mail. Mr. Cote stated that appellant
became “vociferous and disruptive” and stated, “why only the mail handlers?” He alleged that
appellant refused to go unless all of the workers returned, whereupon he instructed appellant to
follow him to the control center. However, appellant responded, “you do n[o]t want to go alone
with me.” Mr. Cote became threatened by appellant and requested that another supervisor
accompany them. As he was entering a door into the building, he was struck in the chest by the
door which appellant was holding. Thereafter, Mr. Cote stated that appellant’s behavior resulted
in a suspension and being escorted out of the building. Appellant had a history of angry
outbursts which dated back to 2002 or 2003, which also resulted in his being escorted out of the
building. The employing establishment provided additional statements from other employees,
who were present at the time and who confirmed the events between appellant and Mr. Cote.
The employing establishment also provided a copy of the charge of improper conduct regarding
the incident, which was later changed to a letter of warning.2
In an August 3, 2006 statement, appellant alleged that an incident occurred on July 31,
2006 when he requested a (Form CA-7) for his wife from Mr. Cote and was informed by
Mr. Martinez, a supervisor, that since he had “trouble with Mr. Cote,” he should go to his
supervisor or Mr. Martinez. The employing establishment provided an August 16, 2006 report
from Ronda Carter, a transportation supervisor, regarding the CA-7 form incident on
July 31, 2007. Ms. Carter noted that an investigation revealed that appellant and Mr. Cote had
experienced several conflicts in the past and on July 31, 2006, Mr. Cote had contacted
1

Appellant was approved for disability retirement benefits from the Veteran’s Administration.

2

The employing establishment provided a statement and information concerning an altercation between appellant
and another supervisor on December 29, 2002, in which he was escorted from the building by police.

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appellant’s wife, who also worked at the employing establishment, at home to apprise her of the
required documentation for her absence. Appellant confronted Mr. Cote regarding the call to his
wife and behaved inappropriately. Ms. Carter concluded that their relationship was volatile and
recommended that the two individuals work with conflict resolution to resolve any underlying
animosity. She included a copy of a grievance related to the matter, which was denied. Mr. Cote
also provided a July 31, 2006 statement, in which he described an altercation with appellant on
that date regarding a telephone call he made to appellant’s wife when she failed to report to work
or call in sick. The employing establishment provided a statement and report, from coworkers
Ms. Carter and Ed Shear, who witnessed the July 31, 2006 incident and noted that appellant was
making threats and had refused to leave.
The Office also received a statement from appellant concerning a December 30, 2006
incident in which he alleged that Samuel Gonzalez, his supervisor, accused him of verbally
threatening him. Appellant was escorted out of the building. He alleged that this incident was
the “straw that broke the camel’s back.” In an e-mail correspondence dated December 31, 2006,
Barry Littlestar, a manager, noted that appellant had called him to inform him that he was out of
work due to “stress.”
In a January 26, 2007 statement, Denise House, manager of the injury compensation unit,
contended that appellant’s claim was due to his failure to obey his supervisor’s instructions and
the use of language which would lead to a hostile workplace. She stated that the employing
establishment removed appellant from the workroom and placed him on emergency suspension
pending an investigation. Ms. House also noted that there were two prior threat assessment
investigations which revealed that appellant had engaged in “inappropriate conduct,
unacceptable behavior and demonstrated insubordination towards supervisors.” Appellant’s
history of high anxiety was due to his military service in the 1970’s for which he was seen by a
psychiatrist. The employing establishment provided an investigative report, which revealed that
appellant had generalized anxiety disorder dating back to sometime between 1971 to 1973 while
serving in the Marine Corps. The employing establishment documented a December 30, 2006
incident, in which appellant shouted profanities at his supervisor and alleged that he was going to
“take care” of him. The employing establishment alleged that there were at least four such
incidents where appellant made threats against managers. In a December 30, 2006 statement,
Mr. Gonzalez, the supervisor of distribution operations, described an incident that occurred on
that date. Appellant became agitated after requesting time off and being told that he would need
to wait for his leave request to be approved. Mr. Gonzalez alleged that appellant shouted
obscenities and threatened him such that he felt that “he was going to attack me physically,
especially when he came forward and started pointing the finger in my face.” An e-mail from
Mr. Cote, dated December 31, 2006, confirmed the altercation between appellant and
Mr. Gonzalez.
In a February 7, 2007 statement, Mary Crawford, an injury compensation specialist
controverted the claim. On February 13, 2007 she indicated that appellant had outside stressors
which included that his wife was unable to work. Ms. Crawford noted that appellant was trying
to get a 100 percent services connected disability but only received a 70 percent disability.
On February 26, 2007 Mr. Gonzalez stated that appellant had not been forced to work
overtime or to work on scheduled days off. He noted that appellant was only engaged in

3

confrontations with his supervisors Orland Rivera, Bernard Cole, (twice) and himself on
December 30, 2006.
By decision dated May 10, 2007, the Office denied appellant’s claim. It found that he
failed to establish any compensable factors of employment.
On May 16, 2007 appellant requested a hearing, which was held on October 23, 2007.
On June 27, 2007 he requested that the Office issue a subpoena to Mr. Cote, contending that he
had harassed him since he started working at the employing establishment.
On September 28, 2007 the Office hearing representative denied appellant’s request for a
subpoena. He noted that appellant did not provide any indication as to what the specific nature
of the witness testimony or why the evidence could not be provided by submitting a sworn
statement from the witness. The Office hearing representative also informed appellant that the
denial of his request for a subpoena was not appealable prior to the issuance of his decision
following the hearing.
The Office subsequently received a June 15, 2007 investigative interview and
October 17, 2007 settlement agreement, regarding the employing establishment’s proposed
removal of appellant. The employing establishment did not acknowledge any wrongdoing in the
settlement.
In a letter dated November 16, 2007, the employing establishment provided comments to
appellant’s hearing, noting that appellant “was found to have yelled and cursed during the verbal
altercations, not the supervisors.” On December 13, 2007 he responded to the employing
establishment’s comments. Appellant indicated that his condition arose as a result of constant
harassment by his supervisors and altercations with his employer.
By decision dated December 27, 2007, the Office hearing representative affirmed the
May 10, 2007 decision.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the concept or coverage
of workers’ compensation. Where the disability results from an employee’s emotional reaction
to his regular or specifically assigned duties or to a requirement imposed by the employment, the
disability comes within the coverage of the Federal Employees’ Compensation Act.3 On the
other hand the disability is not covered where it results from such factors as an employee’s fear
of a reduction-in-force or his frustration from not being permitted to work in a particular
environment or to hold a particular position.4
3

5 U.S.C. §§ 8101-8193.

4

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 126 (1976).

4

Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition, for which he claims compensation was caused or
adversely affected by employment factors.5 This burden includes the submission of a detailed
description of the employment factors or conditions, which appellant believes caused or
adversely affected the condition or conditions, for which compensation is claimed.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office as part of its
adjudicatory function, must make findings of fact regarding, which working conditions are
deemed compensable factors of employment and are to be considered by the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of the
matter establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.8
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained an emotional condition as a result of stress related to
harassment by his supervisors. The Board must thus, initially review whether these alleged
incidents and conditions of employment are covered employment factors under the Act.
Appellant’s allegations included that he sustained job stress due to conflicts with his
supervisors which resulted in physical altercations or removal from the premises. The Board
notes that appellant referred to incidents on April 7, July 31 and December 30, 2006 involving
leave or administrative forms and supervisory orders. The Board finds that these allegations
relate to administrative or personnel matters, unrelated to the employee’s regular or specially
assigned-work duties and do not fall within the coverage of the Act.9 The Board has also found
that an administrative or personnel matter will be considered to be an employment factor where
the evidence discloses error or abuse on the part of the employing establishment. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.10

5

Pamela R. Rice, 38 ECAB 838, 841 (1987).

6

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

7

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

8

Id.

9

An employee’s emotional reaction to administrative actions or personnel matters taken by the employing
establishment is not covered under the FECA as such matters pertain to procedures and requirements of the
employer and do not bear a direct relation to the work required of the employee. Sandra Davis, 50 ECAB
450 (1999).
10

See Richard J. Dube, 42 ECAB 916, 920 (1991).

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Appellant alleged that on April 7, 2006 a fire alarm went off at work on two occasions.
On the second occasion, he alleged that a supervisor, Mr. Cote, directed the mail handlers to
return to their posts while other employees remained outside. Appellant refused to go inside
until all employees were required to return. Mr. Cote directed the mail handlers to go into the
plant and begin processing the mail and that appellant became “vociferous and disruptive” and
questioned him as to “why only the mail handlers?” He directed appellant to go to the control
center and appellant responded, “you do n[o]t want to go alone with me.” Mr. Cote felt
threatened by appellant’s behavior and requested that another supervisor accompany them. He
also alleged that appellant’s behavior at the subsequent meeting resulted in appellant being
escorted from the premises. In giving instructions to an employee, a supervisor is performing an
administrative function, which, absent evidence of error abuse, is not a compensable factor of
employment.11 While appellant may not have liked the way his supervisor directed him and the
other mail handlers, generally, complaints about the manner in which a supervisor performs his
or her duties or the manner in which a supervisor exercises his or her discretion fall, as a rule,
outside the scope of coverage provided by the Act. This principle recognizes that a supervisor or
manager in general must be allowed to perform his duties and employees will, at times, dislike
the actions taken. Mere disagreement or dislike of a supervisory or managerial action will not be
compensable, absent evidence of error or abuse.12 The Board finds that the evidence of record
does not establish error or abuse on the part of supervisor. Mr. Cote explained his actions and
the evidence does not establish that he acted unreasonably.
Appellant also referred to an instance on July 31, 2006 related to a request made to his
wife for a leave form and an instance on December 30, 2006 related to a request for time off.
The Board notes that although the handling of leave requests, are generally related to the
employment, they are administrative functions of the employer and not duties of the employee.13
The employing establishment noted that on July 31, 2006 appellant confronted Mr. Cote because
he had called his wife at home to request documentation concerning her absence. An
investigation revealed that appellant was acting inappropriately. The statements from Ms. Carter
and Mr. Shear, coworkers, who witnessed the event confirmed that appellant was making threats
and refused to leave. As to the December 30, 2006 incident, Mr. Gonzalez, the supervisor of
operations, indicated that appellant became agitated after being told that he would need to wait
for his leave to be approved. Appellant began to shout obscenities, threatened him and caused
him to feel that he was going to be physically attacked when he pointed his finger in his face.
Mr. Cote provided a December 31, 2006 statement confirming the event. The Board finds that
appellant’s supervisor acted reasonably as to these incidents. Appellant has not established a
compensable employment factor with respect to this administrative matters.
Appellant generally alleged that harassment and discrimination on the part of his
supervisors contributed to his claimed stress-related condition. To the extent that disputes and
incidents alleged as constituting harassment and discrimination by supervisors and coworkers are
established as occurring and arising from appellant’s performance of his regular duties, these
11

Paul L. Stewart, 54 ECAB 824 (2003).

12

See T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006).

13

C.S., 58 ECAB ___ (Docket No. 06-1583, issued November 6, 2006).

6

could constitute employment factors.14 However, for harassment or discrimination to give rise to
a compensable disability under the Act, there must be evidence that harassment or discrimination
did in fact occur. Mere perceptions of harassment or discrimination are not compensable under
the Act.15 In the present case, the employing establishment denied that appellant was subjected
to harassment or discrimination and appellant has not submitted sufficient evidence to establish
that he was harassed or discriminated against by his supervisors.16 Appellant has not presented
any corroborating evidence, such as witness statements, to establish that he was harassed or
discriminated against by his supervisors.17 Instead, statements from the employing establishment
note appellant’s history of difficulty interacting with his superiors. The employing establishment
provided reasonable explanations for its actions where appellant noted specific incidents. This
evidence does not support that appellant was harassed or discriminated against but instead
indicates that the employing establishment acted reasonably, under the circumstances, in
managing its employee.
While appellant submitted an October 17, 2007 settlement release from a grievance
pertaining to his removal from employment, this did not contain any admission of wrongdoing
by the employing establishment engaged in any wrongdoing. Grievances and Equal
Employment Opportunity complaints, by themselves, do not establish that workplace harassment
or unfair treatment occurred.18 Thus, appellant has not established a compensable employment
factor under the Act with respect to the claimed harassment and discrimination.
As appellant has not established a compensable employment factor, it is not necessary to
address the medical evidence.19
LEGAL PRECEDENT -- ISSUE 2
Section 812620 of the Act provides that the Secretary of Labor, on any matter within her
jurisdiction, may issue subpoenas for and compel attendance of witnesses within a radius of 100
miles. This provision gives the Office discretion to grant or reject requests for subpoenas which
will be issued for witnesses only where oral testimony is the best way to ascertain the facts.21
In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method to obtain such evidence because there is
14

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

15

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

16

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
17

See William P. George, 43 ECAB 1159, 1167 (1992).

18

James E. Norris, 52 ECAB 93 (2000).

19

Garry M. Carlo, 47 ECAB 299 (1996); see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

20

5 U.S.C. § 8126.

21

See 20 C.F.R. § 10.619.

7

no other means, by which the testimony could have been obtained.22 Additionally, a subpoena
request must be made within 60 days after the date of the original hearing request.23
The Office hearing representative retains discretion on whether to issue subpoenas. The
function of the Board on appeal is to determine whether there has been an abuse of discretion.
Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonably
exercise of judgment or action taken, which is clearly contrary to logic and probable deductions
from established facts.24
ANALYSIS -- ISSUE 2
On May 16, 2007 appellant requested a hearing. On June 27, 2007 appellant asked the
Office to issue a subpoena to his supervisor, Mr. Cote and alleged that Mr. Cote’s harassment
aggravated his generalized anxiety disorder condition.
The Board finds that the hearing representative properly denied appellant’s request
because appellant did not provide any explanation of why a subpoena was the best method to
obtain the evidence in question and why there was no other means by which the testimony could
have been obtained.
Generally, an abuse of discretion is shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deductions from established facts.25 The mere showing that the evidence would support a
contrary conclusion is insufficient to prove an abuse of discretion.
The Board finds that the Office hearing representative did not abuse his discretion
denying appellant’s request for a subpoena.
CONCLUSION
Appellant has not established that he sustained an emotional condition in the performance
of duty. The Board also finds that the Office hearing representative properly denied appellant’s
request for a subpoena.

22

Id.

23

20 C.F.R. § 10.619(a)(1).

24

Daniel J. Perea, 42 ECAB 214 (1990) (holding that abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic and
probable deductions from established facts). See also Dorothy Bernard, 37 ECAB 124 (1985).
25

V.T., 58 ECAB ___ (Docket No. 06-1347, issued October 19, 2006).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 27, 2007 is affirmed.
Issued: September 25, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

9


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

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

Docket No. 12-970
Issued: November 6, 2012

Case Submitted on the Record

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

JURISDICTION
On March 28, 2012 appellant, through his attorney, filed a timely appeal of a
December 7, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective June 14, 2011.
FACTUAL HISTORY
On November 19, 2010 appellant, then a 23-year-old letter carrier, injured his back and
left leg when a shelf fell on him at work. He has remained off duty since November 20, 2010.

1

5 U.S.C. § 8101 et seq.

OWCP accepted appellant’s claim for left knee derangement, cervical radiculitis and lumbar
radiculitis and paid disability compensation accordingly.2
November 23, 2010 x-rays by Dr. Charles L. Cooper, a radiologist, exhibited loss of
cervical and lumbar lordosis while November 29, 2010 x-rays obtained by Dr. Aspan S. Ohson, a
Board-certified diagnostic radiologist, showed lumbar degenerative disc disease. December 9,
2010 magnetic resonance imaging (MRI) scans obtained by Dr. Stephen M. Hershowitz, a
Board-certified diagnostic radiologist, confirmed C2-3, C5-6 and L3-4 disc bulging.
In a January 3, 2011 report, Dr. Mehran Manouel, a Board-certified orthopedic surgeon,
examined appellant and observed cervical, lumbar and left knee joint-line tenderness, limited
range of motion (ROM) and a positive McMurray’s test. X-rays revealed left knee medial
joint-line narrowing. Dr. Manouel noted that appellant previously underwent left knee surgery.
He diagnosed left knee, cervical and lumbar sprains as well as cervical and lumbar disc bulging
based on prior MRI scans. Dr. Manouel concluded that appellant was totally disabled due to the
November 19, 2010 employment injury.
Dr. Miriam E. Kanter, a Board-certified physiatrist, related in a January 10, 2011 report
that appellant was unable to return to work after the November 19, 2010 work accident. On
examination, she observed cervical and lumbar paraspinal myospasms, left knee effusion,
retropatellar and medial joint-line tenderness, quadriceps weakness, hypoesthesia to light tough
and pinprick in the left C5-6 and L4-S1 dermatomes, limited ROM and positive McMurray,
Lachman and Nachlas tests. Dr. Kanter diagnosed left knee derangement, cervical and lumbar
disc displacement and possible cervical and lumbar radiculopathy. Electromyograms (EMG) and
nerve conduction studies for the period January 18 to February 3, 2011 presented evidence of
bilateral carpal tunnel syndrome and bilateral C6, left L5-S1 and right S1 radiculopathy. In
January 17, February 1 to 7, 2011 work capacity evaluation forms, Dr. Kanter opined that
appellant was totally disabled.3
A February 8, 2011 left knee MRI scan obtained by Dr. Steven W. Winter, a
Board-certified diagnostic radiologist, showed medial meniscus extrusion, patellofemoral joint
subluxation, femoral condyle and medial tibial plateau chondral erosion, synovitis and
tricompartmental changes.
Dr. Vikas Varma, a Board-certified neurologist, advised in a March 10, 2011 report that
appellant sustained an industrial injury on November 19, 2010 and was thereafter rendered
totally disabled. On examination, he observed cervical and lumbar paravertebral spasms,
diminished right L5-S1 dermatomal sensation to light touch and pinprick, upper and lower
extremity allodynia, hyperpathia and dysesthesia, limited ROM and positive straight leg raise
and cross straight leg raise maneuvers. Following a review of the radiological records,
Dr. Varma diagnosed cervical and lumbar myofascial pain, degenerative disc disease and disc
bulging.
2

Information was incorporated into the March 22, 2011 statement of accepted facts.

3

Dr. Kanter’s February 7 and March 11, 2011 reports and March 22, 2011 work capacity evaluation form
incorporated the substance of his earlier records.

2

In an April 6, 2011 report, Dr. Laxmidhar Diwan, a Board-certified orthopedic surgeon,
remarked that appellant experienced symptoms stemming from the November 19, 2010
employment injury. On examination, he observed loss of cervical lordosis, muscle spasms,
paraspinal, parapatellar and joint-line tenderness, knee effusion, limited ROM and positive
McMurray’s test and straight leg raise maneuvers.
Dr. Diwan diagnosed left knee
chondromalacia, torn left medial and lateral menisci, C2-3, C5-6 and L3-4 disc bulging and
muscle spasms.4 He recommended left knee arthroscopy, which was subsequently authorized by
OWCP in April 20 and 25, 2011 letters.5
OWCP referred appellant for a second opinion examination to Dr. Leon Sultan, a
Board-certified orthopedic surgeon. In an April 13, 2011 report, Dr. Sultan reviewed the
March 22, 2011 statement of accepted facts and the medical file. On physical examination, he
observed dull biceps, triceps, radial, knee jerk and ankle jerk reflexes and limited cervical,
lumbar and left knee ROM. Sensory testing suggested high-glove anesthesia of the left upper
extremity and high-stocking anesthesia of the right lower extremity. Dr. Sultan commented that
these findings “[did] not conform to any anatomical nerve lesion or dermatome distribution” and
were “highly indicative of symptom[-]magnification.” He pointed out that appellant previously
sustained a back injury on April 13, 2010 and underwent left knee anterior cruciate ligament
repair. Dr. Sultan found that appellant was no longer disabled due to the November 19, 2010
employment injury because he did not exhibit objective signs of ongoing functional impairment
and prior MRI scans supported preexisting cervical, lumbar and left knee degenerative changes.
An April 13, 2011 work capacity evaluation form released appellant to regular duty.
In an April 11, 2011 report, Dr. Irfan A. Alladin, a Board-certified physiatrist, noted that
appellant complained of neck and lower back pain radiating to his upper extremities and lower
left extremity. On cervical examination, he observed limited ROM, muscle tenderness and
positive Spurling’s test, shoulder decompression, foraminal compression, Soto-Hall, axial
distraction and Valsalva maneuvers. On lumbar examination, Dr. Alladin found limited ROM,
C4-7 and L3-4 interspinous space tenderness, muscle spasms and positive bilateral straight leg
raise, Kemp’s, Patrick’s, McMurray and piriformis stretch maneuvers. On left knee
examination, he identified limited ROM, pes anserinus bursa pain, L4-S1 hypoesthesia to
pinprick and positive valgus and varus stress tests. Dr. Alladin also elicited bilateral T1 and T12
spinous process and facet tenderness.6 After reviewing the December 9, 2010 and February 7,
2011 MRI scans, he diagnosed cervical radiculopathy, strain and disc bulge, lumbar
radiculopathy, strain and disc bulge, low back syndrome and left knee sprain.7

4

Dr. Diwan’s May 18, 2011 report essentially duplicated the content of his earlier report. His May 4, 2011 work
capacity evaluation specified that appellant’s left knee instability hindered his ability to squat, kneel, send, sit and
stand.
5

The case record does not indicate whether appellant underwent this procedure following OWCP’s authorization.

6

Dr. Alladin’s notes from May 25 to June 10, 2011 reiterated similar findings.

7

In a June 8, 2011 report, Dr. Alladin recommended left knee arthroscopy and warned that discontinuation of
medical treatment may be detrimental to appellant’s recovery.

3

In a letter dated May 12, 2011, OWCP found that Dr. Sultan’s April 13, 2011 report
constituted the weight of the evidence and notified appellant of its proposal to terminate his
wage-loss compensation and medical benefits on the grounds that he no longer had any disability
or residuals of the work injury. It gave appellant 30 days to submit additional argument or
evidence.
Counsel contended in a May 23, 2011 letter that a conflict in medical opinion existed that
necessitated further development. In addition, he detailed that appellant underwent left knee
surgery approximately seven years earlier and sustained injuries on November 13, 2008;
January 16, 2009; and April 13, 2010 that were accepted by OWCP and designated as File Nos.
xxxxxx684, xxxxxx599 and xxxxxx657, respectively. A subsequent May 24, 2011 letter asked
OWCP to expand the present claim to include cervical and lumbar radiculopathy.
In an April 11, 2011 report, Dr. Mohamed K. Nour, a Board-certified orthopedic surgeon,
examined appellant and observed diminished cervical, lumbar and bilateral shoulder ROM,
cervical, right deltoid, right trapezius, lumbosacral and left patellar tenderness, muscle spasms,
and a positive bilateral straight leg raise test. He diagnosed acute post-traumatic cervical and
lumbar sprain/strain as well as left knee and right shoulder internal derangement secondary to the
November 19, 2010 work accident. Dr. Nour opined that appellant was partially disabled.
By decision dated June 15, 2011, OWCP finalized the termination of wage-loss
compensation and medical benefits effective June 14, 2011.
Counsel requested a video hearing, which was held on October 11, 2011. He asserted
that Dr. Sultan’s April 13, 2011 report relied upon an inaccurate factual and medical history.
Specifically, the March 22, 2011 statement of accepted facts did not refer to appellant’s
previously-accepted neck and back conditions8 or OWCP’s authorization of left knee
arthroscopy.
In notes dated July 11 and August 1, 2011, Dr. Barry Katzman, a Board-certified
orthopedic surgeon, found limited bilateral wrist dorsiflexion and palmar flexion and positive
Tinel’s sign, Phalen’s test and carpal compression tests on examination. He recommended
bilateral carpal tunnel release and flexor tenosynovectomy.
In an October 12, 2011 report, Dr. Diwan remarked that appellant sustained neck and
back injuries on the job on November 13, 2008; January 16, 2009 and April 13, 2010. He
clarified that the November 19, 2010 employment injury caused left knee chondromalacia and
meniscal tearing and aggravated his preexisting cervical and lumbar conditions, resulting in
radiculitis. Dr. Alladin related in an undated report that appellant’s injuries in 2008, 2009 and
early 2010 resolved, but he remained symptomatic as a result of the most recent November 19,
2010 work accident.9

8

Counsel cited OWCP File Nos. xxxxxx684 and xxxxxx657.

9

Dr. Diwan and Dr. Alladin’s physical examination findings and diagnoses essentially duplicated those contained
in their April 6 and 11, 2011 reports, respectively.

4

On December 7, 2011 OWCP’s hearing representative affirmed the June 15, 2011
decision.
LEGAL PRECEDENT
Once OWCP has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits,10 which includes furnishing rationalized medical opinion
evidence based on a proper factual and medical background.11 Having determined that an
employee has a disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability ceased or was no longer related to
the employment.12 The right to medical benefits for an accepted condition, on the other hand, is
not limited to the period of entitlement to disability compensation. To terminate authorization
for medical treatment, OWCP must establish that an employee no longer has residuals of an
employment-related condition, which would require further medical treatment.13
In assessing medical evidence, the number of physicians supporting one position or
another is not controlling. Instead, the weight of such evidence is determined by its reliability,
its probative value, and its convincing quality. Factors that comprise the evaluation of medical
evidence include the opportunity for and the thoroughness of physical examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of
analysis manifested, and the medical rationale expressed in support of the physician’s opinion.14
ANALYSIS
OWCP accepted that appellant sustained left knee derangement, cervical radiculitis and
lumbar radiculitis as a result of a November 19, 2010 work accident. Various reports for the
period January 3 to April 6, 2011 from Drs. Manouel, Kanter, Varma and Diwan placed
appellant on total disability status as a result of these accepted conditions. In an April 13, 2011
report, Dr. Sultan, the second opinion examiner, disagreed and concluded that appellant was no
longer disabled due to the November 19, 2010 employment injury and no longer had residuals of
that injury. Subsequent medical records for the period April 11 to October 12, 2011 from
Drs. Alladin and Diwan reiterated that he remained on total disability while a separate April 11,
2011 report from Dr. Nour supported partial disability. OWCP determined that Dr. Sultan’s
opinion constituted the weight of the evidence and thereafter terminated appellant’s entitlement
to disability compensation.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits.
10

I.J., 59 ECAB 408 (2008); Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).

11

D.C., Docket No. 09-1070 (issued November 12, 2009); Larry Warner, 43 ECAB 1027 (1992).

12

I.J., supra note 10.

13

L.G., Docket No. 09-1692 (issued August 11, 2010); Furman G. Peake, 41 ECAB 361, 364 (1990).

14

Anna M. Delaney, 53 ECAB 384, 386 (2002).

5

To assure that the report of a medical specialist is based upon a proper factual
background, OWCP provides information through the preparation of statement of accepted
facts.15 The statement of accepted facts is the means by which factual findings are separated
from medical findings and opinions. Clear factual findings are aimed at preventing physicians
from making erroneous factual assumptions about the case, which could undermine their medical
conclusions.16 When an OWCP medical adviser, a second opinion specialist, or a referee
physician renders a medical opinion based on a statement of accepted facts which is incomplete
or inaccurate, the probative value of the opinion is seriously diminished or negated altogether.17
In this case, Dr. Sultan’s conclusion that appellant had preexisting cervical and lumbar
degeneration was based on a deficient March 22, 2011 statement of accepted facts, which did not
include information about appellant’s previously-accepted neck and back conditions in 2008 and
early 2010. OWCP procedures require case doubling when a new injury is reported for an
employee who previously filed an injury claim for a similar condition or the same part of the
body.18 Because Dr. Sultan’s knowledge of the facts and medical history was incomplete, his
opinion was undermined. The reports from Drs. Manouel, Kanter, Varma, Diwan and Alladin
presented thorough physical examination findings and consistent analyses, supported total
disability causally related to appellant’s federal employment. Therefore, the Board finds that
OWCP improperly determined that Dr. Sultan’s report constituted the weight of the evidence.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and medical benefits effective June 14, 2011.

15

Mirna Cruz, Docket No. 06-183 (issued April 5, 2006).

16

FECA (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.2(c)
(September 2009).
17

A.R., Docket No. 11-692 (issued November 18, 2011); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Requirements for Medical Reports, Chapter 3.600.3 (October 1990). See also M.W., 57 ECAB 710 (2006); James A.
Wyrick, 31 ECAB 1805 (1980) (medical opinions based on an incomplete or inaccurate history are of diminished
probative value).
18

FECA (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).

6

ORDER
IT IS HEREBY ORDERED THAT the December 7, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 6, 2012
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.I., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, Fort Bragg, NC, Employer
__________________________________________

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

Docket No. 12-417
Issued: August 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 21, 2011 appellant, through his attorney, filed a timely appeal from an
August 30, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
regarding his schedule award claim and an October 5, 2011 nonmerit decision denying his
request for reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim and the
nonmerit issue.
ISSUES
The issues are: (1) whether appellant has more than a three percent permanent
impairment of the left lower extremity, for which he received a schedule award; and (2) whether
OWCP properly denied his request for reconsideration under 5 U.S.C. § 8128.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 13, 2003 appellant, then a 50-year-old welder, injured his left knee at work
while stepping on the bumper of a truck. OWCP accepted the claim for chondromalacia of the
left patella and osteoarthritis of the left knee. On July 11, 2003 appellant underwent an
authorized left knee arthroscopy with debridement of the medial meniscus tear and
chondroplasty. On October 27, 2003 he returned to modified-duty work. In a June 13, 2005
decision, OWCP determined that appellant’s modified position of human resources assistant,
fairly and reasonably represented his wage-earning capacity with no loss of wage-earning
capacity.
On November 22, 2004 appellant requested a schedule award. In August 24 and
November 4, 2004 reports, Dr. James P. Flanagan, a Board-certified orthopedic surgeon,
provided examination findings and opined that appellant had impairment. Under the fifth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides), he opined that appellant had 35 percent impairment of the left leg based on
strength, osteoarthritis and range of motion. In an April 28, 2005 report, an OWCP medical
adviser opined that appellant had two percent permanent impairment for a partial medial
meniscectomy. He stated no impairment could be based on range of motion and noted that
impairment for arthritis could only be calculated under Table 14-31, page 544. On March 9,
2006 Dr. Flanagan opined that appellant had 40 percent impairment of the left leg. He noted that
appellant would need a total knee replacement in the near future. On April 10, 2006 an OWCP
medical adviser opined that appellant had 20 percent impairment of the left leg based on loss of
range of motion. He explained that loss of strength could not be combined with the other
impairments. In response to OWCP’s request for clarification, the medical adviser, in a
November 17, 2006 report, indicated that appellant had 20 percent impairment for loss of range
of motion plus 2 percent impairment for his partial medial meniscectomy, for a total of 22
percent impairment of the left lower extremity.
OWCP asked Dr. Flanagan to review the medical adviser’s report and provide a more
comprehensive impairment rating. In a December 19, 2006 report, Dr. Flanagan indicated that
appellant’s impairment rating was not going to change. He noted the only thing that would
change would be appellant’s pain level which would increase until he was ready to proceed with
a total knee replacement.
After appellant inquired about his schedule award claim, OWCP on June 4, 2009 asked
that Dr. Flanagan provide an impairment rating under the sixth edition of the A.M.A., Guides. In
an October 6, 2009 report, Dr. Flanagan stated that, under Table 16.3 of the sixth edition of the
A.M.A., Guides, appellant had a class 3 severe problem for the left knee that totaled 49 percent
left leg impairment. He recommended a total knee replacement. On November 24, 2009 OWCP
stated that it would not consider the schedule award claim as it did not appear appellant was at
maximum medical improvement since Dr. Flanagan recommended additional treatment.
In an April 7, 2010 letter, appellant stated that he declined the recommended total knee
arthroplasty and wished to be assigned a permanent impairment rating. In a May 27, 2010
report, Dr. Flanagan noted examination findings and opined that appellant reached maximum

2

medical improvement. He stated that, while a total knee replacement might be needed at some
point, it did not look like it would be needed in the near future.
In an August 17, 2010 report, an OWCP medical adviser recommended that appellant be
seen for a second opinion examination.
In a September 30, 2010 report, Dr. James A. Maultsby, a Board-certified orthopedic
surgeon and OWCP referral physician, reviewed appellant’s history and noted examination
findings. He also had appellant undergo an electromyogram (EMG) and a functional capacity
evaluation. Dr. Maultsby stated that the left knee and leg were larger and stronger than the right
knee and there was no weakness. He noted that this was different from appellant’s examining
physician, who gave 3/5 weakness. Dr. Maultsby stated that appellant had 5/5 strength and that
he could fully extend and flex both knees equally. X-rays revealed three millimeters’ (mm)
thickness of the articular cartilage of the left knee. Dr. Maultsby noted that there was four mm
thickness on the right knee, which was one mm difference. He also noted very mild cartilage
narrowing. Dr. Maultsby opined that, under Table 16-3 of the sixth edition of the A.M.A.,
Guides, appellant had class 1 primary knee arthritis. He stated that the modifier for functional
history would be 1 or below; however, this would be disregarded because appellant’s physical
examination was contrary to the functional history as the physical examination revealed full
range of motion, full extension and full flexion of both knees. The modifier for clinical studies
was also zero. Under Table 16-3, appellant had primary joint arthritis with a mild problem.
Because he had three mm cartilage interval, he was a class 1 or seven percent impairment of the
left leg. Regarding objective findings, Dr. Maultsby indicated that there was no decrease in
strength, no atrophy, no ankylosis and no sensory changes, except for some on top of the foot,
which was not related to the knee condition. He opined that appellant was likely addicted to his
pain medicine. Dr. Maultsby asserted that Dr. Flanagan’s 49 percent impairment rating was not
supported by objective findings.
OWCP determined that a conflict in medical opinion existed between Dr. Flanagan and
Dr. Maultsby regarding appellant’s permanent impairment and referred appellant to
Dr. Robert W. Elkins, a Board-certified orthopedic surgeon, for an impartial medical
examination.
In a November 17, 2010 report, Dr. Elkins indicated his review of appellant’s medical
record and the statement of accepted facts. He reported appellant’s complaints of left knee pain
and swelling with popping and grinding. Appellant reported knee pain with almost any activity.
On examination, he refused to toe walk or knee walk. Quad strength was diminished and
appellant complained of severe left knee pain with a range of motion from 3 degrees of flexion to
104 degrees of flexion. There was a negative drawer sign and no atrophy, crepitus or instability.
Appellant had tenderness to the slightest touch over the medial joint line. He diagnosed
degenerative arthritis of the left knee, possible re-tear left medial meniscus, chronic pain
syndrome and mild symptom magnification and pain accentuation. Appellant recommended a
standing x-ray as well as a magnetic resonance imaging (MRI) scan of the left knee. In a
February 10, 2011 report, Dr. Elkins noted that appellant’s December 29, 2010 MRI scan and
January 26, 2011 standing x-rays of the left knee revealed degenerative changes of the medial
meniscus and early minimal osteoarthritis. He opined that appellant reached maximum medical
improvement. Dr. Elkins also opined that appellant’s subjective complaints outweighed his

3

objective findings. Under pages 509 through 511 of the sixth edition of the A.M.A., Guides, he
stated that appellant’s main symptom generator was patellofemoral arthritis and not the prior
partial meniscectomy. Dr. Elkins noted that, although the percentages were similar, they were
not exactly the same. He stated that appellant had a class 1 or three percent impairment.
Dr. Elkins noted that appellant had a grade 1 modifier for physical examination, some of which
was indicative of symptom magnification and a grade 1 modifier for functional history. After the
net adjustment formula, he opined that appellant had three percent impairment of the left lower
extremity due to his patellofemoral arthritis.
In a March 2, 2011 report, an OWCP medical adviser noted that the impartial medical
examiner’s reports of November 17, 2010 and February 10, 2011 were thorough and objective
and that the A.M.A., Guides were correctly used. He found that three percent permanent
impairment for the left leg for chondromalacia patella/patella femoral arthritis was correct.
In a March 14, 2011 decision, OWCP issued a schedule award for three percent
permanent impairment of the left leg. Special weight was accorded to Dr. Elkin’s impartial
medical opinion.
Appellant requested an oral hearing, which was held telephonically on June 21, 2011. At
the hearing, he indicated that he originally injured his left knee on October 7, 2002.2 Appellant
testified as to his current problems with his left knee and stated that he felt a rating of three
percent permanent impairment was not justifiable. He disagreed with Dr. Elkins’ report and
stated that he could not fully extend his leg. Appellant stated that there were no other
intervening injuries to his left knee. He stated that he retired on disability in September 2009.
Appellant submitted additional reports from Dr. Flanagan dated October 6, 20093 and
July 8 and 15, 2011. In his July 8, 2011 report, Dr. Flanagan stated that appellant’s left knee was
progressively worsening. Appellant had very limited range of motion, poor quad strength and
was barely able to do a straight leg raise. He also had difficulty rising out of the chair.
Dr. Flanagan opined that appellant’s best option was a knee replacement. He indicated that
appellant’s knee worsening would not change his rating. In his July 15, 2011 report,
Dr. Flanagan noted that appellant had an injection.
By decision dated August 30, 2011, an OWCP hearing representative affirmed the
March 14, 2011 decision.
On September 20, 2011 appellant requested reconsideration. He pointed out that
Dr. Flanagan opined in his October 6, 2009 report that appellant had 49 percent impairment of
the left lower extremity. Appellant submitted reports previously of record from Dr. Flanagan
dated October 6, 2009 and July 8, 2011.4
2

Claim number xxxxxx482 was assigned to the 2002 left knee injury and was administratively accepted without
formal review for a limited medical expense.
3

This report was previously of record.

4

Although OWCP references a September 20, 2011 report from Dr. Flanagan, the record contains a report
duplicative of Dr. Flanagan’s July 8, 2011 report which it erroneously noted was dated September 20, 2011.

4

By decision dated October 5, 2011, OWCP denied appellant’s reconsideration request on
the grounds that evidence submitted was duplicative of evidence previously considered.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.6 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).11
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee the Secretary shall
appoint a third physician who shall make an examination.12 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.13
5

20 C.F.R. § 10.404.

6

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

7

Ronald R. Kraynak, 53 ECAB 130 (2001).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010).
9

A.M.A., Guides 3-6 (6th ed. 2008).

10

Id. at 494-531.

11

Id. at 521.

12

Veronica Williams, 56 ECAB 367, 370 (2005).

13

Regina T. Pellecchia, 53 ECAB 155 (2001).

5

ANALYSIS -- ISSUE 1
The sixth edition of the A.M.A., Guides provides that lower extremity impairments are to
be classified by diagnosis. The classification is then adjusted by grade modifiers according to
the formula noted above. Appellant’s accepted diagnosed condition was chondromalacia of the
left patella and osteoarthritis of the left knee, for which he underwent arthroscopic surgery on
July 11, 2003. After he filed a claim for a schedule award, OWCP requested that Dr. Flanagan
assess permanent impairment under the sixth edition of the A.M.A., Guides and, in an October 6,
2009 report, Dr. Flanagan opined that appellant had 49 percent left leg impairment under the
A.M.A., Guides. Thereafter, Dr. Maultsby, OWCP’s referral physician, examined appellant and
opined that he had seven percent left leg impairment. OWCP properly found a conflict in the
medical evidence and it referred appellant to Dr. Elkins, a Board-certified orthopedic surgeon,
for an impartial medical examination and opinion on the matter.
The Board finds that OWCP properly determined that the weight of the medical opinion
evidence regarding the extent of appellant’s permanent impairment rests with the wellrationalized opinion of Dr. Elkins.
In his November 17, 2010 report, Dr. Elkins noted his review of the medical records, the
statement of accepted facts and set forth his examination findings. He diagnosed degenerative
arthritis of the left knee, possible re-tear left medial meniscus, chronic pain syndrome and mild
symptom magnification and pain accentuation. Dr. Elkins recommended standing x-rays and an
MRI scan of the left knee prior to providing an impairment determination. After reviewing the
results of the December 29, 2010 MRI scan and January 26, 2011 standing x-rays of the left
knee, he opined in a February 10, 2011 report that appellant had reached maximum medical
improvement. Dr. Elkins also advised that appellant’s subjective complaints outweighed his
objective findings. He opined that, under Table 16-3, page 511 of the sixth edition of the
A.M.A., Guides, appellant had three percent impairment of the left lower extremity due to
patellofemoral arthritis. Dr. Elkins stated that appellant’s main symptom generator was
patellofemoral arthritis and not the prior partial meniscectomy. Under Table 16-3, page 511, he
noted that appellant had a class 1 or three percent default impairment. Dr. Elkins assigned a
grade one modifier for physical examination, some of which was indicative of symptom
magnification and a grade one modifier for functional history. He utilized the net adjustment
formula and found that there was no net adjustment. Thus, Dr. Elkins properly opined that
appellant had three percent impairment of the left leg. OWCP’s medical adviser concurred in
Dr. Elkins’ calculation.
Dr. Flanagan subsequently submitted a July 8, 2011 report, in which he noted findings of
limited range of motion, poor quad strength was poor and difficulty doing straight leg raise as
well as rising out of the chair and indicated that appellant needed a total knee replacement. He,
however, specifically indicated that appellant’s knee worsening would not change his

6

impairment rating. Thus, this report would not be sufficient to create a new conflict with
Dr. Elkin’s opinion regarding the extent of permanent impairment.14
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.15 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.16
ANALYSIS -- ISSUE 2
On September 20, 2011 appellant requested reconsideration of OWCP’s August 30, 2011
decision which found that he had no more than three percent impairment to his left leg. His
request for reconsideration neither alleged nor demonstrated that OWCP erroneously applied or
interpreted a specific point of law. Appellant did not advance a relevant legal argument not
previously considered by OWCP. While he noted that Dr. Flanagan’s October 6, 2009 report
found 49 percent impairment of the left leg, this report was previously considered as it gave rise
to the conflict that Dr. Elkins resolved.17 Appellant is not entitled to a review of the merits of his
claim based on the above-noted requirements under section 10.606(b)(2).
Appellant also did not submit relevant and pertinent new evidence not previously
considered by OWCP. The medical reports from Dr. Flanagan dated October 6, 2009 and July 8,
2011 were previously considered by OWCP and repeat evidence already of record; thus, they are
duplicative and do not constitute relevant and pertinent new evidence.18
The evidence submitted by appellant did not show that OWCP erroneously applied or
interpreted a specific point of law; advance a relevant legal argument not previously considered
14

Furthermore, submitting a report from a physician who was on one side of a medical conflict that an impartial
specialist resolved is generally insufficient to overcome the weight accorded to the report of the impartial specialist
or to create a new conflict. S.J., Docket No. 09-1794 (issued September 20, 2010).
15

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141 (2007).

16

Id. at § 10.608(b); K.H., 59 ECAB 495 (2008).

17

See J.P., 58 ECAB 289 (2007) (evidence or argument that repeats or duplicates evidence previously of record
has no evidentiary value and does not constitute a basis for reopening a case).
18

See D.K., 59 ECAB 141 (2007).

7

or constitute relevant and pertinent new evidence not previously considered by OWCP. As
appellant did not meet any of the necessary regulatory requirements, the Board finds that he is
not entitled to further merit review.
On appeal, appellant’s attorney argues that OWCP’s decisions are contrary to fact and
law. As noted, none of the medical evidence of record offered a rationalized medical opinion
sufficient to create a new conflict with Dr. Elkins’ impartial medical opinion.
CONCLUSION
The Board finds that appellant has no more than a three percent permanent impairment of
the left lower extremity, for which he received a schedule award. The Board also finds that
OWCP properly denied appellant’s request for further review of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 5 and August 30, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 3, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.J., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Roselle, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-767
Issued: October 25, 2012

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 February 23, 2012 appellant, through her attorney, filed a timely appeal of the
January 30, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for reconsideration on the grounds that it was not timely filed and failed to
establish clear evidence of error.1 Because more than 180 days elapsed between the most recent
merit decision dated July 6, 2009 to the filing of this appeal, the Board lacks jurisdiction to
review the merits of this case pursuant to the Federal Employees’ Compensation Act2 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.3

1

The Board notes that counsel stated that he was appealing a July 30, 2012 OWCP decision. The record does not
contain a final adverse decision issued by OWCP on that date. Instead, the record contains OWCP’s January 30,
2012 nonmerit decision denying appellant’s request for reconsideration which is within the Board’s jurisdiction as
the appeal it was filed within 180 days from the date of issuance. 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

3

See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
On appeal, counsel contends that the medical evidence of record is sufficient to establish
that appellant sustained a right foot fracture due to the accepted April 14, 2009 employment
incident.
FACTUAL HISTORY
On April 14, 2009 appellant, then a 34-year-old crew leader, filed a traumatic injury
claim alleging that she sustained a swollen right foot on that date and scraped her left knee when
she fell and twisted her right ankle while carrying a box of census work to her car.
The hospital records include a medical report dated April 14, 2009 signed by
Betsy Rondinelli, a registered nurse, who advised that appellant had a right foot fifth metatarsal
fracture and left knee laceration. Discharge instructions dated April 14, 2009 addressed
appellant’s treatment plan and follow-up medical care related to her right foot and left knee
injuries.
In medical records from April 16 to June 5, 2009, Dr. Rick J. Delmonte, an attending
Board-certified podiatrist, advised that appellant had a right foot fifth metatarsal fracture and left
knee laceration. In a May 20, 2009 report, he recommended that she stay off her feet until
further notice due to the severity of her condition. On June 5, 2009 Dr. Delmonte released her to
return to work on June 29, 2009.
In a July 6, 2009 decision, OWCP found that the evidence was sufficient to establish that
the April 14, 2009 incident occurred as alleged. It denied appellant’s claim finding insufficient
medical evidence to establish that she sustained injury causally related to the accepted
employment incident.
By letter dated May 13, 2011, appellant, through her attorney, requested reconsideration.
Appellant submitted copies of Nurse Rondinelli’s April 14, 2009 report, the April 14,
2009 discharge instructions and Dr. Delmonte’s April 16, 2009 treatment note and May 20, 2009
report.
An April 14, 2009 report from Dr. Neil B. Horner, a Board-certified radiologist, advised
that an x-ray of the right ankle demonstrated a fracture at the base of the fifth metatarsal and
associated marked soft tissue swelling. On April 14, 2009 he reported that an x-ray of the left
knee showed no fracture or subluxation.
In a January 30, 2012 decision, OWCP denied appellant’s request for reconsideration,
without a merit review as it was not timely filed and failed to establish clear evidence of error in
the July 6, 2009 decision.

2

LEGAL PRECEDENT
Section 8128(a) of FECA4 does not entitle a claimant to a review of an OWCP decision
as a matter of right.5 OWCP, through its regulations, has imposed limitations on the exercise of
its discretionary authority under section 8128(a). Section 10.607(a) of OWCP’s implementing
regulations provide that an application for reconsideration must be sent within one year of the
date of OWCP’s decision for which review is sought.6
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.8 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.9 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.12
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.13 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.14
4

5 U.S.C. § 8128(a).

5

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

20 C.F.R. § 10.607(a).

7

Id. at § 10.607(b).

8

Nancy Marcano, 50 ECAB 110, 114 (1998).

9

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

10

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

11

Leona N. Travis, supra note 9.

12

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

13

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

14

Thankamma Mathews, 44 ECAB 765, 770 (1993).

3

ANALYSIS
The Board finds that appellant did not file a timely request for reconsideration. The
Boards procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.15 However, a right to reconsideration within
one year also accompanies any subsequent merit decision on the issues.16
The most recent merit decision in this case was OWCP’s July 6, 2009 decision, which
accepted that the April 14, 2009 incident occurred as alleged but found that the medical evidence
was insufficient to establish a causal relationship between appellant’s right foot and left knee
conditions to the accepted employment incident. Appellant’s May 13, 2011 letter requesting
reconsideration of the merits of her claim by OWCP was made more than one year after the
July 6, 2009 merit decision.17 The Board finds that it was not timely filed.
The Board further finds that appellant has not established clear evidence of error on the
part of OWCP. The duplicate April 14, 2009 discharge instructions and Dr. Delmonte’s
April 16, 2009 treatment note and May 20, 2009 medical report were previously of record and
considered in the July 6, 2009 decision. Resubmission of this material does not establish clear
evidence of error regarding the determination that appellant did not sustain an injury related to
the April 14, 2009 employment incident. The discharge instructions and Dr. Delmonte found
that she had right foot fifth metatarsal fracture and left knee laceration. Dr. Delmonte
recommended that she stay off her feet until further notice due to the severity of her condition.
This evidence, however, failed to provide a medical opinion explaining how appellant’s fall on
April 14, 2009 caused the diagnosed conditions or resultant disability. The Board finds,
therefore, that the discharge instructions, treatment note and medical report resubmitted by her
do not discharge her burden of showing clear evidence of error.
Dr. Horner’s diagnostic test results failed to establish clear evidence of error. He failed
to provide any medical opinion explaining how appellant’s fall on April 14, 2009 caused a
fracture at the base of the right foot fifth metatarsal and associated marked soft tissue swelling of
the right ankle. Further, Dr. Horner did not diagnose a left knee condition causally related to the
accepted employment incident.
The April 14, 2009 report signed by Nurse Rondinelli is of no probative value as a nurse
is not a physician as defined by FECA.18 Thus, the Board finds that her report does not shift the

15

20 C.F.R. § 10.607(a); see A.F., 59 ECAB 714 (2008).

16

D.G., 59 ECAB 455 (2008); Robert F. Stone, 57 ECAB 292 (2005).

17

Appellant had one year to request reconsideration by OWCP of its July 6, 2009 decision. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.6a (January 2004).
18

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by State law).

4

weight in favor of appellant to demonstrate clear evidence of error on the part of OWCP in the
issuance of its July 6, 2009 decision.
The Board finds that the evidence submitted by appellant in support of her untimely
request for reconsideration does not constitute positive, precise and explicit evidence, which
manifests on its face that OWCP committed an error. Therefore, appellant failed to meet her
burden of proof to show clear evidence of error on the part of OWCP.
On appeal, appellant’s attorney contended that the medical evidence was sufficient to
establish an employment-related right foot fracture. As discussed, the medical evidence was not
sufficient to shift the weight of the evidence in appellant’s favor and raise a substantial question
as to the correctness of OWCP’s decision denying her traumatic injury claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and failing to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2012
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

5