United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Valley Stream, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1943
Issued: July 29, 2014

Case Submitted on the Record

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

JURISDICTION
On August 22, 2013 appellant, through her attorney, filed a timely appeal of the July 9,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty.
FACTUAL HISTORY
On August 20, 2011 appellant, then a 55-year-old carrier, filed a traumatic injury claim
alleging that on the same date as she was walking to her next mail delivery she stumbled and fell
and injured her right hip, hand and forehead. She stopped work on August 22, 2011 and did not
return.
1

5 U.S.C. §§ 8101-8193.

Appellant submitted an August 20, 2011 duty status report from Dr. Rathindra Banik,
Board-certified in emergency medicine, who found contusion of the head and hip and returned
appellant to work without restrictions. Dr. Brian D. Feingold, a Board-certified internist, noted
in an August 22, 2011 attending physician’s report that appellant fell at work on August 20, 2011
and sprained her neck and hip.2 He noted with a checkmark “yes” that her condition was caused
or aggravated by an employment activity. Dr. Feingold found appellant disabled since
August 20, 2011. In an August 22, 2011 duty status report, he noted findings of neck, lower
back and left leg pain. Dr. Feingold noted that appellant was disabled.
An August 30, 2011 lumbar spine magnetic resonance imaging (MRI) scan showed right
paracentral protrusion at L4-5, encroaching on the right L5 nerve root, L5-S1 encroaching on the
S1 nerve root with a right paracentral annular tear at L3-4. An August 30, 2011 cervical spine
MRI scan revealed left paracentral protrusions at C3-4, C6-7 without compression and mild
diffuse disc bulging at C5-6 and dilation of existing nerve root sheath suggesting multiple
perineural cysts. In a September 26, 2011 duty status report, Dr. Michael B. Shapiro, a Boardcertified orthopedist to whom appellant was referred by Dr. Feingold, noted findings of pain in
the hip and advised that appellant could not return to work.
By letter dated October 14, 2011, OWCP advised appellant of the type of factual and
medical evidence needed to establish her claim.
Appellant submitted August 20, 2011 emergency room records from an unidentified
provider which noted that appellant reported tripping and falling. An August 20, 2011 x-ray of
the right femur and a computerized tomography scan of the head, both ordered by Dr. Banik,
revealed no abnormalities. In an August 22, 2011 report, Dr. Shapiro noted treating appellant for
back, neck, right hip and right leg pain. Appellant reported working as a letter carrier and stated
that her pain started on August 20, 2011 while walking, her right leg gave out and she stumbled
and fell in the street and hit her head and the right side of her body. Dr. Shapiro noted findings
of diminished range of motion of the neck, cervical and lumbar spine pain, muscle spasm of the
cervical spine, positive straight leg raises on the right and intact reflexes and sensations in the
upper and lower extremities. He diagnosed cervicalgia, lumbago and lumbar radiculopathy. In
September 26, October 24 and 31, 2011 reports, Dr. Shapiro treated appellant for pain in the
spine, back, right hip and right leg. He repeated his diagnoses and advised that appellant was not
working. In duty status reports dated October 24 and 31, 2011, Dr. Shapiro diagnosed hip pain
and noted that appellant could return to work on January 11, 2012 with restrictions. An
August 30, 2011 MRI scan of the cervical spine revealed possible fat within the spinal cord, left
paracentral protrusion at C3-4, C6-7 with mild diffuse bulging at C5-6 and possible cysts in the
cervical and thoracic spine.
In a decision dated November 15, 2011, OWCP denied appellant’s claim on the grounds
that the evidence was not sufficient to establish that the events occurred as alleged.
On November 28, 2011 appellant requested a review of the written record. In a
November 5, 2011 letter, appellant’s representative noted that on August 15, 2011, while
stepping out of her vehicle, appellant felt a sharp pain in her right hip and reported it to her
2

On August 20, 2011 the employing establishment issued a Form CA-16, Authorization for Examination and/or
Treatment, to Dr. Feingold which authorized him to furnish treatment to appellant.

2

supervisor. Appellant continued working and, on August 20, 2011, while delivering mail at 15
Birchwood Drive West, she began walking to her next delivery when her right leg gave out, she
fell and struck her head. In a November 8, 2011 statement, she indicated that, before her fall, she
delivered mail to 15 Birchwood Drive West and rang the doorbell to alert the homeowner.
Appellant then walked from the yard, which had a downward incline, to the next delivery. She
had three bundles of mail and regular mail and flats in her mailbag and, while walking from the
yard, her right leg gave way and she stumbled forward into the street and reached her right hand
out and fell onto her right side. Although appellant was wearing a helmet, she had a bump on
her head. In a January 26, 2012 statement, she noted pulling a right hip muscle on
August 15, 2011. On August 20, 2011, while delivering mail, appellant stumbled and fell in the
street and hit her head and right side. She noted that the mail route did not have sidewalks and
she was walking in the street when her leg gave out. Appellant submitted an undated witness
statement from H. Krasner, who resides at 15 Birchwood Drive West, who noted that on
August 20, 2011 he saw appellant fall in the street outside his door after she delivered his mail
and rang his doorbell. Mr. Krasner tried to help appellant and noticed that mail was all over the
street.
Appellant submitted an August 22, 2011 consultation note from Dr. Feingold who treated
her status post fall on August 20, 2011 while delivering mail. She reported falling and hitting
her head and neck. Dr. Feingold noted mild tenderness of the right hip and intact motor and
sensory function. He diagnosed status post accident on August 20, 2011, mild head contusion
and sprain of the right hip. Appellant submitted November 28, 2011 and January 2, 2012 reports
from Dr. Shapiro who treated appellant for spine, back, neck, right hip and right leg pain.
Dr. Shapiro noted that appellant had a leg giving way episode secondary to her pain and
herniation. He diagnosed cervicalgia, lumbago and lumbar radiculopathy. In an November 28,
2011 duty status report, Dr. Shapiro noted clinical findings of pain in the hip and returned
appellant to work full time with restrictions. In a January 2, 2012 report, he treated appellant for
spine, back, neck, right hip and right knee pain.
In a decision dated May 2, 2012, an OWCP hearing representative affirmed the
November 15, 2011 decision.
Appellant continued submitting medical evidence. In a May 13, 2012 report, Dr. Shapiro
noted appellant’s original injury was on August 15, 2011 when she stepped out of her truck and
felt a sharp pain into the hip and was treated on August 22, 2011 after her fall. He noted
diminished range of motion of the neck, back and cervical spine. Dr. Shapiro diagnosed
cervicalgia, lumbago and lumbar radiculopathy. In an October 11, 2012 report, Dr. Mitchell
Goldstein, a Board-certified orthopedist and associate of Dr. Shapiro, treated appellant for neck,
left hand and left hip pain. He noted that appellant was a letter carrier and on August 15, 2011
she fell at work and hit her head on the pavement while wearing a helmet and injured her head,
neck and right side. Dr. Goldstein also noted a date of injury of August 20, 2011. He noted
positive findings on examination and diagnosed lumbar radiculopathy, cervicalgia and lumbago.
Dr. Goldstein noted appellant’s injuries were directly related to her fall at work on
August 15, 2011.
On April 25, 2013 appellant’s counsel requested reconsideration and asserted that
appellant submitted sufficient evidence to support that she sustained an injury on August 20,
2011 while delivering mail. He provided an October 15, 2012 report from Dr. Shapiro who
3

opined that the injuries appellant sustained on August 20, 2011 were the result of the fall that
occurred on that day. Dr. Shapiro treated appellant on August 22, 2011 and noted that she was
seen in the emergency room on August 20, 2011. In a May 7, 2013 report, he noted first seeing
appellant on August 22, 2011. Appellant reported working as a letter carrier and noted stepping
down from her truck and having pain that shot down her right leg. Several days later, on
August 20, 2011, she reported working and her leg gave way causing her to fall injuring her hip
and neck. Dr. Shapiro noted diminished neck and lumbar spine range of motion, muscle spasms
and positive straight leg raises. A lumbar MRI scan revealed disc protrusions at L4-5 and L5-S1
and a cervical spine MRI scan revealed disc protrusions at C3-4 and C6-7 and C5-6. Dr. Shapiro
diagnosed cervicalgia, lumbar radiculopathy and lumbago. He opined that, if the history
provided was correct, he felt the injury appellant sustained to her neck, hip and leg were causally
related to her work-related injury as a mail carrier on August 20, 2011.
In a July 9, 2013 decision, OWCP denied modification of the May 2, 2012 decision.
LEGAL PRECEDENT
An employee seeking benefits 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 filed within the applicable time limitation
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 is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.4
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.5
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action. An employee has not met his or her burden in establishing the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged

3

Gary J. Watling, 52 ECAB 357 (2001).

4

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

5

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

4

injury and failure to obtain medical treatment may, if otherwise unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.6
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
OWCP denied appellant’s claim on the grounds that she failed to establish that the events
occurred as alleged. However, the evidence supports that on August 20, 2011 appellant was
delivering mail and stumbled and fell while working. Appellant submitted a statement from a
postal customer where the fall occurred. Mr. Krasner noted that on August 20, 2011 appellant
rang his doorbell after dropping off his mail and he opened his door to retrieve the mail and saw
appellant fall in the street outside his door. Additionally, the history of injury noted by
healthcare providers is consistent with the history provided by appellant. These include
emergency room records from August 20, 2011, which noted that appellant reported tripping and
falling. The Board finds that appellant’s statements are consistent with the surrounding facts and
circumstances and she has established that she experienced the employment incident on
August 20, 2011 as alleged.
The Board finds, however, that the medical evidence is insufficient to establish that
appellant developed a right hip, hand, forehead condition and lumbar and cervical herniated discs
causally related to the August 20, 2011 work incident. Appellant did not submit a medical report
from an attending physician explaining how the August 20, 2011 work incident caused or
aggravated her diagnosed conditions.
The most contemporaneous report is Dr. Banik’s August 20, 2011 duty status report.
Dr. Banik noted clinical findings of contusion of the head and hip. However, he returned
appellant to work without restrictions and did not provide a history of injury or specifically
address the cause of appellant’s contusions.8
Appellant submitted an August 22, 2011 attending physician’s report from Dr. Feingold
who noted that she fell at work on August 20, 2011 and sustained a head injury, neck sprain and
right hip tenderness. He checked a box “yes” that appellant’s condition was caused or
aggravated by work activity. The Board has held that an opinion on causal relationship which
consists only of a physician checking “yes” to a medical form report question on whether the
claimant’s condition was related to the history given is of little probative value. Without any
explanation or rationale for the conclusion reached, such report is insufficient to establish causal

6

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

7

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

8

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

5

relationship.9 In a note dated August 22, 2011, Dr. Feingold noted treating appellant’s status
post fall on August 20, 2011 while delivering mail. Appellant reported falling and hitting her
head and neck. Dr. Feingold diagnosed status post accident on August 20, 2011, mild head
contusion and sprain of the right hip. In an August 22, 2011 duty status report, he noted
appellant was disabled. However, Dr. Feingold appears merely to be repeating the history of
injury as reported by appellant without providing his own opinion regarding whether appellant’s
condition was work related. To the extent that Dr. Feingold provided his own opinion, the
physician failed to provide a rationalized opinion regarding the causal relationship between
appellant’s head contusion and sprain of the right hip and the August 20, 2011 fall.10 Therefore,
these reports are insufficient to meet appellant’s burden of proof.
Reports from Dr. Shapiro provided some support for causal relationship. In his
October 15, 2012 report, Dr. Shapiro opined that the injuries appellant sustained on August 20,
2011 were the result of the fall that occurred on that day. He treated appellant on August 22,
2011 and noted that she was seen in the emergency room on August 20, 2011. In a May 7, 2013
report, Dr. Shapiro noted that appellant reported working as a letter carrier and noted stepping
down from her truck and experiencing pain that shot down her right leg. Several days later,
appellant reported working and her leg gave way causing her to fall injuring her hip and neck.
Dr. Shapiro noted MRI scan findings and diagnosed cervicalgia, lumbar radiculopathy and
lumbago. He opined that, if the history provided was correct, he felt the injury appellant
sustained to her neck, hip and leg were causally related to her work-related injury as a mail
carrier on August 20, 2011. These reports, at best, provide conclusory and speculative support
for causal relationship. Dr. Shapiro couched his opinion in speculative terms noting that “if the
history provided was correct” appellant’s injury to her neck, hip and leg were causally related to
her work incident on August 20, 2011.11 He provided no medical reasoning explaining why
particular workplace substances caused or aggravated a diagnosed condition. Therefore, this
report is insufficient to meet appellant’s burden of proof.
Dr. Shapiro’s August 22, 2011 report related the history as provided by appellant and
stated her pain started on August 20, 2011 while walking, her right leg gave out and she
stumbled and fell in the street and hit her head and the right side of her body. He noted findings
and diagnosed cervicalgia, lumbago and lumbar radiculopathy. Dr. Shapiro repeats the history
reported by appellant rather than providing his own opinion on causal relationship. In any event,
he did not provide medical rationale regarding the causal relationship between appellant’s head
contusion and sprain of the right hip and the August 20, 2011 work incident. Other treatment
records and reports from Dr. Shapiro note appellant’s history and status but do not provide a
reasoned medical opinion explaining how the August 20, 2011 work incident caused or
contributed to any diagnosed medical condition and associated disability. The need for rationale
is particularly important in this case where the more contemporaneous August 20, 2011 report
from Dr. Banik released appellant to work without restriction. Therefore, the evidence from
Dr. Shapiro is insufficient to meet appellant’s burden of proof.
9

Sedi L. Graham, 57 ECAB 494 (2006); D.D., 57 ECAB 734 (2006); Lucrecia M. Nielson, 41 ECAB 583,
594 (1991).
10
Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
11

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57
ECAB 734 (2006).

6

Dr. Goldstein reported treating appellant on October 11, 2012 for neck, left hand and left
hip pain. Appellant noted being a letter carrier and on August 15, 2011, she fell at work and hit
her head on the pavement while wearing a helmet and injured her head, neck and right side.
Dr. Goldstein also noted a date of injury of August 20, 2011. He noted diagnoses and opined
that appellant’s injuries were directly related to her fall at work on August 15, 2011. However,
this report is not based on an accurate history of appellant’s work injury. Dr. Goldstein notes
that appellant fell and injured herself on August 15, 2011; however, appellant reported her injury
occurred on August 20, 2011. The Board has held that medical opinions based on an inaccurate
history have diminished probative value.12 Even viewing the date-of-injury discrepancy as a
typographical error, Dr. Goldstein did not provide medical reasoning to support his conclusion
on causal relationship. His report is insufficient to establish the claim.
Other medical evidence submitted by appellant, including reports of diagnostic testing,
fail to provide an opinion on the causal relationship between appellant’s job and her diagnosed
lumbar condition. For this reason, this evidence is insufficient to meet appellant’s burden of
proof. Appellant also submitted August 20, 2011 emergency room records from an unidentified
provider which noted that appellant reported tripping and falling. As this is not properly
identified, it does not constitute probative medical evidence.13
The Board finds that the medical evidence is insufficient to establish that the August 20,
2011 work incident caused or contributed to the claimed conditions and disability.
Consequently, OWCP therefore properly found that appellant did not meet her burden of proof in
establishing her claim.
On appeal, appellant’s counsel disagrees with OWCP’s decision denying her claim for
compensation and asserts that she sustained an employment-related injury on August 20, 2011
and has submitted sufficient medical evidence to establish that the diagnosed conditions are
related to the employment-related incident. As noted above, the Board finds that appellant
established that the incident occurred. However, the medical evidence does not sufficiently
relate any of appellant’s conditions to the August 20, 2011 work incident. Reports from
appellant’s physician’s failed to provide sufficient medical rationale explaining how appellant’s
injuries were causally related to this incident.
The Board further notes that the employing establishment issued a properly completed
Form CA-16 to appellant on August 20, 2011, authorizing treatment by Dr. Feingold as
medically necessary for the effects of his injury. The Board notes that where, as in this case, an
employer properly executes a Form CA-16, which authorizes medical treatment as a result of an
employee’s claim for an employment-related injury, the form creates a contractual obligation,
which does not involve the employee directly, to pay for the cost of the examination or treatment
regardless of the action taken on the claim.14 The period for which treatment is authorized by a
Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by

12

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
13

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

14

R.S., Docket No. 13-1670 (issued October 25, 2013). See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989).

7

OWCP.15 The record is silent as to whether OWCP paid for the cost of appellant’s examination
or treatment for the period noted on the form. On return of the case record, OWCP should
review whether appellant has been reimbursed for any incurred medical expenses.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that her
claimed conditions were causally related to her employment.
ORDER
IT IS HEREBY ORDERED THAT the July 9, 2013 decision of the Office of Workers’
Compensation Programs is affirmed, as modified.17
Issued: July 29, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

See 20 C.F.R. § 10.300(c).

16

See R.S., supra note 14.

17

Richard J. Daschbach, Chief Judge, who participated in the preparation of the opinion, was no longer a member
of the Board after May 16, 2014.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY, DENTAL
)
COMMAND, JOINT BASE LEWIS-MCCHORD, )
Tacoma, WA, Employer
)
__________________________________________ )
T.P., Appellant

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

Docket No. 19-0437
Issued: July 2, 2019

Case Submitted on the Record

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

JURISDICTION
On December 20, 2018 appellant filed a timely appeal from a June 27, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated March 27, 2018, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 20, 2017 appellant, then a 48-year-old dental assistant, filed an occupational
disease claim (Form CA-2) alleging that exposure to hazardous noise, while in the performance of
duty, had worsened his preexisting binaural hearing loss.
In a report dated April 28, 2017 and finalized May 3, 2017, Dr. Jackson R. Holland, a
Board-certified otolaryngologist, noted appellant’s 20-year history of binaural hearing loss with
tinnitus. He noted that appellant had worn binaural hearing aids since 2009, which were awarded
in a state workers’ compensation claim.2 Dr. Holland described appellant’s occupational noise
exposure to dental hand pieces and suction devices while a dental assistant in military service from
1988 to 1992, in private practice from 2000 to 2014, and commencing in 2015 at the employing
establishment. Appellant had also worked as a roofer from 1993 through 1999, and had been
exposed to noise from staple guns, air compressors, hydraulic lifts, and industrial production
equipment. Dr. Holland diagnosed “bilateral neurosensory” hearing loss, bilateral noise-induced
hearing loss, and tinnitus. He opined that the pattern of progressive hearing impairment
demonstrated by audiometric test results from September 1996 through April 24, 2017 was a
neurodegenerative, genetically-based process unrelated to occupational noise exposure.
Dr. Holland noted that improvements in dental equipment had reduced the decibel volume of
apparatus output.
By development letter dated October 12, 2017, OWCP informed appellant that the
evidence submitted was insufficient to establish his claim. It advised him of the type of factual
and medical evidence needed and provided a questionnaire for his completion. OWCP afforded
appellant 30 days to provide the necessary information.
In response, appellant submitted an October 31, 2017 statement in which he noted a state
workers’ compensation agency had previously found his hearing loss to be age related.
The employing establishment controverted the claim in a November 9, 2017 statement,
contending that appellant’s federal duties since he commenced employment on November 30,
2015 had not exposed him to hazardous noise. Appellant’s position did not require hearing
protection nor his participation in annual audiometric testing.
A July 2016 industrial hygiene survey of Dental Clinic Two found intermittent noise from
64 to 93 decibels in the prosthetics laboratory from polishing, sanding, and grinding equipment.
The employing establishment provided foam earplugs, which reduced exposure to less than 85.
On February 15, 2018 OWCP obtained a second opinion regarding the etiology and
severity of appellant’s hearing loss from Dr. Julie Gustafson, a Board-certified otolaryngologist.
Dr. Gustafson reviewed the medical record and a statement of accepted facts. She noted clinical
findings and obtained audiometric test results. Dr. Gustafson diagnosed sensorineural hearing loss
2

It is well established that decisions of other federal agencies or governmental bodies are not dispositive to issues
raised under FECA. Decisions made by such tribunals are pursuant to different statutes, which have varying standards
for establishing eligibility for benefits. P.S., Docket No. 18-1789 (issued April 11, 2019); J.D., Docket No. 18-0101
(issued August 27, 2018); J.F., 59 ECAB 331 (2008); Ernest J. Malagrida, 51 ECAB 287 (2000).

2

of unknown or genetic etiology, tinnitus, and a history of noise-induced hearing loss. She opined
that appellant’s noise exposure at the employing establishment’s dental clinic was not of sufficient
level or intensity to have caused or contributed to noise-induced hearing loss. Also, audiometric
evaluations had not demonstrated a significant progression as would be expected with noiseinduced hearing loss.
By decision dated March 27, 2018, OWCP denied appellant’s claim, finding that causal
relationship had not been established. It accorded Dr. Gustafson’s opinion the weight of the
medical evidence.
On April 30, 2018 appellant requested reconsideration, contending that occupational noise
exposures had worsened preexisting hearing loss. He submitted audiograms dated September 24,
1998, June 15, 2009, March 25, 2016, April 24, 2017, and February 15, 2018.
By decision dated June 27, 2018, OWCP denied appellant’s request for reconsideration of
the merits of his claim.
LEGAL PRECEDENT
Under section 8128(a) of FECA,3 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written application
for reconsideration, including all supporting documents, sets forth arguments and contains
evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”4
Section 10.608(b) provides that any application for review of the merits of the claim which
does not meet at least one of the requirements listed in section 10.606(b), will be denied by OWCP
without review of the merits of the claim.5

3

Id. at § 8128(a).

4

20 C.F.R. § 10.606(b).

5

Id. at § 10.608.

3

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s timely request for reconsideration did not show that OWCP erroneously
applied or interpreted a specific point of law, or advance a new and relevant legal argument not
previously considered by OWCP. Consequently, he was not entitled to a review of the merits
based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The audiometric test reports submitted on reconsideration are irrelevant to the underlying
merit issue of whether appellant established exposure to hazardous noise while in the performance
of duty. The submission of evidence or argument which does not address the particular issue
involved does not constitute a basis for reopening a case.6 Consequently, appellant was not entitled
to a review of the merits based on the third above-noted requirement under 20 C.F.R.
§ 10.606(b)(3).
The Board thus finds that appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by OWCP, or submit pertinent new and relevant evidence not previously considered. As appellant
did not meet any of the necessary regulatory requirements, he is not entitled to further merit review.
Therefore, OWCP properly denied appellant’s request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).
On appeal appellant contends that exposure to hazardous noise during the performance of
his federal duties had caused hearing loss and tinnitus. However, this argument pertains to the
merits of the claim, which are not before the Board on the present appeal.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim under 5 U.S.C. § 8128(a).

6
M.B., Docket No. 17-1980 (issued May 14, 2019); see E.G., Docket No. 18-0270 (issued August 24, 2018);
Eugene F. Butler, 36 ECAB 393, 398 (1984).

4

ORDER
IT IS HEREBY ORDERED THAT the June 27, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 2, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hazelwood, MO, Employer
_________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 22-0112
Issued: March 22, 2022

Case Submitted on the Record

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

On November 1, 2021, appellant through counsel, filed a timely appeal from a
September 7, 2021, merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 22-0112.
In a letter dated March 7, 2022, counsel requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that counsel ’s request f or the
dismissal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
legal or other service performed on appeal before the Board is valid unless approved by the Board.
20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT the request for the dismissal of the appeal is
granted. The appeal docketed as No. 22-0112 is dismissed.
Issued: March 22, 2022
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
DEPARTMENT OF THE NAVY, BARROW
HALL, Parris Island, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-152
Issued: May 16, 2012

Case Submitted on the Record

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

JURISDICTION
On October 31, 2011 appellant filed a timely appeal from a September 29, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) finding that she abandoned
her hearing request. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly determined that appellant abandoned her request
for a hearing.

1
2

5 U.S.C. § 8101 et seq.

The last merit decision in this case was the April 19, 2011 OWCP decision which denied appellant’s claim for
compensation for the periods February 15 to March 21, 2008 and July 2008 through December 2010. For OWCP
decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of OWCP
decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20 C.F.R.
§§ 501.2(c) and 501.3.

FACTUAL HISTORY
This claim has previously been before the Board. On May 5, 2009 the Board issued a
decision remanding the case to OWCP for consolidation. In a November 18, 2010 decision, the
Board affirmed the termination of appellant’s compensation benefits effective October 15, 2009.3
The Board found that the weight of the medical evidence rested with the August 31, 2009
second-opinion examination report of Dr. Stephen Allen, a Board-certified orthopedic surgeon,
who found that appellant’s June 2007 back and knee sprain had resolved and that her current
residuals were due to underlying arthritic and degenerative changes. The facts of the case as set
out in the Board’s prior decisions are incorporated herein by reference.
On February 8, 2011 appellant filed a compensation claim for leave without pay for the
period September 2007 to July 2008 and for wage loss from July 2008 to December 2010. In a
letter dated February 22, 2011, OWCP advised appellant that the dates for compensation which
she requested contained two periods which had previously been denied as not compensable and
that she could not submit another CA-7 which encompassed those dates. It would adjudicate her
claim for compensation for the following dates: September 1 to 15, 2007; November 25, 2007 to
February 14, 2008; and March 22 to July 1, 2008.
In decisions dated March 24 and April 19, 2011, OWCP denied appellant’s claim for
compensation for the claimed periods.
On May 9, 2011 appellant requested a telephonic hearing before an OWCP hearing
representative.
By letter dated July 27, 2011, OWCP notified appellant that her hearing would be held on
September 14, 2011 at 1:15 p.m. eastern time. Appellant was given a toll-free number 800-8573197 and a pass code 40993. The notice was mailed to the address of record. Appellant did not
contact OWCP on the date of the hearing or thereafter.
By decision dated September 29, 2011, OWCP found that appellant abandoned her
hearing request. It found that the hearing was scheduled for September 14, 2011, but she failed
to appear as instructed. The decision also found that there was no indication that appellant
contacted OWCP either prior or subsequent to the scheduled hearing to explain her failure to
participate. Based on these factors, OWCP concluded that she abandoned her oral hearing
request.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse OWCP decision is entitled to receive a hearing upon written request within 30 days of
the date of the decision for which a hearing is sought.4 Unless otherwise directed in writing by
the claims examiner, OWCP’s hearing representative will mail a notice of the time and place of
3

Docket No. 10-430 (issued November 18, 2010).

4

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

2

the hearing to the claimant and any representative at least 30 days before the scheduled date.5
OWCP has the burden of proving that it mailed notice of a scheduled hearing to a claimant.6
OWCP’s procedure manual provides that a hearing can be abandoned only under very
limited circumstances where all three of the following conditions are present: (1) the claimant
has not requested a postponement; (2) the claimant has failed to appear at a scheduled hearing;
and (3) the claimant has failed to provide any notification for such failure within 10 days of the
scheduled date of the hearing. Under these circumstances, OWCP’s hearing representative will
issue a formal decision finding that the claimant has abandoned her request for a hearing and
return the case to the district OWCP.7
ANALYSIS
By decisions dated March 24 and April 19, 2011, OWCP denied appellant’s claim for
compensation. Appellant timely requested a telephonic hearing. OWCP advised her, by letter
dated July 27, 2011, that a hearing was scheduled for September 14, 2011 at 1:15 p.m. eastern
time. It instructed appellant to telephone a toll-free number and enter a pass code to connect
with the hearing representative. She did not request a postponement of the hearing. Appellant
did not telephone at the appointed time and did not contact OWCP to explain her failure to
appear at the hearing within 10 days of the scheduled September 14, 2011 hearing date. The
Board finds that OWCP properly found that appellant had abandoned her request for a hearing.
On appeal, appellant has requested an oral argument before the Board. Oral argument
may be held in the discretion of the Board, on its own determination or on application by
appellant or the Director.8 The Board finds that as it does not have jurisdiction over the merits of
the claim, the issue on appeal can be adequately addressed from the record and oral argument
would serve no useful purpose. Oral argument would delay issuance of a decision on this appeal.
For these reasons, oral argument is denied.
Appellant also contends on appeal that she did not receive notice of the scheduled
hearing. The record reflects that a copy of the July 27, 2011 hearing notice was mailed to
appellant’s address of record and was not returned as undeliverable. The Board has found that,
in absence of evidence to the contrary, a letter properly addressed and mailed in the due course
of business, such as in the course of OWCP’s daily activities, is presumed to have arrived at the
mailing address in due course. This is known as the mailbox rule.9 As OWCP properly mailed
the hearing notice to appellant’s address of record, it is presumed to have arrived at her mailing

5

20 C.F.R. § 10.617(b).

6

A.B., 58 ECAB 546 (2007); Michelle R. Littlejohn, 42 ECAB 463 (1991).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter
2.1601.6(e) (February 2011). See also G.J., 58 ECAB 651 (2007).
8

20 C.F.R. § 501.5(a).

9

Jeffrey M. Sagrecy, 55 ECAB 724 (2004); James A. Gray, 54 ECAB 277 (2002).

3

address. The Board will affirm the September 29, 2011 OWCP hearing representative’s
decision.
CONCLUSION
The Board finds that appellant abandoned her request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the September 29, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 16, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

)
)
)
)
)
)
)
)

Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-656
Issued: December 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 30, 2014 appellant, through her attorney, filed a timely appeal from a
September 30, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to modify the September 30, 1997
loss of wage-earning capacity determination.
On appeal, counsel argued that OWCP did not determine whether appellant’s position of
tag writer was makeshift. He further argued that the medical evidence established that she has
residuals of her accepted injury and sustained a recurrence of disability when her hours were
reduced due to the National Reassessment Process (NRP).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 Appellant has an accepted claim for
bilateral carpal tunnel syndrome for which she underwent surgical release on December 13, 1994
for the right side. She was offered a permanent light-duty position on November 28, 1995 as a
modified clerk, restricted to lifting no more than 10 pounds and no keying or repetitive activity.
Appellant was to manually sort parcels, bundles of letters or flats, to push containers of mail, to
write tags for contains of mail, or to perform minor rewrap or repair of small parcels. In a
telephone memorandum dated December 18, 1995, the employing establishment indicated that
she was working reading manuals all day. By decision dated June 27, 1996, OWCP reduced
appellant’s wage-loss compensation to zero finding that her actual earnings as a modified clerk
fairly and reasonably represented her wage-earning capacity.
Appellant requested an oral hearing before an OWCP hearing representative held on
June 25, 1997. She testified that she never performed the duties of the modified-duty position.
Appellant stated that she read postal manuals eight hours a day from May 1995 until
August 1996, because there was no other work available within her restrictions. She attempted
to perform the modified clerk duties after the June 27, 1996 decision, but felt unable to
accomplish the activities and the employing establishment assigned her to “write up tags” for
eight hours a day.
In a decision dated September 30, 1997, the hearing representative affirmed the wageearning capacity determination. He found that appellant performed duties writing up tags for
eight hours a day, which was one of the duties listed in the job offer.
On September 27, 2010 appellant filed a claim requesting wage-loss compensation
commencing September 23, 2010. On September 20, 2010 the employing establishment offered
her a rehabilitation modified position working 1.5 hours a day until she was reassessed under
NRP. Appellant filed a recurrence claim on September 29, 2010 alleging disability as of
September 23, 2010 due to NRP. On September 23, 2010 the employing establishment provided
her with a modified position working 1.5 hours a day.
By decision dated November 19, 2010, OWCP denied appellant’s claim for
compensation commencing September 23, 2010. It found that she did not submit sufficient
medical evidence to establish her disability for work. On June 28, 2011 an OWCP hearing
representative affirmed the denial of modification of the wage-earning capacity determination.
She found insufficient medical evidence to establish that appellant’s current conditions or
disability was due to her accepted employment injury. Further, the most recent medical report
was dated October 5, 2007.
Appellant requested reconsideration on October 5, 2011 and stated that she had ongoing
medical restrictions due to her accepted condition.
By decision dated November 15, 2011, OWCP reviewed the merits of appellant’s claim
and denied modification of the June 28, 2011 decision. It noted that a formal loss of wageearning capacity decision was in place. OWCP also noted that appellant filed a recurrence of
2

Docket No. 12-1163 (issued December 13, 2012).

2

disability claim for compensation as of September 23, 2010 due to NRP. It denied her claim on
November 19, 2010 because the medical evidence did not support a worsening of her bilateral
carpal tunnel syndrome. OWCP found that the original loss of wage-earning capacity
determination was not erroneous and that the modified position was not makeshift as appellant
was classified as a full-time modified parcel post distribution machine clerk.
In a December 13, 2012 decision, the Board set aside the November 15, 2011 OWCP
decision and remanded the case for findings pursuant to FECA Bulletin No. 09-05. The Board
directed OWCP to determine whether appellant’s loss of wage-earning capacity was based on an
actual bona fide position and to further develop the medical evidence. The facts of the claim as
set forth in the Board’s prior decision are incorporated by reference.
On January 9, 2013 OWCP referred appellant for a second opinion evaluation to
Dr. George C. Hochreiter, an osteopath. It also requested that the employing establishment
address her modified-duty position.
In a report dated January 31, 2013, Dr. Hochreiter reported that appellant had symptoms
of pain and paresthesias involving both hands, with difficulty doing repetitive activities.
Appellant advised him that she returned to full-time modified duty as of April 2012 and could
perform all activities at work in her modified position without pain. She also gave up activities
at home that demanded heavy or repetitive usage of her hands. On physical examination
Dr. Hochreiter noted decreased sensation along the ulnar aspect of the right forearm with
decrease in sensation to the tips of the thumb, index and middle fingers bilaterally as well as mild
weakness of the abductor policies brevis on the right side. He opined that appellant had
continued symptoms of accepted bilateral carpal tunnel syndrome with residuals following
surgery on the right and persistent symptoms on the left. Dr. Hochreiter listed objective findings
of positive Tinel’s sign and decreased sensation in the fingers as well as weakness of the
abductor policies brevis. He recommended work restrictions limiting repetitive usage of either
hand with no pushing, pulling, or lifting greater than 10 pounds. Dr. Hochreiter stated that
appellant could continue performing her current job as she was working eight hours a day with
no difficulty.
In a letter dated January 31, 2013, the employing establishment advised that the job offer
dated November 28, 1995 as presented to appellant was a bona fide permanently modified
position. An SF-50 form was subsequently issued on September 6, 1996 to base the modified
job offer on updated medical documentation provided by appellant. It included a U.S. Postal
Service assignment order, which noted appellant’s position as a modified parcel post distribution
machine clerk.
OWCP issued a decision on February 12, 2013. It found that appellant was not entitled to
wage-loss benefits commencing September 23, 2010 as the loss of wage-earning capacity
determination was appropriate, there was no material change in her employment-related
condition and she had not been retrained.
Appellant requested an oral hearing on March 6, 2013.
Counsel submitted a
memorandum contending that the original loss of wage-earning capacity determination was
erroneous as she actually only wrote tags for 60 days and the position was modified to reflect

3

this duty. He also argued that the employing establishment improperly reduced appellant’s work
hours resulting in a recurrence of disability.
Appellant testified at the oral hearing on July 16, 2013 regarding her modified duties.
She had worked full time in secondary sorting on miss-sent parcels and writing up tags. The
employing establishment reduced appellant to one and one-half hours a day on September 23,
2010 based on a position requiring her to read manuals. From November 20, 2010 to
February 2011, appellant returned to work eight hours a day in the nixie rewrap. The employing
establishment again reduced her to one and one-half hours a day from February 11 through
April 25, 2012. Appellant then returned to work eight hours a day at modified-duty performing
priority mail verification.
In a September 30, 2013 decision, the hearing representative found that the modified
position was not makeshift. Appellant performed the job for several years prior to claiming a
recurrence of disability in 2010. The hearing representative further found that the medical
evidence did not support a material change in her bilateral carpal tunnel condition resulting in
disability for work as of September 23, 2010. Appellant did not establish that the original loss of
wage-earning capacity decision was in error.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3 Once a loss of wage-earning capacity is
determined, a modification of such a determination is not warranted unless there is a material
change in the nature and extent of the employment-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was in fact
erroneous.4
The burden of proof is on the party attempting to show the award should be modified.5
FECA’s procedure manual states that when the employing establishment has withdrawn a lightduty position which accommodated the claimant’s work restrictions and a formal wage-earning
capacity decision has been issued, the wage-earning capacity decision will remain in place.6 The
claims examiner should, however, consult FECA Bulletin No. 09-05 (United States Postal
Service National Reassessment Program Guidance,) issued August 18, 2009 if the circumstances
in the case indicate that the position in question may have been withdrawn (in whole or in part)
as a result of NRP.7
3

Katherine T. Kreger, 55 ECAB 633 (2004).

4

K.S., Docket No. 08-2105 (issued February 11, 2009); George W. Coleman, 38 ECAB 782, 788 (1987).

5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity
Decisions, Chapter 2.1501.7 (June 2013).
7

Id.

4

ANALYSIS
The Board finds that appellant has not established that she sustained a recurrence of
disability commencing September 23, 2010 or that the wage-earning capacity determination
should be modified.
OWCP’s decision determining appellant’s wage-earning capacity was based on a
November 28, 1995 permanent limited-duty job offer as a modified parcel post distribution
machine operations clerk. The position description included duties of manual parcel or bundled
mail sorting not to exceed 10 pounds, pushing containers of mail or parcels, and writing up tags
for containers of mail or placing tags on the outside of mail containers. Appellant returned to
work full time in the modified position with actual earnings equivalent to her salary when injured
in 1993. As of the September 30, 1997 decision, the hearing representative found that she was
working full time writing up tags for containers eight hours a day. He noted that this was a job
requirement listed in the 1995 job offer and found that appellant’s actual earnings in her
modified clerk position fairly and reasonably represented her wage-earning capacity.
Following the Board’s December 13, 2012 decision, OWCP obtained from the employing
establishment a copy of U.S. Postal Service assignment order form 1723 dated September 10,
1996, which listed appellant’s position title as a modified parcel post distribution machine
operator. It provided information pertaining to her assigned tour of duty and noted the reason for
the assignment based on her move to modified duty. FECA Bulletin No. 09-05 provides that the
determination, of whether a loss of wage-earning capacity was based on an actual bona fide
position may be evidenced by a job offer, SF-50, a classified position a formal position
description, or other documentary evidence. As noted, appellant worked full time writing up
tags for containers -- a responsibility as defined in the 1995 job offer. On September 17, 1996
she was notified of a new operation number, which was advised to use for the duration of her
rehabilitation assignment. The employing establishment noted that appellant would be required
to update her medical evidence on an annual basis. The record reflects that she continued to
work in the modified position until September 23, 2010.
Following remand, OWCP also developed the medical evidence of record by referring
appellant to Dr. Hochreiter to determine whether the record supported work-related disability or
established the current need for limited duty or medical treatment due to residuals of the
accepted condition. Dr. Hochreiter provided a report addressing her accepted bilateral carpal
tunnel condition, noting the prior surgical report and diagnostic tests. On examination, he
advised that appellant had residuals of her accepted condition with symptoms of pain and
paresthesias involving both hands. Dr. Hochreiter noted a positive Tinel’s sign and decrease in
sensation to the tip of the thumb, index, and middle fingers. He noted that appellant had returned
to full-time modified duty in 2012 and stated that she was able to perform her duties without
difficulty. Dr. Hochreiter recommended physical limitations and advised that she could continue
in her present position full time. He did not support that appellant was disabled commencing
September 23, 2010 due to residuals of her accepted condition.
The other medical evidence of record does not support that appellant became disabled as
of September 23, 2010 due to residuals of her bilateral carpal tunnel condition. As noted in the
Board’s prior decision, an August 31, 2011 report from Dr. Alpa Patel, a Board-certified family
practitioner, similarly found that she had residuals of her bilateral carpal tunnel syndrome. He
5

advised that appellant’s work restrictions from September 29, 2000 were still in effect. Dr. Patel
did not support that she sustained a recurrence of total disability commencing September 23,
2010 due to residuals of her accepted condition. Neither Dr. Hochreiter nor Dr. Patel support a
material worsening of appellant’s bilateral carpal tunnel syndrome.
The Board finds that, under FECA Bulletin No. 09-05, appellant has not established a
basis for modification of the 1996 wage-earning capacity determination. Further, the medical
evidence does not establish disability commencing September 23, 2010 due to a worsening of
her accepted bilateral wrist condition.
CONCLUSION
The Board finds that appellant did not establish a basis for modification of the wageearning capacity determination in this case. Further, the medical evidence does not establish a
recurrence of disability as of September 23, 2010 due to a worsening of her accepted bilateral
carpal tunnel syndrome.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Memphis, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1823
Issued: January 5, 2015

Case Submitted on the Record

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

JURISDICTION
On August 19, 2014 appellant timely appealed the July 8, 2014 nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP), which issued its latest merit decision on
December 23, 2013; more than 180 days prior to the filing of the instant appeal. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether the Branch of Hearings and Review properly denied appellant’s
request for a hearing.
FACTUAL HISTORY
Appellant, a 55-year-old clerk, injured her right knee in the performance of duty on
August 3, 1981. OWCP accepted her claim for right medial meniscus tear, right patella
1

5 U.S.C. §§ 8101-8193.

dislocation -- closed, chondromalacia of the right patella, and right knee arthritis. In
October 2013, it expanded appellant’s claim to include left lateral ankle sprain and left closed
fracture of the fifth metatarsal bone.2
By decision dated December 23, 2013, OWCP denied 154.68 hours of claimed lost wages
during the period June 8 through October 19, 2013.3
Appellant subsequently requested an oral hearing utilizing the appeal request form that
accompanied OWCP’s December 23, 2013 decision. Although the request is dated January 1,
2014, the Branch of Hearings and Review’s date stamp indicates appellant’s hearing request was
not received until February 4, 2014.4
By decision dated July 8, 2014, the Branch of Hearings and Review denied appellant’s
hearing request as untimely. An OWCP hearing representative noted that OWCP issued its
decision on December 23, 2013 and appellant’s hearing request was postmarked January 30,
2014; which was more than 30 days after OWCP’s decision. Consequently, she found that
appellant was not entitled to a hearing as a matter of right. The hearing representative also
considered whether to grant appellant a discretionary hearing, but decided that the question of
appellant’s entitlement to wage-loss compensation could equally well be addressed by her
requesting reconsideration before OWCP.
LEGAL PRECEDENT
A claimant, injured on or after July 4, 1966, who has received a final adverse decision by
OWCP may obtain a hearing by writing to the address specified in the decision.5 The hearing
request must be sent within 30 days (as determined by postmark or other carrier’s date marking)
of the date of the decision for which a hearing is sought.6 The claimant must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision.7 If the
request is not made within 30 days, a claimant is not entitled to a hearing as a matter of right.
However, the Branch of Hearings and Review may exercise its discretion to either grant or deny
a hearing.8
2

Appellant injured her left lower extremity on May 13, 2013 when her right knee buckled causing her to twist her
left ankle.
3

OWCP authorized payment for a total of 6.57 hours for medical appointments on August 8 and
October 18, 2013.
4

The record includes an imaged copy of the envelope that contained the hearing request; however, the postmark
date is illegible. The request was properly addressed to the Branch of Hearings and Review in accordance with the
instructions on the appeal request form.
5

20 C.F.R. § 10.616(a).

6

Id.

7

Id.

8

5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33
ECAB 140 (1981).

2

ANALYSIS
Appellant’s January 1, 2014 hearing request is date stamped as having been received on
February 4, 2014. The hearing representative noted that the request was postmarked January 30,
2014; which is more than 30 days after OWCP’s December 23, 2013 decision. However, the
imaged copy of the envelope does not have a legible postmark date. Where the postmark is not
legible, the hearing request will be deemed timely unless OWCP has kept evidence of date of
delivery on the record reflecting that the request is untimely.9 As noted, the appeal request form
is date stamped as having been received on February 4, 2014. Accordingly, the evidence
regarding date of delivery reflects that appellant’s request is untimely. Therefore, appellant was
not entitled to a hearing as a matter of right. The Branch of Hearings and Review also denied her
request on the basis that her claim for wage-loss compensation could be addressed by requesting
reconsideration before OWCP. The Board finds that the hearing representative properly
exercised her discretionary authority in denying her request for a hearing.10
CONCLUSION
The Board finds that the Branch of Hearings and Review properly denied appellant’s
hearing request.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.4a (October 2011). Where the hearing request is mailed directly to the Branch of Hearings and Review, the
request will be date stamped, and both the envelope and request will be scanned into the case file. Id. at Chapter
2.1601.3a.
10

Mary B. Moss, 40 ECAB 640, 647 (1989). 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 known facts. See André Thyratron, 54 ECAB 257, 261 (2002).

3

ORDER
IT IS HEREBY ORDERED THAT the July 8, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 5, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Memphis, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1262
Issued: March 11, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 8, 2018 appellant filed a timely appeal from a May 21, 2018 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

FACTUAL HISTORY
On December 4, 2012 appellant, then a 62-year-old medical support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on November 30, 2012 “when she was walking
to another floor with papers in her hand, had a sharp pain in her back, lost her balance, and fell to
the floor” causing injury to her wrist, right hip, right knee, and lumbar spine. OWCP accepted her
claim for contusion of right elbow and forearm, contusion of right knee, sprain of right hip
(iliofemoral), and medial and lateral meniscus tears of the right knee, right knee osteoarthritis,
right foot drop, postoperative pneumonia, and right knee hematoma. It paid appellant wage-loss
compensation on the periodic rolls, effective March 9, 2014, and subsequently authorized multiple
right knee surgeries, including right knee arthroscopy on February 19, 2014 and a right total knee
replacement on October 15, 2014. Appellant was removed from the periodic rolls after she
returned to full-time work on August 31, 2015.
The evidence of record contains reports dated November 12, 2015, March 7 and May 4,
2016, and February 3, 2017 from Dr. Rommel G. Childress, a Board-certified orthopedic surgeon.
In the May 4, 2016 report, Dr. Childress opined that appellant had 75 percent permanent
impairment of the right lower extremity.
By decision dated January 25, 2017, OWCP granted appellant a schedule award for 25
percent permanent impairment of the right leg, relying on a July 27, 2016 second opinion report
from Dr. James Gaylon, a Board-certified orthopedic surgeon, and reports dated October 20 and
December 31, 2016 from Dr. Morley Slutsky, a Board-certified occupational medicine specialist
and an OWCP district medical adviser (DMA). Dr. Slutsky opined that appellant’s most impairing
right knee diagnosis was her total arthroplasty with good results and her most impairing right lower
extremity diagnosis was her medial plantar nerve impairment. The award ran for 72 weeks and a
fraction of a day for the period July 27, 2016 to December 12, 2017.
By decision dated June 21, 2017, an OWCP hearing representative affirmed the
January 25, 2017 schedule award decision.
Appellant submitted two reports dated October 9, 2017 from Dr. Childress who provided
progress notes regarding her right lower extremity and requested authorization for medical bills.
Dr. Childress also indicated that appellant had continued difficulty with her right lower extremity
and used a dorsiflexion assist brace. He reported that appellant had “several episodes of falling,
where she [had not] had [the brace] on and she ha[d] weakness in dorsiflexion power, where she
ha[d] a foot drop on that side that ha[d] come back, but she had weakness and fatigue, where she
ha[d] a tendency to stomp her foot.” Dr. Childress further indicated that appellant’s right knee had
fair mobility from 0 to about 100 degrees and the foot drop was tending to give her difficulty. He
noted that she was working and functioning, but was scheduled for retirement in January.
On April 17, 2018 appellant requested reconsideration and disagreed with the schedule
award decision, arguing that it had not adequately accounted for all three of her right knee surgeries
and her postsurgery foot drop condition. She stated that she had to wear an attached shoe brace to
keep from falling and when she did not wear the brace she would stumble and fall, and during one
of her falls she received a rotator cuff tear in her right shoulder. Appellant asserted that she would
have to wear a shoe brace for the rest of her life to keep her from falling and injuring herself. She

2

argued that she was entitled to an increased schedule award due to her need for a shoe brace and
her postoperative foot drop condition.
In support of her request for reconsideration, appellant submitted a December 1, 2017
report from Dr. Childress who indicated that x-rays and a magnetic resonance imaging (MRI) scan
of her right shoulder documented a torn and retracted anterior and middle fibers of the infraspinatus
and torn and retracted subscapularis tendon. Dr. Childress indicated that appellant had evidence
of impingement secondary to osteoarthritis and opined that the foot drop that she had caused her
to fall and that her claim should therefore be expanded to include the condition of rotator cuff tear
of the right shoulder. He noted that she would probably need surgical intervention for an open
procedure to repair the rotator cuff at some point in the near future. Also received was another
report from Dr. Childress dated October 9, 2017. In it, he indicates that appellant had several
episodes of falling when she was not wearing her dorsiflexion brace. Additionally, Dr. Childress
related that she was scheduled for retirement in January 2018.
Appellant also resubmitted medical reports dated November 12, 2015, March 7 and May 4,
2016, and February 3, 2017 from Dr. Childress.
By decision dated May 21, 2018, OWCP denied appellant’s request for reconsideration
without conducting a merit review.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.5
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.7
3
This section provides in pertinent part: “[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).
4

20 C.F.R. § 10.607.

5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

3

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s request for reconsideration did not show that OWCP had erroneously applied
or interpreted a specific point of law or advance a relevant legal argument not previously
considered by OWCP. On reconsideration she argued that her schedule award for 25 percent
permanent impairment of the right leg failed to adequately account for all three of her right knee
surgeries and her postsurgery foot drop condition. Appellant stated that she had to wear an
attached shoe brace to keep from falling and when she did not wear the brace she would stumble
and fall, and during one of her falls she sustained a rotator cuff tear in her right shoulder. She
further contended that she would have to wear a shoe brace for the rest of her life as a result of her
accepted right knee conditions and authorized surgeries and; therefore, she was entitled to an
increased schedule award. These contentions are not legal arguments addressing the underlying
issue of appellant’s entitlement to an increased schedule award.8 As such, appellant’s opinions are
irrelevant to the claim and do not comprise a basis for reopening the case on its merits.9 The Board
notes that appellant’s argument is regarding a claim that she sustained a right shoulder condition
due to falling while wearing a shoe brace after her right knee surgeries. OWCP, however, has not
accepted a right shoulder condition in this case.10 The Board has held that the submission of an
argument which does not address the particular issue involved does not constitute a basis for
reopening a case. As appellant has not established that OWCP erroneously applied or interpreted
a specific point of law or advanced a relevant legal argument not previously considered by OWCP,
she is not entitled to a review of the merits of her claim based on the first and second requirements
under section 10.606(b)(3).11
In support of her request for reconsideration, appellant further submitted reports dated
October 9 and December 1, 2017 from Dr. Childress who indicated that x-rays and an MRI scan
of her right shoulder documented a torn and retracted anterior and middle fibers of the infraspinatus
and torn and retracted subscapularis tendon. The Board finds that Dr. Childress’ reports do not
constitute relevant and pertinent new evidence and are insufficient to require OWCP to reopen the
claim for consideration of the merits because they fail to address the current extent of appellant’s
work-related permanent impairment. While Dr. Childress continues to document ongoing right
lower extremity complaints, OWCP properly found that this evidence was irrelevant because it
failed to address permanent impairment to appellant’s right lower extremity.12
Appellant also resubmitted medical reports dated November 12, 2015, March 7 and May 4,
2016, and February 3, 2017 from Dr. Childress in support of her claim. The Board finds that the
8

The Board notes that it is appellant’s burden to submit sufficient evidence to establish the extent of permanent
impairment. See Annette M. Dent, 44 ECAB 403 (1993).
9

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

10

The Board notes that appellant may file a claim for a new or consequential injury.

11

D.D., Docket No. 18-0648 (issued October 15, 2018).

12

B.W., Docket No. 18-1259 (issued January 25, 2019).

4

submission of these reports did not require reopening appellant’s case for merit review because
appellant submitted the same reports by Dr. Childress, which were previously reviewed by
OWCP’s hearing representative in his June 21, 2017 decision. As these reports repeat evidence
already in the case record, they are duplicative and do not constitute relevant and pertinent new
evidence. Thus, appellant is not entitled to a review of the merits of her claim based on the third
requirement under section 10.606(b)(3).13
The Board accordingly finds that OWCP properly determined that appellant was not
entitled to further review of the merits of her claim under any of the three requirements under
section 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 2019
Washington, DC

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

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

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

13

B.B., Docket No. 18-0782 (issued January 11, 2019).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Quantico, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0841
Issued: October 26, 2021

Case Submitted on the Record

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

JURISDICTION
On May 13, 2021 appellant filed a timely appeal from an April 27, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated March 20, 2020, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 15, 2019 appellant, then a 26-year-old law enforcement agent, filed a traumatic
injury claim (Form CA-1) alleging that on October 3, 2019 she sustained rhabdomyolysis during
a required physical training class while in the performance of duty. On the reverse of the claim
form, C.A., appellant’s supervisor, indicated that he concurred with appellant’s account of events
and acknowledged that she was injured while in the performance of duty.
In an October 3, 2019 hospital emergency department report, Dr. Robert Evans Fines, Jr.,
Board-certified in emergency medicine, diagnosed myalgia, dehydration, and elevated liver
function tests following physical training at the employing establishment.
OWCP received an authorization for examination and/or treatment (Form CA-16)
completed and signed by C.A. on October 4, 2019.
In an October 4, 2019 hospital emergency department report, Dr. Timothy D. Weber,
Board-certified in emergency medicine, diagnosed myalgia, dehydration, a nd elevated liver
function tests.
OWCP also received October 3 and 4, 2019 laboratory test results and discharge
instructions.
In a development letter dated October 28, 2019, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence necessary to
establish her claim and provided a questionnaire for her completion. OWCP afforded appellant
30 days to respond. No response was received.
By decision dated November 29, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that the injury and/or events
occurred as she described. It concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
On December 26, 2019 appellant requested reconsideration. She submitted a February 5,
2020 letter noting a change of address. On February 13, 2020 appellant indicated that she was
attempting to obtain a narrative medical report.
By decision dated March 20, 2020, OWCP denied modification of the November 29, 2019
decision.
In an August 9, 2020 statement, appellant responded to the deficiencies noted in OWCP’s
November 29, 2019 decision. She explained that, during October 3, 2019 physical defense
training and strenuous exercise, she became achy and fatigued. After class, appellant noticed blood
in her urine. The class counselor sent her to an employing establishment nurse, who obtained a
urine sample indicative of rhabdomyolysis and sent appellant to a hospital emergency department.
As appellant’s symptoms recurred the following day, the nurse sent her back to the hospital
emergency department. Appellant noted that she had submitted additional medical evidence,

2

including October 3 and 4, 2019 hospital emergency department reports from a physician. She
submitted additional medical evidence. 2
In an April 23, 2020 report, Dr. Weber reviewed appellant’s October 3, 2019 chart notes.
He recalled that she had presented with an elevated creatinine kinase (CK) level “in line with a
vigorous workout.” Dr. Weber opined that appellant’s physical training certainly “could have
contributed to dehydration and the elevated CK, but [her] kidneys” were not in danger and there
was no “lasting disability from that episode.” He noted that her emergency department treatment
with intravenous fluids, with instructions to rest and recover for a few days, was appropriate for
her clinical presentation.
On April 15, 2021 appellant requested reconsideration. She also submitted an April 15,
2021 letter from supervisor C.A., requesting that OWCP review the medical evidence of record.
He contended that medical documentation had been difficult to obtain because of the COVD -19
pandemic. C.A. asserted that a timely reconsideration request had been “mailed out within the
deadline.”
By decision dated April 27, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.3 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 4 Imposition of this one-year filing limitation does not
constitute an abuse of discretion. 5
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 6 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of

2

OWCP also received copies of medical evidence and laboratory test results previously of record.

3

5 U.S.C. § 8128(a); C.S., Docket No. 20-1075 (issued December 31, 2020); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
4

20 C.F.R. § 10.607(a).

5

J.J., Docket No. 19-0977 (issued December 31, 2020); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
6

See 20 C.F.R. § 10.607(b); W.J., Docket No. 20-0489 (issued December 21, 2020); M.H., Docket No. 18-0623
(issued October 4, 2018); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

3

OWCP.7 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.9 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must 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.10
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. 11 The claimant must present evidence which on its face shows that OWCP made
an error. Evidence such as a detailed, well-rationalized medical report which, if submitted before
the denial was issued, would have created a conflict in medical opinion requiring further
development, is insufficient to demonstrate clear evidence of error.12 The Board makes an
independent determination of whether a claimant has demonstrated clear evidence of error on the
part of OWCP.13
ANALYSIS
The Board finds that OWCP improperly determined that appellant’s request for
reconsideration was untimely filed.
The case record contains appellant’s August 9, 2020 letter, received by OWCP on
August 9, 2020, in which she specifically addressed the deficiencies noted in OWCP’s March 20,
2020 decision.

7
L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 – Claims, Reconsiderations, Chapter 2.1602.5
(September 2020).
8

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
9

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 7 at Chapter 2.1602.5(a) (September 2020).

10

C.M., Docket No. 19-1211 (issued August 5, 2020).

11

Supra note 7 at Chapter 2.1602.4(b) (September 2020).

12

J.J., supra note 5.

13

Id.

4

Although appellant’s August 9, 2020 letter does not mention the word reconsideration, the
Board has found that there may be a request for reconsideration in situations where a letter does
not contain the word reconsideration. 14 No special form is required as long as the request is made
in writing, identifies the decision and specific issue to be considered, and is accompanied by
relevant and pertinent new evidence not previously considered.15 The word reconsideration does
not need to be stated in the request for it to be considered valid, but sufficient detail should be
provided to discern the decision being contested. 16
In this case, appellant explicitly responded to the deficiencies in her claim as noted in
OWCP’s March 20, 2020 decision. She specifically addressed the issue of whether her claim
should be accepted by submitting additional factual information about the October 3, 2019
employment events, and Dr. Weber’s April 23, 2020 report addressing the causal relationship
between those events and the diagnosed conditions. Accordingly, the Board finds that appellant’s
August 9, 2020 letter, received by OWCP on August 9, 2020, submitted with the medical evidence,
constituted a timely request for reconsideration. 17
Thus, appellant filed a request for reconsideration within one year of the March 20, 2020
OWCP decision. The Board finds that OWCP improperly denied her reconsideration request by
applying the legal standard for cases where reconsideration is requested after more than one year
has elapsed. OWCP should have applied the standard reserved for timely reconsideration requests
as set forth in 20 C.F.R. § 10.606(b)(3). 18 Since it erroneously reviewed the evidence submitted
in support of appellant’s reconsideration request under the more stringent clear evidence of error
standard, the Board will remand the case for review of this evidence under the proper standard of
review for a timely reconsideration request. 19

14

P.S., Docket No. 20-1192 (issued July 20, 2021); E.S., Docket No. 17-0698 (issued July 14, 2017); Jack D.
Johnson, 57 ECAB 593 (2006); Vicente P. Taimanglo, 45 ECAB 504 (1994).
15

Id.

16

P.S., supra note 14; E.S., supra note 14; see M.H., Docket No. 14-1389 (issued October 22, 2014).

17

P.S., supra note 14; E.S., supra note 14; C.M., Docket No. 11-1988 (issued June 6, 2012).

18

20 C.F.R. § 10.606(b)(3) of OWCP’s regulations provide that an application for reconsideration must be in
writing and set forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent new evidence not previously considered by OWCP.
19

E.S., supra note 14; Dewayne C. Davis, Docket No. 94-2346 (issued August 14, 1997).

5

CONCLUSION
The Board finds that OWCP improperly found that appellant’s request for reconsideration
of OWCP’s March 20, 2020 decision was untimely filed.20
ORDER
IT IS HEREBY ORDERED THAT the April 27, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: October 26, 2021
Washington, DC

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

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

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

20

The employing establishment completed and signed a Form CA-16 on October 4, 2019. A completed Form CA16 authorization may constitute a contract for payment of medical expenses to a medical facility or phy sician, when
properly executed. The form creates a contractual obligation, which does not involve the employee directly, to pay
for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c);
J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

6