United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS MEDICAL CENTER
PROSTHETICS, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 11-541
Issued: October 25, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 3, 2011 appellant filed a timely appeal from an October 25, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) concerning the denial of his
occupational disease claim for aggravation of a preexisting left knee condition. The Board
assigned Docket No. 11-541.
The Board has duly considered the matter and concludes that the case is not in posture for
a decision. OWCP procedures provide that cases should be doubled when a new injury is
reported for an employee who previously filed an injury claim for a similar condition and further
indicates that the cases should be doubled as soon as the need to do so becomes apparent.1 As

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1)
(February 2000).

OWCP referenced in its October 25, 2010 decision that appellant had an accepted a left lower
extremity injury under a prior claim, OWCP File No. xxxxxx998,2 as appellant had filed a
recurrence claim under that file number and as it had copied appropriate medical evidence from
OWCP File No xxxxxx998 into the current OWCP File No. xxxxxx041,3 OWCP should have
doubled the case files in accordance with its procedures.
As the record before the Board does not contain all the evidence from the prior claim,
other than the medical evidence considered relevant by OWCP, the Board is unable to properly
address and adjudicate the issue of whether appellant sustained an aggravation of a left knee
condition due to the employment duties identified by appellant.
On remand, OWCP should combine the present case record, OWCP File No. xxxxxx041,
with OWCP File No. xxxxxx998.
After combining these two case records on remand, OWCP should consider the evidence
contained in the combined case record and, following any necessary further development, issue
an appropriate merit decision. Accordingly, the October 25, 2010 decision denying his
occupational disease claim should be set aside.

2

In the October 25, 2010 decision, OWCP noted that on September 13, 1993 appellant filed a traumatic injury
claim while working at the Naval Shipyard in Long Beach, CA. OWCP stated:
“The traumatic injury occurred when the claimant tripped over a hose, fell and twisted his knees.
[OWCP] accepted that the claimant sustained traumatic bilateral synovitis, bilateral knee
contusions, bilateral mallet fingers and aggravation of left osteochondritis.” The claimant has a
preexisting history for left knee osteochondritis, 1979 left knee nonindustrial surgery and
nonindustrial chondromalacia.”
OWCP also noted that a claim for recurrence had been filed under this claim number.
3

On January 15, 2009 appellant, then a 44-year-old orthotist-prosthetist, filed an occupational disease claim
alleging that his left knee meniscal tear, osteoarthritis and osteochandral lesion were employment related.

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 25, 2010 is set aside and the case remanded for further
proceedings consistent with this order of the Board.
Issued: October 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Cypress, TX, Employer
__________________________________________

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

Docket No. 09-32
Issued: July 14, 2009

Case Submitted on the Record

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

JURISDICTION
On October 3, 2008 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated June 13, 2008 denying her claim for wage-loss
compensation for the period December 31, 2005 through January 3, 2006. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has established that her disability for the period
December 31, 2005 through January 3, 2006 was causally related to her accepted December 2,
2004 employment injury.
FACTUAL HISTORY
On August 17, 2006 appellant, then a 63-year-old clerk, filed a traumatic injury claim
alleging that she injured her lower back on December 2, 2004 when a chair rolled away while

she was trying to sit down. The Office accepted the claim for lumbar intervertebral disc
displacement without myelopathy.1
The medical evidence submitted by appellant prior to and subsequent to the acceptance of
her claim includes progress notes dated March 1 and 7, 2005 and January 19, 2006 and a
March 29, 2005 report by Dr. R. David Calvo, a treating physician; magnetic resonance imaging
(MRI) scans dated May 7, 2004 and March 2, 2005; and progress notes dated August 3,
September 7, November 23, 2005 and for the period January 26, 2006 to February 13, 2007, a
March 16, 2005 report and a May 9, 2007 Texas state workers’ compensation work status report
from Dr. Vivek P. Kushwaha, a treating Board-certified orthopedic surgeon.
On May 7, 2007 the Office received a time analysis form (CA-7a) dated February 26,
2007 for the period January 1, 2005 through December 29, 2006.2 Subsequently, it received
appellant’s claim for compensation (Form CA-7) leave without pay for the period January 1,
2005 through December 29, 2006 and for leave buyback for the period January 1 to
December 31, 2005. Appellant noted intermittent use of leave without pay for the period in
question. The employing establishment certified that she used 906.93 hours of intermittent leave
without pay for the period January 25, 2005 to December 28, 2006.
In a letter dated May 21, 2007, the Office informed appellant that no action would be
taken on her claim for wage-loss compensation until she correctly completed and submitted the
CA-7 forms. Appellant was informed in order to process her wage-loss claim that she needed to
file separate CA-7 forms for leave buyback and leave without pay, a Form CA-7b for her leave
buyback and a completed CA-7a listing each date claimed.
In a June 5, 2007 letter, appellant indicated that she was not asking for leave buyback as
her claim was for sick and annual leave she had used. She subsequently submitted a May 9,
2007 progress note from Dr. Kushwaha.
In June 12, 2007 time analysis form, appellant detailed the use of leave for the period
January 1, 2005 through December 29, 2006. For the period December 31, 2005 to January 6,
2006, she noted using 13.92 hours of annual leave, 4 hours of sick leave and 14.92 hours of leave
without pay for rest. Appellant also submitted a claim for compensation (Form CA-7) for the
period December 31, 2005 through December 29, 2006, which she checked was for the
intermittent use of leave without pay.
On July 20 and 23, 2007 appellant submitted her medical record and Blue Cross medical
claim summary sheet listing visits and claims for 2005 and 2006 noting dates of treatment, but
did not include the period December 31, 2005 to January 3, 2006.
The Office subsequently received additional medical evidence including Texas state
workers’ compensation work status reports dated August 8, October 9 and December 11, 2007
1

Appellant retired from the employing establishment effective January 31, 2007.

2

For the period December 31, 2005 to January 27, 2006 appellant noted that she used 110 hours of annual leave,
8 hours of sick leave and 66 hours of leave without pay for doctor visits and rest.

2

and January 15, 2008 and progress notes for the period October 9, 2007 to January 15, 2008 by
Dr. Kushwaha, a July 10, 2007 MRI scan.
On February 12, 2008 appellant submitted CA-7, CA-7a and CA-7b claim forms for the
period January 3 to December 28, 2006. She noted using eight hours of sick leave for
January 4, 2006. The employing establishment certified that appellant used 998.08 hours of
intermittent leave without pay for the period January 25, 2005 to December 28, 2006.
By letter dated February 20, 2008, the Office informed appellant that medical evidence
was needed to support her claim for disability.
In response to the Office’s February 20, 2008 letter, appellant submitted time analysis
forms dated February 15, 2008 for the period January 3 to December 28, 2006; disability notes
dated November 23, 2005, January 26, June 13 and August 15, 2006, progress notes dated
March 11, 2008 and a March 11, 2008 report from Dr. Kushwaha.
Dr. Kushwaha, in the November 23, 2005 disability statement, stated that appellant was
unable to return to work until January 15, 2006.
In the March 11, 2008 report, Dr. Kushwaha noted that he has treated appellant since her
back surgery in August 2005. He stated that he advised appellant not to work for the period
January 1 to May 16, 2006.
By decision dated June 13, 2008, the Office denied appellant’s claim for wage-loss
compensation for the period December 31, 2005 through January 3, 2006.3 It noted that
appellant had been advised to submit supporting medical evidence, but failed to do so.4
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act, the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time
of the injury, i.e., an impairment resulting in loss of wage-earning capacity.5 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability are medical issues that
3

On November 19, 2008 the Office hearing representative issued a decision pursuant to appellant’s hearing
request. On March 26, 2009 it denied appellant’s claim for compensation for the period December 31, 2005 through
January 3, 2006. As appellant requested an appeal before the Board on October 3, 2008, any decision issued by the
Office on the same issue that is pending before the Board on appeal, is null and void since the Office and the Board
may not have concurrent jurisdiction over the same issue. See Linda D. Guerrero, 54 ECAB 556 (2003);
Douglas E. Billings, 41 ECAB 880 (1990).
4

The Board notes that the Office has not issued a decision on appellant’s request for wage-loss compensation
outside of the period December 31, 2005 to January 3, 2006.
5

See S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008); Prince E. Wallace, 52 ECAB 357 (2001).

6

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

3

must be proved by a preponderance of probative and reliable medical opinion evidence.7 The
fact that a condition manifests itself during a period of employment does not raise an inference
that there is a causal relationship between the two.8
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify her disability and
entitlement to compensation.9
ANALYSIS
The Office accepted appellant’s claim for lumbar intervertebral disc displacement
without myelopathy. Appellant bears the burden to establish through medical evidence that she
was disabled or attending medical appointments during the claimed time period and that this was
causally related to her accepted injury. The Board finds that appellant has not established that
she was disabled or attending medical appointments during the claimed period of December 31,
2005 to January 3, 2006 as a result of her employment injury.
The only medical evidence of record addressing the December 31, 2005 to January 3,
2006 period of disability is the November 23, 2005 disability note from Dr. Kushwaha, a treating
Board-certified orthopedic surgeon, who merely indicated that appellant was totally disabled
until January 26, 2006. Dr. Kushwaha did not provide a diagnosis of any condition or an
explanation for appellant’s disability in the November 23, 2005 note. He did not offer any
opinion that appellant’s disability was caused by or related to her accepted lumbar intervertebral
disc displacement without myelopathy. Dr. Kushwaha’s mere statement that appellant was
totally disabled, without additional clarification, diagnoses or findings on examination is not
sufficient to establish her claim for disability.10
For each period of disability claimed, the employee has the burden of establishing that he
or she was disabled for work as a result of the accepted employment injury.11 The issue of
whether a claimant’s disability is related to an accepted condition is a medical question which
must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to employment factors and
supports that conclusion with sound medical reasoning.12 The Board finds that there is no such
evidence in this case.

7

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Gary J. Watling, 52 ECAB 278 (2001).

8

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Manuel Garcia, 37 ECAB 767 (1986).

9

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

10

See Sandra D. Pruitt, supra note 6.

11

Amelia S. Jefferson, supra note 9.

12

Sandra D. Pruitt, supra note 6.

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CONCLUSION
The Board finds appellant has not established that her disability for the period
December 31, 2005 through January 3, 2006 was causally related to her accepted December 2,
2004 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 13, 2008 is affirmed
Issued: July 14, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 14-1503
Issued: November 24, 2014

Case Submitted on the Record

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

JURISDICTION
On June 18, 2014 appellant, through his attorney, filed a timely appeal from a May 14,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying
modification of its loss of wage-earning capacity determination. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that the July 30, 2009 loss of wage-earning
capacity determination should be modified.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated September 5, 2012,
the Board set aside a September 14, 2011 decision denying modification of the July 30, 2009 loss
1

5 U.S.C. § 8101 et seq.

of wage-earning capacity determination.2 The Board noted that appellant filed a recurrence of
disability beginning January 26, 2011 after his limited-duty position was withdrawn and his
hours reduced under the National Reassessment Program (NRP). The Board remanded the case
for OWCP to apply FECA Bulletin No. 09-05. In a decision dated November 18, 2013, the
Board affirmed an April 30, 2013 OWCP decision finding that appellant did not have any
permanent impairment of the lower extremities.3 The facts and circumstances as set forth in the
prior decisions are hereby incorporated by reference. The facts relevant to the instant appeal are
set forth.
After remand by the Board, in a decision dated October 25, 2012, OWCP denied
modification of its July 30, 2009 loss of wage-earning capacity decision. On May 1, 2013 an
OWCP hearing representative affirmed the October 25, 2012 decision. He found that OWCP
applied FECA Bulletin No. 09-05 and determined that appellant had not established that the
wage-earning capacity should be modified either because the position was makeshift or because
his condition materially worsened.
The record reflects that appellant continued to work in his part-time modified positon
until he stopped work on August 15, 2011. He returned to work on November 18, 2011 for eight
hours a day in his previous limited-duty employment. The position required appellant to perform
his usual duties with frequent breaks and no overtime.
On September 10, 2012 appellant alleged that he sustained hip and low back pain due to
factors of his federal employment. OWCP accepted the claim for lumbar sprain under claim file
number xxxxxx064. It doubled the case record into the current claim file number xxxxxx054.
In a report dated September 10, 2012, Dr. Patrick A. Hartman, Board-certified in family
practice, evaluated appellant for low back pain. Appellant identified the reason for his visit as
low back and bilateral hip pain from an employment injury. Dr. Hartman diagnosed low back
pain. In a duty status report dated September 10, 2012, he diagnosed low back strain and
provided work restrictions, including lifting and carrying up to five pounds and standing and
walking for two hours a day. The duty status report listed the date of injury as
September 7, 2012. Dr. Hartman checked “yes” that the history of injury given by appellant
2

On February 23, 2006 appellant, then a 40-year-old letter carrier, filed a traumatic injury claim alleging that on
February 16, 2006 he experienced left shoulder pain while casing mail. OWCP accepted the claim, assigned claim
file number xxxxxx054, for a left displaced cervical intervertebral disc. It further accepted that on January 18, 2006
appellant sustained lumbar strain and herniated discs at L1-2 and L5-S1. OWCP assigned the claim file
number xxxxxx218. It combined both file numbers into claim file number xxxxxx054. On July 28, 2008 appellant
underwent a right laminectomy and discectomy at L5-S1. He also underwent cervical surgeries on October 8
and 27, 2008. On April 2, 2009 appellant accepted a positon with the employing establishment casing and carrying
mail for eight hours a day with no overtime and frequent breaks. By decision dated July 30, 2009, OWCP reduced
his compensation to zero based on its finding that his actual earnings beginning April 2, 2009 fairly and reasonably
represented his wage-earning capacity.
3

Docket No. 13-1562 (issued November 18, 2013). By decision dated January 20, 2012, OWCP granted
appellant a schedule award for a 13 percent left upper extremity impairment. In a decision dated July 24, 2012, it
denied his claim for a schedule award of the lower extremities. On September 20, 2012 an OWCP hearing
representative set aside the July 24, 2012 decision. In decisions dated October 23, 2012 and April 30, 2013, OWCP
again determined that appellant was not entitled to a schedule award of the lower extremities.

2

corresponded to that on the claim form of lower back and hip pain. He completed duty status
reports dated September 2012 to August 2013 providing the same work restrictions but listing
the date of injury as February 16, 2005. Dr. Hartman again checked “yes” that the history
provided corresponded to that described on the form of hip and low back pain.
In a report dated September 17, 2012, Dr. Hartman found that appellant’s back was
slowly improving from being off work. On October 1, 2012 he diagnosed hip and low back pain
and increased his lifting restrictions to 10 pounds. On November 5, 2012 Dr. Hartman related
that appellant heard something pop when he bent over to get his shoes and experienced radiating
pain into his right leg. He diagnosed radicular pain. In a report dated November 26, 2012,
Dr. Hartman diagnosed back pain with little change and the same restrictions. In progress
reports dated December 2012 through July 2013, he provided findings on examination and
discussed his treatment of appellant for low back pain.
On October 18, 2012 appellant filed a claim for compensation (Form CA-7) requesting
compensation for time lost from September 8 to October 19, 2012. On August 9, 2013 he filed a
claim for compensation from September 13, 2012 through August 9, 2013.
By letter dated August 28, 2013, OWCP informed appellant that it had received his claim
for compensation and noted that his physician submitted duty status reports beginning
September 10, 2012 with increased work restrictions. It found that the date of injury on the
reports changed from September 7, 2012, the date of his occupational disease under claim file
number xxxxxx064, to February 16, 2005. OWCP provided appellant 30 days to submit
reasoned medical evidence that his condition had materially worsened.
On August 27, 2013 the employing establishment indicated that appellant worked either
full or part time from January 2011 until he stopped work on August 15, 2011. Appellant
returned to work on November 18, 2011 and worked full time until he stopped work on
September 12, 2012 because it did not have work available.
In a report dated September 12, 2013, Dr. Hartman opined that appellant was unable to
work beginning September 7, 2012 due to hip and low back pain. He stated, “Etiologies are
often complex and mixed problems seem to be at play here.”
By decision dated October 8, 2013, OWCP denied modification of its July 30, 2009 loss
of wage-earning capacity determination. It found that appellant did not establish that his
condition materially worsened.4
In a report dated October 10, 2013, Dr. Hartman advised that appellant was seen to
“discuss his [w]orkers’ [c]ompensation for the [employing establishment].” He diagnosed
chronic low back pain and noted that he was not working.
On October 14, 2013 appellant, through his attorney, requested a telephone hearing
before an OWCP hearing representative.

4

OWCP noted that a March 29, 2013 magnetic resonance imaging scan study showed no disc herniations.

3

In a report dated November 11, 2013, Dr. Hartman noted that appellant “presents for
[w]orkers’ [c]ompensation follow up.” He diagnosed low back and hip pain and found that his
work restrictions had not changed. November 11, 2013 x-rays showed mild bilateral hip
degenerative changes.
On December 17, 2013 Dr. Hartman evaluated appellant for low back pain and weakness
in his leg. He provided a specific diagnosis of low back pain and increased leg weakness. On
January 14, 2014 Dr. Hartman advised that an electromyography (EMG) revealed radiculopathy
at L5-S1 of undetermined age. On February 13, 2014 he noted that he was following up on
appellant’s back injury, which had not changed, and he diagnosed continued low back pain.
At the telephone hearing, held on March 12, 2014, appellant related that he was currently
receiving disability retirement compensation. He related that his supervisor told him to pursue
his claim under the 2005 work injury rather than the 2012 occupational disease claim. After
appellant filed his September 2012 occupational disease claim, he provided new work
restrictions to the employing establishment, but the employing establishment was unable to
provide work within the new restrictions. Counsel attributed the worsening of appellant’s
condition to his 2012 occupational disease claim, assigned claim file number xxxxxx064 and
accepted for lumbar strain. An OWCP hearing representative advised appellant to claim
disability compensation under claim file number xxxxxx064. He informed counsel that even if
the cases were administratively doubled, claims for disability should be filed under the specific
file number.
On February 13, 2014 Dr. Hartman diagnosed continued low back pain. In a report dated
March 18, 2014, he stated, “[Appellant] presents for review of his low back pain that has been
ongoing. He has multiple medical problems, but he says his low back pain is persistent since his
injury in the [employing establishment].” Dr. Hartman diagnosed low back pain.
In a report dated March 18, 2014, Dr. Hartman indicated that appellant’s left leg pain
“clearly seems to be related to his L5-S1 radiculopathy” confirmed by EMG. He recommended
an evaluation by a specialist.
On April 17, 2014 Dr. Hartman provided examination findings and diagnosed low back
pain with restrictions “as ordered.”
By decision dated May 14, 2014, an OWCP hearing representative affirmed the
October 8, 2013 decision. The hearing representative found that appellant had not established
that he sustained a material worsening of his condition from his February 16, 2005 injury such
that he was disabled from his modified employment as of September 13, 2012.
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

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wages.5 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
ANALYSIS
OWCP accepted that appellant sustained cervical disc displacement and root lesions due
to a February 16, 2005 work injury under claim file number xxxxxx054. It further accepted that
on January 18, 2006 he sustained a herniated lumbar disc and lumbar strain under claim file
number xxxxxx218 and combined the claims under claim file number xxxxxx054. On
April 2, 2009 appellant accepted a position with the employing establishment casing and
carrying mail for eight hours a day with no overtime and frequent breaks. By decision dated
July 30, 2009, OWCP reduced his compensation to zero after finding that his actual earnings as a
modified mail carrier beginning April 2, 2009 fairly and reasonably represented his
wage-earning capacity.
The employing establishment reduced appellant’s hours under NRP as of
January 26, 2011. Appellant filed a recurrence of disability beginning that date. By decision
dated September 5, 2012, the Board set aside OWCP decisions denying modification of the
wage-earning capacity determination and remanded the case for OWCP to apply FECA Bulletin
No. 09-05. On remand, in decisions dated October 25, 2012 and May 1, 2013, OWCP found that
appellant had not established that modification of the wage-earning capacity decision was
warranted.
Appellant worked part time until August 15, 2011, when he stopped work. On
November 18, 2011 he returned to work for eight hours a day in his modified position. On
September 10, 2012 appellant filed an occupational disease claim, accepted by OWCP for
lumbar sprain under claim file number xxxxxx064. He provided increased work restrictions to
the employing establishment. The employing establishment did not have work available within
appellant’s increased restrictions. On October 18, 2012 appellant filed a claim for compensation
beginning September 8, 2012.
In his claim for compensation, appellant has not alleged that the employing establishment
withdrew his modified duties or reduced his hours under NRP. He also has not contended that
the original loss of wage-earning capacity determination was in error. Instead, appellant argues
5

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

6

Sharon C. Clement, 55 ECAB 552 (2004).

7

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000).

8

Id.

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that his condition worsened such that he was unable to perform his modified work duties. He has
the burden of proof to show a material change in the nature and extent of an injury-related
condition.9
The Board finds that appellant has not submitted medical evidence sufficient to establish
that he was unable to perform the duties of his April 2, 2009 position. In duty status reports
dated September 10, 2012 to August 11, 2013, Dr. Harman diagnosed either low back strain or
low back pain and provided work restrictions, including no lifting over five pounds. He checked
“yes” that the history of injury given by appellant corresponded to that on the claim form of low
back and hip pain. The Board has held, however, that an opinion on causal relationship which
consists only of a physician checking “yes” to a medical form question on whether the claimant’s
condition was related to the history given is of little probative value. Without explanation or
rationale for the conclusions reached, such report is insufficient to establish causal relationship.10
In a report dated September 10, 2012, Dr. Hartman diagnosed low back and bilateral hip
pain. In progress notes dated September 17 and October 1, 2012, he listed findings on
examination and discussed work restrictions. On November 5, 2012 Dr. Hartman diagnosed
radicular pain, noting that appellant heard a pop when he bent over to get his shoes. In progress
notes dated November 26 through July 11, 2013, he treated appellant for low back pain.
Dr. Hartman did not, however, specifically relate any diagnosed condition or total disability to
the February 16, 2005 or January 18, 2006 work injuries. Medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of diminished probative value on
the issue of causal relationship.11
On September 12, 2013 Dr. Hartman stated that appellant was not able to work as of
September 7, 2012 as a result of pain in his hip and low back. He related that the etiology of his
condition was complicated and appeared to result from different factors. As Dr. Hartman did not
relate any condition to employment, his opinion is insufficient to meet appellant’s burden of
proof to show a material change in his injury-related condition.
In a report dated October 10, 2013, Dr. Hartman noted that appellant wanted to discuss
his workers’ compensation claim. He diagnosed chronic low back pain. On November 11, 2013
Dr. Hartman advised that appellant was seen in follow-up for workers’ compensation. He
diagnosed low back and hip pain and noted that his work restrictions had not changed. On
December 17, 2013 Dr. Hartman diagnosed low back pain and increased leg weakness. In a
January 14, 2014 progress report, he noted that an EMG showed L5-S1 radiculopathy of an
unknown age. Dr. Hartman diagnosed low back pain. On February 13, 2014 he noted that he
was following up on appellant’s back injury, which had not changed. Dr. Hartman diagnosed
low back pain. While he indicated that appellant was seeking treatment for workers’
compensation, he did not relate any diagnosed condition to a work injury or attribute the
9

See Harley Sims Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375 (2000) (the burden of proof is on
the party attempting to show modification of the wage-earning capacity determination).
10

Cecelia M. Corley, 56 ECAB 662 (2005); Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box
“yes” in a form report, without additional explanation or rationale, is insufficient to establish causal relationship).
11

See A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB 313 (1999).

6

increased work restrictions to employment.12
diminished probative value.

Consequently, Dr. Hartman’s reports are of

Appellant has not submitted a probative medical opinion establishing a material change
in the nature and extent of his accepted condition of February 16, 2005. As discussed at the
hearing, if he believes that he sustained disability due to his accepted September 2012
occupational disease, he should pursue a claim for compensation under that alternate file
number.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not established that the July 30, 2009 loss of
wage-earning capacity determination should be modified.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 24, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

12

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baton Rouge, LA, Employer
__________________________________________

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

Docket No. 18-1441
Issued: October 21, 2019

Case Submitted on the Record

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

JURISDICTION
On July 17, 2018 appellant filed a timely appeal from February 12 and June 29, 2018
nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). 1 The most recent
merit decision was a June 4, 2009 decision of the Board, which became final 30 days after issuance
and is not subject to further review. 2 As there was no merit decision issued by OWCP within 180
days of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.4

Appellant timely requested oral argument pursuant to 20 C.F.R. § 501.5(b) of the Board’s Rules of Procedure.
The Board denied the request as his arguments could be adequately addressed based on a review of the case record.
Order Denying Request for Oral Argument, Docket No. 18-1441 (issued August 14, 2019).
1

2
Id. at § 501.6(d); see P.S., Docket No. 18-0718 (issued October 26, 2018); T.B., Docket No. 15-0001 (issued
July 1, 2015); C.M., Docket No. 15-0471 (issued April 27, 2015); D.A., Docket No. 08-1217 (issued October 6, 2008).
3

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.
4

ISSUE
The issue is whether OWCP properly denied appellant’s requests for reconsideration,
finding that they were untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. 5 The facts of the case, as set forth in the
prior decisions, are incorporated herein by reference. The relevant facts are as follows.
On January 17, 1988 appellant, then a 38-year-old city letter carrier, was injured in a motor
vehicle accident while in the performance of duty. OWCP accepted the claim for cervical and
lumbar strains and aggravation of preexisting degenerative disc disease. It paid appellant wageloss compensation for intermittent periods of disability due to the accepted conditions.
On June 18, 1991 OWCP terminated appellant’s compensation effective February 5, 1991,
finding that the medical evidence of record established that he no longer had residuals or disability
due to his accepted employment conditions. It found the report from the impartial medical
specialist, Dr. Gordon P. Nutik, a Board-certified orthopedic surgeon, who found that appellant’s
employment-related conditions had resolved, was entitled to the weight of the medical evidence.
In an April 27, 1992 decision, an OWCP hearing representative modified the June 18, 1991
decision to reflect that appellant sustained a temporary aggravation of underlying degenerative
disc disease due to the accepted employment injury of January 17, 1988 and affirmed the decision
that he no longer had residuals or disability due to his accepted employment conditions.
In a July 2, 2008 decision, OWCP found that appellant had not met his burden of proof to
establish continuing residuals or disability on or after February 5, 1991, due to his accepted
January 17, 1988 employment injury.
On July 15, 2008 appellant filed a timely appeal to the Board. By decision dated June 4,
2009, the Board affirmed the July 2, 2008 OWCP decision.6
On November 26, 2013 appellant requested reconsideration.
By decision dated March 28, 2014, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

5

Docket No. 14-1098 (issued July 2, 2015); Docket No. 09-1986 (issued June 4, 2009), Order Denying Petition
for Reconsideration (issued September 25, 2009); Docket No. 09-0515 (issued January 12, 2007); Docket No.
03-0698 (issued August 3, 2004), petition for recon. denied (issued April 4, 2005); Docket No. 01-1157 (issued
July 29, 2002); Docket No. 94-2110 (issued June 2, 1997); Docket No. 94-0333 (issued August 9, 1995); Docket No.
92-0560 (issued November 19, 1992).
6

Docket No. 08-1986 (issued June 4, 2009), petition for recon. denied, Docket No. 08-1986 (issued
September 25, 2009).

2

On April 4, 2014 appellant filed a timely appeal to the Board. By decision dated July 2,
2015, the Board affirmed the March 28, 2014 decision, finding that OWCP properly determined
that his request for reconsideration was untimely filed and failed to present clear evidence of error. 7
On June 28, 2016 appellant again requested reconsideration. He argued that his benefits
should be reinstated because OWCP failed to address his August 13, 2014 Privacy Act/FOIA
request for information concerning whether Dr. Nutik and Dr. Robert A. Steiner, a Board-certified
orthopedic surgeon, had contracted with his employer for fitness-for-duty examinations from 1989
through 1995. Appellant also alleged that an impartial medical examiner physician had indicated
that he had permanent residuals. He resubmitted evidence previously of record.
In e-mail correspondence dated August 30, 2016, the employing establishment indicated
“we can verify that we DID NOT have contracts with Dr. Nutik or Dr. Steiner.”
In a November 1, 2016 decision, OWCP denied appellant’s June 28, 2016 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
Appellant again requested reconsideration on October 30, 2017. Appellant argued that he
discovered that Dr. Nutik and Dr. Steiner conducted fitness-for-duty examinations and therefore
an appearance of impropriety had been created.
OWCP contacted Dr. Nutik on January 25, 2018 regarding his firm’s professional contracts
with the employing establishment. On January 30, 2018 Dr. Nutik responded “no” with regard to
whether he or any members of his firm had performed any fitness-for-duty examinations from
1989 through 1995.
By decision dated February 12, 2018, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
On March 5, 2018 OWCP received a January 21, 2018 letter from Dr. Nutik, in which he
confirmed that he had never performed fitness-for-duty examinations for any employer.
On June 18, 2018 appellant again requested reconsideration. He argued that he was
submitting positive, precise, and explicit evidence that OWCP committed error. Appellant referred
to the temporary modified limited-duty position from July 10, 1990 and argued that it did not
comply with his physician’s restrictions. He noted that this was in contrast to his coworkers, whose
temporary modified limited-duty positions complied with the restrictions of their attending
physicians. Appellant further argued that the job offer had not been approved by his physician,
but was approved by the referee physician.
In a separate letter dated June 16, 2018, appellant submitted a June 2, 1989 letter from K.J.,
an OWCP claims examiner. He noted that she indicated that Dr. Jack F. Loupe, an attending
Board-certified orthopedic surgeon, acted as a consultant on behalf of OWCP and he was
precluded from “hands on treatment of [appellant].” Appellant enclosed a copy of the letter.
OWCP also received a copy of a June 14, 1990 temporary limited-duty position. It also
received a copy of a December 27, 1989 routing slip, August 20, 1990 correspondence to
7

Docket No. 14-1098 (issued July 2, 2015).

3

appellant’s representative from OWCP related to a request to change his treating physician, and a
January 6, 1989 appointment letter from OWCP advising appellant of his appointment to see a
referee physician.
With a letter dated June 23, 2018, appellant enclosed a news article on the employing
establishment’s practices. He argued that a coworker, B.T., was allowed to have the limitations
provided by his attending physician.
By decision dated June 29, 2018, OWCP denied appellant’s June 18, 2018 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.8 This discretionary authority, however, is subject to certain restrictions. 9 OWCP’s
regulations10 establish a one-year time limitation for requesting reconsideration, which begins on
the date of the original OWCP merit decision. A right to reconsideration within one year also
accompanies any subsequent merit decision on the issues. 11 Timeliness is determined by the
document receipt date, the received date in OWCP’s integrated Federal Employees’ Compensation
System (iFECS).12 Imposition of this one-year filing limitation does not constitute an abuse of
discretion.13
When an application for review is untimely, OWCP undertakes a limited review to
determine whether the application demonstrates clear evidence that OWCP’s final merit decision
was in error.14 Its procedures 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, if the claimant’s
application for review demonstrates “clear evidence of error” on the part of OWCP. 15
In this regard, OWCP will limit its focus to a review of how the newly submitted evidence
bears on the prior evidence of record. 16 To demonstrate clear evidence of error, a claimant must
8

See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

9

20 C.F.R. § 10.607(a).

10

V.G., Docket No. 19-0038 (issued June 18, 2019); J.W., Docket No. 18-0703 (issued November 14, 2018);
20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).
11

J.W., id.; Robert F. Stone, 57 ECAB 292 (2005).

12

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

13

S.T., Docket No. 18-0925 (issued June 11, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
14
C.V., Docket No. 18-0751 (issued February 22, 2019); B.W., Docket No. 10-0323 (issued September 2, 2010);
M.E., 58 ECAB 309 (2007); Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993);
Jesus D. Sanchez, 41 ECAB 964 (1990).
15

See D.G., Docket No. 18-1038 (issued January 23, 2019); Gladys Mercado, 52 ECAB 255 (2001).

16

V.G., supra note 10; see E.P., Docket No. 18-0423 (issued September 11, 2018); Nelson T. Thompson, 43 ECAB
919 (1992).

4

submit evidence relevant to the issue which was decided by OWCP. 17 The evidence must be
positive, precise, and explicit and must manifest on its face that OWCP committed an error. 18
Evidence which does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to demonstrate clear evidence of error. 19 It is not enough merely to show
that the evidence could be construed so as to produce a contrary conclusion. 20 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.21
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.22 The Board
makes an independent determination of whether a claimant has demonstrated 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. 23
ANALYSIS
The Board finds that OWCP properly denied appellant’s requests for reconsideration,
finding that they were untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations24 and procedures25 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues. 26
The most recent merit decision regarding the denial of appellant’s claim for disability was the
Board’s June 4, 2009 decision. As appellant’s October 30, 2017 and June 18, 2018 requests for
reconsideration were received more than one year after the June 4, 2009 decision, the Board finds

17

S.T., supra note 13; see C.V., supra note 14; Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB
1153 (1992).
S.T., supra note 13; see E.P., supra note 16; Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43
ECAB 227 (1991).
18

19

V.G., supra note 10; see C.V., supra note 14; Leon J. Modrowski, supra note 14; Jesus D. Sanchez, supra note 14.

20

V.G., supra note 10; see E.P., supra note 16; Leona N. Travis, supra note 18.

21

Supra note 16.

22

D.G., supra note 15; Leon D. Faidley, Jr., 41 ECAB 104 (1989).

23

L.B., Docket No. 19-0635 (issued August 23, 2019).

24

20 C.F.R. § 10.607(a); see J.W., Docket No. 18-0703 (issued November 14, 2018); Alberta Dukes, 56 ECAB
247 (2005).
25

Supra note 12 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

26

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

5

that they were untimely filed. Therefore, he must demonstrate clear evidence of error by OWCP
in its July 2, 2008 decision.27
The Board further finds that appellant’s reconsideration requests failed to demonstrate clear
evidence of error on the part of OWCP in its July 2, 2008 merit decision.28
In support of his October 30, 2017 reconsideration request, appellant argued that the
employing establishment was unable to verify that Dr. Nutik and Dr. Steiner did not conduct
fitness-for-duty examinations. He also provided e-mails dated September 28, 2015, that he argued
were evidence that Dr. Nutik and Dr. Steiner conducted fitness-for-duty examinations, which
created an appearance of impropriety. The Board notes that appellant is in error, as on August 30,
2016 the employing establishment confirmed that it did not have contracts with either Dr. Nutik
or Dr. Steiner, and Dr. Nutik confirmed on January 30, 2018, that neither he nor any members of
his practice performed any fitness-for-duty examinations from 1989 through 1995. Therefore, the
Board finds that the new evidence from appellant does not demonstrate clear evidence of error on
the part of OWCP in denying his claim for disability claims after February 5, 1991 due to his
January 17, 1988 employment injury, and does not raise a substantial question as to the correctness
of OWCP’s June 4, 2009 merit decision. As such, the evidence and argument is insufficient to
warrant further merit review.
In support of his June 18, 2018 reconsideration request, appellant presented a copy of his
temporary modified limited-duty position from July 10, 1990, and argued that it did not comply
with his physician’s restrictions. He also submitted copies of a June 14, 1990 temporary
limited-duty position, a December 27, 1989 routing slip, August 20, 1990 correspondence related
to a request to change his treating physician; a news article, and a January 6, 1989 OWCP letter
advising him of his appointment to see a referee physician.
Appellant noted that his coworkers had temporary modified limited-duty positions which
complied with the restrictions of their attending physicians. He argued that error occurred because
OWCP refused to accept his attending physician’s restrictions, while his coworker, B.T., was
allowed to have the limitations provided by his attending physician. Appellant also argued that
Dr. Loupe acted as a consultant on behalf of OWCP and was precluded from “hands on treatment
of [appellant].”
The Board notes that a question arose in 1989 as to whether appellant had been referred to
Dr. Loupe by Dr. Jenkins, for purposes of medical billing as an authorized treating physician.
Appellant has not shown that Dr. Loupe should have been prohibited from treating appellant, if
appellant chose to continue treatment with Dr. Loupe. The Board notes that the decision to refer
a case for another examination rests wholly with an OWCP claims examiner. 29 Regarding
27

Id. at § 10.607(b); see M.W., Docket No. 17-0892 (issued May 21, 2018); see S.M., Docket No. 16-0270 (issued
April 26, 2016). See Debra McDavid, 57 ECAB 149 (2005).
While appellant claimed to be filing a request for reconsideration from the Board’s June 4, 2009 decision, OWCP
is not authorized to review Board decisions. The decision and orders of the Board are final as to the subject matter
appealed, and such decisions and orders are not subject to review, except by the Board. 20 C.F.R. § 501.6(d).
Although the Board’s June 4, 2009 decision was the last merit decision, OWCP’s July 2, 2008 decision was the
appropriate subject of possible modification by OWCP.
28

29

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.5000.3(a) (July 2011).

6

appellant’s argument that his coworkers were allowed to have the limitations provided by their
attending physicians, it is of no probative value as matters regarding other workers’ compensation
cases of coworkers have no relevance in this case.30 The underlying issue is medical in nature and
must be addressed by medical evidence. 31 Appellant has acknowledged that his job offer was
within restrictions provided by an OWCP physician. In order to demonstrate clear evidence of
error, a claimant must submit evidence relevant to the issue which was decided by OWCP. 32 The
Board notes that appellant has not submitted any evidence to demonstrate clear evidence of error.
To demonstrate clear evidence of error, it is insufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is
intended to represent a difficult standard. 33 The evidence submitted does not manifests on its face
that OWCP committed an error in denying appellants claim for disability after February 5, 1991
due to his January 17, 1988 employment injury. Appellant has not otherwise submitted evidence
of sufficient probative value to raise a substantial question as to the correctness of OWCP ’s last
merit decision. Thus, the Board finds that he has not demonstrated clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for reconsideration,
finding that they were untimely filed and failed to demonstrate clear evidence of error.

30

See E.D., Docket No. 08-0204 (issued November 19, 2008).

31

See E.C., Docket No. 17-1229 (issued December 13, 2017).

32

See M.W., Docket No. 17-0892 (issued May 21, 2018); Howard Y. Miyashiro, 51 ECAB 253 (1999).

33

Supra note 12 at Chapter 2.1602.5.a (February 2016); see D.Y., Docket No. 19-0565 (issued August 13, 2019);
see Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

7

ORDER
IT IS HEREBY ORDERED THAT the June 29 and February 12, 2018 decisions of
Office of Workers’ Compensation Programs are affirmed.
Issued: October 21, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., representative of the estate of R.S.,
Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Mission Valley, CA, Employer
__________________________________________

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

Docket No. 17-2010
Issued: October 12, 2018

Case Submitted on the Record

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

JURISDICTION
On September 27, 2017 appellant, through counsel, timely filed an appeal from two
March 31, 2017 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that the
employee was totally disabled from work commencing October 1, 2010 due to accepted
degenerative cervical disc disease and a cervical spine sprain; and (2) whether appellant has met
his burden of proof to establish that the employee sustained bilateral carpal tunnel syndrome,
bilateral ulnar neuritis at Guyon’s canal, and right cubital tunnel syndrome causally related to the
accepted factors of his federal employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as set forth in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On January 18, 2011 the employee, then a 69-year-old orthopedic surgeon, filed an
occupational disease claim (Form CA-2) alleging that, on January 22, 2008, he first became aware
that he sustained a cervical spine sprain and cervical degenerative disc disease caused by repetitive
writing, typing, and the stresses of performing physical examinations in the performance of his
federal employment duties.4 He stopped work on September 30, 2010. OWCP subsequently
accepted the claim for neck strain and cervical spine degenerative disc disease.
On September 12, 2011 the employee filed a claim for compensation (Form CA-7) for
disability commencing October 1, 2010 in OWCP File No. xxxxxx336. On January 12, 2012
OWCP denied the employee’s claim for wage-loss compensation commencing October 1, 2010.
On January 31, 2012 counsel requested a hearing before an OWCP hearing representative. By
decision dated June 11, 2012, OWCP set aside the January 12, 2012 decision and remanded the
case for a second opinion evaluation. By decision dated November 22, 2013, it again denied the
employee’s claim for wage-loss compensation. On December 2, 2013 counsel requested a hearing
before an OWCP hearing representative. By decision dated December 4, 2014, OWCP’s hearing
representative affirmed the denial of the employee’s claim for wage-loss compensation
commencing October 1, 2010.
On August 7, 2013 the employee filed another occupational disease claim (Form CA-2).
He alleged that, on September 7, 2012, he first became aware that he sustained bilateral carpal
tunnel syndrome, bilateral ulnar neuritis at Guyon’s canal, and right cubital tunnel syndrome in
the performance of his federal employment duties.5 By decision dated November 19, 2013, OWCP
denied that claim, finding that the employee had not established an injury causally related to the
alleged factors of his federal employment. On December 2, 2013 counsel requested a hearing
before an OWCP hearing representative. By decision dated December 4, 2014 in File
No. xxxxxx457, OWCP’s hearing representative found that the employee had not established

3

Docket Nos. 15-0972 and 15-1005 (issued September 27, 2016).

4

OWCP assigned the claim File No. xxxxxx336.

5

OWCP assigned that claim File No. xxxxxx457.

2

causal relationship between his alleged upper extremity conditions and the factors of his federal
employment. The employee died in October 2015.
Appellant appealed to the Board. By decision and order issued September 27, 2016,6 the
Board set aside OWCP’s December 4, 2014 decision under OWCP File No. xxxxxx336 which
denied the employee’s claim for total disability compensation commencing October 1, 2010, and
OWCP’s December 4, 2014 decision under OWCP File No. xxxxxx457 which denied the
employee’s occupational disease claim for bilateral carpal tunnel syndrome, bilateral ulnar neuritis
at Guyon’s canal, and right cubital tunnel syndrome. OWCP had predicated its denial of the claims
on the September 7, 2012 report of Dr. David Easley, a Board-certified orthopedic surgeon and
second opinion physician. The Board found that Dr. Easley’s opinion contained insufficient
medical reasoning as to whether the employee’s work duties caused or contributed to the claimed
upper extremity conditions and the claimed period of disability. The Board therefore, remanded
the case to OWCP to obtain a supplemental report from Dr. Easley to clarify his opinion on causal
relationship.
On remand, OWCP administratively combined OWCP File Nos. xxxxxx457 and
xxxxxx336, effective October 5, 2016. It assigned File No. xxxxxx336 as the master file.
In a December 8, 2016 letter, OWCP requested that Dr. Easley provide a supplemental
medical report based on the medical record and an updated statement of accepted facts (SOAF).
It asked him to explain whether the employee’s work duties as described in the SOAF caused or
contributed to the development of bilateral carpal tunnel syndrome, bilateral ulnar neuritis and
Guyon’s canal, and right cubital tunnel syndrome. OWCP also requested that Dr. Easley address
whether the employee was partially or totally disabled from work on and after October 1, 2010
due to factors of his federal employment. Dr. Easley failed to respond to OWCP’s requests.
In a March 2, 2017 file memorandum, OWCP noted that, after repeated attempts, the
medical scheduling contractor had been “unsuccessful in obtaining a report from Dr. Easley. It
has been recommended that [OWCP] initiate a SECOP [second opinion physician] with a new
physician in order to complete adjudication of this claim.”
On March 21, 2017 OWCP obtained a second opinion from Dr. Michael J. Einbund, a
Board-certified orthopedic surgeon. Dr. Einbund provided a March 21, 2017 report in which he
summarized the medical record and reviewed the SOAF. He opined that the accepted employment
factors caused a temporary aggravation of preexisting degenerative cervical disc disease. The
aggravation ceased no later than September 30, 2010, when the employee stopped work as his
contract had ended. Dr. Einbund also opined that the diagnosed bilateral ulnar neuritis, bilateral
carpal tunnel syndrome, and right cubital tunnel syndrome were not related to the employee’s
federal employment, as the medical evidence of record did not mention any symptoms or findings
of the claimed conditions until September 2012, approximately two years after the employee had
stopped work. He asserted that the employee’s degenerative disc disease was secondary to agerelated changes and nonoccupational motor vehicle accidents. Dr. Einbund asserted that the
employee “was not totally or partially disabled from work commencing on October 1, 2010. There
[was] no objective evidence of change in his underlying cervical spine condition resulting in any
6

Docket Nos. 15-0972 and 15-1005 (issued September 27, 2016).

3

need for temporary or partial disability. [The employee] was working in an unrestricted manner
without physical limitation and could have continued to do so.”
By decision dated March 31, 2017, under File No. xxxxxx457, OWCP denied the
employee’s claim for bilateral upper extremity conditions as causal relationship had not been
established. It accorded Dr. Einbund’s opinion the weight of the medical evidence.
By separate decision dated March 31, 2017, under File No. xxxxxx336, OWCP denied the
employee’s claim for total disability compensation commencing October 1, 2010 as the medical
evidence of record was insufficient to establish causal relationship between the employee’s work
factors and the claimed period of disability. It accorded Dr. Einbund’s opinion the weight of the
medical evidence.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA7 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”8 This meaning, for brevity, is expressed as disability for work.9
For each period of disability claimed, the employee has the burden of proof to prove that
he was disabled from work as a result of the accepted employment injury.10 Whether a particular
injury caused an employee to be disabled from employment and the duration of that disability are
medical issues which must be proven by the preponderance of the reliable probative and substantial
medical evidence.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that the
employee was totally disabled from work commencing October 1, 2010 due to the accepted
employment-related conditions.
Under OWCP File No. xxxxxx336, OWCP accepted that the employee sustained a cervical
spine sprain and cervical degenerative disc disease in the performance of his duties on or before
January 22, 2008. His five-year appointment ended on September 30, 2010, at which time he

7

5 U.S.C. § 8102(a).

8
20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
9

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

10

See William A. Archer, 55 ECAB 674 (2004).

11

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

4

stopped work and did not return. On September 12, 2011 the employee filed a claim for total
disability compensation beginning October 1, 2010.
The employee submitted medical evidence in support of his claim. Dr. Joel Heiser, an
attending Board-certified orthopedic surgeon, permanently limited computer use to 10 minutes an
hour as of January 22, 2008. He opined that a July 18, 2010 motor vehicle accident aggravated
the employee’s degenerative disc disease. Dr. Heiser did not indicate that the employee’s accepted
cervical conditions worsened as of October 1, 2010, or that the employee was totally disabled from
work as of that date. His opinion is therefore of diminished value in establishing the claimed
period of disability.12
Dr. Nichols, an attending Board-certified orthopedic surgeon, noted on August 27, 2010
that the employee related that after experiencing “excruciating neck pain” following his July 18,
2010 motor vehicle accident, it was “much more difficult for him” to write reports at work.
Although he did not specifically address the employee’s condition as of September 30, 2010, he
clearly opined that the employee’s symptoms as of late August 2010 were attributable to the
July 18, 2010 motor vehicle accident and not to work factors. Dr. Nichols’ opinion therefore
negates the employee’s assertion of causal relationship.13
Dr. Alleyne, an attending Board-certified orthopedic surgeon, opined on January 27, 2011
that the employee’s cervical spine pain was aggravated by 2000, 2001, and 2010 motor vehicle
accidents and by examining patients at the employing establishment during his five-year
appointment. He asserted that the employee stopped work on October 1, 2010 as his symptoms
had been increasing. However, Dr. Alleyne did not find an objective change in the accepted
conditions as of October 1, 2010. When a physician’s statements consist only of a recitation of
the employee’s complaints that excessive pain caused an inability to work, without making an
objective finding of disability, the physician has not presented a medical opinion on the issue of
disability or a basis for payment of compensation.14 Also, although Dr. Alleyne noted that neck
flexion continued to cause cervical spine pain two years after the employee stopped work, he did
not attribute the employee’s continuing symptoms to work factors.15
Dr. Tauber, an attending Board-certified orthopedic surgeon, first examined the employee
on February 28, 2012. He opined that cervical flexion at work permanently aggravated cervical
degenerative disc disease, but did not specifically address whether the employee was disabled from
work as of October 1, 2010. Dr. Tauber’s opinion is therefore of little relevance in establishing
the claimed period of disability.16

12

Supra note 10.

13

Id.

14

See G.H., Docket No. 17-1893 (issued August 23, 2018).

15

Supra note 10.

16

Id.

5

Dr. Easley, a Board-certified orthopedic surgeon and second opinion physician, opined on
September 7, 2012 that because the employee’s cervical degenerative disc disease was
asymptomatic prior to January 22, 2008, his work duties aggravated the underlying condition. The
Board has held, however, that a temporal relationship alone is insufficient to establish causal
relationship.17 As Dr. Easley did not respond to OWCP’s request for a supplemental report, it
selected Dr. Einbund, a Board-certified orthopedic surgeon, as the new second opinion specialist
in the claim.
Dr. Einbund provided a March 21, 2017 report. As the employee had died he performed a
records review including the SOAF. He opined that the employee was not totally or partially
disabled from work on and after October 1, 2010 as there was no medical evidence documenting
a change in his underlying cervical spine condition that would warrant a period of disability.
Dr. Einbund reasoned that the employee was working full, unrestricted duty immediately prior to
October 1, 2010 and could have continued to do so. The Board finds that his well-rationalized
report, which was based upon a proper factual and medical background, represents the weight of
the medical evidence and establishes that the employee was not disabled from work due to the
accepted degenerative cervical disc disease and cervical spine sprain after October 1, 2010.18
On appeal, counsel contends that OWCP erred by failing to obtain a clarifying report from
Dr. Easley as directed by the Board’s prior decision and order. The Board notes that OWCP made
an appropriate effort to obtain a supplemental opinion from Dr. Easley. When he failed to respond,
OWCP properly selected Dr. Einbund as the new second opinion specialist.
Counsel also asserts that the opinions of Dr. Alleyne, Dr. Easley, and Dr. Tauber were
entitled to dispositive weight as they examined the employee during life whereas Dr. Einbund
merely reviewed the medical record.19 However, the opinions of Dr. Alleyne, Dr. Easley, and
Dr. Tauber cannot represent the weight of the medical evidence as they failed to explain why the
employee was disabled from work for the claimed period due to an occupationally-related
condition.20 OWCP advised the employee by a September 12, 2013 letter of the additional
evidence needed to establish his claim, including his physician’s explanation of how and why work
factors rendered him totally disabled from work as of October 1, 2010, although he was able to
perform full-duty work through the end of his appointment on September 30, 2010. As the
employee did not submit such evidence, he failed to meet his burden of proof.

17

Louis R. Blair, Jr., 54 ECAB 348 (2003).

18

See R.T., Docket No. 17-2019 (issued August 24, 2018).

19
Counsel cites to the Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical
Evidence, Chapter 2.810.6.a(4) (September 2010). He also cites to the Board’s holding in M.A., 59 ECAB 624 (2008),
where the Board held that the uncontroverted opinion of an attending physician is entitled to great weight. However,
the present case may be distinguished from M.A., as the opinion of appellant’s attending physicians was clearly
opposed by Dr. Einbund.
20

See supra note 11.

6

LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA21 has the burden of proof to establish 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, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.22 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.23
An occupational disease is defined as a condition produced by the work environment over
a period longer than a single workday or shift.24 To establish that an injury was sustained in the
performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; (2) factual statement identifying employment factors alleged to have
caused or contributed to the presence or occurrence of the disease or condition; and (3) medical
evidence establishing that the employment factors identified by the claimant were the proximate
cause of the condition for which compensation is claimed or, stated differently, medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medical certainty and must be supported by medical rationale explaining
the nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.25
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish that the
employee sustained bilateral carpal tunnel syndrome, bilateral ulnar neuritis, and right cubital
tunnel syndrome causally related to the accepted factors of his federal employment.
In support of his claim, the employee submitted reports from Dr. Alleyne, an attending
Board-certified orthopedic surgeon. He noted right elbow symptoms on January 27, 2011, which
21

Supra note 2.

22

Joe D. Cameron, 41 ECAB 153 (1989).

23

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

24

20 C.F.R. § 10.5(q).

25

Solomon Polen, 51 ECAB 341 (2000).

7

he attributed to cervical spondylosis. Dr. Alleyne concluded that work factors aggravated the
employee’s degenerative cervical disc disease, but did not diagnose or address the claimed
peripheral nerve entrapments. His opinion is therefore of diminished probative value in
establishing causal relationship.
Dr. Tauber, an attending Board-certified orthopedic surgeon, first examined the employee
on February 28, 2012. He explained that based on the employee’s account, the cervical flexion
while performing examinations or data entry at work prior to September 30, 2010 permanently
aggravated his degenerated cervical discs and facets, resulting in upper extremity paresthesias.
Dr. Tauber changed his opinion on June 18, 2013, attributing bilateral carpal tunnel syndrome,
bilateral Guyon’s canal entrapment, right cubital tunnel syndrome, right medial epicondylitis, and
left lateral epicondylitis to a “double crush” combination of cervical and peripheral nerve
compression due to repetitive motion at work. However, he did not explain his medical reasoning
for supporting that specific work tasks caused the diagnosed peripheral nerve compressions.
Dr. Tauber did not set forth the pathophysiologic mechanisms that would result in the diagnosed
upper extremity conditions. In the absence of such rationale, his report is of insufficient probative
value to meet the employee’s burden of proof.26
On September 7, 2012 OWCP obtained a second opinion from Dr. Easley, a Boardcertified orthopedic surgeon, who found a positive Tinel’s sign at the medial elbow bilaterally.
Dr. Easley diagnosed cervical degenerative disc disease, severe bilateral ulnar neuritis at Guyon’s
canal. However, he did not explain how and why work factors would cause or contribute to any
of the diagnosed conditions.
As Dr. Easley did not respond to OWCP’s requests to clarify his opinion, OWCP obtained
a new second opinion from Dr. Einbund, a Board-certified orthopedic surgeon. In his March 21,
2017 report, Dr. Einbund opined that the diagnosed bilateral ulnar neuritis at Guyon’s canal,
bilateral carpal tunnel syndrome, and right cubital tunnel syndrome were not occupationally related
as there were no symptoms or findings noted until September 2012, approximately two years after
the employee stopped work on September 30, 2010. He emphasized that there were no medical
records contemporaneous with appellant’s occupational exposures which evinced any sign or
symptoms of the claimed peripheral neuropathies. The Board finds that OWCP properly accorded
the weight of the medical evidence to Dr. Einbund’s well-rationalized opinion.27
On appeal, counsel asserts that the Dr. Tauber’s conclusions that repetitive motion at work
caused the employee’s bilateral carpal tunnel syndrome, bilateral ulnar neuritis at Guyon’s canal,
and right cubital tunnel syndrome were sufficient to meet his burden of proof as electrodiagnostic
studies confirmed the presence of those conditions. However, the presence of the conditions is not
at issue. Rather, their causation is in dispute. The employee’s physicians did not explain the
objective, pathophysiologic chain of causation between the accepted work factors and the

26

Deborah L. Beatty, 54 ECAB 340 (2003).

27

Supra note 18.

8

development of the diagnosed peripheral neuropathies.28 The employee provided insufficient
rationalized medical evidence to establish causal relationship.
Counsel also reiterates that the opinions of Dr. Alleyne, Dr. Easley, and Dr. Tauber were
entitled to dispositive weight as they examined appellant during life whereas Dr. Einbund merely
reviewed the medical record. However, the opinions of these physicians cannot represent the
weight of the medical evidence in the claim as they provided insufficient medical rationale
addressing the critical issue of causal relationship.29
Appellant may submit new evidence or argument regarding either issue, with a written
request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that the
employee was totally disabled from work commencing October 1, 2010 due to accepted
degenerative cervical disc disease and a cervical spine sprain. The Board further finds that
appellant has not met his burden of proof to establish that the employee sustained bilateral carpal
tunnel syndrome, bilateral ulnar neuritis at Guyon’s canal, and right cubital tunnel syndrome
causally related to the accepted factors of his federal employment.

28

Supra note 26.

29

Id.

9

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 31, 2017 are affirmed.
Issued: October 12, 2018
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EAST ORANGE CAMPUS, East Orange, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1212
Issued: April 11, 2018

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 May 11, 2017 appellant, through counsel, filed a timely appeal from a January 19, 2017
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days elapsed from OWCP’s last merit decision, dated December 17, 2015, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 18, 2014 appellant, then a 36-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on February 14, 2014 she sustained several stress-related conditions.3
She indicated that, when she entered a patient’s room to administer medication, the patient looked
at her and stated, “You again.” Appellant asserted that she felt unsafe, noting that she had
experienced a prior incident with that patient on January 3, 2013 when he punched her in her face
and kicked her in her chest. She stopped work on February 18, 2014.4
In a February 25, 2014 development letter, OWCP requested that appellant submit
additional evidence in support of her claim, including a physician’s opinion supported by a medical
explanation as to how the reported work incident(s) caused or aggravated a medical condition. It
requested that appellant complete and return an attached questionnaire which posed various
questions regarding the January 3, 2013 and February 14, 2014 work incidents.
Appellant submitted a narrative statement in response to the February 25, 2014
development letter in which she provided additional details regarding the January 3, 2013 and
February 14, 2014 incidents. She indicated that on January 3, 2013 she introduced herself to a
patient and that, seemingly without any reason, he punched her in the face and pushed her against
the wall. The patient then kicked her in the chest and she was thrown towards the door by the
force of the kick. He also bit his lip, causing it to bleed, and spit at her. Appellant indicated that
she felt she was in danger because the patient had an infectious disease. She noted that on
February 14, 2014 she entered the room of the same patient and she felt threatened when he said,
“You again for more?” Appellant believed that the patient’s comment was a reference to the
January 3, 2013 attack. She noted that the patient tried to get up from his bed and that she ran
from the room.
Appellant submitted a March 5, 2014 attending physician’s report (Form CA-20) in which
Dr. Carla C. Hammond, an attending Board-certified psychiatrist, listed the date of injury as
February 14, 2014 and the history of injury as being threatened by a veteran. Dr. Hammond
diagnosed major depressive disorder (single episode) and post-traumatic stress disorder, and
checked a box marked “Yes” to indicate that the conditions were caused or aggravated by an
employment activity. She added the notation, “Threatened by a veteran that assaulted her one year
ago.”
In a March 31, 2014 decision, OWCP denied appellant’s claim for a stress-related
condition due to factors of her federal employment. It accepted two employment factors -- the
3

Appellant indicated that she sustained mental abuse, shortness of breath, headache, and panic attacks.

4
On the reverse side of the Form CA-2 appellant’s immediate supervisor indicated that appellant was in the
performance of duty at the time of the February 14, 2014 incident.

2

January 3, 2013 incident when the patient attacked appellant and the February 14, 2014 incident
when appellant felt threatened by the same patient’s comment, “You again for more?” However,
OWCP denied appellant’s claim because she failed to submit medical evidence sufficient to
establish causal relationship between a diagnosed medical condition and the accepted employment
factors.
On April 23, 2014 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review.
Appellant submitted additional evidence in support of her reconsideration request. In a
February 28, 2018 report, Dr. Hammond indicated that appellant had been attending an outpatient
treatment program at the Princeton House since February 27, 2014.5 She noted that, given
appellant’s experience with a patient on two occasions, it would be beneficial for her to be
transferred to another work unit. Dr. Hammond posited that being in the same environment with
the patient would trigger appellant’s symptoms of post-traumatic stress syndrome.
In March 6 and 13, 2017 reports, Dr. Hammond discussed appellant’s reported feelings of
anxiety regarding her “recent trauma” and the thought of returning to the workplace where it
occurred. She diagnosed post-traumatic stress disorder and major depressive disorder (single
episode, severe degree) without mention of psychotic behavior.
In an April 23, 2014 report, Dr. Hammond indicated that, during an interview on
February 26, 2014, appellant clearly displayed symptoms of trauma and retraumatization directly
related to being punched in the face and kicked in the chest by a veteran in January 2013.
Appellant reported that the same veteran threatened to assault her again on February 14, 2014.
Dr. Hammond indicated that, as a response to this threat, she began having acute symptoms of
shortness of breath, panic symptoms, and flashbacks to the January 2013 incident. Appellant also
reported experiencing poor sleep and nightmares about the veteran assaulting her and she asserted
that she was unable to return to work due to fear of being harmed again by the veteran.
Dr. Hammond further discussed the course of appellant’s treatment at the Princeton House.
Appellant also submitted various handwritten notes of clinical assessment sessions in
February and March 2014 with Dr. Hammond and Ms. Bhatt.
In a November 4, 2014 decision, OWCP’s hearing representative affirmed OWCP’s
March 31, 2014 decision. She determined that appellant failed to submit rationalized medical
evidence sufficient to establish causal relationship between a diagnosed medical condition and the
accepted January 3, 2013 and February 14, 2014 employment factors.
On December 23, 2014 appellant, through counsel, requested reconsideration of the
November 4, 2014 decision. In a December 16, 2014 letter, counsel argued that the medical
evidence of record, including Dr. Hammond’s April 23, 2014 report, established appellant’s claim.
Appellant resubmitted a copy of Dr. Hammond’s April 23, 2014 report.

5

The report was signed by Dr. Hammond and Meera Bhatt, an attending licensed professional counselor.

3

By decision dated December 17, 2015, OWCP denied modification of its November 4,
2014 decision, noting that the medical evidence submitted by appellant did not contain adequate
medical rationale with respect to causal relationship.
On December 7, 2016 appellant, through counsel, requested reconsideration of OWCP’s
December 17, 2015 decision. Counsel argued that an enclosed December 7, 2016 statement of
appellant and Dr. Hammond’s April 23, 2014 report established appellant’s claim.
In her December 7, 2016 statement, appellant indicated that, on January 3, 2013, she was
assaulted by a patient at work and that on February 14, 2014 she was threatened by the same
patient. She indicated that the patient who assaulted her and spit at her on January 3, 2013 was
HIV positive. As a result of the February 14, 2014 incident, appellant went into therapy for three
months at the Princeton House. She noted that she felt that Dr. Hammond’s April 23, 2014 report
was accurate and supported her claim. Appellant indicated that she had been diagnosed as having
short-term memory loss, difficulty with concentration, and postconcussion syndrome by another
attending physician on January 9, 2013.
Appellant also resubmitted a copy of the April 23, 2014 report of Dr. Hammond, which
OWCP had previously considered.
By decision dated January 19, 2017, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence and argument
appellant submitted in support of her timely reconsideration request was duplicative or
irrelevant/immaterial to the underlying issue of her case.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.6
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence that: (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.7 If OWCP determines
that at least one of these requirements is met, it reopens and reviews the case on its merits.8 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will
deny the request for reconsideration without reopening the case for review on the merits.9

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
8

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

4

A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.10 For OWCP decisions issued on or after
August 29, 2011, the date of the request for reconsideration is the “received date” as recorded in
the Integrated Federal Employees’ Compensation System (iFECS).11 If the last day of the oneyear time period is a Saturday, Sunday, or a legal holiday, OWCP will still consider a request to
be timely filed if it is received on the next business day.12
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record13 and the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.14
ANALYSIS
OWCP issued a decision on December 17, 2015, and it received appellant’s request for
reconsideration on December 7, 2016. Her request was timely filed as it was received within one
year of OWCP’s December 17, 2015 decision.15 The issue presented on appeal is whether
appellant’s December 7, 2016 request for reconsideration met any of the requirements of 20 C.F.R.
§ 10.606(b)(3), requiring OWCP to reopen the case for further review of the merits of the claim.
The Board finds that appellant’s 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.
Accompanying her reconsideration request, appellant submitted a December 7, 2016
statement in which she asserted that an April 23, 2014 medical report of Dr. Hammond and other
medical evidence supported a finding that she sustained a stress-related condition due to the
accepted January 3, 2013 and February 14, 2014 employment incidents. The Board notes that the
underlying issue in this case is whether appellant submitted rationalized medical evidence
sufficient to meet her burden of proof to establish injury causally related to the accepted January 3,

10

Id. at § 10.607(a).

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). See
also C.B., Docket No. 13-1732 (issued January 28, 2014). For decisions issued before June 1, 1987, there is no
regulatory time limit for when reconsideration requests must be received. For decisions issued from June 1, 1987
through August 28, 2011, the one-year time period begins on the next day after the date of the original decision and
must be mailed within one year of OWCP’s decision for which review is sought.
12

Id. at Chapter 2.1602.4. See also M.A., Docket No. 13-1783 (issued January 2, 2014).

13

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

14

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

15

See supra notes 10 through 12.

5

2013 and February 14, 2014 employment incidents,16 and this is a medical issue which must be
addressed by relevant medical evidence.17 A claimant may be entitled to a merit review by
submitting relevant and pertinent new evidence, however, the Board finds that appellant did not
submit any such evidence in this case.
The Board notes that the content of appellant’s December 7, 2016 statement is irrelevant
to the underlying issue of this case. Appellant’s own opinion relative to causal relationship would
have no bearing on the underlying issue of the case which is medical in nature and must be
addressed by relevant medical evidence.18 Her submission of this argument does not require
reopening of her claim for merit review as the Board has held that the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.19
Appellant also resubmitted a copy of Dr. Hammond’s April 23, 2014 report which OWCP
had previously considered and found insufficient to establish her claim. Her submission of this
evidence would not require reopening of her claim for merit review as the Board has held that the
submission of evidence or argument which repeats or duplicates evidence or argument already in the
case record does not constitute a basis for reopening a case.20
On appeal counsel argues that OWCP’s January 19, 2017 decision denying appellant’s
request for reconsideration of the merits of her claim should be reversed. However, he has not
provided adequate support for this argument and the Board has explained why appellant is not
entitled to such a merit review of her claim.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 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).

16
OWCP has accepted two employment factors -- the January 3, 2013 incident when the patient attacked appellant
and the February 14, 2014 incident when appellant felt threatened by the same patient’s comment, “You again for
more?” However, OWCP found in its decisions, including its December 17, 2015 decision, that the medical evidence
submitted by appellant did not contain adequate medical rationale with respect to causal relationship.
17

See Bobbie F. Cowart, 55 ECAB 746 (2004).

18

In her December 7, 2016 statement, appellant further discussed the January 3, 2013 and February 14, 2014
employment incidents. However, this factual discussion is not relevant to the underlying issue of the present case
which is medical in nature.
19

See supra note 14.

20

See supra note 13.

6

ORDER
IT IS HEREBY ORDERED THAT the January 19, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 11, 2018
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

7