United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF HOMELAND SECURITY,
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TRANSPORTATION SECURITY
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ADMINISTRATION, Los Angeles, CA, Employer )
__________________________________________ )
A.J., Appellant

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

Docket No. 11-1894
Issued: March 12, 2012

Case Submitted on the Record

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

JURISDICTION
On August 16, 2011 appellant filed a timely appeal from the May 16, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her claim for a recurrence
of total disability. 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 met her burden of proof to establish that she sustained a
recurrence of total disability on or after December 15, 2010 due to her August 21, 2010 work
injury.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on August 21, 2010 appellant, then a 44-year-old transportation
security officer, sustained a thoracic sprain, unspecified right shoulder sprain and right chest wall
contusion due to a fall at work. Appellant fell backwards off a leaner stool which suddenly
lowered, hit her right shoulder and back on the wall behind her and slid down to the floor.
During an August 27, 2010 medical examination, she complained of upper back, right rib area
and right shoulder pain but specifically denied having neck pain.
After a period of total disability, appellant returned to work in a light-duty position at the
employing establishment. She was restricted from lifting more than five pounds, engaging in
overhead work and torquing or twisting with the right upper extremity. Appellant required a 15minute break every 2 hours. She stopped work and claimed a recurrence of total disability on
December 15, 2010 due to her August 21, 2010 work injury.2
In a December 6, 2010 report, Dr. Rick F. Pospisil, an attending Board-certified
orthopedic surgeon, stated that appellant complained of pain in her right shoulder and neck. He
indicated that she had a functioning diagnosis of cervical sprain/strain and impingement of the
right shoulder with shoulder sprain. Dr. Pospisil stated that appellant’s “impairment status
remains temporarily totally disabled for two weeks.”
In a December 14, 2010 form report, Dr. Archie R. Mays, an attending Board-certified
orthopedic surgeon, stated that appellant complained that the level of her neck pain was 3 out of
10. He diagnosed overuse syndrome of the right arm, internal derangement of the right shoulder,
lateral epicondylitis of the right elbow, right carpal tunnel syndrome and lumbosacral
spain/strain and indicated that he instructed appellant to remain off work for two weeks. In
another December 14, 2010 form report, Dr. Mays diagnosed cervical sprain/strain, lateral
epicondylitis of the right elbow and right carpal tunnel syndrome and determined that she should
remain off work until December 23, 2010.
In a December 28, 2010 letter, OWCP requested that appellant submit additional medical
evidence in support of her claim for a recurrence of total disability.
Appellant submitted a February 24, 2011 report in which Dr. Hormoz Zahiri, an attending
Board-certified orthopedic surgeon, reported findings of the examination of her neck and upper
extremities. Dr. Zahiri diagnosed post-traumatic myofascial headaches, myoligamentous
sprain/strain syndrome of the cervical spine, myoligamentous sprain/strain of the thoracic spine
and bursitis, rotator cuff tendinitis and impingement syndrome of the right shoulder. He deferred
an opinion on appellant’s work status to Dr. Mays.
Appellant submitted additional form reports in which Dr. Mays recommended various
work restrictions. The reports were dated January 11, February 3, 17, 28, March 3, 31, April 14
and 28, 2011. Dr. Mays placed restrictions on appellant’s lifting, usually indicating that she

2

Appellant filed additional claims alleging that she continued to be unable to perform her light-duty work.

2

could not lift more than five pounds.3 He also variously recommended such restrictions as no
engaging in overhead work, no repetitive use of the right arm, no prolonged standing, no upward
and downward gazing with the neck and no repetitive bending and stooping.4 Dr. Mays
diagnosed such conditions as overuse syndrome of the right upper extremity, lateral epicondylitis
of the right elbow, right carpal tunnel syndrome, internal derangement of the right shoulder,
lumbosacral sprain/strain and right shoulder sprain/strain.
In a May 16, 2011 decision, OWCP denied appellant’s claim finding that she did not
submit sufficient medical evidence to establish that she sustained a recurrence of total disability
on or after December 15, 2010 due to her August 21, 2010 work injury. It noted that the medical
evidence appeared to attribute her disability to conditions that were not accepted as work related.
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty. As part of this burden the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty job requirements.5
ANALYSIS
OWCP accepted that appellant sustained a thoracic sprain, unspecified right shoulder
sprain and right chest wall contusion due to a fall at work. Appellant returned to light-duty work
for the employing establishment but later claimed that she sustained a recurrence of total
disability on after December 15, 2010 due to her August 21, 2010 work injury.6 The Board finds
that she did not submit sufficient medical evidence to establish her claim.
Appellant submitted a December 6, 2010 report in which Dr. Pospisil, an attending
Board-certified orthopedic surgeon, diagnosed cervical sprain/strain and impingement of the
right shoulder with shoulder sprain and indicated that she remained temporarily totally disabled
for two weeks. Dr. Pospisil’s report does not establish that she sustained a work-related
recurrence of total disability beginning in December 2010 because he did not provide a clear
opinion that her disability was caused by her August 21, 2010 work injury. The conditions of
3

In his January 11, 2011 note, Dr. Mays indicated that appellant could not lift more than 20 pounds. On
March 31, 2011 he stated that she could not push or pull more than 10 pounds.
4

In several of the notes, Dr. Mays recommended that appellant take a 15-minute break every 2 hours and that she
try to work with her right arm close to her body as she experienced pain when stretching her right arm while holding
weight.
5

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986).

6

In her light-duty position, appellant was restricted from lifting more than five pounds, engaging in overhead
work and torquing or twisting with the right upper extremity. She needed to take a 15-minute break every 2 hours.

3

cervical sprain/strain and impingement of the right shoulder have not been accepted by OWCP as
related to the August 21, 2010 work injury or other work factors. When appellant was initially
examined after her August 21, 2010 injury, she specifically denied having neck pain. She did
not report having neck pain until October 2010.
In a December 14, 2010 form report, Dr. Mays, an attending Board-certified orthopedic
surgeon, diagnosed overuse syndrome of the right arm, internal derangement of the right
shoulder, lateral epicondylitis of the right elbow, right carpal tunnel syndrome and lumbosacral
spain/strain. He indicated that he instructed appellant to remain off work for two weeks. In
another December 14, 2010 form report, Dr. Mays recommended that she remain off work
through December 23, 2010. The December 14, 2010 reports of Dr. Mays do not establish a
work-related recurrence of total disability beginning in December 2010 because he did not
provide a clear opinion that appellant’s disability was caused by her August 21, 2010 work injury
or other work factors. None of the medical conditions diagnosed by him have been accepted as
work related.7
Dr. Mays also produced additional form reports, dated between January and April 2011,
in which he recommended various light-duty work restrictions. Although some of these work
restrictions were somewhat more restrictive than those that appellant worked under when she
stopped work on December 15, 2010, he did not provide a clear opinion that the new work
restrictions were necessitated by residuals of appellant’s August 21, 2010 work injury or other
work factors. Dr. Mays continued to diagnose numerous conditions that were not accepted as
work related, including overuse syndrome of the right upper extremity, lateral epicondylitis of
the right elbow, right carpal tunnel syndrome and internal derangement of the right shoulder.
Therefore, these reports do not show that appellant sustained a recurrence of total disability on or
after December 15, 2010 due to her August 21, 2010 work injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of total disability on or after December 15, 2010 due to her August 21,
2010 work injury.

7

In a February 24, 2011 report, Dr. Zahiri, an attending Board-certified orthopedic surgeon, reported findings of
the examination of appellant’s neck and upper extremities. However, he indicated that he was deferring an opinion
on her work status to Dr. Mays.

4

ORDER
IT IS HEREBY ORDERED THAT the May 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 12, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, TRANSPORTATION
OPERATIONS, Dallas, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-878
Issued: March 12, 2013

Case Submitted on the Record

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

On March 13, 2012 appellant filed a timely appeal from a February 10, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed
as No. 12-878.
The February 10, 2012 OWCP decision finds that an overpayment of $2,877.53 was
created as appellant received a November 19, 2011 compensation payment after his return to
work on August 1, 2011. But a review of the evidence of record does not establish an
overpayment of $2,877.53 occurred. While OWCP improperly issued a November 19, 2011
compensation payment, there was no evidence of record that appellant negotiated, deposited or
otherwise accepted the compensation payment.1 Appellant had returned other compensation
payments after his return to work and he had requested instruction as to the proper method to
return the November 19, 2011 payment. OWCP did not make adequate findings as to fact of
overpayment in this case.

1

See R.C., Docket No. 09-2313 (issued June 22, 2010) (OWCP did not make findings as to whether
compensation checks were cancelled as alleged).

The case will be remanded to OWCP for proper findings on the overpayment issues.2
After such development as is deemed necessary, OWCP should issue an appropriate decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 10, 2012 is set aside and the case remanded for
appropriate action.
Issued: March 12, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

2

The Board notes that OWCP attempted to offset the amount of overpayment by deducting a $113.20
underpayment of compensation for July 31, 2011. It is well established that OWCP should not attempt to offset an
overpayment by amounts owed to appellant. See T.H., Docket No. 12-191 (issued July 25, 2012); Lawrence
Sherman, 55 ECAB 359 (2004). These are separate issues and on remand OWCP should properly address the
entitlement to $113.20 in compensation.

2


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0609
Issued: September 23, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 25, 2019 appellant, through counsel, filed a timely appeal from a November 23,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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.

3
The Board notes that following the November 23, 2018 decision, OWCP received additional evidence. 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.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a recurrence
of total disability commencing February 17, 2017, causally related to the accepted cervical
spondylosis without myelopathy.; and (2) whether appellant has met his burden of proof to
establish a recurrence of total disability commencing July 17, 2017, causally related to the
accepted cervical spondylosis without myelopathy.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts
are as follows.
On August 7, 2000 appellant, then a 52-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that federal employment duties, including carrying heavy mail, caused
upper back pain. His claim was accepted by OWCP for the condition of cervical spondylosis
without myelopathy. OWCP thereafter accepted four recurrences of disability. In May 2006
appellant began working three-hours a day in a sedentary position.5
On November 17, 2013 appellant filed a notice of recurrence (Form CA-2a) claiming
disability commencing October 25, 2013, alleging that he had to handle hundreds of pieces of mail
causing his neck and shoulders to hurt too much to work.
By decision dated April 4, 2014, OWCP denied appellant’s claim for a recurrence of total
disability beginning October 25, 2013, with intermittent periods thereafter until February 20, 2014
when he again stopped work.
Appellant continued to request reconsideration of the denial of his October 25 2013
recurrence claim under OWCP File No. xxxxxx781 and his October 24, 2013 traumatic injury

4

Docket No. 08-2473 (issued June 10, 2009); Docket No. 16-1907 (issued August 29, 2017).

5

On October 2, 2007 appellant claimed a recurrence of disability (Form CA-2a), for total disability beginning
August 3, 2007. On January 3, 2008 OWCP denied his recurrence claim, and an OWCP hearing representative
affirmed this decision on July 25, 2008. Appellant filed an appeal with the Board, and by decision dated June 10,
2009, the Board affirmed the September 25, 2008 decision. Docket No. 08-2473 (issued June 10, 2009). Following
the August 2007 recurrence claim, appellant returned to modified duty for three hours daily on September 26, 2007.
OWCP adjusted his wage-loss compensation to reflect his modified duties. On August 16, 2010 it accepted a May 10,
2010 recurrence of total disability. Appellant returned to modified duty as a registry scanner for three hours a day on
July 12, 2013. Thereafter OWCP paid him compensation for intermittent wage loss.

2

claim under OWCP File No. xxxxxx352. OWCP continued to deny modification of its prior
decisions.6
By decision dated June 10, 2016, issued under OWCP File Nos. xxxxxx781 and
xxxxxx352, OWCP determined that File No. xxxxxx352 should be adjudicated as an occupational
disease claim. It found that the evidence of record was insufficient to establish causal relationship
under File No. xxxxxx352. OWCP further found that none of the medical evidence submitted
under either claim was sufficient to explain how employment factors caused or aggravated
appellant’s condition on October 25, 2013. As such, the claimed recurrence under File No.
xxxxxx781 remained denied.
Appellant filed an appeal with the Board. By decision dated August 29, 2017, the Board
found that appellant had not established a recurrence of total disability beginning October 25, 2013
in File No. xxxxxx781, and had not established an employment-related injury on October 24, 2013
in File No. xxxxxx352.7
During the pendency of appellant’s appeal before the Board, appellant filed a notice of
recurrence (Form CA-2a) on April 3, 2017 indicating that the recurrence occurred on
February 17, 2017. He wrote that he had upper back pain and weakness. The employing
establishment indicated that appellant returned to work on March 20, 2017.
Appellant had begun pain management with Dr. Jordan Sudberg, a physiatrist, in
November 2015 and provided a series of his reports. In a report dated March 18, 2017,
Dr. Sudberg noted that appellant was working as a mailman lobby assistant director and injured
himself lifting something heavy at work which, he related, was an exacerbation of an October 24,
2013 injury caused by repetitive use of his upper extremities. He described examination findings
and diagnosed “rule-out cervical disc herniation, cervical myofascial pain syndrome, and cervical
radiculopathy” and concluded that, within a reasonable degree of medical certainty, the
employment incident on August 1, 2000 was the competent producing cause of appellant’s
condition. On an attached work capacity evaluation (Form OWCP-5c), Dr. Sudberg advised that
appellant could work three hours of modified duty daily with a five-pound weight restriction. On
a March 18, 2017 duty status report (Form CA-17), he advised that appellant’s symptoms were
aggravated on October 24, 2013, and he diagnosed employment-related cervical herniated discs
and left cubital syndrome, not employment related. Dr. Sudberg also submitted an attending
physician’s report (Form CA-20) in which he noted neck and shoulder pain and weakness, and
bilateral wrist weakness. He diagnosed right shoulder impingement and right carpal tunnel
syndrome. Dr. Sudberg advised that appellant could not return to work.
In a May 2, 2017 development letter, OWCP advised appellant of the factual and medical
deficiencies in his April 3, 2017 recurrence claim and requested that he provide medical evidence,
6

On August 28, 2014 appellant filed a traumatic injury claim (Form CA-1) alleging a traumatic injury on
October 24, 2013 when he put a key scanner to his shoulder and had sudden and severe shoulder and neck pain while
in the performance of duty. OWCP adjudicated the traumatic injury claim under File No. xxxxxx352. On
November 7, 2014 it denied appellant’s traumatic injury claim in File No. xxxxxx352, finding that the evidence did
not support that the injury occurred as alleged as there were significant deficiencies which cast doubt on his account
of the factual events.
7

Docket No. 16-1907 (issued August 29, 2017).

3

including a well-rationalized report from his physician which explained how the accepted
employment injury caused the claimed recurrence. It afforded appellant 30 days to submit the
requested evidence.
Appellant submitted additional reports by Dr. Sudberg dated April 15 and May 13, 2017
in which the physician reiterated his prior findings and conclusions.
By decision dated June 16, 2017, OWCP denied appellant’s April 3, 2017 notice of
recurrence claim finding that he had not responded to the May 2, 2017 development letter by
answering the attached questionnaire regarding how the recurrence occurred. It further found that
the medical evidence from Dr. Sudberg did not provide sufficient rationale explaining how the
claimed recurrent disability was employment related.
On June 27, 2017 appellant, through counsel, requested a hearing before an OWCP hearing
representative.
On August 14, 2017 appellant filed an additional notice of recurrence (Form CA-2a)
alleging a recurrence commencing on July 17, 2017 when he stopped work because his condition
had worsened. The employing establishment attached a job offer, accepted by appellant, for a
lobby monitor for four hours daily with physical requirements of sitting and verbally
communicating with customers.
In a September 28, 2017 development letter, OWCP advised appellant of the factual and
medical deficiencies in his August 14, 2017 recurrence claim and requested that he provide
medical evidence, including a well-rationalized report from his physician which explained how
employment factors caused the claimed recurrence. A questionnaire for completion was attached,
and OWCP afforded appellant 30 days to submit the requested evidence.
In a report dated October 21, 2017, Dr. Sudberg provided a history that, while working as
a lobby assistant, appellant injured himself lifting something heavy. He explained that appellant’s
symptoms continued to progressively worsen, and that on July 17, 2017 he had a spontaneous
recurrence of his symptoms which caused constant neck and upper back pain associated with
muscle spasms and stiffness, bilateral shoulder pain, headaches, radiating bilateral upper extremity
pain with limited range of motion, and paresthesias and weakness which caused intermittent loss
of dexterity. Following physical examination, Dr. Sudberg diagnosed cervical sprain/strain,
cervical myalgia, cervical trigger points, cervicalgia, bilateral cervical radiculopathy, and bilateral
shoulder pain. He advised that appellant was totally disabled and concluded that, within a
reasonable degree of medical certainty, the accident on August 1, 2000 was the competent
producing cause of appellant’s condition.
Appellant responded to the September 28, 2017 development questionnaire on
October 25, 2017. He indicated that he had a spontaneous recurrence on July 17, 2017 and
described job duties that included frequently picking up packages as requested which caused
constant neck pain, muscle spasm, and radiating pain into both hands such that he could not work.
By decision dated November 13, 2017, OWCP denied appellant’s claim for a July 17, 2017
recurrence finding that the medical evidence of record was insufficient to establish that the claimed
recurrent disability was caused by the accepted employment injury including the condition of
cervical spondylosis.
4

On December 4, 2017 appellant requested a review of the written record from an OWCP
hearing representative following the November 13, 2017 decision.
Dr. Sudberg continued to submit monthly reports indicating that appellant suffered a
spontaneous recurrence on July 17, 2017 with increased symptoms that caused him to stop work.
In reports beginning January 13, 2018, he indicated that appellant’s work stoppage on July 17,
2017 was solely related to the accepted cervical spondylosis without myelopathy which caused
worsening neck pain, limited range of motion, paresthesias, and weakness. Dr. Sudberg related
that appellant’s bilateral shoulder and thoracolumbar pain were not part of the justification of his
July 17, 2017 recurrence.
By decision dated March 1, 2018, a hearing representative affirmed the June 16, 2017
decision, denying appellant’s April 2017 recurrence claim.
On June 28, 2018 appellant, through counsel, requested reconsideration of the
November 13, 2017 and March 1, 2018 decisions.
Dr. Sudberg submitted monthly reports in which he indicated that the July 17, 2017
recurrence exacerbated appellant’s original August 1, 2000 injury and caused worsening severe
neck pain, limited range of motion, paresthesias and weakness. He continued to advise that
appellant could not work.
By decision dated November 23, 2018, OWCP denied modification of its prior decisions
finding that the medical evidence submitted was insufficient to establish either claimed recurrence.
LEGAL PRECEDENT -- ISSUES 1 and 2
A recurrence of disability means an inability to work after an employee has returned to
work caused by a spontaneous change in a medical condition which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness. The term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the work-related injury or
illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such
an assignment are altered so that they exceed his or her established physical limitations.8
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the weight
of reliable, probative and substantial evidence a recurrence of total disability. As part of this
burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.9
An employee who claims a recurrence of disability resulting from an accepted employment
injury has the burden of establishing that the disability is related to the accepted injury. This
8

20 C.F.R. § 10.5(x); see J.B., Docket No. 1751 (issued May 6, 2019).

9

S.H., Docket No. 18-1398 (issued March 12, 2019); Terry R. Hedman, 38 ECAB 222 (1986).

5

burden requires furnishing medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disabling condition is causally related to
the employment injury and supports that conclusion with sound medical reasoning.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability commencing February 17, 2017 causally related to his accepted cervical
spondylosis without myelopathy.
At the time of the alleged February 17, 2017 recurrence, appellant did not allege a change
in the nature and extent of his light-duty job requirements, rather he indicated that his employment
duties caused his neck and back pain to worsen. He must, therefore, provide medical evidence
establishing that he was disabled due to a worsening of his accepted work-related condition.11
While counsel asserts on appeal that the medical evidence of record is sufficient to establish the
February 17, 2017 recurrence, the Board finds that appellant has not submitted medical evidence
to establish that he was disabled due to a worsening of his accepted cervical spondylosis without
myelopathy commencing February 17, 2017.
The medical evidence submitted in support of his alleged recurrence includes numerous
reports from Dr. Sudberg. The Board, however, finds his opinion of insufficient probative value
to meet appellant’s burden of proof to establish a February 17, 2017 recurrence of total disability.
In a March 18, 2017 report, Dr. Sudberg diagnosed conditions not accepted under this claim. He
referenced the alleged October 24, 2013 injury when appellant injured himself lifting something
heavy at work, and the injury claim previously denied by the Board.12 Dr. Sudberg continued to
repeat this history in monthly reports.
The Board has held that the issue of disability from work can only be resolved by competent
medical evidence.13 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 the accepted
condition and supports that conclusion with sound medical reasoning.14 Dr. Sudberg failed to
provide a rationalized medical opinion that appellant’s inability to work commencing February 17,
2017 resulted from the August 7, 2000 employment injury which was accepted for the condition
of cervical spondylosis without myelopathy. Without a rationalized opinion as to how and why
appellant’s accepted conditions worsened and prevented him from performing his modified-duty

10

Id.

11

S.W., Docket No. 18-1489 (issued June 25, 2019).

12

Id.

13

M.B., Docket No. 18-1455 (issued March 11, 2019).

14

D.J., Docket No. 18-0200 (issued August 12, 2019).

6

position during the claimed period of disability commencing February 17, 2017, the opinions
expressed by Dr. Sudberg are insufficient to establish his claim for total disability.15
ANALYSIS -- ISSUE 2
The Board also finds that appellant has not met his burden of proof to establish a recurrence
of total disability commencing July 17, 2017, causally related to his accepted cervical spondylosis
without myelopathy.
In a development questionnaire dated October 25, 2017, appellant alleged job duties that
included picking up packages frequently that caused a spontaneous recurrence of radiating neck
pain and muscle spasm. He did not allege that his light-duty, accommodated position as a lobby
monitor was withdrawn by the employing establishment, nor did he provide evidence to support
that he was working outside of his medical restrictions.
As previously found by the Board, the medical opinion evidence contained in the reports
of Dr. Sudberg are of insufficient probative value to establish a July 17, 2017 recurrence of total
disability. In reports dated August 12 and September 9, 2017, Dr. Sudberg did not mention a
July 17, 2017 worsening of appellant’s condition, but continued to advise that appellant’s disability
was due to an October 24, 2013 recurrence. It was not until the September 28, 2017 report that he
specifically referenced July 17, 2017. On October 21, 2017 Dr. Sudberg noted that on July 17,
2017 appellant had a spontaneous recurrence of symptoms which caused constant neck and upper
back pain associated with muscle spasms and stiffness, bilateral shoulder pain, headaches,
radiating bilateral upper extremity pain with limited range of motion, and paresthesias and
weakness which caused intermittent loss of dexterity. He diagnosed cervical sprain/strain, cervical
myalgia, cervical trigger points, cervicalgia, bilateral cervical radiculopathy, and bilateral shoulder
pain, none of which have been accepted under this claim. Dr. Sudberg opined that appellant was
totally disabled and concluded that, within a reasonable degree of medical certainty, the accepted
August 7, 2000 employment injury was the competent producing cause of appellant’s condition.
In his reports beginning on September 28, 2017, Dr. Sudberg did not provide sufficient
rationale explaining the objective findings establishing a worsening of appellant’s accepted
condition, rather than mere worsening of his subjective symptoms.16
In assessing medical evidence, the weight of a physician’s opinion is determined by the
opportunity for and thoroughness of the examination, the accuracy and completeness of the
physician’s knowledge of the facts and medical history, the care of analysis manifested and the
medical rationale expressed in support of the physician’s opinion.17 Contrary to counsel’s
assertions on appeal, Dr. Sudberg’s reports were of insufficient rationale to establish a recurrence
of total disability commencing July 17, 2017.18

15

V.H., Docket No. 18-0456 (issued August 9, 2019).

16

Id.

17

See P.S., Docket No. 18-1361 (issued May 20, 2019).

18

The Board notes that appellant continues to receive wage-loss compensation based on four hours of daily
employment.

7

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability commencing February 17 or July 17, 2017 causally related to his accepted cervical
spondylosis without myelopathy.
ORDER
IT IS HEREBY ORDERED THAT the November 23, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
SYSTEMS COMMAND, San Diego, CA,
Employer
__________________________________________

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

Docket No. 17-1274
Issued: October 5, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 22, 2017 appellant filed a timely appeal from a May 8, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly denied authorization for binaural hearing aids.
FACTUAL HISTORY
On September 14, 2016 appellant, then a 60-year-old ordnance equipment mechanic,
filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss as a
result of noise exposure from his federal employment. He did not stop work.
1

5 U.S.C. § 8101 et seq.

Appellant began work at the employing establishment as an ordinance equipment
specialist and painter in January 1977. His duties entailed installation, overhaul, modification
and repair of items such as torpedoes, torpedo subassemblies, actuators, valves, fuel tanks,
pressure regulators, pumps, and other equipment. Sources of hazardous noise exposure included
pneumatic tools, drills, saws, exhaust fans, steam heaters, sandblasters, air hoods, and air
sprayers. Noise exposure ranged up to the full workday. Appellant participated in the
employing establishment’s hearing conservation program and was provided hearing protection.
Hearing conservation data, medical notes, and audiograms were submitted dated
August 2, 1984 to May 18, 2015.
OWCP referred appellant, together with a statement of accepted facts (SOAF), to
Dr. Richard Seaman, a Board-certified otolaryngologist, for a second opinion evaluation on
January 5, 2017. An audiogram was completed on that date which revealed the following
decibel (dB) losses at 500, 1,000, 2,000, and 3,000 hertz (Hz): 5, 5, 25, and 30 for the right ear
and 5, 10, 15, and 35 for the left ear. Speech reception thresholds were 20 dB on the right and 15
dB on the left, while auditory discrimination scores were 92 percent bilaterally. Dr. Seaman
reported complaints of hearing loss with very occasional tinnitus. He diagnosed bilateral
sensorineural hearing loss which he opined was caused by his federal employment-related noise
exposure. Dr. Seaman further opined that the hearing loss was in excess of what would normally
be predicated on the basis of presbycusis, and that the workplace exposure was sufficient as to
intensity and duration to have caused the loss in question.
By decision dated February 27, 2017, OWCP accepted appellant’s claim for bilateral
noise effects on inner ear.
On February 27, 2017 OWCP referred the case file along with Dr. Seaman’s report to
Dr. Charles Pettit, a Board-certified otolaryngologist serving as an OWCP district medical
adviser (DMA), to determine the extent of appellant’s functional loss of hearing, date of
maximum medical improvement (MMI), and whether hearing aids should be authorized.
In a March 1, 2017 report, Amy M. Becken, an audiologist, reported that appellant’s
hearing tests showed a high frequency sensorineural hearing loss bilaterally. Speech reception
thresholds were consistent with the pure tone averages calculated for each ear. Ms. Becken
reported that speech discrimination scores were reduced in both ears respectfully. On behalf of
appellant, she requested OWCP authorize hearing devices due to appellant’s communication
issues.
In a March 9, 2017 report, Dr. Pettit opined that appellant sustained bilateral hearing loss
as a result of work-related noise exposure. However, he did not believe that hearing aids should
be authorized. Dr. Pettit explained that appellant’s speech reception thresholds and pure tone
responses to sound stimuli within the frequencies most important to understanding speech were
still at a level for which hearing aids were not generally considered necessary. He noted that
hearing aids were not considered medically necessary because speech reception and
comprehension would not be significantly improved with amplification to justify dispensing
hearing aids.

2

By decision dated May 8, 2017, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss. It denied authorization for hearing aids as the weight of the medical
evidence established that appellant would not benefit from the devices.2
LEGAL PRECEDENT
Section 8103 of FECA3 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduce the degree of the periods of any disability, or aid in lessening the amount of
any monthly compensation.4 These services, appliances, and supplies shall be furnished by or on
the order of the United States medical officers and hospital or at the employee’s option by or on
the order of physicians and hospitals designated or approved by the Secretary.5 The employee
may be furnished necessary and reasonable transportation and expenses incidental to the securing
of such services, appliances, and supplies.6 In interpreting section 8103, the Board has
recognized that OWCP has broad discretion in approving services provided under FECA. The
only limitation on OWCP’s authority is that of reasonableness.7
OWCP must therefore exercise discretion in determining whether the particular service,
appliance, or supply is likely to affect the purposes specified in FECA.8 Following medical
evaluation of a claim, if hearing loss is accepted, even if the hearing loss is subsequently
determined to be nonratable for schedule award purposes, other benefits such as hearing aids
may still be payable if any employment-related hearing loss exists.9
ANALYSIS
OWCP accepted appellant’s claim for bilateral hearing loss as a result of his federal
employment noise exposure. It denied his request, however, for authorization of hearing aids.
The Board finds that OWCP properly denied authorization for hearing aids.10

2

OWCP has not issued a final decision as to whether appellant has a ratable hearing loss, entitling him to a
schedule award.
3

5 U.S.C. § 8103.

4

Id.

5

Daniel J. Perea, 42 ECAB 214 (1990).

6

See Debra S. King, 44 ECAB 203 (1992); Bertha L. Arnold, 38 ECAB 282 (1986).

7

D.C., Docket No. 06-2161 (issued July 13, 2007).

8

Supra note 2.

9

See F.D., Docket No. 10-1175 (issued January 4, 2011); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Medical Services and Supplies, Chapter 3.700.3(d)(2) (October 1990).
10

L.B., Docket No. 12-1580 (issued December 13, 2012).

3

In his January 5, 2017 otologic examination Dr. Seaman, serving as the second opinion
physician, diagnosed bilateral sensorineural hearing loss which he opined was related to
employment-related noise exposure. He provided no opinion on hearing aids.
On March 9, 2017 Dr. Pettit, serving as OWCP’s DMA, reviewed Dr. Seaman’s report
and agreed that appellant’s bilateral sensorineural hearing loss was due to occupational noise
exposure. However, he opined that hearing aids should not be authorized. Dr. Pettit provided
rationale for his opinion, explaining that appellant’s speech reception thresholds and pure tone
responses to sound stimuli within the frequencies most important to understanding speech were
still at a level for which hearing aids were not generally considered necessary. He noted that
hearing aids were not considered medically necessary because speech reception and
comprehension would not be significantly improved with amplification to justify the use of
hearing aids. As such, Dr. Pettit’s report does not establish that appellant required the use of
hearing aids as a result of his federal employment noise exposure.11
There is no other rationalized medical evidence supporting the use of hearing aids
causally related to his occupational noise exposure. In a March 1, 2017 report, Ms. Becken,
reported that appellant was a good candidate for binaural hearing aids. She explained that
appellant was having communication issues and speech discrimination scores were reduced in
both ears respectfully. The Board notes that audiologists are not included among the healthcare
professionals defined as a physician under FECA.12 Therefore, Ms. Becken’s opinion is of no
probative medical value.13
OWCP’s medical adviser was the only physician of record who offered an opinion
regarding authorization of hearing aids, and he explained that hearing aids were not necessary.
Therefore, the Board finds that OWCP did not abuse its discretion in denying authorization for
hearing aids. The denial was not unreasonable based on the medical evidence of record. Should
the need for hearing aids arise in the future appellant may file an appropriate claim at that time.14
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s 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 OWCP properly denied authorization of hearing aids.

11

J.C., Docket No. 13-1413 (issued October 22, 2013).

5 U.S.C. § 8102(2) of FECA provides as follows: (2) ‘physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law. See J.K., Docket No. 17-0321 (issued April 24, 2017) an audiologist is not a physician under
FECA.
12

13

R.V., Docket No. 12-248 (issued June 6, 2012); Thomas O. Bouis, 57 ECAB 602 (2006).

14

D.S., Docket No. 13-1463 (issued November 14, 2013).

4

ORDER
IT IS HEREBY ORDERED THAT the May 8, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 5, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fairbanks, AK, Employer
__________________________________________

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Appearances:
Gary G. Colbath, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1947
Issued: May 28, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On September 23, 2019 appellant, through counsel, filed a timely appeal from an April 4,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the
Federal Employees’ Compensation Act3 (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

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated May 21, 2020,
the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be
addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1947 (issued
May 21, 2020). The Board’s Rules of Procedure provide that an appeal in which a request for oral argument is denied
by the Board will proceed to a decision based on the case record and the pleadings submitted. 20 C.F.R. § 501.5(b).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly terminated appellant’s compensation, effective
May 18, 2018, finding that he forfeited his entitlement to compensation pursuant to 5 U.S.C.
§ 8148(a).
FACTUAL HISTORY
On March 29, 2010 appellant, then a 48-year-old customer service supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on March 10, 2010 he fell while stepping over a
concrete embankment and hit his head on a wall while in the performance of duty. He stopped
work on March 11, 2010. OWCP accepted the claim for left sensory hearing loss and dizziness
and paid appropriate intermittent wage-loss compensation on its supplemental compensation rolls
as of April 25, 2010. Appellant was removed from the employing establishment effective
November 6, 2015. OWCP continued to pay him wage-loss compensation on the periodic rolls as
of May 29, 2016 based upon his loss of wage-earning capacity.4
On August 15, 2017 a grand jury for the U.S. District Court for the District of Alaska
indicted appellant on six counts of wire fraud under 18 U.S.C. § 1343 and six counts of making
false statements or fraud to obtain federal workers’ compensation under 18 U.S.C. § 1920.
On May 18, 2018 appellant pled guilty to six counts of wire fraud under 18 U.S.C. § 1343.
Specifically, he pled guilty to defrauding the FECA program by providing false statements and
omissions of fact regarding his marital status to receive a higher compensation rate which directly
caused OWCP to overpay him by electronic direct deposit into his bank account of at least
$14,237.24. The plea agreement contained no agreement as to restitution or additional agreements
by the United States. The plea agreement also specifically provided that it would not bind other
federal, state, or local prosecuting authorities. The Court accepted the plea agreement on May 18,
2018 and imposition of sentence was set for August 3, 2018.
By decision dated August 9, 2018, OWCP found that appellant had forfeited his entitlement
to compensation effective May 18, 2018, the date of his conviction, as he pled guilty to defrauding
the FECA program by wire fraud. It determined that, as a result of his conviction, and in
accordance with 5 U.S.C. § 8148(a) and 20 C.F.R. § 10.17, he was not entitled to receive further
benefits under FECA under this OWCP File No. xxxxxx074 and in OWCP File No. xxxxxx032.
OWCP further advised that any authorized medical treatment received prior to the date of this
decision would be paid, but no further medical treatment would be paid beyond the date of the
decision.
On August 29, 2018 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. A telephonic hearing was held on January 22, 2019. Appellant
testified that from 2010 to 2017 the character of his work injury changed and he was diagnosed
with a head trauma injury. He confirmed that he had pled guilty to six counts involving intentional
fraud to the government, but testified that he had no criminal intent and that he had agreed to the
4
Appellant had a prior February 6, 2001 claim under OWCP File No. xxxxxx032, which was accepted for left
shoulder and upper arm sprain, lumbar sprain and displacement of lumbar intervertebral disc without myelopathy.
The claims have not been combined.

2

six wire fraud counts because he had no problem with paying back the overpayment. Appellant
testified that he filled out his claim forms with the assistance of his claims representative and he
signed the forms. He attributed his mistake in completing CA-7 forms to severe head trauma, the
worsening of his condition, and anxiety due to his injury. Counsel opined that the evidence and
appellant’s description of the injury was indicative of a head/brain injury. He indicated that when
the plea agreement was entered into, it was everyone’s belief, including the prosecutor and the
judge, that if appellant pled guilty and was convicted of a more generic wire fraud violation, it
would not result in a termination of his FECA benefits. Appellant testified that he had no income
source at this time. No evidence pertaining to the current fraud issue was submitted post-hearing.
By decision dated April 4, 2019, an OWCP hearing representative affirmed the August 9,
2018 decision. The hearing representative found that, although detailed testimony was provided
regarding appellant’s medical condition, and his belief that the wire fraud charges would not
trigger termination of his compensation benefits, none of those explanations would negate the
formal guilty plea. The hearing representative also found that the case record contained proper
documentation of the offense, including a copy of the indictment and a copy of the plea agreement,
with an indication that it was accepted by the court.
LEGAL PRECEDENT
Public Law No. 103-333, enacted on September 30, 1994, amended FECA by adding
5 U.S.C. § 8148, which provides for the termination of benefits payable to beneficiaries who have
been convicted of defrauding the FECA program. Section 8148(a) specifically provides that an
individual convicted of a violation of 18 U.S.C. § 1920 or any other federal or state criminal statute
relating to fraud in the application for or receipt of a benefit under FECA, shall forfeit, as of the
date of such conviction, entitlement to any benefit to which such individual would otherwise be
entitled under FECA for an injury occurring on or before the date of such conviction. Such
forfeiture shall be in addition to any action the Secretary may take under section 81065 (forfeiture)
or section 81296 (recovery of overpayments) of FECA.7
Section 10.17 of OWCP’s implementing regulations provides that when a claimant pleads
guilty to federal or state criminal charges of fraud in connection with receipt of Federal
Government benefits, the claimant’s entitlement to further compensation benefits will terminate
effective the date the guilty plea is accepted. Termination of entitlement under this section is not
affected by any subsequent change in or recurrence of the beneficiary’s medical condition.8
OWCP’s procedures provide that in support of termination or suspension of compensation
the record must contain copies of the indictment or information and the plea agreement, if any, or
the document containing the guilty verdict. Further, this evidence must establish that the
individual was convicted and that the conviction is related to the claim for or receipt of
5

5 U.S.C. § 8106.

6

Id. at § 8129.

7

Id. at § 8148; see L.C., Docket No. 19-1094 (issued February 25, 2020); D.S., Docket No. 18-1173 (issued June 13,
2019); F.C., 59 ECAB 666 (2007).
8

20 C.F.R. § 10.17.

3

compensation benefits under FECA.9 The termination is effective on the date of the verdict or on
the date the guilty plea is accepted and guilt adjudicated.10 Because of the criminal basis for the
termination, no pretermination notice is required before a final decision is issued.11
ANALYSIS
The Board finds that OWCP properly terminated appellant’s compensation, effective
May 18, 2018, finding that he forfeited his entitlement to compensation pursuant to 5 U.S.C.
§ 8148(a).
On August 15, 2017 a grand jury for the U.S. District Court for the District of Alaska
indicted appellant on six counts of wire fraud under 18 U.S.C. § 1343 and six counts of making
false statements or fraud to obtain federal workers’ compensation under 18 U.S.C. § 1920. On
May 18, 2018 appellant pled guilty to six counts of wire fraud under 18 U.S.C. § 1343.
Specifically, he plead guilty to defrauding the FECA program by providing false statements and
omissions of fact regarding his marital status to receive a higher compensation rate which directly
caused OWCP to overpay appellant by electronic direct deposit into appellant’s bank account of
at least $14,237.24.
As noted, under section 8148(a) of FECA, a claimant who is convicted of fraud in obtaining
compensation benefits under 18 U.S.C. § 1920 or any other federal or state criminal statue relating
to fraud in the application for or receipt of a benefit under FECA is permanently barred from
receiving compensation under FECA.12
The record contains a copy of the indictment and the plea agreement, which the Court
accepted. The Board finds that the evidence establishes that appellant was convicted of defrauding
the FECA program by wire fraud. OWCP procedures provide that the termination is effective on
the date of the guilty plea is accepted.13 The Board thus finds that OWCP properly terminated
appellant’s FECA compensation benefits effective May 18, 2018, the date of his conviction.14
On appeal and before OWCP appellant contends that he pled guilty to the wire fraud
charges as he was advised it would not trigger the termination of his compensation benefits. The
Board finds that this explanation does not negate appellant’s formal guilty plea. As discussed,
pursuant to 5 U.S.C. § 8148, appellant forfeited his entitlement to compensation based on his

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.17(c)(2) (February 2013).

10

Id. at Chapter 2.1400.17(d) (February 2013).

11

Id. at Chapter 2.1400.4(a)(6) (February 2013).

12
5 U.S.C. § 8148(a); 20 C.F.R. § 10.17; see R.R., Docket No. 18-0804 (issued October 8, 2019); R.M., Docket No.
17-0141 (issued March 28, 2018).
13

Supra note 9.

14

See D.S., Docket No. 18-1173 (issued June 13, 2019).

4

conviction under a federal criminal statute for wire fraud in the application for or receipt of benefits
under FECA.15
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation, effective
May 18, 2018, finding that he forfeited his entitlement to compensation pursuant to 5 U.S.C.
§ 8148(a).
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 28, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

15

Supra note 11.

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jamaica, NY, Employer
__________________________________________

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Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1590
Issued: December 12, 2018

Case Submitted on the Record

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

JURISDICTION
On July 16, 2017 appellant, through his representative, filed a timely appeal from an
April 5, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish right hip and left
elbow conditions causally related to the accepted factors of his federal employment.

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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On June 25, 2012 appellant, a 50-year-old letter carrier, filed an occupational disease claim
(Form CA-2) alleging that he sustained right hip and left elbow conditions due to factors of his
federal employment, including sitting, standing, walking, bending, lifting, loading vehicles, and
climbing stairs.4 He noted that he first became aware of his claimed condition on August 12, 2011
and realized its relation to his federal employment on “November 24, 2010.”5
By decision dated October 4, 2012, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish causal relationship between the diagnosed
conditions and the accepted factors of his federal employment. Appellant subsequently requested
reconsideration. By decision dated January 28, 2013, OWCP denied modification of its October 4,
2012 decision. On April 5, 2013 appellant appealed to the Board.
By decision dated August 26, 2013, the Board affirmed OWCP’s January 28, 2013
decision, finding that appellant had not met his burden of proof to establish right hip and left elbow
conditions causally related to factors of his federal employment.6
On August 18, 2014 appellant requested reconsideration. By decision dated November 26,
2014, OWCP denied modification. Appellant subsequently appealed to the Board. By decision
dated August 18, 2015, the Board affirmed OWCP’s November 26, 2014 decision, finding that
appellant had not met his burden of proof to establish an injury causally related to factors of his
federal employment.
On August 13, 2016 appellant’s representative requested reconsideration and submitted
additional medical evidence in support thereof.
In an August 8, 2016 report, Dr. Goldstein, noted that appellant worked as a letter carrier
for the employing establishment from February 1985, and worked until June 16, 2012. He advised
that he saw appellant on August 12, 2011.7 Dr. Goldstein noted that appellant’s duties included
3

Docket No. 13-1114 (issued August 26, 2013); Docket No. 15-1083 (issued August 18, 2015).

4

The present claim was assigned OWCP File No. xxxxxx502. Appellant previously filed a traumatic injury claim
(Form CA-1), assigned OWCP File No. xxxxxx444, wherein he alleged an injury to his right hip when he slipped and
fell on leaves while descending stairs in the performance of duty on November 23, 2010. He further alleged that his
condition worsened over time and he was unable to work. OWCP denied that claim by decision dated January 11,
2011, finding that the evidence of record was insufficient to establish that the November 23, 2010 incident occurred
as alleged.
5

Although appellant indicated 2010, this appears to be a typographical error as he noted that he first became
aware of his claimed condition in 2011.
6

Docket No. 13-1114, supra note 4.

7
Although Dr. Goldstein indicated 2012, this appears to be a typographical error as his earlier reports indicated
August 12, 2011.

2

distributing letters, flats, and parcels. He noted that appellant also delivered parcels weighing
approximately 35 pounds and that he engaged in these activities at work from 8 to 10 hours per
day, five to six days per week. Dr. Goldstein reiterated that just as in his previous report dated
June 18, 2012, appellant began complaining of stabbing-type pain in his right hip, which radiated
down to his knee and foot, especially when walking, bending, performing side movements and
when going up and down stairs. Appellant also developed left elbow pain, as well as some pain
in his lower back. Dr. Goldstein also noted that appellant had a previous injury on
November 23, 2010. He explained that appellant returned to regular-duty work a few days after
this injury.
Dr. Goldstein explained that on his initial visit his examination revealed right greater
trochanteric bursitis (aggravation) and left lateral epicondylitis. He opined that it was his “opinion
at that time, with a reasonable degree of medical certainty, that the conditions as described were
causally related to [appellant’s] duties as a letter carrier.” Dr. Goldstein explained that when
appellant “fell on November 23, 2010, he landed on the right side of his hip, which would have
caused the right greater trochanteric bursitis to occur.” He explained that trochanteric bursitis is
an inflammation of the bursa (a fluid-filled sac near a joint) at the lateral (outside) point of the hip
known as the greater trochanter. Dr. Goldstein advised that when the bursa becomes irritated or
inflamed, it causes pain in the hip. He noted that the initial cause of trochanteric bursitis was an
injury to the point of the hip, which can include falling onto the hip. Dr. Goldstein also advised
that the condition was aggravated by repetitive walking and climbing of stairs, and as appellant
did in his duties as a letter carrier. He opined that the diagnosed condition was an aggravation of
right greater trochanteric bursitis.
Regarding the left lateral epicondylitis, Dr. Goldstein opined that it was the result of work
performed by appellant as a letter carrier over a period of many years. He explained that an
epicondyle was a projection of bone above a condyle, which is a rounded prominence at the end
of a bone, usually where the bone connects to another bone, and where ligaments and tendons are
attached. Furthermore, Dr. Goldstein explained that lateral epicondylitis is an-overuse injury to
the area of the lateral (outside) epicondyle of the elbow end of the humerus (upper arm bone). He
noted that appellant’s duties as stated above, involved repetitive movement and lifting of heavy
mail, including packages weighing 50 pounds or more, using his arms and elbows to distribute
letter size flats and parcels as well as to deliver mail. In addition, appellant carried a heavy mail
sack weighing approximately 35 pounds for delivery on his left shoulder over a period of more
than 25 years. Dr. Goldstein explained that doing this work for 8 to 10 hours a day, five to six
days per week over a period of 25 years would cause an overuse condition of the elbows, and
would lead to the lateral epicondylitis found in his left elbow.
In a letter to OWCP dated February 23, 2017, appellant’s representative noted that
OWCP’s procedures provide that reconsiderations must be completed within 90 days. He
contended that more than six months had passed since he requested reconsideration and requested
resolution of the matter.
By decision dated April 5, 2017, OWCP denied modification, finding that the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
conditions and the accepted factors of his federal employment.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA, that the claim was timely filed within the applicable time limitation
period of FECA, that an injury was sustained in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury. 8 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.9
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) a 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 evidence required to establish causal relationship 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.10
ANALYSIS
The Board finds that the case is not in posture for decision.11
In an August 8, 2016 report, Dr. Goldstein noted that appellant worked as a letter carrier
for the employing establishment from February 1985 until June 16, 2012. He advised that he first
saw appellant on August 12, 2011. Additionally, Dr. Goldstein described appellant’s duties,
which included distributing letters, flats, and parcels. Furthermore, he explained that appellant
delivered parcels weighing approximately 35 pounds and noted that he engaged in these activities
at work for 8 to 10 hours per day, five to six days a week. Dr. Goldstein also noted that appellant
began complaining of stabbing-type pain in his right hip, which radiated down to his knee and
8

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

9

Victor J. Woodhams, 41 ECAB 345 (1989).

10

Id.

11
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence that was previously
considered in the August 22, 2013 and August 18, 2015 Board decisions. Findings made in prior Board decisions are
res judicata absent any further review by OWCP under section 8128 of FECA. See B.R., Docket No. 17-0294 (issued
May 11, 2018).

4

foot, especially when walking, bending, performing side movements, and when ascending and
descending stairs. He also explained that appellant developed left elbow pain, as well as some
pain in his lower back. While Dr. Goldstein noted that appellant had a previous injury on
November 23, 2010, he also explained that appellant returned to regular-duty work just a few days
after this injury. Dr. Goldstein provided examination findings, which revealed right greater
trochanteric bursitis (an aggravation) and left lateral epicondylitis. He opined that it was his
“opinion at that time, with a reasonable degree of medical certainty, that the conditions as
described were causally related to [appellant’s] duties as a letter carrier.” Furthermore,
Dr. Goldstein also explained that when appellant fell on November 23, 2010, he landed on the
right side of his hip, which would have caused the right greater trochanteric bursitis to occur. He
explained that trochanteric bursitis was an inflammation of the bursa at the lateral point of the hip
known as the greater trochanter. Dr. Goldstein advised that when the bursa became irritated or
inflamed, it caused pain in the hip. He noted that the initial cause of trochanteric bursitis was an
injury to the point of the hip, which could include falling onto the hip. However, Dr. Goldstein
also advised that the condition was aggravated by repetitive walking and climbing of stairs, which
were part of appellant’s duties as a letter carrier. He opined that the diagnosed condition was an
aggravation of right greater trochanteric bursitis.
Regarding the left lateral epicondylitis, Dr. Goldstein opined that it was the result of work
performed by appellant as a letter carrier over a period of many years. He explained that an
epicondyle was a projection of bone above a condyle, which was a rounded prominence at the end
of a bone, usually where the bone connected to another bone, and where ligaments and tendons
attached. Furthermore, Dr. Goldstein explained that lateral epicondylitis was an overuse injury to
the area of the lateral (outside) epicondyle of the elbow end of the humerus (upper arm bone). He
noted that appellant’s duties as stated above involved repetitive movement and lifting of heavy
mail, including packages weighing 50 pounds or more, using his arms and elbows to distribute
letter size flats and parcels as well as to deliver mail. In addition, appellant carried a heavy mail
sack weighing approximately 35 pounds for delivery on his left shoulder over a period of more
than 25 years. Dr. Goldstein explained that performing that work for 8 to 10 hours per day, five
to six days per week over a period of 25 years would cause an overuse condition of the elbows,
and would lead to the lateral epicondylitis found in his left elbow. Dr. Goldstein noted that
appellant fully recovered from the November 23, 2010 event.
The Board finds that, while Dr. Goldstein’s August 8, 2016 report is not fully rationalized,
he explained the processes by which appellant’s accepted factors of his federal employment caused
his bursitis and epicondylitis. Although the medical report is insufficient to meet appellant’s
burden of proof to establish his claim, it raises an uncontroverted inference between the diagnosed
conditions and the accepted work factors, sufficient to require OWCP to further develop the
claim.12
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While it is appellant’s burden to proof to establish the claim, OWCP shares responsibility in the
development of the evidence. It has the obligation to see that justice is done.13 The Board will,
therefore, remand the case to OWCP for further development. On remand, OWCP should prepare
12
13

See E.J., Docket No. 09-1481 (issued February 19, 2010).
John W. Butler, 39 ECAB 852, 859 (1988) (citing Russell F. Polhemus, 32 ECAB 1066 (1981)).

5

a statement of accepted facts and obtain a rationalized opinion from an appropriate Board-certified
physician as to whether appellant’s right hip and left elbow conditions are causally related to the
accepted factors of his federal employment. Following this and any other further development as
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 5, 2017 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision of the Board.
Issued: December 12, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0579
Issued: October 5, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 21, 2020 appellant filed a timely appeal from an August 5, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated May 11, 2018, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 5, 2019 decision, OWCP received additional evidence. 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On July 31, 2006 appellant, then a 55-year-old mail processing clerk, filed an occupational
disease claim (Form CA-2) alleging that she sustained de Quervain’s tenosynovitis of the left and
right wrists due to factors of her federal employment. She indicated that she first became aware
of her condition on May 25, 2006 and first realized that it was caused or aggravated by her federal
employment on July 6, 2006. Appellant described her employment duties as spiking the mail as it
comes through machines and using her wrists to flip the mail to examine both sides. She explained
that, after she experienced intermittent pain and numbness, her physician diagnosed her with
de Quervain’s tenosynovitis. Appellant did not stop work.3 OWCP accepted her claim on
November 8, 2006 for bilateral de Quervain’s tendinitis.
In an August 13, 2007 medical note, Dr. Matthew Sies, Board-certified in occupational
medicine, provided permanent modified work restrictions in relation to appellant’s condition.
In a December 23, 2008 medical report, Dr. Jimmie Kung, Board-certified in physical
medicine and rehabilitation, indicated that appellant retired from federal employment in July 2008.
On February 6, 2018 appellant filed a notice of recurrence (Form CA-2a) for medical
treatment.
In a June 29, 2015 attending physician’s supplemental report (Form CA-20a) Dr. Bhavesh
Pandya, Board-certified in occupational medicine, evaluated appellant for her symptoms related
to her bilateral carpal tunnel syndrome.4 He checked a box marked “Yes” to indicate his belief
that appellant’s condition was due to the injury for which she claimed compensation. Dr. Pandya
referred to a November 7, 2014 medical report in which Dr. Susan Yu, Board-certified in physical
medicine and rehabilitation, noted electromyographic evidence of bilateral moderate median
neuropathy and carpal tunnel syndrome, right worse than left.
In an August 22, 2017 primary treating physician’s progress report, Dr. Steve Huang,
Board-certified in occupational medicine, noted appellant’s diagnoses of neck muscle strain and
bilateral carpal tunnel syndrome. On evaluation he referred her to physical and occupational
therapy to treat her symptoms of pain in both of her hands and wrists.

3

Appellant worked in a modified capacity as recommended by Dr. Kung beginning July 6, 2006.

4

Appellant previously filed an occupational disease claim on November 12, 2003 for bilateral carpal tunnel
syndrome under OWCP File No. xxxxxx648. OWCP accepted her claim for cervico-muscular strain and bilateral
carpal tunnel syndrome on August 5, 2004. On March 7, 2008 it granted appellant a schedule award for “16 percent
[permanent] impairment of upper extremity.”

2

In an attending physician’s supplementary report of even date, Dr. Huang indicated that
appellant had been on permanent modified duty at work and home since 2006. He referred her to
physical and occupational therapy for a hand injury.
In a November 15, 2017 medical report, appellant informed Dr. Pandya that she continued
to experience swelling and pain in both of her hands. Dr. Pandya noted her permanent instructions
and provided her with additional information about requesting disability.
In a January 12, 2018 medical report, Dr. Aliss Markosian, Board-certified in occupational
medicine, noted appellant’s diagnoses of left and right carpal tunnel syndrome as well as right and
left lateral epicondylitis. She provided appellant home care instructions to treat her conditions.
In a development letter dated March 9, 2018, OWCP noted gaps in appellant’s medical
evidence dating from May 13, 2010 to August 22, 2017 and also that she had been receiving
treatment for conditions that it had not accepted.5 It advised her of the type of evidence necessary
to establish her recurrence claim and attached a questionnaire for her completion. OWCP afforded
appellant 30 days to submit the necessary evidence. Appellant did not submit any additional
evidence.
By decision dated May 11, 2018, OWCP denied appellant’s claim for a recurrence of
disability. It indicated that she had not provided the evidence requested in the March 9, 2018
development letter and found that the medical evidence failed to establish that she was disabled
due to a material change or worsening of her accepted condition.
OWCP continued to receive evidence. In a June 18, 2018 attending physician’s
supplemental report, Dr. Huang noted appellant’s diagnoses of a neck muscle strain, bilateral
carpal tunnel syndrome, and right elbow joint pain. He identified May 25, 2006 as her date of
injury.
In an undated request form, received by OWCP on June 25, 2018, appellant requested an
oral hearing before a representative of OWCP’s Branch of Hearings and Review.
By decision dated August 2, 2018, OWCP’s Branch of Hearings and Review denied
appellant’s oral hearing request, finding her request untimely as it was undated and received on
June 25, 2018, more than 30 days after its May 11, 2018 decision.
In attending physician’s supplementary reports dated from January 8 to April 10, 2019,
Dr. Julie Fuller, Board-certified in internal medicine, checked a box marked “Yes” to indicate her
belief that appellant’s occurrence was the competent producing cause of her injury and disability.
Appellant informed her that she experienced pain in her right elbow and wrist and that she believed
her symptoms were related to her accepted 2006 injury. On evaluation Dr. Fuller diagnosed neck
muscle strain, bilateral carpal tunnel syndrome, and right elbow joint pain and noted that she had
been on permanent and stationary status. She explained that she would need to obtain additional

5

The Board notes that OWCP recorded appellant’s accepted condition as bilateral radial styloid tenosynovitis.

3

reports from appellant’s physician as well as a maximum medical improvement report so that she
could know her injury in detail.
In a May 8, 2019 attending physician’s supplementary report, Dr. Markosian checked a
box marked “Yes” to indicate her belief that appellant’s injury was the competent producing cause
of her injury and disability. She noted appellant’s history of injury and symptoms of hand pain.
On evaluation Dr. Markosian diagnosed de Quervain’s tenosynovitis. Appellant informed her that
she experienced pain and difficulty completing her activities of daily living (ADL). Dr. Markosian
opined that appellant appeared to be having a flare-up of her condition and stated that she believed
her pain due to her ADLs was caused by her previous work injury. She advised that appellant
undergo occupational therapy to treat her condition.
By request form dated May 8, 2019, postmarked with three-day Priority Mail on May 10,
2019 and received by OWCP on May 14, 2019, appellant requested reconsideration of OWCP’s
May 11, 2018 decision.
In an October 24, 2011 attending physician’s supplementary report, Dr. John Barchilon,
Board-certified in occupational medicine, checked a box marked “Yes” to indicate his belief that
appellant’s occurrence was the competent producing cause of her injury and disability. He noted
her diagnoses of bilateral carpal tunnel syndrome and right de Quervain’s tenosynovitis.
Dr. Barchilon provided appellant with prescriptions to treat her pain related to her conditions and
recommended that she receive replacement wrist splints.
In response to OWCP’s questionnaire, appellant submitted a May 8, 2019 statement in
which she explained that she started having flare ups more constantly over the past two years. She
stated that she has experienced pain relative to her right hand and right elbow and had not sustained
any other injuries or illnesses since her original injury. Appellant provided that she had
experienced pain in her right elbow and hand and has experienced flare ups from 2006 to present.
By decision dated August 5, 2019, OWCP denied appellant’s request for reconsideration
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.6 This discretionary authority, however, is subject to certain restrictions. A request
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.7 The one-year period for requesting reconsideration begins on the date of the
original OWCP decision, but the right to reconsideration within one year also accompanies any
subsequent merit decision on the issues, including any merit decision by the Board.8 Timeliness
is determined by the document receipt date (i.e., the “received date” in OWCP’s Integrated Federal
6

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
7

20 C.F.R. § 10.607(a).

8

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

4

Employees’ Compensation System (iFECS)).9 The Board has found that the imposition of the
one-year limitation does not constitute an abuse of the discretionary authority granted OWCP
under section 8128(a) of FECA.10
OWCP may not deny an application for review solely because the application was not
timely filed. When an application for review is untimely filed, it must nevertheless undertake a
limited review to determine whether the application demonstrates clear evidence of error.11
OWCP’s regulations and 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(a), if the
claimant’s application for review demonstrates clear evidence of error on the part of OWCP.12
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.13 The Board
notes that clear evidence of error is intended to represent a difficult standard.14 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.15 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion.16 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.17 In this regard, the Board will limit its focus to a review of how the newly
submitted evidence bears on the prior evidence of record.18 The Board makes an independent
determination as to whether a claimant has demonstrated clear evidence of error on the part of
OWCP.19

9

Id. at Chapter 2.1602.4(b) (February 2016).

10

See R.L., Docket No. 18-0496 (issued January 9, 2019).

11

See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).

12

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1602.5(a) (February 2016).

13

G.G., supra note 11.

14

M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra 10.

15

E.B., Docket No .18-1091 (issued December 28, 2018).

16

J.W., Docket No. 18-0703 (issued November 14, 2018).

17

P.L., Docket No. 18-0813 (issued November 20, 2018).

18

D.G., 59 ECAB 455 (2008); A.F., 59 ECAB 714 (2008).

19

W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

5

ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
Appellant had one year from the date of OWCP’s May 11, 2018 decision to timely request
reconsideration. As OWCP did not receive her reconsideration request until May 14, 2019, more
than one year after the May 11, 2018 merit decision, the Board finds that it was untimely filed.
Consequently, appellant must demonstrate clear evidence of error by OWCP in the denial of her
claim.20
In the case of William A. Couch,21 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. While OWCP referenced an August 22, 2017 report from
Dr. Huang in its August 5, 2019 decision, it did not reference a number of additional reports from
Drs. Huang, Fuller, Markosian, and Barchilon pertaining to appellant’s diagnosed conditions. As
the Board’s decisions are final as to the subject matter appealed,22 it is crucial that all evidence
relevant to the subject matter which was properly submitted to OWCP prior to the time of issuance
of its final decision be addressed by OWCP.23 Therefore, the August 5, 2019 decision shall be set
aside and the case remanded for OWCP to review and address all evidence contained in the case
record.
Following this and other such further development as OWCP deems necessary, it shall
issue an appropriate decision.24
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. However, the case is not in posture for decision with regard
to whether she has demonstrated clear evidence of error.

20

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

21

41 ECAB 548 (1990); see also J.C., Docket No. 15-1666 (issued October 28, 2015).

22

20 C.F.R. § 501.6(d).

23

T.J., Docket No. 14-1854 (issued February 3, 2015); Yvette N. Davis, 55 ECAB 475 (2004).

24
Upon return of the case record OWCP should consider administratively combining OWCP File No. xxxxxx648
with the present claim file.

6

ORDER
IT IS HEREBY ORDERED THAT the August 5, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: October 5, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7