United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 14-1838
Issued: January 22, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 18, 2014 appellant filed a timely appeal from an August 4, 2014 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 appellant has established that he was entitled to continuation of pay
for the period November 25 to December 16, 2013.
FACTUAL HISTORY
Appellant, a 40-year-old veteran service representative, filed a claim for benefits and
continuation of pay on October 24, 2013. He alleged a lower back injury when he twisted his
1

5 U.S.C. § 8101 et seq.

back while trying to grab a loose file. A witness indicated that she saw appellant trip and fall
after he attempted to catch a loose folder. OWCP handled the claim administratively and
approved payment for a limited amount of medical expenses as appellant sustained a minor
injury that resulted in minimal or no lost time from work. The employing establishment did not
controvert continuation of pay or challenge the merits of the case.
In a report dated December 2, 2013, Dr. Chino Mannikarutto, a specialist in internal
medicine, indicated that appellant was treated at Good Samaritan Hospital from December 2 to
5, 2013. He stated that appellant could return to work on December 10, 2013.
Dr. Ayesha A. Butt, a specialist in internal medicine, reported on December 11, 2013 that
she was excusing appellant from work from December 9 to 16, 2013 for medical reasons.
On May 20, 2014 appellant filed a Form CA-2a claim for benefits, alleging that he
sustained a recurrence of disability on November 1, 2013 which was causally related to his
October 24, 2013 work injury.
In a June 11, 2014 letter, OWCP advised appellant that, although it had initially handled
the claim administratively because the injury appeared to be minor and resulted in minimal or no
time lost from work, it had now reopened the claim for consideration of the merits because he
had filed a claim of recurrence of disability. It advised him that he needed to submit additional
factual and medical evidence, including a physician’s opinion as to how his injury resulted in the
diagnosed condition, supported by a medical explanation as to how the reported work incident
caused or aggravated a medical condition. OWCP stated that appellant had 30 days to submit the
requested information.
On July 9, 2014 Dr. Dhruv A. Gadhia, a specialist in internal medicine, reported that he
had treated appellant since September 27, 2013. He advised that appellant had exacerbated his
chronic back pain after an injury in October 2013; he treated appellant again on
November 7, 2013. Dr. Gadhia stated that appellant had symptoms of lumbar back pain with a
normal lumbar spine x-ray. He asserted that appellant had chronic lower back pain and opined
that he might have experienced regional muscular sprain and/or exacerbation of his pain after
inadvertently twisting his body to catch a falling file of papers. Dr. Gadhia recommended
referral to a physical therapist for further evaluation and treatment.
On August 4, 2014 OWCP accepted the October 24, 2013 traumatic injury claim for
lumbar sprain and advised him that because he filed the Form CA-2a as his first claim for wage
loss following his October 24, 2013 traumatic injury, his claim was not a true recurrence of
disability. It advised him to file a Form CA-7 claim for compensation.
In a second August 4, 2014 decision, OWCP denied appellant’s claim for continuation of
pay for the period November 25 to December 16, 2013 as he failed to submit medical evidence
sufficient to establish a causal relationship between his absence from work and the October 24,
2013 work injury. It advised him that its decision concerned his entitlement to continuation pay
only and did not affect his entitlement to other compensation benefits. OWCP noted that
appellant could claim compensation by filing a Form CA-7 through the employing
establishment.

2

LEGAL PRECEDENT
Section 8118 of FECA provides for payment of continuation of pay, not to exceed 45
days, to an employee who has filed a claim with his immediate supervisor for a period of wage
loss due to a traumatic injury on a form approved by the Secretary of Labor within the time
specified in section 8122(a)(2) of FECA.2 In order to establish entitlement to continuation of
pay, an employee must establish, on the basis of reliable, probative and substantial evidence, that
he or she was disabled as a result of a traumatic employment injury. As part of this burden, he or
she must furnish medical evidence from a qualified physician who, based on a complete and
accurate history, concludes that the employee’s disability for specific periods was causally
related to such injury.3
FECA’s implementing regulations provide, in pertinent part, that to be eligible for
continuation of pay, a claimant must: (1) have a traumatic injury which is job related and the
cause of the disability and/or the cause of lost time due to the need for medical examination and
treatment; (2) file a Form CA-1 within 30 days of the date of injury; and (3) begin losing time
from work due to the traumatic injury within 45 days of the injury.4
ANALYSIS
On October 24, 2013 appellant filed a Form CA-1 claim for a traumatic injury, alleging
that he injured his lower back when he twisted his back while attempting to catch a loose case
file. OWCP treated his claim administratively. It accepted the claim on August 4, 2014, but
denied continuation of pay, finding that appellant failed to establish that he lost time from work
due to the traumatic injury. OWCP stated that he had not established that his alleged period of
recurrent disability from November 25 to December 16, 2013 was the result of the accepted
traumatic injury.
The Board finds that appellant did not meet the standards for receiving continuation of
pay. Although he gave written notice that he was claiming continuation of pay within 30 days of
being injured, appellant has not established that his traumatic injury caused disability from
November 25 to December 16, 2013. He has provided no medical evidence indicating that his
time from work were due to the accepted lumbar sprain injury as of November 25, 2013.
Appellant submitted leave slips and return to work reports from Drs. Mannikarutto and Butt
which did not contain any probative, rationalized medical opinion regarding causation.
Dr. Gadhia stated that he had treated appellant on November 7, 2013 after he had
exacerbated his chronic back pain during the October 2013 work injury. He opined that
appellant might have experienced regional muscular sprain and/or exacerbation in his pain after
2

5 U.S.C. § 8118. A traumatic injury refers to injury caused by a specific event or incident or series of incidents
occurring within a single workday or work shift whereas an occupational disease refers to an injury produced by
employment over a period longer than a single workday or shift. 20 C.F.R. §§ 10.5(q), (ee); Brady L. Fowler, 44
ECAB 343, 351 (1992).
3

Carol A. Dixon, 43 ECAB 1065 (1992).

4

20 C.F.R. § 10.205(a)(1)-(3). See also Carol A. Lyles, 57 ECAB 265 (2005).

3

inadvertently twisting his body during the incident. Dr. Gadhia advised that appellant had
lumbar back pain symptoms with a normal lumbar spine x-ray. His July 9, 2014 report does not
constitute sufficient medical evidence to establish that appellant’s disability for the period
November 25 to December 16, 2013 was causally related to his October 24, 2013 employment
injury. Causal relationship must be established by rationalized medical opinion evidence. At
best, Dr. Gadhia’s report is speculative in nature. He offers no medical explanation as to why
appellant’s accepted lumbar strain condition would have caused disability during the time period
in question. Dr. Gadhia noted appellant’s back pain, but also noted that x-ray of appellant’s
lumbar spine was normal. He provided no explanation, supported by objective evidence, as to
why appellant could not work from November 25 to December 16, 2013. Dr. Gadhia’s report
failed to provide an explanation in support of appellant’s claim that he was disabled due to the
accepted traumatic injury.5 The record therefore contains no contemporaneous medical evidence
supporting his claim that he was entitled to continuation of pay for the period November 25 to
December 16, 2013.
As noted above, to establish entitlement to compensation, an employee must establish
through competent medical evidence that disability from work resulted from the employment
injury.6 The Board will not require OWCP 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 their disability and
entitlement to compensation.7 Appellant has the burden to demonstrate his disability for work
based on rationalized medical opinion evidence. 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.8 There is no such evidence in this case. OWCP properly denied appellant’s
claim for continuation of pay because he failed to submit a medical report which described his
accepted condition in any detail or how it would have been competent to result in disability from
November 25 to December 16, 2013.
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 OWCP properly denied appellant’s claim for continuation of pay
from November 25 to December 16, 2013.

5

William C. Thomas, 45 ECAB 591 (1994).

6

Donald E. Ewals, 51 ECAB 428 (2000).

7

Paul E. Thams, 56 ECAB 503 (2005).

8

Howard A. Williams, 45 ECAB 853 (1994).

4

ORDER
IT IS HEREBY ORDERED THAT the August 4, 2014 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: January 22, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jackson, MI, Employer
__________________________________________

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

Docket No. 15-406
Issued: May 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 11, 2014 appellant filed a timely appeal of the August 29 and October 7,
2014 nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP).1 As more
than 180 days elapsed since the most recent merit decision dated May 16, 2014 and the filing of
this appeal on December 11, 2014, the Board lacks jurisdiction to review the merits of the claim
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3.3

1

With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).
2
3

5 U.S.C. §§ 8101-8193.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration and
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 9, 2013 appellant, then a 30-year-old mail processing clerk, filed a Form
CA-2, notice of occupational disease, alleging that she developed a fractured left foot as a result
of the prolonged standing on cement floors while in the performance of duty. OWCP accepted
her claim for bilateral metatarsalgia and stress fracture of the right metatarsals. Appellant
stopped work on August 23, 2013.
Appellant was treated by Dr. Rose Sotolongo, a podiatrist, on August 29, 2013, for pain
in the left foot at the fourth and fifth dorsal. Dr. Sotolongo noted x-ray of the right foot revealed
a stress fracture at the base of the third metatarsal. She diagnosed pain in limb, edema, stress
fracture and foot deformity with metatarsalgia and recommended orthotics. In an October 21,
2013 report, Dr. Sotolongo noted that appellant had been released to work full time with
restrictions on October 19, 2013. In a work capacity evaluation dated November 8, 2013, she
noted that appellant could return to work full time with restrictions of no prolonged standing. In
a subsequent duty status report dated February 18, 2014, Dr. Sotolongo again noted that
appellant could return to work full time with restrictions. In another work capacity evaluation
dated February 12, 2014, she noted that appellant could work eight hours per day with
restrictions.
On April 24, 2014 appellant filed a claim for a schedule award. She submitted reports
from Dr. Sotolongo, dated April 15, 2014, who had treated appellant for foot pain and lower
back, stenosis and neuropathy aggravated by standing on concrete floors. Dr. Sotolongo
diagnosed neuropathy pain from the lower back stenosis both feet, metatarsalgia resolved with
orthoses, stress fracture of the metatarsals healed, and enthesopathy of tarsus stable. She
recommended neuropathy compound cream. In a May 2, 2014 report, Dr. Sotolongo diagnosed
lumbar stenosis and metatarsalgia. Appellant reported that foot pain prevented her from
working. Dr. Sotolongo noted that she could not rule out malingering. In a work capacity
evaluation dated April 23, 2014, she diagnosed lower back stenosis causing neuropathy.
Dr. Sotolongo returned appellant to work regular duty and requested that she be provided a
rubber pad on which to stand while working.
OWCP referred Dr. Sotolongo’s report and the case record to an OWCP medical adviser
for evaluation as to the extent of permanent partial impairment of the bilateral lower extremities
permanent impairment under the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment, (A.M.A., Guides).4 In a report dated May 8, 2014, the
medical adviser opined that appellant had zero percent impairment of the bilateral lower
extremities. He advised that there was no clinical or radiographic evidence that supported any
impairment of the lower extremities.
4

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

2

In a decision dated May 16, 2014, OWCP denied appellant’s claim for a schedule award.
On August 25, 2014 appellant requested reconsideration. She submitted statements dated
August 1, 2014 which noted that she was working in the automation department and wore special
shoe inserts. Appellant reported not being able to work a full shift without pain medication. She
submitted an April 15, 2014 report from Dr. Sotolongo, an April 23, 2014 work capacity report
from Dr. Sotolongo, and a May 8, 2014 report from an OWCP medical adviser, all previously of
record. An April 1, 2014 x-ray report noted mild hallus, mild halux valgus, and mild flexion
deformity. In a July 30, 2014 work capacity evaluation, Dr. Sotolongo noted treating appellant
for chronic pain and that she was unable to perform her usual job for eight hours a day with
restrictions because she was unable to stand. She noted that appellant’s examination was normal
and she reached maximum medical improvement with regard to her feet but she still experienced
chronic pain due to her back. Dr. Sotolongo noted that appellant sustained a possible stress
fracture with pain and swelling which had resolved; however, she continued to complain of foot
pain due to lumbar stenosis.
In an August 29, 2014 decision, OWCP denied appellant’s request for reconsideration as
the evidence submitted was insufficient to warrant a merit review.
On September 8, 2014 appellant again requested reconsideration. She indicated that she
was entitled to a schedule award because of the pain and suffering endured after working
prolonged hours on a cement floor. Appellant indicated that the medication caused her to gain
weight, she was required to wear shoe inserts, and her condition negatively affected her social
life. She indicated that her physician had provided adequate information to support her claim.
Appellant reported that she could hardly walk to the parking lot. She stated that she had used all
her sick and annual leave, and now had to use leave without pay. Appellant submitted an x-ray
report from Dr. Sotolongo dated April 1, 2014 and reports dated April 15 and 23, 2014, all
previously of record.
In an October 7, 2014 decision, OWCP again denied appellant’s request for
reconsideration as the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,5 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
5

5 U.S.C. § 8128(a).

3

“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”6
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.7
ANALYSIS
OWCP, by decision dated May 16, 2014, denied appellant’s claim for a schedule award
because she failed to establish permanent impairment due to her accepted work condition.
Thereafter, on August 29 and October 7, 2014 it denied her reconsideration requests, without
merit reviews.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of her claim.
In her August 25, 2014 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. She did not identify a specific point of
law or show that it was erroneously applied or interpreted. Appellant did not advance a new and
relevant legal argument. She submitted statements dated August 1, 2014 which noted that she
was working in the automation department and wore special shoe inserts. Appellant noted not
being able to work a full shift without pain medication. The underlying issue in this case is
whether she sustained permanent impairment to a scheduled member due to her accepted work
injury. That is a medical issue which must be addressed by relevant new medical evidence.8 As
appellant failed to submit any new and relevant medical evidence in support of her claim, her
claim was denied without a merit review. In another request for reconsideration, dated
September 8, 2014, she submitted an April 15, 2014 report from Dr. Sotolongo, an April 23,
2014 work capacity report from Dr. Sotolongo, and a May 8, 2014 report from an OWCP
medical adviser. However, these reports are duplicative of evidence previously submitted and
considered by OWCP in its May 16, 2014 decision. Evidence that repeats or duplicates evidence
already in the case record has no evidentiary value and does not constitute a basis for reopening a
case.9 Therefore, these reports are insufficient to require OWCP to reopen the claim for a merit
review.
Appellant submitted a new July 30, 2014 work capacity evaluation from Dr. Sotolongo
who treated appellant for chronic pain. Dr. Sotolongo noted that appellant was unable to
6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.608(b).

8

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

9

See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35
ECAB 1090, 1093-94 (1984). Furthermore, as appellant has not established a compensable factor of employment, it
medical evidence addressing causal relationship, even if new, would not be relevant. See C.T., Docket No. 08-2160
(issued May 7, 2009) (if a claimant has not established any compensable employment factors, OWCP need not
consider the medical evidence).

4

perform her usual job as she was unable to stand. She noted that appellant’s examination was
normal and she reached maximum medical improvement with regard to her feet but she still
experienced chronic pain due to her back. Dr. Sotolongo noted that appellant sustained a
possible stress fracture with pain and swelling which resolved; however, she continued to
complain of foot pain due to lumbar stenosis. Also submitted was a new April 1, 2014 x-ray
report which noted mild hallus, mild halux valgus and mild flexion deformity. However, these
reports, while new, are not relevant because they do not specifically address the issue of whether
appellant sustained permanent impairment to a scheduled member due to her accepted work
injury. The Board has held that the submission of evidence which does not address the particular
issue involved in a case does not constitute a basis for reopening the claim.10 Thus, these reports
are insufficient to require OWCP to reopen the claim for a merit review.
With regard to her September 8, 2014, request for reconsideration, appellant did not show
that OWCP erroneously applied or interpreted a specific point of law. She did not identify a
specific point of law or show that it was erroneously applied or interpreted. Appellant did not
advance a new and relevant legal argument. She indicated that she was entitled to a schedule
award because of the pain and suffering she has endured after working prolonged hours on
cement floors. Appellant indicated that medication caused her to gain weight, she was required
to wear shoe inserts, had difficulty walking distances, and her condition negatively affected her
social life. She indicated that her physician provided adequate information to support her claim.
Appellant also asserted that, because of her condition, she had exhausted her leave. As noted,
the underlying issue in this case is whether she sustained permanent impairment to a scheduled
member due to her accepted work injury. That is a medical issue which must be addressed by
relevant new medical evidence.11 A claimant may be entitled to a merit review by submitting
new and relevant evidence, but appellant did not submit any new and relevant medical evidence
in support of his or her claim.
Appellant submitted an April 1, 2014 x-ray report from Dr. Sotolongo and other reports
from Dr. Sotolongo dated April 15 and 23, 2014. However, as noted above, these reports from
Dr. Sotolongo are duplicative of evidence previously submitted and considered by OWCP in its
May 16 and August 29, 2014 decision. Therefore, these reports are insufficient to require
OWCP to reopen the claim for a merit review.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for reconsideration.
10

Johnnie B. Causey, 57 ECAB 359 (2006).

11

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

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ORDER
IT IS HEREBY ORDERED THAT the October 7 and August 29, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 20, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-311
Issued: September 13, 2011

Case Submitted on the Record

ORDER GRANTING REQUEST FOR ORAL ARGUMENT
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

By application dated August 16, 2010, appellant filed for review of the Office of
Workers’ Compensation Programs’ (OWCP) February 24, 2010 overpayment decision. The
appeal was docketed as No. 11-311. Appellant submitted a timely request for oral argument,
explaining the need to address the evidence of record before the Board.
The Board has duly considered the matter and finds that appellant’s request for oral
argument should be granted. Pursuant to 20 C.F.R. § 501.5(a), oral argument may be held in the
discretion of the Board.1 In the present appeal, appellant’s request was timely filed and a need
for oral argument was advanced. The Board has jurisdiction over the merits of appellant’s claim.
The February 24, 2010 decision found that appellant was at fault in the creation of an
overpayment in the amount of $27,159.35, denied her request for waiver and determined that the
amount of $100.00 per month would be withheld from her continuing compensation in
repayment of the overpayment. Appellant contends that she should not be considered to be at
fault because she advised OWCP of her increased hours and should not be held responsible for
OWCP’s oversight. She also contends that repayment would create a hardship. The Board, in its
discretion, grants oral argument.

1

20 C.F.R. § 501.5(a).

IT IS HEREBY ORDERED THAT appellant’s request for oral argument in Docket
No. 11-311 be granted.
Issued: September 13, 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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.F., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVY SHIPYARD, Vallejo, CA,
Employer
__________________________________________

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

Docket No. 11-433
Issued: September 15, 2011

Case Submitted on the Record

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

JURISDICTION
On December 14, 2010 appellant filed a timely appeal of the October 14, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration as it was not timely filed and failed to establish clear evidence of error. The
most recent merit decision is that of the Board dated February 15, 2001.1 Following the Board’s
decision, appellant had one year to request reconsideration by OWCP.2 As more than one year
has lapsed, the Board does not have jurisdiction to review the merits of this case pursuant to the
Federal Employees’ Compensation Act (FECA)3 and 20 C.F.R. §§ 501.2(c) and 501.3.

1

Docket No. 00-341 (issued February 15, 2001).

2

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.6a (January 2004).

3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
On appeal, appellant contends that he is entitled to compensation benefits for his total
disability causally related to his accepted employment injuries.
FACTUAL HISTORY
This case has previously been before the Board.4 In the February 15, 2001 decision, the
Board found that OWCP properly terminated appellant’s compensation benefits effective
March 1, 1998 on the grounds that he no longer had any disability causally related to his
April 22, 1983 employment injuries. The facts of the case as set forth in the Board’s prior
decision are incorporated herein by reference.5 The facts and the history relevant to the present
appeal are hereafter set forth.
On April 18, 2001 appellant requested reconsideration of the termination of his
compensation benefits.
In a May 29, 2001 decision, OWCP denied appellant’s request for reconsideration. It
found that he failed to raise substantive legal questions or submit new and relevant evidence.
By letter dated September 18, 2010, appellant requested reconsideration. In an abdomen
and a pelvis computerized tomography (CT) scan report dated September 8, 2010, Dr. Kush
Singh, a Board-certified radiologist, stated that appellant had no acute intra-abdominal process.
He had scattered sigmoid diverticulosis without evidence of diverticulitis. Appellant’s appendix
was normal and was filled with stool. The appendix was also mildly prominent in diameter
proximally without surrounding inflammatory change. Appellant had no definite collecting
system stone or obstruction bilaterally. He had hepatic cysts. Appellant also had bibasilar
interstitial change and possible fibrosis. Dr. Singh questioned his prior asbestos exposure given
the calcification within the left basilar pleura. Appellant had vascular calcification with
infrarenal aortic ectasia measuring 2.3 centimeters in diameter. He also had prominent
borderline pathologically enlarged bilateral inguinal lymph nodes that correlated with a physical
examination.
Appellant submitted duplicate copies of reports dated June 27, 1983 through
November 13, 1997 from Dr. Richard P. Reinerston, Dr. Howard I. Maibach, Dr. Emil A.
Tanghetti and Dr. Sergei A. Grando, Board-certified dermatologists, which addressed his
dermatitis condition, medical treatment and disability for work. He also submitted duplicate
copies of correspondence to and from OWCP, the current and former presidents of the United
4

Docket No. 00-341 (issued February 15, 2001).

5

OWCP accepted that on April 23, 1983 appellant, then a 42-year-old marine mechanic, sustained solvent
dermatitis and dermatographism when liquid spilled onto his arms while he was working on a pipe system.
Appellant was terminated from the employing establishment on July 15, 1983 due to unauthorized absences.

2

States, congressional representatives and the employing, and prior OWCP decisions regarding
the termination of his compensation benefits.
In an October 14, 2010 decision, OWCP denied appellant’s September 18, 2010 request
for reconsideration on the grounds that it was not timely filed and failed to establish clear
evidence of error in the last merit decision dated February 15, 2001.
LEGAL PRECEDENT
Section 8128(a) of FECA6 does not entitle a claimant to a review of OWCP decision as a
matter of right.7 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a). Section 10.607(a) of OWCP’s implementing
regulations provide that an application for reconsideration must be sent within one year of the
date of OWCP’s decision for which review is sought.8
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.9
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.10 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.11 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 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.14
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
6

5 U.S.C. § 8128(a).

7

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

8

20 C.F.R. § 10.607(a).

9

Id. at § 10.607(b).

10

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

11

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

12

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

13

Leona N. Travis, supra note 11.

14

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

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the claimant and raise a substantial question as to the correctness of OWCP’s decision.15 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that OWCP abused its discretion in denying merit review in
the face of such evidence.16
ANALYSIS
The Board finds that appellant did not file a timely request for reconsideration. OWCP
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original OWCP decision.17 However, a right to reconsideration within one
year also accompanies any subsequent merit decision on the issues.18
The most recent merit decision in this case was the February 15, 2001 decision affirming
OWCP’s termination of appellant’s compensation benefits on the grounds that he no longer had
any employment-related disability. As appellant’s September 18, 2010 letter requesting
reconsideration by OWCP was made more than one year after the February 15, 2001 merit
decision, the Board finds that it was not timely filed.
The Board finds that the evidence submitted by appellant in support of his September 18,
2010 request for reconsideration does not raise a substantial question as to the correctness of
OWCP’s termination of his compensation benefits or shift the weight of the evidence of record
in his favor. Dr. Singh’s September 8, 2010 abdomen and pelvis CT scan report is insufficient
to show clear evidence of error as he did not address whether appellant had any disability
causally related to the April 23, 1983 accepted work injuries. Evidence that is not germane to
the issue on which the claim was denied is insufficient to demonstrate clear evidence of error.19
The duplicate medical reports from Dr. Reinerston, Dr. Maibach, Dr. Tanghetti and
Dr. Grando were previously of record and considered by OWCP in its prior decisions do not
establish that OWCP committed clear evidence of error in terminating appellant’s compensation
in 1998. The physicians addressed appellant’s disability for work, but failed to provide adequate
medical rationale explaining how exposure to a liquid substance on April 23, 1983 or the
accepted skin conditions caused total disability for work. The Board finds that the medical
reports resubmitted by appellant do not discharge his burden of showing clear evidence of error.
The duplicate copies of correspondence and prior OWCP decisions resubmitted by
appellant are insufficient to prima facie shift the weight of the evidence in favor of his claim.
The submission of factual evidence does not show clear evidence of error because it is not

15

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

16

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

17

Supra note 8; see A.F., 59 ECAB 714 (2008).

18

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

19

F.R. Docket No. 09-575 (issued January 4, 2010).

4

relevant to the main issue in the present case, which is medical in nature and should be resolved
by the submission of medical evidence.
The Board finds that the evidence submitted by appellant in support of his untimely
request for reconsideration does not constitute positive, precise and explicit evidence, which
manifests on its face that OWCP committed an error. Therefore, the Board finds that appellant
failed to meet his burden of proof to show clear evidence of error on the part of OWCP.
Although appellant contended on appeal that, he continued to be disabled due to the
employment-related injuries, the medical evidence, as discussed above, was not sufficient to shift
the weight of the evidence in his favor and raise a substantial question as to the correctness of
OWCP’s decision terminating his compensation benefits.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the October 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 15, 2011
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Savannah, GA, Employer
__________________________________________

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Appearances:
Robert D. Pierce, Jr., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1998
Issued: April 3, 2009

Case Submitted on the Record

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

JURISDICTION
On July 14, 2008 appellant filed a timely appeal from a January 23, 2008 decision of the
Office of Workers’ Compensation Programs which denied her request for reconsideration on the
grounds that it was not timely filed and failed to establish clear evidence of error. Because more
than one year has elapsed from the last merit decision dated August 9, 2005 to the filing of this
appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly found that appellant’s request for
reconsideration was untimely filed and failed to present clear evidence of error. On appeal,
appellant, through her representative, asserts that it erred by failing to issue a decision under File
No. xxxxxx828, accepted for bilateral carpal tunnel syndrome and calcific tendinitis of the
shoulders, in conjunction with the present claim for bilateral foot impairments under File No.

xxxxxx065. She asserted that the Board’s October 9, 2007 order under File No. xxxxxx828
should have combined all of her claims.1
FACTUAL HISTORY
On September 27, 2004 appellant, then a 56-year-old mark-up clerk, filed an
occupational disease claim (Form CA-2) asserting that she sustained bilateral foot tendinitis on
or before March 6, 2004 due to standing for four hours a day on a cement floor. She also
attributed her condition to an accepted right metatarsal fracture sustained on September 18, 2000
when a metal gate dropped on her right foot.2
In a July 1, 2004 report, Dr. Frederic C. Spector, an attending podiatrist, noted appellant’s
account of bilateral foot pain which she attributed to standing on a cement floor at work. He
diagnosed bilateral posterior tibial tendon dysfunction, right greater than left. Dr. Spector
recommended that appellant stand on a padded mat at work.
In an October 20, 2004 letter, the Office advised appellant of the additional evidence
needed to establish her claim. It requested a rationalized medical report from her attending
physician explaining how and why the identified work factors would cause the claimed
condition.
By decision dated December 1, 2004, the Office denied appellant’s claim on the grounds
that causal relationship was not established. It found that appellant submitted insufficient
rationalized medical evidence supporting that work factors caused the claimed bilateral foot
condition.
In a July 1, 2005 letter, appellant requested reconsideration. She submitted a May 19,
2005 report from Dr. Spector noting that using a padded mat did not improve appellant’s
symptoms. He diagnosed a probable entrapment neuropathy of the superficial peroneal nerve in
the right foot and chronic posterior tibial tendon dysfunction.3
By decision dated August 9, 2005, the Office denied modification of the December 1,
2004 decision. It found that Dr. Spector’s report was based on an incomplete history and was
therefore insufficient to establish causal relationship.
In a November 30, 2005 letter, appellant requested reconsideration. She asserted that
multiple upper and lower extremity conditions forced her to retire. By nonmerit decision dated
December 8, 2005, the Office denied reconsideration on the grounds that appellant’s
1

By order issued October 9, 2007 under File No. xxxxxx828, the Board remanded the case to the Office to
combine File No. xxxxxx828, accepted for bilateral carpal tunnel syndrome and bilateral tendinitis of the hands,
with File No. xxxxxx325, accepted for acromioclavicular arthritis and calcific tendinitis of the shoulders. Neither of
the claims is before the Board on the present appeal.
2

The Office adjudicated the September 18, 2000 right foot injury under File No. xxxxxx637.

3

An August 9, 2005 magnetic resonance imaging (MRI) scan reports showed right tibialis posterior tendinopathy
with a partial tear and midfoot degenerative changes.

2

November 30, 2005 letter, the only evidence submitted, was insufficient to warrant a merit
review.
In a December 22, 2007 letter, appellant, through her representative, requested
reconsideration. She asserted that the medical evidence established that she sustained a bilateral
foot condition due to the accepted metatarsal fracture and standing on a cement floor. Appellant
submitted reports dated August 1, 2005 to July 11, 2007 from Dr. Spector, opining that the
metatarsal fracture caused post-traumatic osteoarthritis in the right foot. Dr. Spector attributed
her right posterior tibial tendon tear to prolonged standing on cement. He noted that appellant’s
foot pain worsened after her retirement in June 2005. Appellant also submitted a November 30,
2006 report from Dr. Stephen C. Allen, an attending Board-certified orthopedic surgeon, who
diagnosed bilateral foot arthritis and bilateral pes planus and opined that appellant’s symptoms
were due to nerve irritation, repetitive impact and arthritis.
By decision dated January 23, 2008, the Office denied appellant’s December 22, 2007
request for reconsideration on the grounds that it was untimely filed and failed to present clear
evidence of error. It found that appellant’s December 22, 2007 request was untimely as it was
filed more than one year after the August 9, 2005 merit decision. The Office further found that
appellant’s December 22, 2007 letter and the accompanying evidence did not establish that it
erred in denying her claim.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act4 does not entitle a claimant
to a review of an Office decision as a matter of right.5 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.6 It, through regulations, has imposed limitations on the exercise of its
discretionary authority. One such limitation is that the Office will not review a decision denying
or terminating a benefit unless the application for review is filed within one year of the date of
that decision.7 The Board has found that the imposition of this one-year time limitation does not
constitute an abuse of the discretionary authority granted the Office under 5 U.S.C. § 8128(a).8
In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its regulations.9
Office regulations state that it will reopen a claimant’s case for merit review, notwithstanding the
4

5 U.S.C. § 8128(a).

5

Thankamma Mathews, 44 ECAB 765, 768 (1993).

6

Thankamma Mathews, supra note 5; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

7

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
8

5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 5, Jesus D. Sanchez, supra note 6.

9

Thankamma Mathews, supra note 5.

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one-year filing limitation set forth in the Office’s regulations, if the claimant’s request for
reconsideration shows “clear evidence of error” on the part of it.10
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.11 The evidence must be positive, precise and explicit and must
be manifest on its face that it committed an error.12 Evidence which does not raise a substantial
question concerning the correctness of the Office’s decision is insufficient to establish clear
evidence of error.13 It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion.14 This entails a limited review by the Office 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 it.15 To show clear evidence of
error, the evidence submitted must not only be of sufficient probative value to create a conflict in
medical opinion or establish a clear procedural error, but must be of sufficient probative value to
prima facie shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of the Office’s decision.16 The Board must make an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that it abused its discretion in denying merit review in the face of such evidence.17
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. It issued its last merit decision in this case on August 9, 2005. Appellant’s request for
reconsideration was untimely filed as it was dated December 22, 2007, more than one year after
the last merit decision.18 It must now be determined whether appellant’s December 22, 2007
request for reconsideration demonstrated clear evidence of error in the Office’s prior decisions.
Appellant’s December 22, 2007 letter asserted that the medical evidence was sufficient to
establish causal relationship between bilateral foot conditions and work factors. The Board finds
that this letter does not raise a substantial question as to whether the Office’s August 9, 2005
decision was in error or prima facie shift the weight of the evidence in appellant’s favor.
Therefore, it is insufficient to establish clear evidence of error. The reports from Dr. Spector and
Dr. Allen do not contain medical rationale addressing the underlying issue of causal relationship
10

20 C.F.R. § 10.607(b).

11

Thankamma Mathews, supra note 5 at 770.

12

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

13

Jesus D. Sanchez, supra note 6 at 968.

14

Leona N. Travis, supra note 12.

15

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

16

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

17

Gregory Griffin, supra note 7.

18

Veletta C. Coleman, 48 ECAB 367 (1997); Larry L. Lilton, 44 ECAB 243 (1992).

4

and are thus irrelevant to the claim. Therefore, they are insufficient to raise a substantial
question as to the correctness of the Office’s August 9, 2005 decision.
Accordingly, the Board finds that the arguments and evidence submitted by appellant in
support of her December 22, 2007 request for reconsideration do not prima facie shift the weight
of the evidence in her favor or raise a substantial question as to the correctness of the Office’s
August 9, 2005 decision and are thus insufficient to demonstrate clear evidence of error.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely and failed to
show clear evidence of error in the Office’s August 9, 2005 decision, the last merit decision in
the case. Therefore, the January 23, 2008 decision of the Office denying appellant’s
December 22, 2007 request for reconsideration was proper under the law and facts of this case.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 23, 2008 is affirmed.
Issued: April 3, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Houston, TX, Employer
__________________________________________

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

Docket No. 18-1691
Issued: May 1, 2019

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 September 7, 2018 appellant filed a timely appeal from an August 13, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). By order dated March 8, 2019, the Board exercised its discretion and denied the request, finding
that the arguments on appeal could adequately be addressed in a decision based on the case record. Order Denying
Request for Oral Argument, Docket No. 18-1691 (issued March 8, 2019).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the April 13, 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 evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left knee condition
causally related to the accepted September 28, 2017 employment incident.
FACTUAL HISTORY
On October 4, 2017 appellant, then a 46-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that she injured her left knee on September 28, 2017 while in the
performance of duty. She reported that as she turned away after obtaining patient information
from a coworker she twisted her knee and it popped, and then developed pain and swelling. The
employing establishment indicated on the reverse side of the claim form that an investigation of
the incident did not support appellant’s statement.
In an October 4, 2017 authorization for examination and/or treatment (Form CA-16), W.T.,
a workers’ compensation program manager at the employing establishment, authorized medical
treatment by Dr. George Ozoude, a Board-certified orthopedic surgeon. W.T. checked a form box
indicating doubt that her condition was caused by an injury sustained in the performance of duty.
In a development letter dated October 10, 2017, OWCP advised appellant of the type of
factual and medical evidence needed to establish her claim and provided a questionnaire for her
completion. It afforded her 30 days to respond.
In a November 2, 2017 statement, appellant wrote that she injured her left knee at
approximately 8:30 a.m. on September 28, 2017 when she turned from talking with a team leader
regarding a patient. She indicated that, as she turned and twisted to return to her desk, she heard
her left knee pop and was unable to put pressure on her left leg, but that after a few minutes she
could limp to her desk. Appellant related that after a few minutes the sharp pain diminished and
she continued to work from her desk, ambulating only when necessary. She also reported that she
was also experiencing shortness of breath and coughing that morning, which eventually worsened,
and that at approximately 9:30 a.m. she called her supervisor who advised her to go to her doctor.
Appellant indicated that she also informed her supervisor regarding the left knee incident that day.
She reported that she was treated for acute bronchitis/pneumonia that day, remained off work, and
saw an orthopedic surgeon on October 1, 2017. Appellant described medical treatment and
indicated that she had not returned to work.
On disability slips dated October 1 and 6, 2017 Dr. Ozoude indicated that appellant should
be out of work due to a left knee medial meniscus tear. On a Family and Medical Leave Act
(FMLA) form dated November 7, 2017, he noted that appellant’s condition commenced on
September 28, 2017 and that she was unable to work due to a left knee medial meniscus tear, which
did not allow her to lift, push, pull, or put any strain on the knee. Dr. Ozoude recommended
physical therapy and advised that she would be out of work for approximately six months.
By decision dated November 14, 2017, OWCP denied the claim. It found the
September 28, 2017 incident occurred as alleged, but denied the claim because the medical
evidence submitted was insufficient to establish that the diagnosed condition was causally related
to the September 28, 2017 employment incident.

2

On January 16, 2018 appellant requested reconsideration. She resubmitted her
November 2, 2017 statement. In December 8, 2017 correspondence, Dr. Ozoude advised that
appellant was under his care. He noted that appellant was first seen on October 2, 2017 when she
related that she had injured her left knee by twisting it while in a standing position at work on
September 28, 2017. Dr. Ozoude reported that a magnetic resonance imaging (MRI) scan was
performed on October 4, 2017, which revealed a left medial meniscus tear. He indicated that
appellant’s explanation of her injury demonstrated the cause of her diagnosed left medial meniscal
tear, noting that the injury was often caused by a twisting motion.
By decision dated January 17, 2018, OWCP reviewed the merits of appellant’s claim, but
denied modification of its prior decision, finding that the medical evidence submitted was of
insufficient rationale to establish causal relationship.
On May 15, 2018 appellant again requested reconsideration. She submitted an April 30,
2018 treatment note in which Dr. Alan Tran, Board-certified in family medicine, noted that
appellant was seen for left knee pain. Dr. Tran wrote that appellant related that, while working on
September 28, 2017, she twisted her left knee as she turned around and felt it pop. He described
her complaint of sharp left knee pain, provoked with weight bearing, and noted that she walked
with a visual limp. Physical examination demonstrated moderate tenderness in the right knee with
a positive McMurray’s test. Dr. Tran diagnosed internal derangement of the left knee and advised
that appellant could perform modified duties. In a July 12, 2018 report, he noted her complaint of
mild sharp left knee pain with difficulty walking. Dr. Tran described mild tenderness on palpation
of the left knee with a positive McMurray’s test on the left and repeated his diagnosis.
By decision dated August 13, 2018, OWCP reviewed the merits of appellant’s claim, but
denied modification of its prior decisions. It found that appellant had not provided rationalized
medical opinion evidence sufficient to establish causal relationship between the diagnosed
conditions and the accepted September 28, 2017 employment incident.
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 of FECA, that the claim was timely filed within the applicable
time limitation period,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 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.6
To determine if an employee has sustained an injury in the performance of duty, OWCP begins
4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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with an analysis of whether fact of injury has been established. Generally, fact of injury consists
of two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury and generally can be established only by medical evidence.7
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted September 28, 2017 employment incident.
In support of her claim, appellant submitted disability slips dated October 1 and 6, 2017
and an FMLA form dated November 7, 2017 from Dr. Ozoude. In these reports, however,
Dr. Ozoude did not provide a medical opinion that the accepted September 28, 2017 incident
caused or aggravated appellant’s left knee conditions. The Board has held that medical evidence
that does not offer an opinion regarding the cause of an employee’s condition is of no probative
value on the issue of causal relationship.9 These reports, therefore, are insufficient to establish
appellant’s claim.
Dr. Ozoude also provided correspondence, dated December 8, 2017, in which he described
appellant’s recitation that she injured her left knee by twisting it while in a standing position at
work on September 28, 2017. He indicated that an MRI scan was done on October 4, 2017, which
revealed a left medial meniscus tear. Dr. Ozoude opined that appellant’s explanation of her injury
demonstrated that the left medial meniscal tear was caused by this incident, noting that such an
injury was often caused by a twisting motion. The Board initially notes that a copy of the MRI
scan report, which would confirm a medial meniscus tear, is not found in the record before the
Board. The Board has held that a report is of limited probative value regarding causal relationship
if it does not contain medical rationale explaining how a given medical condition/disability was
related to employment factors.10
While Dr. Tran provided treatment notes dated April 30 and July 12, 2018 in which he
discussed appellant’s left knee condition, he did not provide a medical opinion that the accepted
September 28, 2017 employment incident caused or aggravated her left knee condition. Lacking

7

K.L., Docket No. 18-1029 (issued January 9, 2019).

8

S.S., Docket No. 18-1488 (issued March 11, 2019).

9

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

10

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

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a rationalized medical opinion regarding causal relationship, his reports are therefore of no
probative value.11
As the record lacks rationalized medical evidence establishing causal relationship between
the September 28, 2017 employment incident and appellant’s diagnosed left knee condition, the
Board finds that she has not met her burden of proof.12
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted September 28, 2017 employment incident.

11

Id.

12

The Board notes that the employing establishment issued appellant a signed authorization for examination and/or
treatment (Form CA-16) authorizing medical treatment. The Board has held that where an employing establishment
properly executes a CA-16 form, which authorizes medical treatment as a result of an employee’s claim for an
employment-related injury, it creates a contractual obligation, which does not involve the employee directly to pay
the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. §§ 10.300, 10.304;
G.T., Docket No. 18-1369 (issued March 13, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the August 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2019
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
__________________________________________
D.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MARYLAND HEALTH CARE SYSTEM,
Baltimore, MD, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-0591
Issued: September 14, 2016

Case Submitted on the Record

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

On January 23, 2015 appellant filed a timely appeal from an August 13, 2014 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his request for an increased
scheduled award for hearing loss. His appeal is also timely filed from the December 12, 2014
nonmerit decision denying reconsideration. This appeal was docketed as No. 15-0591. After
considering the evidence of record, the Board finds that this case is not in posture for decision.
On April 25, 2003 appellant, then a 54-year-old food service worker, filed an
occupational disease claim alleging that he sustained a loss of hearing due to exposure to noise
from a dishwasher.1 OWCP assigned this case File No. xxxxxx530. On October 15, 2003 it
accepted appellant’s claim for bilateral hearing loss and nondigital hearing aids were approved.
On August 17, 2004 appellant filed a claim for a schedule award. On September 14, 2004
OWCP issued a schedule award for a 45 percent binaural hearing loss. On September 16, 2010
appellant filed another claim for a schedule award. By decision dated May 25, 2011, OWCP
denied appellant’s claim for an additional schedule award as there was no significant change in
appellant’s hearing since the previous award. On January 9, 2013 appellant filed another claim

1

The Board notes that on June 22, 1998 appellant had previously received an award from the Department of
Veterans Affairs for a 10 percent disabling loss due to bilateral hearing loss and a 10 percent disabling loss for
tinnitus, for a combined loss of 20 percent.

for an increased schedule award. By decision dated August 13, 2014, OWCP denied appellant’s
claim. On December 12, 2014 OWCP denied reconsideration of the August 13, 2014 decision.
The Board notes that on May 9, 2013 appellant filed a new claim for a schedule award
due to additional noise exposure. The record indicates that OWCP assigned this claim File No.
xxxxxx779. Although there is no decision in the current record with regard to this case, there are
indications in the record that a decision was issued in File No. xxxxxx779 on February 27, 2014
awarding appellant a schedule award for an additional six percent binaural hearing loss.
On March 4, 2014 the employing establishment requested that OWCP combine the
present case, File No. xxxxxx530, with File No. xxxxxx779. There is no indication in the record
that the cases were ever combined.
The Board finds that it is essential to review the evidence contained in both File Nos.
xxxxxx779 and xxxxxx530 in order to render a full and fair adjudication of the present appeal.
Due to the overlapping nature of the claims, the evidence contained in those case records will
necessarily bear directly on appellant’s claim for compensation. Without reviewing the case
records in both claims, the Board is unable to determine whether OWCP properly considered all
relevant evidence in rendering its decisions. Accordingly, this case will be remanded for OWCP
to consolidate case files xxxxxx530 and xxxxxx779. Reconstruction of the record will be
followed by a de novo decision on the merits of the claim in order to protect appellant’s appeal
rights.
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 13 and December 12, 2014 are set aside and the case is
remanded for further action consistent with this order.
Issued: September 14, 2016
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
2


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

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

Docket No. 15-1150
Issued: May 10, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 27, 2015 appellant, through counsel, filed a timely appeal from a February 20,
2015 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 met its burden of proof to terminate appellant’s wage-loss
compensation effective August 21, 2014.
On appeal, counsel makes numerous arguments against OWCP’s decision to terminate
compensation benefits effective August 21, 2014. He contends that other physicians of record,
other than Dr. Michele Y. Holding, appellant’s attending Board-certified physiatrist, found that
appellant could not return to her regular work duties. Counsel further contends that the
employing establishment misrepresented her full-duty clerk position because a description of this
1

5 U.S.C. § 8101 et seq.

position is inconsistent with the actual requirements of the position. He therefore contends that
the medical evidence of record does not establish that appellant can return to her regular position.
Counsel also contends that OWCP and the employing establishment’s investigatory
practices were improper and in violation of FECA and the Board’s precedent decision in F.S.,2
by allowing the employing establishment’s Office of Inspector General (OIG) to show a
surveillance video to appellant’s treating physician. He states that the facts of the instant case
are identical to the facts in F.S. particularly as Dr. Holding had consistently maintained that
appellant was unable to return to her regular clerk duties and that she had lifting, bending, sitting,
and twisting restrictions prior to contact with OIG. Counsel notes that Dr. Holding’s
December 27, 2013 duty status report (Form CA-17), which OWCP relied upon to terminate
appellant’s compensation, does not support its termination as the report lists her continuing work
restrictions. He further contends that Dr. Holding’s January 3, 2014 statement entirely consists
of hearsay declarations as her statement was written by an agent from OIG based on his
observations of Dr. Holding viewing the videotape.
FACTUAL HISTORY
This case has previously been before the Board.3 In a March 25, 1999 decision, the
Board reversed OWCP’s October 5, 1995 and December 19, 1996 decisions which terminated
appellant’s compensation effective October 5, 1999 for refusal of an offer of suitable work
pursuant to 5 U.S.C. § 8106(c). The Board found that there was an unresolved conflict in the
medical opinion evidence between Dr. Arnold Sokol, an attending Board-certified osteopathic
family practitioner, and Dr. Roy M. Lerman, a second opinion Board-certified physiatrist, as to
whether appellant could perform the duties of the offered modified distribution clerk position.
The facts of the case, as set forth in the prior decision, are hereby incorporated by reference. The
relevant facts are set forth below.
OWCP accepted that on January 19, 1986 appellant, then a 34-year-old clerk, sustained a
lumbosacral sprain and a herniated disc at L3-4 while removing bags from a bulk mail container
at work.
Following the Board’s March 25, 1999 decision, OWCP paid wage-loss compensation
for temporary total disability and provided medical care. She was ultimately placed on the
periodic rolls.
On January 23, 2014 the employing establishment advised OWCP that OIG surveillance
videos had been taken from August 20, 2009 to January 3, 2014 demonstrating that appellant
was physically active at the same time her physicians found that she was restricted and unable to
perform routine daily activities and was totally disabled. In the video, appellant was observed
running with her grandchildren, running alone in a market parking lot on a separate occasion,
bending for extended periods while digging and pulling weeds in her backyard, aggressively
reaching and pulling a pull cord on a lawn mower multiple times, lifting the lawn mower from
2

F.S., Docket No. 11-863 (issued September 26, 2012).

3

Docket No. 97-1400 (issued March 25, 1999).

2

the ground, loading and unloading groceries, bending and reaching from a cart, and unloading
the cart at her car.
The investigative report included, among other things, an interview memorandum dated
December 27, 2013 and signed by Dr. Holding and a witness on January 3, 2014. The OIG agent
who conducted the interview also signed the memorandum, under penalty of perjury, that
Dr. Holding’s statement was given to him on the same day. Dr. Holding was shown highlights
of the investigative surveillance videos by OIG agents. She provided a history of her treatment
of appellant’s back condition. Dr. Holding noted that appellant complained about back pain that
radiated to her legs and her pain had been consistent throughout her office visits without
improvement. She noted that appellant’s pain kept her from work. Appellant advised
Dr. Holding that she was only physically able to wash dishes, wash one load of laundry, and
vacuum for 15 minutes. Based on her review of the surveillance video, however, Dr. Holding
advised that appellant’s condition had not been consistent with what she had viewed on the
video. She showed no restriction while lifting, bending, lifting a lawn mower, and running.
Dr. Holding concluded that appellant was “able to return to her normal position as a clerk with
the [employing establishment] without restriction.”
In a December 27, 2013 Form CA-17 report, Dr. Holding reiterated that appellant had
sustained lower back pain and lumbar radiculopathy due to the January 19, 1986 employment
injuries. On that form she further reported that appellant was capable of performing her full-time
regular manual clerk work, 8 hours a day with restrictions which included lifting up to 75 pounds
intermittently for 6 hours, sitting intermittently 30 minutes, standing, bending, pushing, pulling,
reaching above the shoulder, and operating a mail sorting machine 1 hour, and walking 2 hours a
day.
By letter dated April 3, 2014, OWCP notified appellant that it proposed to terminate her
wage-loss compensation benefits based on Dr. Holding’s December 27, 2013 medical opinion.4
It afforded appellant 30 days to submit additional evidence or argument if she was in
disagreement with the proposed action.
In an April 29, 2014 letter, counsel disagreed with the proposed termination of benefits.
He suggested that any evidence that was procured by an OIG visit with appellant’s attending
physician should not be used against her to terminate her compensation benefits. Counsel cited
the Board’s decision in F.S.5 He also contended that Dr. Holding’s previous medical records
indicated that she agreed appellant had limitations regarding appellant’s ability to return to her
clerk position.
Counsel requested a copy of the physical evidence obtained or produced during the OIG
investigation. By letter dated May 22, 2014, OWCP informed appellant’s counsel that it would
provide him with the investigative discs that the employing establishment’s OIG had provided to
appellant’s treating physician.
4

The Board notes that OWCP’s August 21, 2014 notice only addressed the proposed termination of appellant’s
wage-loss compensation benefits. It did not address her right to receive medical benefits under FECA.
5

F.S., supra note 2.

3

On May 27, 2014 OWCP again notified appellant that it proposed to terminate her wageloss compensation benefits based on Dr. Holding’s medical opinion.
By letter dated August 1, 2014, OWCP sent the OIG’s surveillance compact discs which
covered the period 2009 to 2011 and 2013 for counsel’s review. He was afforded 15 days to
submit comments or explanation on the accuracy of the images. Appellant was copied on the
August 1, 2014 correspondence.
In an August 21, 2014 decision, OWCP terminated appellant’s wage-loss compensation
effective that day. It found that she had failed to submit any evidence to counter the weight
accorded to Dr. Holding’s opinion that she no longer had any disability due to her accepted
January 19, 1986 employment-related injuries.
By letter dated September 2, 2014, appellant, through counsel, requested an oral hearing
before an OWCP hearing representative. In a December 4, 2014 letter, counsel requested that
the request for an oral hearing be changed to a request for a review of the written record.
In a February 20, 2015 decision, an OWCP hearing representative affirmed the
August 21, 2014 decision terminating appellant’s wage-loss compensation. He found that the
weight of the medical evidence regarding this matter continued to rest with the opinion of
Dr. Holding.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 It may not terminate compensation without establishing
that the disability had ceased or that it was no longer related to the employment.7 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.8
ANALYSIS
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation effective August 21, 2014.
OWCP accepted that appellant sustained a lumbar sprain and herniated disc at L3-4 while
in the performance of duty on January 19, 1986. It terminated her wage-loss compensation
effective August 21, 2014 as she no longer had any disability causally related to the accepted
employment injuries. OWCP based its termination on the opinion of Dr. Holding, an attending
Board-certified physiatrist. The Board finds, however, that Dr. Holding’s opinion is insufficient

6

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

7

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
8

J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

4

to meet OWCP’s burden of proof to establish that appellant no longer had any employmentrelated disability.
Dr. Holding, in her December 27, 2013 Form CA-17 report, found that appellant had
lower back pain and lumbar radiculopathy due to the January 19, 1986 employment injuries. In
the December 27, 2013 report she further found that appellant could perform her regular clerk
duties, eight hours a day. She then noted appellant’s limitations, which included lifting up to 75
pounds intermittently 6 hours, sitting intermittently 30 minutes, standing, bending, pushing,
pulling, reaching above the shoulder, and operating a mail sorting machine 1 hour, and walking 2
hours a day. However, to be of probative value, a physician’s opinion must be one of reasonable
medical certainty.9 Dr. Holding’s opinion as to whether appellant had any continuing
employment-related residuals is equivocal in nature and not to a reasonable degree of medical
certainty. Moreover, she failed to provide any medical rationale to support her opinion that
appellant could return to work with no restrictions due to the employment injuries. Dr. Holding
did not relate her diagnosed lumbar radiculopathy condition to the accepted January 19, 1986
lumbar sprain and herniated disc at L3-4 at issue in the present case.10 The Board has
consistently held that a medical opinion not fortified by rationale is of limited probative value.11
The Board therefore finds that OWCP has failed to meet its burden of proof to terminate
appellant’s wage-loss compensation effective August 21, 2014 based on Dr. Holding’s opinion.
It does not establish that her employment-related residuals and disability had ceased.
On appeal, counsel contends that OWCP violated FECA and the Board’s decision in
F.S.,12 by allowing the employing establishment’s OIG to show a surveillance video to
appellant’s treating physician. As the Board has already found that OWCP did not meet its
burden of proof to terminate appellant’s wage-loss compensation effective August 21, 2014, it is
unnecessary to address these further contentions.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation effective August 21, 2014.

9

See Beverly R. Jones, 55 ECAB 411 (2004).

10

Where a claimant claims that a condition not accepted or approved by OWCP was due to an employment
injury, the claimant bears the burden of proof to establish that the condition is causally related to the employment
injury through the submission of rationalized medical evidence.
T.M., Docket No. 08-975 (issued
February 6, 2009).
11

A.D., 58 ECAB 149 (2006).

12

F.S., supra note 2.

5

ORDER
IT IS HEREBY ORDERED THAT the February 20, 2015 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 10, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.O., Appellant
and
SOCIAL SECURITY ADMINISTRATION, SSA
REGION IV, RPO HUMAN RESOURCES
OFFICE, Atlanta, GA, Employer
__________________________________________

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

Docket No. 15-1110
Issued: September 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 20, 2015 appellant filed a timely appeal from a December 18, 2014 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 appellant met her burden of proof to establish an injury in the
performance of duty on October 31, 2013, as alleged.
FACTUAL HISTORY
On November 7, 2013 appellant, then a 52-year-old social insurance specialist claims
representative, filed a traumatic injury claim (Form CA-1) alleging that on October 31, 2013 she
1

5 U.S.C. § 8101 et seq.

sustained an asthma attack due to exposure to dust from a faulty vacuum and chemicals which
irritated her lungs while she was performing her job duties. She stated that this exposure caused
her to have an asthma attack resulting in a hospital stay on November 5 and 6, 2013.
In support of her claim, appellant submitted a November 5, 2013 prescription note and a
Memorial Hospital Admission Note listing her medications at discharge.
By letter dated February 6, 2014, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was directed to submit this evidence within 30 days. In another letter of the same
date, OWCP requested that the employing establishment respond to questions pertaining to the
factual circumstances surrounding the incident.
In a February 26, 2014 narrative statement, appellant responded to OWCP’s
questionnaire stating that on October 31, 2013 she was processing a claim at her cubicle at
approximately 3:00 pm. She stated that the cleaning crew would come in around that time, but
usually did not vacuum while the staff was interviewing due to noise and dust that the vacuum
emitted. Appellant explained that the vacuum did not work properly and emitted dust from the
canister. On this day, the cleaning man vacuumed the area behind her and she immediately felt
as if she was choking, she began to cough violently, and had to use her rescue pump Albuterol.
Appellant then went to the bathroom to wash her face but the situation worsened because a
perfume based product was used to clean the bathroom. She explained that the cleaning crew
was not supposed to use these products and management had designated a list of approved
products. Appellant then went back to her desk around 3:30 pm and a fumigator was spraying
the exterior of her desk for ants, which was not supposed to be done until the staff left the office
for the day. This caused her chest to tighten and required the use of her inhaler again. Appellant
stated that on the afternoon of October 31, 2013 she was exposed to chemicals and fumes for
approximately 30 minutes at her cubicle and in the ladies bathroom.
Appellant stated that her condition continued to deteriorate as days passed. The earliest
appointment she could get with her treating physician, Dr. Zevy Landman, a specialist in allergy
and immunology, was on November 5, 2013. At the appointment, Dr. Landman was concerned
about her condition and referred her to the emergency room (ER). Appellant sought treatment at
the ER on that date and was required to stay overnight due to difficulty stabilizing her condition.
She was treated with a high dosage of steroids and released on November 6, 2013. Appellant
stated that she had a history of asthma since she was 27 years old, if subjected to dust or any
chemical smell, but her condition was controlled when she stayed away from dust and used her
inhaler twice daily for prevention. She was not a smoker.
In support of her claim, appellant submitted a November 14, 2014 return to work note for
asthma exacerbation and a November 22, 2013 Allergen Lab Report.
By decision dated March 14, 2014, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish that she sustained an injury because she did not
submit any medical evidence containing a medical diagnosis in connection with the accepted
October 31, 2013 employment exposure.

2

On April 10, 2014 appellant requested an oral hearing before the Branch of Hearings and
Review.
In a February 27, 2014 letter, the employing establishment stated that appellant was
performing her regular duties as a claims representative on the date of incident. A position
description was provided. The employing establishment further explained that, on the day in
question, the cleaning crew began to operate the vacuum in appellant’s area while she was
working. The employing establishment stated that it did not agree with her allegations because
she was asked whether she wanted the cleaning crew to continue and she responded yes. It noted
that the vacuum cleaner did emit an odor on the day that it was being used around appellant’s
desk and the landlord had since replaced it with a new vacuum. The following day appellant
became very sensitive to the cleaning materials that were used in the women’s restroom. The
landlord used the following cleaning supplies: Aroma Shine Glass Cleaner; Lysol Power and
Fresh Multi-Surface Cleaner, and CLR Bath and Kitchen Cleaner.
In a November 5, 2013 medical report, Dr. Landman reported that appellant had asthma
since 1982 which worsened with odors and weather changes. He explained that last Friday her
office was cleaned with Clorox and her asthma was exacerbated by perfumes and possibly dust.
Dr. Landman noted that the asthma was not food or animal related. He diagnosed asthma and
allergic rhinitis due to other allergen and referred her to the ER.
In a November 5, 2013 ER report, Dr. Thomas Logan, Board-certified in emergency
medicine, reported that appellant presented to the ER with an asthma attack and complained of
wheezing, lightheadedness, and chest tightness which began five days ago. Appellant was
admitted and diagnosed with asthma exacerbation. Review of chest x-rays revealed normal
findings. Appellant was treated with an IV and steroids and released the following day by
Dr. Jaynier Moya Hecchevaria, Board-certified in internal medicine.
In a November 14, 2013 report, Precy Kochiparambath, a physician assistant, reported
that appellant came in for a follow-up appointment for an episode which began on October 31,
2013 after she was exposed to dust at work from vacuuming and also exposed to fumigating the
following day. Lab reports dated November 5 and 14, 2013 were submitted.
A December 3, 2013 attending physician’s report was also submitted from an unspecified
allergy and immunology specialist. The signature was not legible. The report noted that
exposure to dust/vacuum at work on October 31, 2013 resulted in asthma symptoms which
worsened the next day after fumigating at work. Findings were made of bronchospasm after
exposure to fumes, noting that appellant had a history of asthma which may have been triggered
by exposure to fumes.
A hearing was held on November 12, 2014 where appellant testified that her condition
was caused by her work exposure. She was instructed that fact of injury had been established
and advised of the medical evidence needed to establish causal relationship. The record was held
open for 30 days.
Following the hearing, appellant submitted a November 24, 2014 medical report from
Dr. Cheryl Case-Diaz, Board-certified in internal medicine. Dr. Case-Diaz stated that she had

3

been treating appellant since May 1993 and appellant was known to suffer with asthma. She
explained that this was a medical condition in which dust or chemical exposure can trigger an
acute episode.
By decision dated December 18, 2014, the Branch of Hearings and Review affirmed the
March 14, 2014 decision, as modified, finding that appellant established a firm medical
diagnosis. It denied the claim, however, finding that the medical evidence of record failed to
establish that the diagnosed condition was causally related to the accepted October 31, 2013
employment exposure.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; 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.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.5 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. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,

2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, supra note 2.

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

4

its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.6
ANALYSIS
OWCP accepted that appellant was exposed to chemicals and dust on October 31, 2013
while in the performance of duty. It denied her claim, however, because it found she had not met
her burden of proof to establish a causal relationship between the employment exposure and her
pulmonary condition. The Board finds that the medical evidence of record is insufficient to
establish that appellant sustained an injury causally related to the October 31, 2013 employment
exposure.
In a November 5, 2013 medical report, Dr. Landman reported that appellant had been
diagnosed with asthma since 1982. The condition worsened with odors and weather changes.
Dr. Landman explained that on the day in question appellant’s office has been cleaned with
Clorox. In addition, appellant’s asthma was exacerbated by perfumes and possibly dust.
Dr. Landman diagnosed asthma and allergic rhinitis due to other allergen and sent appellant to
the ER.
The Board finds that the opinion of Dr. Landman is not well rationalized. While
Dr. Landman provided a sufficient diagnosis of asthma and allergic rhinitis, he failed to explain
how appellant’s condition has been exacerbated other than generally suggesting perfumes,
possibly dust, and by noting that her office was cleaned with Clorox. This vague description is
not entirely consistent with her allegations regarding the history of her injury. For example,
appellant did not allege that her office was cleaned with Clorox and she alleged that she was
definitely exposed to dust emitted from a vacuum. Moreover, Clorox is not specifically
mentioned by the employing establishment when the cleaning materials were identified.
The need for a medical rationale on causal relationship is particularly important in view
of appellant’s history of asthma.7 Without explaining how specific exposures caused or
contributed to the diagnosed conditions, Dr. Landman’s opinion is insufficient to meet
appellant’s burden of proof.8
Dr. Logan and Dr. Hecchevaria’s November 5 and 6, 2013 ER reports are also
insufficient because they failed to provide any opinion that appellant’s pulmonary condition was
caused by her work.9 Without medical reasoning explaining how appellant’s employment

6

James Mack, 43 ECAB 321 (1991).

7

W.L., Docket No. 13-1727 (issued February 4, 2014).

8

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014); K.M.,
Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
9

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

5

exposure might have caused or exacerbated her asthma, the ER reports are insufficient to meet
her burden of proof.10
Dr. Case-Diaz’ November 24, 2014 report is also insufficient because she provided no
diagnosis which could be related to an incident on October 31, 2013.11 Rather, she generally
reported that appellant was known to suffer from asthma which could be triggered by dust or
chemical exposure. Without a diagnosis and explanation on causation, Dr. Case-Diaz’ does not
support that employment exposure caused an injury. Her report is not probative because it lacks
a clear diagnosis and fails to adequately explain the cause of appellant’s condition.12
The remaining medical evidence is also insufficient. Appellant submitted documents that
were illegibly signed or did not contain signatures. The author of those papers could not be
determined. Consequently, it cannot be discerned whether a physician signed or authored the
documents.13 Mr. Kochiparambath’s November 14, 2013 report is also insufficient to establish
appellant’s claim because the author was not a physician. Registered nurses, physical therapists,
and physician assistants, are not considered physicians as defined under FECA and their medical
opinions are of no probative value.14
The Board finds that the medical evidence does not establish that appellant’s pulmonary
condition is causally related to her October 31, 2013 employment exposure. An award of
compensation may not be based on surmise, conjecture, or speculation. Neither the fact that
appellant’s condition became apparent during a period of employment nor the belief that her
condition was caused, precipitated, or aggravated by her employment is sufficient to establish
causal relationship.15
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between the accepted October 31, 2013 employment exposure and appellant’s
pulmonary condition. Thus, appellant has failed to meet her burden of proof.16 She 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.

10

C.B., Docket No. 08-1583 (issued December 9, 2008).

11

H.A., Docket No. 13-1265 (issued November 4, 2013).

12

Id.

13

See also Sheila A. Johnson, 46 ECAB 323, 327 (1994); see Merton J. Sills, 39 ECAB 572, 575 (1988).

14

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. FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005).
15

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

16

Supra note 7.

6

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an injury in
the performance of duty on October 31, 2013, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the December 18, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 10, 2015
Washington, DC

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

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

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

7