United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF THE ARMY, CHEMICAL
MUNITIONS COMMAND, BLUE GRASS
ARMY DEPOT, Richmond, KY, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0229
Issued: October 9, 2020

Case Submitted on the Record

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

JURISDICTION
On November 7, 2019 appellant, through counsel, filed a timely appeal from an August 9,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from OWCP’s last merit decision, dated May 1, 2019, to the filing of this

1

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

appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this claim.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 11, 2018 appellant, then a 54-year-old toxic material handler/leader, filed
an occupational disease claim (Form CA-2) alleging pulmonary complications from the inhalation
of vapors from toxic agent “HD mustard gas.” He noted that he first realized his condition on
October 30, 2017, and realized its relation to his federal employment on November 2, 2017.
Appellant explained that contaminated material was accidently sent to his station without prior
notification of the proper level of protective dress needed to handle the materials and prevent the
inhalation of the toxic mustard gas vapors.
In a development letter dated September 18, 2018, OWCP advised appellant that additional
factual and medical evidence was needed to establish his claim. Appellant was asked to submit a
rationalized medical opinion which explained how a specific exposure at work caused or
contributed to a diagnosed medical condition. To substantiate the factual elements of his claim,
appellant was asked to complete a questionnaire. OWCP afforded appellant 30 days to submit the
necessary evidence.
OWCP thereafter received an undated statement, from J.R., Field Operations Division
Chief, who advised that appellant and a coworker’s potential exposure may have occurred while
handling hazardous waste that was contaminated with liquid mustard gas. He noted that, while
preparing waste for the monitoring process in an open air area located next to the monitoring
facility, appellant was not wearing personal protective equipment, except government-issued
cotton undergarments. J.R. indicated that, at the start of the operation, both appellant and the
coworker had recounted to him that they thought they smelled something. He further indicated
that some of the double-bagged waste items were found to be contaminated, once the items were
monitored inside the monitoring facility.
OWCP also received a copy of a notification of personnel action (Form SF-50), which
indicated that appellant was employed as a toxic materials handler/explosive inspector leader, and
a position description for appellant’s toxic material handler/leader position.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the August 9, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

2

By decision dated October 26, 2018, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the exposure to vapors from toxic agent HD
mustard gas occurred as alleged. It noted that appellant had not submitted a statement detailing
his specific exposure.
On November 12, 2018 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review. He testified that he was exposed to
liquid mustard gas vapors as he was not wearing a mask while handling the hazardous material,
which was contaminated. Appellant testified that ordinarily when he worked with hazardous waste
bags he did not need to be in a higher level of dress (i.e., no self-contained breathing apparatus) as
the bags were supposed to be hazard free. He testified that on October 30, 2017 he became ill and
called in sick the next day as he could not breathe. When he returned to work around the first or
second of November, he knew he was “bit” by the mustard agent after learning from his
supervisors that “the bags and the readings were hotter than a match.” Appellant testified that he
was exposed to mustard agent vapors as the “igloo” where the mustard agent came from was warm
and the mustard agent would not cool off by the time he moved them.
In a narrative statement dated October 16, 2018, appellant noted that, during the afternoon
that the incident occurred, the outdoor temperature was near 57 degrees. Therefore, when the
hazardous waste bags were removed from a warm “igloo,” they did not freeze, rather the materials
remained as vapor.
Following the hearing, OWCP received a November 14, 2017 Memorandum for Record
from Drs. F.O. and J.B, employing establishment officials, related to the October 30, 2017
incident. Appellant indicated that while transporting a pallet, the plastic wrapping was pierced by
a metal band. No mustard agent was found following testing on October 30, 2017. On October 31,
2017 senior staff reported mustard agent levels inside the plastic wrapping. He concluded that the
preponderance of the evidence indicated that since temperatures were below 57 degrees on the
morning of October 30, 2017, the staff moved solid phase mustard on the wooden pallet wrapped
in plastic, which triggered sensors once it warmed and entered the vapor phase.
OWCP received appellant’s employing establishment health unit records dating from
August 5, 2008 through August 6, 2018. An August 5, 2008 note reported a finding of severe
airway obstruction. In May30, July 2, and August 6, 2018 notes, a diagnosis of chronic obstructive
pulmonary disease (COPD) was indicated.
In an October 3, 2018 report, a nurse at a Veterans’ Administration clinic noted that on
September 7, 2018 appellant was diagnosed with chronic obstructive pulmonary disease (COPD).
In a memorandum dated November 6, 2018, S.J., an employing establishment deputy
commander, noted that a mustard agent was stored at the employing establishment. On
October 30, 2017, while working outdoors, appellant and another employee moved double bagged
waste contaminated with small amounts of mustard agent. While one of the bags was breached,
the cold temperatures that day made the likelihood of any quantity of agent vapor reaching
appellant’s lungs not credible.

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By decision dated May 1, 2019, an OWCP hearing representative affirmed the October 26,
2018 decision. The hearing representative accepted that on October 30, 2017 appellant was
required to move approximately 30 bags of liquid mustard agent from a truck to a storage shed,
but found that he failed to supply sufficient factual evidence to support his actual exposure to
mustard agent.
On May 20, 2019 appellant, through counsel, requested reconsideration. In support
thereof, appellant submitted a November 27, 2007 abdominal computerized tomography (CT)
scan; an April 17, 2019 report from Dr. John Watts, a Board-certified family practitioner; medical
records from Dr. Dipti Baral, an internist and pulmonologist, dated April 18 through 22, 2019;
function tests/spirometry reports dated August 5, 2009, July 28 and August 4, 2010, August 6
and 13, 2012, August 13, 2014, and March 16, 2018; a November 1, 2017 health record from Blue
Grass Occupational Health Clinic pulmonary clinic; and a May 29, 2019 letter from Brian Merrick,
APRN, an advanced practice registered nurse.
Also received was an undated statement from appellant addressed to his congressional
representative, a June 26, 2019 privacy release form, and a July 9, 2019 congressional letter. In
his undated statement addressed to his congressional representative, appellant described the events
of October 30, 2017. He indicated that he and a coworker were accidently exposed to a high
concentration of HD mustard agent vapors for roughly 20 minutes on October 30, 2017 while
handling hazardous waste during a leaker isolation containment at work. Appellant alleged that
the waste was not properly monitored prior to coming to him to be processed. He indicated that
he had no knowledge that the hazardous waste was “hot” until it was tested the next day in the
monitoring shed. When appellant returned to work on November 1, 2017, he found out that the
readings were “off the chart hot.” It was at that point he realized that he had been exposed to
mustard agent vapors. Appellant indicated that after his exposure he experienced shortness of
breath, which he never had before. He alleged that a safety report was not completed and an
investigation was never conducted.4
By decision dated August 9, 2019, OWCP denied further merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128(a). It found that his request for reconsideration neither raised
substantive legal questions, nor included new and relevant evidence. OWCP noted that the only
evidence submitted on reconsideration was medical in nature.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain

4

On July 30, 2019 OWCP issued a response to the congressional letter.

5
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).

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limitations in exercising its authority.6 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.7
A timely request for reconsideration, must set forth arguments and contain evidence that
either: (i) shows that OWCP erroneously applied or interpreted a specific point of law; (ii)
advances a relevant legal argument not previously considered by OWCP; or (iii) constitutes
relevant and pertinent new evidence not previously considered by OWCP.8 When a timely request
for reconsideration does not meet at least one of the above-noted requirements, OWCP will deny
the request without reopening the case for a review on the merits.9
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
In the August 9, 2019 decision, OWCP noted that the only evidence submitted on
reconsideration was medical in nature whereas the issue was factual. The case record indicates,
however, that with his request for reconsideration, appellant submitted an undated statement that
was addressed to a congressional representative, which provided a further in-depth factual
description of the October 30, 2017 employment exposure to mustard agent vapors.
In the case of William A. Couch,10 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by it before the
final decision is issued. It is crucial that OWCP address all relevant evidence received prior to the
issuance of its final decision, as the Board’s decisions are final with regard to the subject matter
appealed.11
The Board thus finds that this case is not in posture for decision, as OWCP did not review
the factual undated statement submitted on reconsideration. On remand OWCP shall review all
evidence of record and, following any further development as it deems necessary, it shall issue an
appropriate decision.

6

20 C.F.R. § 10.607.

7
Id. § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
8

20 C.F.R. § 10.606(b)(3).

9

Id. § 10.608(a)(b).

10

41 ECAB 548 (1990); see also O.G., Docket No. 19-1777 (issued March 25, 2020).

11

See G.T., Docket No. 19-1619 (issued May 22, 2020).

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CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of the
merits of his claim.
ORDER
IT IS HEREBY ORDERED THAT the August 9, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: October 9, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, CHARLOTTE-DOUGLAS
INTERNATIONAL AIRPORT, Charlotte, NC,
Employer
__________________________________________

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

Docket No. 16-0437
Issued: May 23, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 8, 2016 appellant, through counsel, filed a timely appeal from a December 2,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed between the last OWCP merit decision dated July 25, 2014 to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the
decision. 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly determined that appellant’s reconsideration request
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On April 8, 2011 appellant, then a 41-year-old transportation security officer (screener),
filed a traumatic injury claim (Form CA-1) alleging that on April 7, 2011 a cart hit the podium
where she was working causing the podium to strike her lower extremities. OWCP accepted her
claim for bilateral knee contusions. Appellant received continuation of pay benefits from April 8
to May 19, 2011. On May 19, 2011 she returned to her date-of-injury position in a full-duty
capacity.
On September 12, 2013 appellant filed a recurrence claim (Form CA-2a) alleging a
recurrence of disability as of September 10, 2013 due to the April 7, 2011 accepted injury. She
was seen on September 10, 2013 by Dr. Jerry Withrow, Board-certified in family medicine, for
knee pain. Dr. Withrow excused appellant from work on September 10 and 11, 2013.
In a September 18, 2013 letter, OWCP notified appellant of the additional factual and
medical evidence necessary to establish her recurrence claim and afforded her 30 days within
which to submit the requested evidence. Appellant did not respond to this request.
By decision dated October 21, 2013, OWCP denied the recurrence claim. On
October 30, 2013 it received appellant’s request for a telephonic hearing before a hearing
representative with the Branch of Hearings and Review. A hearing was held on May 12, 2014.
OWCP received a May 9, 2014 medical report and work status form from Dr. Scott Burbank, an
orthopedic surgeon. Dr. Burbank related that radiographs from a prior evaluation showed no
significant bony abnormalities, and reasonably well-maintained joint spaces, but the May 5, 2014
magnetic resonance imaging (MRI) scan showed a small effusion, posterior cruciate ligament
cyst, with lateral patellar tilt and mild subluxation consistent with potential patellar tendon lateral
femoral condyle flexion syndrome. He related that he had discussed surgery with appellant.
Dr. Burbank related that appellant’s current condition was related to her “fall” because she had
no prior knee pain.3
By decision dated July 25, 2014, an OWCP hearing representative affirmed the
October 21, 2013 decision. He found the medical evidence of record failed to establish an
objective change in the nature and extent of appellant’s injury-related bilateral knee contusions
that would cause disability or require medical treatment on or after September 10, 2013.
On August 21, 2015 OWCP received appellant’s request for reconsideration. Appellant
contended that her current knee condition was related to the April 17, 2011 work injury. She
requested that OWCP review the October 9, 2014 medical note from OrthoCarolina Medical
Center as Dr. Burbank had related her current MRI scan findings to her 2011 work injury.

3

Dr. Burbank’s report appears to recite an incorrect history of injury.

2

In an October 9, 2014 report, Dr. Burbank advised that he had previously discussed with
appellant during her May 9, 2014 evaluation that her knee symptoms and MRI scan findings
were caused by her April 7, 2011 injury or at least aggravated by this injury. He noted that she
had tried appropriate nonsurgical measures for the last three and a half years and surgical options
were discussed. Dr. Burbank noted that appellant had no significant pain prior to this injury and
he opined that this injury was to blame for her persistent symptoms. He noted that in 2011 she
had findings of a smaller PCL cyst, some lateral patellar subluxation, but her MRI scan showed
worsening findings.
In a July 30, 2015 report, a Tony Connot noted a history of appellant’s right knee injury
and that changes were seen on her 2014 MRI scan. Examination findings of the right knee were
provided.
On July 28, 2015 Richard Richardson, physician assistant, reported appellant’s
complaints of right low back, buttock, and leg pain with an onset date of July 24, 2015 and
diagnosed lumbar sprain and strain of thoracic spine.
Appellant also resubmitted physical therapy notes previously of record.
By decision dated December 2, 2015, OWCP denied appellant’s request for
reconsideration because it was untimely filed and did not demonstrate clear evidence of error.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a
benefit unless the application for review is received within one year of the date of that decision.4
The one-year period begins on the date of the original decision. However, a right to
reconsideration within one year accompanies any subsequent merit decision on the issues. This
includes any hearing or review of the written record decision, any denial of modification
following reconsideration, any merit decision by the Board and any merit decision following
action by the Board.5
OWCP regulations state that it will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in section 10.607 of OWCP regulations, if
the claimant’s application for review demonstrates clear evidence of error on the part of OWCP.6
In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record.7

4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.b(1) (October 2011).

6

Id. at § 10.607(b) (2011); Cresenciano Martinez, 51 ECAB 322 (2000).

7

See Alberta Dukes, 56 ECAB 247 (2005).

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To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error. It is not enough to merely show that the evidence could be
construed so as to produce a contrary conclusion. This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP. To
demonstrate clear evidence of error, the evidence submitted must be of sufficient probative value
to prima facie shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.8
OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.9 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.10
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. The most recent OWCP merit decision in this case was issued on
July 25, 2014. Appellant’s request for reconsideration was received by OWCP on August 21,
2015, more than a year after the July 25, 2014 merit decision. Therefore, it was untimely filed.
Consequently, appellant must demonstrate clear evidence of error by OWCP in denying her
request for a merit review of her claim.
The Board finds that appellant has failed to demonstrate clear evidence of error. In the
July 25, 2014 decision, an OWCP hearing representative affirmed the October 21, 2013 denial of
appellant’s recurrence claim. He found the medical evidence of record did not establish that
there was an objective change in the nature and extent of appellant’s injury-related bilateral knee
contusions on or about September 10, 2013 that necessitated her stopping work or receiving
medical treatment. Furthermore, the medical record was devoid of a rationalized medical
opinion from a physician, who on the basis of a complete and accurate factual and medical
history, provided an explanation of how and why the accepted conditions due to the April 7,
2011 workplace injury worsened such that appellant became disabled for work on
September 10, 2013. In her untimely reconsideration request, appellant expressed her belief that
her current right knee condition was related to the April 7, 2011 work injury.
8

Robert G. Burns, 57 ECAB 657 (2006).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011);
James R. Mirra, 56 ECAB 738 (2005).
10

Nancy Marcano, 50 ECAB 110 (1998).

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With respect to the medical evidence submitted with the application for reconsideration,
appellant has failed to demonstrate clear evidence of error. In his October 9, 2014 report,
Dr. Burbank noted that he previously discussed during appellant’s May 9, 2014 evaluation that
her knee symptoms and MRI scan findings were consistent with her April 7, 2011 employment
injury. He also indicated that prior to this injury, appellant had no significant pain and this injury
was to blame for her persistent symptoms. Dr. Burbank related that in 2011 she had findings of a
smaller PCL cyst, some lateral patellar subluxation but her MRI scan showed worsening
findings. His October 9, 2014 report was substantially similar to his prior report of May 9, 2014,
which was previously reviewed. Neither report addressed the accepted condition of bilateral
knee contusions, both reports noted diagnoses which were not accepted as causally related to the
accepted injury. To demonstrate clear evidence of error, the evidence submitted 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 OWCP’s decision.11 A detailed, wellrationalized medical report which would have required further development if submitted prior to
issuance of the denial decision, does not constitute clear evidence of error.12 To demonstrate
clear evidence of error, it is insufficient merely to show that the evidence could be construed so
as to produce a contrary conclusion. The term clear evidence of error is intended to represent a
difficult standard.13
Appellant also submitted a July 30, 2015 report from Mr. Connot and a July 28, 2015
report from Richard Richardson, a physician assistant. These individuals however are not
considered physicians under FECA.14 Thus, this evidence is therefore of no probative value and
does not demonstrate clear evidence of error or raise a substantial question as to the correctness
of OWCP’s decision.
None of the evidence submitted manifests on its face that OWCP committed an error in
denying appellant’s recurrence claim. Appellant has not otherwise submitted evidence of
sufficient probative value to raise a substantial question as to the correctness of OWCP’s merit
decision. Thus, the evidence is insufficient to demonstrate clear evidence of error.
On appeal, counsel argues that the decision is contrary to fact and law. However, for the
reasons set forth above, appellant did not meet her burden of proof to establish that her untimely
reconsideration request demonstrated clear evidence of error in OWCP’s July 25, 2014 merit
decision. The Board affirms OWCP’s December 2, 2015 decision.

11

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

12

See G.B., Docket No. 16-319 (issued April 16, 2016).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (October 2011); see
Dean D. Beets, 43 ECAB 1153, 157-58 (1992).
14

5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law).
See George H. Clark, 56 ECAB 162 (2004); a physician assistant is not a physician as defined by FECA at 5 U.S.C.
§ 8101(2) and any report from such individual does not constitute competent medical evidence.

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the December 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 13-182
Issued: May 23, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 31, 2012 appellant timely appealed an October 1, 2012 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 claim.
ISSUE
The issue is whether appellant has established continuing disability as of March 19, 2010
causally related to her accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board. In a December 9, 2002 decision, the
Board reversed a February 21, 2002 OWCP decision which terminated appellant’s compensation

1

5 U.S.C. § 8101 et seq.

benefits effective July 15, 2001.2 In a March 1, 2011 decision, the Board affirmed a March 18,
2010 OWCP decision which terminated her wage-loss and medical benefits effective March 19,
2010 on the grounds that the accepted conditions had resolved without residuals. The Board
found the weight of the medical opinion evidence rested with Dr. Steven B. Fuller, an osteopath
and Board-certified internist and an OWCP referral physician, who found that the accepted back
and neck conditions had ceased, the work-related aggravation of appellant’s condition had
resolved, and her continued mechanical back pain symptoms represented chronic lumbar strain
symptoms which were associated with her preexisting degenerative condition, which continued
to deteriorate because of the associated degenerative processes as well as her overall
deconditioning. The facts of the case as set forth in the Board’s prior decision are incorporated
by reference.3
On March 28, 2011 appellant requested reconsideration of the March 1, 2011 decision.
In a March 24, 2011 letter, she argued that Dr. Fuller, the second opinion examiner, never gave
her any kind of examination or asked any questions of her. Rather, Dr. Fuller walked into the
room, introduced himself, shook her hand and told her he did not have to examine her as he
totally agreed with her doctors in regards to the injury that exacerbated her osteoarthritis
condition.
In a March 22, 2011 report, Dr. David H. Sikes, an attending Board-certified internist,
stated that appellant continued to have ongoing severe back pain with exacerbation and was
totally disabled. While appellant had a component of underlying degenerative changes, her work
injury caused a worsening of her condition with a significant deterioration in status which
resulted in her disability. Dr. Sikes opined that appellant was not following the natural course
from her degenerative disease and there was a worsening of her condition associated with her
work injury.
By decision dated May 18, 2011, OWCP denied modification of the March 1, 2011
decision.
In a September 28, 2011 letter, appellant, through her authorized representative,
requested reconsideration. He discussed the prior second opinion examination performed by
Dr. Robert A. Sparks, a Board-certified orthopedic surgeon, in July 2008, which he contended
OWCP ignored.4 Dr. Sparks stated that, although appellant’s lumbar and cervical strain/sprain
had resolved, he opined that her back problem was due to degenerative disease, permanently
aggravated by the December 24, 1991 work injury, and that she is considered permanently
disabled from working. The representative also noted that appellant’s treating physician,
Dr. Sikes, and the second opinion examiner, Dr. Fuller, are of equal degree and argued that more
weight should be given to Dr. Sikes’ report.
2

Docket No. 02-1030 (issued December 9, 2002).

3

Docket No. 10-1235 (issued March 1, 2011). OWCP accepted appellant’s 1991 claim, where she tripped over
catalogs, for a cervical and lumbar strain. After a period of disability appellant returned to work, but stopped again
in October 1993. Currently, she has not returned to work. Appellant’s medical history is notable for
hypercholesterolemia, osteoarthritis and spinal degenerative disc disease.
4

Dr. Sparks’ report is noted in the Board’s March 1, 2011 decision. Id.

2

In a September 14, 2011 report, Dr. Samir F. Bishai, an orthopedic surgeon Boardcertified in emergency medicine, noted the history of the December 24, 1991 work injury and her
course of treatment.5 He noted that she also had mild back pain prior to the December 24, 1991
work injury. Dr. Bishai opined that the December 24, 1991 work injuries caused appellant to
sustain a permanent aggravation of her preexisting arthritis of the dorsolumbar spine. He stated
that, for all the years that followed the work injury, appellant continued with the aggravation of
the preexisting condition and she continued to have symptoms of pain in her back. Dr. Bishai
stated that his opinion was based on a reasonable degree of medical probability which was
reached based on a complete history, complete physical examination, which included the
presence of objective findings and the review of her x-rays, both old and recent. He also agreed
with Dr. Sparks’ opinion that appellant’s injuries of December 24, 1991 permanently aggravated
her preexisting condition because she continued to have symptoms up to the present time and
would probably continue to have this aggravation for the rest of her life.
By decision dated December 8, 2011, OWCP denied modification of the May 18, 2011
decision.
In a September 12, 2012 letter, appellant’s representative requested reconsideration. He
argued that Dr. Fuller’s opinion was of less probative value as he was an osteopath.
In a July 31, 2012 report, Dr. Bishai presented examination findings and noted that he
reviewed appellant’s medical file. He noted that June 20, 2012 lower extremity nerve
conduction studies showed findings suggestive of a moderate degree of axonal polyneuropathy
as well as a possibility of some kind of entrapment at the low level of the lumbar spine involving
S1-S2 segments and herniated lumbar disc at the levels of T11-T12, T12-L1, L1-L2, and L2-L3.
Dr. Bishai diagnosed chronic lumbosacral strain; degenerative arthritis of the lumbar spine;
degenerative disc disease and degenerative arthritis of the cervical spine; herniated lumbar discs
at T11-T12, T12-L1, L1-L2, and L2-L3; anterolisthesis of L3 on L4, L4 on L5, and L5 on S1;
lumbar disc syndrome; and bilateral radiculopathy right and left legs. He stated that both the
magnetic resonance imaging (MRI) scan and the nerve conduction studies of the lower
extremities prove and show that appellant has a chronic degenerative condition of the discs and
the lumbar spine that she had for many years since the December 24, 1991 work injury.
Dr. Bishai opined that all of appellant’s current symptoms and objective findings were the result
of the December 24, 1991 work injury and she had permanent aggravation of her preexisting
back and neck conditions as well as accelerated development of and increase in the degenerative
arthritis condition in the spine which led her to be disabled and unable to work for many years
following the work injury.
By decision dated October 1, 2012, OWCP denied modification of its prior decisions.

5

Dr. Bishai’s September 14, 2011 report is incomplete as page three of the four-page report is missing.

3

LEGAL PRECEDENT
Once OWCP has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.6 It may not terminate compensation without establishing
that the disability ceased or that it was no longer related to the employment.7 After termination
or modification of compensation benefits, clearly warranted on the basis of the evidence, the
burden for reinstating compensation benefits shifts to the employee. In order to prevail, the
employee must establish by the weight of the reliable, probative and substantial evidence that he
or she had an employment-related disability which continued after termination of compensation
benefits.8
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.9 To establish a causal relationship between the
condition claimed, as well as any attendant disability and the employment event or incident, an
employee must submit rationalized medical evidence based on a complete medical and factual
background supporting such a causal relationship.10 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical
evidence.11 Rationalized medical evidence is evidence which includes a physician’s rationalized
medical opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by rationalized medical evidence explaining
the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant.12 Neither the fact that a disease or condition manifests itself
during a period of employment, nor the belief that the disease or condition was caused or
aggravated by employment factors or incidents, is sufficient to establish causal relationship.13
Section 8123(a) of FECA provides in pertinent part: If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.14 When there are
6

I.J., 59 ECAB 408 (2008); Anna M. Blaine, 26 ECAB 351, 353-54 (1975); see Fred Foster, 1 ECAB 127, 13233 (1948).
7

Id.

8

I.J., supra note 6; Gary R. Sieber, 46 ECAB 215, 222 (1994); see Wentworth M. Murray, 7 ECAB 570,
572 (1955).
9

Jaja K. Asaramo, 55 ECAB 2000 (2004).

10

Jennifer Atkerson, 55 ECAB 317 (2004).

11

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

Leslie C. Moore, 52 ECAB 132 (2000).

13

Ernest St. Pierre, 51 ECAB 623 (2000).

14

5 U.S.C. § 8123(a); see T.C., Docket No. 08-2112 (issued June 12, 2009).

4

opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.15
ANALYSIS
The Board previously determined that OWCP met its burden of proof to terminate
appellant’s compensation as of March 19, 2010. The Board found that the weight of the medical
evidence rested with the reports of Dr. Fuller who served as an OWCP referral physician, and
there was no probative narrative report on the issue of whether residuals of the accepted
conditions continued to disable appellant. Thereafter, the burden of proof shifted to appellant to
establish employment-related disability after that date.16 The medical reports from Drs. Sikes
and Bishai, as noted below, fail to discuss the accepted cervical and lumbar strain conditions.17
The Board finds the case is not in posture for a decision.
Appellant submitted medical evidence from Drs. Sikes and Bishai. The physicians
attributed the deterioration in her preexisting osteoarthritis condition and total disability to the
December 24, 1991 work injury. OWCP did not accept a diagnosis of aggravation of preexisting
degenerative disc disease. It relied on Dr. Fuller’s opinion that the employment-related
aggravation of appellant’s preexisting osteoarthritis condition had resolved, as she had reported
degenerative lumbar-type pain prior to her injury and that her overall condition continued to
deteriorate due to associated degenerative processes and her overall deconditioning.
In a March 22, 2011 report, Dr. Sikes indicated that appellant has a component of
underlying degenerative changes and opined that exacerbation from her work injury caused
worsening of her pain with a significant deterioration in status and resulted in her total disability.
He further opined that she was not following the “natural history” type of course from her
degenerative disease. In his September 14, 2011 and July 31, 2012 reports, Dr. Bishai opined
that the December 24, 1991 work injuries caused appellant to suffer permanent aggravation of
her preexisting condition of arthritis of the dorsolumbar spine. He stated that the December 24,
1991 work injury permanently aggravated her preexisting condition because she continues to
have symptoms and will probably continue to have this aggravation for the rest of her life.
Dr. Bishop also opined, in his July 31, 2012 report, that all of appellant’s current symptoms and
objective findings were the result of the December 24, 1991 work injury. He indicated that she
had permanent aggravation of her preexisting back and neck conditions as well as accelerated the
development of and the increase in the degenerative arthritis condition in the spine led her to her
total disability.

15

J.J., Docket No. 09-27 (issued February 10, 2009); William C. Bush, 40 ECAB 1064 (1989).

16

See supra note 8 and accompanying text. Appellant has not argued and none of the medical evidence submitted
after OWCP’s termination of benefits discuss the accepted cervical and lumbar strain conditions.
17

It is not necessary for the Board to revisit the medical evidence it considered in its March 1, 2011 decision
when it determined that the medical evidence at the time OWCP terminated benefits established that the accepted
conditions had resolved. See Ronald L. Chapman, Docket No. 03-698 (issued August 3, 2004).

5

The medical opinions of record were based on an accurate history of appellant’s
December 24, 1991 incident as well as a complete medical background. Drs. Sikes and Bishai
each provided medical rationale for their stated conclusions that her preexisting degenerative
condition was permanently aggravated by the work injury. The Board finds that the opinions of
Drs. Sikes and Bishai supporting an employment relationship are of equal weight and rationale
with the report of Dr. Fuller.
Section 8123 of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the employee’s physician, OWCP shall
appoint a third physician who shall make an examination.18
The case will be remanded for appellant to be referred to an impartial medical specialist
to resolve the conflict in the medical opinion. On remand, OWCP should refer appellant, a
statement of accepted facts, and a list of specific questions to a Board-certified physician to
determine if she sustained permanent aggravation of her preexisting osteoarthritis condition due
to the accepted work-related injury. Upon return of the case record, OWCP shall further develop
the medical evidence as appropriate and issue a de novo decision.
On appeal, appellant asserts that Dr. Fuller never examined her. There is no evidence to
corroborate her general assertion. Dr. Fuller’s report specifically indicates that he examined
appellant. Before OWCP, appellant’s representative also asserted, without any citation to
authority, that Dr. Fuller’s opinion was of lesser probative value because he is only an osteopath.
However, the Board notes that an osteopath is a physician under 5 U.S.C. § 8101(2).
CONCLUSION
The Board finds the case is not in posture for a decision as to whether the December 24,
1991 work injuries caused appellant to suffer permanent aggravation of her preexisting
osteoarthritis.

18

5 U.S.C. § 8123(a); see also M.S., 58 ECAB 328 (2007); Charles S. Hamilton, 52 ECAB 110 (2000);
Leonard M. Burger, 51 ECAB 369 (2000); Shirley L. Steib, 46 ECAB 39 (1994).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 1, 2012 is set aside and the case remanded to OWCP for further
development on the issue of whether the December 24, 1991 work injuries caused appellant to
suffer permanent aggravation of her preexisting osteoarthritis.
Issued: May 23, 2013
Washington, DC

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

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

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

7


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

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

Docket No. 15-0578
Issued: October 7, 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 January 16, 2015 appellant, through counsel, filed a timely appeal from August 6
and 29, 2014 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established permanent impairment of her left
lower extremity impairment related to her accepted injuries thereby warranting a schedule award;
1

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

5 U.S.C. § 8101 et seq.

and (2) whether appellant met her burden of proof to establish disability for the period
January 18, 2009 through March 10, 2013 causally related to her accepted work injury.
On appeal, counsel contends that there is a conflict of medical evidence between
appellant’s physician, Dr. Arthur Becan, an orthopedic surgeon, and OWCP’s second opinion
physician, Dr. Stanley Askin, a Board-certified orthopedic surgeon, concerning the percentage of
appellant’s left lower extremity impairment. He further contends that the medical evidence of
record is sufficient to establish residuals of her employment injuries.
FACTUAL HISTORY
OWCP accepted that on June 28, 2006 appellant, then a 41-year-old mail carrier,
sustained a left knee and leg sprain and a left calf gastrocnemius muscle tear as a result of
walking and climbing steps in the performance of duty.
On November 5, 2008 appellant, through counsel, filed a claim for a schedule award
(Form CA-7) and submitted a July 3, 2008 report from Dr. Becan who determined, following a
physical examination and review of the history of injury, that appellant had 20 percent
permanent impairment of the left lower extremity based on the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter, A.M.A.,
Guides).
Appellant, through counsel, also filed a claim for compensation (Form CA-7) for the
period January 18, 2009 through March 10, 2013 and submitted an August 19, 2011 report from
Dr. Laura Ross, a Board-certified orthopedic surgeon. Dr. Ross noted that appellant had been
injured at work on June 28, 2006 while climbing steps with a full bag of mail. She reported
results from a magnetic resonance imaging (MRI) scan which showed that there was a tear of the
gastrocnemius muscle. Dr. Ross diagnosed anteromedial tear of the gastrocnemius muscle of the
left calf and opined that appellant was at maximum medical improvement (MMI). She advised
that appellant should continue with her permanent modified restrictions at work and did not
recommend any other changes.
In a July 13, 2011 letter, OWCP requested additional medical evidence establishing
appellant’s disability for work during the period claimed and afforded her 30 days to respond to
its inquiries.
By letter dated April 10, 2013, OWCP notified appellant that its schedule award
requirements had changed effective May 1, 2009 and now required that all permanent
impairment determinations be completed according to the sixth edition of the A.M.A., Guides. It
afforded her 30 days to submit an additional schedule award report based on the sixth edition of
the A.M.A., Guides. No further evidence was received.
In a decision dated May 15, 2013, OWCP denied appellant’s schedule award claim
finding that the medical evidence failed to establish a ratable impairment of a scheduled member
under the sixth edition of the A.M.A., Guides.
On May 23, 2013 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative and submitted reports dated April 26 and June 21, 2013 from Dr. Ross
2

who found that appellant still had some residual pain, but did not recommend any further
treatment. Dr. Ross found limited range of motion of her left calf and advised that appellant
should continue with current restrictions at work.
By decision dated August 2, 2013, an OWCP hearing representative found that the case
was not in posture for a hearing and set aside the prior decision, remanding the case for further
medical development. She noted that OWCP had already received a rating from Dr. Becan
supporting injury-related permanent impairment and that this warranted further development by
OWCP as to a rating under the sixth edition.
In a June 30, 2013 report, Dr. Ross reiterated her diagnosis and found appellant able to
return to work on August 26, 2011 with the following restrictions: no more than three hours of
sitting, standing, walking, standing and twisting, and reaching above the shoulder; no more than
six hours of bending, pushing, and pulling; no more than one hour of driving and kneeling.
OWCP referred appellant to Dr. Askin for a second opinion evaluation to determine
whether appellant continued to be disabled from work due to her accepted condition and whether
she had any permanent impairment due to the accepted work injuries. In an August 30, 2013
report, Dr. Askin reviewed appellant’s medical history, records, and a statement of accepted facts
and provided findings from a physical examination of appellant. He found that she had no
objectively determinable injury-related imperfections and no permanent impairment. Dr. Askin
opined that appellant’s employment-related conditions had resolved without residuals. He noted
that there was no work-related impairment or limitation that would preclude appellant’s
assumption of employment activities referable to the accepted injury. Dr. Askin concluded that
the date of MMI was August 19, 2011. In a December 5, 2013 addendum report, he reiterated
that appellant’s accepted conditions had fully resolved and her clinical presentation reflected no
ratable impairment. Dr. Askin found that appellant had no significant objective abnormal
findings of muscle or tendon injury and determined that she had no ratable impairment according
to the sixth edition of the A.M.A., Guides.
On December 14, 2013 OWCP’s medical adviser Dr. Andrew Merola, a Board-certified
orthopedic surgeon, reviewed the evidence of record and found that there were no physical
sequelae to document a schedule award. He summarily concurred with Dr. Askin that there was
no ratable impairment of the left lower extremity and determined that the date of MMI was
December 5, 2013, the date of Dr. Askin’s second opinion examination.
By decision dated January 6, 2014, OWCP denied appellant’s schedule award claim
finding that the medical evidence failed to establish a ratable impairment of a scheduled member.
On January 13, 2014 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative regarding the January 6, 2014 decision, which was held on
June 12, 2014.
By decision dated August 6, 2014, OWCP also denied appellant’s claim for disability for
the period January 18, 2009 through March 10, 2013 finding that the medical evidence submitted
was insufficient to support disability due to the employment injuries.

3

By decision dated August 29, 2014, OWCP’s hearing representative affirmed the
January 6, 2014 schedule award decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim, including that he or she sustained an injury in the
performance of duty as alleged and that an employment injury contributed to the permanent
impairment for which schedule award compensation is alleged.3
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.7 The medical evidence required to establish a causal
relationship is rationalized medical opinion evidence. Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.8
ANALYSIS -- ISSUE 1
The Board finds that this issue is not in posture for a decision. Following an August 2,
2013 hearing representative decision, OWCP referred appellant to Dr. Askin for a second

3

See Bobbie F. Cowart, 55 ECAB 476 (2004). In Cowart, the employee claimed entitlement to a schedule award
for permanent impairment of her left ear due to employment-related hearing loss. The Board determined that
appellant had not established that an employment-related condition contributed to her hearing loss and, therefore, it
denied her claim for entitlement to a schedule award for the left ear.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700, Exhibit 1 (January 2010).
8

See Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

4

opinion evaluation to determine whether she had any permanent impairment due to the accepted
work injuries.
In an August 30, 2013 report, Dr. Askin made physical examination findings and
responded to four questions from the claims examiner relating to completion of an impairment
rating for an accepted left lower extremity injury. In his physical examination, he found that
appellant had no objectively determinable injury-related imperfections and no permanent
impairment. While Dr. Askin was asked to perform a rating of impairment pursuant to the sixth
edition and provide detailed measurements followed by an explanation of the basis under the
sixth edition for his impairment rating, he responded that he did not find anything wrong with
appellant referable to the June 28, 2006 occurrence and that she therefore has no objectively
determinable injury and no permanent impairment. In lieu of completing an attached permanent
impairment worksheet he concluded that “there is absolutely nothing wrong with appellant from
a physical standpoint.”
Following receipt of his initial second opinion report, OWCP contacted Dr. Askin and
requested that he review additional questions and provide detailed responses in a supplemental
report, using medical rationale, to explain how he arrived at his conclusion with supportive
references to the sixth edition of the A.M.A., Guides. The claims examiner specifically
instructed that his supplemental report must include citation to detailed measurements and tables
used to arrive at his findings regarding the nature and extent of permanent impairment to the left
lower extremity. In a December 5, 2013 addendum report, Dr. Askin again reiterated that
appellant’s accepted conditions had fully resolved and that her clinical presentation reflected no
ratable impairment. He provided no citation to the sixth edition of the A.M.A., Guides or
specific measurements taken in the course of his physical examination. Rather, Dr. Askin again
noted that there is absolutely nothing wrong with appellant from a physical standpoint.
The Board finds that this issue is not in posture for a decision as Dr. Askin did not
adequately address the nature and extent of permanent impairment causally related to the
accepted left lower extremity condition. On remand, OWCP should refer appellant to a second
opinion physician for resolution of the medical issues relating to the nature and extent of
permanent impairment, if any.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement to
compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done.9 Once OWCP undertakes development of the record, it must do a complete job
in procuring medical evidence that will resolve the relevant issues in the case.10 When OWCP
selects a physician for an opinion on the nature and extent of permanent impairment it has an
obligation to secure, if necessary, clarification of the physician’s report and to have a proper
evaluation made.11 Because it referred appellant to a second opinion physician, it has the
9

Richard Kendall, 43 ECAB 790 (1992).

10

Phillip L. Barnes, 55 ECAB 426, 441 (2004).

11

Alva L. Brothers, Jr., 32 ECAB 812 (1981).

5

responsibility to obtain a report that will resolve the issues of the nature and extent of permanent
impairment causally related to the accepted work injury.12
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.” This meaning, for brevity, is expressed as disability for work.
For each period of disability claimed, the employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury. Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable probative and substantial
medical evidence.
Disability is not synonymous with physical impairment, which may or may not result in
an incapacity to earn wages. An employee who has a physical impairment causally related to his
or her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA and is not
entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to
pay compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that she was disabled for the period
January 18, 2009 through March 10, 2013 causally related to her employment injuries. While
OWCP accepted that she sustained a left knee and leg sprain and a left calf gastrocnemius
muscle tear, appellant bears the burden of proof to establish through medical evidence that she
was disabled during the claimed time periods and that her disability was causally related to her
accepted injuries. The Board finds that she submitted no rationalized medical evidence
explaining how the employment injuries materially worsened or aggravated her medical
conditions and caused her to be disabled for work for the period January 18, 2009 through
March 10, 2013.
In her reports Dr. Ross diagnosed anteromedial tear of the gastrocnemius muscle of the
left calf and opined that appellant was at maximum medical improvement. She found that
appellant had limited range of motion of her left calf and indicated that appellant still had some
residual pain, but did not recommend any further treatment. Dr. Ross advised that appellant
should continue on her permanent modified restrictions at work and did not recommend any
other changes. In a report dated June 30, 2013, she reiterated her diagnosis and indicated that
12

See Ramon K. Farrin, Jr., 39 ECAB 736 (1988).

6

appellant was advised that she was able to return to work with restrictions on August 26, 2011.
As Dr. Ross failed to offer any probative medical opinion on whether appellant was disabled on
the dates at issue due to her accepted conditions, her reports are of diminished probative value.
Thus, the Board finds that the reports from Dr. Ross are insufficient to establish appellant’s
claim for compensation.
Appellant has not submitted any rationalized medical evidence establishing that she was
disabled for the period January 18, 2009 through March 10, 2013 causally related to the accepted
employment injuries. Thus, she has not met her burden of proof to establish that she is entitled
to compensation for any disability.
On appeal, counsel contends that the medical evidence of record is sufficient to establish
that appellant continues to suffer residuals of her employment injuries. Based on the findings
and reasoning stated above, the Board finds counsel’s argument is not substantiated.
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 this matter is not in posture for a decision regarding the nature and
extent of appellant’s permanent impairment. The Board further finds that appellant has not met
her burden of proof to establish disability for the period January 18, 2009 through March 10,
2013 causally related to her accepted left lower extremity condition.

7

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision. It is further ordered that the August 6, 2014 decision of OWCP is
affirmed.
Issued: October 7, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF THE NAVY,
COMMANDER NAVY INSTALLATIONS
COMMAND, San Diego, CA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0044
Issued: April 24, 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 October 8, 2018 appellant, through counsel, filed a timely appeal from a July 18, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish cervical, lumbar,
right shoulder, and left knee conditions causally related to the accepted factors of her federal
employment.
FACTUAL HISTORY
On June 7, 2017 appellant, then a 53-year-old engineer, filed an occupational disease claim
(Form CA-2) alleging that she injured her back due to daily traversing of shipyard makeshift
structures. She indicated that she first became aware of her claimed condition on December 19,
2015, and related it to factors of her federal employment on May 11, 2017. On the reverse side of
the claim form, the employing establishment noted that appellant first received medical care and
reported the condition to her supervisor on January 14, 2016, and that she was last exposed to the
factors alleged to have caused her condition on April 4, 2016.
In a development letter dated June 22, 2017, OWCP advised appellant of the factual and
medical deficiencies of her claim. It provided a questionnaire for her completion to establish the
employment factors alleged to have caused or contributed to her medical condition and requested
a medical report from her attending physician explaining how and why her federal work activities
caused, contributed to, or aggravated her medical condition. OWCP afforded appellant 30 days to
submit the necessary evidence.
In a report dated July 14, 2017, Dr. John Doeyoung Kim, Board-certified in internal
medicine, indicated that he examined appellant for aggravation of preexisting cervical spondylosis
without myelopathy and aggravation of preexisting displaced cervical intervert disc that occurred
on December 19, 2015,3 as well as a recurrence of right shoulder rotator cuff tear that occurred on
February 7, 2002.4 He related that she complained of new lumbosacral and left knee injuries.
Dr. Kim diagnosed aggravation of preexisting cervical spondylosis and aggravation of preexisting
displaced cervical discs. He also indicated that appellant had a recurrence of a right rotator cuff
tear and sustained injuries to her left knee. Dr. Kim noted that she had surgery on her cervical
spine on October 19, 2006, and surgery on her right shoulder on May 8, 2013. He further
diagnosed left knee patellar maltracking and left knee effusion and derangement. Dr. Kim noted
that appellant could return to work full time with restrictions.
By decision dated September 1, 2017, OWCP denied appellant’s claim, finding that she
had not submitted evidence sufficient to establish that her medical conditions were causally related
to the accepted factors of her federal employment.
On October 6, 2017 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.

3

OWCP File No. xxxxxx742, which is an occupational disease claim accepted for cervical spondylosis and
displacement of the cervical disc.
4

OWCP File No. xxxxxx740, which is a February 7, 2002 traumatic injury accepted for right shoulder sprain and
partial tear of the right rotator cuff.

2

In a magnetic resonance imaging (MRI) scan report dated February 2, 2017, Dr. Charles
Hecht-Leavitt, Board-certified in diagnostic radiology, noted impressions of moderate central disc
protrusion deforming the spinal cord at C3-4, postoperative changes at C4-5 and C5-6, and mild
annular bulging and bilateral ligamentum flavum hypertrophy mildly narrowing the neural canal
at C6-7.
In an MRI scan report dated February 17, 2017, Dr. Carl Bundschuh, Board-certified in
diagnostic radiology, noted impressions of epidural lumbar lipomatosis, severe central stenosis at
L6-S1 and L4-5, and moderate central stenosis at L3-4.
In a report dated September 21, 2017, Dr. Eric J. Goldberg, a Board-certified neurologist,
reviewed MRI scans of appellant’s lumbar and cervical spine and an electromyography study, and
diagnosed radiculopathy.
A telephonic hearing was held before an OWCP hearing representative on March 13, 2018.
In a report dated March 15, 2018, Dr. Goldberg diagnosed cervical and lumbosacral
radiculopathy, right shoulder labrum tears, and left knee joint disorder. He noted that these
conditions were related to appellant’s employment-related physical activity of traversing up and
down stairs, shipboard ladders, and scaffolding while carrying weighted backpacks filled with
binders.
By decision dated May 24, 2018, OWCP’s hearing representative affirmed the
September 1, 2017 decision, finding that appellant had not submitted rationalized medical
evidence explaining how her medical conditions were causally related to the physical nature of her
duties of federal employment.
On July 10, 2018 appellant, through counsel, requested reconsideration of OWCP’s
May 24, 2018 decision. Counsel resubmitted Dr. Goldberg’s March 15, 2018 report along with
the request.
By decision dated July 18, 2018, OWCP denied modification of the May 24, 2018 decision,
finding that appellant failed to submit a physician’s rationalized opinion that discussed a complete
and accurate medical and factual history along with an explanation of how the factors of her federal
employment caused or contributed to her diagnosed medical conditions supported with medical
reasoning.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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 of FECA,6 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
5

Supra note 2.

6

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

3

to the employment injury.7 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.8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.9
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.10 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish cervical, lumbar,
right shoulder, and left knee conditions causally related to the accepted factors of her federal
employment.
Appellant submitted medical reports dated September 21, 2017 and March 15, 2018 from
Dr. Goldberg, which diagnosed cervical and lumbosacral radiculopathy, right shoulder labrum
tears, and left knee joint disorder. Dr. Goldberg noted that these conditions were related to
appellant’s employment-related physical activity of traversing up and down stairs, shipboard
ladders, and scaffolding while carrying weighted backpacks filled with binders. However, he
failed to offer a rationalized medical opinion regarding the cause of appellant’s conditions. A
conclusory statement regarding causal relationship is of limited probative value.12 The Board has
held that a report is of limited probative value regarding causal relationship if it does not contain

7
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

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).
9

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

M.B., Docket No. 17-1999 (issued November 13, 2018).

11

M.L., Docket No. 18-1605 (issued February 26, 2019).

12

See B.B., Docket No. 18-1036 (issued December 31, 2018).

4

medical rationale explaining how a given medical condition is causally related to an employment
incident.13
In his July 14, 2017 report, Dr. Kim diagnosed aggravation of preexisting cervical
spondylosis and aggravation of preexisting displaced cervical discs. He also indicated that
appellant had a recurrence of right rotator cuff tear and sustained injuries to her left knee. Dr. Kim
did not explain how her injuries first realized on December 19, 2015 had caused her diagnosed
conditions or contributed to or aggravated her preexisting conditions. The need for medical
rationale is particularly important given that Dr. Kim indicated that appellant had a preexisting
condition.14 In cases where a claimant has a preexisting condition, the physician must provide a
rationalized medical opinion that differentiates between the effects of the work-related injury and
the preexisting condition.15 Dr. Kim did not sufficiently explain how appellant sustained cervical,
lumbar, right shoulder, and left knee conditions from the repetitive factors of her federal
employment, and how these activities altered or aggravated her preexisting conditions.16
Therefore, his report is of limited probative value.
Appellant also submitted two diagnostic test reports in support of her claim. The Board
has held that diagnostic studies lack probative value as they do not address whether the
employment incident caused any of the diagnosed conditions.17 Therefore, such diagnostic reports
are insufficient to establish appellant’s claim.
The Board finds that appellant has not met her burden of proof to provide sufficient medical
evidence to establish that her diagnosed conditions were causally related to the accepted factors of
her federal employment. Thus, appellant has not met her burden of proof to establish her claim.
Appellant may submit new evidence or argument as part of 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 cervical, lumbar,
right shoulder, and left knee conditions causally related to the accepted factors of her federal
employment.

13

J.L., Docket No. 17-1460 (issued December 21, 2018); see Y.D., Docket No. 16-1896 (issued February 10, 2017)
(finding that a report is of limited probative value regarding causal relationship if it does not contain medical rationale
describing the relation between work factors and a diagnosed condition/disability).
14

K.R., Docket No. 18-1388 (issued January 9, 2019); see C.D., Docket No. 17-2011 (issued November 6, 2018).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

16

See K.C., Docket No. 17-1693 (issued October 29, 2018).

17

See J.S., Docket No. 17-1039 (issued October 6, 2017).

5

ORDER
IT IS HEREBY ORDERED THAT the July 18, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 24, 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
__________________________________________
K.J., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1195
Issued: October 8, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On April 29, 2014 appellant filed a timely appeal from a January 28, 2014 decision of the
Office of Workers’ Compensation Programs (OWCP) which denied appellant’s reconsideration
request on the grounds that it was untimely filed and failed to present clear evidence of error.
Because more than 180 days has elapsed between the most recent OWCP merit decision, dated
January 10, 2013, and the filing of this appeal on April 29, 2014, the Board lacks jurisdiction to
review the merits of appellant’s claim pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 9, 2012 appellant, then a 37-year-old special agent, filed a Form CA-2,
occupational disease claim, alleging that she participated in a cardiovascular workout on
November 1, 2012 and while at work she felt lightheaded and experienced chest pains and
nausea and was taken to the hospital. She first became aware of her condition and realized it was
causally related to her employment on November 1, 2012. Appellant stopped work on
November 1, 2012.
Appellant was treated by Dr. Jonathan Reiner, a Board-certified cardiologist, on
November 1, 2012 for chest pains which developed after working out. He performed a
cardiovascular catheterization and successfully repaired an acutely occluded left anterior
descending coronary artery. On November 1, 2012 appellant was treated by Dr. Allen Solomon,
a Board-certified cardiologist, for severe chest pain and atrial fibrillation. Dr. Solomon noted
that appellant underwent a catheterization and was found to have an occluded artery which was
repaired. In a November 4, 2012 report, Dr. Richard J. Katz, a Board-certified cardiologist,
performed a transthoracic echocardiogram and diagnosed small, circumferential pericardial
effusion and left ventricular segmental wall motion abnormality, extensive injury or infarction of
the septal, anterior and anterolateral walls.
In a letter dated December 5, 2012, OWCP advised appellant of the type of factual and
medical evidence needed to establish her claim and requested that she submit such evidence. It
also requested the employing establishment provide comments from a knowledgeable supervisor
addressing appellant’s statements. No response was received.
In a decision dated January 10, 2013, OWCP denied appellant’s claim as the evidence
was not sufficient to establish that the injury and events occurred as alleged.
In an appeal form dated January 9, 2014, and received by OWCP on January 10, 2014,
appellant requested reconsideration. In a statement dated January 8, 2013, she indicated that as
part of her employment she was authorized to exercise for three hours per week and she
participated in an approved exercise program which was followed by chest pain and a diagnosed
myocardial infarction. Appellant asserted that as a result of the cardiovascular exercise required
as part of her job she had a myocardial infarction.
Appellant submitted new evidence and evidence previously of record. New evidence
included a report from Dr. Miriam L. Fishman, a cardiology fellow, who noted that on
November 1, 2012 appellant was catheterized and diagnosed with an occlusion of the proximal
left anterior descending artery which was stented and myocardial infarction. Appellant
submitted discharge instructions from a nurse dated November 3, 2012, who diagnosed heart
attack and returned appellant to restricted duty. A report from Dr. Reiner dated January 23, 2013
diagnosed status post myocardial infarction. In a May 3, 2013 report, Dr. Katz noted that an
exercise stress test was normal.
By decision dated January 28, 2014, OWCP denied appellant’s request for
reconsideration as it was untimely and did not establish clear evidence of error.

2

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”2
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.3 However, OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the
claimant’s application for review shows clear evidence of error on the part of OWCP in its most
recent merit decision. To establish clear evidence of error, a claimant must submit evidence
relevant to the issue that was decided by OWCP. The evidence must be positive, precise and
explicit and must be manifest on its face that OWCP committed an error.4
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.5
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.6 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.7 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.8 The Board makes an independent determination
as to whether a claimant has submitted clear evidence of error on the part of OWCP.9

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607(a).

4

Id. at 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

5

Annie L. Billingsley, 50 ECAB 210 (1998).

6

Jimmy L. Day, 48 ECAB 652 (1997).

7

Id.

8

Id.

9

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

3

ANALYSIS
OWCP issued its most recent merit decision on January 10, 2013 which denied
appellant’s claim for an occupational disease. The January 28, 2014 nonmerit decision found
that appellant’s request for reconsideration dated January 9, 2014, and received January 10,
2014, was untimely. Since her request for reconsideration was received by OWCP on
January 10, 2014, it was filed within one year of OWCP’s January 10, 2013 merit decision and
therefore was timely. The Board finds that appellant’s reconsideration request was timely filed.
On remand OWCP should treat as timely appellant’s January 10, 2014 request for
reconsideration and consider whether the request is sufficient to warrant a merit review under the
standard for evaluating a timely reconsideration request.10 Following this and such other
development as necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds that OWCP improperly denied as untimely appellant’s request for
reconsideration of the January 10, 2013 decision.

10

See 20 C.F.R. § 10.606(b).

4

ORDER
IT IS HEREBY ORDERED THAT the January 28, 2014 decision of OWCP is set
aside and remanded for further proceedings consistent with this decision of the Board.
Issued: October 8, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5