United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, BISCAYNE
NATIONAL PARK, Homestead, FL, Employer
__________________________________________

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

Docket No. 13-262
Issued: April 23, 2013

Case Submitted on the Record

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

JURISDICTION
On November 9, 2012 appellant filed a timely appeal from a May 30, 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 case.2
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
November 16, 2011.

1
2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant submitted evidence with his appeal to the Board. The Board, however, cannot
consider the evidence as it was not before OWCP at the time it issued a final decision. 20 C.F.R. § 501(c)(1); see
J.T., 59 ECAB 293 (2008).

On appeal, appellant asserts that he is not requesting wage-loss compensation but that his
medical expenses, including ambulance services, are covered.
FACTUAL HISTORY
On January 3, 2012 appellant, then a 69-year-old volunteer visitor use assistant, filed a
traumatic injury claim alleging that he injured his left shoulder and elbow on November 16, 2011
when he fell from the back of a pickup truck while assisting Park Ranger Chris Beers to load a
canoe. He indicated that his elbow was lacerated and bleeding freely and that both the elbow and
shoulder were bruised and swollen.
In a January 11, 2012 letter, OWCP informed appellant of the type of evidence needed to
establish his claim and asked that the employing establishment respond. Appellant was given
30 days to provide the requested information.
By decision dated February 13, 2012, OWCP denied the claim, finding that, although
appellant was an employee who timely filed a claim, he did not establish fact of injury. It
indicated that medical treatment was not authorized and prior authorization, if any, was
terminated. OWCP noted that appellant did not respond to the January 11, 2012 letter.
On March 7, 2012 appellant requested a review of the written record. He submitted
additional evidence including an undated statement in which Ranger Beers provided a history of
injury, stating that he and appellant were attempting to load canoes from the bed of the truck
onto a trailer and when they began to lift the back part of the canoe in order to try to slide it
across, the canoe begin to slip. Ranger Beers indicated that he could not see appellant because
he was obscured by the body of the canoe. The canoe then collapsed and he discovered that
appellant had fallen out of the bed of the truck. Ranger Beers checked appellant who seemed to
be alert but in pain. He stated that he called for help immediately and it shortly arrived on the
scene.
An employing establishment medical note dated November 16, 2011, completed by
emergency medical technicians Evan Pickford and Jared Brierly, indicated that they were called
at 3:40 p.m. and arrived on scene at 3:42 p.m. The report indicated a history that appellant fell
from a truck onto pavement and hit his left shoulder and that he complained of left shoulder pain
and had a laceration on the left shoulder. An ambulance service was called and arrived at
3:58 p.m.
A Miami Dade Ambulance Service report dated November 16, 2011, completed by Jorge
Miranda and Wilberto Madera, indicated that, upon arrival at 3:58 p.m., appellant was
complaining of sharp and constant pain radiating through his left shoulder. Examination findings
indicated that the left upper extremity had limited range of motion. Appellant was transported to
Homestead Hospital.
Appellant was admitted to the emergency room at Homestead Hospital at 4:50 p.m. with
a chief complaint of left shoulder injury caused by a fall from a truck. Nursing progress notes
indicated that an abrasion on his left elbow was cleaned and dressed and that a splint and sling
were applied to the left arm. Appellant was seen by Joseph Rodolfo, a physician’s assistant, who

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reported a chief complaint of left upper extremity pain due to a fall from a truck. Left shoulder
examination demonstrated limited range of motion due to pain. No swelling, laceration or
abrasion was noted and the extremities were otherwise negative. Two left shoulder x-rays were
completed. The first demonstrated a questionable posterior subluxation of the humeral head and
repeat study found no dislocation. Appellant was discharged at 9:17 p.m. in improved condition
with a diagnosis of upper extremity pain involving the left shoulder and fall. He was prescribed
medication and advised to wear a sling, elevate affected areas above chest level, limit lifting with
no strenuous activity and was instructed to not work on the following day.
At 6:58 p.m. on November 16, 2011, Matthew Johnson, a supervisor, requested help from
Teri Gage, the employer’s chief of administration, in obtaining a billing address for the hospital.
He indicated that appellant was still at the emergency room and that a workers’ compensation
claim for him could not be processed because he was not in the “SMIS” database.
In a report dated December 6, 2011, Dr. Hossein Joukar, Board-certified in emergency
medicine, noted that appellant had a two-week history of a swollen left elbow following a fall
from a truck. Physical examination of the left elbow demonstrated a golf ball-sized swelling.
Dr. Joukar diagnosed elbow bursitis.
By decision dated May 30, 2012, an OWCP hearing representative affirmed the
February 13, 2012 decision, finding that the emergency room diagnosis of pain was not sufficient
to establish a work injury and that the medical evidence did not have an opinion as to whether
appellant’s claimed condition was related to the work incident November 16, 2011.
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 timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.3
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
3

Gary J. Watling, 52 ECAB 278 (2001).

4

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

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the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.5
When determining whether the implicated employment factors caused the claimant’s
diagnosed condition, OWCP generally relies on the rationalized medical opinion of a physician.6
OWCP’s procedures provide, however, that a case may be accepted without a medical report if:
(1) the condition reported is a minor one that can be identified on visual inspection by a lay
person (e.g., burn, laceration, insect sting or animal bite); (2) the injury was witnessed or
reported promptly and no dispute exists as to the fact of injury; and (3) no time was lost from
work due to disability.7
ANALYSIS
OWCP accepted that appellant fell from a truck on November 16, 2011. The issue
therefore is whether appellant established that he sustained an injury as a result of that incident
and whether he is entitled to coverage of medical expenses incurred due to the November 16,
2011 incident.
The facts in this case indicated that the fall was witnessed by Ranger Beers, who called
employing establishment emergency personnel who responded shortly, examined appellant and
called a private ambulance. The ambulance personnel also examined appellant and transported
him to Homestead Hospital where he was seen in the emergency room.
Although medical evidence is generally required under FECA, the Board finds that
appellant’s claim falls into the category of cases, described above, that can be established
without a physician’s report. In this case, appellant was seen in the emergency room by nursing
staff and Mr. Rodolfo, a physician’s assistant. Reports by nurses and physician’s assistants are
not considered medical evidence as these persons are not considered physicians under FECA.8
The Board finds, however, that appellant’s left upper extremity condition included an
elbow laceration that could be identified on visual inspection by a lay person and was identified
by employing establishment emergency personnel and by a nurse in the emergency room who
cleaned and dressed the elbow.9 Moreover, Ranger Beers witnessed the injury which was
promptly reported to the employing establishment, which did not dispute his claim.10 Appellant,
who is a volunteer, did not miss time from “work” and is not requesting wage-loss
compensation. The Board finds that, under these circumstances, he has established that he

5

Gary J. Watling, supra note 3.

6

Conard Hightower, 54 ECAB 796 (2003).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3.d(1) (January 2013).

8

5 U.S.C. § 8101(2); see Sean O’Connell, 56 ECAB 195 (2004).

9

Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.805.3.d(1)(a) (January 2013).

10

Id. at Chapter 2.805.3.d(1)(b) (January 2013).

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sustained a left elbow laceration on November 16, 2011. Appellant therefore met his burden of
establishing fact of injury.11
The Board, however, finds that appellant has not established that a left elbow bursitis,
diagnosed by Dr. Joukar on December 6, 2011 was caused by the November 16, 2011
employment injury because the physician’s report did not contain an opinion regarding a cause
of the diagnosed condition. Medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.12
On appeal, appellant requests that his medical expenses be covered. OWCP’s procedures
provide that a Form CA-16 is the vehicle to be used by an employing establishment to authorize
initial examination and/or medical treatment at OWCP expense. It is used to refer an employee
who sustains a traumatic injury to a local physician or hospital.13 The procedures further provide
that OWCP may approve payment for medical expenses incurred even if a CA-16 form has not
been issued. Payment in such situations must be determined on a case-by-case basis.14 Pursuant
to section 8103 of FECA,15 OWCP has broad discretionary authority to approve unauthorized
medical care which it finds necessary and reasonable in cases of emergency or other unusual
circumstances.16 It may exercise its discretion to authorize medical care even if a CA-16 form
has not been issued and the claim is subsequently denied. Payment in such situations is
determined on a case-by-case basis.17
In the case at hand, a CA-16 form was not used. As noted above, Ranger Beers verified
that appellant was assisting him when he fell from the truck. Appellant was first examined by
employing establishment emergency medical personnel and was transported to Homestead
Hospital by ambulance where he received treatment that day. In denying his claim, OWCP did
not consider whether emergency or otherwise unusual circumstances were present such that
11

A.S., 59 ECAB 246 (2007).

12

Willie M. Miller, 53 ECAB 697 (2002). Causal relationship is a medical issue and the medical evidence
required to establish a causal relationship is rationalized medical evidence. Jacqueline M. Nixon-Steward, 52 ECAB
140 (2000). 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. Victor J. Woodhams, 41 ECAB 385 (1989). Neither the mere 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. Dennis M. Mascarenas, 49 ECAB
215 (1997).
13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter
3.300.3 (February 2012).
14

Id. at Chapter 3.300.3(a)(3); see D.P., Docket No. 11-50 (issued October 26, 2011).

15

5 U.S.C. § 8103.

16

Supra note 14.

17

Id.

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reimbursement of medical expenses would be appropriate in this case. The Board finds that, as
appellant has established fact of injury, the circumstances of the case warrant coverage of
medical expenses incurred on November 16, 2011.
With regard to the denial that a left elbow bursitis condition was caused by the accepted
November 16, 2011 employment injury, appellant may submit new evidence or argument with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has established that he sustained an injury in the
performance of duty on November 16, 2011 and the case is remanded for adjudication of the
reimbursement of medical expenses.
ORDER
IT IS HEREBY ORDERED THAT the May 30, 2012 decision of the Office of
Workers’ Compensation Programs is reversed in part and remanded in part.
Issued: April 23, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kent, CT, Employer
__________________________________________

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

Docket No. 14-370
Issued: May 15, 2014

Case Submitted on the Record

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

JURISDICTION
On December 4, 2013 appellant, through counsel, filed a timely appeal of an October 17,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to modify the May 5, 1999 loss of
wage-earning capacity (LWEC).
On appeal counsel contends that the decision is contrary to law and fact.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 17, 2013 decision, OWCP received additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See
20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G.,
58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On March 22, 1996 appellant, then a 42-year-old rural carrier, filed an occupational
disease claim alleging that on December 29, 1995 she first realized that her two cervical slipped
discs were due to her work duties. She stopped work on December 29, 1995. OWCP accepted
the claim for cervical strain and aggravation of preexisting fibromyalgia.
On August 15, 1997 appellant accepted a part-time (four hours per day) position as a
modified rural carrier, which was available effective September 3, 1997.
On May 5, 1999 OWCP noted that appellant was reemployed as a modified rural carrier
for 20 hours a week with wages of $366.57.
The employment was effective on
September 3, 1997. OWCP found that the duties of appellant’s new position reflected the work
tolerance limitations established by the weight of the medical evidence and that she met the
training, education and work experience of the job. Citing 5 U.S.C. § 8115, OWCP notified
appellant that it was adjusting her compensation for wage loss to reflect her capacity to earn
wages in her new position.
On April 12, 2001 appellant accepted a new position of rehabilitation distribution clerk,
which was effective April 23, 2001. The hours of the position were from 8:00 a.m. to 12:00 p.m.
On April 20, 2010 appellant filed a recurrence claim (Form CA-2a). Effective April 20,
2010, the employing establishment eliminated her part-time limited-duty assignment pursuant to
the National Reassessment Process (NRP).
By decision dated August 2, 2010, OWCP denied modification of the May 5, 1999
LWEC, and thereby denied her claim for a recurrence of disability effective April 20, 2010.
In an October 29, 2010 letter, appellant requested reconsideration on the denial of her
request for modification of the May 5, 1999 LWEC.
By decision dated January 7, 2011, OWCP denied modification.
On February 15, 2011 appellant requested reconsideration.
By decision dated May 17, 2011, OWCP denied modification.
On June 22, 2011 appellant requested reconsideration.
By decision dated September 23, 2011, OWCP denied reconsideration, finding that
appellant had neither submitted relevant evidence not previously reviewed or advanced legal
contentions not previously considered.
In a letter dated April 13, 2012, appellant’s counsel requested modification of the May 5,
1999 LWEC. She argued that the LWEC was erroneous as it was based upon a part-time job
when appellant had been a full-time employee.
By decision dated July 20, 2012, OWCP denied modification.

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By order dated July 25, 2013, the Board set aside the July 20, 2012 OWCP decision as
the record before the Board was incomplete due to missing evidence and claim files.3
On remand, OWCP followed the Board’s instructions to combine file numbers
xxxxxx9674 and xxxxxx579.
By decision dated October 17, 2013, OWCP denied modification.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.5 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
A recurrence of disability includes an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his
work-related injury or illness is withdrawn -- except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force (RIF).9 Absent a formal wageearning capacity determination and assuming the position was not withdrawn for cause or
because of a RIF, the employee would be entitled to compensation based upon a showing of
continuing injury-related disability for regular duty10 but when a formal wage-earning capacity
determination is in place, the subsequent withdrawal of a light-duty assignment is not treated like
a recurrence of disability.11 Under these particular circumstances, OWCP shall review the claim
for additional compensation as a request for modification of the wage-earning capacity

3

Docket No. 12-1955 (issued July25, 2013)

4

Under this file number, OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome. (ICD9 -- File
No. xxxxxx967)
5

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

6

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

7

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

8

Id.

9

20 C.F.R. § 10.5(x).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6(a)(4) (June 2013).

11

Id. at Chapter 2.1500.6(a)(5)

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determination and apply the above-noted criteria in determining whether modification is
warranted.12
ANALYSIS
Due to residuals of her accepted employment injuries, appellant was unable to resume her
previous full-time duties as a rural carrier. On August 5, 1997 she accepted a part time (four
hours per day) work as a modified rural carrier. OWCP issued a May 5, 1999 LWEC
determination based on appellant’s earnings as a part-time modified rural carrier. On April 12,
2001 appellant accepted a newly offered part-time position (working four hours per day) as
rehabilitation distribution clerk. The employing establishment withdrew appellant’s part-time,
limited-duty assignment effective April 20, 2010. Appellant filed a claim for a recurrence of
total disability based on the elimination of her position by the employing establishment under
NRP. OWCP denied appellant’s claim for a recurrence finding that she had failed to establish a
basis for modifying the May 5, 1999 LWEC determination.
One of the grounds for modifying an LWEC determination is that the original
determination was erroneous.13 The Board finds that the May 6, 1999 LWEC determination was
erroneous because OWCP based its finding on a part-time position. Factors to be considered in
determining if a position fairly and reasonably represents the injured employee’s wage-earning
capacity include: (1) whether the kind of appointment and tour of duty are at least equivalent to
those of the date-of-injury job; (2) whether the job is part time (unless the claimant was a parttime worker at the time of injury) or sporadic in nature; (3) whether the job is seasonal in an area
where year-round employment is available; and (4) whether the job is temporary where the
claimant’s previous job was permanent.14
The record established that, prior to her accepted employment injury, appellant worked
full time. OWCP failed to follow the procedure manual when it erroneously relied on her parttime reemployment as a basis for finding that her actual earnings fairly and reasonably
represented her wage-earning capacity. The procedure manual clearly states that the
reemployment may not be considered suitable when the job is part time, unless the claimant was
a part-time worker at the time of injury.15 The Board finds that OWCP abused its discretion in
determining that appellant’s actual earnings in part-time reemployment fairly and reasonably
represented her wage-earning capacity. Accordingly, the May 5, 199 LWEC determination is
reversed.16

12

Id.; K.R., Docket No. 09-415 (issued February 24, 2010); K.R., Docket No. 09-28 (issued September 16, 2009).

13

Tamra McCauley, supra note 7.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity on
Actual Earnings, Chapter 2.815.5(c) (June 2013).
15

Id.

16

See O.V., Docket No. 11-98 (issued September 30, 2011).

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The case will be remanded to OWCP to determine whether appellant is entitled to wageloss compensation for total disability based on the employer’s withdrawal of her limited-duty
assignment effective April 20, 2010.
CONCLUSION
The Board finds that OWCP the May 5, 1999 LWEC determination is erroneous.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 17, 2013 is reversed.
Issued: May 15, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.D., Appellant
and
DEPARTMENT OF THE ARMY, RESEARCH,
DEVELOPMENT & ENGINEERING
COMMAND, PICATINNY ARSENAL, NJ,
Employer
__________________________________________

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Appearances:
Russell T. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1175
Issued: November 15, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 1, 2019 appellant, through counsel, filed a timely appeal from a December 6, 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 to consider 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 his burden of proof to establish a traumatic injury
causally related to the accepted July 14, 2017 employment incident.
FACTUAL HISTORY
On July 18, 2017 appellant, then a 61-year-old industrial engineering technician, filed a
traumatic injury claim (Form CA-1) alleging that on July 14, 2017 he slipped backward on wet
steps, slid downward on his back and buttocks, and sustained bruises and abrasions on his left arm,
shoulders, back, and buttocks while in the performance of duty. He provided a July 14, 2017
witness statement from coworker M.F. indicating that appellant slipped and fell backward down
three stairs, landing on his buttocks, back, and shoulders.
Appellant sought treatment on July 14, 2017 at the employing establishment health clinic,
but there was no physician or nurse on duty.
In a July 17, 2017 report, Dr. James Bilello, Board-certified in occupational and preventive
medicine, noted appellant’s account of falling on stairs at work on July 14, 2017. He ordered
x-rays.3 Dr. Bilello restricted appellant to light duty. Appellant returned to full duty in late
July 2017.
In September 26, 2017 reports, Dr. Michael A. Deehan, a Board-certified orthopedic
surgeon, noted that on July 14, 2017 appellant slipped and fell backward on wooden steps while
at work, injuring his right shoulder. He diagnosed right rotator cuff impingement and a labral tear.
On October 12, 2017 appellant filed a notice of recurrence (Form CA-2a), claiming
disability for work commencing September 26, 2017. He described continued soreness of the right
shoulder. Appellant noted that on July 25, 2017 he had sustained a separate and unrelated
employment injury to his left hand.4
In an October 23, 2017 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence from him. OWCP afforded
appellant 30 days to respond.
In response, appellant submitted a November 13, 2017 statement. He described slipping
and falling backward on four stairs of a wooden dock, striking his back, tailbone, and shoulders.
Appellant sought treatment at an employing establishment clinic where he had abrasions cleaned.
On July 17, 2017 he underwent x-rays and a clinic physician diagnosed arthritis of the right

3

July 17, 2017 x-rays demonstrated mild degenerative changes of the right shoulder, postsurgical changes of the
lower cervical and upper thoracic spine, and mild disc space narrowing at L5-S1.
4
On July 25, 2017 appellant sustained a small puncture wound to the dorsum of the first web of the left hand from
a fragment of a snapped drill bit. OWCP assigned the claim OWCP File No. xxxxxx026.

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shoulder. Appellant returned to work. As his symptoms remained significant, he consulted
Dr. Deehan, who diagnosed a rotator cuff tear.5
An October 13, 2017 magnetic resonance imaging (MRI) scan of the right shoulder
demonstrated a full-thickness supraspinatus tear with retraction, high-grade tears of the
subscapularis and infraspinatus tendons, a superior labral tear, acromioclavicular arthrosis,
subacromial and subdeltoid bursitis, and glenohumeral joint effusion.
In a report dated November 9, 2017, Dr. Deehan noted that on July 14, 2017 appellant
injured himself at work when he fell “backwards and injured his shoulder.” Appellant’s right
shoulder dysfunction, weakness, and pain remained unimproved. Dr. Deehan diagnosed a right
rotator cuff tear requiring arthroscopic repair.
By decision dated December 6, 2017, OWCP accepted that the July 14, 2017 incident
occurred at the time, place, and in the manner alleged, but denied appellant’s claim, finding that
he had not met his burden of proof to establish causal relationship.
On December 18, 2017 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review. He submitted additional evidence.
In an October 19, 2017 report, Dr. Deehan diagnosed right supraspinatus and infraspinatus
tears, impingement, and chronic pain.
In a January 11, 2018 report, Dr. Philip E. Lutz, a Board-certified anesthesiologist, noted
that appellant had slipped and fallen down four steps while at work on July 14, 2017 striking his
buttocks, back, and head. On examination, he found limited range of right shoulder motion,
diminished grip strength in the right hand, and lumbar paraspinal tenderness. Dr. Lutz prescribed
medication.6
In a report dated March 1, 2018, Dr. Lutz noted progressive atrophy of the right shoulder
with decreased strength and range of motion. He diagnosed a post-traumatic right rotator cuff and
labral tears, acromioclavicular arthrosis, bursitis, glenohumeral joint effusion, marked
acromioclavicular osteoarthritis, chronic right shoulder pain, and lumbar stenosis with bilateral
radiculopathy.
In a March 14, 2018 report, Dr. Deehan noted the accepted July 2017 employment
incident. He diagnosed a right labral tear of the supraspinatus tendon with retraction, a
subscapularis tendon tear, and infraspinatus tendon tear. Dr. Deehan indicated that the arthritic
changes in the AC joint certainly preexisted the trauma sustained. He opined that “the causative
factor of [appellant’s] shoulder problem is clearly the trauma he sustained and these injuries are
structurally quite substantial.”

5

Appellant also submitted witness statements from coworkers O.D. and M.F., who corroborated appellant’s account
of his slip and fall down wooden stairs. Immediately, after the incident, the coworkers transported appellant to the
employing establishment’s health clinic for evaluation.
6

Dr. Lutz also provided January 15, 2018 laboratory test results.

3

At the hearing, held on May 14, 2018, counsel contended that appellant’s uncontroverted
assertion of a right shoulder injury related to the accepted July 14, 2017 employment incident was
supported by the detailed opinions of Dr. Deehan and Dr. Lutz. Counsel emphasized that
Dr. Deehan provided medical rationale differentiating preexisting arthritis from the claimed
traumatic injury.
By decision dated June 14, 2018, an OWCP hearing representative affirmed the
December 6, 2017 decision, finding that the medical evidence of record was insufficient to
establish causal relationship.
On September 18, 2018 appellant, through counsel, requested reconsideration. Counsel
submitted additional medical evidence.
In a June 4, 2018 report, Dr. Deehan explained that the accepted July 14, 2017 incident
“resulted in forceful motion of the right arm and resulted in tear of the rotator cuff. This is a
common mechanism for this type of injury and is clearly causative based on his history of absence
of prior disease and confirmatory MRI [scan].”
By decision dated December 6, 2018, OWCP denied modification as the evidence of record
did not contain sufficient medical rationale supporting causal relationship to meet appellant’s
burden of proof.
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 of FECA,7 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.8 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

7

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
8

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
9
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).

4

time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.10
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 factors
identified by the claimant.11 The weight of the medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.12
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that this case is not in posture for a decision.
In support of his claim, appellant provided a series of reports from Dr. Deehan, dated from
September 26, 2017 to June 4, 2018. In his initial report, Dr. Deehan noted the accepted July 14,
2017 employment incident in which appellant slipped and fell backward on wooden stairs, sliding
downward on his back, buttocks, and right shoulder. He opined on November 9, 2017 that the
accepted incident caused a right rotator cuff tear. Additionally, Dr. Deehan in his March 14, 2018
report indicated that the arthritic changes in the AC joint certainly preexisted the trauma sustained.
He opined that the causative factor of his shoulder problem was clearly the trauma between
appellant’s preexisting acromioclavicular joint arthritis and the claimed traumatic injury.
Dr. Deehan opined that the rotator cuff injuries were clearly caused by the July 14, 2017 traumatic
incident as they were structurally substantial. He elaborated in a June 4, 2018 report that forceful
right arm motion during the accepted July 14, 2017 employment incident caused the diagnosed
rotator cuff tendon tears. Dr. Deehan noted that this was a common method of causation and had
been confirmed by MRI scan.
Dr. Deehan provided a consistent, detailed explanation of how appellant’s right shoulder
conditions resulted from accepted July 14, 2017 employment incident. Although his reports are
insufficient to discharge appellant’s burden of proving that his current right shoulder conditions
were caused or aggravated by the July 14, 2017 employment incident, his opinion is of sufficient

10

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee) and 10.5(q)
(traumatic injury and occupational disease defined, respectively).
11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 45 ECAB 345(1989).

12

James Mack, 43 ECAB 321 (1991).

13
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
R.A., Docket No. 19-0423 (issued August 7, 2019); D.S., Docket No. 17-1359 (issued May 3, 2019).

5

probative quality to require further development of the case record by OWCP, and is
uncontroverted in the record.14
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done.15
On remand OWCP should refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts. Its referral physician should provide an evaluation and a
rationalized medical opinion as to the relation of the claimed right shoulder conditions to the
accepted July 14, 2017 employment incident. After such further development of the case record
as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 6, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: November 15, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
14

R.A., id.; D.S., id.

15
Id.; X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019);
William J. Cantrell, 34 ECAB 1223 (1983).

6


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

)
)
)
)
)
)
)
)

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

Docket No. 21-0715
Issued: December 20, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 12, 2021 appellant, through counsel, filed a timely appeal from a February 22,
2021 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 his burden of proof to establish a left shoulder
condition causally related to the accepted May 12, 2020 employment incident.
FACTUAL HISTORY
On May 27, 2020 appellant, then a 49-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that he injured his left shoulder on May 12, 2020 due to lifting and turning
his arm when delivering packages while in the performance of duty. He stopped work on
May 13, 2020.
In a duty status report (Form CA-17) dated May 29, 2020, Dr. John Kalata, an osteopath
and family medicine specialist, diagnosed derangement of the left shoulder due to lifting packages.
In a subsequent Form CA-17 dated June 4, 2020, he diagnosed a left shoulder rotator cuff tear due
to lifting packages.
In a July 10, 2020 development letter, OWCP advised appellant of the deficiencies of his
claim, requested additional factual and medical evidence, and provided a questionnaire for his
completion. It afforded him 30 days to respond.
In a July 21, 2020 response to OWCP’s questionnaire, appellant related that on May 12,
2020 the rear slide wheel detached from the door of his postal vehicle, which made the door very
difficult to pull down. He used the door over 40 times that day and was also reaching back
repetitively throughout the day to grab packages with his left arm. Appellant asserted that this
caused his left shoulder to become tired and painful, which worsened throughout the day. He
noted that, by the end of his shift, he was primarily using his right arm because he was not able to
use the left shoulder or arm to turn the door lock or steer the vehicle.
Physical therapy notes dated between July 1 and 24, 2020 outlined various treatments to
the left shoulder.
By decision dated August 12, 2020, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish a left shoulder condition causally related to the
accepted May 12, 2020 employment incident. Consequently, it concluded that the requirements
had not been met to establish an injury or medical condition causally related to the accepted
employment incident.
OWCP continued to receive medical evidence, including a June 4, 2020 medical report by
Dr. Kalata, noting that appellant related complaints of left shoulder pain which he attributed to
extreme overuse of the left shoulder during extended hours of driving and delivering packages.
Dr. Kalata noted that magnetic resonance imaging (MRI) studies of the left shoulder were
consistent with a partial rotator cuff tear, and that his physical examination revealed abnormalities
in range of motion and strength within the rotator cuff. He diagnosed a left partial rotator cuff
tear, prescribed prednisone, and referred him to Dr. Joshua Tuck, an orthopedic surgeon.
In a medical report dated June 16, 2020, Dr. Tuck indicated that appellant related a history
of shoulder pain that he attributed to opening an overhead truck door several times while working.
2

He also noted a history of a prior left shoulder dislocation approximately 20 years ago. Dr. Tuck’s
physical examination was consistent with pathology in the rotator cuff, glenoid labrum, and
acromioclavicular (AC) joint. He reviewed x-rays and MRI scan studies and diagnosed
impingement and pain in the left shoulder.
In follow-up visits on July 2 and 14, 2020, Dr. Kalata noted that appellant’s left shoulder
was improving following an injection by Dr. Tuck. He continued to note a history of left shoulder
pain due to driving and delivering a significantly increased number of packages as a postal worker.
In a report dated August 11, 2020, Dr. Tuck noted that appellant’s left shoulder pain had
returned following the injection, and that he was not achieving any improvement with physical
therapy. He diagnosed impingement with pain in the left shoulder and recommended surgery.
Dr. Tuck opined that the injury was work related.
On August 19, 2020 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review.
Thereafter, OWCP received a May 15, 2020 report by Dr. Kalata, who noted that appellant
related complaints of pain and clicking in the left shoulder, which he attributed to lifting pac kages
at work.
OWCP also received additional physical therapy notes for dates of service between June 29
and August 6, 2020.
In a September 8, 2020 treatment note, Dr. Kalata indicated that appellant was scheduled
for surgery to the left shoulder by Dr. Tuck.
In an operative note dated September 16, 2020, Dr. Tuck indicated that he performed left
shoulder arthroscopic rotator cuff repair, biceps tenodesis, and subacromial decompression. The
postoperative diagnoses were left shoulder full-thickness anterior supraspinatus tear, type 2
superior labrum anterior to posterior (SLAP) lesion, and Hill-Sachs lesion of the humeral head.
A telephone hearing was held on October 14, 2020, and the hearing representative held the
record open for 30 days.
In a narrative report dated October 17, 2020, Dr. Kalata outlined his treatment of appellant
and his review of Dr. Tuck’s reports. He noted that the left shoulder was improving following the
September 16, 2020 surgery, and that appellant had a remote history of a left shoulder dislocation
20 years ago, which resolved with nonoperative care. Dr. Kalata diagnosed left shoulder pain and
impingement and opined that it was apparent that these conditions were caused by repetitive
opening of his postal vehicle door. He explained that the repetitive forces overloaded the capacity
that his shoulder could bear at work.
By decision dated November 19, 2020, the hearing representative vacated the January 30,
2020 decision and remanded the case for OWCP to provide the employing establishment a copy
of the transcript and appellant’s answers to its development questionnaire, and for the employing
establishment to submit a statement if they concur or disagree with his statements therein.

3

In accordance with the hearing representatives instructions, on December 3, 2020 OWCP
provided a copy of appellant’s development questionnaire responses and the hearing transcript to
the employing establishment. No response was received.
OWCP thereafter received additional physical therapy notes for dates of service between
July 24 and August 10, 2020.
By de novo decision dated February 22, 2021, OWCP denied appellant’s claim, finding
that the evidence of record was insufficient to establish that his left shoulder condition was causally
related to the accepted May 12, 2020 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 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 whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. Second, the employee must submit sufficient evidence
to establish that the employment incident caused a personal injury. 7
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.8 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported

3

Id.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).

4

by medical rationale explaining the nature of the relationship between the diagnosed cond ition and
specific employment incident identified by the employee.9
ANALYSIS
The Board finds that this case is not in posture for decision.
In his narrative report dated October 17, 2020, Dr. Kalata outlined appellant’s treatment
and his review of Dr. Tuck’s reports. He diagnosed left shoulder pain and impingement and opined
that these conditions were caused by repetitive opening of appellant’s postal vehicle door.
Dr. Kalata explained that the repetitive forces overloaded the capacity that his shoulder could bear
at work.
Dr. Kalata, in his initial reports dated June 4 and 16, 2020, explained the mechanism of
appellant’s injuries as repetitive reaching and lifting packages with his left arm. In his October 17,
2020 narrative, Dr. Kalata again explained the mechanism of the injuries and referenced the reports
of Dr. Tuck, which supported his diagnoses and opinion. He opined that appellant’s left shoulder
conditions were caused by repetitive opening of the door to his work truck. The Board finds that,
although his reports are insufficient to discharge appellant’s burden of proof that his diagnosed
conditions were caused or aggravated by the accepted May 12, 2020 employment incident, his
reports raise an inference of causal relationship and constitute substantial, uncontroverted evidence
in support of the claim and provide sufficient rationale to require further development of the case
record by OWCP. 10
It is well established that, proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.11
The Board will therefore remand the case for further development of the medical evidence.
On remand, OWCP shall prepare a statement of accepted facts and obtain a rationalized opinion
from a physician in the appropriate field of medicine as to whether the accepted employment
incident caused or aggravated a diagnosed medical condition. If the physician opines that the
diagnosed conditions are not causally related, he or she must explain with rationale how or why
the opinion differs from that of Dr. Kalata. Following this and other such further development as
deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

See B.F., Docket No. 20-0990 (issued January 13, 2021); Y.D., Docket No. 19-1200 (issued April 6, 2020);
John J. Carlone, supra note 7; Horace Langhorne, 29 ECAB 820 (1978).
11

B.F., id.; K.P., Docket No. 18-0041 (issued May 24, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the February 22, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: December 20, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate 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
__________________________________________
)
A.G., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, GREENEVILLE POST )
OFFICE, Greeneville, TN, Employer
)
__________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 21-0756
Issued: October 18, 2021

Case Submitted on the Record

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

JURISDICTION
On April 5, 2021 appellant filed a timely appeal from an October 22, 2020 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 indicated that he was appealing a February 24, 2021 OWCP decision; however, there is no decision
issued by OWCP on that date. In a February 24, 2021 letter, OWCP advised that he should follow his appeal rights
from the October 22, 2020 decision regarding his claimed period of disability beginning March 24, 2020. As the
February 24, 2021 letter is informational in nature, it does not constitute a final adverse decision of OWCP from which
appellant may properly appeal. 20 C.F.R. §§ 501.2(c) and 501.3(a); see also S.U., Docket No. 20-0636 (issued
December 3, 2020). The October 22, 2020 OWCP decision is the only final adverse decision within the Board’s
jurisdiction.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the October 22, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish that he was disabled
from work beginning March 24, 2020 causally related to his accepted November 27, 2013 or
March 15, 2017 employment injuries.
FACTUAL HISTORY
On March 20, 2017 appellant, then a 53-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 15, 2017 he strained his right lower back and right knee while
in the performance of duty. OWCP accepted the claim, assigned OWCP File No. xxxxxx312, for
a traumatic tear of the medial meniscus of the right knee and lumbar strain. It paid appellant wage loss compensation for disability on the supplemental rolls beginning May 1, 2017 and on the
periodic rolls effective October 15, 2017. Appellant returned to full-time employment without
restrictions on May 29, 2018.4
On April 21, 2020, in a work excuse note, Donna Reaves with a medical provider requested
that appellant be excused from work for the period March 27 through April 17, 2020 due to illness.
In a report dated May 1, 2020, a nurse practitioner noted that appellant had been off work
beginning March 24, 2020. She found that he had back pain due to a March 17, 2017 employment
injury and indicated that an evaluation with a specialist was pending.
On May 4, 2020 appellant filed a claim for compensation (Form CA-7) for total disability
from March 24 to April 18, 2020 under OWCP File No. xxxxxx312. He continued to file claims
for wage-loss compensation subsequent to April 18, 2020.
In a development letter dated May 5, 2020, OWCP advised appellant that the evidence of
record was currently insufficient to establish his claim for compensation for disability beginning
March 24, 2020. It requested that he submit a detailed report from an attending physician
explaining how his condition had worsened such that he was unable to perform the duties of his
position. OWCP afforded appellant 30 days to submit the requested information.
Subsequently, OWCP received chart notes dated April 28, 2020 from a nurse practitioner
who evaluated appellant for progressively worsening back pain and indicated that his c ondition
was related to a March 2017 workers’ compensation injury to his lower back and neck. The nurse
practitioner diagnosed cervical radiculitis and spondylosis, neck pain, and lumbar pain radiating
into the right lower extremity. The nurse practitioner recommended a lumbar magnetic resonance
imaging (MRI) scan.
In an April 28, 2020 note, Dr. Wayne Woodbury, a Board-certified physiatrist, advised that
appellant was unable to work pending an MRI scan.

4

OWCP had previously accepted that appellant sustained a medial collateral ligament sprain and tear of the left
knee, a tear of the lateral meniscus of the left knee, unilateral primary osteoarthritis of the left knee, and neck sprain
causally related to a November 27, 2013 employment injury. It assigned OWCP File No. xxxxxx999. On April 23,
2014 appellant underwent an OWCP-authorized bilateral meniscal tear debridement, chondroplasty of the medial
femoral condyle, and synovectomy. He stopped work on April 23, 2014 and returned to his usual employment on
August 1, 2014. On November 6, 2017 appellant underwent an OWCP-authorized left total knee replacement.

2

On June 4, 2020 Dr. Woodbury cosigned the April 28, 2020 report from the nurse
practitioner. In an addendum dated June 4, 2020, he advised that he agreed with the nurse
practitioner’s findings. Dr. Woodbury indicated that appellant had previous problems from a
bulging lumbar disc but that his employment injury had caused his pain to increase. He related,
“[Appellant] has not been made disabled by his work[-]related accident, but his current state of
pain has caused him to have greater difficulty in attempting to work. A recommendation was made
for [him] to refrain from returning to work until such time that a comparison MRI [scan] could be
obtained. The anatomical findings of the MRI [scan] will help determine whether or not it is
reasonable and safe for [appellant] to return back to work.”
In a report dated June 4, 2020, submitted under OWCP File No. xxxxxx999,
Dr. Gregory L. Stewart, a Board-certified orthopedic surgeon, found no significant effusion but
laxity of the knee with flexion and an antalgic gait. He diagnosed a history of a left total knee
arthroplasty (TKA) and complications associated with an orthopedic device. Dr. Stewart
recommended a revision of the TKA. On June 29, 2020 he diagnosed complications associated
with an orthopedic device and right hip trochanteric bursitis and indicated that appellant could
perform sedentary employment.
On July 2, 2020 appellant accepted a position as a modified rural carrier at the employing
establishment.
In a July 2, 2020 form report, Dr. Woodbury diagnosed lumbar and cervical radiculopathy
and indicated that appellant was unable to work due to severe pain. He advised that appellant had
been disabled from April 28 through July 2, 2020.
By decision dated July 24, 2020, OWCP denied appellant’s claim for wage-loss
compensation due to disability beginning March 24, 2020 causally related to his accepted
March 15, 2017 employment injury.
In a letter dated August 5, 2020, appellant requested that OWCP combine OWCP File Nos.
xxxxxx999 and xxxxxx312. He advised that following his November 27, 2013 left knee injury
and left knee replacement he had an altered gait resulting in right knee pain. Appellant also
asserted that he continued to experience problems with his neck due to the November 27, 2013
work injury.
On August 5, 2020 appellant requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated October 22, 2020, OWCP’s hearing representative affirmed the July 24,
2020 decision. The hearing representative reviewed the evidence from OWCP File Nos.
xxxxxx312 and xxxxxx999 and found that appellant had not submitted any evidence from a
physician addressing the claimed period of disability. The hearing representative noted that he
might wish to file a consequential injury claim to his right knee due to his November 27, 2013
employment injury and instructed OWCP, on remand, to combine OWCP File Nos. xxxxxx312
and xxxxxx999.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury. 6 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury. 7 Whether a particular injury causes an
employee to become disabled for work, and the duration of that disability, are m edical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence. 8
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. 9 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.10 An employee who has a physical impairment causally related to his or her federal
employment injury, but who nonetheless has the capacity to earn the wages that he or she was
receiving at the time of injury, has no disability as that term is used in FECA. 11
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship. 12 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the na ture of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee. 13
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 his or her disability and
entitlement to compensation. 14

5

Supra note 2.

6

See D.S., Docket No. 20-0638 (issued November 17, 2020); Kathryn Haggerty, 45 ECAB 383 (1994).

7

See B.O., Docket No. 19-0392 (issued July 12, 2019); M.C., Docket No. 18-0919 (issued October 18, 2018).

8

See K.C., Docket No. 17-1612 (issued October 16, 2018).

9

20 C.F.R. § 10.5(f); B.O., Docket No .19-0392 (issued July 12, 2019); S.T., Docket No. 18-0412 (issued
October 22, 2018).
10

See L.W., Docket No. 17-1685 (issued October 9, 2018).

11

See M.W., Docket No. 20-0722 (issued April 26, 2021); D.G., Docket No. 18-0597 (issued October 3, 2018).

12

L.O., Docket No. 20-0170 (issued August 13, 2021); S.J., Docket No. 17-0828 (issued December 20, 2017);
Kathryn E. DeMarsh, 56 ECAB 677 (2005).
13

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000).

14

T.L., Docket No. 18-0934 (issued May 8, 2019); Sandra D. Pruitt, 57 ECAB 126 (2005).

4

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he was
disabled from work beginning March 24, 2020 causally related to his accepted November 27, 2013
or March 15, 2017 employment injuries.
In an April 28, 2020 report, Dr. Woodbury discussed appellant’s complaints of increased
back pain and attributed his condition to a March 2017 employment injury to his low back and
neck. He diagnosed cervical radiculitis and spondylosis, neck pain, and lumbar pain radiating into
the right lower extremity. Dr. Woodbury advised that appellant was not disabled due to his
employment injury but that pain had made working difficult. In a June 4, 2020 addendum, he
noted that appellant’s work injury had caused an increase in pain from a preexisting bulging lumbar
disc. Dr. Woodbury recommended that he remain off work pending a new MRI scan. The Board
has held, however, that subjective complaints of pain are insufficient to establish disability from
employment. 15 As Dr. Woodbury failed to provide a rationalized opinion substantiating disability
from work supported by objective findings, his reports are insufficient to meet appellant’s burden
of proof.16
On June 29, 2020 Dr. Stewart diagnosed complications associated with an orthopedic
device and right hip trochanteric bursitis and indicated that appellant could perform sedentary
employment. He did not, however, discuss how the accepted employment injury was competent
to cause disability during the claimed period. 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/level of disability has an employment-related cause. 17 Therefore,
this report is insufficient to establish appellant’s disability claim.
In a July 2, 2020 form report, Dr. Woodbury diagnosed lumbar and cervical radiculopathy
and advised that appellant had been unable to work from April 28 through July 2, 2020. He did
not, however, address disability from work due to either of the accepted employment injuries. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition or disability is of no probative value on the issue of causal relationship. 18
Therefore, this report is insufficient to establish appellant’s claim for compensation.
On June 4, 2020 Dr. Stewart discussed appellant’s history of a left TKA and complications
due to an orthopedic device. He recommended a revision of the TKA. Dr. Stewart did not address
the issue of whether appellant was disabled during the claimed period. 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

15

See B.L., Docket No. 20-1685 (issued May 25, 2021); G.J., Docket No. 18-1335 (issued March 22, 2019).

16

See G.J., id.

17

See S.C., Docket No. 21-0263 (issued August 24, 2021); T.T., Docket No. 18-1054 (issued April 8, 2020).

18

L.O., supra note 12; L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued
July 6, 2018).

5

allow employees to self-certify their disability and entitlement to compensation. 19 Thus, his report
is insufficient to establish appellant’s disability claim.
The record contains a May 1, 2020 report from a nurse practitioner. However, the Board
has held that medical reports signed solely by a nurse practitioner are of no probative value, as
nurse practitioners are not considered physicians as defined under FECA and, therefore, are not
competent to provide a medical opinion.20
On April 21, 2020 Ms. Reaves requested that appellant be excused from work for the
period March 27 through April 17, 2020 due to illness. However, there is no evidence that the
April 21, 2020 request was signed by a physician. Therefore, it does not constitute probative
medical evidence as it was not signed or reviewed by a physician.21
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 22 Because the medical opinion evidence of record is insufficient to establish
employment-related disability during the period claimed as a result of the accepted employment
injuries, the Board finds that appellant has not met his burden of proof to establish his claim for
disability compensation.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he was
disabled from work beginning March 24, 2020 causally related to his accepted November 27, 2013
or March 15, 2017 employment injuries.

19

See S.L., Docket No .19-0603 (issued January 28, 2020); E.B., Docket No .17-0875 (issued December 13, 2018).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); see also M.C., Docket No. 19-1074 (issued June 12, 2020); S.L., Docket No. 19-0607 (issued January 28,
2020) (nurse practitioners are not considered physicians under FECA.
20

21

See S.D., Docket No. 21-0292 (issued June 29, 2021); G.W., Docket No. 20-0507 (issued March 4, 2021);
Merton J. Sills, 39 ECAB 572 (1988).
22

L.O., supra note 12.

6

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 18, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 06-960
Issued: February 28, 2007

Case Submitted on the Record

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

JURISDICTION
On March 20, 2006 appellant filed a timely appeal from January 6 and 12, 2006 nonmerit
decisions of the Office of Workers’ Compensation Programs denying her request for
reconsideration as it was untimely and did not establish clear evidence of error. As the most
recent merit decision of record is dated June 19, 2003, more than one year from the filing of this
appeal, the Board lacks jurisdiction to review the merits of appellant’s claim.1 Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the January 6 and 12, 2006
nonmerit decisions.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request for reconsideration was not
timely filed and failed to demonstrate clear evidence of error.

1

20 C.F.R. §§ 501.2(c), 501.3.

FACTUAL HISTORY
On March 22, 1985 appellant, then a 38-year-old letter carrier, filed an occupational
disease claim alleging that she sustained a left shoulder condition causally related to her federal
employment. The Office accepted the claim, assigned file number 090291600, for an anterior
subluxation with laxity of the left shoulder, capsulitis of the left shoulder and a subluxation of
the atlas and axis vertebrae. Appellant stopped work on December 20, 1984. She underwent an
arthroscopic repair of the anterior subluxation on December 21, 1984. Appellant returned to her
regular employment on April 18, 1985.
On May 19, 1998 appellant filed an occupational disease claim alleging that her shoulder
condition worsened due to the performance of her employment duties. The Office accepted the
claim, assigned file number 090440797, for an aggravation of a left shoulder subluxation, an
aggravation of degenerative joint disease of the left shoulder and conversion and depressive
disorders. Appellant stopped work on April 18, 1997 and underwent an arthroscopy of the left
shoulder with a Mumford procedure on July 17, 1998. She returned to work for one to two hours
per day on December 2, 1998 but stopped work on February 25, 1999 and did not return. The
Office paid appellant compensation for total disability.
By decision dated May 14, 2002, the Office terminated authorization for medical benefits
for the accepted conditions of a subluxation of the atlas and axis vertebrae in file number
090291600. The Office found that the opinion of Dr. Paul DeVries, a Board-certified orthopedic
surgeon, represented the weight of the medical evidence and established that appellant had no
residuals from her accepted vertebral subluxations. The Office noted that she continued to be
entitled to medical benefits for her work-related left shoulder injury and emotional condition as
well as disability compensation under file number 090440797.
On January 11, 2003 appellant requested reconsideration of the Office’s May 14, 2002
decision. By decision dated January 22, 2003, the Office denied her request for reconsideration
after finding that the evidence was insufficient to warrant further merit review. Appellant again
requested reconsideration by letter dated February 24, 2003. In a decision dated March 4, 2003,
the Office denied merit review based on its finding that her request for reconsideration raised no
new legal contention and included no new relevant evidence.
On March 16, 2003 appellant requested reconsideration and submitted additional medical
evidence. In a decision dated June 19, 2003, the Office denied modification of its May 14, 2002
decision terminating medical benefits, including chiropractic care, for the conditions of a
subluxation of the atlas and axis vertebrae.
On August 10, 2005 appellant requested assistance from the Office in obtaining coverage
for chiropractic treatment. The Office explained that she should follow her appeal rights in file
number 0902961600 and described the medical evidence necessary to establish a cervical
condition requiring treatment.
Appellant, by letter dated August 30, 2005, requested reconsideration of the June 19,
2003 decision. She described her history of chiropractic care and asserted that her attending
chiropractor, Dr. Kevin Johnson, failed to send in adequate reports to the Office as promised.

2

Appellant argued that the denial of care caused a “severe neck subluxation to continue” and
noted that she was hospitalized in April 2005 for cervical vertigo. She challenged Dr. DeVries’
finding that her subluxations had resolved.
On August 17, 2005 Dr. R. Michael Kelly, a Board-certified internist, diagnosed chronic
internal derangement of the left shoulder and a disc herniation of the cervical spine. He noted
that appellant injured her neck and shoulder while working for the employing establishment.
Dr. Kelly recommended medical treatment for her neck and stated, “This condition has worsened
over the several years since care has not been authorized. Chiropractic care, in particular, would
be important to be used in conjunction with the other conservative treatment regiments that are in
place.”2
On August 18, 2005 Dr. Charles F. Roost, a chiropractor, discussed appellant’s history of
injury and medical treatment received. He interpreted x-rays dated August 4, 2005 as showing a
rotational misalignment at C2 through T2, L1 and L5. Dr. Roost diagnosed a subluxation
complex, or nerve impingement syndrome, at C1, C6, T2, T9 and L5. He attributed the cervical
nerve impingement syndrome to appellant’s employment injury and recommended chiropractic
treatments. Dr. Roost asserted that Dr. DeVries was not a chiropractor and thus should not
address chiropractic diagnoses. The record contains a similar report from Dr. Roost dated
October 5, 2005 and also three pages of a December 12, 2005 report from Dr. Roost’s clinic;
however, the report is unsigned and the final page is missing.
Appellant submitted hospital records relevant to her admission from April 5 to 8, 2005
for vertigo and an emergency room report dated June 2, 2005 documenting her treatment for a
severe headache. She also submitted a report dated June 20, 2005 from Dr. Mark D. Lebeda, a
Board-certified otolaryngologist, who evaluated appellant for resolving vertigo, possibly of a
cervical origin. A computerized tomography (CT) scan of her cervical spine obtained on
July 24, 2005 revealed a mild central disc protrusion at C6-7.
By decision dated January 6, 2006, the Office denied appellant’s request for
reconsideration as it was not timely filed and failed to establish clear evidence of error. On
January 12, 2006 the Office amended its January 6, 2006 decision as it had failed to review the
hospital reports submitted with appellant’s request for reconsideration. The Office again denied
merit review on the grounds that her request for reconsideration was untimely and insufficient to
show clear evidence of error.
LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.3
The Office will not review a decision denying or terminating a benefit unless the application for

2

The record further contains clinic notes from Dr. Kelly dated June 2003 to April 16, 2004 documenting his
treatment of appellant for pain.
3

5 U.S.C. §§ 8101-8193.

3

review is filed within one year of the date of that decision.4 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.5 The Office procedures state
that the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review shows “clear
evidence of error” on the part of the Office.6 In this regard, the Office will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by 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 the Office. 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.9 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.10
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. The Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins the date following an original Office decision.11
A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.12
4

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

5

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

6

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “[The Office] will consider an
untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of
[it] in its most recent decision. The application must establish, on its face, that such decision was erroneous.” 20
C.F.R. § 10.607(b).
7

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

8

Darletha Coleman, 55 ECAB 143 (2003).

9

Id.

10
11
12

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).
20 C.F.R. § 10.607(a).
Robert F. Stone, 57 ECAB ___ (Docket No. 04-1451, issued December 22, 2005).

4

In this case, appellant’s August 30, 2005 request for reconsideration was submitted more than
one year after the last merit decision of record dated June 19, 2003. Thus, it was untimely.
Consequently, she must demonstrate clear evidence of error by the Office in its most recent merit
decision.13
In its last merit decision dated June 19, 2003, the Office denied modification of its
May 14, 2002 termination of medical benefits for the conditions of a subluxation of the atlas and
axis vertebrae. Appellant argued that the Office erred in failing to authorize treatment for
chiropractic services and contended that Dr. DeVries incorrectly determined that her accepted
subluxations had resolved. She maintained that her subluxations worsened because she did not
receive proper medical care. The relevant issue, however, is whether the medical evidence
establishes that she requires continued medical treatment due to a subluxation of the atlas and
axis vertebrae. As this issue is medical in nature, it can only be resolved through the submission
of medical evidence.14 Appellant’s lay opinion on her need for further medical treatment is not
relevant as the Board has held that lay individuals are not competent to render a medical
opinion.15 Consequently, her contentions are insufficient to establish clear evidence of error by
the Office.
In an August 17, 2005 report, Dr. Kelly diagnosed chronic internal derangement of the
left shoulder with an anterior subluxation and a disc herniation of the cervical spine and noted
that appellant sustained neck and shoulder injuries working for the employing establishment. He
opined that she required additional medical treatment, including chiropractic treatment, for her
neck. While Dr. Kelly found that appellant required further chiropractic treatment for her neck,
his opinion is not sufficient to show clear evidence of error. The term “clear evidence of error”
is intended to represent a difficult standard. The submission of 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.16 The evidence
must prima facie shift the weight of the evidence in favor of appellant.17 Dr. Kelly’s report does
not constitute evidence which manifests on its face that the Office committed an error in
terminating medical benefits for the accepted subluxations.
On August 18, 2005 Dr. Roost, a chiropractor, diagnosed a subluxation complex or nerve
impingement syndrome, at C1, C6, T2, T9 and L5 by x-ray.18 He attributed the cervical nerve
13

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB ___ (Docket No. 05-1637, issued October 18, 2005).

14

George C. Vernon, 54 ECAB 319 (2003).

15

Gloria J. McPherson, 51 ECAB 441 (2000).

16

Joseph R. Santos, 57 ECAB ___ (Docket No. 06-452, issued May 3, 2006).

17

See Darletha Coleman, supra note 8.

18

The Act provides that the term physician includes chiropractors only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist. See 5 U.S.C. § 8101(2). Dr. Roost diagnosed a misalignment by x-ray, he is
considered a physician under the Act. See Mary A. Ceglia, 55 ECAB 626 (2004). A subluxation is an incomplete
dislocation, off-centering, misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrable
on an x-ray of any film to an individual trained in the reading of x-rays. 20 C.F.R. § 10.5(bb).

5

impingement syndrome to appellant’s employment injury and recommended chiropractic
treatments. Dr. Roost challenged Dr. DeVries qualifications to address a chiropractic diagnoses.
He submitted a similar report on October 5, 2005. Dr. Roost’s opinion, however, fails to show
on its face that the Office erroneously relied upon Dr. DeVries’ report to terminate medical
treatment for appellant’s atlas and axis subluxations. As Dr. Roost’s opinion does not
“prima facie” shift the weight of the evidence in favor of appellant, the Office properly found
that it was insufficient to warrant reopening her claim for merit review.19 The record also
contains a December 12, 2005 report from Dr. Roost’s clinic; however, this report is unsigned
and missing pages. The Board has held that medical reports lacking proper identification are of
no probative value.20
Appellant submitted hospital records describing her treatment for vertigo from April 5
to 8, 2005, an emergency room report dated June 2, 2005 documenting her treatment for a severe
headache and a June 20, 2005 report from Dr. Lebeda, who diagnosed possible cervical vertigo.
She also submitted a CT scan of her cervical spine showing a mild central disc protrusion at
C6-7. This evidence, however, is not relevant to the issue of whether appellant has residuals
from her axis and atlas vertebral subluxations. In order to establish clear evidence of error, a
claimant must submit evidence relevant to the issue which was decided by the Office.21
The evidence submitted by appellant is insufficient to prima facie shift the weight of
evidence in favor of the claimant or raise a substantial question as to the correctness of the
Office’s last merit decision. She has not established clear evidence of error.22
CONCLUSION
The Board finds that the Office properly determined that appellant’s request for
reconsideration was untimely and failed to show clear evidence of error.

19

See Robert F. Stone, supra note 12.

20

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006); Vickey C. Randall, 51 ECAB 357
(2000); Merton J. Sills, 39 ECAB 572 (1988).
21

Howard Y. Miyashiro, 51 ECAB 253 (1999).

22

See Veletta C. Coleman, supra note 5.

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 12 and 6, 2006 are affirmed.23
Issued: February 28, 2007
Washington, DC

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

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

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

23

Appellant submitted new evidence with her appeal. The Board has no jurisdiction to review evidence for the
first time on appeal that was not before the Office at the time it issued its final decision. See 20 C.F.R. § 501.2(c).

7