United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Oak Park, MI, Employer
__________________________________________

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

Docket No. 11-468
Issued: September 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 14, 2010 appellant filed a timely appeal from the November 9, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she had
disability from January 8 to March 19, 2010 causally related to her accepted employment
condition.
FACTUAL HISTORY
On November 23, 2009 appellant, then a 46-year-old legal assistant/senior case
technician, filed a traumatic injury claim alleging that on November 12, 2009 while entering her
1

5 U.S.C. §§ 8101-8193.

building after lunch she tripped on a mat and fell injuring her right ankle, knee and chest. She
stopped work on November 12, 2009 and returned on November 19, 2009. OWCP accepted
right ankle sprain a contusion, right knee contusion, chest contusion and abdominal contusion
and expanded appellant’s claim to include localized primary osteoarthritis of the right knee and
aggravation of osteoarthritis of the left knee. On May 3, 2010 it authorized a total right knee
replacement.
Appellant was treated by Dr. David H. Mendelson, a Board-certified orthopedist, from
December 7, 2009 to February 5, 2010 for injuries sustained in a slip and fall accident at work.
In a December 7, 2009 report, Dr. Mendelson diagnosed significant knee contusion and arthritis
of the knees. In a December 28, 2009 disability slip, he diagnosed meniscus tear and knee
arthritis. Dr. Mendelson noted on a January 11, 2010 disability slip that appellant would be
disabled from January 25 to February 22, 2010, due to right knee arthroscopic surgery on
January 25, 2010. On February 5, 2010 appellant presented with progressing symptoms of the
right knee with popping and catching. Dr. Mendelson noted that x-rays of the right knee
revealed medial narrowing with a marginal spur. He noted restricted range of motion and
diagnosed right knee torn meniscus and knee arthritis, which progressed as a consequence of the
fall. A December 28, 2009 magnetic resonance imaging (MRI) scan of the right knee revealed
advanced degenerative changes in the patellofemoral and medial compartments with a medial
meniscal tear. An MRI scan of the left knee revealed degenerative changes at the patellofemoral
joint.
Appellant submitted a (Form CA-7), claiming compensation for intermittent total
disability for the period January 3 to February 27, 2010. The employing establishment provided
a (Form CA-7a), time analysis form, noting that she requested 8 hours of compensation for
extreme pain and instability on January 8, 11 and 12, 2010, 4.75 hours; on January 28, 2010, 7
hours; for February 10, 2010, 8 hours; on February 11, 23 and 25, 2010, .25 hours; and on
February 26, 2010.
Appellant submitted a February 25, 2010 report from Dr. Mendelson, who noted a history
of her November 12, 2009 fall and diagnosed arthritis of the knees, contusion and torn meniscus
aggravated by the work-related fall. Dr. Mendelson recommended a total right knee arthroplasty.
On March 2, 2010 he diagnosed knee contusion, meniscus tear and knee arthritis and advised
that appellant’s condition had deteriorated as a consequence of her November 12, 2009 fall.
Dr. Mendelson advised that there were many days when her pain and right knee instability
prevented her from working. He requested that appellant be excused from work all day on
January 8, 11, 12, 28 and 29, February 10, 11, 23 and 25, 2010, two hours on January 22 and 27
and February 16, 2010 and 30 minutes on February 22, 2010.
On March 17, 2010 OWCP requested that appellant submit additional information
regarding her claim for compensation. It requested that she submit medical evidence showing
that she was totally disabled due to her accepted condition for the period claimed.2

2

OWCP referred appellant’s medical records to its medical adviser, who on March 18, 2010, concurred with
Dr. Mendelson that her fall contributed to and aggravated her right knee condition. However, the medical adviser
noted that a unicompartmental right knee replacement was appropriate instead of the total knee replacement.

2

Appellant filed a CA-7 form, claiming compensation for intermittent disability from
February 28 to March 13, 2009 and from March 14 to 27, 2010.3 The employing establishment
provided a CA-7a form, time analysis form, noting that she requested 3 hours of compensation
for extreme pain and instability on March 4, 2010, 8 hours for March 8 and 9, 2010, 2 hours, for
March 11, 2010, 4 hours, on March 15, 2010, 8 hours, on March 16, 2010, 2 hours, on March 17,
2010, 3.75 hours, on March 19, 2010 and 8 hours on March 25, 2010.
Appellant submitted a February 12, 2010 disability slip from Dr. Mendelson, who
diagnosed knee arthritis, meniscus tear and knee contusion and noted that she was excused from
work for two hours on January 22 and 27 and February 16, 2010. In a February 24, 2010
disability slip, Dr. Mendelson diagnosed knee arthritis, medial meniscus tear and knee contusion
and excused her from work for 30 minutes on February 22, 2010 and eight hours on
February 23, 2010. On March 15, 2010 he diagnosed knee contusion, meniscal tear and knee
arthritis sustained after a work fall on November 12, 2009. Dr. Mendelson advised that
appellant’s condition deteriorated due to her fall and there were days when her pain and right
knee instability prohibited her from working. He requested that she be excused from work for
three hours on March 4, 2010, all day on March 8 and 9, 2010 and two hours on March 11, 2010.
In a March 25, 2010 disability note, Dr. Mendelson diagnosed meniscus tear, knee contusion and
knee arthritis diagnosed meniscus tear, knee contusion and knee arthritis and noted that appellant
could return to work on May 10, 2010 with restrictions. In a March 25, 2010 report, he noted
exhausting conservative treatment options and her right knee condition was progressing.
Dr. Mendelson noted that appellant was unable to work because of her knee dysfunction and was
awaiting approval for a total knee replacement. Right knee x-rays revealed 90 percent joint loss
on the medial side. Dr. Mendelson diagnosed history of November 12, 2009 fall with right knee
injury, torn meniscus and traumatic arthritis. He returned appellant to light-duty job, three days a
week. In a March 26, 2010 report, Dr. Mendelson noted that her condition deteriorated as a
consequence of her fall and there were many days when her pain and right knee instability
prevented her from working. He requested that appellant be excused from work all day on
March 15, 16 and 25, 2010, two hours on March 17, 2010 and four hours on March 19, 2010.
On April 2, 2010 Dr. Mendelson noted that she was unable to work on several days due to her
knee and ankle conditions and advancing joint deterioration that caused episodes of pain, locking
and discomfort. The days missed from work were consistent with the pathology seen, including
limited motion, difficulty walking and tenderness. In an April 2, 2010 treatment note,
Dr. Mendelson noted that appellant continued having a buckling right knee with tenderness on
the medial joint and patellofemoral joint. Right knee x-rays revealed end stage medial
narrowing, spur formation and advanced patellofemoral arthrosis. Dr. Mendelson diagnosed
right knee status post fall, torn meniscus and traumatic arthritis. April 19 and 26, 2010 notes
from his diagnosed torn meniscus of the right knee noted that appellant was disabled from
April 5 to May 3, 2010.
In a decision dated May 4, 2010, OWCP denied appellant’s claim for compensation for
total disability for 94.75 intermittent hours from January 8 to March 19, 2010, on the grounds
that the evidence did not establish that her total disability was due to her accepted work injury. It
3

The CA-7 form notes a disability period of February 28 to March 13, 2009; however, this appears to be a
typographical error and should be February 28 to March 13, 2010.

3

noted that the evidence supported that appellant was treated for her work-related injury on
February 25, March 15 and 25, 2010 and would be granted four hours of compensation for each
day.
On May 24, 2010 appellant requested an oral hearing which was held on
September 2, 2010. She submitted a February 25, 2010 report from Dr. Mendelson, who
diagnosed right knee torn meniscus, arthritis with a history of a fall and recommended a knee
replacement. On March 8, 2010 Dr. Mendelson treated appellant for left knee pain. Appellant
reported playing basketball in her youth and having an arthroscopy in 1987. Dr. Mendelson
noted that she fell on November 12, 2009 and had increasing soreness since that time and
diagnosed left knee traumatic chondromalacia with meniscus pathology and arthritis. On May 3,
2010 he performed a complex total right knee arthroplasty and diagnosed right knee
osteoarthritis and morbid obesity. In reports dated May 14 to July 23, 2010, Dr. Mendelson
noted that appellant was progressing well post right knee arthroplasty. In a June 3, 2010
operative report, he noted performing a left knee arthroscopy, medial meniscectomy,
tricompartmental chondroplasty, synovectomy, partial lateral meniscectomy and diagnosed left
knee torn medial meniscus with arthritis and synovitis. Dr. Mendelson continued noting
appellant’s status after her surgery.4
In a decision dated November 9, 2010, the hearing representative affirmed the May 4,
2010 decision.
LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.5 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.6 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.7 To meet this burden, a claimant must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition and the accepted injury.8
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. For each period of disability claimed, the employee has the burden
4

Appellant also submitted statements and evidence concerning expansion of her claim and OWCP undertook
further development. This matter is not before the Board on the present appeal.
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Id.

7

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

8

C.S., Docket No. 08-2218 (issued August 7, 2009).

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of establishing that he or she was disabled for work as a result of the accepted employment
injury.9
ANALYSIS
OWCP accepted appellant’s claim for right ankle sprain and contusion, right knee
contusion, chest contusion and abdominal contusion, localized primary osteoarthritis of the right
knee and aggravation of osteoarthritis of the left knee. The Board notes that OWCP found that
the record supported that she received treatment for her accepted condition on February 25 and
March 15 and 25, 2010 and granted her four hours of compensation on each of those dates.10
However, the medical evidence submitted in support of the wage-loss compensation
claim for intermittent partial and total disability for intermittent periods beginning January 8 to
March 19, 2010 is otherwise insufficient to establish that the claimed period of disability was
caused or aggravated by the accepted employment injury.
On January 11, 2010 Dr. Mendelson noted that appellant would be disabled from
January 25 to February 22, 2010, due to right knee arthroscopic surgery on January 25, 2010 but
the record does not indicate that she underwent surgery on that date and he did not otherwise
explain the reasons why she could not work on the specified dates. On February 5, 2010 he
noted that her symptoms were worsening but he did not specifically explain why the work injury
caused total disability on the claimed dates. In disability slips dated February 12 and 24, 2010,
Dr. Mendelson diagnosed knee arthritis, meniscus tear and knee contusion and noted that
appellant was excused from work for two hours on January 22 and 27 and February 16, 2010, 30
minutes on February 22, 2010 and eight hours on February 23, 2010. Other reports dated
March 2, 15 and 26, 2010 diagnosed knee contusion, meniscus tear and knee arthritis and
advised that her condition had deteriorated as a consequence of her November 12, 2009 fall and
pain and right knee instability prevented her from working. Dr. Mendelson excused appellant
from work all day on January 8, 11, 12, 28 and 29 and February 10, 11, 23 and 25, 2010, two
hours on January 22 and 27 and February 16, 2010 and 30 minutes on February 22, 2010, three
hours on March 4, 2010, all day on March 8 and 9, 2010, two hours on March 11, 2010 all day
on March 15, 16 and 25, 2010, two hours on March 17, 2010 and four hours on March 19, 2010.
Although these notes indicated that appellant was disabled from work on certain days, the
physician failed to provide a reasoned opinion explaining why she was totally disabled due to her
work injury for any of the particular dates. As Dr. Mendelson did not adequately explain how
any specific period of disability was due to the accepted work injury of November 12, 2009,
these reports are insufficient to establish that appellant had compensable wage loss. As noted,
part of appellant’s burden of proof includes submitting rationalized medical evidence which
supports a causal relationship between the alleged disabling condition and the accepted injury.
Other reports from Dr. Mendelson and other physicians do not specifically address the
period of claimed disability at issue. Neither Dr. Mendelson nor any other physician provided a
9

Sandra D. Pruitt, 57 ECAB 126 (2005).

10

See Daniel Hollars, 51 ECAB 355 (2000) (an employee is entitled to disability compensation for loss of wages
incidental to treatment for an employment injury).

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specific opinion on causal relationship explaining the reasons why appellant’s total disability on
the claimed dates was caused or aggravated by the accepted employment injury of
November 12, 2009. Consequently, the medical evidence does not establish that the claimed
period of disability is due to appellant’s employment injury of November 12, 2009.
On appeal, appellant asserts that she continued to be totally disabled due to her work
injury and her condition was documented by Dr. Mendelson. The Board notes that
Dr. Mendelson’s reports set forth her symptoms and restrictions. However, none of the reports
explained whether appellant was totally disabled during the period in question as a result of the
accepted conditions. Appellant further asserted that the May 4, 2010 decision incorrectly noted
that she requested 94.75 hours of leave when she also requested to buy back leave for a total of
124.75 hours of leave. The Board notes that OWCP did not issue a final decision on her request
to buy back leave for other periods and therefore the Board does not have jurisdiction over the
matter.11
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 failed to establish that her disability for the period
June 10, 2008 to September 4, 2009 is causally related to the accepted employment injury.

11

See 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 9, 2010 is affirmed.
Issued: September 22, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 18-1239
Issued: May 29, 2019

Case Submitted on the Record

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

JURISDICTION
On June 4, 2018 appellant, through counsel, filed a timely appeal from an April 26, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the April 26, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish total
disability from work for the period April 10 to August 7, 2015, causally related to her accepted
February 23, 2015 employment injury; and (2) whether appellant has established that the
acceptance of her claim should be expanded to include the additional conditions of left tarsal tunnel
syndrome, posterior tibial neuropathy, left ankle derangement, deltoid ligament partial tear,
anterior talofibular (ATF) ligament partial tear, calcaneofibular (CFL) partial tear, and nondisplaced left ankle fracture.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 26, 2015 appellant, then a 41-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on February 23, 2015, she twisted her left ankle when descending
stairs while in the performance of duty. She noted that she sprained her ankle and experienced
pain. Appellant stopped work on February 24, 2015 and returned on February 26, 2015.
Appellant was treated by Dr. Joseph Gregorace, Board-certified in physical medicine and
rehabilitation and pain management. In an initial March 2, 2015 report, Dr. Gregorace noted that
appellant worked as a letter carrier and described that, on February 23, 2015, she twisted her left
ankle while descending stairs. He related appellant’s complaints of worsening left ankle pain and
swelling. Upon examination of appellant’s left ankle, Dr. Gregorace observed tenderness along
the medial aspect. Anterior Drawer and Tinel’s tests were negative. Dr. Gregorace diagnosed left
ankle sprain. He opined that there was “causal relation between the left ankle injury and the workrelated accident from February 23, 2015.” Dr. Gregorace found her totally disabled from work
due to her left ankle injury.
By decision dated April 15, 2015, OWCP initially denied the claim, finding that the factual
evidence of record was insufficient to establish that the February 23, 2015 incident occurred as
alleged. It also determined that the medical evidence did not establish a diagnosed condition as a
result of the alleged incident. OWCP concluded, therefore, that appellant had not met the
requirements to establish an injury as defined by FECA.
On June 16, 2015 appellant requested reconsideration and submitted additional medical
evidence.
OWCP received additional reports and work status notes from Dr. Gregorace dated
February 23 to May 12, 2015. Dr. Gregorace related appellant’s complaints of persistent medial
left ankle pain and provided examination findings. He noted additional diagnoses of left ankle
derangement with deltoid ligament partial tear, ATF partial tear, and CFL tear, left tarsal tunnel
syndrome, and nondisplaced left ankle fracture. In a May 12, 2015 report, Dr. Gregorace opined

4

Docket No. 16-1543 (issued March 13, 2017).

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that these traumatic injuries were a result of a work-related accident on February 23, 2015. He
indicated that appellant was totally disabled from work.
By decision dated July 16, 2015, OWCP accepted appellant’s claim for left ankle sprain.
By a separate decision of even date, it denied her claim for the medical conditions of left tarsal
tunnel syndrome, posterior tibial neuropathy, left ankle derangement, deltoid ligament partial tear,
ATF ligament partial tear, CFL partial tear, and nondisplaced left ankle fracture. OWCP found
that the medical evidence of record was insufficient to establish causal relationship between the
additional left ankle conditions outlined by Dr. Gregorace and the February 23, 2015 employment
injury.
On August 17, 2015 appellant filed a claim for wage-loss compensation (Form CA-7) for
total disability for the period April 10 to August 7, 2015 as a result of her accepted injury. On the
reverse side of the Form CA-7, the employing establishment indicated that she stopped work on
February 24, 2015 and received continuation of pay (COP) until April 9, 2015.
In an August 28, 2015 claim development letter, OWCP requested additional medical
evidence to establish that her inability to work during the claimed period was causally related to
her accepted February 23, 2015 employment injury. It afforded appellant 30 days to submit the
requested information.
OWCP received a duty status report (Form CA-17) and an attending physician’s report
(Form CA-20) dated August 25, 2015 by Dr. Gregorace. Dr. Gregorace reported clinical findings
and diagnoses of left ankle fracture, ligament tears, and left tarsal tunnel syndrome. In the Form
CA-20, he checked a box marked “yes” indicating that appellant’s diagnosed conditions were
caused or aggravated by the employment activity. Dr. Gregorace again related that appellant was
totally disabled from work beginning February 23, 2015.
In a decision dated October 6, 2015, OWCP denied appellant’s claim for wage-loss
compensation, finding that the medical evidence of record was insufficient to establish that she
was disabled from work for the period April 10 to August 7, 2015 due to her accepted February 23,
2015 left ankle sprain injury. It noted that Dr. Gregorace provided diagnoses of left ankle internal
derangement, ATF ligament partial tear, CFL ligament partial tear, left tarsal tunnel syndrome, left
ankle fracture, and left ankle derangement, which were found not to be accepted conditions.
On February 12, 2016 appellant, through counsel, requested reconsideration and submitted
additional medical evidence in the form of a report from Dr. Gregorace dated October 6, 2015.
By decision dated May 12, 2016, OWCP denied modification of the July 16 and October 5,
2015 decisions. It found that the medical evidence of record was insufficient to establish that the
February 23, 2015 employment injury caused or contributed to the additional conditions of left
tarsal tunnel syndrome, posterior tibial neuropathy, left ankle derangement, deltoid ligament
partial tear, ATF ligament partial tear, CFL partial tear, or left ankle fracture. OWCP further
determined that, because the medical evidence attributed appellant’s inability to work to those
additional conditions, and not the accepted left ankle sprain condition, she had not established her
claim for wage-loss compensation for the period April 10 to August 7, 2015.
Appellant subsequently appealed to the Board.

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OWCP received several work status forms dated April 14 and July 9, 2015 by
Dr. Gregorace. Dr. Gregorace reported a diagnosis of left ankle derangement and marked a box
indicating that appellant was 100 percent disabled.
By decision dated March 13, 2017, the Board affirmed the May 12, 2016 decision. The
Board determined that the evidence of record was insufficient to establish that the acceptance of
appellant’s claim should be expanded to include additional conditions of left tarsal tunnel
syndrome, posterior tibial neuropathy, left ankle derangement, deltoid ligament partial tear, ATF
ligament partial tear, calcaneofibular CFL partial tear, and nondisplaced left ankle fracture. The
Board noted that the medical evidence of record failed to contain rationalized medical opinion
explaining how the February 23, 2015 work injury caused or contributed to these additional left
lower extremity conditions. The Board further found that the medical evidence of record was
insufficient to establish that appellant was disabled from work for the period April 10 through
August 7, 2015 due to the accepted February 23, 2015 left ankle sprain injury.
On January 31, 2018 appellant requested reconsideration and submitted additional medical
evidence.
Appellant began to receive treatment from Dr. John J. McGee, a podiatrist. In an initial
March 8, 2017 report, he described that on February 23, 2015 appellant twisted her left ankle and
fell down. Dr. McGee reported examination findings of moderate distress secondary to pain and
mild tenderness of the medial and lateral aspect. Range of motion was restricted. Dr. McGee
diagnosed status post left ankle fracture and multi-ligament tears. He provided follow-up
examination reports dated March 30 and May 22, 2017, which provided examination findings and
diagnosed status post left ankle fracture with multiligament errors. Dr. McGee responded “yes”
indicating that the incident described by the patient was the competent cause of the injury and that
the history of injury was consistent with objective findings.
In an August 14, 2017 initial doctor’s report, Dr. Marc Hilaire, an internist, described that
on February 23, 2015 appellant was delivering mail when she twisted her left ankle at work. Upon
examination of appellant’s left ankle, he observed pain and tenderness and decreased strength.
Dr. Hilaire reported diagnoses of left ankle sprain and contusion, left foot sprain and contusion,
and left malleolus fracture. He checked a box marked “yes” indicating that the incident described
was the medical cause of the injury. Dr. Hilaire further indicated that appellant was 100 percent
disabled and could not work because of left foot pain and decreased range of motion. He
completed follow-up examination reports dated August 18, 2017 to March 5, 2018 and continued
to opine that appellant was 100 percent disabled due to pain, decreased range of motion, and
decreased functional capacity.
Dr. Steven M. Yager, a Board-certified podiatrist related in a November 21, 2017 report
appellant’s complaints of pain in her left foot and ankle and diagnosed internal ankle derangement.
In a narrative report dated January 18, 2018, Dr. Gregorace related that appellant was
initially examined and diagnosed with a left ankle sprain due to a February 23, 2015 traumatic
injury. He indicated that appellant developed neurologic symptomatology in the medial aspect of
the left ankle, which was confirmed by electrodiagnostic testing to be left tarsal tunnel syndrome
(left posterior tibial neuropathy). Dr. Gregorace opined that the “stretching and twisting of the
ankle not only caused soft tissue ligament injury, but also caused stretching of the peripheral nerve
which is just posterior to the medial malleolus.” He further explained that appellant sustained a
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“stretching[-]type injury to the left posterior tibial nerve” due to the significant injury to her left
ankle soft tissues. Dr. Gregorace reported that appellant also sustained ligament tears along the
medial and lateral aspects of the left ankle. He opined that appellant’s left ankle sprain later
evolved into ligament tears, as noted on an MRI scan.
By decision dated April 26, 2018, OWCP denied modification of the May 12, 2016
decision. It found that the medical evidence of record did not provide sufficient medical rationale
explaining how her claimed disability from work for the period April 10 to August 7, 2015 was
causally related to the accepted February 23, 2015 left ankle injury. OWCP also determined that
the medical evidence of record was insufficient to establish that appellant sustained additional left
lower extremity conditions due to the accepted work injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence.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 from work, and the duration of that
disability, are medical issues that must be proven by a preponderance of probative and reliable
medical opinion evidence.8
Under FECA, the term “disability” means an incapacity because of an employment injury,
to earn the wages the employee was receiving at the time of the injury.9 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.10 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical evidence establishes that the residuals or sequelae
of an employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish total disability
from work for the period April 10 to August 7, 2015 causally related to her accepted February 23,
2015 employment injury.

5

Supra note 2.

6

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

7

Dominic M. Descaled, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-09 (1982).

8

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
9

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999).

10

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

11

Merle J. Marceau, 53 ECAB 197 (2001).

5

In its prior decision dated March 13, 2017, the Board found that the medical evidence of
record was insufficient to establish that appellant was disabled from work from April 10 to
August 7, 2015 due to her accepted left ankle injury. It also determined that the medical evidence
of record failed to establish that appellant sustained additional left lower extremity conditions due
to the accepted February 23, 2015 work injury. Findings made in prior Board decisions are
res judicata absent any further review by OWCP under section 8128 of FECA.12 The Board will,
therefore, not review the evidence addressed in the prior appeal.
Following the Board’s March 13, 2017 decision, appellant submitted additional reports by
Dr. Gregorace. In work status forms dated April 14 and July 9, 2015, Dr. Gregorace noted a
diagnosis of left ankle derangement and marked a box “yes” indicating that appellant was 100
percent disabled. He did not, however, discuss any objective findings to support appellant’s
inability to work, nor did he explain why she was unable to work as a result of appellant’s accepted
left ankle sprain injury.13 Instead, Dr. Gregorace noted a diagnosis of left ankle derangement,
which is not an accepted condition. As he failed to attribute disability to the accepted condition
of left ankle sprain, his work status notes are insufficient to meet appellant’s burden of proof.14
The reports by Dr. McGee dated March 8 to May 22, 2017 and by Dr. Hilaire dated
August 14, 2017 to March 5, 2018 similarly fail to establish appellant’s disability claim as they
postdate the claimed period of disability and otherwise do not address the claimed April 10 to
August 7, 2015 period of disability.
The reports of appellant’s physician do not provide a rationalized medical opinion
substantiating that she was disabled from work during the claimed period of April 10 to August 7,
2015 due to her accepted left ankle sprain. Accordingly, the medical evidence submitted is
insufficient to meet appellant’s burden of proof.15 The Board finds, therefore, that appellant has
not met her burden of proof to establish her claim for disability compensation.
LEGAL PRECEDENT -- ISSUE 2
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.16 To establish causal relationship between the condition
as well as any attendant disability claimed and the employment injury, an employee must submit
rationalized medical evidence.17 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

12

See H.G., Docket No. 16-1191 (issued November 25, 2016).

13

See M.M., Docket No. 16-0541 (issued April 27, 2010).

14

R.A., Docket No. 14-1327 (issued October 10, 2014); Jaja K. Asaramo, 55 ECAB 200 (2004).

15

Alfredo Rodriguez, 47 ECAB 437 (1996).

16

V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, supra note 14.

17

M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

6

condition and the specific employment factors identified by the claimant.18 The weight of 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.19
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that her claim should be expanded to
include left tarsal tunnel syndrome, posterior tibial neuropathy, left ankle derangement, deltoid
ligament partial tear, ATF ligament partial tear, CFL partial tear, and nondisplaced left ankle
fracture as causally related to the accepted February 23, 2015 employment injury.
Appellant submitted a January 18, 2018 narrative report by Dr. Gregorace describing that
appellant sustained a left ankle sprain as a result of a February 23, 2015 traumatic injury.
Dr. Gregorace related that electrodiagnostic testing later showed left tarsal tunnel syndrome. He
explained that the “stretching and twisting of the ankle not only caused soft tissue ligament injury,
but also caused stretching of the peripheral nerve which is just posterior to the medial malleolus.”
Dr. Gregorace further reported that appellant’s left ankle sprain evolved into ligament tears along
the medial and lateral aspects of the left ankle, which were confirmed with an MRI scan. Although
he attributed appellant’s additional left ankle and foot conditions to her accepted February 23,
2015 employment injury, Dr. Gregorace failed to provide sufficient explanation regarding the
mechanism of injury of how the additional left foot and ankle conditions were causally related to
the accepted February 23, 2015 employment injury.20 He did not provide a description of the
February 23, 2015 employment injury nor explain the pathophysiological process of how twisting
her left ankle on February 23, 2015 would have caused or contributed to the additional left ankle
conditions of tarsal tunnel syndrome, ATF ligament partial tear, and CFL partial ligament tear.21
A physician must provide a narrative description of the identified employment incident and a
reasoned opinion on whether the employment incident described caused or contributed to
appellant’s diagnosed medical condition.22
In an initial March 8, 2017 report, Dr. McGee described that on February 23, 2015
appellant twisted her left ankle and fell down. He provided examination findings and diagnosed
status post left ankle fracture and multiligament tears. Dr. McGee provided follow-up examination
reports dated March 30 and May 22, 2017, where he responded “yes” indicating that the incident
described was the competent cause of the injury and that the history of injury was consistent with
objective findings. The Board has held, however, that when a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, without explanation or rationale,
that opinion is of diminished probative value and is insufficient to establish a claim.23 Likewise,
in an August 14, 2017 report, Dr. Hilaire checked a box marked “yes” indicating that the
February 23, 2015 injury caused appellant’s left ankle sprain and contusion, left foot sprain and
18

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

19

See H.H., Docket No. 16-0897 (issued September 21, 2016); James Mack, 43 ECAB 321 (1991).

20

J.H., Docket No. 14-0775 (issued July 14, 2014).

21

See B.T., Docket No. 13-0138 (issued March 20, 2013).

22

John W. Montoya, 54 ECAB 306 (2003).

23

D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

7

contusion, and left malleolus fracture conditions. As he did not provide any medical rationale to
support his opinion, his report is insufficient to establish additional conditions as causally related
to appellant’s accepted injury.
Appellant also submitted a November 21, 2017 report by Dr. Yager who noted a diagnosis
of internal ankle derangement. Dr. Yager did not, however, provide any opinion on whether the
left ankle condition was causally related to the accepted February 23, 2015 employment injury.
The Board has held that medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of no probative value on the issue of causal relationship.24
On appeal counsel contends that the April 26, 2018 OWCP decision is contrary to law and
fact. As explained above, however, appellant has not submitted sufficient medical evidence to
establish causal relationship between the diagnosed conditions of left tarsal tunnel syndrome,
posterior tibial neuropathy, left ankle derangement, deltoid ligament partial tear, ATF ligament
partial tear, CFL partial tear, and nondisplaced left ankle fracture and the accepted February 23,
2015 employment incident. 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.25 Causal relationship
is a medical question that must be established by probative medical opinion from a physician.26
As appellant has not submitted such medical evidence in this case, she has not met her burden of
proof to require expansion of the acceptance of her claim to include additional conditions.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
from work for the period April 10 to August 7, 2015, causally related to her accepted February 23,
2015 employment injury. The Board also finds that appellant has not established that the
acceptance of her claim should be expanded to include left tarsal tunnel syndrome, posterior tibial
neuropathy, left ankle derangement, deltoid ligament partial tear, ATF ligament partial tear, CFL
partial tear, and nondisplaced left ankle fracture.

24

See L.B., Docket No. 18-0533 (issued August 27, 2018); C.B., Docket No. 09-2027 (issued May 12, 2010).

25

Jennifer Atkerson, 55 ECAB 317 (2004).

26

W.W., Docket No. 09-1619 (issued June 1, 2009); David Apgar, 57 ECAB 137 (2005).

8

ORDER
IT IS HEREBY ORDERED THAT the April 26, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 29, 2019
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, SHARED SERVICE
CENTER, Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 07-16
Issued: February 27, 2007

Case Submitted on the Record

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

JURISDICTION
On October 4, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 22, 2005, March 30 and September 12, 2006 merit decisions
concerning his claims for disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of total disability during the period May 26 to September 16, 2005 or December 13 to
18, 2005 due to his April 30, 2005 employment injury.
FACTUAL HISTORY
On May 1, 2005 appellant, then a 39-year-old automation clerk, filed a traumatic injury
claim alleging that he sustained a right shoulder injury when he was sweeping mail at work on
April 30, 2005 and felt something pull in his shoulder. The Office accepted that he sustained
employment-related right shoulder impingement. Appellant did not stop work but began
working in a light-duty position for the employing establishment with no lifting, pushing or

pulling with the right arm. He stopped work on May 26, 2005 and then claimed that he sustained
total disability from May 26 to September 16, 2005.
Appellant first sought medical care for his condition on May 3, 2005 with Dr. Robert L.
Kalb, a Board-certified orthopedic surgeon, who stated that appellant reported that on April 30,
2005 he reached up and felt a pull in his right shoulder. The pain was present all the time and
increased with motion above the shoulder level. Dr. Kalb noted that examination showed
tenderness in the acromioclavicular joint, a positive impingement sign and limitation of elevation
to 160 degrees and diagnosed impingement of the right shoulder. He provided a similar
assessment of appellant’s condition on May 19, 2005.
In a form report dated May 27, 2005, Dr. Kalb stated that appellant was totally disabled
from May 19 to June 9, 2005 due to the employment-related impingement of the right shoulder
which he sustained on April 30, 2005. He also stated, “No use of the right arm/hand above waist
level. If no light-duty work available, patient to be put off work.” On June 16, 2005 Dr. Kalb
noted that appellant reported that his pain had increased. The findings of the June 15, 2005
magnetic resonance imaging scan testing showed a partial tear of the right rotator cuff.
On August 10, 2005 the Office requested that appellant submit additional factual and
medical evidence in support of his claim.
In a July 6, 2005 report, Dr. Daniel J. Sullivan, an attending Board-certified orthopedic
surgeon, stated that appellant reported a history consistent with a C6 radiculopathy but also a
“shoulder proper gain generator” in that he had pain on forward flexion, extension and internal
rotation of the right shoulder. He indicated that appellant carried a provisional diagnosis of right
shoulder impingement as diagnosed by Dr. Kalb. In a July 5, 2005 note, Dr. Sullivan diagnosed
right shoulder impingement and stated that appellant was to be off work due to his April 30,
2005 employment injury from July 6 to October 6, 2005.
On September 17, 2005 appellant returned to light-duty work for the employing
establishment with no lifting, pushing or pulling with the right arm. He stopped work on
December 13, 2005 and claimed that he sustained a recurrence of total disability during the
period December 13 to 18, 2005 due to his April 30, 2005 employment injury.
In a December 22, 2005 decision, the Office denied appellant’s claim for total disability
for the period May 26 to September 16, 2005 on the grounds that he did not submit sufficient
medical evidence showing that he had total disability during this period due to his April 30, 2005
employment injury.
On December 16, 2005 Dr. Sullivan stated that appellant was seen on a routine follow-up
basis and noted that his right shoulder condition had not changed. He indicated that appellant
continued to respond favorably to an injection that he had performed earlier. In reports dated
January 26 and March 9, 2006, Dr. Jeffrey LaPonte, an attending Board-certified orthopedic
surgeon, detailed appellant’s right shoulder condition but he did not provide any opinion
regarding appellant’s ability to work during the claimed periods of disability.
By decision dated March 30, 2006, the Office denied appellant’s claim for total disability
for the period December 13 to 18, 2005 on the grounds that he did not submit sufficient medical
2

evidence showing that he had total disability during this period due to his April 30, 2005
employment injury.
On May 15, 2006 appellant underwent a subacromial decompression and distal clavicle
resection of the right shoulder. The surgery was authorized and he received disability
compensation after the surgery. Appellant’s entitlement to disability compensation after the
surgery is not the subject of the present appeal. He submitted medical reports detailing his
medical treatment but these reports relate to his condition after the May 15, 2006 surgery.
Appellant requested a review of the written record by an Office hearing representative.
By decision dated September 12, 2006, the Office hearing representative affirmed the Office’s
earlier decisions.
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty. As part of this burden the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty job requirements.1
ANALYSIS
The Office accepted that appellant sustained employment-related right shoulder
impingement on April 30, 2005. Appellant stopped work for two periods while he was working
in limited-duty positions for the employing establishment, May 26 to September 16, 2005 or
December 13 to 18, 2005 and claimed total disability for these periods.
The Board finds that appellant did not submit sufficient medical evidence to establish that
he sustained a recurrence of total disability during the period May 26 to September 16, 2005 or
December 13 to 18, 2005 due to his April 30, 2005 employment injury.
With respect to the period May 26 to September 16, 2005, appellant submitted a May 27,
2005 report in which Dr. Kalb, an attending Board-certified orthopedic surgeon, stated that
appellant was totally disabled from May 19 to June 9, 2005 due to the employment-related
impingement of the right shoulder which he sustained on April 30, 2005. This report, however,
is of limited probative value on the relevant issue of the present case in that it does not contain
1

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986). 20 C.F.R. § 10.5(x)
provides, “Recurrence of disability means an inability to work after an employee has returned to work, caused by a
spontaneous change in a medical condition which had resulted from a previous injury or illness without an
intervening injury or new exposure to the work environment that caused the illness. This term also means an
inability to work that takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn (except when such withdrawal
occurs for reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical limitations.”

3

any rationale in support of Dr. Kalb’s opinion on appellant’s disability.2 Dr. Kalb did not
provide any explanation of why he thought appellant’s condition had worsened such that he was
no longer able to perform any work. The findings he described in his May 7, 2005 report were
not noticeably different from those found in his reports from early May 2005. Dr. Kalb’s report
is of limited probative value for the further reason in that his opinion on the level of appellant’s
disability was rendered equivocal because he also stated, “No use of the right arm/hand above
waist level. If no light-duty work available, patient to be put off work.”3
Appellant also submitted a July 5, 2005 note in which Dr. Sullivan, an attending Boardcertified orthopedic surgeon, diagnosed right shoulder impingement and stated that he was to be
off work due to his April 30, 2005 employment injury from July 6 to October 6, 2005. However,
Dr. Sullivan provided no explanation of why appellant could not perform any work during this
period. There are no reports of Dr. Sullivan showing that appellant’s condition had deteriorated
such that he could no longer perform the limited duties of the light-duty position beginning
July 6, 2005 and continuing.4 Appellant also did not show a change in his light-duty
requirements during the period May 26 to September 16, 2005. For these reasons, he has not
shown that he sustained a recurrence of total disability during the period May 26 to
September 16, 2005
With respect to the period December 13 to 18, 2005, appellant did not submit any
medical evidence showing that he had total disability from all work during this period. In fact, a
December 16, 2005 report of Dr. Sullivan suggests that there was no change in appellant’s
condition around this time. Dr. Sullivan stated that appellant was seen on a routine follow-up
basis and noted that his right shoulder condition had not changed. He indicated that appellant
continued to respond favorably to an injection he had performed earlier. Appellant also did not
show a change in his light-duty requirements during the period December 13 to 18, 2005. For
these reasons, appellant has not shown that he sustained a recurrence of total disability during the
period December 13 to 18, 2005.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of total disability during the period May 26 to September 16, 2005 or
December 13 to 18, 2005 due to his April 30, 2005 employment injury.

2

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (finding that a medical opinion not fortified by medical
rationale is of little probative value).
3

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956) (finding that an
opinion which is equivocal or speculative is of limited probative value regarding the issue of causal relationship).
4

In a July 6, 2005 report, Dr. Sullivan only indicated that appellant carried a provision diagnosis of right shoulder
impingement as diagnosed by Dr. Kalb.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 12 and March 30, 2006 and December 22, 2005 decisions are affirmed.
Issued: February 27, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 18-0073
Issued: April 23, 2018

Case Submitted on the Record

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

JURISDICTION
On October 11, 2017 appellant filed a timely appeal from an April 19, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.2
ISSUE
The issue is whether appellant has established permanent impairment of a scheduled
member, warranting a schedule award.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence on appeal. The Board’s jurisdiction, however, is limited
to reviewing the evidence that was before OWCP at the time it issued its final decision. Thus, the Board is precluded
from considering this new evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as presented in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On November 21, 2006 appellant, then a 49-year-old mail processing clerk, filed a
traumatic injury claim (Form CA-1) alleging that she sustained an umbilical hernia on
November 21, 2003 when lifting heavy tubs of mail at work. OWCP assigned the claim File No.
xxxxxx861 and accepted the claim on June 10, 2009 for precipitation of a preexisting umbilical
hernia. Under OWCP File No. xxxxxx608, it accepted that appellant sustained an umbilical hernia
on December 8, 2004 which required surgical repair. OWCP assigned the claim File No.
xxxxxx608. It expanded acceptance of the claim under File No. xxxxxx608 to include a pelvic
sprain. OWCP combined the two claims under File No. xxxxxx861.
On November 21, 2008 appellant filed a claim for a schedule award (Form CA-7),
contending that the accepted umbilical hernias caused permanent lower extremity impairment. By
decision dated September 15, 2014, OWCP denied her schedule award claim as the medical
evidence of record failed to demonstrate permanent impairment causally related to the accepted
November 21, 2003 umbilical hernia. Following a February 12, 2015 hearing, by decision dated
April 17, 2015, an OWCP hearing representative affirmed the denial of appellant’s schedule award
claim. Appellant appealed to the Board. By decision issued February 10, 2016,4 the Board
affirmed OWCP’s April 17, 2015 decision as the medical evidence of record did not establish
permanent impairment of a scheduled member.
On February 6, 2017 appellant requested reconsideration. She contended that OWCP
failed to consider the totality of her claims. Appellant also argued that the accepted umbilical
hernias and July 15, 2004 and March 4, 2005 herniorraphies caused gynecologic and urinary tract
impairments which entitled her to a schedule award. She provided an operative report dated
August 1, 2008 by Dr. Megan App, a Board-certified obstetrician and gynecologist, who
performed a diagnostic hysteroscopy, dilatation and curettage, and thermal endometrial ablation
to treat endometrial polyps. Appellant also submitted an April 29, 2009 magnetic resonance
imaging (MRI) scan of the pelvis which demonstrated probable uterine fibroids and a possible
paratubal cyst, a June 17, 2016 MRI scan of the lumbar spine, June 22, 2016 MRI scan of the
cervical spine, and a June 28, 2016 MRI scan of the thoracic spine which demonstrated multilevel
degenerative changes.
By decision dated April 19, 2017, OWCP denied appellant’s schedule award claim, as the
evidence submitted on reconsideration did not contain medical rationale from a physician
supporting that the accepted umbilical hernias caused permanent impairment of a scheduled
member of the body.

3

Docket No. 15-1768 (issued February 10, 2016); Docket No. 08-0962 (issued August 13, 2008).

4

Docket No. 15-1768 (issued February 10, 2016).

2

LEGAL PRECEDENT
It is the claimant’s burden of proof to establish that she sustained permanent impairment
of a scheduled member or function as a result of any employment injury.5
The schedule award provisions of FECA6 and its implementing regulations7 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 for all claimants, OWCP has adopted the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) as the uniform
standard applicable to all claimants.8 For decisions issued after May 1, 2009, the sixth edition of
the A.M.A., Guides9 is used to calculate schedule awards.10
The Board notes that in 1960, amendments to FECA modified the schedule award
provisions to provide for an award for permanent impairment to a member of the body covered by
the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member.11 By authority granted under FECA, the Secretary of Labor expanded the
list of scheduled members to include the breast, kidney, larynx, lung, penis, testicle, tongue, ovary,
uterus, cervix, vulva/vagina, and skin.12
ANALYSIS
The Board finds that appellant has not established permanent impairment of a scheduled
member.

5

See Tammy L. Meehan, 53 ECAB 229 (2001).

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

A.M.A., Guides (6th ed. 2009).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (February 2013).
11

Thomas J. Engelhart, 50 ECAB 319 (1999).

12

5 U.S.C. § 8107(c)(22); 20 C.F.R. §10.404(b).

3

In the prior appeal, the Board found that while appellant had alleged that her accepted
hernias and surgical repairs caused permanent impairment to her lower extremities, uterus, and
bladder, she had not established a permanent impairment of a scheduled member.13
Following the Board’s prior decision, appellant requested reconsideration and provided an
operative report dated August 1, 2008 by Dr. App, a Board-certified obstetrician and gynecologist,
concerning surgery for endometrial polyps, an April 29, 2009 MRI scan of the pelvis which
demonstrated uterine fibroids, and June 2016 MRI scans of the cervical, thoracic, and lumbar spine
which demonstrated multilevel degenerative changes. These reports do not contain a medical
opinion with regard to permanent impairment of the upper or lower extremities, or other scheduled
members of the body. The operative note and imaging studies do not reference the A.M.A., Guides
or otherwise support permanent impairment of a scheduled member causally related to the
accepted umbilical hernias. Medical reports which do not address the issue of permanent
impairment are irrelevant in a schedule award claim.14 The Board, therefore, finds that appellant
has not established permanent impairment of a scheduled member of the body, warranting a
schedule award.15
On appeal appellant reiterates that the accepted umbilical hernias and surgical repairs
caused compensable permanent impairment of her uterus and urinary tract.16 She also contends
that the sequelae of the hernia repairs were compensable as work hastened the need for surgery.17
As explained above, appellant has not submitted sufficient medical evidence to establish
permanent impairment of a scheduled member of the body causally related to the accepted
umbilical hernias.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established permanent impairment of a scheduled
member, warranting a schedule award.

13
The findings made in prior Board decisions are final upon the expiration of 30 days from the date of issuance
and, in the absence of new review by OWCP, the subject matter is res judicata and not subject to further consideration
by the Board. See 20 C.F.R. § 501.6(d); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998); C.M., Docket No. 171170 (issued February 16, 2018).
14

P.D., Docket No. 17-1565 (issued February 21, 2018).

15

Id.

16

Appellant cites to Robert W. Griffith, 51 ECAB 491 (2000); Glenn C. Chasteen, 42 ECAB 493 (1991); Arnold
Gustafson, 41 ECAB 131 (1989); and Beth P. Chaput, 37 ECAB 158 (1985).
17

Appellant cites to John I. Lattany, 37 ECAB 129 (1985).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated April 19, 2017 is affirmed.
Issued: April 23, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Houston, TX, Employer
__________________________________________

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

Docket No. 21-0896
Issued: December 2, 2021

Case Submitted on the Record

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

JURISDICTION
On May 3, 2021 appellant filed a timely appeal from a March 8, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from the last merit decision dated July 16, 2004 to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On September 26, 2002 appellant, then a 56-year-old deportation assistant, filed a
traumatic injury claim (Form CA-1) alleging that on that date she injured both knees when she
heard someone shout that “someone had a gun” and dropped to the floor on her knees while in the
performance of duty. She did not stop work. OWCP accepted appellant’s claim for bilateral knee
contusions.
In order to determine her current condition, OWCP referred appellant, along with a
statement of accepted facts (SOAF) and series of questions, for a second opinion examination and
evaluation with Dr. David J. Vanderweide, a Board-certified orthopedic surgeon. In a report dated
April 27, 2004, Dr. Vanderweide detailed physical examination findings, noting that appellant
reported no locking, catching, giving way, or swelling of the right knee. He observed that appellant
had mild residual discomfort of the accepted September 26, 2002 contusion to the left knee, but
had no residual right knee symptoms of the accepted right knee contusion.
In a May 11, 2004 report, Dr. Thaddeus W. Hume, a Board-certified orthopedic surgeon,
discussed the September 26, 2002 employment injury and noted that appellant was subsequently
diagnosed with left knee arthritis. He recommended conservative treatment.
In a notice dated June 1, 2004, OWCP proposed to terminate appellant’s medical benefits
for treatment of her accepted right knee condition. It advised appellant that the weight of the
medical opinion evidence rested with the opinion of Dr. Vanderweide, which demonstrated that
her accepted condition of right knee contusion had resolved. OWCP advised appellant that she
would continue to receive medical benefits for her accepted left knee condition and afforded her
30 days to submit evidence challenging the proposed termination action.
In a letter dated June 28, 2004, received by OWCP on July 6, 2004, appellant contested the
proposed termination of medical benefits for her right knee. She requested that she be allowed to
undergo additional diagnostic testing before OWCP terminated her benefits.
Appellant submitted a July 12, 2004 report from Dr. Hume who noted that appellant
continued to complain of intermittent pain in her left knee, but that her overall condition had shown
some improvement. She reported that she continued to be bothered with intermittent pain in her
right knee with certain levels of activity like moving from a prolonged sitting position to a standing
position. Dr. Hume advised that examination of the right knee revealed no significant swelling or
instability, although there was some mild-to-moderate crepitus. The Apley’s and McMurray’s
tests for the right knee were negative. Dr. Hume noted, “[i]n terms of problems related to both
knees as a result of [appellant’s] injury, I suspect that she did have some preexisting arthritis prior
to her fall that may have been aggravated.”

2

Docket No. 08-2226 (issued May 13, 2009).

2

By decision dated July 16, 2004, OWCP terminated appellant’s medical benefits for
treatment of her accepted right knee condition, effective that date. It continued to pay medical
treatment benefits for her left knee condition.
On June 8, 2008 appellant requested reconsideration of the July 16, 2004 decision. She
submitted medical evidence, including reports of Dr. Hume dated October 11, 2004 through
February 8, 2008.
By decision dated July 3, 2008, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
Appellant appealed to the Board and, by decision dated May 13, 2009,3 the Board affirmed
OWCP’s July 3, 2008 decision, finding that appellant’s request for reconsideration was untimely
filed and failed to demonstrate clear evidence of error.
Appellant submitted additional evidence after OWCP issued its July 3, 2008 decision. In
an undated letter, she asserted that she continued to have pain and swellin g in her right knee. In a
December 19, 2020 statement, appellant argued that OWCP improperly terminated medical
benefits for her right knee because Dr. Hume continued to treat her right knee symptoms, which
had persisted since her September 26, 2020 employment injury.
On March 3, 2021 appellant requested reconsideration. She argued that a report from
Dr. Hume submitted in July 2004, as well as other medical evidence of record, demonstrated that
she continued to have residuals of the accepted September 26, 2002 employment injury to her
knees. Appellant further argued that she had continuing symptoms in both knees, which she related
to the September 26, 2002 employment injury and; therefore, OWCP improperly terminated
medical benefits for the treatment of her right knee condition.
In support of her reconsideration request, appellant submitted an April 8, 2005 narrative
report, wherein Dr. Hume noted that examination of appellant’s right knee revealed some crepitus,
but that the Apley’s and McMurray’s tests for the knee were negative. In an August 25, 2014
report, Dr. Hume noted that appellant was under his care for injuries sustained to her left knee
while on the job. He advised that, upon physical examination, appellant exhibited moderate
crepitus in the left knee.
OWCP continued to receive narrative medical reports from Dr. Hume, dated December 21,
2006 through February 25, 2021, who provided physical examination findings of the knees,
reviewed diagnostic testing, recommended conservative medical treatment, and diagnosed arthritis
and degenerative conditions of the knees. Dr. Hume advised that there was no indication for
surgery.
In a number of the submitted narrative reports, including those dated: February 8, 2008;
May 17 and November 15, 2012; May 17 and August 22, 2013; February 21 and August 25, 2014;
August 18, 2015; February 18 and August 19, 2016; September 25, October 31 and December 20,
2017; November 2, 2018; and February 25, 2020, Dr. Hume indicated that appellant sustained a
3

Id.

3

left knee injury on September 26, 2002 and had, as a result, developed progressive joint disease
and post-traumatic arthritis of the left knee.
In an August 8, 2008 report, Dr. Hume indicated that appellant continued to complain of
intermittent pain in her left knee, as well as pain and swelling in her left calf. He indicated that,
upon physical examination, he observed some fullness in appellant’s left popliteal space consistent
with a probable Baker’s cyst due to her arthritis. Dr. Hume advised that he had adjusted appellant’s
medications and that he would continue treating appellant with conservative measures. In April 16
and 21, 2009 reports, he noted that appellant complained of increased right knee pain and difficulty
walking. Dr. Hume indicated that appellant had progressive degenerative disease in her left knee
and placed more weight on her right side. He opined that it was probable that her right knee
condition was a result of the persistent pain in her left knee.
Appellant also submitted handwritten treatment notes from Dr. Hume, dated August 8,
2008 through November 17, 2011. The notes primarily detailed appellant’s knee symptoms,
including pain, swelling, and popping sensation. Appellant also submitted range of motion and
muscle strength test results from December 3, 2009 through November 17, 2011.
By decision dated March 8, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 5 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). 6 Imposition of this one-year filing limitation does
not constitute an abuse of discretion. 7
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error. 8 If a request for

4

5 U.S.C. § 8128(a); see also A.B., Docket No. 19-1539 (issued January 27, 2020); W.C., 59 ECAB 372 (2008).

5

20 C.F.R. § 10.607(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

7

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
8

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).

4

reconsideration demonstrates clear evidence of error, OWCP will reopen the case for merit
review.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP. 10 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. 11 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. 12 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. 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. 13 To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.14
OWCP’s procedures further provide that the term clear evidence of error is intended to
represent a difficult standard.15 The claimant must present evidence which on its face shows that
OWCP made an error. 16 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. 17 The Board makes an independent
determination of whether a claimant has demonstrated clear evidence of error on the part of
OWCP.18
ANALYSIS
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.

9

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 2.1602.5 (September 2020).
10

A.A., Docket No. 19-1219 (issued December 10, 2019); J.F., Docket No. 18-1802 (issued May 20, 2019); J.D.,
Docket No. 16-1767 (issued January 12, 2017); Dean D. Beets, 43 ECAB 1153 (1992).
11

J.D., Docket No. 19-1836 (issued April 6, 2020); Leone N. Travis, 43 ECAB 227 (1999).

12

S.W., Docket No. 18-0126 (issued May 14, 2019); Robert G. Burns, 57 ECAB 657 (2006).

13

T.N., Docket No. 18-1613 (issued April 29, 2020).

14

J.M., Docket No. 19-1842 (issued April 23, 2020).

15

See supra note 9 at Chapter 2.1602.5(a) (September 2020); see also J.S., Docket No. 16-1240 (issued
December 1, 2016).
16

K.W., Docket No. 19-1808 (issued April 2, 2020).

17

Id.

18

D.S., Docket No. 17-0407 (issued May 24, 2017).

5

The last merit decision was OWCP’s July 16, 2004 decision. As appellant’s request for
reconsideration was not received by OWCP until March 3, 2021, more than one year after issuance
of its July 16, 2004 merit decision, it was untimely filed. Consequently, she must demonstrate
clear evidence of error by OWCP in its July 16, 2004 decision.
In support of her untimely reconsideration request, appellant submitted several statements
in which she argued that she had continuing right knee symptoms and that the medical evidence
of record demonstrated that she still had residuals of the September 26, 2002 employment injury
in her right knee, which necessitated continued medical treatment. The Board notes, however,
appellant did not explain how this argument raised a substantial question as to the correctness of
OWCP’s July 16, 2004 decision.19
Appellant also submitted narrative medical reports from Dr. Hume, dated August 25, 2004
through February 25, 2021, who provided physical examination findings of the knees, reviewed
diagnostic testing, recommended conservative medical treatment, and diagnosed arthritis and
degenerative conditions of the knees. Dr. Hume advised that there was no indication for surgery.
In a number of the submitted narrative reports, including those dated February 8, 2008: May 17
and November 15, 2012; May 17 and August 22, 2013; February 21 and August 25, 2014;
August 18, 2015; February 18 and August 19, 2016; September 25, October 31 and December 20,
2017; November 2, 2018; and February 25, 2020, he indicated that appellant sustained a left knee
injury on September 26, 2002 and had, as a result, developed progressive joint disease and posttraumatic arthritis of the left knee. In an August 8, 2008 report, Dr. Hume advised that appellant
had a Baker’s cyst in her left knee due to her arthritis and, in April 16 and 21, 2009 reports, he
opined that it was probable that the right knee condition was a result of appellant favoring her left
knee.
The Board notes, however, that OWCP has only accepted that appellant sustained bilateral
knee contusions on September 26, 2002, and it has not accepted that she sustained arthritis or a
degenerative condition of either knee due to that injury or another work-related cause. None of
Dr. Hume’s reports related appellant’s right knee condition after July 16, 2004 to the accepted
September 26, 2002 employment injury and Dr. Hume mere unsupported statements regarding a
work-related arthritic/degenerative left knee condition or a consequential injury to the right knee
would not raise a substantial question as to the correctness of OWCP’s July 16, 2004 decision,
which terminated medical benefits for treatment of appellant’s accepted right knee condition, a
right knee contusion.20
Appellant submitted handwritten treatment notes from Dr. Hume, dated October 30, 2008
through November 17, 2011. The notes primarily detailed appellant’s bilateral knee symptoms,
including pain, swelling, and popping sensation. Appellant also submitted range of motion and
muscle strength test results from December 3, 2009 through November 17, 2011. None of these
documents contain an opinion on the cause of appellant’s right knee symptoms and; therefore, they

19

See supra notes 12 and 14. The Board notes that OWCP has not terminated medical benefits for treatment of
appellant’s left knee condition.
20

Id.

6

would not on their face show that OWCP erred when it terminated appellant’s medical benefits for
treatment of her right knee. 21
As noted, clear evidence of error is intended to represent a difficult standard. 22 Even a
detailed, well-rationalized medical report which, if submitted before the denial was issued, would
have created a conflict in medical evidence requiring further development is insu fficient to
demonstrate clear evidence of error. It is not enough to show that evidence could be construed so
as to produce a contrary conclusion. Instead, the evidence must shift the weight in appellant’s
favor.23
The Board finds that the evidence submitted on reconsideration does not demonstrate on
its face that OWCP committed error in its July 16, 2004 decision when it terminated medical
benefits for treatment of her right knee.24 Therefore, OWCP properly denied appellant’s untimely
request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

21

See supra notes 15.

22

See supra note 19.

23

M.E., Docket No. 18-1442 (issued April 22, 2019).

24

See S.F., Docket No. 09-0270 (issued August 26, 2009).

7

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 2, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 21-1075
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On July 7, 2021 appellant filed a timely appeal from a June 17, 2021 nonmerit decision of
the Office of Workers’ Compensation Program (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated May 11, 2020, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 27, 2020 appellant, then a 79-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed actinic keratosis and basal cell carcinoma
1

5 U.S.C. § 8101 et seq.

due to factors of his federal employment, including exposure to the ultraviolet rays from the sun.
He noted that he first became aware of the condition on September 26, 2007 and realized its
relationship to his federal employment on February 18, 2020. In an attached February 28, 2020
statement, appellant detailed his exposure to the sun, both on and off the job . He also cited to prior
Board decision pertaining to causal relationship.
In a February 23, 2020 report, Dr. Suzette Sanchez, an osteopath specializing in
dermatology, noted that appellant had worked for the employing establishment for over 30 years
and had spent most of his eight-hour workday outside delivering mail. She reported that appellant
had previously been treated for actinic keratosis and basal cell carcinoma on his upper mid
forehead in 2017 and was seen on February 18, 2020 for recurring actinic keratosis on his right
forehead. Dr. Sanchez indicated that actinic keratosis and basal cell carcinoma is a skin cancer,
which directly correlates with high amounts of past sun exposure. She noted that appellant had a
lifetime of sun exposure and opined, with a reasonable degree of medical certainty, that his
extensive time spent outside in the sun delivering mail contribu ted to the development of actinic
keratosis and basal cell carcinoma. An April 28, 2017 dermatopathology laboratory report was
attached, which identified appellant’s biopsied specimen as basal cell carcinoma.
In an April 2, 2020 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of evidence needed to establish his claim and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond.
In an April 6, 2020 letter, appellant responded to OWCP’s April 2, 2020 development
letter. He also resubmitted his previous correspondence and evidence.
By decision dated May 11, 2020, OWCP denied the claim, finding that the medical
evidence of record was insufficient to establish that the claimed medical conditions were causally
related to the accepted work events.
On June 1, 2021 appellant requested reconsideration an appeal request form. In an
accompanying May 27, 2021 letter, he argued that OWCP never mentioned nor considered his
April 6, 2020 submission, which contained relevant information. Appellant further argued that
Dr. Sanchez was not required to delineate the percent of non-federal or federal exposure
contribution to his skin cancer, only that his federal employment contributed to the development
of his skin cancer. In support of his argument, he again cited to the same Board precedent as cited
in his February 28, 2020 statement.
By decision dated June 17, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.2 This discretionary authority, however, is subject to certain restrictions. For
2

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

2

instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 3 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 4
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 5
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 6 OWCP’s procedures provide that it 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 request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.7 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP. 9 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence, which 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 merely to 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 shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.10
OWCP’s 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 demonstrates 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

3

20 C.F.R. § 10.607(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 September 2020).

5

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
6

See 20 C.F.R. § 10.607(b); D.M., Docket No. 21-0261 (issued September 29, 2021); M.H., Docket No. 18-0623
(issued October 4, 2018); Charles J. Prudencio, 41 ECAB 499 (1990).
7

D.M., id.; L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued
April 15, 2010). See also 20 C.F.R. § 10.607(b).
8

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

9

See D.M., supra note 6; S.C., Docket No. 18-0126 (issued May 14, 2016).

10

C.M., Docket No. 19-1211 (issued August 5, 2020).

3

error.11 The Board makes an independent determination of whether a claimant has demo nstrated
clear evidence of error on the part of OWCP. 12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
On June 1, 2021 appellant filed a request for reconsideration. As this request was received
more than one year after the latest merit decision, dated May 11, 2020, the request for
reconsideration was untimely filed pursuant to 20 C.F.R. § 10.607(a). 13 As such, appellant must
demonstrate clear evidence of error with respect to OWCP’s last merit decision. 14
In support of his untimely reconsideration request, appellant argued that OWCP did not
review all the documents he submitted. He also argued that Dr. Sanchez was not required to
delineate the percent of non-federal or federal exposure contribution to his skin cancer, but that
she need only to opine that his federal employment contributed to the development of his skin
cancer. In support of his argument, appellant cited to Board precedent for the proposition that it
is not necessary to show a significant contribution of employment factors to a diagnosed condition
to establish causal relationship.15 His argument, however, failed to sufficiently explain how this
legal precedent in conjunction with Dr. Sanchez February 23, 2020 report raises a substantial
question as to the correctness of OWCP’s May 11, 2020 merit decision.16
The Board, thus, finds that appellant has not raised an argument or submitted an y evidence
that manifests on its face that OWCP committed an error in denying his occupational claim.17 As
such, his untimely request for reconsideration failed to demonstrate clear evidence of error.18

11

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 4 at Chapter 2.1602.5(a) (September 2020).

12

D.S., Docket No. 17-0407 (issued May 24, 2017).

13

20 C.F.R. § 10.607(a).

14

20 C.F.R. § 10.607(b); see D.M., Docket No. 21-0261 (issued September 29, 2021); R.T., Docket No. 19-0604
(issued September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).
15

C.H., Docket No. 20-0194 (issued August 26, 2021); F.K., Docket No. 19-1804 (issued April 27, 2020; J.B.,
Docket No. 17-2021 (issued August 8, 2018); G.G., Docket No. 17-0504 (issued August 8, 2017); Beth C. Chaput, 37
ECAB 158 (1985) (it is not necessary to show a significant contribution of employment factors to a diagnosed
condition to establish causal relationship).
16

See O.K., Docket No. 21-0708 (issued September 29, 2021); T.C., Docket No. 19-1709 (issued June 5, 2020);
B.W., Docket No. 19-0626 (issued March 4, 2020).
17

O.K., id., S.C., Docket No. 19-1424 (issued September 15, 2020).

18

Id.

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration, finding
that it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 17, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 18, 2022
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
CORRECTIONAL INSTITUTION,
Seagoville, TX, Employer
__________________________________________

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

Docket No. 07-1707
Issued: December 14, 2007

Case Submitted on the Record

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

JURISDICTION
On June 12, 2007 appellant filed a timely appeal of an October 16, 2006 decision of the
Office of Workers’ Compensation Programs, finding that he had abandoned his request for an
oral hearing. Since more than one year has elapsed between the merit decision on May 19, 2006
and the filing of this appeal, the Board lacks jurisdiction to review the merits of the claim
pursuant to 20 C.F.R. §§ 501.2(c), 501.3(d)(2) and 501.6(c) and (d).
ISSUE
The issue is whether the Office properly determined that appellant abandoned his request
for an oral hearing.
FACTUAL HISTORY
Appellant filed a claim for an emotional condition causally related to factors of his
federal employment as a correctional officer supervisor. By decision dated May 19, 2006, the

Office denied the claim for compensation, finding that appellant had not established any
compensable work factors.
On June 19, 2006 appellant requested an oral hearing before an Office hearing
representative. He indicated that he was open to the option of a teleconference. By letter dated
August 24, 2006, the Office advised appellant that a telephonic hearing was scheduled for
October 2, 2006 at 10:00 a.m. Eastern Standard Time. The telephone number and access code
were provided. Appellant was advised that the hearing could not be postponed unless the
hearing representative could reschedule the hearing on the same docket.
By decision dated October 16, 2006, the Office stated that appellant failed to appear for
the telephone hearing scheduled on October 2, 2006. The Office found that there was no
evidence appellant contacted the Office to explain his failure to appear, and under these
circumstances, the hearing request was deemed to be abandoned.
LEGAL PRECEDENT
A claimant who has received a final adverse decision by the Office may obtain a hearing
by writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.1 Unless otherwise directed in writing by the claimant, the Office
hearing representative will mail a notice of the time and place of the hearing to the claimant and
any representative at least 30 days before the scheduled date.2 Chapter 2.1601.6(e) of the
Office’s procedure manual, dated January 1999, provides as follows:
“e. Abandonment of Hearing Requests.
(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to
appear at a scheduled hearing; and the claimant has failed to provide any
notification for such failure within 10 days of the scheduled date of the
hearing.
Under these circumstances, H&R [Branch of Hearings and Review] will
issue a formal decision finding that the claimant has abandoned his or her
request for a hearing and return the case to the DO [district Office]. In
cases involving prerecoupment hearings, H&R will also issue a final
decision on the overpayment, based on the available evidence, before
returning the case to the DO.”

1

20 C.F.R. § 10.616(a).

2

20 C.F.R. § 10.617(b).

2

ANALYSIS
The Office provided appellant notification on August 24, 2006 of a telephonic hearing to
be held on October 2, 2006 at 10:00 a.m. Eastern Time. Since the notice was more than 30 days
prior to the scheduled hearing, the Office complied with the requirements of 20 C.F.R.
§ 10.617(b). The issue is whether the Office properly found that appellant had abandoned his
request for a hearing.
The evidence of record indicated that appellant did not telephone the Office hearing
representative as directed on October 2, 2006 at the scheduled time. Moreover, there is no
indication that appellant attempted to postpone the hearing prior to the scheduled time, nor did he
provide any notification to the Office within 10 days of October 2, 2006 explaining his failure to
telephone the Office hearing representative.
Based on the evidence of record, therefore, the three requirements for abandonment have
met in the present case: Appellant did not request a postponement, failed to contact the Office at
the time of the scheduled hearing, and failed to provide notification for such failure within 10
days of the scheduled hearing. Accordingly, the Board finds the Office properly found appellant
had abandoned his request for a hearing.
CONCLUSION
The Office properly found that appellant abandoned his request for a hearing.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 16, 2006 is affirmed.
Issued: December 14, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4