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

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

Docket No. 09-1881
Issued: April 20, 2010

Case Submitted on the Record

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

JURISDICTION
On July 21, 2009 appellant filed a timely appeal from the July 9, 2009 merit decision of
the Office of Workers’ Compensation Programs denying his occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
claim.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
right knee condition causally related to his federal employment.
FACTUAL HISTORY
On May 8, 2009 appellant, then a 61-year-old automation clerk, filed an occupational
disease claim attributing the swelling and soreness in his right knee to factors of his employment.
He reported that for 24 years he had been pushing, lifting and loading heavy mail into mail
containers and transporting mail from one unit to another. Appellant first became aware of his
condition and that it was caused or aggravated by his employment on January 10, 2009. On the

claim form, the employing establishment advised that appellant did not work regular
assignments. Appellant’s duties were restricted to dropping mail from a seated position and
feeding mail on a machine. He did not stop work.
In a letter dated May 29, 2009, the Office advised appellant of the factual and medical
evidence needed to establish his claim and allowed 30 days for the submission of evidence. It
asked that he provide a detailed description of the employment-related duties which he believed
contributed to his condition. The Office also asked appellant to have an attending physician
submit a detailed narrative report that included a firm diagnosis and an explanation as to how the
condition diagnosed was caused or aggravated by the incidents in appellant’s federal
employment. No additional information was received.
By decision dated July 9, 2009, the Office denied appellant’s claim. It found that no
evidence was submitted to support that the work activities occurred as alleged and no medical
evidence was provided to establish a medical diagnosis related to the claimed work events.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty as alleged and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.2
Office regulations define the term occupational disease or illness as a condition produced
by the work environment over a period longer than a single workday or shift.3 To establish that
an injury was sustained in the performance of duty in an occupational disease claim, a claimant
must submit: a detailed description of the employment factors or conditions, which the claimant
believes caused or adversely affected the condition or conditions for which compensation is
claimed. If a claimant does establish an employment factor, he must submit medical evidence
showing that a medical condition was caused by such a factor.4 It is the claimant’s responsibility
1

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

2

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

3

20 C.F.R. § 10.5(ee).

4

Effie Morris, 44 ECAB 470 (1993).

2

to prove that work was performed under these specific conditions at the time, in the manner and
to the extent alleged.5
ANALYSIS -- ISSUE 1
Appellant filed an occupational disease claim attributing his right knee condition to 24
years of pushing, lifting and loading heavy mail into mail containers and transporting mail from
one unit to another. The employing establishment, however, advised that he was on a restrictive
job assignment, dropping mail from a seated position and feeding mail on a machine. The record
is devoid of any accurate description of appellant’s job duties either before the restricted
assignment or thereafter. Appellant did not respond to the Office’s May 29, 2009 letter
requesting additional details about the work factors that he believed contributed to his condition.
There is insufficient factual evidence of record demonstrating that his job duties consisted of
pushing, lifting, loading and transporting activities. The evidence is insufficient to establish that
the claimed work activities occurred as alleged. Furthermore, appellant failed to submit any
medical evidence addressing how any of the alleged employment activities caused or aggravated
a diagnosed medical condition. For this reason, he has failed to establish a prima facie claim for
compensation.6
For these reasons, the Board finds that appellant did not meet his burden of proof in
establishing that he sustained an occupational injury in the performance of duty.
CONCLUSION
Appellant has not met his burden of proof in establishing that he sustained a right knee
condition causally related to his federal employment.7

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.3(a) (April 1993)
(in occupational disease cases, the claimant must submit evidence to identify fully the particular work conditions
alleged to have caused the disease); see also L.B., 59 ECAB ___ (Docket No. 07-1748, issued December 18, 2007)
(stating that the claimant has the burden of proof to identify employment factors believed to have caused or
aggravated a claimed employment-related condition).
6

See Donald W. Wenzel, 56 ECAB 390 (2005).

7

Following the Office’s July 9, 2009 decision and on appeal, appellant submitted new evidence. However, the
Board may only review evidence that was in the record at the time the Office issued its final decision. 20 C.F.R.
§ 501.2(c).

3

ORDER
IT IS HEREBY ORDERED THAT the July 9, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 20, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ASHEVILLE VETERANS ADMINISTRATION
MEDICAL CENTER, Asheville, NC, Employer
__________________________________________

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

Docket No. 07-270
Issued: August 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 8, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 2, 2006. He also appealed a decision dated
October 2, 2006 which denied his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant has more than a 17 percent permanent impairment
of the right arm for which he received a schedule award; and (2) whether the Office properly
denied appellant’s request for reconsideration.
FACTUAL HISTORY
On November 15, 2002 appellant, then a 54-year-old physician, filed an occupational
disease claim alleging that he developed squamous cell carcinoma of the tongue with neck
involvement while performing his duties as a urologist. He became aware of his condition on

October 25, 2002. The Office accepted the claim for advanced malignancy of the tongue base
with neck metastasis and authorized panendoscopic surgery with biopsies of the right original
cervical metastatic disease that were performed on March 8 and June 10, 2002 and August 8 and
September 16, 2005. Appellant stopped work on March 20, 2002, returned on August 12, 2002
and retired in May 2003.
Appellant submitted an impairment rating from Dr. T. Flint Gray, III, a Board-certified
internist, dated March 31, 2003, who noted in accordance with the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment1 (A.M.A., Guides) that
appellant sustained a loss of tongue and pharyngeal function for a 40 to 60 percent impairment.2
Additionally, Dr. Gray noted that appellant had loss of function of the right shoulder and
impaired dexterity of the right hand. He noted findings upon physical examination of the
shoulder of flexion of 135 degrees for a three percent impairment,3 extension of 25 degrees for a
two percent impairment,4 abduction of 90 degrees for a four percent impairment,5 internal
rotation of 60 degrees for a two percent impairment,6 and external rotation of 100 degrees for a 0
percent impairment.7 Dr. Gray opined that in accordance with the A.M.A., Guides appellant
sustained a 11.5 percent impairment for loss of function for the right shoulder.
On July 1, 2003 appellant filed a claim for a schedule award. He submitted a report from
Dr. Kimmel dated March 17, 2003, who noted that appellant was diagnosed with pharyngeal
malignancy requiring surgery, radiation and chemotherapy. Appellant indicated that the
treatment made nutrition problematic, speaking difficult, dry mouth, loss of full function of the
tongue associated with the disfigurement of his neck and face, salt wasting nephropathy,
orthostatic hypotension, peripheral neuropathy, loss of function of the right shoulder and
impaired dexterity of the right hand.
The Office referred Dr. Gray’s report of March 31, 2003 and the case record to the
Office’s medical adviser who, in a report dated July 10, 2003, in accordance with the A.M.A.,
Guides, advised that appellant sustained a 17 percent permanent impairment of the right arm.
The Office medical adviser noted that appellant’s right shoulder impairment as it related to the
radical neck dissection caused adhesive capsulitis disturbance to the shoulder girdle. He
calculated that flexion was 135 degrees for three percent impairment,8 extension was 25 degrees

1

A.M.A., Guides (5th ed. 2001).

2

See id. at 262.

3

Id. at 476, Figure 16-40.

4

Id.

5

Id. at 477, Figure 16-43.

6

Id. at 479, Figure 16-46.

7

Id.

8

Id. at 476, Figure 16-40.

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for two percent impairment,9 abduction was 90 degrees for four percent impairment,10 internal
rotation was 60 degrees for two percent impairment,11 and external rotation was 100 degrees for
zero percent impairment.12 The medical adviser further noted that in accordance with Table 1635, page 510 of the A.M.A., Guides that appellant sustained six percent impairment for
weakness. He opined that appellant sustained a 17 percent permanent impairment of the right
arm.
In a report dated July 14, 2003, another medical adviser noted that appellant’s claim was
accepted for malignancy of the tongue base with neck metastases and that he was granted 60
percent impairment of the tongue. He concurred with the previous medical adviser, as set forth
in the July 10, 2003 report, with regard to appellant’s loss of function of the right shoulder.
Appellant submitted a report from Dr. Gray dated August 26, 2003, who noted that
appellant had xerostomia as a result of radiation therapy which caused disability in speech, voice
and swallowing. In addition, Dr. Gray noted that appellant’s cancer treatment caused peripheral
neuropathy, autonomic neuropathy and orthostatic hypotension.
On August 27, 2003 appellant requested an oral hearing. In a decision dated December 6,
2004, the Office denied appellant’s request for an oral hearing as untimely.
In a decision dated February 17, 2005, the Office granted appellant a schedule award for
17 percent permanent impairment of the right arm. The period of the schedule award was from
January 31, 2005 to February 6, 2006.
On March 8, 2005 appellant requested an oral hearing. He submitted reports from
Dr. Mark C. Weissler, a Board-certified internist, dated June 21, 2004 to December 22, 2005,
who noted that there was no evidence of recurrent tongue base cancer.
In a decision dated March 2, 2006, the hearing representative set aside the
February 17, 2005 decision. The hearing representative noted that further medical development
was required to determine the extent of impairment of the right arm including the right shoulder
and digits of the right hand.
On March 13, 2006 the Office referred appellant for a second opinion to Dr. David M.
Seales, a Board-certified neurologist. In an April 11, 2006 report, Dr. Seales indicated that he
reviewed the records provided to him and examined appellant. He noted findings of the right
shoulder of full range of motion and full strength of 5/5. Dr. Seales noted that appellant
experienced numbness for light touch at the tips of the thumb and index finger of the right hand
and numbness along the soles of both feet. He noted a marked problem with xerostomia related
to aspects of the cancer and its treatment. Dr. Seales noted that appellant did have relative
9

Id.

10

Id. at 477, Figure 16-43.

11

Id. at 479, Figure 16-46.

12

Id.

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decrease in the appreciation of light touch at the tips of the thumb and index fingers which was
present as early as 1987 and related to the cervical spine condition which preceded the detection
and treatment of the tongue cancer. He noted reduced range of motion at the neck resulting from
the surgery and radiation. Dr. Seales noted spasticity in the left limbs which was a remnant from
his prior neck condition and preceded his cancer detection and treatment.
The Office referred Dr. Seales’ report and the case record to an Office medical adviser
who, in an April 27, 2006 report, advised that appellant did not have an additional impairment of
the right arm pursuant to the A.M.A., Guides. The medical adviser noted that Dr. Seales’
findings indicated that appellant had full range of motion and strength of the right shoulder. He
noted that appellant had relative decrease in appreciation of light touch at the tips of his thumb
and index fingers on the right; however, this finding was noted as early as 1987 as part of a
preexisting problem with the cervical spine and cervical fusion in 1987. The medical adviser
determined that appellant was not entitled to an additional schedule award.
In a decision dated May 2, 2006, the Office denied appellant’s claim for an additional
schedule award on the basis that the medical evidence did not support an increase in impairment
over that which was already granted.
In letters dated June 23 and September 22, 2006, appellant indicated that he requested an
oral hearing in 2003 and was never notified of the status of this request. He indicated that he had
other unresolved medical issues related to his tongue cancer including chronic salt wasting
nephropathy, peripheral neuropathy, stricture of the esophagus, radiation induced necrosis of the
mandible, vestibular instability and brain stem injury. In a letter dated September 22, 2006,
appellant requested a response to his letter dated June 23, 2006 and requested reconsideration of
the May 2, 2006 decision.
By decision dated October 20, 2006, the Office denied appellant’s reconsideration
request on the grounds that his letter neither raised substantive legal questions nor included new
and relevant evidence and was insufficient to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act13 and its
implementing regulation14 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, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.15
13

5 U.S.C. § 8107.

14

20 C.F.R. § 10.404 (1999).

15

Linda R. Sherman, 56 ECAB ___ (Docket No. 04-1510, issued October 14, 2004);

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ANALYSIS -- ISSUE 1
The Office awarded appellant a 17 percent permanent impairment of the right arm on
February 17, 2005 based on the report of the medical adviser dated July 10, 2003. Appellant
requested an oral hearing and in a decision dated March 2, 2006, the hearing representative
remanded the case and noted that it was not clear how the medical adviser calculated the
impairment rating of 17 percent for the right arm and requested further medical development.16
On March 13, 2006 the Office referred appellant for a second opinion evaluation to
Dr. Seales. In his April 11, 2006 report, Dr. Seales noted that appellant’s physical examination
of the right shoulder revealed full range of motion and full strength. He noted that appellant
experienced numbness for light touch at the tips of the thumb and index finger of the right hand
and numbness along the soles of both feet. Dr. Seales noted that appellant’s problems with
weakness and restricted range of motion of the shoulder had resolved. He stated that the relative
decrease in the appreciation of light touch at the tips of the thumb and index fingers and
spasticity in the left limbs was present as early as 1987 and was related to the cervical spine
condition which preceded the detection and treatment of the tongue cancer. Dr. Seales did not
attribute any permanent impairment of the right arm to the accepted conditions.
The Office medical adviser applied the A.M.A., Guides to the information provided in
Dr. Seales April 11, 2006 report and correctly calculated that, based on the fifth edition of the
A.M.A., Guides, appellant had no additional impairment over which was previously granted. He
noted that Dr. Seales’ findings indicated that appellant had full range of motion of the right
shoulder and full strength of the right shoulder. The medical adviser noted that appellant had
relative decrease in appreciation of light touch at the tips of his thumb and index fingers on the
right; however, this finding was noted as early as 1987 as part of a preexisting problem with the
cervical spine and cervical fusion in 1987. He determined that appellant was not entitled to an
additional schedule award for the right upper extremity.
The Board finds that, under the circumstances of this case, the weight of the medical
evidence establishes that appellant has no more than a 17 percent permanent impairment of the
right upper extremity for which he was previously granted.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,17 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulations,18 which provides that a
16

The medical adviser calculated 11 percent impairment for range of motion deficits of the right shoulder and
cited to appropriate tables and charts in the A.M.A., Guides in support of this calculation. He further noted six
percent impairment for a total right upper extremity for weakness and cited to Table 16-35, page 510 of the A.M.A.,
Guides. However, the medical adviser did not explain why he used Table 16-35 or how he calculated the additional
six percent impairment of the arm under that table.
17

5 U.S.C. § 8128(a).

18

20 C.F.R. § 10.606(b).

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claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.19
ANALYSIS -- ISSUE 2
Appellant’s September 22, 2006 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office. Appellant did not submit any additional evidence with his reconsideration request only
narrative statements dated June 23 and September 22, 2006, which indicated that he had other
unresolved health issues which he claimed impairment.20 However, this is insufficient to show
that the Office erroneously applied or interpreted a specific point of law nor does it advance a
relevant legal argument not previously considered.21
Therefore, the Office properly determined that this evidence did not constitute a basis for
reopening the case for a merit review. Consequently, appellant is not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under section
10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant did not submit any new evidence with his
reconsideration request. The Office’s May 2, 2006 merit decision denied the claim for an
additional schedule award because there was no medical evidence supporting that appellant was
entitled to a schedule award for more than a 17 percent permanent impairment of the right upper
19

20 C.F.R. § 10.608(b).

20

The Board notes that appellant claimed impairment from several alleged consequential conditions of his
treatment for the accepted condition; however, it appears from the record that the Office has not issued a final
decision on such matters. Therefore, the Board does not have jurisdiction over the matter. See 20 C.F.R. § 501.2(c).
21

Additionally, appellant indicated that he requested an oral hearing in 2003 and was not informed of the status of
the hearing. The record reflects that the Office issued a decision on December 6, 2004 which denied appellant’s
August 27, 2003 request for an oral hearing and this decision was mailed to appellant’s address of record on
December 6, 2004.

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extremity for which he was previously granted. Thus, the underlying issue is medical in nature.
But, as noted above, appellant did not submit any new and relevant medical evidence with his
reconsideration request.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his September 22, 2006 request for reconsideration.
CONCLUSION
The Board finds that appellant, is therefore not entitled to an additional schedule award
for the right upper extremity. The Board further finds that the Office properly denied appellant’s
request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the October 20 and May 2, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


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

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Appearances:
James Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1471
Issued: February 4, 2020

Case Submitted on the Record

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

JURISDICTION
On June 27, 2019 appellant, through counsel, filed a timely appeal from a February 12,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left knee condition
causally related to the accepted September 21, 2017 employment incident.
FACTUAL HISTORY
On September 21, 2017 appellant, then a 52-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that she injured her left knee that day when descending steps while in
the performance of duty. She noted that her left knee popped and she experienced left knee pain
as a result. Appellant stopped work on September 22, 2017.
OWCP subsequently received the first page of an authorization for examination and/or
treatment form (Form CA-16) dated September 21, 2017 and signed by appellant’s supervisor,
M.A., which indicated that she had dislocated her left knee on that date. Appellant also provided
a September 21, 2017 medical note with an illegible signature excusing her from work until
September 25, 2017.
In a September 22, 2017 duty status report (Form CA-17), Dr. William Matarese, a Boardcertified orthopedic surgeon, noted that appellant was experiencing pain in her left knee after it
popped while she was descending stairs on September 21, 2017. He recommended that she remain
off work until she was evaluated by orthopedics. Appellant also provided a prescription note of
even date from Dr. Matarese.
In an October 6, 2017 medical report, Dr. Matarese diagnosed appellant with internal
derangements of her left knee due to the September 21, 2017 employment incident. He noted that
an x-ray image of the same date showed mild narrowing of the medical and lateral compartment
in appellant’s left knee. Dr. Matarese also indicated that appellant had a previous left knee injury
four years prior.
In a development letter dated October 17, 2017, OWCP informed appellant that her claim
initially appeared to be a minor injury that resulted in minimal or no lost time from work and that
limited expenses had been authorized as continuation of pay was not controverted by the
employing establishment. It further informed appellant, however, that a formal decision was now
required. OWCP advised her of the type of factual and medical evidence needed and provided a
factual questionnaire for her completion. It afforded appellant 30 days to respond.
In response, appellant provided an October 10, 2017 attending physician’s report (Form
CA-20) from Dr. Matarese again noting a diagnosis of left knee internal derangement due to the
September 21, 2017 employment incident. Dr. Matarese checked a box marked “yes” indicating
that her injury was caused or aggravated by her employment activity and that the injury occurred
while at work. He again noted appellant’s history of a left knee injury four years prior. In a Form
CA-17 of even date, Dr. Matarese held her off work and provided that she would be limited until
she underwent a magnetic resonance imaging (MRI) scan.

2

In an October 24, 2017 medical note, Dr. Matarese opined that appellant was still unable
to return to work. In CA-20 and CA-17 forms dated from October 24 to November 3, 2017, he
indicated that a diagnosis for appellant’s injury was pending an approval for an MRI scan.
A November 7, 2017 MRI scan of appellant’s left knee revealed findings of a root ligament
tear of the posterior horn medial meniscus, severe patellofemoral osteoarthritis and a benign
chondroid lesion in the posterolateral tibial plateau. In a November 16, 2017 medical report from
a follow-up appointment, Dr. Matarese noted appellant’s diagnoses based on the findings of the
November 7, 2017 MRI scan. He further noted that she was interested in undergoing an
arthroscopy to treat her injury.
By decision dated November 24, 2017, OWCP denied appellant’s claim. It found that the
medical evidence of record was insufficient to establish causal relationship between her diagnosed
medical conditions and the accepted September 21, 2017 work incident. OWCP also noted that
the evidence of record failed to differentiate appellant’s accepted September 21, 2017 condition
from her preexisting left knee injury.
OWCP continued to receive evidence. Appellant provided a November 13, 2017 Form
CA-20 from Dr. Matarese reiterating appellant’s diagnosis of a left knee medial meniscus tear and
checking a box marked “yes” indicating that her condition was caused or aggravated by her
employment activity. Dr. Matarese explained that her injury occurred when her knee popped while
she was descending stairs.
In a December 4, 2017 medical report, Dr. Matarese opined that appellant’s meniscal tear
was “beyond a reasonable degree of medical certainty,” secondary to the injury sustained at work
and as a result, she was unable to ambulate for prolonged periods or work, and she required
operative arthroscopy treatment. He also noted that she had preexisting arthritis unrelated to her
work injury.
On December 12, 2017 appellant requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review. In a statement accompanying her
request, she provided a history of injury related to the pop she felt in her left knee, as well as
treatment she received for her injuries. Appellant indicated that she was still experiencing left
knee pain and would be unable to perform her work duties without corrective surgery.
On April 24, 2018 counsel submitted additional medical records from appellant’s
emergency room visit on September 21, 2017.
A medical report dated September 21, 2017 from Dr. Oleg Formitchev, Board-certified in
emergency medicine, included a diagnosis of a left knee sprain as a result of appellant walking
down stairs while delivering mail, hearing a pop and falling on her left knee. Dr. Formitchev also
noted that her x-ray revealed no acute bony pathology, but showed small well-corticated bony
density adjacent to the medial femoral condyle that could be due to a previous medial collateral
ligament (MCL) injury.
By decision dated May 16, 2018, OWCP’s hearing representative affirmed the
November 24, 2017 decision.

3

On November 15, 2018 appellant, through counsel, requested reconsideration of OWCP’s
May 16, 2018 decision. Along with the request for reconsideration, she provided an October 9
and November 14, 2018 narrative medical report from Dr. Matarese.
Dr. Martarese, in his October 9, 2018 narrative report, provided a history of treatment for
appellant’s left knee injury relating to the September 21, 2017 work incident. He discussed a
February 27, 2018 surgical procedure of left knee arthroscopic partial posterior horn medial
menisectomy and chondroplasty medial femoral condyle procedure to treat her left knee.
Dr. Martarese also noted that appellant sustained a previous left knee injury four years prior to the
September 2017 work incident. He diagnosed internal derangement of the left knee, as well as a
medial meniscus tear. Dr. Martarese explained that “if” her medical history was factual, then the
September 21, 2017 work incident was a competent cause for her injury.
In his November 14, 2018 narrative report, Dr. Martarese provided that, in his orthopedic
opinion, beyond a reasonable degree of medical certainty, as appellant descended the stairs she
sustained a twisting injury about the femoral tibial junction resulting in a tear of her medial
meniscus. He explained that a twisting injury or slight pivoting of the femoral tibial junction
would cause pressure and shearing action upon the meniscus, resulting in a meniscus tear.
By decision dated February 12, 2019, OWCP denied modification of its May 16, 2018
decision finding that the medical evidence submitted was insufficient to establish causal
relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

4

time, place, and in the manner alleged. Second, the employee must submit evidence, in the form
of medical evidence, to establish that the employment incident caused a personal injury.7
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.8 The weight of the medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left knee injury
causally related to the accepted September 21, 2017 employment incident.
In his October 9, 2018 narrative report, Dr. Matarese provided a history of treatment for
appellant’s left knee injuries in relation to the September 21, 2017 employment incident and he
also referenced her previous left knee injury. He opined that “if” the history was factual, the workrelated incident was a competent cause of her left knee injury. The Board has held that medical
opinions which are speculative or equivocal in nature are of diminished probative value.10 The
physician’s opinion must be expressed in terms of a reasonable degree of medical certainty and
must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s).11 Therefore, Dr. Matarese’s
October 9, 2018 report is of diminished probative value and is insufficient to establish appellant’s
claim.
In his November 14, 2018 medical report, Dr. Matarese provided that in his orthopedic
opinion, “beyond a reasonable degree of medical certainty,” appellant descended the stairs and
sustained a twisting injury about the femoral tibial junction resulting in a tear of her medial
meniscus. He further explained that a twisting injury or slight pivoting of the femoral tibial
junction would cause pressure and shearing action upon the meniscus, resulting in a meniscus tear.
While Dr. Matarese provided a rationalized medical opinion expressed to a reasonable degree of

7
K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q) (traumatic injury and occupational disease defined, respectively).
8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

9

Id.; James Mack, 43 ECAB 321 (1991).

10
See S.E., Docket No. 08-2214 (issued May 6, 2009) (finding that opinions such as the condition is probably
related, most likely related, or could be related are speculative and diminish the probative value of the medical
opinion); Cecilia M. Corley, 56 ECAB 662, 669 (2005) (finding that medical opinions which are speculative or
equivocal are of diminished probative value).
11

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

medical certainty, his opinion was not based on a complete medical background of appellant.12
The record reflects that appellant had a previous left knee injury, however, Dr. Matarese failed to
discuss whether appellant’s preexisting condition contributed to the internal derangement in her
left knee or her left medial meniscus tear.13 The Board has consistently held that complete medical
rationalization is particularly necessary when there are preexisting conditions involving the same
body part, and has required medical rationale differentiating between the effects of the workrelated injury and the preexisting condition in such cases.14 For this reason, Dr. Matarese’s
November 14, 2018 report is insufficient to meet appellant’s burden of proof.
In Form CA-20s dated from October 10 to November 13, 2017, Dr. Matarese provided
diagnoses of left knee internal derangement and a left knee medial meniscus tear due to the
September 21, 2017 employment incident. He checked boxes marked “yes” indicating that
appellant’s injury was caused or aggravated by her employment and also made note of appellant’s
previous knee injury.15 Although his opinion generally supported causal relationship between the
accepted employment incident and appellant’s diagnosed conditions, Dr. Matarese did not provide
sufficient rationale explaining this conclusion. The Board has held that a physician’s opinion on
causal relationship which consists of checking “yes” to a form question, without explanation or
rationale, is of diminished probative value and is insufficient to establish a claim.16 A medical
opinion should reflect a correct history and offer a medically sound explanation by the physician
of how the specific employment incident physiologically caused or aggravated the diagnosed
conditions.17 Accordingly, the Board finds that Dr. Matarese’s CA-20 forms are also insufficient
to meet appellant’s burden of proof.
In his December 4, 2017 medical report, Dr. Matarese opined that “beyond a reasonable
degree of medical certainty,” appellant’s left knee injury was a result of the September 21, 2017
employment incident. He also again noted that she had preexisting arthritis unrelated to her work
injury. The Board finds that Dr. Matarese merely provided a conclusory opinion on the issue of
casual relationship. Dr. Matarese did not provide a rationalized opinion as to how descending
stairs and hearing a pop caused any of the diagnosed conditions. A mere conclusory opinion
provided by a physician without the necessary rationale explaining how and why the incident or
work factors were sufficient to result in the diagnosed medical conclusion is insufficient to meet a

12

Supra note 8.

13

C.E., Docket No. 19-0192 (issued July 16, 2019); R.E., Docket No. 14-0868 (issued September 24, 2014).

14
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e) (January 2013);
R.R., Docket No. 19-0048 (issued April 25, 2019).
15

Id.

16

See J.R., Docket No. 18-1679 (issued May 6, 2019); M.C., Docket No. 18-0361 (issued August 15, 2018);
Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).
17

See J.M., Docket No. 17-1002 (issued August 22, 2017).

6

claimant’s burden of proof to establish a claim.18 Therefore, Dr. Matarese’s December 4, 2017
medical report is insufficient to meet appellant’s burden of proof.
The remainder of Dr. Matarese’s medical evidence consists of a September 22, 2017 Form
CA-17 and medical reports dated October 6 and November 16, 2017, which noted that appellant
was experiencing pain in her left knee following the September 21, 2017 employment incident and
provided a diagnosis of internal derangement of her left knee. However, Dr. Matarese offered no
opinion regarding the cause of appellant’s medical conditions. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.19
In his September 21, 2017 medical report, Dr. Formitchev provided a diagnosis of a left
knee sprain as a result of appellant walking down the stairs while working and falling on her left
knee. He also noted that x-rays of her knee revealed no acute bony pathology, but showed small
well-corticated bony density adjacent to the medial femoral condyle that could be due to a previous
MCL injury. Although his opinion generally supported causal relationship between the accepted
September 21, 2017 employment incident and appellant’s diagnosed condition, Dr. Formitchev
did not provide sufficient rationale explaining these conclusions. As previously noted, a mere
conclusion without the necessary rationale explaining how and why the physician believes that a
claimant’s accepted incident resulted in the diagnosed condition is insufficient to meet appellant’s
burden of proof.20
Lastly, appellant also provided a November 7, 2017 MRI scan of her left knee revealing a
root ligament tear of the posterior horn medial meniscus, severe patellofemoral osteoarthritis and
a benign chondroid lesion in the posterolateral tibial plateau. The Board has held that diagnostic
tests lack probative value as they do not provide an opinion on causal relationship between
appellant’s employment duties and the diagnosed conditions.21 Accordingly, this report is of no
probative value regarding causal relationship.
As there is no rationalized medical evidence of record explaining how appellant’s
employment duties caused or aggravated her conditions, the Board finds that appellant has not met
her burden of proof.
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.

18

D.L., Docket No. 19-1176 (issued December 13, 2019).

19

R.Z., Docket No. 19-0408 (issued June 26 2019); P.S., Docket No. 18-1222 (issued January 8, 2019).

20

See Y.T., Docket No. 17-1559 (issued March 20, 2018); supra note 17.

21

See J.M., Docket No. 17-1688 (issued December 13, 2018).

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left knee injury
causally related to the accepted September 21, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 12, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE,
)
AERONAUTICAL SYSTEMS CENTER,
)
WRIGHT-PATTERSON AIR FORCE BASE, OH, )
Employer
)
____________________________________________ )
Z.S., Appellant

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

Docket No. 16-1745
Issued: May 18, 2017

Case Submitted on the Record

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

JURISDICTION
On August 30, 2016 appellant filed a timely appeal from an April 27, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from the last merit decision, dated January 23, 2014, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely and failed to demonstrate clear evidence of error.

1

Appellant timely requested oral argument. However, the Board exercised its discretion and denied her request
pursuant to 20 C.F.R. § 501.5(a). See Order Denying Request for Oral Argument, Docket No. 16-1745 (issued
March 3, 2017).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts as presented in the Board’s
prior decisions are incorporated herein by reference. The relevant facts are set forth below.4
In an October 7, 2011 decision,5 the Board set aside OWCP’s August 4, 2010 nonmerit
decision denying appellant’s request for reconsideration of its April 27, 2010 merit decision.6
The Board directed OWCP to conduct a merit review and issue an appropriate decision. In a
decision dated August 15, 2012,7 the Board set aside a February 13, 2012 OWCP decision and
remanded the case for further medical development as there remained a conflict in medical
opinion. The Board noted that Dr. Pietro Seni, a Board-certified orthopedic surgeon and OWCP
referral physician, produced a May 13, 2009 report in which he diagnosed severe degenerative
left hip osteoarthritis and concluded that appellant had a preexisting arthritic condition, which
ceased being aggravated by the January 27, 2004 fall in mid-February 2004. In contrast,
Dr. Suzanne Croteau, an attending osteopath, produced an August 15, 2011 report in which she
diagnosed left piriformis and hip strains and opined that the January 27, 2004 fall caused an
injury to the left hip and piriformis muscle. She concluded that work factors contributed to the
development of continuing erosive osteoarthritis. The Board ordered OWCP to refer appellant to
a Board-certified impartial medical specialist for an opinion regarding whether her continuing
left hip condition and need for total left hip replacement surgery on December 28, 2006 were
work related.
On remand, OWCP referred appellant to Dr. Alan R. Kohlhaas, a Board-certified
orthopedic surgeon, for an impartial medical examination and an opinion regarding whether she
continued to have a work-related left hip condition and whether her December 28, 2006 total left
hip replacement surgery was necessitated by a work-related condition. In an April 10, 2013
3

Docket No. 11-0842 (issued October 7, 2011), Docket No. 12-0862 (issued August 15, 2012), and Docket No.
13-1499 (issued January 23, 2014).
4

On January 27, 2004 appellant, then a 57-year-old logistics management specialist, slipped and fell on ice at
work. OWCP accepted her claim for back, face, scalp, and neck contusions under OWCP File No. xxxxxx160. On
September 15, 2006 appellant filed an occupational disease claim (under File No. xxxxxx470) for left hip joint pain
due to her temporary assignment in Germany for the period April 27 to June 9, 2005. On September 9, 2008 she
filed another occupational disease claim (also under File No. xxxxxx470), alleging that her left hip joint symptoms
were exacerbated by physical therapy in 2005. On December 15, 2009 OWCP expanded the claim to include
temporary aggravation of preexisting left hip osteoarthritis. Appellant underwent total left hip replacement surgery
on December 28, 2006, which was not authorized by OWCP, and later claimed that the surgery was necessitated by
a work-related condition. The documents contained in File Nos. xxxxxx160 and xxxxxx470 have been
administratively combined.
5

Docket No. 11-0842 (issued October 7, 2011).

6

In an April 27, 2010 decision, an OWCP hearing representative had determined that appellant ceased to have a
work-related left hip condition by mid-February 2004 and that her December 28, 2006 total left hip replacement
surgery was not necessitated by a work-related condition. She considered several reports of attending physicians,
including a June 5, 2008 report of Dr. James Beegan, a Board-certified physical medicine and rehabilitation
physician, and found that they did not establish appellant’s claim of a continuing work-related left hip condition. In
an August 4, 2010 decision, OWCP denied appellant’s June 23, 2010 request for merit review of the April 27, 2010
decision.
7

Docket No. 12-0862 (issued August 15, 2012).

2

report, Dr. Kohlhaas opined that the fall on January 27, 2004 did not cause the degenerative
changes that had continued to slowly progress over time in both hips. He noted that, following
her January 27, 2004 fall, appellant had significant improvement and was able to return to a
fairly active lifestyle. Dr. Kohlhaas opined that the temporary aggravation of a preexisting
condition caused by the January 27, 2004 fall had ceased by the time of appellant’s skiing trip in
March 2005. He further opined that appellant’s need for total left hip replacement surgery on
December 28, 2006 was due to the natural progression of her left hip osteoarthritis that
preexisted her fall on January 27, 2004. Dr. Kohlhaas opined that the most likely cause of her
condition and need for surgery was a nonwork-related femur acetabulum impingement condition.
In an April 29, 2013 decision, OWCP determined that the previously accepted temporary
aggravation of preexisting left hip osteoarthritis had ceased by March 2005 and that the
December 28, 2006 total left hip replacement surgery was not necessitated by a work-related
condition. Appellant appealed to the Board.
By decision dated January 23, 2014,8 the Board affirmed OWCP’s April 29, 2013
decision finding that the work-related temporary aggravation of appellant’s preexisting left hip
osteoarthritis had ceased and that the December 28, 2006 total left hip replacement surgery was
not necessitated by a work-related condition. The Board found that the weight of the medical
opinion evidence rested with the opinion of Dr. Kohlhaas, the impartial medical specialist.
In a letter dated January 15, 2015 and received by OWCP on January 26, 2015, appellant
requested reconsideration of OWCP’s April 29, 2013 decision. She contended that the reports of
her attending physicians, including the June 5, 2008 report of Dr. Beegan9 and the August 15,
2011 report of Dr. Croteau, established her claim that she had a continuing work-related left hip
condition and that her December 28, 2006 total left hip replacement surgery was necessitated by
a work-related condition. Appellant also argued that the April 10, 2013 report of Dr. Kohlhaas
was insufficiently well rationalized to constitute the weight of the medical opinion evidence with
respect to these matters.
Appellant submitted additional evidence in support of her reconsideration request
including additional narrative statements which were similar to her January 15, 2015 statement,
timelines she created concerning her medical treatment, administrative documents concerning
her OWCP claims, and statements expressing her concerns about the processing of her OWCP
claims.
In an April 27, 2016 decision, OWCP denied appellant’s request for reconsideration of
the merits of her claim because her request was untimely filed and failed to demonstrate clear
evidence of error. Appellant’s reconsideration request was received on January 26, 2015 more
than one year after the issuance of the Board’s January 23, 2014 merit decision. OWCP
considered the reconsideration request under the clear evidence of error standard and found that
appellant had not shown clear error in its April 29, 2013 decision. It noted that appellant was
merely attempting to make arguments which had previously been considered by OWCP.

8

Docket No. 13-1499 (issued January 23, 2014).

9

Supra note 5.

3

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.10 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.11 One such limitation is that the request for
reconsideration must be received by OWCP within one year of the date of the decision for which
review is sought.12 OWCP will consider an untimely request for reconsideration only if the
request demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit
decision.”13 The request must establish on its face that such decision was erroneous.14 Where a
request for reconsideration is untimely and fails to present any clear evidence of error, OWCP
will deny the request without reopening the case for a review on the merits.15
ANALYSIS
The Board finds that OWCP properly determined that appellant’s January 26, 2015
request for reconsideration was untimely filed. The last merit decision of record was the Board’s
January 23, 2014 decision, which affirmed OWCP’s April 29, 2013 decision regarding
appellant’s ongoing left hip complaints and her prior left total hip arthroplasty. The one-year
period for filing a request for reconsideration begins on the date of the original OWCP decision,
but also accompanies any subsequent merit decision by the Board.16 As such, appellant had one
year from the Board’s January 23, 2014 decision to timely request reconsideration. Her request
would have been timely if received by OWCP on or before Friday, January 23, 2015. Although
the request was dated January 15, 2015, OWCP did not receive it until January 26, 2015, which in
10

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
11

20 C.F.R. § 10.607.

12

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b. For decisions issued on or after June 1, 1987
through August 28, 2011, the request for reconsideration must be mailed to OWCP within one year of OWCP’s
decision for which review is sought. Id. at Chapter 2.1602.4e.
13

20 C.F.R. § 10.607(b).

14

Id. To establish clear evidence of error, a claimant must submit evidence relevant to the issue that was decided
by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise, and explicit and it
must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 ECAB 227 (1991). It is not
enough to merely show that the evidence could be construed to produce a contrary conclusion. Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural error, but must be of
sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant and raise a
substantial question as to the correctness of OWCP’s decision. Thankamma Mathews, 44 ECAB 765, 770 (1993).
15

20 C.F.R. § 10.608(b).

16

Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.1602.4a.

4

this case is the relevant date for purposes of determining timeliness.17 Because appellant’s
January 26, 2015 request for reconsideration was untimely, she must demonstrate clear evidence
of error with respect to OWCP’s April 29, 2013 merit decision.18
The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP in issuing its April 29, 2013 decision.
Appellant did not submit the type of positive, precise and explicit evidence which
manifests on its face that OWCP committed an error in its April 29, 2013 decision.19 In her
January 26, 2015 request for reconsideration, appellant argued that the reports of her attending
physicians, including the June 5, 2008 report of Dr. Beegan and the August 15, 2011 report of
Dr. Croteau, established her claim that she had a continuing work-related left hip condition and
that her December 28, 2006 left total hip arthroplasty was necessitated by a work-related
condition.20 Appellant also argued that the April 10, 2013 report of Dr. Kohlhaas was not
sufficiently well rationalized to constitute the weight of the medical opinion evidence with
respect to these matters.
The Board notes that appellant’s contentions made reference to evidence previously of
record and already considered. OWCP had already considered the evidence mentioned by
appellant when it issued its April 29, 2013 decision finding that the previously accepted
temporary aggravation of preexisting left hip osteoarthritis had ceased by March 2005 and that
the December 28, 2006 left total hip arthroplasty was not necessitated by a work-related
condition. The evidence and arguments she submitted did not raise a substantial question
concerning the correctness of OWCP’s April 29, 2013 decision.21 OWCP found that the weight
of the medical opinion evidence with respect to these matters rested with the well-rationalized
April 10, 2013 opinion of Dr. Kohlhaas and appellant’s lay opinion regarding the sufficiency of
this medical opinion would not demonstrate clear error in OWCP’s April 29, 2013 decision.22
Appellant also submitted additional evidence in support of her reconsideration request,
including statements which were similar to her January 15, 2015 statement, timelines she created
concerning her medical treatment, administrative documents concerning her OWCP claims, and
statements expressing her concerns about the processing of her OWCP claim. The issue in the
present case is medical in nature and appellant did not explain how this nonmedical evidence
raised a substantial question as to the correctness of OWCP’s April 29, 2013 decision.
17

Id. at Chapter 2.1602.4b.

18

20 C.F.R. § 10.607(b).

19

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

20

On appeal, appellant raised similar arguments about the medical reports of her attending physicians.

21

See Annie L. Billingsley, 50 ECAB 210 (1998); Jimmy L. Day, 48 ECAB 652 (1997). The Board notes that, on
appeal, appellant submitted documents regarding Freedom of Information Act proceedings that are not directly
relevant to this appeal.
22

With particular regard to Dr. Croteau’s November 28, 2011 report, the Board had already determined that this
report constituted one side of the conflict in the medical opinion evidence that was resolved by the April 10, 2013
report of Dr. Kohlhaas.

5

The Board finds that appellant’s application for review does not show on its face that
OWCP committed error when it found in its April 29, 2013 decision that the previously accepted
temporary aggravation of preexisting left hip osteoarthritis had ceased by March 2005 and that
the December 28, 2006 total left hip replacement surgery was not necessitated by a work-related
condition.23 Clear evidence of error is intended to represent a difficult standard.24 Other than
simply reiterating her previous arguments, appellant has not met this standard in this case.
For these reasons, the evidence and argument submitted by appellant does not raise a
substantial question concerning the correctness of OWCP’s April 29, 2013 decision and OWCP
properly determined that appellant did not show clear evidence of error in that decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim because it was untimely filed and failed to demonstrate clear evidence of
error.
ORDER
IT IS HEREBY ORDERED THAT the April 27, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 18, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

23

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

24

R.K., Docket No. 16-0355 (issued June 27, 2016).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York City, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0708
Issued: July 15, 2015

Case Submitted on the Record

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

JURISDICTION
On February 3, 2015 appellant, through counsel, filed a timely appeal from a
December 9, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty on August 14, 2013.
FACTUAL HISTORY
On August 20, 2013 appellant, then a 55-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 14, 2013 she sustained a cervical spine contusion as
a result of an elevator door hitting her head. She stopped work on August 14, 2013. The
1

5 U.S.C. § 8101 et seq.

employing establishment controverted continuation of pay, with a supervisor noting a different
account of the injury.
In a note dated August 15, 2013, Dr. Barry A. Baker, a Board-certified internist, stated
that appellant could not return to work until September 5, 2013 due to a traumatic neck
contusion.
By letter dated August 22, 2013, OWCP informed appellant of the evidence necessary to
establish her claim. It noted that she had not submitted sufficient medical evidence to establish
that her diagnosed condition was causally related to the incident of August 14, 2013. OWCP
afforded appellant 30 days to submit additional evidence and to respond to its inquiries.
In a report dated August 24, 2013, Dr. Albert Graziosa, an orthopedic surgeon, diagnosed
appellant with cervical spine sprain and strain associated with mild degenerative change and
possible radiculopathy, and with traumatic headache.2 He noted that appellant reported that her
condition was caused by an elevator door shutting on her head and neck.
A computerized tomography (CT) scan of the cervical spine taken on August 14, 2013 by
Dr. Gwendolyn Hotson, a Board-certified radiologist, revealed mild degenerative changes with
broad-based posterior disc-osteophyte complex and bilateral hypertrophy, along with left
foraminal stenosis and mild facet degenerative disease. The scan also revealed normal cervical
lordotic curvature with normal alignment and vertebral bodies of normal height.
Appellant responded to OWCP’s questionnaire on September 17, 2013. She stated that
the freight elevator door unexpectedly closed on her head on August 14, 2013, which caused an
immediate effect of pain. Appellant was transported from her work site to the hospital via
ambulance.
By decision dated October 1, 2013, OWCP denied appellant’s claim for compensation. It
accepted that she was a federal civilian employee who filed a timely claim; that the incident
occurred as alleged; that a medical condition had been diagnosed; and that she was within the
performance of duty. However, OWCP found that appellant had not submitted sufficient
evidence to establish that her cervical spine condition was caused or aggravated by the event of
August 14, 2013.
On November 4, 2013 appellant requested reconsideration of OWCP’s October 1, 2013
decision.
In a follow-up report dated September 27, 2013, Dr. Graziosa noted that appellant had
attended one session of therapy, which helped only minimally. He also re-stated his earlier
diagnoses.
On October 15, 2013 Dr. Graziosa stated that appellant continued to have headaches. On
physical examination he noted tenderness to palpation of the cervical spine along with limited
2

Dr. Graziosa’s certification in a medical specialty could not be confirmed with the American Board of Medical
Specialties or the American Osteopathic Association.

2

range of motion and several positive tests. Dr. Graziosa diagnosed appellant with cervical spine
discogenic pain and traumatic headache.
In a report dated November 26, 2013, Dr. Graziosa noted that appellant still experienced
persistent traumatic headache and advised that she continue with his recommended course of
treatment.
By decision dated January 6, 2014, OWCP denied modification of its prior decision,
finding that appellant had still not submitted a physician’s report containing a rationalized
opinion explaining the causal relationship between appellant’s diagnosed conditions and the
incident of August 14, 2013.
In a report dated September 4, 2013, Dr. Peter C. Kwan, Board-certified in family
medicine, examined appellant and diagnosed her with post-traumatic cephalgia and traumatic
injury of the cervical spine, and ruled out traumatic cervical disc herniation. He stated that the
incident that appellant described was the competent medical cause of her diagnosed conditions as
the history was consistent with his objective findings.
On January 28, 2014 Dr. Hal Rosenfeld, a chiropractor, examined the results of an x-ray
of appellant’s cervical spine and diagnosed her with a subluxation at C6-C7. He also noted a
decreased lordotic curve. Dr. Rosenfeld stated, “An elevator closing on your head causes
vertebra to be misaligned, ligaments and muscles to be overstretched, nerves to be irritated and
bulging of the discs, and various soft tissues to be inflamed.” He concluded that the elevator
incident was the proximate cause of appellant’s medical condition and caused disability.
On September 19, 2014 appellant once again requested reconsideration of OWCP’s
October 1, 2013 decision.
By decision dated December 9, 2014, OWCP reviewed the merits of appellant’s claim,
but denied modification of its October 1, 2013 decision. It found that the reports of Drs. Kwan
and Rosenfeld were not sufficiently rationalized to establish a causal relationship between her
diagnosed conditions and the incident of August 14, 2013.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

5

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

3

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.6
First, the employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8
The claimant has the burden of establishing by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.9 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.12 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.13
ANALYSIS
The Board finds that the medical evidence submitted by appellant does not establish that
the incident of August 14, 2013 caused a medical condition.
In support of her claim, appellant initially submitted reports from Dr. Baker and
Dr. Graziosa. Dr. Baker, in his August 15, 2013 report, related that appellant could not return to
work until September 5, 2013 due to a traumatic neck contusion. However, he offered no
6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 4.
9

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

10

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

11

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
12

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

13

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

opinion on the cause of the diagnosed neck condition. Similarly, Dr. Graziosa in his August 24
and October 15, 2013 reports diagnosed a cervical sprain, with mild degenerative change,
possible radiculopathy, and traumatic headache. He noted appellant’s allegation that her
condition had been caused by the employment incident, but offered no medical opinion on the
cause of her diagnosed conditions. A medical opinion which does not provide a complete factual
and medical background and does not offer medical rationale explaining the nature of the
relationship between the diagnosed condition and the employment incident is of limited
probative value.14
Dr. Kwan submitted a report dated September 4, 2013 in which he related that he had
examined appellant and diagnosed her with post-traumatic cephalgia, and traumatic injury of the
cervical spine, and ruled out traumatic cervical disc herniation. He stated that the incident
appellant described was the cause of her injury. Dr. Kwan’s September 4, 2013 report does not
contain a medically sound explanation of how the August 14, 2013 event physiologically caused
or aggravated appellant’s diagnosed conditions.15 He further did not explain how appellant’s
diagnosed degenerative conditions of the cervical spine were related to the incident of
August 14, 2013. Medical evidence submitted to support a claim for compensation should
reflect a correct history, and the physician should offer a medically sound explanation of how the
claimed work event caused or aggravated the claimed condition.16 Lacking such an explanation,
Dr. Kwan’s September 4, 2013 report is not sufficient to establish a causal relationship between
the event of August 14, 2013 and appellant’s diagnosed conditions.
On January 28, 2014 Dr. Rosenfeld examined the results of an x-ray of appellant’s
cervical spine and diagnosed her with a subluxation at C6-C7. He also noted a decreased
lordotic curve. Dr. Rosenfeld stated, “An elevator closing on your head causes vertebra to be
misaligned, ligaments and muscles to be overstretched, nerves to be irritated and bulging of the
discs, and various soft tissues to be inflamed.” He concluded that the August 14, 2013
employment incident was the proximate cause of the described medical condition. As defined
under FECA, a physician includes a chiropractor only to the extent that his or her reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist.17 As Dr. Rosenfeld provided a diagnosis of spinal
subluxation, noting that this was based on x-ray diagnosis, he is considered a physician under
FECA.
Dr. Rosenfeld’s January 28, 2014 report, however, is similarly deficient to Dr. Kwan’s.
While Dr. Rosenfeld provided an opinion as to the cause of appellant’s subluxation condition, he
did not offer a medically sound explanation of his opinion in light of the contradictory objective
evidence. Dr. Rosenfeld failed to explain how the diagnosed subluxation did not appear on the
14

Id.

15

See M.M., Docket No. 15-607 (May 15, 2015).

16

D.D., Docket No. 13-1517 (issued April 14, 2014).

17

5 U.S.C. § 8101(2); see Merton J. Sills, 39 ECAB 572, 575 (1988). Subluxation means an incomplete
dislocation, off-centering, misalignment, fixation, or abnormal spacing of the vertebrae which must be demonstrable
on any x-ray film to an individual trained in the reading of x-rays. 20 C.F.R. § 10.5(bb).

5

CT scan taken on the date of injury. As such, his opinion is insufficient to establish that
appellant’s diagnosed subluxation was caused by the incident of August 14, 2013. To the extent
that Dr. Rosenfeld diagnosed conditions beyond subluxation and opined that these conditions
were caused by the employment incident, his opinion is of no probative value.18
As appellant has not submitted rationalized medical evidence to support her claim that
she was injured as a result of an August 14, 2013 employment incident, she has not met her
burden of proof to establish a claim.
Finally, the Board notes that OWCP’s implementing regulations allow for authorization
of medical treatment in emergency circumstances. While 20 C.F.R. § 10.300 explains that
authorization of emergency medical treatment is usually provided by issuance of a Form CA-16,
section 10.304 allows for authorization of emergency treatment, in the absence of a Form CA16, in cases involving emergencies or unusual circumstances.19 While there was no Form CA-16
issued in this case, the record reveals that appellant was transported to a hospital on August 14,
2013 from her work site. Upon return of the case record, after such development deemed
necessary, OWCP shall adjudicate whether appellant’s treatment on August 14, 2013 should be
authorized due to an emergency or unusual circumstances.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on August 14, 2013.

18

See George E. Williams, 44 ECAB 533 (1993). The Board has held chiropractic opinions to be of no probative
medical value on conditions beyond the spine. As a chiropractor may only qualify as a physician in the diagnosis
and treatment of spinal subluxation, his opinion is of probative medical value only with regard to the spine, even
though he meets the FECA’s criteria as a physician.
19

See also K.J., Docket No. 13-271 (issued May 23, 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the December 9, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2015
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0927
Issued: January 29, 2021

Case Submitted on the Record

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

JURISDICTION
On March 16, 2020 appellant filed a timely appeal from a September 26, 2019 merit
decision and a February 20, 2020 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish dermatitis
causally related to the accepted factors of his federal employment; and (2) whether OWCP
properly denied appellant’s request for reconsideration of the merits of his claim pursuant to
5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 21, 2018 appellant, then a 59-year-old shipfitter, filed an occupational
disease claim (Form CA-2) alleging that he developed dermatitis due to factors of his federal
employment. He noted that he first became aware of his condition and realized that it was caused
or aggravated by factors of his federal employment on November 23, 2017. Appellant explained
that the chemicals he was exposed to caused him pain and skin irritation around his sideburns and
facial structure. He did not stop work. .
In an August 29, 2018 letter, Dr. Reginald Henry, a Board-certified dermatologist, noted
that he had been treating appellant since March 2018 for an itchy dermatitis on his beard area and
scalp. He explained that, through the use of medication, he was able to get appellant’s condition
under control; however, when appellant cuts his beard his rashes return. Dr. Henry requested that
appellant be assigned to a job where he did not have to wear a respirator so that he would not have
to cut his beard and, thereby, prevent his rash.
In an October 10, 2018 statement, R.C., appellant’s supervisor, indicated that at some point
in October appellant began working with the painters. He recounted asking appellant how
everything was going and he would respond that the paint fumes and chemicals that he used to
mop the floors would bother him and cause headaches. In February 2018, R.C. began to notice
facial sores in appellant’s beard. On March 29, 2018 appellant provided a letter from his physician
that stated that wearing a respirator would worsen appellant’s skin condition. On August 21, 2018
R.C. recounted that appellant was assigned to a job that required him to wear a respirator and he
refused to shave his beard due to the issues he was dealing with on his face.
In a November 5, 2018 personal statement, appellant explained that, from October 16 to
December 14, 2017, he was assigned to a job that required him to sweep, mop, and wax various
floors. Shortly, after he began his assignment, he recounted experiencing headaches due to the
smell of the liquid chemicals and paint and informing R.C. of his situation. Appellant worked for
eight hours a day, five days per week. By November 23, 2017 his sideburns, face, jaw, and chin
began itching, burning and watering. Appellant went to a local pharmacy where a pharmacist
recommended a medication to address his symptoms. After the medication did not help, he
followed up with Dr. Henry on March 2, 2018 who continued to treat him for his condition.
In a development letter dated November 21, 2018, OWCP advised appellant of the
deficiencies of his claim and instructed him as to the factual and medical evidence necessary to
establish his claim. It asked him to complete a questionnaire to provide further details regarding
the circumstances of his claimed injury and requested a narrative medical report from his treating
physician, which contained a detailed description of findings and diagnosis, explaining how his
work activities caused, contributed to, or aggravated his medical condition. In a separate
development letter of even date, OWCP requested that the employing establishment provide
comments from a knowledgeable supervisor regarding the accuracy of appellant’s allegations. It
afforded both parties 30 days to respond. No additional evidence from either party was received.2

2
The Board notes that the November 21, 2018 development letters to appellant and the employing establishment
were both returned as undeliverable.

2

By decision dated January 2, 2019, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that his diagnosed
condition was causally related to the accepted factors of his federal employment.
OWCP continued to receive evidence. In a January 28, 2019 letter, Dr. Henry detailed his
history of treatment of appellant for dermatitis. He explained that it was never clear what his
dermatitis was from, but appellant informed him that during the fall of 2017 appellant began to
experience headaches and rashes after he began cleaning and waxing office floors at work.
Dr. Henry stated that his dermatitis did not fit any specific dermatitis diagnosis and explained that
the condition was most often a reaction to something. He opined that appellant’s condition was
likely a reaction to the chemicals he was exposed to at work and declared that he could not find
any other reason for him to develop a rash.
In a February 20, 2019 documentation of temporary work restrictions, Dr. Elizabeth
Merrell, Board-certified in internal medicine, submitted temporary work restrictions for appellant
and advised that he not use a respirator.
In an undated statement, appellant provided that he was submitting additional information
concerning the chemicals he was exposed to at work, as well as additional statements from his
coworkers. He attached a series of material safety data sheets providing information on an epoxy
adhesive, a heavy duty nonduty l floor stripper, an industrial enamel, nonflaming water-based
enamel, a silicone alkyd copolymer, a leak sealer, and a specially denatured alcohol.
On June 3, 2019 appellant requested reconsideration of OWCP’s January 2, 2019 decision.
In a March 27, 2019 statement L.B., appellant’s coworker, recounted appellant’s duties
consisting of sweeping, moping and stripping floors, taking out trash, cleaning tables with furniture
polish, sanding walls, painting walls, and wiping down trophy cases.
By decision dated July 17, 2019, OWCP denied modification of its January 2, 2019
decision.
OWCP continued to receive evidence. On July 25, 2019 Dr. Henry referred appellant to
Dr. Ronald Buckley, a Board-certified dermatologist, for a second opinion concerning appellant’s
medical condition.
In an August 22, 2019 medical report, Dr. Buckley evaluated appellant for a skin rash. He
noted the onset of appellant’s symptoms were gradual over two years and began following
exposure to chemicals at work. Dr. Buckley provided that, based on Dr. Henry’s evaluation, he
concurred with his assessment and treatment and opined that it was likely that the chemicals used
in appellant’s work environment may have contributed to the development of his condition. He
concluded by reasoning that it was likely that appellant’s condition would exacerbate if appellant
returned to his original job.
Appellant also resubmitted copies of the material safety data sheets and medical evidence
previously received by OWCP.

3

On September 6, 2019 appellant requested reconsideration of OWCP’s July 17, 2019
decision.
By decision dated September 26, 2019, OWCP denied modification of its July 17, 2019
decision.
OWCP continued to receive evidence. Appellant submitted a November 1, 2019 report of
Dr. Henry the contents of which mirrored his January 28, 2019 report dated November 1, 2019.
On November 18, 2019 appellant requested reconsideration of OWCP’s September 26,
2019 decision.
By decision dated February 20, 2020, OWCP denied appellant’s request for
reconsideration of the merits of his claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
3
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

4

complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that he
developed dermatitis causally related to the accepted factors of his federal employment.
Appellant submitted multiple copies of Dr. Henry’s January 28, 2019 letter in which
Dr. Henry detailed his history of treatment of appellant for his dermatitis. He informed Dr. Henry
that during the fall of 2017 he began experiencing headaches and rashes after he began cleaning
and waxing office floors at work. Dr. Henry explained that appellant’s dermatitis did not fit any
specific diagnosis and opined that his condition was likely a reaction to the chemicals he was
exposed to at work. While he provided an affirmative opinion on causal relationship, he did not
offer any medical rationale sufficient to explain how and why he believes that the factors of
appellant’s federal employment could have resulted in or contributed to his diagnosed condition.
Without explaining how the chemicals appellant’s was exposed to at work caused or contributed
to his condition, Dr. Henry’s letter is of limited probative value.10 Additionally, Dr. Henry’s
statement that appellant’s condition was “likely” a reaction to the chemicals appellant was exposed
to is speculative and equivocal, and thus insufficient to establish appellant’s burden of proof.11
Further, his conclusions are largely based on appellant’s opinion as to what caused his condition,
rather than by his independent analysis of the cause of his dermatitis.12 For these reasons,
Dr. Henry’s January 28, 2019 letter is insufficient to meet appellant’s burden of proof.
Dr. Henry’s remaining evidence consisted of multiple copies of his August 29, 2018 letter
in which he explained that, through the use of medication, he was able to get appellant’s dermatitis
under control and recommended that appellant only perform work that did not require him to shave
his beard or to wear a respirator. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition or disability is of no probative value on
the issue of causal relationship.13 As Dr. Henry’s August 29, 2018 letter did not offer an opinion

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

10

See A.P., Docket No. 19-0224 (issued July 11, 2019).

11

The Board has held that speculative and equivocal medical opinions regarding causal relationship have no
probative value. R.C., Docket No. 18-1695 (issued March 12, 2019); see Ricky S. Storms, 52 ECAB 349 (2001) (while
the opinion of a physician supporting causal relationship need not be one of absolute medical certainty, the opinion
must not be speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of medical
certainty).
12

See D.L., Docket No. 15-0866 (issued November 23, 2015); J.S., Docket No. 14-0818 (issued August 7, 2014).

13

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

5

as to whether appellant’s dermatitis was causally related to the accepted factors of his federal
employment, the Board finds that it is insufficient to meet appellant’s burden of proof.
Dr. Buckley noted in his August 22, 2019 medical report that the onset of appellant’s
symptoms were gradual over two years and began following his exposure to chemicals at work.
He opined that, based on Dr. Henry’s evaluation, it was likely that the chemicals used in
appellant’s work environment may have contributed to the development of appellant’s condition.
As explained above, Dr. Buckley’s statement that it was “likely” that the chemicals used in
appellant’s work environment “may” have contributed to the development of his condition is
speculative and equivocal, and thus insufficient to establish appellant’s burden of proof.14 For this
reason, his August 22, 2019 medical report is insufficient to meet appellant’s burden of proof.
The remaining medical evidence consisted of Dr. Merrell’s February 20, 2019
documentation of temporary work restrictions in which she submitted temporary work restrictions
for appellant and advised that he not used a respirator. The Board has held that a medical report
that does not address causal relationship is of no probative value.15 For this reason, Dr. Merrell’s
medical evidence is insufficient to meet appellant’s burden of proof.
As appellant has not submitted rationalized medical evidence establishing that his
dermatitis is causally related to the accepted factors of his federal employment, the Board finds
that he has not met his burden of proof to establish his claim.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA16 vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.17
To require OWCP to reopen a case for merit review under 5 U.S.C. § 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.18

14

Supra note 11.

15

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

16

Supra note 1.

17

5 U.S.C. § 8128(a).

18
20 C.F.R. § 10.608(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); L.G., Docket No. 091517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).

6

A request for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought.19 If it chooses to grant reconsideration, it reopens and reviews
the case on its merits.20 If the request is timely, but fails to meet at least one of the requirements
for reconsideration, OWCP will deny the request for reconsideration without reopening the case
for review on the merits.21
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant filed a timely request for reconsideration on February 20, 2020,22 but he did not
establish that OWCP erroneously applied or interpreted a specific point of law, or advance a
relevant legal argument not previously considered by OWCP. Consequently, the Board finds that
he is not entitled to a review of the merits based on either the first or second requirement under 20
C.F.R. § 10.606(b)(3).23
Appellant also failed to submit relevant and pertinent new evidence in support of his
February 20, 2020 request for reconsideration. The underlying issue on reconsideration was
whether he had met his burden of proof to establish that his dermatitis was causally related to the
accepted factors of his federal employment. This is a medical question that requires rationalized
medical opinion evidence to resolve the issue.24 Appellant submitted a November 1, 2019 report
of Dr. Henry the contents of which mirrored the January 28, 2019 report dated November 1, 2019.
While this evidence is new, it is substantially similar to the prior evidence of record. Providing
additional medical evidence that either duplicates or is substantially similar to evidence of record
does not constitute a basis for reopening a case.25 As appellant did not provide relevant and
pertinent new evidence, he is not entitled to a merit based on the third requirement under 20 C.F.R.
§ 10.606(b)(3).26

19

Id. at § 10.607(a).

20

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

21

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

22

Supra note 19; J.F., Docket No. 16-1233 (issued November 23, 2016).

23

Supra note 18.

24

E.T., Docket No. 14-1087 (issued September 5, 2014).

25

M.O., Docket No. 19-1677 (issued February 25, 2020); Eugene F. Butler, 36 ECAB 393, 398 (1984).

26
S.H., Docket No. 19-1897 (issued April 21, 2020); M.K., Docket No. 18-1623 (issued April 10, 2019); Edward
Matthew Diekemper, 31 ECAB 224-25 (1979).

7

Accordingly, the Board finds that appellant has not met any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.27
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
developed dermatitis causally related to the accepted factors of his federal employment. The Board
further finds that OWCP properly denied his request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 20, 2020 and September 26, 2019
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 29, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

27

See D.S., Docket No. 18-0353 (issued February 18, 2020).

8