United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Denver, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-2183
Issued: May 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On October 3, 2013 appellant, through counsel, timely appealed the April 23, 2013
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) which denied
reconsideration. The last merit decision is dated August 16, 2012, which is more than 180 days
prior to the filing of the instant appeal. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board’s jurisdiction extends only to OWCP’s
April 23, 2013 nonmerit decision.
ISSUE
The issue is whether OWCP properly denied merit review pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
The case was previously before the Board. Appellant, a 59-year-old distribution clerk,
has an accepted claim for post-traumatic stress disorder (PTSD) which arose on July 12, 1999 as

1

5 U.S.C. §§ 8101-8193 (2006).

a result of an altercation with her then supervisor.2 On October 25, 1999 she resumed work at a
different facility so as to avoid contact with her previous supervisor. Five months later, appellant
stopped work following an incident involving Ed Loffredo, an attendance control supervisor.
On March 24, 2000 appellant asked Mr. Loffredo to sign a note she had written to remind
herself which forms she needed to submit for her workers’ compensation claim. He refused to
sign the note. Appellant alleged that Mr. Loffredo yelled at her and waved his arms in a
threatening manner. Mr. Loffredo also allegedly told her that he did not care whether her
paycheck was correct. Appellant thought Mr. Loffredo was going to physically hurt her.
Mr. Loffredo indicated that he kept his hands in his pockets and used a soothing voice as he
explained to appellant why he would not sign her note. OWCP accepted that Mr. Loffredo
refused to sign appellant’s personal note. However, appellant failed to establish that he waved
his arms and yelled at her.
A few hours after the March 24, 2000 incident, appellant was treated in the emergency
room for acute anxiety reaction. She did not report for work on March 25, 2000, and has not
since returned. Appellant filed various claims for wage-loss compensation beginning
March 25, 2000.
OWCP has adjudicated the March 24, 2000 incident as both a new traumatic injury and
an occupational disease claim (xx-xxx9296).3 The claim was also adjudicated as a recurrence of
appellant’s July 12, 1999 employment injury, and most recently, as a consequential injury of her
employment-related PTSD.
When the case was last on appeal, the Board affirmed OWCP’s May 16, 2011 decision
denying compensation.4 At the time, counsel argued that the March 24, 2000 incident with
Mr. Loffredo reawakened or triggered appellant’s memory of the July 12, 1999 altercation with
her prior supervisor, and thus, aggravated her PTSD. The Board previously recognized PTSD as
a compensable consequential injury under circumstances where a certain triggering event had
been medically demonstrated to have caused a reawakening or exacerbation of PTSD
symptoms,5 but in appellant’s case, she failed to establish a causal relationship between her
original injury and the claimed consequential injury. At least two physicians described the
March 24, 2000 incident as a trigger of the July 12, 1999 employment incident. However, the

2

Appellant’s supervisor, Kristine L. Prusak, yelled at her, used profanity and was verbally abusive and
threatening.
3

The incident with Mr. Loffredo was one of 11 workplace events that were factually established, but not
considered to be directly related to appellant’s duties. The other events included appellant having felt pressure to
return to work on October 25, 1999, stress from completing and filing required OWCP forms, supervisors having
lost or failed to submit her timecards, having been shorted on four paychecks between October 1999 and
January 2000, the employing establishment failing to process her continuation of pay and claims for compensation,
inadequate training for new assignments and management changing appellant’s work schedule.
4

Docket No. 11-1670 (issued August 16, 2012).

5

Charlet Garrett Smith, 47 ECAB 562 (1996); K.S., Docket No. 13-221 (issued April 18, 2013).

2

Board did not find their respective opinions particularly persuasive.6 The Board’s August 16,
2012 decision is incorporated herein by reference.
On January 14, 2013 appellant’s counsel requested reconsideration and submitted
additional medical evidence.
This included the November 21, 2012 deposition of
Dr. Randolph W. Pock, a Board-certified psychiatrist and OWCP-referral physician, who
previously examined appellant in April 2010.7 In his latest deposition, Dr. Pock indicated, inter
alia, that appellant’s interaction with Mr. Loffredo triggered her March 24, 2000 panic attack,
which was a symptom of PTSD. He explained that the incident with Mr. Loffredo evoked
memories of appellant’s initial injury, and thus, she suffered a consequential injury.
Counsel also submitted the December 7, 2012 deposition of Dr. Carole S. Kornreich, a
psychiatrist, who first treated appellant in January 2006. Dr. Kornreich indicated that the
incident with Mr. Loffredo was one of several workplace events that reminded appellant of her
prior injury. She explained that when appellant returned to work her original injury had not been
optimally resolved, and then it was constantly aggravated to the point where she just
decompensated profoundly.
OWCP also received additional treatment notes for appellant’s therapist, Virginia H.
Poor, a licensed clinical social worker.
By decision dated April 23, 2013, OWCP denied appellant’s request for reconsideration.
Merit review was unwarranted because the evidence submitted was found to be cumulative.
LEGAL PRECEDENT
OWCP has the discretion to reopen a case for review on the merits.8 An application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.9

6

The Board noted various inconsistencies and mischaracterizations. Also, neither physician adequately explained
how an ostensibly nonthreatening interaction with a supervisor on March 24, 2000 resembled or symbolized the
July 12, 1999 traumatic event involving Ms. Prusak. The Board found that, absent such an explanation, the medical
evidence was insufficient to establish that the otherwise benign March 24, 2000 incident with Mr. Loffredo triggered
the July 12, 1999 incident, thus aggravating appellant’s PTSD.
7

In an April 23, 2010 report, Dr. Pock diagnosed PTSD and found appellant totally disabled. However, he did
not find a March 24, 2000 consequential injury. Appellant’s counsel subsequently deposed Dr. Pock, at which time
he concluded that several of the employment incidents OWCP found noncompensable had, in fact, contributed to
appellant’s March 24, 2000 panic attack and subsequent disability. In his July 21, 2010 deposition, Dr. Pock did not
specifically comment on whether appellant sustained a consequential injury on March 24, 2000.
8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b)(2).

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When an application for reconsideration meets at least one of the above-noted requirements,
OWCP will grant reconsideration and reopen the case for review on the merits.10
ANALYSIS
OWCP determined that merit review was unwarranted because the evidence submitted on
reconsideration was cumulative. Providing additional evidence that repeats or duplicates
information already in the record does not constitute a basis for reopening a claim,11 but contrary
to OWCP’s finding, Dr. Pock’s November 21, 2012 deposition is not cumulative. While the
record already included a previous report and deposition from Dr. Pock, his latest deposition
elaborated on earlier findings and specifically addressed whether the March 24, 2000 incident
with Mr. Loffredo was a triggering event. Also, Dr. Pock answered a series of questions posed
by counsel in response to specific concerns raised by the Board in its August 16, 2012 decision.12
As such, Dr. Pock’s November 21, 2012 deposition included information previously not part of
the record. Similarly, Dr. Kornreich’s December 7, 2012 deposition included new information
regarding causal relationship.13 Accordingly, the Board finds that the recent depositions of
Dr. Pock and Dr. Kornreich constitute relevant and pertinent new evidence not previously
considered by OWCP. Therefore, appellant is entitled to merit review pursuant to 20 C.F.R.
§ 10.608(a). OWCP’s April 23, 2013 decision shall be set aside, and the case remanded for
merit review and a determination of whether modification of the May 16, 2011 decision is
warranted.
CONCLUSION
The Board finds that OWCP improperly denied merit review.

10

20 C.F.R. §§ 10.608(a) and 10.609.

11

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

12

See supra note 6.

13

Dr. Kornreich’s previous handwritten progress notes did not include a definitive statement on causal
relationship and/or triggering events.

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ORDER
IT IS HEREBY ORDERED THAT the April 23, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: May 6, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 11-2019
Issued: May 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 8, 2011 appellant filed a timely appeal from the April 19, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs’ (OWCP) denying her request for
merit review. The Board also has jurisdiction over OWCP’s March 14, 2011 decision denying
her claim.1 Pursuant to the Federal Employees Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an injury on October 18, 2010 as a result of her employment; and (2) whether OWCP
1

Under the Board’s rules of procedure, in computing the date of filing of an appeal, the 180 days begins to run on
the date following the date of OWCP’s decision. 20 C.F.R. § 501.3(f)(2). The time began to run for the March 14,
2011 decision on March 15, 2011 from which 180 days fell on Sunday, September 11, 2011. Appellant had until the
close of the next business day, September 12, 2011 to timely submit her appeal. Her appeal was filed September 8,
2011, so it was timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

properly refused to reopen appellant’s case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On October 27, 2010 appellant, then a 51-year-old remittance perfection clerk, filed a
traumatic injury claim alleging that on October 18, 2010 she was in the performance of duty
lifting and carrying boxes on a skid when she felt pain on the left lower side of her back. She
stated that, while the pain eased after a few minutes, her entire lower back hurt by the end of the
day. The employing establishment indicated that appellant stopped work on October 10, 2010
and returned on October 25, 2010.
In support of her claim, appellant submitted copies of temporary offer of light/limited
duty she accepted dated October 28 and December 2, 2010; a November 12, 2010 Rx Guardian
Results report; and multiple notes, form reports and authorization requests forms from
Dr. Andrew J. Limle, a chiropractor. In an October 20, 2010 report, Dr. Limle noted that he had
been treating appellant for an automobile accident injury involving the left L5-S1 intervertebral
disc, for which she had reached maximum medical improvement was at a supportive level of
care. He noted the history of the October 18, 2010 work injury and his examination findings.
Dr. Limle opined that the work-related injury resulted in a lumbosacral sprain to the lumbar
region in both areas and substantially aggravated the lumbar degenerative conditions and disc
injuries noted on her previous magnetic resonance imaging (MRI) scan. He recommended
chiropractic manipulations to the lumbar spine and the possibility of getting a new MRI scan. In
a November 10, 2010 attending physician’s report, Dr. Limle indicated that appellant had
preexisting lumbar disc herniations at L5-S1 and opined with a checkmark “yes” that the work
injury of lifting boxes resulted in a lumbosacral sprain. He continued to submit progress reports
on appellant’s condition.
In a February 10, 2011 letter, OWCP informed appellant that additional evidence was
needed to establish her claim. It gave her 30 days to submit a narrative medical report from a
physician explaining how the October 18, 2010 incident caused or contributed to her condition.
OWCP advised appellant that a chiropractor was only considered a qualified physician under
FECA if there is a diagnosed spinal subluxation demonstrated by x-ray.
In response, appellant submitted duplicative copies of evidence previously of record
along with January 8 and February 8, 2011 duty status reports from Dr. Limle diagnosing lower
back pain.
By decision dated March 14, 2011, OWCP denied the claim finding that the medical
evidence was insufficient to establish that the accepted work events caused a diagnosed medical
condition. It specifically found that appellant’s chiropractor, Dr. Limle, was not considered a
physician under FECA.
On March 23, 2011 appellant requested reconsideration. She indicated that additional
medical documentation showing subluxation to the L5 and the sacroiliac joint was included. No
additional evidence was received.

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By decision dated April 19, 2011, OWCP denied appellant’s reconsideration request
finding that the request was insufficient to warrant a merit review of the claim. It noted that no
new evidence was received.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 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
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. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place and in the manner alleged. 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. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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 the
compensable employment factors. 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.6
ANALYSIS -- ISSUE 1
The evidence supports that the incident of October 18, 2010, lifting and carrying boxes,
occurred as alleged. However, appellant has not established her traumatic injury claim because

3

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

See also E.K., Docket No. 09-1827 (issued April 21, 2010); see Steven S. Saleh, 55 ECAB 169 (2003); Elaine
Pendleton, 40 ECAB 1143 (1989).
5

Id. see Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

6

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

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the medical evidence does not show that this accepted employment incident caused or
contributed to her back condition.
Appellant submitted several reports from Dr. Limle, including an October 20, 2010
report, where he noted an account of the October 18, 2010 work event, performed an
examination and diagnosed a lumbosacral sprain to the lumbar region in both areas and an
aggravation of her preexisting lumbar degenerative conditions and disc injuries as seen on a
previous MRI scan. Dr. Limle concluded that these injuries were attributable to the work
incident. He recommended that appellant be treated with chiropractic manipulations and
possibly attain a new MRI scan to access any further damage to her preexisting lumbar
conditions. Additional reports from Dr. Limle discussed appellant’s progress with regard to
chiropractic manipulations and diagnosed either lumbosacral sprain or lower back pain as a
result of the work injury. As defined under FECA, a physician includes a chiropractor only to
the extent that his reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.7
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.8 Dr. Limle, however, never made reference to subluxations in any of his
reports or noted a review of x-rays. Thus, he is not a physician under FECA and his opinion
regarding the cause of appellant’s current back condition lacks evidentiary weight.9 There is no
other probative medical evidence contained in the record. As there is no probative medical
evidence of record, appellant has not established that the October 18, 2010 work incident caused
or aggravated a claimed injury.
Appellant contends on appeal that she sent all the evidence OWCP requested. As noted,
the medical evidence is insufficient to demonstrate that the accepted October 18, 2010
employment incident was causally related to a back condition. Evidence submitted by appellant
after the final decision cannot be considered by the Board. The Board’s jurisdiction is limited to
reviewing the evidence that was before OWCP at the time of its decision.10
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.

7

5 U.S.C. § 8101(2); Merton J. Sills, 39 ECAB 572, 575 (1988).

8

20 C.F.R. § 10.5(bb).

9

Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (medical opinion,
in general, can only be given by a qualified physician).
10

20 C.F.R. § 501.2(c)(1).

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LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,11
OWCP’s regulations provide that 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.12 To be entitled to a merit review of OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.13 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.14
ANALYSIS -- ISSUE 2
The Board finds that appellant’s March 23, 2011 request for reconsideration did not meet
any of the requirements of 20 C.F.R. § 10.606(b)(2). It did not show that OWCP erroneously
applied or interpreted a specific point of law or advance a relevant legal argument not previously
considered by OWCP. Appellant made no legal argument or assertion of OWCP error but
instead indicated that she was submitting medical documentation.
However, appellant’s March 23, 2011 request for reconsideration was not accompanied
by any new medical evidence. She indicated that she was including additional medical
documentation showing subluxation in the spine, but no such evidence was received by OWCP
prior to its April 19, 2011 decision. Thus, appellant did not submit relevant and pertinent new
evidence not previously considered by OWCP.
Consequently, the evidence submitted by the claimant on reconsideration does not satisfy
any of the three regulatory criteria for reopening a claim for merit review. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on October 18, 2010. The Board further finds that OWCP properly
denied appellant’s request for further review of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).

11

Section 8128(a) of FECA provides that the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.
12

20 C.F.R. § 10.606(b)(2). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
13

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

14

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009) Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the April 19 and March 14, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 3, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
New York, NY, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 08-2503
Issued: September 23, 2009

Case Submitted on the Record

ORDER REMANDING CASE
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

On September 22, 2008 appellant filed a timely appeal from November 13, 2007 and
May 27, 2008 decisions of the Office of Workers’ Compensation Programs denying her claim
for an emotional condition. The appeal was docketed as No. 08-2503. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
The Board, having reviewed the case record submitted by the Office, finds that this case
is not in posture for decision. Appellant, an occupational health nurse, alleged that her emotional
condition was caused in part by the difficulties of four injured workers, EB, SJ, DL and GK,1 in
obtaining authorization for medical treatment. By decision dated April 17, 2007, the Board
remanded the case for further development of the evidence concerning these injured workers.
By decision dated June 21, 2007, the Office denied appellant’s claim on the grounds that
appellant had not met her burden of proof as the employing establishment could not find any
injured workers with the names provided by appellant. By decision dated August 23, 2007, an
Office hearing representative remanded the case to the Office, noting that appellant had provided
case numbers for four different injured workers. The hearing representative remanded the case
for the Office and the employing establishment to both review the cases alleged by appellant.
1

These injured workers are identified by their initials for privacy reasons.

On remand, the Office provided the employing establishment with the case record numbers of
the four injured workers and asked for a detailed review of appellant’s involvement in each of
these cases.
The employing establishment provided statements discussing appellant’s
involvement in the cases. In a November 13, 2007 decision, an Office senior claims examiner
stated that she had personally examined the case records for the four injured workers. She
provided a summary of what she concluded from her review. The case records of the four
injured workers are not a part of appellant’s case record before the Board. By decision dated
May 27, 2008, an Office hearing representative affirmed the November 13, 2007 decision.
By application for review dated September 10, 2008, appellant’s representative requested
that the Board remand the case to the Office for a determination that appellant had established a
compensable factor of employment in the performance of duty and for further evaluation of the
medical evidence. By motion dated September 21, 2009, the Director of the Office requested
that the Board remand the case to the Office. The Director stated that the Office should request
that the employing establishment clearly address appellant’s allegations and submit such a
statement to the record. The Director noted that the Office claims examiner should thereafter
make findings of fact based only on the evidence in appellant’s case record and issue a de novo
decision on appellant’s claim for compensation.
The Board will grant the Director’s motion for remand. The November 13, 2007 Office
decision and the May 27, 2008 affirmance by the hearing representative relied upon evidence
which was not part of appellant’s case record. The Board’s Rules of Procedure at 20 C.F.R.
§ 501.2(c)(1) state: “The Board’s review of a case is limited to the evidence in the case record
that was before [the Office] at the time of its final decision.” As not all evidence reviewed by the
Office is of record, the Board is precluded from access to and is improperly unable to review all
of the evidence that was evaluated by the Office at the time of the November 13, 2007 and
May 27, 2008 decisions. The case will be remanded to the Office for further development of the
evidence regarding appellant’s allegations as necessary, in accordance with the Director’s motion
and this order. Following such further development of the evidence the Office shall issue a de
novo decision.

2

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 27, 2008 and November 13, 2007 are set aside and the case
is remanded for further action consistent with this order of the Board.
Issued: September 23, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


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

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

Docket No. 09-2181
Issued: June 10, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 1, 2009 appellant filed a timely appeal from an August 7, 2009 Office of
Workers’ Compensation Programs’ schedule award decision. Under 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 sustained any permanent impairment to a scheduled
member causally related to her accepted right shoulder condition warranting a schedule award
under 5 U.S.C. § 8107.
FACTUAL HISTORY
On February 2, 2001 appellant, a 59-year-old nurse, injured her right shoulder while
assisting a patient. She filed a claim for benefits on February 10, 2001, which the Office
accepted for right shoulder strain. On November 14, 2008 appellant filed a schedule award
claim based on a partial loss of use of her right upper extremity.

By letter dated December 1, 2008, the Office advised appellant that the most recent
medical report of record was dated December 10, 2001. It requested updated medical evidence
from appellant to establish that she sustained impairment due to her accepted condition. The
Office requested a comprehensive medical report addressing the February 2, 2001 work injury
and a detailed description of findings on physical examination, results of any diagnostic tests, the
diagnosis related to the February 2, 2001 work injury and medical opinion on whether her
accepted right shoulder condition resulted in permanent impairment.
In a December 24, 2008 report, Dr. Timothy Morley, an osteopath, found that appellant
had 10 percent permanent impairment to her right upper extremity based on her accepted right
shoulder condition pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (fifth edition) (the A.M.A., Guides). He rated three percent impairment
for 140 degrees, loss of flexion;1 one percent impairment for 30 degrees, loss of adduction; four
percent impairment for 90 degrees, loss of abduction;2 and two percent impairment for 60
degrees, loss of internal rotation.3 This totaled 10 percent impairment due to loss of range of
motion “with respect to the recognized diagnosis under claim [number] xxxxxx582.” Dr. Morley
found the date of maximum medical improvement to be May 2002.
By decision dated January 7, 2009, the Office denied appellant’s claim for a schedule
award. It found that causal relationship had not been established to warrant an award as
Dr. Morley did not address the eight years between appellant’s injury and his impairment rating.
On January 9, 2009 appellant’s attorney requested an oral hearing, which was held on
May 21, 2009.
By decision dated August 7, 2009, an Office hearing representative affirmed the
January 7, 2009 decision. She found that the injury sustained by appellant, a right shoulder
strain “is generally considered a minor injury with no permanent residuals.”
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.5 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule
1

A.M.A., Guides 476, Figure 16-40.

2

Id. at 477, Figure 16-43.

3

Id. at 479, Figure 16-46.

4

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

5

Id. at § 8107(c)(19).

2

losses.6 The claimant has the burden of proving that the condition for which a schedule award is
sought is causally related to his or her employment.
ANALYSIS
The Office accepted that appellant sustained a right shoulder rotator cuff strain.
Appellant filed a schedule award claim and submitted the December 24, 2009 report of
Dr. Morley, who found that she had 10 percent impairment to the right upper extremity based on
her accepted right shoulder condition. The Office hearing representative found that Dr. Morley’s
report was not a sufficient basis on which to grant a schedule award. She stated that the accepted
strain was generally considered a minor injury that did not result in permanent residuals. Causal
relation or the determination of permanent impairment is a medical question to be left to
qualified physicians. The question of permanent impairment must be established by the medical
evidence of record, not rules of general application.7 Dr. Morley based his rating on the
applicable tables of the A.M.A., Guides and attributed appellant’s loss of range of motion to her
accepted injury. He rated a total 10 percent impairment due to loss of range of motion “with
respect to the recognized diagnosis under claim [number] xxxxxx582.”
The Office accepted a claim for right shoulder strain, rotator cuff, as a result of the
February 2, 2001 work incident. In response to its request, appellant submitted an updated
medical report from Dr. Morley, who provided findings on examination and rated the degree of
permanent impairment from appellant’s accepted February 2, 2001 right shoulder condition.8
The Office did not refer the medical evidence from Dr. Morley to an Office medical adviser for
review and comment.
The August 7, 2009 decision will be set aside and the case remanded for referral of
Dr. Morley’s January 5, 2009 report to an Office medical adviser for review and an opinion on
whether it establishes any permanent impairment related to appellant’s accepted injury. After
such further development as it deems necessary, the Office shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

6

20 C.F.R. § 10.404.

7

When a hearing representative or claims examiner finds it necessary to explain or further elaborate on the
medical evidence of record, the proper course would be to obtain the services of a medical adviser. See Diane J.
Vaccaro, 47 ECAB 263, 267.
8

The Board notes that the description of a claimant’s impairment obtained from a physician, must be in sufficient
detail so that the claims examiner and others reviewing the file will be able to clearly visualize the impairment with
its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580, 585 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the August 7, 2009 decision of the Office of
Workers’ Compensation Programs be set aside and the case is remanded to the Office for further
action consistent with this decision of the Board.
Issued: June 10, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Houston, TX, Employer
)
__________________________________________ )
D.D., Appellant

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

Docket No. 19-0393
Issued: June 24, 2019

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 December 13, 2018 appellant, through counsel, filed a timely appeal from an
August 28, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish that his diagnosed upper
extremity conditions are causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On December 18, 2017 appellant, then a 52-year-old property management specialist, filed
an occupational disease claim (Form CA-2), alleging that he developed bilateral hand pain and
numbness due to daily use of a computer and keyboard while in the performance of duty. He noted
that he became aware of his condition and realized its relation to his federal employment on
July 13, 2015. Appellant did not stop work.
By development letter dated January 14, 2018, OWCP requested that appellant submit
additional evidence in support of his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. By separate development letter
of even date, OWCP also requested additional information from the employing establishment. It
afforded both appellant and the employing establishment 30 days for submission of the requested
evidence.
In a January 16, 2018 report, Dr. Mark D. Khorsandi, a hand surgeon, noted appellant’s
complaints of bilateral hand numbness and tingling starting in 2015 and gradually worsening.
Appellant was diagnosed with carpal tunnel syndrome and underwent steroid injections into the
carpal tunnel in 2016 and 2017, which provided temporary relief. He reported working in a job
since 2014 which involved typing and driving. Appellant complained of weakness of grip strength
and pain radiating into the forearm. Dr. Khorsandi noted findings on examination of positive
Phalen’s test bilaterally, positive Tinel’s sign bilaterally, and mild tenderness on the
carpometacarpal thumb on the left. He diagnosed bilateral carpal tunnel syndrome, pronator
syndrome, right cubital tunnel syndrome, and chronic migraine. Dr. Khorsandi opined that there
was reason to believe that appellant’s new job and job criteria contributed to his carpal tunnel
syndrome. He recommended electrodiagnostic testing.
In an undated statement, the employing establishment noted that appellant began
employment in 2014. Appellant’s duties included assisting in hands-on inventories, inspections,
and weapon breakdowns. The employing establishment indicated that appellant worked eight to
nine hours a day and could take breaks as needed. Appellant’s primary tool was a computer and a
mouse. In February 2016 he reported to the employment establishment that he was having
difficulty using his right hand to perform his work duties due to numbness and tingling. Appellant
continued to experience symptoms in both hands; however, his responsibilities had changed and
his work load diminished. Attached was a position description for a property management
specialist.
On January 11, 2016 Harold Becker, a physician assistant, evaluated appellant for
complaints of numbness and tingling of both hands. He noted findings of no edema or effusion of
the wrists, no atrophy at the thenar eminence, negative Tinel’s and Phalen’s signs at the wrists
bilaterally, intact motor strength, and decreased sensation to light touch in the median nerve
distribution, bilaterally. X-rays of the bilateral wrists revealed no abnormalities. Mr. Becker
2

diagnosed bilateral carpal tunnel syndrome, administered a steroid injection into the bilateral
carpal tunnel, and recommended night splints.
By decision dated March 6, 2018, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between appellant’s diagnosed conditions and the accepted employment factors.
On March 27, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on July 25, 2018.
By decision dated August 28, 2018, an OWCP hearing representative affirmed the
March 6, 2018 decision.
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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 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

Id.

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).
7

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

8

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

3

complete factual and medical background.9 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).10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed upper extremity conditions are causally related to the accepted factors of his federal
employment.
In a January 16, 2018 report, Dr. Khorsandi diagnosed bilateral carpal tunnel syndrome,
pronator syndrome, and right cubital tunnel syndrome. He opined that there was reason to believe
that appellant’s new job and job criteria had contributed to the cause of his carpal tunnel syndrome.
Appellant reported working in a desk job since 2014, which involved typing and driving. The
Board finds that, although Dr. Khorsandi supported causal relationship, he did not provide medical
rationale explaining the basis of his conclusory opinion regarding the causal relationship between
appellant’s upper extremity condition(s) and the factors of employment.11 Dr. Khorsandi did not
describe appellant’s alleged repetitive work duties or explain the process by which appellant’s
work duties caused the diagnosed condition and why such condition would not be due to any
nonwork factors. Therefore, his January 16, 2018 report is insufficient to meet appellant’s burden
of proof to establish causal relationship.
The report from a physician assistant dated January 11, 2016 is of no probative medical
value in establishing appellant’s claim. Certain healthcare providers such as physician assistants,
nurse practitioners, physical therapists, and social workers are not considered “physician[s]” as
defined under FECA.12 Consequently, their medical findings and/or opinions do not suffice for
purposes of establishing entitlement to FECA benefits.13 As such, Mr. Becker’s January 11, 2016
report is insufficient to satisfy appellant’s burden of proof.
Because appellant has not provided rationalized medical evidence establishing causal
relationship, the Board finds he has not met his burden of proof to establish his occupational
disease claim.

9

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

10

Id.

11
See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
12

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

13

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed upper extremity conditions are causally related to the accepted factors of his federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 24, 2019
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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 21-1194
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On August 2, 2021 appellant filed a timely appeal from a March 17, 2021 merit decision
and a July 7, 2021 nonmerit of the Office of Workers’ Compensation Programs (OWCP). Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 17, 2021 merit decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish disability
from work for the period December 27, 2020 3 through January 29, 2021 causally related to the
accepted November 10, 2020 employment injury; and (2) whether OWCP properly determined
that appellant abandoned her request for an oral hearing.
FACTUAL HISTORY
On November 18, 2020 appellant, then a 29-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 10, 2020 she sustained an injury when she
accidently closed her right hand in the door jam of the driver door while in the performance of
duty. She stopped work on November 11, 2020. By decision dated December 14, 2020, OWCP
accepted appellant’s claim for crushing injury of the right hand.
OWCP received a December 9, 2020 report by Dr. George S.M. Dyer, a Board-certified
orthopedic hand surgeon, who opined that appellant should be off due to a work-related injury.
Dr. Dyer described that on November 10, 2020 she closed her right hand in a mail truck and she
experienced pain and swelling. He recounted that appellant tried to return to work on
November 28, 2020, but she experienced significant pain. On physical examination of her right
upper extremity, Dr. Dyer observed some tenderness to palpation along the long finger and ring
finger dorsal metacarpals, thumb base and radial wrist and some pain with Tinel’s and Durkin’s
tests. Dr. Dyer diagnosed right hand arthralgia and right-hand crush injury.
On January 1, 2021 appellant filed a claim for compensation (Form CA-7) for disability
from work for the period December 26, 2020 through January 1, 2021. On the reverse side of the
claim form the employing establishment indicated that she received continuation of pay (COP)
from November 11 through December 26, 2020 and noted that her disability should begin on
December 27, 2020. Appellant thereafter filed additional CA-7 forms requesting wage-loss
compensation for continued disability through January 29, 2021.
In an attending physician’s report (Form CA-20) and a letter, both dated January 6, 2021,
Dr. Dyer noted that on November 10, 2020 appellant crushed her hand in a mail truck door at
work. He reported that she was totally disabled from work from November 10, 2020 through
January 10, 2021. Dr. Dyer indicated that appellant could return to part-time, modified-duty work.
On January 19, 2021 appellant accepted a part-time, limited-duty position as a modified
city carrier.
In a January 25, 2021 letter, Dr. Dyer recommended that appellant remain off work until
February 3, 2021. He explained that she attempted to return to work on January 21, 2021, but had
a severe exacerbation of pain.

3

The Board notes that the March 17, 2021 OWCP decision notes the beginning date of the claimed period as
December 27, 2021. However, this appears to be a typographical error as appellant’s claim form notes the beginning
date as December 27, 2020.

2

In a February 4, 2021 letter by Mallory K. Pingeton, a physician assistant, who explained
that appellant was seen by Dr. Dyer on February 3, 2021 and was found to have right intersection
syndrome. She opined that this was likely a complication from appellant’s November 2020 hand
crush injury. Ms. Pingeton recommended that appellant remain off work until March 17, 2021.
In a February 11, 2021 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of additional evidence required and afforded her 30 days
to submit the requested evidence.
Appellant subsequently resubmitted the February 4, 2021 letter by Ms. Pingeton.
By decision dated March 17, 2021, OWCP denied appellant’s wage-loss compensation
claims, finding that she had not established disability from work causally related to the accepted
November 10, 2020 employment injury.
On April 6, 2021 appellant timely requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review and submitted additional medical evidence.
In a letter dated May 21, 2021, OWCP’s hearing representative advised appellant that a
telephonic hearing would be held on June 24, 2021 at 2:30 p.m. Eastern Standard Time (EST). 4
The hearing representative also provided appellant with the toll-free telephone number and
passcode to access the hearing. Appellant did not appear for the hearing by telephone at the
appointed time.
By decision dated July 7, 2021, OWCP found that appellant failed to appear at the oral
hearing and abandoned her request. It noted that an oral hearing was scheduled to be conducted
by telephone on June 24, 2021 and that appellant received written notification of the hearing 30
days in advance of the hearing. Next, OWCP indicated that appellant failed to appear for the
hearing and there was no indication in the file that she contacted it either prior to or subsequent to
the scheduled hearing to request a postponement or explain her failure to appear.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury. 6 The term disability is
defined as the incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of the injury. 7 For each period of disability claimed, the employee has the
4

The hearing notice was addressed to appellant at her last known address,

5

Supra note 1.

6

D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
7

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB
397 (1999).

3

burden of proof to establish that he or she was disabled from work as a result of the accepted
employment injury.8
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence. 9 The opinion of the physician must be
based on a complete factual and medical background, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
claimed disability and the accepted employment injury.10
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self -certify his or her disability and
entitlement to compensation. 11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish disability for
the period December 27, 2020 through January 29, 2021 causally related to the accepted
November 10, 2020 employment injury.
In support of her claim for compensation, appellant submitted medical reports from
Dr. Dyer. In a December 9, 2020 report, Dr. Dyer described the November 10, 2020 employment
injury and conducted an examination. He noted that appellant tried to return to work on
November 28, 2020, but experienced significant pain. Dr. Dyer opined that she should remain off
work. In a January 6, 2021 CA-20 form, he further indicated that appellant was totally disabled
from work from November 10, 2020 through January 10, 2021. Furthermore, in a January 25,
2021 letter, Dr. Dyer recommended that she remain off work until February 3, 2021. He explained
that appellant attempted to return to work on January 21, 2021, but had a severe exacerbation of
pain. Although he opined that she was unable to work during the claimed period of disability, Dr.
Dyer did not provide any medical reasoning to support his opinion on disability. 12 He merely
referenced that appellant experienced a severe exacerbation of pain when she attempted to return
to work. The Board has found that, when a physician’s statements regarding an employee’s ability
to work consist only of repetition of the employee’s complaints that he or she hurt too much to
work, without objective findings of disability being shown, the physician has not provided a

8

B.O., Docket No. 19-0392 (issued July 12, 2019); D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S.
Jefferson, 57 ECAB 183 (2005).
9

L.O., Docket No. 20-0170 (issued August 13, 2021); S.J., Docket No. 17-0828 (issued December 20, 2017);
Kathryn E. DeMarsh, 56 ECAB 677 (2005).
10

V.A., Docket No. 19-1123 (issued October 29, 2019); C.B., Docket No. 18-0633 (issued November 16, 2018).

11

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, 52 ECAB 291 (2001).
12

R.C., Docket No. 17-0748 (issued July 10, 2018); Dean E. Pierce, 40 ECAB 1249 (1989).

4

rationalized medical opinion on the issue of disability. 13 For these reasons, the Board finds that
Dr. Dyer’s reports lack sufficient medical reasoning to establish that appellant was unable to work
during the claimed period.
The report from the physician assistant is also of no probative value to establish appellant’s
wage-loss compensation claim because physician assistants are not considered physicians as
defined under FECA. 14
As the medical evidence of record lacks rationalized medical evidence establishing that
appellant was disabled from work for the period December 27, 2020 through January 29, 2021 due
to the accepted November 10, 2020 employment injury, the Board finds that she 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.
LEGAL PRECEDENT -- ISSUE 2
Under FECA and its implementing regulations, a claimant who has received a final adverse
decision by OWCP is entitled to receive a hearing by writing to the address specified in the
decision within 30 days of the date of the decision for which a hearing is sought. 15 Unless
otherwise directed in writing by the claimant, OWCP’s hearing representative will mail a notice
of the time and place of the hearing to the claimant and any representative at least 30 days before
the scheduled date.16 OWCP has the burden of proving that it properly mailed to a claimant and
any representative of record. 17
A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference. 18
13

B.F., Docket No. 19-0123 (issued May 13, 2019); P.D., Docket No. 14-744 (issued August 6, 2014); G.T., 59
ECAB 447 (2008).
14

Section 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical o pinion
under FECA). See also S.A., Docket No. 21-0813 (issued December 27, 2021); George H. Clark, 56 ECAB 162
(2004) (physician assistants are not considered physicians under FECA).
15

20 C.F.R. § 10.616(a).

16

Id. at § 10.617(b).

17

V.C., Docket No. 20-0798 (issued November 16, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019); T.P.,
Docket No. 15-0806 (issued September 11, 2015); Michelle R. Littlejohn, 42 ECAB 463 (1991).
18

20 C.F.R. § 10.622(f).

5

The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant abandoned her request for
an oral hearing.
Following OWCP’s March 17, 2021 decision denying appellant’s wage-loss compensation
claim, she filed a timely request for an oral hearing before a representative of OWCP’s Branch of
Hearings and Review. In a May 21, 2021 letter, OWCP’s Branch of Hearings and Review notified
her that it had scheduled a telephonic hearing for June 24, 2021 at 2:30 p.m. EST. OWCP mailed
the notice to appellant’s last known address of record. The Board has held that absent evidence to
the contrary, a letter properly addressed and mailed in the ordinary course of business is presumed
to have been received. This is called the mailbox rule. 20 Appellant failed to call in for the
scheduled hearing using the provided telephone number. She did not request a postponement or
provide an explanation to OWCP for failure to appear for the hearing within 10 days of the
scheduled hearing. As appellant failed to call in to the scheduled hearing or provide notification
to OWCP’s Branch of Hearings and Review within 10 days of the scheduled hearing explaining
failure to appear, the Board finds that OWCP properly determined that she abandoned her request
for an oral hearing. 21
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period December 27, 2020 through January 29, 2021 causally related to the accepted
November 10, 2020 employment injury. The Board further finds that OWCP properly determined
that appellant abandoned her request for an oral hearing.

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (September 2020); see also K.H., Docket No. 20-1198 (issued February 8, 2021); A.J., Docket No. 180830 (issued January 10, 2019).
20

See V.C., supra note 17; C.Y., Docket No. 18-0263 (issued September 14, 2018).

21

See L.T., Docket No. 20-1539 (issued August 2, 2021).

6

ORDER
IT IS HEREBY ORDERED THAT the March 17 and July 7, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 18, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________________________________________ )
M.M., Appellant

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

Docket No. 21-1125
Issued: December 27, 2021

Case Submitted on the Record

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

JURISDICTION
On July 16, 2021 appellant filed a timely appeal from a March 16, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated February 3, 2020, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 23, 2019 appellant, then a 66-year-old patternmaker, filed an occupational disease
claim (Form CA-2) alleging that he developed inflammatory polyarthritis, osteoarthritis of the
1

5 U.S.C. § 8101 et seq.

wrists, left carpal tunnel syndrome, shoulder stiffness, and knee stiffness due to factors of his
federal employment. He noted that he first became aware of his conditions and realized their
relation to factors of his federal employment on January 1, 1980.
Appellant was treated by Dr. Gabriela Bahr, a Board-certified internist, on April 10, 2019
for polyarthralgia in the right wrist and elbow. He reported performing manual labor at work that
included sheet metal and sanding activities that increased his symptoms. Dr. Bahr diagnosed
inflammatory polyarthritis, osteoarthritis of bilateral wrists, and acute carpal tunnel syndrome of
left wrist. She recommended a series of x-rays and nighttime wrist splinting.
In a development letter dated May 1, 2019, OWCP informed appellant of the deficiencies
of his claim. It advised him of the factual and medical evidence required and provided a
questionnaire for completion. In a separate letter of even date, OWCP requested that the
employing establishment provide details related to appellant’s claim and whether they concurred
with his allegations. It afforded both parties 30 days to respond.
On May 3, 2019 OWCP received a position description for a patternmaker.
Appellant was evaluated by Dr. Edmond L. Hooks, a Board-certified internist, on
November 29, 2017 and December 13, 2018 for an annual Chromate examination. In reports dated
April 2 and 19, 2019, Dr. Hooks treated appellant in follow up for bilateral shoulder, right elbow,
and left wrist pain that progressed over the last 10 years while performing sheet metal and sanding
activities. He diagnosed multiple joint pain, right shoulder, right elbow, and left wrist that he
opined were not job related. Dr. Hooks returned appellant to work without restrictions.
X-rays of the feet dated April 10, 2019 revealed mild osteoarthritis of the bilateral ankle
joint and bilateral calcaneal osteophyte formation. X-rays of the hands of even date revealed
periarticular osteopenia and enthesophyte formation. X-rays of the elbows taken the same date
revealed osteoarthritis of the right elbow.
On May 16, 2019 appellant responded to the development letter and noted beginning his
civilian career in 1978 as an aircraft sheet metal worker performing structural repair projects with
daily use of drill motors, rivet guns, and pneumatic impact wrenches to cut, grind, drill and
hammer. He also noted working off of scaffolding using pneumatic impact tools.
By decision dated June 10, 2019, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish a diagnosed medical
condition causally related to the accepted factors of his federal employment.
OWCP subsequently received additional evidence. In a report dated July 11, 2019,
Dr. Bahr reported that on April 10, 2019 appellant’s physical examination was consistent for
osteoarthritis of multiple joints including the right elbow. She advised that appellant reported
using pneumatic tools for sanding and drilling, which could contribute to the development of
osteoarthritis.
On November 5, 2019 appellant requested reconsideration. In an accompanying statement
dated October 31, 2019, he recounted a 45-year career with the Federal Government as an aircraft
sheet metal mechanic, advanced composite fabricator, radome inspector, and patternmaker.
2

Appellant reported daily pain in his elbows, shoulders, wrists, hands, and knees that he attributed
to his employment duties.
In a statement dated December 2, 2019, appellant noted that he had retired on July 1, 2019.
He asserted that the employing establishment’s workers’ compensation specialist failed to offer
assistance when filing his claim. Appellant noted that his shoulder, elbow, wrist, and knee
symptoms were related to his 45-year career with the Federal Government. He indicated that his
retirement life was adversely affected by his work-related injuries.
By decision dated February 3, 2020, OWCP denied modification of the June 10, 2019
decision.
On January 12, 2021 appellant requested reconsideration. In an accompanying January 8,
2021 statement, he reported visiting his orthopedic surgeon, Dr. William Stewart, who performed
x-rays of the right elbow and a magnetic resonance imaging (MRI) scan of the left shoulder, which
revealed damage to his right elbow. Appellant indicated that Dr. Stewart provided a statement
supporting that appellant’s repetitive work duties performed over the last 45 years led to the
arthritic changes in his elbow. He noted submitting visit summaries from Dr. Stewart. Appellant
reiterated that his jobs as an aircraft sheet metal mechanic, radome inspector, and composite
fabricator were physically demanding positions that caused his right shoulder, elbow, and hand
conditions. He asserted that he had proven causal relationship between his work conditions and
factors of his federal employment. Appellant did not submit medical reports from Dr. Stewart or
diagnostic studies with this reconsideration request. He also resubmitted an October 31, 2019
narrative statement previously of record.
By decision dated March 16, 2021, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA 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 compensation at any time on his or her own motion or on application.2
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.3

2

Supra note 1 at § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468
(issued February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
3

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N.,
Docket No. 08-1569 (issued December 9, 2008).

3

A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 4 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 5 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. 6
ANALYSIS
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).
With his timely request for reconsideration, appellant reiterated that his jobs as an aircraft
sheet metal mechanic, radome inspector, and composite fabricator were physically demanding
positions that caused his right shoulder, elbow, and hand conditions. He asserted that he proved
causal relationship between his work conditions and factors of his federal employment. Appellant
referenced after visit summaries from Dr. Stewart and diagnostic studies supporting that his
repetitive work duties performed over 45 years led to arthritic changes. However, the Board notes
that appellant did not submit the summaries from Dr. Stewart with his reconsideration request.
Appellant’s reconsideration request does not advance a new legal argument not previously
considered, nor show that OWCP erroneously applied or interpreted a specific point of law. The
Board finds that the argument made by appellant on reconsideration was cumulative, duplicative,
or repetitive in nature and was insufficient to warrant reopening the claim for merit review. 7 Thus,
appellant is not entitled to a review of the merits of his claim based on the first and second abovenoted requirements under 20 C.F.R. § 10.606(b)(3).8
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered in support of his request for reconsideration. The underlying
issue in this case is medical in nature, but he did not submit relevant and pertinent new evidence
in support of his request for reconsideration. As appellant failed to provide relevant and pertinent
new evidence, he is not entitled to a merit review based on the third above-noted requirement under
20 C.F.R. § 10.606(b)(3).9

4

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020).
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.
5

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

6

Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).
7

J.V., Docket No. 19-1554 (issued October 9, 2020); see T.B., Docket No. 16-1130 (issued September 11, 2017);
Eugene F. Butler, 36 ECAB 393, 398 (1984).
8

G.Q., Docket No. 18-1697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).

9

T.M., Docket No. 19-0535 (issued July 25, 2019).

4

The Board accordingly finds that appellant did not meet 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.10
CONCLUSION
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).
ORDER
IT IS HEREBY ORDERED THAT the March 16, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 27, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

10

See S.M., Docket No. 18-0673 (issued January 25, 2019); A.R., Docket No. 16-1416 (issued April 10, 2017);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the request for
reconsideration without reopening the case for a review on the merits).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Bell, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Andrew Schwartz, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1572
Issued: December 2, 2008

Case Submitted on the Record

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

JURISDICTION
On May 12, 2008 appellant filed a timely appeal from a February 15, 2008 decision of
the Office of Workers’ Compensation Programs denying his claim for bilateral carpal tunnel
syndrome. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant sustained bilateral carpal tunnel syndrome in the
performance of duty.
FACTUAL HISTORY
On November 18, 2007 appellant, then a 60-year-old distribution clerk, filed an
occupational disease claim alleging that he sustained bilateral carpal tunnel syndrome causally
related to his federal employment. He did not provide a description of his work duties.
On December 6, 2007 the Office requested additional evidence, including a detailed
description of the employment activities which contributed to appellant’s bilateral carpal tunnel

syndrome. It also requested a comprehensive medical report containing a description of his
symptoms, the results of examinations and tests and medical rationale explaining how his
bilateral carpal tunnel syndrome was causally related to specific factors of his employment.
There was no response from appellant.
By decision dated February 15, 2008, the Office denied appellant’s claim on the grounds
that the factual and medical evidence was insufficient to establish that his bilateral carpal tunnel
syndrome was causally related to factors of his employment.1
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee 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 employment factors
identified by the employee.2 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical evidence. 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 the
compensable employment factors. 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.3
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.4
ANALYSIS
Appellant was advised by the Office on December 6, 2007 that he needed to submit a
detailed description of the employment activities which contributed to his bilateral carpal tunnel
syndrome and a comprehensive medical report containing a description of his symptoms, the
results of examinations and tests and medical rationale explaining how his bilateral carpal tunnel
1

Subsequent to the February 15, 2008 Office decision, additional documents were associated with the file. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
4

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

2

syndrome was causally related to specific factors of his employment. He submitted no
description of his employment activities or medical evidence pertaining to his bilateral carpal
tunnel syndrome. Although the Office informed appellant of the deficiency in the evidence,
appellant did not submit the factual and medical evidence necessary to establish a prima facie
claim for compensation.5 Therefore, appellant failed to meet his burden of proof to establish that
his bilateral carpal tunnel syndrome was caused or aggravated by his job.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof in establishing that he
sustained bilateral carpal tunnel syndrome in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 15, 2008 is affirmed.
Issued: December 2, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5

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

3


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

)
)
)
)
)
)
)
)

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

Docket No. 13-985
Issued: August 7, 2013

Case Submitted on the Record

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

JURISDICTION
On March 18, 2013 appellant, through her attorney, filed a timely appeal from a
February 15, 2013 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying her request for reconsideration as untimely filed and failing to establish clear
evidence of error. As more than 180 days has elapsed from the date of OWCP’s last merit
decision on March 9, 2009 to the filing of this appeal on March 18, 2013, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does
not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not establish clear evidence of error.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On December 12, 2008 appellant, then a
44-year-old mail handler, filed an occupational disease claim (Form CA-2) alleging that she
sustained bilateral carpal tunnel syndrome due to factors of her federal employment. By decision
dated March 9, 2009, OWCP denied the claim finding that the medical evidence was not
sufficient to establish a diagnosis in connection to appellant’s federal employment. Appellant,
through her attorney, filed an appeal with the Board. On January 29, 2010 the Board dismissed
the appeal finding that it was untimely filed.2 On May 27, 2010 appellant, through her attorney,
requested reconsideration. By decision dated July 29, 2010, OWCP denied the request on the
basis that it was untimely filed and failed to present clear evidence of error. Subsequently,
appellant’s attorney filed an appeal with the Board. In a decision dated July 13, 2011, the Board
affirmed OWCP’s July 29, 2010 decision.3 The facts of the case, as set forth in the prior
decisions, are incorporated by reference.
By letter dated September 7, 2011, appellant, through her attorney, requested
reconsideration and submitted a September 13, 2010 report from Dr. James Sobeski, a Boardcertified orthopedic hand surgeon, who examined her and found a positive Durkan’s
compression test bilaterally, a positive Phalen’s test bilaterally, a negative Tinel’s sign on the
right and a positive Tinel’s sign on the left over the median nerve at the wrist. He diagnosed
bilateral carpal tunnel syndrome and indicated that appellant’s duties included: repetitive
motions; lifting letter trays weighing 7 to 10 pounds; picking up heavy magazine bundles
frequently during the day; and grasping heavy bags weighing 10 to 70 pounds.
By decision dated February 15, 2013, OWCP denied appellant’s request for
reconsideration on the grounds that it was untimely filed and failed to present clear evidence of
error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).5 One such limitation provides that an application
for reconsideration must be submitted within one year of the date of its decision for which
review is sought.6 The Board has found that the imposition of this one-year time limitation does
not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).7
2

Docket No. 10-299 (issued January 29, 2010).

3

Docket No. 10-2404 (issued July 13, 2011).

4

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

5

See Annette Louise, 54 ECAB 783, 789-90 (2003).

6

20 C.F.R. § 10.607(a).

7

See Jesus D. Sanchez, supra note 4; F.R., Docket No. 09-575 (issued January 4, 2010).

2

Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.8
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.9 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.10 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.13
To establish clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.14 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that it abused its discretion in denying merit review in the
face of such evidence.15
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. OWCP regulations16 and procedures17 establish a one-year time
limit for requesting reconsideration, which begins on the date of the original OWCP decision.
However, a right to reconsideration within one year also accompanies any subsequent merit
8

20 C.F.R. § 10.607(b).

9

See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

10

See M.L., Docket No. 09-956 (issued April 15, 2010); Fidel E. Perez, 48 ECAB 663, 665 (1997).

11

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

12

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

13

See B.O., Docket No. 13-914 (issued July 15, 2013); Jimmy L. Day, 48 ECAB 652 (1997); Nelson T.
Thompson, 43 ECAB 919, 922 (1992).
14

See Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

15

See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

16

Supra note 6; see Alberta Dukes, 56 ECAB 247 (2005).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (January 2004); see
Veletta C. Coleman, supra note 14.

3

decision on the issues,18 including any merit decision by the Board and any merit decision
following action by the Board.19 The most recent merit decision was OWCP’s March 9, 2009
decision. Appellant had one year from the date of this decision to make a timely request for
reconsideration. Since she did not file her request until September 7, 2011, it was filed outside
the one-year time period. Consequently, appellant must demonstrate clear evidence of error by
OWCP in the denial of her claim.20
In order to establish clear evidence of error, a claimant must submit evidence relevant to
the issue which was decided by OWCP.21 In its March 9, 2009 merit decision, OWCP denied
appellant’s occupational disease claim because the medical evidence was not sufficient to
establish a diagnosis in connection to appellant’s federal employment. The Board finds that the
medical evidence submitted by appellant is not sufficient to establish clear error by OWCP in
denying her claim.22
In his September 13, 2010 report, Dr. Sobeski examined appellant and found a positive
Durkan’s compression test bilaterally, a positive Phalen’s test bilaterally, a negative Tinel’s sign
on the right and a positive Tinel’s sign on the left over the median nerve at the wrist. He
diagnosed bilateral carpal tunnel syndrome and indicated that appellant’s duties included:
repetitive motions; lifting letter trays weighing 7 to 10 pounds; picking up heavy magazines
bundles frequently during the day; and grasping heavy bags weighing 10 to 70 pounds.
Although Dr. Sobeski provided a firm diagnosis, it is insufficient to meet the clear evidence of
error standard. Evidence such as a detailed, well-rationalized medical report which, if submitted
before the denial was issued would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.23
To establish clear evidence of error, it is not sufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is
intended to represent a difficult standard.24 The evidence submitted does not manifest on its face
that OWCP committed an error in denying appellant’s claim. Appellant has not otherwise
submitted evidence of sufficient probative value to raise a substantial question as to the
correctness of OWCP’s decision. Thus, the evidence is insufficient to establish clear evidence of
error.

18

See Robert F. Stone, 57 ECAB 292 (2005).

19

See Federal (FECA) Procedure Manual, supra note 17 at Chapter 2.1602.3.b.

20

Supra note 8; see Debra McDavid, 57 ECAB 149 (2005).

21

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

22

See J.R., Docket No. 10-2137 (issued July 12, 2011).

23

B.O., supra note 13.

24

Federal (FECA) Procedure Manual, supra note 17 at Chapter 2.1602.5 (October 2011); see Dean D. Beets,
supra note 9.

4

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For the
reasons stated above, the Board finds the attorney’s argument is not substantiated.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 7, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5