United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS HOSPITAL,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 18-0762
Issued: November 2, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 26, 2018 appellant filed a timely appeal from a February 14, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of the
need for medical treatment on or after March 11, 2014, causally related to a September 21, 1992
employment injury.
FACTUAL HISTORY
On September 21, 1992 appellant, then a 44-year-old carpenter, filed a traumatic injury
claim (Form CA-1) alleging that he sustained an injury while at work on September 21, 1992. He
1

5 U.S.C. § 8101 et seq.

asserted that he was standing on a ladder replacing ceiling tiles when the ladder collapsed causing
him to fall to the ground. Appellant stopped work that day and OWCP accepted that he sustained
a lumbar strain, chronic cervical strain, and internal derangement of the left knee.2
On July 11, 1994 appellant returned to full-time work for the employing establishment as
a police dispatcher/clerk.3 The employing establishment terminated him on April 26, 1996 for
reasons unrelated to his September 21, 1992 employment injury. Appellant periodically worked
thereafter in positions with private employers, including as a musician and a custodian for a school
district. He stopped working as a full-time police dispatcher/clerk in 1994 and a custodian in 1994,
but continued to occasionally work as a musician on a part-time basis.4
In September 1997 appellant suffered a nonwork-related fall which caused a fracture of his
right hip.
In an August 29, 2000 report, Dr. Vincent L. Fragomeni, an attending Board-certified
orthopedic surgeon, indicated that appellant reported a dramatic improvement in his left knee
symptoms after his last Synvisc injection in January 2000. Appellant reported that he experienced
left knee discomfort from time to time, but that the constant pain had resolved.
In a May 27, 2003 report, Dr. James S. Cook, an attending Board-certified neurologist,
noted that appellant reported increased symptoms such as numbness in his left leg and a “knotting
sensation” in his right arm. He diagnosed several conditions, including failed back syndrome with
current exacerbation, polyneuropathy, and carpal tunnel syndrome without current complaint.
Appellant was involved in a nonwork-related motor vehicle accident in October 2004. In
December 2004 Dr. Scott A. Shapiro, an attending Board-certified neurosurgeon, performed
laminectomy surgery at L3 through L5 with bilateral foraminotomies, and posterior lumbar
interbody fusion at L3-4 and L4-5. The surgery was not approved by OWCP.
In a February 10, 2005 report, Dr. Shapiro indicated that he had been treating appellant
since 1997 for lumbar spondylosis. He noted that appellant’s 2004 motor vehicle accident
aggravated his lumbar spondylosis and necessitated the lumbar surgery he performed on appellant
in December 2004.
In a September 7, 2006 note, Dr. Cook indicated that appellant suffered from restless leg
syndrome which exacerbated his lumbar condition and noted that he had prescribed medication
for the condition.

2

Appellant previously sustained injury to his left knee related to his military service and he underwent several
surgeries necessitated by this injury between 1967 and 1979, including arthroscopy, meniscectomy, and anterior
cruciate reconstruction.
Per OWCP’s February 3, 1995 decision, appellant received loss of wage-earning capacity compensation on the
periodic rolls based on his ability to earn wages in the position as a full-time police dispatcher/clerk.
3

4
On February 7, 1999 appellant filed a notice of recurrence (Form CA-2a) claiming that in June 1997 he sustained
a total recurrence of disability due to his September 21, 1992 employment injury. He asserted that increased pain and
weakness in his left leg prevented him from working. By decision dated April 20, 1999, OWCP denied appellant’s
recurrence of disability claim because he failed to submit sufficient medical evidence in support thereof.

2

In mid-2007 appellant complained of radiculopathy symptoms in both legs and, in
September 2007, Dr. Shapiro recommended that he undergo lumbar fusion. On December 11,
2007 Dr. Shapiro performed L2-3 extension posterior lumbar interbody fusion with laminectomy
and instrumentation. The procedure was not approved by OWCP.
On December 19, 2009 appellant stopped receiving loss of wage-earning capacity
compensation under FECA because, effective December 20, 2009 he elected to receive benefits
from the Department of Veterans Affairs related to his left knee condition.
In a February 14, 2012 report, Dr. Rohit R. Das, an attending Board-certified neurologist,
indicated that appellant’s main complaint was restless leg syndrome which kept him awake at
night.
On May 17, 2012 OWCP placed appellant’s claim relating to his September 21, 1992
employment injury in “medical payments only” status.
On March 11, 2014 OWCP administratively closed appellant’s claim relating to his
September 21, 1992 employment injury because no medical treatment expenses had been incurred
since April 2012.
In a March 30, 2015 report, Dr. Das noted that appellant reported that his chronic low back
pain, peripheral neuropathy, and restless leg syndrome were fairly well controlled until
September 2014 when he hit his head and right hand after falling off an 11-inch step at a theater.
Appellant complained of right-sided neck, right shoulder, and right hand symptoms since that time.
Dr. Das diagnosed cervical radiculopathy, de Quervain’s tenosynovitis of the right hand, right
shoulder pain, and low back pain.5
In a separate report dated March 30, 2015, Dr. Shashank Dave, an attending Boardcertified physical medicine and rehabilitation physician, detailed his application of a corticosteroid
injection in the abductor pollicis longus and flexor pollicis brevis muscles of appellant’s right
thumb. He provided a preprocedure and postprocedure diagnosis of de Quervain’s tenosynovitis.
On June 5, 2015 appellant was seen by Dr. Dave and Dr. Shiva Gangadhar, an attending
physical medicine and rehabilitation physician, and they cosigned a June 5, 2015 report detailing
the visit. In the impression portion of the report, Dr. Dave and Dr. Gangadhar indicated that
appellant continued to have right wrist pain which was most likely attributable to de Quervain’s
tenosynovitis. They advised that x-rays would be obtained of the right wrist to look for any bony
abnormalities. Dr. Dave and Dr. Gangadhar noted that appellant had carpal tunnel syndrome as
evidenced by diagnostic testing and clinical history, but posited that the majority of his right wrist
symptoms were due to the de Quervain’s tenosynovitis.
In June 8 and September 11, 2015 reports, Dr. Das noted that appellant reported that he
also damaged his left hip when he fell off an 11-inch step at a theater in September 2014. Appellant
reported being diagnosed with carpal tunnel syndrome after the September 2014 accident. Dr. Das
5
Right shoulder x-rays, obtained by Dr. Das on March 30, 2015, contained an impression of interval increased
loosening surrounding the proximal humeral prosthetic component of uncertain significance. The distal humeral stem
appeared without surrounding lucency.

3

diagnosed carpal tunnel syndrome and restless leg syndrome. On October 23, 2015 he diagnosed
the same conditions, noting that both were stable.
In the latter half of 2015, appellant requested reimbursement for the medical treatment he
received in 2015. On July 29, 2016 he telephoned OWCP and questioned an OWCP official about
several unpaid medical bills.
In an August 3, 2016 letter, OWCP advised appellant that it appeared he was seeking a
resumption of medical care related to his September 21, 1992 employment injury. It noted,
however, that he had requested treatment for conditions which were not accepted as related to the
September 21, 1992 employment injury, including bilateral carpal tunnel syndrome and de
Quervain’s tenosynovitis of the right wrist. OWCP advised appellant that he might wish to file a
new claim with respect to any currently nonaccepted conditions for which he sought
reimbursement for medical treatment.
In an undated response, appellant indicated that he was unable to contact Dr. Das as he
“was gone and no paper trail exists.” He advised that he had about $8,000.00 in medical treatment
expenses that he wished to have reimbursed by OWCP.
In a March 13, 2017 report, OWCP informed appellant that his claim for the September 21,
1992 injury was closed and that, if he believed he had current medical problems related to that
injury, it was his responsibility to file a notice of recurrence (Form CA-2a) and to submit medical
evidence establishing a causal relationship between the medical treatment and the September 21,
1992 injury.
On March 21, 2017 appellant filed a notice of recurrence (Form CA-2a) in which he
checked a box denoting that he was only claiming a recurrence due to the need for medical
treatment related to his September 21, 1992 employment injury.6 Regarding the date of the first
medical treatment after the claimed recurrence, appellant provided the notation “on-going.” He
asserted that he continuously needed medical care since September 21, 1992 due to the effects of
the September 21, 1992 employment injury.
In a March 30, 2017 development letter, OWCP requested that appellant submit additional
factual and medical evidence in support of his claim for a recurrence of the need for medical
treatment. It requested that he submit a physician’s opinion supported by a medical explanation
of the causal relationship between the medical treatment and the September 21, 1992 employment
injury, without intervening cause. OWCP afforded appellant 30 days to submit the requested
evidence. It did not receive any additional evidence.
By decision dated June 27, 2017, OWCP denied appellant’s claim for a recurrence of the
need for medical care related to his September 21, 1992 employment injury. It determined that he
failed to submit a medical report with sufficient rationale to establish a causal relationship between
the medical treatment and the September 21, 1992 employment injury, without intervening cause.

6
Appellant appears to have inadvertently listed the date of his employment injury as September 22, 1993, rather
than September 21, 1992.

4

On July 14, 2017 appellant requested a telephone hearing with a representative of OWCP’s
Branch of Hearings and Review. During the hearing held on December 12, 2017, he testified that
he continued to need medical treatment for his accepted September 21, 1992 employment injury.
By decision dated February 14, 2018, OWCP’s hearing representative affirmed OWCP’s
June 27, 2017 decision. She found that appellant failed to present medical evidence sufficient to
establish the need for medical treatment related to his accepted September 21, 1992 employment
injury. The hearing representative noted that appellant requested reimbursement for treatment of
multiple conditions which were not accepted as related to his September 21, 1992 employment
injury.
LEGAL PRECEDENT
The United States shall furnish to an employee who is injured while in the performance of
duty the services, appliances, and supplies prescribed or recommended by a qualified physician
that the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of
any disability, or aid in lessening the amount of any monthly compensation.7
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage.8 An employee has the burden of proof to establish that he or she
sustained a recurrence of a medical condition that is causally related to his or her accepted
employment injury without intervening cause.9 To meet this burden the employee must submit
medical evidence from a physician who, on the basis of a complete and accurate factual and
medical history, supports that the condition is causally related and supports his or her conclusion
with sound medical rationale.10 Where no such rationale is present, medical evidence is of
diminished probative value.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment on or after March 11, 2014 causally related to a September 21, 1992
employment injury.

7

5 U.S.C. § 8103(a).

8

20 C.F.R. § 10.5(y).

9

E.R., Docket No. 18-0202 (issued June 5, 2018).

10

O.H., Docket No. 15-0778 (issued June 25, 2015).

11

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

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Appellant has the burden of proof to establish that the recurrence of the need for medical
treatment was related to the effects of his September 21, 1992 employment injury without
intervening cause.12 The Board notes that appellant claimed reimbursement for medical treatment
in 2015 for a wide variety of medical problems. However, the record does not contain a medical
report with a rationalized medical opinion explaining that the medical treatment for which
appellant claimed reimbursement was related to the effects of his September 21, 1992 employment
injury without intervening cause.13
In a March 30, 2015 report, Dr. Das noted that appellant reported that his chronic low back
pain, peripheral neuropathy, and restless leg syndrome were fairly well controlled until
September 2014 when he hit his head and right hand after falling off an 11-inch step at a theater.
Appellant complained of right-sided neck, right shoulder, and right hand symptoms since that time.
Dr. Das diagnosed cervical radiculopathy, de Quervain’s tenosynovitis of the right hand, right
shoulder pain, and low back pain.
The Board finds that the submission of this report does not support appellant’s claim for a
recurrence of the need for medical treatment because OWCP has not accepted the conditions
diagnosed by Dr. Das as related to the September 21, 1992 employment injury.14 In addition, the
report is of limited probative value in showing a recurrence of the need for medical care because
the record does not otherwise contain a medical report containing a rationalized medical opinion
relating these conditions to the September 21, 1992 employment injury.15 Such medical rationale
is particularly necessary in the present case because appellant suffered nonwork-related accidents,
including an October 2004 motor vehicle accident and a September 2014 fall, which have been
presented in the medical evidence as intervening causes for appellant’s continuing problems.16
On June 5, 2015 appellant was seen by Dr. Dave and Dr. Gangadhar who indicated that
appellant continued to have right wrist pain which was most likely attributable to de Quervain’s
tenosynovitis. Dr. Dave and Dr. Gangadhar noted in their June 5, 2015 report that appellant had
carpal tunnel syndrome as evidenced by diagnostic testing and clinical history, but posited that the
majority of his right wrist symptoms were due to the de Quervain’s tenosynovitis. Although
appellant now had a diagnosis of carpal tunnel syndrome, this condition has not been accepted by
12

See supra note 9. The Board notes that appellant’s requests for reimbursement presently in the case record pertain
to medical treatment sessions from 2015, but that appellant effectively claimed a recurrence of the need for medical
treatment from March 11, 2014, i.e., the date that OWCP administratively closed his claim relating to his
September 21, 1992 employment injury.
13

See supra note 10.

14

With respect to the reported right shoulder and low back pain, the Board has held that pain alone is a symptom,
not a medical diagnosis. See F.U., Docket No. 18-0078 (issued June 6, 2018). Moreover, OWCP has not accepted a
right shoulder condition in connection with the present claim, and Dr. Das did not provide an opinion that the low
back pain was related to appellant’s September 21, 1992 employment injury.
15

See supra note 10.

For example, Dr. Shapiro indicated in a February 10, 2005 report that appellant’s October 2004 motor vehicle
aggravated his lumbar spondylosis and necessitated the lumbar surgery he performed on appellant in December 2004.
In another report dated March 30, 2015, Dr. Dave detailed his application of a corticosteroid injection in appellant’s
right thumb to treat de Quervain’s tenosynovitis. However, as noted, the condition of de Quervain’s tenosynovitis has
not been accepted as a work-related condition.
16

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OWCP and there is no rationalized medical opinion in the case record relating it the September 21,
1992 employment injury.17 In June 8, September 11, and October 23, 2015 reports, Dr. Das
diagnosed carpal tunnel syndrome and restless leg syndrome. However, these reports are of no
probative value on the underlying issue of this case because Dr. Das did not provide an opinion in
his reports that these conditions, which have not been accepted by OWCP, were related to the
September 21, 1992 employment injury.18
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 a recurrence of
the need for medical treatment on or after March 11, 2014 causally related to a September 21, 1992
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2018
Washington, DC

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

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

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

17
18

See supra note 10.
See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Akron, OH, Employer
__________________________________________

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

Docket No. 17-0530
Issued: July 2, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 10, 2017 appellant, through counsel, filed a timely appeal from a December 1,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than one
percent permanent impairment of his right upper extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On August 7, 2004 appellant, then a 32-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he sustained an occupational disease due to carrying a mailbag
on his right shoulder while delivering mail. He did not stop work, but he began working in a
limited-duty position for the employing establishment without wage loss.
On August 13, 2004 OWCP initially accepted appellant’s claim for cervical strain and right
trapezius strain.
A March 13, 2006 magnetic resonance imaging (MRI) scan of appellant’s cervical spine
contained an impression of very minimal diffuse disc bulge with no central canal stenosis at C34, and mild neural foraminal narrowing at C3-4 and C6-7 secondary to small uncovertebral
osteophytes.
On December 6, 2006 OWCP expanded the acceptance of the claim to include the
conditions of cervical herniated disc at C6-7.
A February 21, 2007 MRI scan of appellant’s cervical spine contained an impression of
small right disc herniation at C6-7.
The findings of June 10, 2008 electromyogram (EMG) and nerve conduction velocity
(NCV) testing of appellant’s right upper extremity showed negative results for cervical
radiculopathy, brachial plexus injury, and focal nerve entrapment. A July 31, 2009 MRI scan of
his cervical spine contained an impression of small right herniation at C6-7 with associated mild
compression of the proximal right C7 nerve root.
On August 28, 2009 OWCP expanded the acceptance of the claim to include the conditions
of cervical radiculopathy and cervical disc disease at C6-7.3
Appellant stopped work on August 29, 2009 and he began receiving disability
compensation on the periodic rolls.
On January 8, 2010 Dr. Scot D. Miller, an attending Board-certified orthopedic surgeon
and osteopath, performed OWCP-approved surgery, including anterior cervical discectomy,
decompression, and fusion at C6-7.
An April 6, 2010 MRI scan of appellant’s cervical spine contained an impression of postsurgical changes at C6 and C7, and degenerative changes of the cervical spine predominately
3

OWCP did not specify whether appellant’s cervical radiculopathy was related to any particular nerve distribution.

2

involving the C3-4 level. There was no significant overall central canal or neural foraminal
stenosis at these levels.
On June 25, 2010 appellant returned to limited-duty work on a full-time basis, but he later
stopped work for intermittent periods and received wage-loss compensation.
OWCP referred appellant for a second opinion examination to Dr. Robert J. Nickodem, Jr.,
a Board-certified orthopedic surgeon. It requested that Dr. Nickodem provide an opinion
regarding whether appellant had any residuals from his accepted work-related conditions.
In a July 9, 2010 report, Dr. Nickodem indicated that, upon physical examination,
appellant’s cervical muscles were nontender to palpation and that his right trapezial muscle had
tenderness to palpation with slight spasm. He found that appellant had a work-related right
trapezial muscle strain, but that his herniated disc at C6-7, cervical radiculitis, and cervical disc
disease at C6-7 had resolved due to his January 8, 2010 cervical surgery. Dr. Nickodem explained
that he observed no objective evidence of remaining disc disease or radiculopathy related to the
conditions during his physical examination.
The findings of October 1, 2010 EMG and NCV testing of appellant’s right upper extremity
showed no electromyographic evidence of right brachial plexopathy, median/ulnar nerve
entrapment neuropathy, peripheral neuropathy, or myopathy.
A January 6, 2011 MRI scan of appellant’s right shoulder contained an impression of
glenohumeral articular cartilage loss anteriorly (with near full-thickness cartilage thinning, but no
subchondral edema or subchondral cystic change), mild subacromial subdeltoid bursitis, os
acromiale with mild downsloping of the acromion process, and mild diffuse thinning of the rotator
cuff tendons. There was no evidence of tendon tear, tendinopathy, or muscular atrophy.
In July 2011 OWCP referred appellant for another second opinion examination to
Dr. Manhal Ghanma, Jr., a Board-certified orthopedic surgeon. It requested that Dr. Ghanma
provide an opinion regarding whether appellant had residuals of his accepted work-related
conditions.
In an August 12, 2011 report, Dr. Ghanma noted that, upon physical examination, appellant
had normal strength in both shoulders with no crepitation on range of motion (ROM) testing.
Appellant exhibited 30 degrees of forward ﬂexion of his neck, 30 degrees of extension, 25 degrees
of lateral bending (right and left), and 50 degrees of rotation (right and left). Dr. Ghanma indicated
that there currently were no objective findings to support that appellant had residuals of any of his
accepted work-related conditions. He found that appellant could work as a letter carrier, but should
avoid lifting more than 50 pounds.4
In a November 14, 2011 report, Dr. James Bressi, an attending Board-certified pain
management physician and osteopath, indicated that appellant continued to have work-related
conditions/symptoms, including signs of a right trapezius strain.

4

On August 20, 2011 appellant returned to full-time work for the employing establishment without wage loss.

3

OWCP determined that there was a conflict in the medical opinion evidence between
Dr. Ghanma and Dr. Bressi regarding the extent of appellant’s work-related residuals and referred
appellant and the case record to Dr. Sheldon S. Kaffen, an attending Board-certified orthopedic
surgeon, for an impartial medical examination and opinion on the matter.
In a September 7, 2012 report, Dr. Kaffen noted that appellant presented complaining of
pain and tightness sensation in his posterior neck which radiated to the superior aspect of his right
shoulder. He indicated that, upon physical examination, appellant exhibited tenderness of his right
neck, right paraspinous muscles, and the superior border of his right trapezius muscle. Dr. Kaffen
advised that ROM testing of appellant’s right shoulder showed ﬂexion to 140 degrees with a
painful arc of motion beginning at 90 degrees, full extension to 50 degrees with pain, abduction to
140 degrees with pain, adduction to 40 degrees, external rotation to 80 degrees, and internal
rotation to 60 degrees with pain. There was no atrophy or weakness to manual testing in
appellant’s right shoulder but there was tenderness to palpation of his right acromioclavicular joint,
anterior subacromial region, and glenohumeral joint. Dr. Kaffen also found that there was no
weakness or sensory deficit in appellant’s right upper extremity. He opined that appellant’s
accepted cervical strain and right trapezius strain were no longer active or present. Dr. Kaffen
noted that appellant exhibited no objective findings on physical examination and diagnostic testing
of cervical radiculopathy and found that he no longer suffered from that condition. He further
determined, however, that the accepted conditions of cervical herniated disc at C6-7 and cervical
disc disease at C6-7 were still active.5
On January 31, 2013 appellant filed a claim for compensation (Form CA-7) seeking a
schedule award due to his accepted employment injuries.6
By decision dated April 26, 2013, OWCP denied appellant’s schedule award claim, noting
that he failed to submit medical evidence sufficient to establish permanent impairment of a
scheduled member.
On May 1, 2013 appellant, through counsel, requested a hearing with a representative of
OWCP’s Branch of Hearings and Review. During the hearing held on September 16, 2013,
counsel provided testimony on appellant’s behalf.
Appellant submitted a February 14, 2013 report from Dr. Rohit S. Chandurkar, an
attending Board-certified emergency medicine physician, who noted appellant’s complaints of
neck and right arm pain with some tingling sensation in his right hand. Dr. Chandurkar detailed
the physical examination findings, noting that appellant had intact strength and radial/ulnar pulses
in his upper extremities. He diagnosed acute cervical neck strain with pain and acute exacerbation
of chronic condition (without specifying the chronic condition).

5

Dr. Kaffen also opined that the conditions of right shoulder acromion inflammation, right biceps tenosynovitis,
and right impingement tendinitis were not work related.
6

Appellant did not submit an impairment rating report around the time he filed his schedule award claim.

4

By decision dated October 28, 2013, OWCP’s hearing representative affirmed the
April 26, 2013 decision, noting that Dr. Chandurkar’s February 14, 2013 report did not establish
permanent impairment of a scheduled member.
In a November 26, 2013 report, Dr. Catherine Watkins Campbell, an attending Boardcertified family practitioner, indicated that appellant reported symptoms including aching in the
back of his neck, burning sensation down the ulnar side of his right upper extremity, and pins and
needles sensation in the ulnar aspect of his right hand/little finger. She reported the findings of the
physical examination she conducted on November 19, 2013, noting that ROM testing of
appellant’s right shoulder showed 120 degrees of ﬂexion, 55 degrees of extension, 100 degrees of
abduction, 30 degrees of adduction, 72 degrees of external rotation, and 25 degrees of internal
rotation. Impingement signs were present in the right shoulder and muscle testing in the right
upper extremity revealed 4/5 strength. Dr. Watkins Campbell noted that examination of the
cervical region revealed cervical lordosis with slight forward head posture as well as tenderness to
palpation of the right posterior paracervical and scalene muscles. She conducted permanent
impairment ratings under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).7 Dr. Watkins Campbell indicated that
under Table 15-20 (Brachial Plexus Impairment: Upper Extremity Impairments), beginning on
page 434, appellant had seven percent permanent impairment of his right upper extremity.8 She
found that appellant reached maximum medical improvement (MMI) by September 2010.
OWCP referred the case to Dr. Morley Slutsky, a Board-certified occupational medicine
physician serving as an OWCP medical adviser. It requested that Dr. Slutsky review the medical
evidence of record, including Dr. Watkins Campbell’s November 26, 2013 report, and provide an
opinion on appellant’s permanent impairment.
In a December 20, 2013 report, Dr. Slutsky noted that he had reviewed Dr. Watkins
Campbell’s November 26, 2013 report and opined that there was no diagnostic evidence or
consistent clinical evidence of record to support the presence of a brachial plexus lesion. He
indicated that MRI scans of appellant’s cervical spine, obtained on March 13, 2006, February 21,
2007, and October 1, 2010, did not show evidence of central canal stenosis or neural foramina
stenosis, and that June 10, 2008 and October 1, 2010 EMG and NCV testing of his upper
extremities did not show evidence of right-sided cervical radiculopathy, brachial plexus injury, or
focal nerve entrapment. He further explained that the July 9, 2010 report of Dr. Nickodem,
August 12, 2011 report of Dr. Ghanma, and September 7, 2012 report of Dr. Kaffen showed no
motor/sensory loss in appellant’s upper extremities. Dr. Slutsky indicated that, therefore,
appellant’s permanent impairment should be evaluated under the diagnosis-based impairment
(DBI) rating method found at Table 15-5 (Shoulder Regional Grid: Upper Extremity Impairments)

7

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

8

Dr. Watkins Campbell found that appellant’s brachial plexus condition fell under class 2 and that he had a
functional history grade modifier of 3, a physical examination grade modifier of 2, and a clinical studies grade modifier
of 0. See A.M.A., Guides 405-09, Table 15-6, Table 15-7, and Table 15-8. Dr. Watkins Campbell also found that,
under Table 17-2 (Cervical Spine Regional Grid: Spine Impairments), appellant had six percent permanent
impairment of his whole person. See id. at 564-66, Table 17-2.

5

beginning on page 401 of the sixth edition of the A.M.A., Guides.9 He determined that, under this
rating method, appellant’s most impairing diagnosis was his right shoulder strain and he noted that
this class 1 condition had one percent default value under Table 15-5.
Dr. Slutsky found that appellant had a functional history grade modifier of 1 and a physical
examination grade modifier of 1, and noted that a clinical studies grade modifier was not applicable
because clinical studies were used to place appellant in the correct diagnostic class.10 He indicated
that application of the net adjustment formula required no movement from the default value under
Table 15-5 and concluded that appellant had one percent permanent impairment of his right upper
extremity referable to his right shoulder condition.11 In reaching his impairment rating, Dr. Slutsky
indicated that the A.M.A., Guides provided that the DBI rating method was preferred over the
ROM rating method for evaluating permanent impairment of the upper extremities. He asserted
the ROM rating method could only be used as an alternative to the DBI rating method when “there
were no DBI ratings available.”
In a March 23, 2016 decision, OWCP granted appellant a schedule award for one percent
permanent impairment of his right upper extremity. The award ran for 3.12 weeks from
September 7 to 28, 2012 and was based on the opinion of Dr. Slutsky.
On April 5, 2016 appellant, through counsel, requested a telephone hearing with a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on
October 24, 2016 counsel argued that Dr. Slutsky improperly evaluated the permanent impairment
of appellant’s right upper extremity.
In a December 1, 2016 decision, OWCP’s hearing representative affirmed OWCP’s
March 23, 2016 decision, noting that appellant had not established more than one percent
permanent impairment of his right upper extremity. In affirming OWCP’s March 23, 2016
schedule award determination, the hearing representative first found that appellant had not
established any right upper extremity permanent impairment due to his accepted cervical-related
conditions -- cervical strain, cervical herniated disc at C6-7, cervical disc disease at C6-7, and
cervical radiculopathy. The hearing representative then found that appellant has failed to submit
evidence showing that Dr. Slutsky was incorrect when he calculated one percent permanent
impairment of appellant’s right upper extremity due to his accepted right shoulder condition.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has

9

See A.M.A., Guides 401-05, Table 15-5. Dr. Slutsky noted that appellant did not have any permanent impairment
of his right upper extremity due to a work-related brachial plexus condition because there was no evidence in the
record of such a condition.
10

See id. at 405-09, Table 15-6, Table 15-7, and Table 15-8.

11
See id. at 411. Dr. Slutsky found that appellant’s MMI was September 7, 2012, the date of the physical
examination conducted by Dr. Kaffen.

6

vested the authority to implement the FECA program with the Director of OWCP.12 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.13 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires the
use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.14
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first printing
of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).15 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.16
Neither FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back/spine or the body as a whole.17 However, a schedule award is
permissible where the employment-related spinal condition affects the upper and/or lower
extremities.18 The sixth edition of the A.M.A., Guides (2009) provides a specific methodology for
rating spinal nerve extremity impairment.19 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine.
The FECA-approved methodology is premised on evidence of radiculopathy affecting the upper

12

See 20 C.F.R. §§ 1.1-1.4.

13

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

14

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

15
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
16

Isidoro Rivera, 12 ECAB 348 (1961).

17

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5c(3) (February 2013).
19
The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter). Id.

7

and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are
incorporated in the procedure manual.20
ANALYSIS
The Board finds that appellant has failed to establish permanent impairment of his right
upper extremity due to his accepted cervical-related conditions, but that the case is not in posture
for decision regarding the permanent impairment of his right upper extremity due to his accepted
right shoulder condition.
OWCP accepted that appellant sustained a right trapezius strain, cervical strain, cervical
herniated disc at C6-7, cervical disc disease at C6-7, and cervical radiculopathy. In granting
appellant a schedule award for one percent permanent impairment of his right upper extremity,
OWCP had adopted the reasoning of Dr. Slutsky, OWCP’s medical adviser, as provided in his
December 20, 2013 impairment rating report. Dr. Slutsky applied a DBI rating method under
Table 15-5 of the sixth edition of the A.M.A., Guides to find that appellant had one percent
permanent impairment of his right upper extremity due to his accepted right shoulder condition.
In reaching its schedule award determination, OWCP also found that appellant has failed to
establish any right upper extremity permanent impairment due to his accepted cervical-related
conditions, i.e., cervical strain, cervical herniated disc at C6-7, cervical disc disease at C6-7, and
cervical radiculopathy. In his December 1, 2016 decision affirming OWCP’s March 23, 2016
schedule award, OWCP’s hearing representative noted his agreement with Dr. Slutsky’s opinion
in this regard, as expressed in his December 20, 2013 impairment rating report, and made a specific
finding that appellant has failed to establish right upper extremity permanent impairment due to
his accepted cervical-related conditions.
Preliminarily, the Board finds that OWCP properly determined that appellant has failed to
establish right upper extremity permanent impairment due to his accepted cervical-related
conditions because he did not submit probative medical evidence establishing such permanent
impairment. Appellant submitted a November 26, 2013 report of Dr. Watkins Campbell, an
attending physician, who found that he had seven percent permanent impairment of his right upper
extremity due to a right brachial plexus condition. However, OWCP has not accepted a workrelated brachial plexus condition and the medical evidence of record does not otherwise establish
the existence of such a brachial plexus condition, whether preexisting or work related in nature.21
Dr. Watkins Campbell provided an opinion that appellant had a work-related condition originating
in a nonscheduled member, i.e., the cervical spine, that caused permanent impairment in a
scheduled member, i.e., the right upper extremity, but she did not provide medical rationale in
support of this opinion. The Board has held that a medical report is of limited probative value on a
given medical matter if it contains a conclusion regarding that matter which is unsupported by

20
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
21

It is well established that, in determining the amount of a schedule award for a member of the body that sustained
an employment-related permanent impairment, preexisting impairments of the body are to be included. D.F., 59 ECAB
288 (2007); Kenneth E. Leone, 46 ECAB 133 (1994).

8

medical rationale.22 The Board further notes that Dr. Watkins Campbell did not apply the relevant
standards for evaluating such conditions originating in the cervical spine.23
Moreover, the record contains evidence showing that appellant did not have permanent
impairment of his right upper extremity due to an accepted cervical-related condition. In his
December 20, 2013 impairment rating report, Dr. Slutsky provided an extensive discussion of why
the medical evidence of record showed that appellant did not have permanent impairment of his right
upper extremity originating in his cervical spine. He noted that the findings of June 10, 2008 and
October 1, 2010 EMG and NCV testing of appellant’s right upper extremity showed no
electromyographic evidence of cervical radiculopathy, brachial plexus injury, or other neuropathy
originating in the cervical spine. Dr. Slutsky also referenced other medical reports of record that
supported his opinion.24
The Board further finds that the case is not in posture for decision regarding the
contribution of appellant’s accepted right shoulder condition to the permanent impairment of his
right upper extremity. As noted above, in granting appellant a schedule award for one percent
permanent impairment of his right upper extremity, OWCP had adopted the reasoning of
Dr. Slutsky, who applied the DBI method of rating permanent impairment (under Chapter 15) and
found that appellant’s accepted right shoulder condition established one percent permanent
impairment of his right upper extremity. The Board has found that OWCP has inconsistently
applied Chapter 15 of the sixth edition of the A.M.A., Guides when granting schedule awards for
upper extremity claims. No consistent interpretation had been followed regarding the proper use
of the DBI or the range of motion (ROM) methodology when assessing the extent of permanent
impairment for schedule award purposes.25 The purpose of the use of uniform standards is to
ensure consistent results and to ensure equal justice under the law to all claimants.26 In T.H., the
22

C.M., Docket No. 14-0088 (issued April 18, 2014).

23

Dr. Watkins Campbell improperly applied Table 15-20 (Brachial Plexus Impairment: Upper Extremity
Impairments), beginning in page 434 of the sixth edition of the A.M.A., Guides, rather than The Guides Newsletter,
to evaluate any permanent impairment originating in the cervical spine. See supra notes 17 through 20; see also W.S.,
Docket No. 17-0125 (issued August 10, 2017) (finding that The Guides Newsletter provides the standard for evaluating
permanent impairment originating in a nonscheduled member and extending into a scheduled member). Dr. WatkinsCampbell also found that under Table 17-2 (Cervical Spine Regional Grid: Spine Impairments), beginning on page
564, appellant had a permanent whole person impairment of six percent. However, the Board has held that neither
FECA nor the regulations provide for the payment of a schedule award for the permanent loss of use of the body as a
whole. See supra note 17.
24

For example, Dr. Slutsky noted that Dr. Nickodem, an OWCP referral physician, had indicated in his July 9, 2010
report that appellant’s herniated disc at C6-7, cervical disc disease at C6-7, and cervical radiculopathy had resolved
due to his January 8, 2010 cervical surgery. Dr. Nickodem explained that there was no evidence of these cervicalrelated conditions during the physical examination he conducted on July 9, 2010. In an August 12, 2011 report,
Dr. Ghanma, an OWCP referral physician, indicated that there were no objective findings to support that appellant
had residuals of any of his accepted work-related conditions. In a September 7, 2012 report, Dr. Kaffen, an impartial
medical specialist, determined that, although appellant still had the localized conditions of cervical herniated disc at
C6-7 and cervical disc disease at C6-7, he ceased to have residuals of the accepted cervical radiculopathy as of his
September 7, 2012 examination.
25

T.H., Docket No. 14-0943 (issued November 25, 2016).

26

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

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Board concluded that OWCP physicians were at odds over the proper methodology for rating
upper extremity impairment, having observed attending physicians, evaluating physicians, second
opinion physicians, impartial medical examiners, and district medical advisers use both DBI and
ROM methodologies interchangeably without any consistent basis. Furthermore, the Board
observed that physicians interchangeably cited to language in the first printing or the second
printing when justifying use of either ROM or DBI methodology. Because OWCP’s own
physicians were inconsistent in the application of the A.M.A., Guides, the Board found that OWCP
could no longer ensure consistent results and equal justice under the law for all claimants.27
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the December 1, 2016 decision with respect
to the matter of the permanent impairment of appellant’s right upper extremity due to his accepted
right shoulder condition. Utilizing a consistent method for calculating permanent impairment for
upper extremities applied uniformly, and after such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for a right upper extremity
schedule award.28
CONCLUSION
The Board finds that appellant has failed to establish permanent impairment of his right
upper extremity due to his accepted cervical-related conditions, but that the case is not in posture
for decision regarding the permanent impairment of his right upper extremity due to his accepted
right shoulder condition.

27

Supra note 25.

28

See FECA Bulletin No. 17-06 (issued May 8, 2017).

10

ORDER
IT IS HEREBY ORDERED THAT the December 1, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed with respect to the finding that appellant has failed
to establish permanent impairment of his right upper extremity due to his accepted cervical-related
conditions. The decision is set aside regarding the permanent impairment of appellant’s right
upper extremity due to his accepted right shoulder condition, and the case is remanded for further
action consistent with this decision.
Issued: July 2, 2018
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, San Francisco, CA, Employer
__________________________________________

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

Docket No. 19-0471
Issued: October 29, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 27, 2018 appellant filed a timely appeal from a July 16, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than one year has
elapsed from OWCP’s most recent merit decision, dated July 30, 1998,1 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
1

For final adverse decisions of OWCP issued prior to November 19, 2008, the Board’s review authority is limited
to appeals which are filed within one year from the date of issuance of OWCP’s decision. See 20 C.F.R. § 501.3(d)(2)
(2008).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 10, 1997 appellant, then a 42-year-old criminal investigator, filed an
occupational disease claim (Form CA-2) alleging that on July 24, 1997 he first realized that his
back pain, headaches, anxiety, stress, and insomnia were due to discrimination, retaliation, and
denial of promotion he experienced while in the performance of his federal employment due to his
prior EEO complaints. He stopped work on August 4, 1997.
An April 11, 1997 affidavit from C.S., supervisory criminal investigator, denied
appellant’s allegations of discrimination and retaliation.
In notes dated August 8 and 25, 1997, Dr. Tony L. Wong, a Board-certified internist,
diagnosed work-related stress. In the August 25, 1997 note, he attributed appellant’s stress to a
hostile work environment. In both notes, Dr. Wong advised that he should stop work. In an
October 9, 1997 report, he indicated that appellant was seen for complaints of stress, anxiety, and
possible depression. Appellant related frustration with denials of promotion and requests for
relocation, which he believed was due to racial discrimination, his accent, and his physical
appearance. Dr. Wong completed an attending physician’s report (Form CA-20) on October 9,
1997 releasing appellant to return to work on December 4, 1997. Diagnoses included stress,
anxiety, and depression. Dr. Wong checked a box marked “yes” to the question of whether the
diagnosed conditions had been caused or aggravated by an employment activity.
An unsigned October 10, 1997 notice of final Equal Employment Opportunity (EEO)
counseling report, noted that appellant alleged discrimination based on race, age, national origin,
and reprisal for filing past EEO complaints. The report detailed appellant’s allegations, records
reviewed, and summarized personal interviews.
In a November 4, 1997 development letter, OWCP advised appellant that additional factual
and medical evidence was necessary to establish his claim. It afforded him 30 days to submit the
necessary evidence.
In a December 28, 1997 report, Dr. John Roumasset, a Board-certified psychiatrist, noted
that he had treated appellant on five occasions. He diagnosed single episode of depression and
stressful work situation. Dr. Roumasset noted that appellant began filing EEO complaints about
two years prior, which he believed resulted in retaliation and lower performance appraisals.
In a January 7, 1998 report, Dr. Richard B. Ward, a Board-certified internist, diagnosed
work-related stress and likely depression. He noted appellant’s allegations that his requests for
transfer were denied due to discrimination and retaliation. Dr. Ward opined that appellant’s
symptoms had resolved and that he was capable of working without restrictions.
In a January 30, 1998 report, Dr. Kenneth I. Gotlieb, a Board-certified psychiatrist,
observed that appellant had an obsessive compulsive personality disorder with prominent
dependent personality traits. Diagnoses included adjustment disorder with depression and anxiety,
resolved, and stressful work situation regarding transfer/promotion. Dr. Gottlieb concluded that
appellant could return to work.

2

By decision dated July 30, 1998, OWCP denied appellant’s claim finding that the evidence
of record was insufficient to establish that his “diagnosed emotional or psychiatric illness arose
out of and during the course of the performance of his duty as a federal employee.”
On March 23, 2000 appellant requested reconsideration and submitted an August 12, 1999
court order from the United States District Court for the Northern District of California finding
retaliation and awarding appellant compensatory damages.
By decision dated March 30, 2000, OWCP denied appellant’s request for reconsideration
finding that his request was untimely and failed to demonstrate clear evidence of error.
On May 9, 2018 appellant requested reconsideration alleging that his case had not been
properly adjudicated following a May 2002 court decision.3 He asserted that the court order issued
subsequent to OWCP’s adjudication of his claim was sufficient to establish his claim. Appellant
submitted an August 19, 1999 court order awarding him compensatory damages for retaliation and
emotional distress and a May 28, 2002 court order vacating a May 16, 2000 judgement and
denying defendant’s motions for a new trial and judgement as a matter of law. The August 19,
1999 court order contained a checked a box marked “yes” next to the questions of whether
appellant established retaliation as a motivating factor in his April 1998 officer corps rating system
(OCORS) rating by a preponderance of the evidence and “yes” to the question of whether appellant
established that he suffered inconvenience, suffering, mental anguish, emotional pain, loss of
enjoyment of life, or other nonpecuniary losses from intentional retaliation by the employing
establishment. The May 28, 2002 court order denied defendant’s motion for a judgement as a
matter of law and motion for a new trial. The court noted that on May 16, 2000 the court granted
defendant’s motion for judgement as a matter of law and conditionally granted its request for a
new trial. The order noted that a jury heard testimony that in April 1998 appellant had been issued
a lowered OCORS rating and that in September 1998 he was transferred to work at the county jail,
which had been the first job he held at the employing establishment. On remand, the court found
the evidence presented at trial sufficient to support the jury’s verdict. Thus, it denied defendant’s
motion for judgment as a matter of law and motion for a new trial. The clerk of the court was
instructed to vacate the May 16, 2000 judgment and enter an amended judgment in accordance
with the jury verdict.
By decision dated July 16, 2018, OWCP denied appellant’s May 9, 2018 reconsideration
request, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
3
Appellant stated that the current claim had been consolidated with OWCP File No. xxxxxx179. However, a
review of the current record does not contain any memorandum or letter from OWCP indicating that this file had been
combined with another claim. In OWCP File No. xxxxxx179, OWCP accepted the conditions of aggravation of L5S1 herniated disc for a February 2, 2004 employment-related traumatic injury.
4
5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).

3

instance, a request for reconsideration must be received within one year of the date of OWCP ’s
decision for which review is sought. 5 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s integrated Federal Employees’ Compensation System). 6
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 7
When an application for review is untimely, OWCP undertakes a limited review to
determine whether the application demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 8 Its procedures provide that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s application for review demonstrates “clear evidence of error” on the part of OWCP. 9
In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record. 10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 11 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must 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 shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision.12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

5

20 C.F.R. § 10.607(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.4(b) (February 2016).

7

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

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
9

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 2.1602.5 (February 2016).
10

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

11

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

12

J.W, supra note 10; Robert G. Burns, 57 ECAB 657 (2006).

4

OWCP’s regulations13 and procedures14 establish a one-year time limitation for requesting
reconsideration, which begins on the date of the original OWCP merit decision. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues. 15
The most recent merit decision was OWCP’s July 30, 1998 decision which found that the evidence
of record was insufficient to establish an emotional or psychiatric condition in the performance of
duty. As appellant’s request for reconsideration was not received by OWCP until May 9, 2018,
more than one year after the July 30, 1998 decision, it was untimely filed. 16 Because appellant’s
request was untimely, he must demonstrate clear evidence of error on the part of OWCP in denying
his emotional condition claim.
In support of his untimely request for reconsideration, appellant submitted court orders
dated August 19, 1999 and May 28, 2002. These cursory orders concerned an April 1998 lowered
OCORS rating and a September 1998 transfer within the employing establishment. This evidence
fails to address the issue that was before OWCP at the time it issued its July 31, 1998 decision,
which was whether the evidence submitted was sufficient to establish an emotional or psychiatric
condition in the performance of duty with respect to allegations of discrimination and retaliation
in 1997. The evidence submitted addresses allegations that were not part of appellant’s 1997
workers’ compensation claim. Appellant did not provide positive, precise, and explicit evidence
to demonstrate that OWCP’s denial of his 1997 claim was in error. Therefore, the Board finds that
his May 9, 2018 request for reconsideration failed to demonstrate clear evidence of error because
it did not raise a substantial question regarding OWCP’s July 30, 1998 decision.
Thus, appellant has not discharged his burden of proof to demonstrate clear evidence of
error in OWCP’s July 30, 1998 decision denying his claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

13

F.N., Docket No. 18-1543 (issued March 6, 2019); 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB
247 (2005).
14

Supra note 6 at Chapter 2.1602.4 (February 2016); see Veletta C. Coleman, 48 ECAB 367, 370 (1997).

15

J.W., supra note 10; Robert F. Stone, 57 ECAB 292 (2005).

16

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the July 16, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 29, 2019
Washington, DC

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

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

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

6


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

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Docket No. 15-0619
Issued: August 4, 2015

Appearances:
Daniel B. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 26, 2015 appellant, through counsel, filed a timely appeal from a January 8,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an aggravation or
acceleration of bilateral hip osteoarthritis causally related to his employment.
FACTUAL HISTORY
On March 20, 2012 appellant, then a 46-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained a permanent acceleration of bilateral hip

1

5 U.S.C. §§ 8101-8193.

osteoarthritis in the performance of duty on or before January 12, 2012.2 He attributed his
condition to prolonged standing, walking, heavy lifting, lifting in awkward positions, carrying a
mail satchel weighing 35 pounds, and climbing steps while working as a letter carrier from
January 1, 1988 through 2009.3 Appellant noted that, under File No. xxxxxx161, OWCP
accepted a muscle pull in his right thigh sustained on January 5, 2006 when he slipped and fell
on ice, striking the upper portion of his right leg. June 10, 2006 imaging studies to evaluate
postinjury hip pain revealed degenerative arthritis of both hips.4
Appellant submitted medical evidence in support of his claim. On October 20, 2008
Dr. Richard Choi, an attending Board-certified orthopedic surgeon, noted severely limited right
hip motion. X-rays of the right hip showed significant degeneration, with a one- to twomillimeter joint space remaining.5
In a July 23, 2009 report, Dr. Ronald A. Marvin, an attending Board-certified orthopedic
surgeon, noted worsening osteoarthritis of both hips, more severe on the right. He noted that
appellant’s father also had early degenerative arthritis, indicating that appellant’s condition was
“probably congenital.” Dr. Marvin recommended hip resurfacing.
Dr. Daniel M. Ward, an attending Board-certified orthopedic surgeon, provided a
September 15, 2009 report noting that x-rays showed the “fairly impressive” advancement of
right hip osteoarthritis from February to August 2009. He performed a total right hip
arthroplasty on January 11, 2010 and total left hip arthroplasty on January 20, 2010.6
In a January 12, 2012 report, Dr. David C. Morley, Jr., an attending Board-certified
orthopedic surgeon, described appellant’s job duties, noted the January 5, 2006 injury, and
reviewed medical records. He stated that appellant had “[n]o significant family illness.”
Dr. Morley related appellant’s complaints of bilateral hip stiffness, swelling in both legs, chronic
bone pain in both thighs, and difficulties with activities of daily living. On examination, he
observed a nontender right hip with arthroplasty scar, tenderness to palpation over the left hip
incision, and restricted motion of both hips in all planes.7 Dr. Morley opined that “repetitive
heavy physical activities” at work caused increased stresses on appellant’s hips, contributing” to
preexisting degenerative joint disease and failure of articular cartilage. He explained that as
2

In a March 26, 2012 letter, the employing establishment asserted that the date of injury should be June 2006,
when imaging studies should have made appellant aware of the possible relationship between work factors and
osteoarthritis.
3

Appellant submitted a letter carrier position description, listing requirements of walking and climbing steps six
or more hours a day, and lifting up to 70 pounds intermittently.
4

June 10, 2006 x-rays showed degenerative osteoarthritis of both hips, worse on the right.

5

August 21, 2008 x-rays showed advanced osteoarthritic changes in the right hip, with relatively advanced
arthritis of the left hip.
6

In a July 21, 2010 report, Dr. Christine Dalrymple, an attending podiatrist, noted appellant’s history of bilateral
hip replacements.
7

Dr. Morley noted that he obtained all range of motion measurements after appellant performed warm-up
exercises. “All range of motion measurements were made three times with a goniometer with the highest
measurement” recorded.

2

there was “no history of traumatic incident involving his hips,” the “most likely cause of
[appellant’s] condition was degenerative and causally related to the arduous physical duties of a
letter carrier.”
In an April 24, 2012 letter, OWCP advised appellant of the additional evidence needed to
establish his claim, including postoperative reports, diagnostic test results, and a narrative report
from Dr. Ward explaining how and why factors of his federal employment would have caused
the claimed bilateral hip arthritis. It afforded him 30 days to submit additional evidence. In
response, appellant submitted a May 2, 2012 letter explaining that he no longer received
treatment from Dr. Ward, and had chosen Dr. Morley as his treating physician. He provided
duplicate copies of his job description and Dr. Morley’s January 12, 2012 report.
By decision dated June 20, 2012, OWCP denied appellant’s claim as causal relationship
had not been established. It accepted that the identified work factors of walking, standing,
lifting, carrying, and climbing occurred as alleged. OWCP found, however, that the medical
reports of record were insufficient to establish that the accepted work factors caused or
aggravated bilateral hip arthritis. It further found that the record was incomplete, as appellant
failed to submit the postoperative reports and test results as requested on April 24, 2012.
In a June 25, 2012 letter, counsel requested an oral hearing, held October 24, 2012. At
the hearing, he contended that OWCP’s request for postoperative reports and test results was
improper as there was no medical opinion explaining why they were relevant to establishing
causal relationship. Counsel also contended that appellant’s physicians provided sufficient
opinion, “based on a complete and accurate relevant medical history,” to establish causal
relationship.
After the hearing, counsel provided an October 24, 2012 memorandum reiterating that
OWCP should not have requested that appellant submit postoperative reports and test results. He
contended that OWCP should not have requested a report from Dr. Ward as he no longer treated
appellant. Counsel noted that appellant only had to show that his federal employment
contributed to the claimed condition. In an October 24, 2012 affidavit, appellant asserted that,
other than his postal employment, his activities included driving to and attending his son’s sports
activities, camping, playing catch, and breeding fish in several aquariums in his basement.
By decision dated and finalized January 22, 2013, an OWCP hearing representative
affirmed OWCP’s June 20, 2012 decision, finding that causal relationship had not been
established. He found that Dr. Marvin opined that appellant’s hip arthritis was congenital, while
Dr. Ward did not address its etiology. Dr. Morley inaccurately stated that appellant had no
significant family illnesses, failing to address appellant’s father’s history of early degenerative
hip osteoarthritis as noted by Dr. Marvin. The hearing representative therefore found that
Dr. Morley’s opinion was of diminished probative value as it was based on an incomplete,
inaccurate medical history.
In an August 27, 2013 letter, counsel requested reconsideration. He submitted an
August 23, 2013 report from Dr. Morley, stating that he did not mention the potential congenital
nature of the arthritis as this was unrelated to the issue of causal relationship. Dr. Morley
asserted that the hereditary component of osteoarthritis did not negate the contribution of work
factors in accelerating the condition. He stated that the “repetitive stresses” of appellant’s job
3

duties “hastened the progress of his arthritic disease much more so than someone with a
sedentary occupation.” Dr. Morley noted that degenerative arthritis in the lower extremities was
permanently progressive due to wear and tear forces with weight bearing. Appellant’s duties as a
letter carrier caused “greater stresses on the lower extremity weight bearing joints” than in
everyday life, accelerating the arthritic process that culminated in bilateral hip replacements.
Counsel submitted statements from appellant’s wife and father, asserting that appellant’s
duties as a letter carrier contributed to the development of bilateral hip arthritis because his
symptoms began during his postal employment.
In a November 8, 2013 letter, appellant’s supervisor noted that appellant no longer
carried mail. During the time he did carry a mail satchel, it sometimes weighed less than 35
pounds.
By decision dated November 18, 2013, OWCP denied modification, finding that the
additional evidence was insufficient to alter the January 22, 2013 decision. It found that
Dr. Morley had not explained “how the underlying condition was accelerated or materially
adversely affected by the employment activities.” Regarding the statements from appellant’s
wife and father, OWCP noted that the fact that a condition manifests during a period of
employment did not establish causal relationship between work factors and the claimed
condition.
In a November 5, 2014 letter, counsel requested reconsideration. He provided an
October 30, 2014 report from Dr. Morley asserting that bending, kneeling, lifting, climbing and
squatting at work caused the acceleration of appellant’s hip condition in 2009 as observed by
Dr. Ward.
Dr. Morley cited seven medical studies supporting the pathophysiologic
interrelationship of work tasks and the chemical and biologic processes of degenerative lower
extremity arthritis. He adopted the conclusions of these studies as applicable to appellant’s
specific work tasks and clinical presentation. Dr. Morley asserted that this literature proved that
appellant’s duties as a letter carrier contributed to the degeneration of his hips by creating joint
stress that effaced articular surfaces.
By decision dated January 8, 2015, OWCP denied modification on the grounds that the
additional evidence was insufficient to establish causal relationship. It found that Dr. Morley
had not provided sufficient rationale explaining how and why work factors caused or contributed
to degenerative arthritis. Additionally, Dr. Morley did not discuss the impact of the preexisting
osteoarthritis on appellant’s condition. OWCP further found that the citations to medical
literature were of no probative medical value as they did not address appellant’s specific history,
presentation, and work factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the

4

employment injury.8 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.9
An occupational disease is defined as a condition produced by the work environment
over a period longer than a single workday or shift.10 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; (2) 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 employment factors identified by the claimant were the proximate
cause of the condition for which compensation is claimed or, stated differently, medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.11
ANALYSIS
Appellant attributed the development of his bilateral hip osteoarthritis to repetitive
standing, walking, stair-climbing, and lifting while delivering mail beginning in 1988. However,
he had no lower extremity symptoms until after an accepted traumatic right upper leg injury on
January 5, 2006, accepted under File No. xxxxxx161. Bilateral hip pain prompted him to seek
medical care, resulting in the diagnosis of osteoarthritis. Dr. Marvin, an attending Boardcertified orthopedic surgeon, did not attribute the osteoarthritis to either the traumatic injury or
repetitive activity over time. Rather, he opined on July 23, 2009 that appellant’s arthritis was
“probably congenital” as appellant’s father also had early onset, severe osteoarthritis. Thus, the
medical and factual evidence of record presents three possible mechanisms of causation:
traumatic; congenital; and occupational activities. A complete discussion of appellant’s history
would entail an analysis of each proposed etiology.
Dr. Ward, an attending Board-certified orthopedic surgeon, noted on September 15, 2009
that appellant’s bilateral hip osteoarthritis progressed significantly between February and
August 2009. He performed bilateral hip arthroplasties in 2010. However, Dr. Ward did not
8

Joe D. Cameron, 41 ECAB 153 (1989).

9

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

10

20 C.F.R. § 10.5(q).

11

Solomon Polen, 51 ECAB 341 (2000).

5

explain how and why work factors, the traumatic injury, or a genetic predisposition influenced
the development of the claimed condition. His opinion is therefore insufficient to establish
causal relationship.12
Dr. Morley, an attending Board-certified orthopedic surgeon, submitted a January 12,
2012 report noting both that appellant sustained a traumatic upper right leg injury on January 5,
2006, and that appellant had no history of trauma to either hip. He also stated that appellant had
“[n]o significant family illness,” indicating he was unaware that appellant’s father had early
onset degenerative arthritis. The inaccurate, incomplete nature of the history upon which
Dr. Morley relied significantly diminishes the probative value of his opinion. His equivocal
statement that appellant’s duties as a letter carrier “most likely” caused the claimed osteoarthritis
is therefore insufficient to meet appellant’s burden of proof.13
Dr. Morley attempted to clarify his opinion in an August 23, 2013 report, asserting that
he deliberately omitted appellant’s genetic history because any congenital cause was irrelevant in
determining causal relationship. He noted on October 30, 2014 that the physical stresses of
appellant’s job accelerated his condition in 2009, as observed by Dr. Ward. However,
Dr. Morley did not explain in detail how the accepted work factors of walking, climbing,
standing, bending, and squatting would aggravate or accelerate appellant’s osteoarthritis. The
lack of medical rationale further diminishes the probative quality of his opinion.14
Dr. Morley cited medical literature on the effect of physically demanding occupations on
the development of lower extremity osteoarthritis. However, the Board has held that medical
texts and excerpts from publications are of no evidentiary value in establishing the causal
relationship between a claimed condition and an employee’s federal employment as such
materials are of general application and are not determinative of whether the specific condition
claimed is related to the particular employment factors alleged by the employee.15 This material
has probative value only to the extent that it is interpreted and cited by a physician rendering an
opinion on the causal relationship between a condition and specified employment injury.16
Dr. Morley cited the journal articles in support of load stress activities causing and accelerating
degenerative osteoarthritis. He expressed his agreement with the research conclusions, but did
not provide a complete explanation of how these mechanisms were present in appellant’s case.
The Board, therefore, finds that the cited literature is of limited probative value and is
insufficient on its own to establish causal relationship. However, as Dr. Morley’s opinion is also
significantly diminished by its incomplete and inaccurate history, the relative weight of the cited
medical literature is moot.

12

Id.

13

Ricky S. Storms, 52 ECAB 349 (2001).

14

Deborah L. Beatty, 54 ECAB 340 (2003).

15

Gloria J. McPherson, 51 ECAB 441 (2000); William C. Bush, 40 ECAB 1064, 1075 (1989); N.B., Docket No.
14-1702 (issued December 29, 2014); S.A., Docket No. 13-1551 (issued December 17, 2013).
16

C.S., Docket No. 12-1169 (issued November 5, 2012); Harlan L. Soeten, 38 ECAB 566, 567 (1987).

6

Appellant’s wife and father submitted statements supporting a causal relationship
between appellant’s job duties and his bilateral hip arthritis. However, there is no evidence that
either individual was a qualified physician under FECA. The Board has held that the statement
of a layperson is not competent evidence on the issue of causal relationship.17 Therefore, their
opinions are of no probative medical value.
The Board notes that by letter dated April 24, 2012 OWCP advised appellant of the
necessity of submitting her physician’s statement explaining how and why the accepted work
factors would impact the claimed bilateral hip osteoarthritis. As appellant’s physicians did not
provide such rationale, OWCP’s January 8, 2015 decision denying his claim is proper under the
law and facts of the case.
On appeal, counsel filed a brief which argues that OWCP erred by failing to obtain
“medical opinion confirming or disputing” that of Dr. Morley. Dr. Morley’s reports, however,
were of insufficient probative quality to warrant additional development. Counsel further
contends that OWCP claims examiner was barred as a layperson from ruling on the probative
value of Dr. Morley’s opinion without first obtaining a medical review of the evidence.18
However, the Board notes that under section 8124 of FECA,19 OWCP shall determine and make
findings of fact with respect to an award for or against payment of compensation. FECA’s
implementing regulations further provide that an OWCP decision shall contain findings of fact
and a statement of reasons.20 Therefore, counsel’s assertion that OWCP was prohibited from
evaluating the probative value of Dr. Morley’s opinion is without merit.
Counsel also argues that OWCP misstated the standard of causal relationship by finding
that Dr. Morley failed to explain whether obesity or the aging process contributed to appellant’s
arthritis. He argues that OWCP was effectively holding that work factors must be the exclusive
cause of the claimed condition. Counsel cites to Board precedents on the axiomatic principle
that causal relationship is established if work factors contributed to the claimed condition in any
degree.21 Dr. Morley’s opinion was not based on a complete, accurate factual and medical
history. An element of this omission is his failure to discuss other factors affecting appellant’s
health, such as obesity and aging. The Board notes that there is no indication that OWCP
misinterpreted or misapplied the appropriate standard of causal relationship. OWCP properly
found that it was necessary in this claim for the treating physician to identify and discuss all of
the medical history related to appellant’s hip condition.

17

See James A. Long, 40 ECAB 538 (1989); Susan M. Biles, 40 ECAB 420 (1988).

18

Counsel cited to Board precedents holding that a layperson’s opinion on the medical issue of causal
relationship is of no probative value, including J.G., Docket No. 15-251 (issued April 13, 2015) and Gloria J.
McPherson, 51 ECAB 441 (2000).
19

5 U.S.C. § 8124.

20

20 C.F.R. § 10.126.

21

L.C., Docket No. 12-1949 (issued January 3, 2013); Rudy C. Sixta, Jr., 44 ECAB 727 (1990); Glenn C.
Chasteen, 42 ECAB 493 (1991); Arnold Gustafson, 41 ECAB 131; Beth Chaput, 37 ECAB 158 (1985).

7

Counsel also asserts that OWCP’s January 8, 2015 decision contained an “[i]mproper
quote of law on citation of research.” He cited to Board precedents holding that medical tests are
of little probative value in establishing causal relationship unless the physician applies the
general principles discussed to the specific facts of the claimant’s case.22 However, the probative
weight of this literature is moot because Dr. Morley’s opinion rests on an incomplete and
inaccurate history.
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 did not establish that he sustained an aggravation or
acceleration of bilateral hip arthritis in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 8, 2015 is affirmed.
Issued: August 4, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

22

James Rogy, Jr., Docket No. 05-1247 (issued December 8, 2005); Ralph L. Streever, Docket No. 95-1454
(issued August 6, 1997); Ruby I. Fish, 46 ECAB 276 (1994); Kathy Marshall (Dennis Marshall), 45 ECAB 827
(1994); Edna C. Drinkwine, 10 ECAB 511 (1959).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, OFFICE OF INSPECTOR
GENERAL, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-0293
Issued: September 11, 2015

Case Submitted on the Record

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

JURISDICTION
On December 1, 2014 appellant filed a timely appeal from a June 5, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the most recent merit decision dated April 3, 2013 to the filing of this appeal, the
Board lacks jurisdiction to review the merits of appellant’s claim, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to present clear evidence of error.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On February 21, 2013 appellant, then a 43-year-old criminal investigator, filed a
traumatic injury claim alleging that on September 1, 2011 she sustained a left foot injury in the
performance of duty. She alleged that while at the office moving boxes in high heel shoes she
sustained a stress fracture and a bruise which later became Morton’s neuroma requiring surgical
excision.
Appellant submitted a September 9, 2011 treatment note from an unidentified healthcare
provider. It indicated that she was experiencing left foot tenderness after moving office material
while in high heels. The report further noted that there was bruising over the third
metatarsophalangeal. Appellant submitted a September 19, 2011 treatment note containing an
illegible signature. It advised that she was experiencing left foot pain over the plantar aspect, but
no signs of acute fracture, dislocation, or degenerative joint disease.
By letter dated March 4, 2013, OWCP advised appellant of the type of evidence needed
to establish her claim. It allowed her 30 days from the date of the letter to submit responsive
evidence.
In a January 16, 2013 report, Dr. Michael Stempel, a podiatrist, advised that appellant
complained of left foot pain, swelling, vague numbness in the fourth digit, and a radiating
sensation into the digits. He noted that she had a recent complex history of an unexplained
neuritic event that resulted in a blood pressure drop and slurred speech. On examination
Dr. Stempel noted that appellant had localized fullness in the third interspace, tenderness to
palpation, and compression of the forefoot.
In a January 29, 2013 diagnostic report, Dr. Kathleen Brindle, a diagnostic radiologist,
advised that a magnetic resonance imaging (MRI) scan of the left foot revealed Morton’s
neuroma in the third intermetatarsal space. Imaging also revealed two separate cystic areas of
the first and fifth metatarsals with rim enhancement in the plantar subcutaneous soft tissue,
which possibly represented a bursa formation.
In a February 21, 2013 report, Dr. Brindle advised that appellant was scheduled to
undergo surgery on her left foot for removal of a neuroma and aspiration of cyst/bursa planta to
the first metatarsophalangeal joint. She diagnosed Morton’s neuroma and cyst burst and
reiterated the result of appellant’s left foot MRI scan.
In a March 20, 2013 statement, appellant advised that while moving materials from one
office to another she was required to lift and reposition hundreds of boxes while wearing high
heel shoes. She advised that her foot was very sore the next day, but she did not inspect it for
bruising or injury because she was busy with her caseload. Appellant noted that when she
initially sought medical care she was diagnosed with a stress fracture and bruise. She further
noted that her foot pain had subsided for several months, but resurfaced in 2012 when she began
to experience burning sharp left foot pain. Appellant stated that initially she did not make the
connection that her condition was related to the earlier work incident.

2

By decision dated April 3, 2013, OWCP denied appellant’s claim because the medical
evidence of record was insufficient to establish that the diagnosed medical condition was related
to the established work-related events.
In an April 9, 2013 report, Dr. Howard Osterman, a podiatrist, advised that appellant was
18 months post left foot work injury. He noted that she had a stress reaction fracture of the third
and fourth metatarsals in September 2011. Dr. Osterman explained that the area was
intermittently tender and subsequently made scar tissue that entrapped the interdigital nerve
creating a neuroma. Physical examination revealed pain and palpation to the area overlying the
third and fourth metatarsal in the left foot with redness, swelling, and warmth.
On April 8, 2014 appellant requested reconsideration. In support of reconsideration, she
asserted that Dr. Osterman’s April 9, 2013 report established causal relationship. Appellant also
argued that her claim was initially improperly denied because the record was not held open for
30 days to allow her to submit additional evidence. She claimed that although the development
letter was dated March 4, 2013 it was not postmarked until March 5, 2013 and that she did not
receive it until March 8, 2013.
By decision dated June 5, 2014, OWCP denied appellant’s request for reconsideration
claim as untimely, as the request was received more than one year after the April 13, 2013
OWCP decision denying her claim.
On appeal appellant argued that her request for reconsideration was postmarked prior to
the deadline for requesting reconsideration. She also argued that the evidence submitted clearly
established causal relationship and that OWCP prematurely issued a denial without giving her a
full 30 days to submit additional evidence.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a
benefit unless the application for review is received within one year of the date of that decision.2
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application presents clear evidence that OWCP’s final merit decision was in error.3
Its regulations state that OWCP will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth under section 10.607 of OWCP regulations, if the
claimant’s application for review shows clear evidence of error on the part of OWCP.4 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.5

2

20 C.F.R. § 10.607(a) (2011).

3

Cresenciano Martinez, 51 ECAB 322 (2000).

4

20 C.F.R. § 10.607(b) (2011).

5

See Alberta Dukes, 56 ECAB 247 (2005).

3

To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise and explicit, and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.6
ANALYSIS
The Board finds that OWCP properly determined that appellant had failed to file a timely
request for reconsideration. The most recent OWCP merit decision in this case was issued on
April 3, 2013. Appellant’s request for reconsideration was not received by OWCP until April 8,
2014, more than one year after the April 3, 2013 merit decision. Therefore, it was not timely
filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in denying
her claim for compensation.
On appeal appellant argues that her reconsideration request was postmarked within one
year of the date of that decision. However, OWCP regulations are clear that an application for
reconsideration must be received by OWCP within one year of the date of its decision for which
review is sought. Thus, the fact that the reconsideration letter was mailed within one year of the
decision does not constitute a timely filing. The regulatory language unequivocally sets a oneyear time limitation for reconsideration requests to be received by OWCP.7
The Board finds that appellant has not established clear evidence of error on the part of
OWCP in the denial of her traumatic injury claim. After appellant’s April 3, 2013 decision,
appellant submitted evidence previously considered by OWCP and an April 9, 2013 report from
Dr. Osterman. Dr. Osterman advised that appellant was 18 months post left foot work injury.
He noted that she had a stress reaction fracture of the third and fourth metatarsals in
September 2011 and that the area was intermittently tender which subsequently made scar tissue
that entrapped the interdigital nerve creating a neuroma. Although this report provides a history
of the injury and provides some support for causal relationship, it does not raise a substantial
question as to the correctness of OWCP’s denial of appellant’s claim. The term clear evidence
of error is intended to represent a difficult standard. Evidence such as a detailed, well6

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

7

20 C.F.R. § 10.607(a). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4 (October 2011) (a reconsideration request must be received by OWCP within one year of the date of the its
decision for which review is sought for merit decisions issued on or after August 29, 2011); R.L., Docket No. 141342 (issued February 24, 2015) (appellant asserted that, as her reconsideration request was received only one day
late, OWCP should have used the postmark date; the Board found the request untimely as OWCP regulations
provide that the timeliness of a reconsideration request is determined by the date the request is received by OWCP).

4

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.8
Appellant also argues on reconsideration that OWCP’s initial denial was improper
because she was not initially given 30 days to submit additional evidence. By letter dated
March 4, 2013, OWCP advised appellant that if evidence was not received within 30 days from
the date of the letter, a decision would be made based on the evidence in the file. OWCP issued
a decision on April 3, 2013, exactly 30 days following the date of its development letter.
Appellant argues that the development letter was not postmarked until March 5, 2013 and that
she did not receive it until March 8, 2013. However, the letter advised that additional evidence
had to be received within 30 days from the date of the letter. Therefore, appellant was afforded
30 days to submit additional evidence. These assertions do not raise a substantial question as to
the correctness of OWCP’s decision.
On appeal, appellant also reiterates argument made on reconsideration. As explained,
these are insufficient to establish clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

8

D.G., 59 ECAB 455 (2008); see Federal (FECA) Procedure Manual, id. at Chapter 2.1602.5(a) (October 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the June 5, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 11, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6