United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF LABOR, EMPLOYMENT
STANDARDS ADMINISTRATION,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 07-432
Issued: May 17, 2007

Case Submitted on the Record

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

JURISDICTION
On December 19, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 21, 2006 which denied his
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of appellant’s claim.1
ISSUE
The issue is whether appellant established that he sustained a degenerative cervical
condition causally related to his previously accepted occupational injury.2

1

The record includes evidence received after the Office issued the November 21, 2006 decision. The Board
cannot consider new evidence for the first time on appeal. 20 C.F.R. § 501.2(c).
2

Appellant did not file a claim for recurrence or a new separate claim for his back condition therefore it is
assessed under whether it is causally related to the prior injury.

FACTUAL HISTORY
On February 25, 2004 appellant, then a 48-year-old claims examiner, filed an
occupational disease claim alleging that he sustained carpal tunnel syndrome in the performance
of duty. His claim was accepted for bilateral carpal tunnel syndrome on April 5, 2004. On
March 1, 2004 appellant had surgery on his right wrist.
In a March 12, 2006 letter, appellant requested that the Office accept spondylosis at C5-6.
He contended that his cervical and carpal tunnel conditions were related because they were
identified during the same time period and he had no previous history of spondylosis. Appellant
claimed that his neurosurgeon identified a “double crutch syndrome” as the two conditions were
served by the same block of nerves and one condition could aggravate the other. He argued that,
even if his cervical condition was not directly caused by his work, his work exacerbated it.
Appellant noted that his cervical condition worsened with the amount of work he performed on
the computer.
Appellant submitted a March 1, 2004 operative report for his carpal tunnel surgery from
Dr. Carlos Arce, Board-certified in neurological surgery, along with visit notes dated
December 11, 2003, March 15, August 4, November 1 and December 1, 2004 and an unsigned
report apparently from Dr. Brett Puckett dated August 8, 2005.
In a March 20, 2006 letter, the Office requested additional medical and factual
information. Appellant responded in a July 13, 2006 letter directing the Office to the
information in the medical report dated November 1, 2004 in support of his claim of
“aggravation of spondylosis.”
By decision dated August 25, 2006, the Office denied the expansion of appellant’s
accepted condition to include cervical spondylosis on the grounds that the evidence failed to
provide a rationalized medical opinion demonstrating the causal relationship between the
accepted event and appellant’s back condition.
The Office received additional information consisting of Florida Workers’ Compensation
Uniform Treatment/Status Reporting Forms and Progress Notes from Dr. Charlotte Cordova,
Board-certified in family medicine, dated August 31 and September 7, 2006.
On October 5, 2006 appellant requested reconsideration. In a September 28, 2006 letter,
Dr. Keith Holden (not listed) diagnosed cervical spondylosis and bilateral carpal tunnel
syndrome and opined that appellant’s condition was aggravated by long hours working at the
computer. The Office also received a May 13, 2006 visit report from Dr. Holden who diagnosed
cervical disc degeneration.
In a November 21, 2006 decision, the Office denied modification of the August 25, 2006
decision. The Office found that the medical evidence was insufficient to establish a causal
relation with the employment.

2

LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that his condition was caused or adversely affected by his employment. As
part of this burden he must present rationalized medical opinion evidence, based on a complete
factual and medical background, showing causal relation.3
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.4 Rationalized medical opinion evidence is medical
evidence that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion 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
established incident or factor of employment.5
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.6
ANALYSIS
Appellant alleged that he sustained a degenerative cervical condition in the performance
of duty causally related to his previously accepted occupational injury, which was accepted for
carpal tunnel syndrome. He has alleged that his cervical condition was caused by the carpal
tunnel syndrome, or in the alternative that the same factors of employment that caused his carpal
tunnel also caused his degenerative cervical condition. The Board holds that the medical
evidence presented does not contain a rationalized medical opinion establishing that appellant’s
cervical spondylosis is causally related to appellant’s accepted carpal tunnel condition or to the
accepted factors of appellant’s employment.
The medical reports submitted failed to provide the necessary rationalized medical
opinion. Appellant submitted multiple reports and letters from doctors but none of them
contained the required rationalized medical opinion. In the December 11, 2003, March 15 and
August 4, 2004 reports, Dr. Arce only discusses appellant’s carpal tunnel syndrome and does not
3

Kimper Lee 45 ECAB 565 (1994).

4

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of causal relationship must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and claimant’s specific employment factors. Id.
5

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

6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

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mention his cervical spondylosis. In the November 1, 2004 report, he diagnosed spondylosis of
the C5-6 and stated that appellant’s keyboard use “may be aggravating his condition.” While
appellant’s keyboard use may be aggravating his condition currently, Dr. Arce did not explain
how appellant’s accepted work factors prior to February 25, 2004 aggravated his condition.
Additionally Dr. Arce’s opinion is not definitive, as he stated that work “may be” aggravating
appellant’s condition. The Board has held that medical opinions that are speculative or
equivocal in character are of diminished probative value.7 In order to establish causal
relationship, appellant must submit a physician’s report in which the physician reviews the
employment factors identified by appellant as causing his condition and, taking these factors into
consideration as well as findings upon examination, state whether the employment injury caused
or aggravated the diagnosed conditions and present medical rationale in support of his or her
opinion.8
In a December 1, 2004 report, Dr. Arce diagnosed spondylosis and stenosis of C5-6 and
stated that appellant’s symptoms are “probably related” to the cervical spondylosis. In this
report Dr. Arce failed to discuss the causal relation between appellant’s work factors and his
condition but merely states that his condition caused his symptoms. Medical evidence which
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.9
In an August 8, 2005 unsigned report, apparently from Dr. Puckett, appellant is
recommended to follow up with Dr. Arce for treatment of cervical radiculopathy. The Board has
consistently held that unsigned doctor’s reports are of diminished probative value.10
In an August 31, 2006 progress notes, Dr. Cordova diagnosed neck strain. In a
September 7, 2006 note, he diagnosed cervical strain. Neither note provides an opinion as to the
cause of appellant’s condition.
In a May 13, 2006 report, Dr. Holden diagnosed cervical disc degeneration. In a
September 28, 2006 letter, he diagnosed appellant with cervical spondylosis and bilateral carpal
tunnel syndrome and stated that these conditions “may be aggravated” by his current job duties.
Dr. Holden also stated that appellant’s preexisting condition was aggravated by long hours at the
computer and opined that prolonged movement of neck muscles increased pain. His opinion
failed to describe how appellant’s accepted work factors had aggravated his condition and
therefore fails to provide the necessary causal relation.
Appellant believes that his carpal tunnel condition caused his cervical spondylosis
condition and that the same work activities caused both conditions. He bases his belief in part on
the “double clutch syndrome” which he believes causes one condition to aggravate the other,
however, there are no medical reports in the record that support the syndrome. An award of
7

Kathy A. Kelley, 55 ECAB 206 (2004).

8

Calvin E. King, 51 ECAB 394 (2000).

9

Michael E. Smith, 50 ECAB 313 (1999).

10

Merton J. Sills, 39 ECAB 572 (1988).

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compensation may not be based on surmise, conjecture, speculation or upon appellant’s own
belief that there is causal relationship between his claimed condition and his employment.11
Appellant’s mere belief is not enough. The Board has held that the mere fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.12
As there is no probative, rationalized medical evidence addressing how appellant’s
claimed cervical condition was caused or aggravated by his employment he has not met his
burden of proof in establishing that he sustained an injury in the performance of duty causally
related to factors of his federal employment.
CONCLUSION
Appellant has not met his burden to establish that his cervical spondylosis is causally
related to his previously accepted carpal tunnel syndrome.
ORDER
IT IS HEREBY ORDERED THAT the November 21, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

11

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glann, 53 ECAB 159 (2001).

12

Roy L. Humphrey, 57 ECAB ___ (Docket No. 05-1928, issued November 23, 2005) citing Joe T. Williams, 44
ECAB 518, 521 (1993).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, SOUTH JERSEY
PROCESSING & DISTRIBUTION CENTER,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 20-1277
Issued: February 8, 2021

Case Submitted on the Record

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

JURISDICTION
On June 17, 2020 appellant, through counsel, filed a timely appeal from a May 20, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

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

Federal Employees’ Compensation Act3 (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 medical condition
causally related to the accepted July 10, 2019 employment incident.
FACTUAL HISTORY
On July 16, 2019 appellant, then a 49-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on July 10, 2019 he sprained or pulled a muscle in his right shoulder
when sorting and lifting mail on skids while in the performance of duty. He stopped work on
July 15, 2019.
In a July 22, 2019 development letter, OWCP advised appellant of the deficiencies of his
claim. It requested additional factual and medical evidence and provided a questionnaire for his
completion. OWCP afforded appellant 30 days to respond.
Dr. Onyeama Obidi Anakwe, an osteopath specializing in family medicine, completed a
duty status report (Form CA-17) diagnosing sprain/strain of the right shoulder on July 22, 2019.
He noted that appellant reported that he injured his right shoulder while lifting trays of mail. On
August 5, 2019 Dr. Anakwe completed a similar report noting that appellant also reported injuring
his low back along with his right shoulder. He diagnosed right shoulder sprain and strain, as well
as lumbar sprain. In a Form CA-17 dated August 19, 2019, Dr. Anakwe again noted that appellant
reported injuring his right shoulder and low back while lifting mail. He reiterated his diagnoses
of sprain/strain of the right shoulder and sprain/strain of the lumbar spine.
By decision dated August 28, 2019, OWCP denied appellant’s traumatic injury claim
finding that he had not established that the injury or events occurred as he described. It concluded,
therefore, that the requirements had not been met to establish as injury as defined by FECA.
On September 3, 2019 appellant requested reconsideration and submitted additional
medical evidence. In a July 22, 2019 report, Dr. Anakwe diagnosed right shoulder strain/sprain/
contusion with possible internal derangement. He noted appellant’s history of injury on July 10,
2019 while taking trays of mail weighing 20 to 40 pounds from a pallet. Dr. Anakwe noted that
appellant reported hearing a “pop” in his right shoulder as he lifted the mail trays. He noted that
appellant’s right shoulder demonstrated limited range of motion with severe tenderness upon
palpation of the acromioclavicular (AC) joint, supraspinatus, and infraspinatus muscles.
On August 8, 2019 appellant underwent a magnetic resonance imaging (MRI) scan of the
right shoulder which demonstrated moderate acromioclavicular productive changes with partial
supraspinatus impingement and supraspinatus tendinopathy with partial tear at its footprint
insertional fibers. He also underwent a lumbar MRI scan which demonstrated an annular tear with
a broad central herniated disc at L5-S1 as well as a bulging disc at L4-5.

3

5 U.S.C. § 8101 et seq.

2

In an August 19, 2019 narrative statement, appellant described his work duties, including
standing, walking, kneeling, bending, stooping, pushing, pulling, reaching above the shoulder, and
lifting up to 70 pounds. He asserted that he injured his right shoulder and back on July 10, 2019.
Appellant explained that on July 10, 2019 he was “breaking down” pallets of mail containing trays
of letters weighing from 10 to 40 pounds when he injured his right shoulder and back from constant
repetitive lifting, pulling, pushing, and bending while “breaking down” the mail. He informed his
coworkers of his condition and left work at 9:00 p.m. Appellant sought medical treatment in the
emergency room on July 13, 2019.
In an August 19, 2019 treatment note, Dr. Anakwe noted that appellant exhibited severe
muscle spasm and palpable tenderness in the paralumbar region with loss of range of motion. He
also found that appellant’s right shoulder had limited range of motion with severe tenderness and
spasm. Dr. Anakwe opined that appellant was disabled secondary to the July 10, 2019 workrelated accident.
On August 31, September 14, and October 12, 2019 Dr. Anakwe completed CA-17 forms
and diagnosed sprain/strain of the right shoulder and low back. He again noted appellant’s history
of injuring his right shoulder and low back while lifting boxes of mail and pallets of mail.
In a September 12, 2019 statement, appellant described “breaking down” pallets or skids
using a knife to cut the straps and take the sleeves off and then lifting the trays onto the assigned
knockers. He noted that some of the skids were as tall as he was. Appellant also provided a
photograph of his assigned work area.
On September 30, 2019 Dr. Anakwe completed an attending physician’s report (Form CA20) and described appellant’s history of injuring his right shoulder and low back while lifting mail.
He checked a box marked “Yes” indicating that he believed that the conditions found were caused
or aggravated by the described employment activities. Dr. Anakwe noted findings including the
MRI scan results of tear of the shoulder muscle and herniated lumbar disc. He included remarks
that appellant had a herniated disc in the lumbar region with possible radiculopathy which may
result in permanent sciatica. Dr. Anakwe also noted that appellant had right shoulder impingement
and tear which may take time to heal. He completed an additional Form CA-17 on
September 30, 2019.
By decision dated October 16, 2019, OWCP denied modification of its prior decision.
In an August 31, 2019 treatment note, Dr. Anakwe diagnosed lumbosacral strain/sprain/
contusion with possible herniated disc and radicular symptoms as well as right shoulder
strain/sprain/contusion with possible internal derangement. He found that appellant was disabled
secondary to the work-related accident. On September 14, 2019 Dr. Anakwe repeated these
findings and conclusion. On August 31, October 26, November 7, and 19, 2019 he completed
CA-17 forms and repeated the diagnoses of sprain and strain of the right shoulder and low back.
In an October 10, 2019 note, Dr. Mark Avart, an osteopath specializing in orthopedic
surgery, diagnosed impingement syndrome of the right shoulder, adhesive capsulitis of the right
shoulder, bursitis of the right shoulder, and sprain of right rotator cuff capsule. He completed a
note on November 7, 2019 and added the additional diagnoses of low back pain and lumbar
radiculopathy.

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Dr. Anakwe examined appellant on October 12, and 26, 2019 and again diagnosed right
shoulder and lumbosacral strain/sprain/contusion as well as possible herniated disc with radicular
symptoms and possible internal derangement of the right shoulder.
On December 3, 2019 Dr. Harris A. Ross, an osteopath specializing in physiatry, noted that
appellant attributed his low back pain and pain radiating into the right lower extremity to a work
injury on July 10, 2019. He noted that appellant’s work required him to remove and sort trays
from skids that ranged from four to five feet high and that the trays weighed between 30 and 40
pounds. Dr. Ross reported that as a result of lifting appellant had developed low back and right
shoulder pain. He diagnosed sprain and strain of myoligamentous supporting structures of the
lumbar spine with herniated discs and lower extremity radiculopathy and opined that it is within a
reasonable degree of medical certainty that these conditions were a direct result of the injury
sustained.
In notes dated December 4, 17, and 31, 2019, as well as January 14, 2020, Dr. Anakwe
repeated his findings and diagnoses of lumbosacral strain/sprain/contusion with possible herniated
disc and radicular symptoms as well as right shoulder strain/sprain/contusion with possible internal
derangement. He completed CA-17 forms on December 31, 2019, January 14 and 27, 2020 and
February 11, 2020 repeating these diagnoses.
On January 10, 2020 Dr. Ross performed electromyogram and nerve conduction velocity
(EMG/NCV) studies and found these studies suggestive of left L5 radiculopathy.
On February 14, 2020 appellant, through counsel, requested reconsideration of the
October 16, 2019 decision in reliance on Dr. Ross’ reports. He also provided witness statements
from four coworkers, Z.L., D.J., E.S., and J.C. confirming that appellant had informed them that
he had hurt his shoulder on July 10, 2019. Appellant also submitted February 25 and March 10,
2020 CA-17 forms from Dr. Anakwe which continued to diagnose right shoulder sprain/strain and
lumbar sprain/strain.
In a report dated January 9, 2020, Dr. Avart diagnosed lumbar radiculopathy, low back
pain, impingement syndrome of the right shoulder, bursitis of the right shoulder, adhesive
capsulitis of the right shoulder, and sprain of the right rotator cuff capsule. He recommended right
shoulder surgery related to the July 10, 2019 injuries. Dr. Avart further recommended continued
conservative treatment of appellant’s lumbar conditions.
On January 27 and February 25, 2020 Dr. Anakwe examined appellant due to back and
right shoulder pain. He repeated his diagnoses of right shoulder sprain/strain/contusion with
internal derangement and lumbar sprain/strain/contusion with left radiculopathy.
By decision dated May, 20, 2020, OWCP modified its prior decision, finding that appellant
had established that the employment incident occurred as alleged. However, it further denied his
claim, finding that he had not provided the necessary medical opinion evidence to establish causal
relationship between his accepted July 10, 2019 employment incident and the diagnosed right
shoulder and back conditions.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence.9 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee.10 The weight of the medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
analysis manifested, and the medical rationale expressed in support of the physician’s opinion.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted July 10, 2019 employment incident.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.M., Docket No. 19-0380 (issued June 26, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

8

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

9

S.A., Docket No. 18-0399 (issued October 16, 2018); Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
11

D.R., Docket No. 19-0954 (issued October 25, 2019); James Mack, 43 ECAB 321 (1991).

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Appellant provided reports dated December 3, 2019 and January 10, 2020 from Dr. Ross
who described appellant’s work duties and opined that as a result of lifting appellant had developed
low back pain and right shoulder pain. Dr. Ross diagnosed sprain and strain of myoligamentous
supporting structures of the lumbar spine with herniated discs and lower extremity radiculopathy
and opined within a reasonable degree of medical certainty that these conditions were a direct
result of the injury sustained. Although he opined that appellant’s conditions were a direct result
of the July 10, 2019 employment incident, this general statement on causation failed to provide a
sufficient explanation as to the mechanism of injury pertaining to this traumatic injury claim,
namely how appellant’s lifting activities on July 10, 2019 caused the diagnosed back and right
shoulder conditions.12 As Dr. Ross’ opinions regarding causal relationship between the accepted
injury and the additional claimed conditions were conclusory and unrationalized, the Board finds
that they are insufficient to meet appellant’s burden of proof to establish his claim.13
Appellant submitted medical reports from Dr. Anakwe dated July 22, 2019 through
February 20, 2020. In a form report dated September 30, 2019, Dr. Anakwe checked a box marked
“Yes,” without further comment, indicating that the diagnosed conditions were caused or
aggravated by the employment incident. The Board has held that when a physician’s opinion on
causal relationship consists only of checking “Yes” to a form question, without explanation or
rationale, that opinion is of diminished probative value and is insufficient to establish a claim.14
In the remainder of his reports, Dr. Anakwe noted appellant’s history of injury and diagnosed back
and shoulder sprains/strains/contusions, but he did not offer an opinion as to causal relationship.
The Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.15 Dr. Anakwe’s
reports, therefore, are insufficient to establish appellant’s claim.
Appellant also provided notes from Dr. Avart dated October 10, 2019 through
January 9, 2020. Dr. Avart diagnosed lumbar radiculopathy, low back pain, impingement
syndrome of the right shoulder, bursitis of the right shoulder, adhesive capsulitis of the right
shoulder, and sprain of the right rotator cuff capsule. He did not offer an opinion regarding the
cause of appellant’s condition. As noted above, the Board has held that medical evidence that does
not offer an opinion regarding the cause of an employee’s condition is of no probative value on
the issue of causal relationship.16 Dr. Avart’s reports, therefore, are insufficient to establish
appellant’s claim.
OWCP also received MRI scans and electrodiagnostic studies. The Board has held that
diagnostic studies, standing alone lack probative value as they do not address whether the

12

T.H., Docket No. 18-1736 (issued March 13, 2019); R.R., Docket No. 16-1901 (issued April 17, 2017).

13

P.A., Docket No. 18-0559 (issued January 29, 2020).

14
R.P., Docket No. 20-0161 (issued October 23, 2020); M.G., Docket No. 18-1616 (issued April 9, 2020); Sedi L.
Graham, 57 ECAB 494 (2006); D.D., 57 ECAB 734 (2006).
15

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

16

Id.

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employment incident caused any of the diagnosed conditions.17 Such reports are therefore
insufficient to establish appellant’s claim.
As the record lacks rationalized medical evidence establishing causal relationship between
the accepted July 10, 2019 employment incident and appellant’s diagnosed right shoulder and back
conditions, the Board finds that he has not met his burden of proof.
Appellant may submit additional evidence or argument with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted July 10, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 20, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 8, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

17

F.D., Docket No. 19-0932 (issued October 3, 2019).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS, Barstow, CA, Employer
__________________________________________

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

Docket No. 21-1221
Issued: March 28, 2022

Case Submitted on the Record

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

JURISDICTION
On August 9, 2021 appellant filed a timely appeal from an April 6, 2021 merit decision
and a May 5, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a recurrence
of medical treatment causally related to his accepted May 5, 2009 employment injury; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim, pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 8, 2009 appellant, then a 24-year-old materials expediter, filed a traumatic injury
claim (Form CA-1) alleging that on May 5, 2009 he injured his left knee when moving pallets of
material with the use of a pallet jack while in the performance of duty. Following a request for
surgery, OWCP formally adjudicated the claim and accepted left knee sprain, lateral collateral
ligament; old bucket handle tear of left medial meniscus and left knee contusion. Appellant
underwent OWCP-authorized left knee arthroscopic surgeries on July 23, 2009 and
October 27, 2016. OWCP paid him intermittent wage-loss compensation on the supplemental rolls
through November 21, 2016.
In a report dated May 17, 2017, Dr. Paul A. Stanton, an osteopath Board-certified in
orthopedic surgery, related that a final medical evaluation was performed at the request of
appellant. He related appellant’s medical history and physical examination findings. Dr. Stanton
noted that appellant had returned to full-duty work and that future medical care was not anticipated.
He concluded that appellant had reached a permanent and stationary level of disability.
Appellant’s last medical examination of record prior to his notice of recurrence of medical
treatment was conducted on December 1, 2017. In a report of even date, Dr. Amarilda
Christensen, a Board-certified occupational medicine specialist, performed a permanent
impairment evaluation and concluded that appellant had two percent permanent impairment of the
left lower extremity.2
On January 26, 2021 appellant filed a Form CA-2a alleging that he sustained a recurrence
of the need for medical treatment, commencing December 2, 2020 causally related to his accepted
left knee employment conditions. He asserted that it was difficult to bend, stoop, and climb stairs.
Appellant also noted that since he returned to work he could not seek medical treatment as his case
was closed.
In a development letter dated February 16, 2021, OWCP informed appellant of the
definition of a recurrence of a work-related medical condition for medical treatment and requested
that he submit additional evidence in support of his claim, including a physician’s opinion
supported by a medical explanation as to the relationship between h is current need for medical
treatment and the accepted employment conditions. It provided a questionnaire for his completion,
which posed questions regarding his medical treatment. 3 OWCP afforded appellant 30 days to
respond.
In a March 17, 2021 statement, appellant reported that he had experienced issues with his
left knee since his original injury, which had progressively worsened following the second surgery.

2
By decisions dated February 17, 2010 and Ma rch 6, 2018, OWCP granted appellant schedule award for one
percent permanent impairment of the left lower extremity, and an additional schedule award for two percent permanent
left lower extremity, respectively, for a total three percent permanent impairment of the left lower extremity.
3

OWCP advised appellant that, if a new traumatic work injury or occupational disease (Form CA-2) produced by
the work environment occurred, a new claim might need to be filed. This was true even if the new incident or exposure
involved the same part of the body as previously affected.

2

He noted that recent x-rays showed his knee was arthritic and narrowing as a result of his
arthroscopic surgeries and meniscus tear repair.
Appellant submitted reports from Dr. Benjamin M. Woodhead, an orthopedic surgeon,
dated February 19 and March 10, 2021. In his February 19, 2021 report, Dr. Woodhead noted that
appellant was seen for follow up six weeks’ status postsurgery, and his left knee. With regard to
the left knee, he noted appellant’s medical history, presented examination findings, and diagnosed
left knee patellofemoral syndrome and left knee mild arthritis. Dr. Woodhead indicated that
appellant had some irritation in the knee, but that it was difficult to say if his patellofemoral
symptoms stemmed from his prior surgeries or work-related injuries without having all the records.
In the March 10, 2021 report, he indicated that appellant had anterior knee pain, patellofemoral
symptoms; mild-to-moderate degenerative changes on x-rays; left knee patellofemoral syndrome,
mild arthritis. Dr. Woodhead reiterated that he was unable to answer questions regarding causal
relationship as he did not have all of appellant’s records.
By decision dated April 6, 2021, OWCP denied appellant’s recurrence claim, finding that
the medical evidence of record was insufficient to establish a recurrence of the need for medical
treatment due to a worsening of his accepted employment injuries. It found that there was no
medical evidence to support that the claimed recurrence was due to the accepted work -related
injury of May 5, 2009.
On April 26, 2021 appellant requested reconsideration. He indicated that he was never
notified by OWCP that his case was closed for medical treatment and argued that it should not
have been closed. Appellant requested that his case be reopened, and that the acceptance of his
claim be expanded to include osteoarthritis and patellofemoral injuries and medical treatment for
such conditions. Duplicative copies of evidence previously of record was submitted.4
By decision dated May 5, 2021, OWCP denied appellant’s request for reconsideration. 5
LEGAL PRECEDENT -- ISSUE 1
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment f or the accepted condition or injury when there is no
accompanying work stoppage. 6 An employee has the burden of proof to establish that he or she

4

This included June 2, 2012 and August 13, 2016 magnetic resonance imaging (MRI) scans of the left knee and
Dr. Woodhead’s February 19 and March 10, 2021 reports.
OWCP explained why an “October 26, 2020” medical report from Dr. Louis C. Redix, Jr., an orthopedic surgery
specialist, supported case closure. The Board notes that the medical report from Dr. Redix OWCP referenced is dated
October 26, 2009, not October 26, 2020. In his October 26, 2009 report, Dr. Redix, indicated, “The patient will not
require any additional medical treatment or follow up. The patient is not a surgical candidate nor is he likely to become
one. There is no need for continued medication or physical therapy. No further intervention will be needed or
anticipated.” This report was used in the calculation of appellant’s February 17, 2010 schedule award. See supra
note 2.
5

6

20 C.F.R. § 10.5(y).

3

sustained a recurrence of a medical condition that is causally related to his or her accepted
employment injury without intervening cause. 7
If a claim for recurrence of medical condition is made more than 90 days after release from
medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet his
or her burden. 8 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. 9
Where no such rationale is present, medical evidence is of diminished probative value. 10
ANALYSIS -- ISSUE 1
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 December 2, 2020 causally related to his accepted
May 5, 2009 employment injury.
In a report dated May 17, 2017, Dr. Stanton, appellant’s treating physician, related that a
final medical evaluation was performed at appellant’s request. He noted that appellant had
returned to full-duty work and that future medical care was not anticipated. Following this report,
the other medical evidence received of record prior to appellant’s request for further medical
treatment did not document further medical treatment, but evaluated appellant for schedule award
purposes. The Board therefore finds that appellant’s claim for recurrence of medical condition
was made more than 90 days after release from medical care by Dr. Stanton, and therefore his
claim for recurrence of medical treatment must be supported by medical evidence of a causal
relationship between his current condition and the accepted May 5, 2009 employment injury. 11
In his February 19, 2021 report, Dr. Woodhead noted the medical history of appellant’s
left knee, presented examination findings, and diagnosed left knee patellofemoral syndrome and
left knee mild arthritis. He indicated that appellant had some irritation in the knee, but opined that
it was difficult to say if appellant’s patellofemoral symptoms stemmed from his prior surgeries or
work-related injuries without having all the records. In the March 10, 2021 report, Dr. Woodhead
reiterated that he was unable to answer the causal relationship of appellant’s anterior knee pain,
patellofemoral symptoms; mild-to-moderate degenerative changes on x-rays; left knee
patellofemoral syndrome, mild arthritis as he did not have all of appellant’s records and films. His
reports are of limited probative value as he was unable to offer an opinion on the issue of causal
relationship. The Board has held that a medical report is of no probative value on a given medical
7

M.P., Docket No. 19-0161 (issued August 16, 2019); E.R., Docket No. 18-0202 (issued June 5, 2018).

8

Federal (FECA) Procedural Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4b (June 2013); see also
J.M., Docket No. 09-2041 (issued May 6, 2010).
9

S.P., Docket No. 19-0573 (issued May 6, 2021); A.C., Docket No. 17-0521 (issued April 24, 2018); O.H., Docket
No. 15-0778 (issued June 25, 2015).
10

M.P., supra note 7; Michael Stockert, 39 ECAB 1186 (1988).

11

Supra note 9.

4

matter if it does not contain an opinion on that matter. 12 Thus, these reports are insufficient to
establish appellant’s recurrence claim.
As the medical evidence of record does not contain a rationalized medical opinion
establishing that appellant required further medical care on or after December 2, 2020 causally
related to his accepted employment conditions, the Board finds that appellant has not met his
burden of proof to establish his recurrence claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 13
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.14
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 15 If the request is timely, but fails to meet at least
one of the requirements for reconsideration, OWCP will deny the request for reconsideration
without reopening the case for review on the merits. 16

12

See S.P., Docket No. 19-0573 (issued May 6, 2021); T.H., Docket No. 18-0704 (issued September 6, 2018);
Charles H. Tomaszewski, 39 ECAB 461 (1988).
13

5 U.S.C. § 8128(a); T.T., Docket No. 19-0319 (issued October 26, 2020); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
14

20 C.F.R. § 10.606(b)(3); see V.D., Docket No. 20-0569 (issued December 7, 2020); B.R., Docket No. 19-0372
(issued February 20, 2020); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
15

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
16

Id. at § 10.608(b); see M.E., Docket No. 20-0067 (issued October 15, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant argued that OWCP prematurely closed his case as he was not released from
medical care. However as previously discussed, Dr. Stanton in his May 17, 2017 report released
appellant from medical care. Appellant’s allegations that he was not released from medical care
do not demonstrate that OWCP erroneously applied or interpreted a specific point of law and do
not constitute a valid new legal argument. Consequently, the Board finds that appellant was not
entitled to a review of the merits based on the first or second above -noted requirements under
20 C.F.R. § 10.606(b)(3).17
Appellant also failed to submit relevant and pertinent new evidence in support of his
reconsideration request. He submitted duplicative evidence previously of record. Evidence which
repeats or duplicates evidence already of record has no evidentiary value and does not constitute a
basis for reopening a case.18 Therefore, appellant also failed to satisfy the third requirement under
20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
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 December 2, 2020 causally related to his accepted
May 5, 2009 employment injury. The Board further finds that OWCP properly denied appellant’s
request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

17

D.B., Docket No. 19-1963 (issued July 1, 2020); M.O., Docket No. 19-1677 (issued February 25, 2020); C.B.,
Docket No. 18-1108 (issued January 22, 2019).
18

R.B., Docket No. 21-0035 (issued May 13, 2021); V.L., Docket No. 19-0069 (issued February 10, 2020); A.K.,
Docket No. 19-1210 (issued November 20, 2019); R.S., Docket No. 19-0312 (issued June 18, 2019); Richard Yadron,
57 ECAB 207 (2005); Eugene F. Butler, 36 ECAB 393, 398 (1984).

6

ORDER
IT IS HEREBY ORDERED THAT the April 6 and May 5, 2021 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
ANN ARBOR MEDICAL CENTER,
Ann Arbor, MI, Employer
__________________________________________
Appearances:
Debra Hauser, Esq., for the appellant1
Office of Solicitor, for the Director

)
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)

Docket No. 19-0274
Issued: September 4, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On November 19, 2018 appellant, through counsel, filed a timely appeal from a June 21,
2018 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 19-0274.
On February 22, 2016 appellant, then a 57-year-old occupational therapist, filed a traumatic
injury claim (Form CA-1) alleging that on February 18, 2016, while in the performance of duty,
she slipped on an ice patch and fell on the sidewalk, hitting her head and left eye, and straining her
neck. On June 21, 2016 OWCP denied the claim finding that she was not in the performance of
duty at the time of the alleged incident because she was not on the employing establishment’s
premises when she fell. On February 14, 2017 appellant, through counsel, requested
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.

reconsideration. By decision dated August 25, 2017, OWCP denied modification of its June 21,
2016 decision.
On April 2, 2018 appellant, through counsel, requested reconsideration. In support thereof,
counsel submitted new evidence and made several new arguments regarding the employing
establishment premises, the availability of parking to employees and the general public, the
maintenance and control of the parking lot, and the need to traverse between the lot and the
employing establishment’s premises. The evidence included an overhead map of the area
surrounding the employing establishment premises, and signs related to parking at the employing
establishment.
By decision dated June 21, 2018, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that her request “neither raised
substantive legal questions nor included new and relevant evidence.”
The Board has duly considered the matter and finds that this case is not in posture for a
decision. Section 8124(a) of the Federal Employees’ Compensation Act2 provides that OWCP
shall determine and make a finding of fact and make an award for or against payment of
compensation.3 Its regulations also provide that the decision shall contain findings of fact and a
statement of reasons.4 The reasoning behind OWCP’s evaluation should be clear enough for the
reader to understand the precise defect of the claim.5
OWCP, in its June 21, 2018 decision, did not discharge its responsibility to set forth
findings of fact and a clear statement of reasons explaining the disposition, so that appellant could
understand the basis for the decision, i.e., why she was not entitled to a merit review of its prior
decision despite the submission of additional evidence with her request. It did not discharge its
responsibility to provide appellant a statement explaining the disposition so that she could
understand the basis for the decision, as well as the precise defect and the evidence required to
establish the claim for a traumatic injury. A plain reading of OWCP’s decision does not make
clear whether it had received additional evidence from appellant which it found not relevant or
pertinent, or whether it had not received the additional evidence. If it found the new evidence not
relevant or pertinent it did not provide a basis for its finding.
The Board therefore finds that the case must be remanded for a proper decision which
includes findings of fact and a clear and precise statement regarding appellant’s request for
reconsideration on the denial of her claim. Following this and such further development as OWCP
deems necessary, it shall issue an appropriate decision. Accordingly,

2

5 U.S.C. § 8101 et seq.

3

5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).

4

20 C.F.R. § 10.126. See M.G., Docket No. 18-0699 (issued March 22, 2019); see also M.L., Docket No. 09-0956
(issued April 15, 20101); O.R., 59 ECAB 432 (2008); Teresa A. Ripley, 56 ECAB 528 (2005).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013).

2

IT IS HEREBY ORDERED THAT the June 21, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this order of the Board.
Issued: September 4, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, PROCESSING &
)
DISTRIBUTION CENTER, City of Industry, CA, )
Employer
)
__________________________________________ )
K.W., Appellant

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

Docket No. 07-292
Issued: April 16, 2007

Case Submitted on the Record

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

JURISDICTION
On November 13, 2006 appellant filed a timely appeal from an August 16, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs that denied his request for
reconsideration of his occupational disease claim. Because more than one year has elapsed
between the Office’s most recent merit decision dated May 19, 2005 and the filing of this appeal
the Board lacks jurisdiction to review the merits pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without conducting a merit review.
FACTUAL HISTORY
On August 29, 2003 appellant, then a 53-year-old mail processing clerk, filed an
occupational disease claim stating that he developed bilateral hearing impairment secondary to
occupational noise pollution in the performance of duty. He indicated that he was “partially

deaf” in the right ear prior to beginning work for the employing establishment, but that
occupational noise pollution caused his hearing to deteriorate in both ears. Appellant stated that
he was exposed to noise from “letter sorting machines, flat sorters, overhead tray transport
systems and mules that pull metal cages across a tiled floor which creates a loud constant sound,
also the horns of the mules, the alarms on the machines and forklifts.”
On September 25, 2003 the Office requested additional information concerning
appellant’s claim. In response, appellant provided an October 9, 2003 statement indicating that
he had never engaged in off-the-job musical activities and was requesting additional information
from his physician. He forwarded a statement dated August 22, 2003 listing 19 sources of noise
to which he was exposed on the job.
Appellant also submitted a May 23, 2003 audiogram and an August 8, 2003 report from
Dr. I. Grant Orlin1 who noted that appellant’s history was significant for hearing impairment
prior to his employment with the employing establishment. Dr. Orlin diagnosed “bilateral
hearing impairment secondary to occupational noise pollution” and concluded that appellant’s
condition was “caused by … his exposure to many years of noise pollution in his work
environment.” Appellant also submitted a June 2, 2003 report from Dr. Hassney A. Hamood, a
Board-certified otolaryngologist, who diagnosed hearing loss secondary to noise exposure as
well as tinnitus. Dr. Hamood characterized appellant’s condition as work related. On
February 19, 2004 the Office requested information from the employing establishment
concerning appellant’s noise exposure on the job. On March 8, 2004 Mario A. Gallardo, a
human resources specialist, noted that appellant had a hearing disability when he began work
with the employing establishment and had never complained of loud noise during his time
working there. The employing establishment also submitted light and noise surveys from
June 13, 2002 and July 25, 2003, which indicated that noise levels in all areas were less than 85
decibels.
By decision dated April 13, 2004, the Office denied appellant’s claim on the grounds that
he had not met his burden of proof in establishing that he sustained an injury at the time, place
and in the manner alleged. The Office indicated that he had not established noise exposure as
alleged.
Appellant requested reconsideration on March 27, 2005. In a statement supporting his
request, he again noted the sources of noise exposure at his workplace and asserted that the light
and noise study performed on behalf of the employing establishment may be flawed. Appellant
questioned whether the contractors conducting the study were shown to the noisiest parts of the
building or allowed to perform their testing during the noisiest parts of the day as well as
whether the results were verified by the union. He also expressed concern regarding whether the
contractors could be impartial, as the employing establishment had retained and paid them.
Additionally, appellant submitted an April 22, 2004 form report from Dr. Orlin who diagnosed
bilateral hearing impairment secondary to noise pollution and indicated that appellant’s condition
had not improved since his last examination.
By decision dated May 19, 2005, the Office denied modification of its prior decision.
1

Dr. Orlin’s specialty could not be ascertained from the record.

2

By request postmarked May 15, 2006, appellant requested reconsideration. In support of
his request, he reiterated his previous arguments about his hearing loss and employing
establishment noise studies. Appellant indicated that he did not recall noise studies being
performed during the hours he was present in the building and expressed his opinion that they
were performed in quieter areas or during quieter times. He also expressed his opinion that the
noise auditors in question may have been biased in favor of the employing establishment.
Appellant also submitted a photocopied page from the Office’s procedure manual, section
2.803.5, stating that: “Causal relationship is a separate issue from fact of injury, even though
medical evidence is needed to establish both elements of the claim. A case with a diagnosis
present should never be denied on the basis that fact of injury is not established.”2
By decision dated August 16, 2006, the Office denied appellant’s request for
reconsideration without conducting a merit review on the grounds that he did not present new
and relevant medical evidence or advance new legal arguments, nor did he contend that the
Office had misinterpreted a point of law. The Office noted that appellant’s reference to the
procedure manual pertained to the medical aspect of “fact of injury.” The Office noted that the
procedural provision was not relevant because appellant’s claim had been denied for failure to
establish the factual aspect of “fact of injury.”
LEGAL PRECEDENT
Under section 8128 of the Federal Employees’ Compensation Act, the Office has
discretion to grant a claimant’s request for reconsideration and reopen a case for merit review.
Section 10.606(b)(2) of the implementing federal regulation provides guidance for the Office in
using this discretion.3 The regulation provides that the Office should grant a claimant merit
review when the claimant’s request for reconsideration and all documents in support thereof:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”4
Section 10.608(b) provides that when an application for review of the merits of a claim
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.5 When reviewing an Office decision denying a merit review, the function of the
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.5(a) (October 1992).

3

20 C.F.R. § 10.606(b)(2).

4

Id.

5

20 C.F.R. § 10.608(b).

3

Board is to determine whether the Office properly applied the standards set forth at section
10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in
support thereof.6
ANALYSIS
The Board finds that the Office properly denied appellant’s request for reconsideration
without conducting a merit review of the claim. To require the Office to reopen his claim for a
merit review, appellant must meet one of three requirements set forth in section 10.606(b)(2).
He must show that the Office erroneously applied or interpreted a point of law, advance a new
and relevant legal argument or constitute new and relevant factual or medical evidence. The
Board finds that appellant did not meet any of the above listed requirements.
Appellant made no assertion concerning the Office’s interpretation or application of a
point of law, nor did he advance any new and relevant legal arguments. On reconsideration, he
submitted an undated statement. The statement was largely repetitious regarding types and
causes of exposure.7 Other portions of the statement questioned the employing establishment’s
veracity and the validity of the light and air studies. The Board has held that, while the
reopening of a case may be predicated solely on a legal premise not previously considered, such
reopening for further review of the merits is not required where the legal contention does not
have a reasonable color of validity.8 However, the allegations made by appellant, unsupported
by any evidence lack a reasonable color of validity.
Appellant’s assertion that section 2.803.5 of the Office’s procedures9 requires further
development of his claim is also insufficient to require a merit review of the claim. This
procedural provision, regarding development of medical evidence in a claim does not constitute a
showing that the Office misinterpreted a point of fact, nor is it a relevant new legal argument, as
it pertains to the medical development of a claim. Appellant has not established the factual
element of his claim -- noise exposure as alleged in the workplace. Consequently, the Office’s
procedures, regarding the development of medical issues in a claim are irrelevant. Likewise, the
procedure manual does not constitute new and relevant evidence in accordance with the third
requirement of section 10.606(b)(2), as it addresses an aspect of claim development, namely,
review of medical evidence, which was not applicable at the time the Office adjudicated
appellant’s claim.
Accordingly, the Board finds that appellant failed to meet the requirements of
section 8128 and, therefore, the Office properly denied the request for reconsideration without
conducting a merit review of appellant’s claim.
6

Annette Louise, 54 ECAB 783 (2003).

7

See Eugene F. Butler, 36 ECAB 393, 398 (1984) (where the Board held that material which is repetitious or
duplicative of that already in the case record is of no evidentiary value in establishing a claim and does not constitute a
basis for reopening a case).
8

Vincent Holmes, 53 ECAB 468 (2002).

9

See supra note 2.

4

CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
without conducting a merit review.
ORDER
IT IS HEREBY ORDERED THAT the August 16, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 16, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


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

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)

Appearances:
Lenin V. Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1893
Issued: January 29, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 12, 2013 appellant, through his representative, filed a timely appeal from a
July 31, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed a
heart condition in the performance of duty causally related to factors of his federal employment.
On appeal, counsel contends that the medical evidence is sufficient to establish that
appellant’s job duties, including working in extreme heat, permanently aggravated his heart
condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 26, 2012 appellant, then a 57-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed ischemic heart disease due to factors of
his federal employment, including working in extreme heat while making deliveries. He
submitted a position description and a list of physical requirements. In a narrative statement,
appellant noted that he had worked at the employing establishment for more than 27 years and at
his current station for 25 years. His duties required him to make deliveries in mailrooms which
were not air-conditioned and reached temperatures of over 110 degrees for 45 minutes to an hour
at a time.
In an August 8, 2012 treatment note, Dr. John D. Ramirez, a cardiologist, diagnosed an
anterior lateral wall myocardial infarction on October 11, 2010, status post bare-metal stent on
October 11, 2010, status post ventricular fibrillation and hyperlipidemia. He provided findings
on examination and noted that appellant’s underlying ischemic heart disease and quality of life
would be directly affected by changes in the environment, such as heat and cold, as well as
physical and mental stress. Dr. Ramirez reviewed appellant’s statement of his job duties and
opined that working conditions in extreme heat permanently aggravated his heart disease.
In an October 3, 2012 letter, OWCP requested additional factual and medical information
from appellant. It allotted him 30 days to respond to its inquiries.
Appellant submitted a narrative statement dated November 28, 2012. In an October 17,
2012 report, Dr. Ramirez indicated that appellant reported increased stress in his work
environment. He diagnosed ischemic heart disease and anxiety neurosis.
Appellant submitted a January 7, 2013 narrative statement. He noted that he attended a
softball game in Winter Haven, Florida at the time of his heart attack. Appellant used leave
without pay and donated leave to cover his time away from work for heart surgery.
By decision dated February 1, 2013, OWCP denied appellant’s claim. It found that the
medical evidence failed to establish a causal relationship between his heart condition and the
implicated employment factors.
On February 5, 2013 appellant, through his representative, requested an oral hearing
before an OWCP hearing representative. He submitted documents pertaining to lead and
asbestos work safety.
A hearing was held before an OWCP hearing representative on May 16, 2013.
By decision dated July 31, 2013, OWCP’s hearing representative affirmed the
February 1, 2013 decision.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA and that an injury3 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.6
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that his
federal employment caused or aggravated his heart condition. While appellant submitted a
statement in which he identified the factors of employment that he believed caused the condition,
in order to establish a claim that he sustained an employment-related injury, he must also submit
rationalized medical evidence which explains how his medical conditions were caused or
aggravated by the implicated employment factors.7

2

Id. at §§ 8101-8193.

3

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
4

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

5

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
6

See O.W., supra note 4.

7

See A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C.
Moore, 52 ECAB 132 (2000).

3

Dr. Ramirez provided treatment records that diagnosed ischemic heart disease, anxiety
neurosis, anterior lateral wall myocardial infarction on October 10, 2010, status post bare-metal
stent on October 11, 2010, status post ventricular fibrillation and hyperlipidemia. He indicated
that appellant’s underlying ischemic heart disease and quality of life were directly affected by
changes in the environment such as heat and cold, as well as physical and mental stress.
Dr. Ramirez reviewed appellant’s job duties and opined that working conditions in extreme heat
permanently aggravated his heart disease. He did not provide a full or complete history of
appellant’s myocardial infarction or surgery in October 2010. The 2012 treatment records
provide findings on examination and state generally that appellant’s work duties aggravated his
heart disease. Dr. Ramirez did not provide a rationalized medical opinion explaining how factors
of appellant’s federal employment were competent to aggravate the disease process. Such
generalized statements do not establish causal relationship as they essentially repeat appellant’s
allegation of causal relation and are unsupported by adequate medical rationale how his physical
activity at work contributed to the October 10, 2010 myocardial infarction.8 The Board has held
that the mere fact that appellant’s symptoms arise during a period of employment or produce
symptoms revelatory of an underlying condition does not establish a causal relationship between
appellant’s condition and his employment factors.9 Dr. Ramirez did not address other risk
factors. Lacking thorough medical rationale on the issue of causal relationship, Dr. Ramirez’s
reports are insufficient to establish that appellant sustained an employment-related injury.
Appellant submitted documents pertaining to lead and asbestos work safety in support of
his claim. These documents do not constitute medical evidence as they were not prepared by a
physician.10
Appellant has not submitted sufficient rationalized medical evidence to establish that he
sustained a myocardial infarction causally related to the indicated employment factors. He did
not meet his burden of proof.
On appeal, counsel contends that the medical evidence is sufficient to establish that
appellant’s job duties, including working in extreme heat, permanently aggravated his heart
condition. For the reasons stated above, the Board finds that the medical evidence on causal
relation is of reduced probative value.
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.

8

See K.W., Docket No. 10-98 (issued September 10, 2010).

9

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

See 5 U.S.C. § 8101(2).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
developed a heart condition in the performance of duty causally related to factors of his federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the July 31, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 29, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY VETERANS MEDICAL
CENTER , Tampa, FL, Employer
__________________________________________

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Appearances:
Victor A. Walker, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0756
Issued: September 11, 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, through her representative, filed a timely appeal from a
December 21, 2016 nonmerit decision of the Office of Workers’ Compensation Program (OWCP).
As more than 180 days elapsed from OWCP’s last merit decision, dated August 1, 2016, to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the 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 OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 19, 2016 appellant, then a 52-year-old program support assistant, filed an
occupational disease claim (Form CA-2) alleging that she sustained a work-related aggravation of
depression, anxiety, and insomnia. She asserted that an acting administrative officer threatened
her and requested that she leave the palliative care unit where she was working. Appellant
indicated that she first became aware of her claimed condition and its relationship to her federal
employment on February 1, 2016. She stopped work on February 1, 2016. On the reverse of the
form, appellant’s immediate supervisor indicated that she could not vouch for appellant’s claim
that she was threatened.
In a February 25, 2016 development letter, OWCP requested that appellant submit
additional factual and medical evidence in support of her claim. On February 25, 2016 it also
requested that the employing establishment submit additional information.
Appellant submitted an undated statement in which she discussed the incidents and
conditions at work that she believed caused her to sustain several stress-related conditions. She
asserted that the acting administrative officer subjected her to abuse, bullied her, and did not treat
her with respect. Appellant claimed that on January 28, 2016 the acting administrative officer
improperly met with her without allowing her to have her union representative present at the
meeting. She indicated that management acted improperly by assigning her to the palliative care
unit and noted that she had filed an Equal Employment Opportunity claim as a result of this action.
Appellant asserted that there was confusion about who her first line and second line supervisors
were, and she claimed that management failed to adequately define her work duties and
responsibilities. She alleged that she did not receive performance evaluations in 2015 and 2016.
Appellant submitted several January 2016 e-mails to and from employing establishment
officials which discussed the ending of her work detail.
Appellant submitted reports of attending physicians dated between February and
April 2016, including reports of Dr. Sara Vizcay, an attending Board-certified family practitioner.
Dr. Vizcay diagnosed such conditions as major depressive disorder, general anxiety, acute stress
disorder, adjustment insomnia, and post-traumatic stress disorder secondary to her work
environment.
In response to the February 25, 2016 development letter, a human resources specialist from
the employing establishment indicated that she was submitting a February 1, 2016 report of contact
from the acting administrative officer and a February 23, 2016 incident report from appellant’s
immediate supervisor.3 In the February 1, 2016 report of contact, the acting administrative officer
3
The February 23, 2016 incident report was also signed by a safety officer from the employing establishment on
March 1, 2016.

2

indicated that she began to speak to appellant on February 1, 2016 about her need to vacate an
office due to the termination of her work detail to that office. She noted that appellant kept
interrupting her efforts to speak on this matter and that she advised appellant that she was being
insubordinate and disrespectful. In the February 23, 2016 incident report, appellant’s immediate
supervisor indicated that she had been advised that on February 1, 2016 the acting administrative
officer told appellant to leave her work detail in the palliative care unit because it had ended.
By decision dated August 1, 2016, OWCP denied appellant’s claim for stress-related
conditions because she failed to establish any compensable employment factors. It determined
that appellant failed to establish that the employing establishment engaged in harassment/
discrimination or committed error or abuse when handling administrative or personnel matters.
On July 18, 2016 appellant, through her representative, requested reconsideration of
OWCP’s August 1, 2016 decision. In a July 18, 2016 statement, the representative indicated that
he was submitting e-mails which showed that the employing establishment committed wrongdoing
with respect to authorization of overtime work performed by appellant. He also indicated that he
was submitting additional medical evidence on appellant’s behalf which OWCP should review.
Several e-mails, dated between January and August 2016, memorialize communications
between appellant and employing establishment officials regarding appellant’s request for
authorization of overtime work. In these e-mails, the acting administrative officer advised
appellant that overtime work had to be approved by her supervisor prior to performing such work.
Appellant submitted March 24 and August 15 and 29, 2016 reports of Dr. Walter Afield,
an attending Board-certified psychiatrist. Dr. Afield diagnosed such conditions as major
depressive disorder, generalized anxiety disorder, panic disorder, and post-traumatic stress
disorder. In several reports dated between May 2016 and June 2017, Jennifer Barror-Levine,
Psy.D., a clinical psychologist, discussed her periodic therapy sessions with appellant.
By decision dated December 21, 2017, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence
submitted by appellant was cumulative or irrelevant to the underlying issue of the present case.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.4
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence that: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes

4

5 U.S.C. § 8128(a).

3

relevant and pertinent new evidence not previously considered by OWCP.5 If OWCP determines
that at least one of these requirements is met, it reopens and reviews the case on its merits.6 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will
deny the request for reconsideration without reopening the case for review on the merits.7
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.8 For OWCP decisions issued on or after
August 29, 2011, the date of the application for reconsideration is the “received date” as recorded
in the Integrated Federal Employees’ Compensation System (iFECS).9
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record10 and the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.11
While a reopening of a case may be predicated solely on a legal premise not previously considered,
such reopening is not required where the legal contention does not have a reasonable color of
validity.12
A claimant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation, including a stressrelated condition, was caused or adversely affected by employment factors.13 This burden includes
the submission of a detailed description of the employment factors or conditions which he or she
believes caused or adversely affected a condition for which compensation is claimed, and a
rationalized medical opinion relating the claimed condition to compensable employment factors.14
Administrative and personnel matters, although generally related to the employee’s employment,
5

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

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

7

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

8

20 C.F.R. § 10.607(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). See
also C.B., Docket No. 13-1732 (issued January 28, 2014). For decisions issued before June 1, 1987 there is no
regulatory time limit for when reconsideration requests must be received. For decisions issued from June 1, 1987
through August 28, 2011, the one-year time period begins on the next day after the date of the original decision and
must be mailed within one year of OWCP’s decision for which review is sought.
10

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

11

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

12

John F. Critz, 44 ECAB 788, 794 (1993).

13

Pamela R. Rice, 38 ECAB 838, 841 (1987).

14

Effie O. Morris, 44 ECAB 470, 473-74 (1993). When a claimant has not established any compensable
employment factors, it is not necessary to consider the medical evidence of record. See Margaret S. Krzycki, 43 ECAB
496, 502-03 (1992).

4

are administrative functions of the employer rather than the regular or specially assigned work
duties of the employee and are not covered under FECA.15 However, the Board has held that,
where the evidence establishes error or abuse on the part of the employing establishment in what
would otherwise be an administrative matter, coverage will be afforded.16
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
OWCP issued a decision on August 1, 2016, and it received appellant’s request for
reconsideration on July 18, 2017. Appellant’s request was timely filed as it was received within
one year of OWCP’s August 1, 2016 decision.17
The issue presented on appeal is whether appellant’s July 2017 request for reconsideration
met any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for
further review of the merits of the claim.
The Board finds that appellant’s request for reconsideration did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered by OWCP. The Board also finds that appellant did not submit
pertinent new and relevant evidence which would require reopening of her claim for merit
review.18
Appellant’s representative argued that the employing establishment committed
wrongdoing with respect to authorization of overtime work, and asserted that appellant established
a compensable employment factor in this regard.19 In support of this argument, appellant
submitted several e-mails, dated between January and August 2016, which memorialize
communications between appellant and employing officials establishment regarding her request
for authorization of overtime work. In these e-mails, the acting administrative officer advised
appellant that overtime work had to be approved by her supervisor prior to performing such work.
The Board notes that these e-mails do not contain any finding regarding whether the
employing establishment committed error or abuse in the handling of this matter, nor do the e-mails
independently show such error or abuse. Therefore, these e-mails are not relevant to the underlying
issue of whether appellant established compensable employment factors, including a factor related
to wrongdoing by the employing establishment in the carrying out of the administrative function
15

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
556 (1991).
16

William H. Fortner, 49 ECAB 324 (1998).

17

See supra note 9.

18

See supra note 6.

19
By decision dated August 1, 2016, OWCP denied appellant’s claim for stress-related conditions because she
failed to establish any compensable employment factors.

5

of authorizing overtime work.20 The submission of this evidence does not require reopening of
appellant’s claim for further merit review because the Board has held that the submission of evidence
or argument which does not address the particular issue involved does not constitute a basis for
reopening a case.21
Appellant submitted numerous documents relating to her medical condition, including
reports of an attending physician, Dr. Afield, and reports of a clinical psychologist, Dr. BarrorLevine. As noted, the underlying issue in this case is whether appellant established compensable
employment factors in connection with her claim for stress-related conditions, and this is a factual
matter which must be addressed by relevant factual evidence. Therefore, these documents do not
address the underlying factual aspect of the claim, i.e., whether appellant established compensable
employment factors. The documents do not constitute relevant and pertinent new evidence which
would require reopening appellant’s claim for merit review.22
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

20

See supra notes 15 through 18.

21

See supra note 13.

22

See id.

6

ORDER
IT IS HEREBY ORDERED THAT the December 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 11, 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

7