United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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New York, NY, Employer
)
___________________________________________ )
R.O., Appellant

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

Docket No. 09-222
Issued: July 13, 2009

Case Submitted on the Record

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

JURISDICTION
On October 29, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated October 17, 2008 which denied her traumatic
injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merit issue of the case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained a
left elbow injury on September 9, 2008.
FACTUAL HISTORY
On September 12, 2008 appellant, then a 40-year-old mail handler, filed a claim alleging
that on September 9, 2008 she was struck by a postal container and sustained a left elbow injury.
She stopped work on September 12, 2008. The employing establishment controverted
appellant’s claim noting that she did not notify management of the injury until September 12,
2008 and failed to submit medical evidence to support her claim.

By letter dated September 15, 2008, the Office advised appellant of the factual and
medical evidence needed to establish her claim. It requested that she submit a physician’s
reasoned opinion addressing the relationship of her elbow condition and specific employment
factors.
In an undated statement, appellant noted that on September 9, 2008 she was loading a
“post con” into a mail truck when the container rolled toward her. She reported lifting her left
arm to stop the container. The container weighed between 700 to 800 pounds and struck her left
elbow. Appellant attempted to inform her supervisor of the incident but he was not at his desk.
She finished her tour and advised that, the next day, her elbow was red and sore. On
September 10 and 11, 2008 she was not scheduled to work and treated her elbow conservatively
with ice and an ace bandage. She reported the injury to her supervisor on September 12, 2008
and sought medical treatment that day.
Appellant submitted form reports dated September 12 and 17, 2008 from Dr. Jonathan
Gordon, a Board-certified orthopedic surgeon, who treated appellant for a left elbow injury
which occurred on September 9, 2008. He diagnosed left elbow sprain and recommended
physical therapy. Dr. Gordon found that appellant was totally disabled from September 12 to
November 6, 2008. In a September 18, 2008 narrative report, he noted that appellant presented
with left elbow pain. On physical examination, elbow range of motion was from 0 to 90 degrees,
no varus or valgus instability, no medial or lateral joint line tenderness and the shoulder showed
some range of motion deficits. He diagnosed left elbow tendinitis.
In a decision dated October 17, 2008, the Office denied appellant’s claim finding that the
medical evidence was not sufficient to establish that her left elbow condition was caused by the
September 9, 2008 work incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee

1

5 U.S.C. §§ 8101-8193.

2

Gary J. Watling, 52 ECAB 357 (2001).

2

actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a 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, based on a complete factual and medical
background, supporting such a causal relationship.4
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.5 The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.6
ANALYSIS
Appellant alleged that she sustained a left elbow injury when she was struck by a postal
container on September 9, 2008. The Board notes that the evidence supports that the incident
occurred on September 9, 2008 as alleged. The Board finds, however, that the medical evidence
is insufficient to establish that appellant sustained a left elbow injury causally related to the
September 9, 2008 work incident.
On September 15, 2008 the Office advised appellant of the medical evidence needed to
establish her claim. Appellant did not submit a rationalized medical report from an attending
physician addressing how the September 9, 2008 work incident caused or contributed to her
claimed condition.
In treatment records dated September 12 and 17, 2008, Dr. Gordon diagnosed left elbow
sprain and found appellant was totally disabled from September 12 to November 6, 2008. He
advised that appellant presented with left elbow pain. Dr. Gordon noted minimal findings upon
physical examination of the left elbow and diagnosed left elbow tendinitis. However, these
reports are insufficient to establish the claim as he did not provide a history of injury or

3

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

4

Id.

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

3

specifically explain how the incident at work caused her left elbow condition.7 Dr. Gordon did
not describe the September 9, 2008 incident of a postal container striking appellant’s left elbow
or explain how this would cause or contribute to the diagnosed tendinitis.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.8 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and the Office
therefore properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a left elbow injury causally related to her September 9, 2008 employment incident.9
ORDER
IT IS HEREBY ORDERED THAT the October 17, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 13, 2009
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

7

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (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).
8

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

9

With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

4


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

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

Docket No. 07-2194
Issued: March 3, 2008

Case Submitted on the Record

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

JURISDICTION
On August 30, 2007 appellant filed a timely appeal from a July 18, 2007 decision of the
Office of Workers’ Compensation Programs 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 his
claim.
ISSUE
The issue is whether appellant established that he sustained an occupational disease in the
performance of duty.
FACTUAL HISTORY
On May 12, 2007 appellant, then a 43-year-old mail processor, filed an occupational
disease claim alleging that he sustained a right wrist condition as a result of his employment due
to repetitive motion and constant use of his wrist. Appellant first realized his condition was
caused by his employment on March 23, 2007.

On May 22, 2007 the Office requested further information from appellant. In response,
he submitted additional documents including range of motion charts. A March 23, 2007 x-ray
report revealed a normal right wrist. In a March 23, 2007 chart note, Dr. Robert Coats, an
orthopedic surgeon, diagnosed right de Quervain tenosynovitis. He noted that appellant had a
history of severe pain in his right wrist for two weeks with radial and ulnar deviation of the wrist.
In a May 2, 2007 chart note, Dr. Coats recommended light duty at work for six weeks.
On July 18, 2007 the Office denied appellant’s claim on the grounds that the evidence did
not establish that the claimed condition resulted from the employment activities.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.1
The medical opinion needed to establish an occupational disease claim 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.2
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 condition and employment.
Neither the fact that the condition became apparent during a period of employment, nor
employee’s belief that the condition was caused by or aggravated by employment conditions is
sufficient to establish causal relationship.3
ANALYSIS
Appellant alleged that his right wrist condition, de Quervain tenosynovitis is causally
related to his federal employment, specifically the repetitive use of his wrist in his work as a mail
processor. The Office did not contest that appellant uses his wrists to handle mail. The issue
therefore is whether the medical evidence is sufficient to establish that appellant’s diagnosed
de Quervain tenosynovitis is causally related to his employment.
The medical evidence submitted does not offer any opinion as to the cause of appellant’s
condition. Dr. Coats diagnosed de Quervain tenosynovitis but did not opine as to what caused
this condition. He did not provide any explanation as to how appellant’s job duties would cause
or contribute to the diagnosed right wrist tenosynovitis. Medical evidence which does not offer
1

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB ___ Docket No. 05-715 (issued October 6, 2005).

2

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

3

Alberta S. Williamson, 47 ECAB 569 (1996).

2

any opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.4
While appellant states that he believes his right wrist condition is related to his
employment, the mere belief that the disease or condition was caused by employment factors is
insufficient to establish a causal relationship between the two.5
The evidence of record is not sufficient to meet appellant’s burden of proof to establish
that his de Quervain tenosynovitis is causally related to his federal employment. The Board
finds that appellant has submitted insufficient medical evidence to establish that he sustained a
condition in the performance of duty.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an occupational disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 18, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4

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

5

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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Appearances:
Appellant, pro se
No Appearance, for the Director

Docket No. 07-2266
Issued: November 21, 2008

Oral Argument September 4, 2008

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

JURISDICTION
On September 5, 2007 appellant timely appealed the August 20, 2007 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of
$33,003.07 during the period April 18, 2004 to March 18, 2006; and (2) whether the Office
properly evaluated appellant’s July 14, 2006 filing as a claim for recurrence of disability.
FACTUAL HISTORY
This case has previously been before the Board. Appellant is a 60-year-old former letter
carrier with an accepted claim for contusions of the right hand and lumbar spine.1 His injury
1

Appellant has a history of lumbar degenerative disc disease and has undergone several surgical procedures, most
recently on January 5, 2005.

occurred on July 16, 1984 when he fell while attempting to flee a pack of dogs he encountered
on his mail route. The Office denied modification of a September 29, 1994 wage-earning
capacity determination or to refer appellant for vocational rehabilitation services. By decision
dated December 4, 2003, the Board affirmed part of the Office’s March 11, 2003 decision and
set aside the remainder of the decision.2 The Board affirmed the Office’s denial of modification
of the September 29, 1994 wage-earning capacity determination; however, it set aside the
Office’s decision to deny appellant vocational rehabilitation services. The facts of the case, as
set forth in the Board’s prior decision, are incorporated herein by reference.
On remand, the Office referred appellant’s case to a rehabilitation specialist in
February 2004. On April 8, 2004 appellant signed a vocational rehabilitation plan and
subsequently participated in vocational testing and underwent a functional capacity evaluation.
The employing establishment did not extend an offer of reemployment at the time; therefore, the
Office proposed to place appellant with a new employer. Appellant had been receiving wageloss compensation based on the September 29, 1994 wage-earning capacity determination.
However, after consultations between the claims examiner and the rehabilitation specialists, it
was decided that while appellant participated in vocational rehabilitation his compensation
would be adjusted to temporary total disability status. This change became effective
April 18, 2004.
In July 2004 appellant relocated from Virginia to Jacksonville, Florida. A formal job
placement plan had yet to be developed by the time he moved to Florida. In the fall of 2004,
appellant enrolled at Florida A&M University in order to qualify to become a public school
teacher. He accumulated a total of 18 credit hours during the fall 2004 and spring 2005
semesters. Appellant did not work during this time period.3
Effective March 19, 2006 the Office resumed payment of wage-loss compensation based
on the September 29, 1994 wage-earning capacity determination.4 Additionally, it advised
appellant it would continue with vocational rehabilitation efforts. Appellant voiced his
disagreement with the Office’s decision to reduce his wage-loss compensation. The Office
explained during a June 6, 2006 telephone conversation that because of the prior wage-earning
capacity determination, he was not entitled to wage-loss compensation for temporary total
disability even though he was receiving vocational rehabilitation services.

2

Docket No. 03-1105 (issued December 4, 2003).

3

The rehabilitation services appellant had been receiving in Virginia were officially terminated on
September 22, 2004. It was anticipated that appellant’s case file would be transferred to the Jacksonville, Florida
district Office and rehabilitation services would continue uninterrupted. However, almost a year lapsed before his
case file was transferred to the Jacksonville Office. In the interim, appellant secured funding for his vocational
rehabilitation effort from the Florida Department of Education, Division of Vocational Rehabilitation. He
eventually returned home to Virginia in June 2006 and his case record was transferred back to the national Office a
few months later.
4

Since the prior appeal, the Office denied modification of the loss of wage-earning capacity (LWEC)
determination on September 23, 2004 and July 19, 2005.

2

On July 14, 2006 appellant filed a notice of recurrence of disability commencing
September 13, 1991.5 Appellant also filed a claim for compensation (Form CA-7) for lost wages
for the period 1991 to 2006.
Dr. Christopher S. Rumana, a Board-certified neurosurgeon, previously operated on
appellant in January 2005.6 In a report dated June 26, 2006, he stated that he first saw appellant
on October 28, 2004 for evaluation and treatment of back and left leg pain. Appellant reported a
history of back and leg pain of many years duration that began after he was attacked by several
dogs in 1984. Dr. Rumana also noted that appellant had undergone two previous back surgeries,
in addition to the multilevel lumbar decompression performed on January 5, 2005. Following
the most recent surgery, appellant reported improvement of his symptoms with some occasional
mild left leg pain. Dr. Rumana last saw appellant on February 10, 2005. As to appellant’s
ability to work, Dr. Rumana indicated appellant could work an 8-hour day with a 25-pound
lifting restriction. The lifting restriction was necessary due to appellant’s “history of injury,
multiple lumbar surgeries and the recurrent nature of his back problem.”
On August 4, 2006 the Office advised appellant of its preliminary finding that he
received an overpayment of $33,003.07 during the period April 18, 2004 to March 18, 2006. It
explained that the overpayment arose because he was paid wage-loss compensation for
temporary total disability rather than based on the previously established wage-earning capacity.
The Office advised appellant that he was not at fault in creating the overpayment.
Appellant subsequently requested a hearing. He also submitted an overpayment recovery
questionnaire along with certain financial records, including a copy of his 2005 Federal tax
return.
In a decision dated February 15, 2007, the Office denied appellant’s July 14, 2006
recurrence claim. It found the evidence insufficient to establish that appellant’s current medical
condition was due to the accepted work injury. Appellant later requested an oral hearing.
A hearing was held on May 10, 2007, which addressed both the overpayment issue and
appellant’s claimed recurrence of disability beginning September 13, 1991. Appellant also
challenged the Office’s continued reliance on the September 29, 1994 wage-earning capacity
determination. However, the hearing representative advised that the propriety of the wageearning capacity determination was not before her, particularly in light of the Board’s decision
affirming that determination.
By decision dated August 20, 2007, the hearing representative affirmed the preliminary
finding that appellant received an overpayment in the amount of $33,003.07. Appellant was not
at fault in creating the overpayment; however, the hearing representative denied waiver of
recovery of the overpayment. She did compromise the principal amount by more than
$20,000.00. The outstanding principal was set at $13,300.00 and the hearing representative
5

Appellant included a copy of an earlier recurrence claim dated December 26, 1991, which he had filed with the
Department of the Navy.
6

Dr. Rumana performed a January 5, 2005 lumbar decompression at L3-4 and L4-5.

3

ordered that $200.00 be withheld every 28 days from appellant’s continuing compensation
payments. As to the July 14, 2006 recurrence claim, the hearing representative found that the
medical evidence did not establish an employment-related recurrence of disability on or after
September 13, 1991. The hearing representative also reiterated in her decision that she would
not entertain appellant’s arguments regarding the propriety of the Office’s September 29, 1994
wage-earning capacity determination.
LEGAL PRECEDENT -- ISSUE 1
An individual undergoing an Office-approved rehabilitation program is entitled to receive
compensation at the rate for total disability, less any earnings received from employment which
is not undertaken as a specific part of the rehabilitation program.7
ANALYSIS -- ISSUE 1
The Board finds that the Office did not establish fact of overpayment. Appellant’s case
was referred for vocational rehabilitation services in February 2004 and the Office assigned a
rehabilitation counselor on March 5, 2004. His initial meeting with his rehabilitation counselor
occurred on March 8, 2004. A formal rehabilitation plan was executed and, in April 2004, he
underwent vocational testing as well as a functional capacity evaluation in accordance with that
plan. He fully participated in the vocational rehabilitation process. Therefore, the Office
properly adjusted his wage-loss compensation to temporary total disability status effective
April 18, 2004.8 The Federal (FECA) Procedure Manual is specific as to how a vocational
rehabilitation participant is to be compensated. The Office has not identified a basis to reduce
appellant’s compensation for temporary total disability during his full-time participation in
vocational rehabilitation services.9 Accordingly, the Board finds that the Office failed to
establish that appellant was overpaid $33,003.07 during the period April 18, 2004 to
March 18, 2006.
LEGAL PRECEDENT -- ISSUE 2
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.10 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.11 Once the wage-earning capacity of an injured
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.8 (December 1993).
8

There is no evidence that appellant worked during the period April 18, 2004 to March 18, 2006.

9

While there was clearly a lapse in vocational rehabilitation services appellant should have received from the
Office following his relocation to Florida, this was not appellant’s fault. The Board further notes that the Office did
not inform appellant that his vocational rehabilitation status had been changed in any respect following his July 2004
relocation to Florida.
10

5 U.S.C. § 8115(a) (2000); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB
680 (1991).
11

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

4

employee is determined, a modification of such determination is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was erroneous.12
The burden of proof is on the party seeking modification of the wage-earning capacity
determination.13
The Federal (FECA) Procedure Manual provides that if a formal loss of wage-earning
capacity decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss.14 The procedure manual further indicates that
under these circumstances, “the [claims examiner] will need to evaluate the request according to
the customary criteria for modifying a formal [loss of wage-earning capacity] decision.”15
ANALYSIS -- ISSUE 2
Both the Federal (FECA) Procedure Manual and Board precedent provide that when a
wage-earning capacity determination has been issued and appellant submits evidence with
respect to disability for work, the Office must evaluate the evidence to determine if modification
of the Office’s wage-earning capacity decision is warranted.16 Appellant filed a claim for
compensation on July 14, 2006 and he specifically requested that the hearing representative
address his concerns regarding the September 29, 1994 wage-earning capacity determination.
However, she declined based on the mistaken premise that the Board’s prior review of this issue
precluded further consideration by the Office. The Board finds that the Office should have
treated appellant’s July 14, 2006 recurrence claim as a request for modification of the
September 29, 1994 wage-earning capacity determination.
CONCLUSION
The Office failed to establish that appellant received an overpayment of $33,003.07 for
the period April 18, 2004 to March 18, 2006. The Board further finds that appellant’s July 14,
2006 recurrence claim raised the issue of whether modification of the Office’s September 29,
1994 wage-earning capacity determination was warranted. As the Office did not properly
adjudicate this issue, the case will be remanded for an appropriate decision.

12

Tamra McCauley, 51 ECAB 375, 377 (2000).

13

Id.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment, Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
15

Id.

16

Katherine T. Kreger, supra note 11; Sharon C. Clement, 55 ECAB 552, 555-56 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the August 20, 2007 decision of the Office of
Workers’ Compensation Programs is reversed with respect to the issue of overpayment. As to
the adjudication of the July 14, 2006 recurrence claim, that aspect of the hearing representative’s
decision is set aside, and the case is remanded for further action consistent with this decision.
Issued: November 21, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
High Point, NC, Employer
__________________________________________

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

Docket No. 12-92
Issued: May 22, 2012

Case Submitted on the Record

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

JURISDICTION
On October 24, 2011 appellant filed a timely appeal from an October 12, 2011 nonmerit
decision and a May 27, 2011 merit decision of the Office of Workers’ Compensation Programs
(OWCP) denying her request for reconsideration. 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 established that she sustained an injury in the
performance of duty; and (2) whether OWCP properly denied her request to reopen her case for
further review of the merits under section 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 15, 2011 appellant, then a 46-year-old clerk, filed an occupational disease
claim alleging that she sustained right shoulder pain, stress and depression due to employment
factors. She became aware of her condition and its relationship to her employment on
February 12, 2011 and attributed her condition to boxing mail, putting up parcels and performing
window duties from 6:00 a.m. until 1:00 p.m. without a break. Appellant noted that she had
already filed a claim under File No. xxxxxx241. She stopped work on February 12, 2011.
On March 18, 2011 the employing establishment controverted appellant’s claim. It
related that she left work on February 12, 2011 after a manager tried to discuss her work
performance. Appellant advised her manager that she was going to use sick leave and became
loud and belligerent so the manager advised her that medical documentation would be required.2
The employing establishment noted that she had a previously denied right shoulder claim
assigned File No. xxxxxx465 and an emotional condition claim assigned File No. xxxxxx949. It
maintained that appellant was trying to circumnavigate the system by filing additional forms for
previously denied claims.
By letter dated March 25, 2011, OWCP requested that appellant provide a detailed
description of the work factors that she believed caused or contributed to her condition, including
any relevant dates, locations, events or duties. It further requested information regarding any
grievances and sources of outside stress. OWCP additionally asked that appellant submit
rationalized medical evidence from her attending physician explaining any relationship between
a diagnosed condition and her employment.
In a report dated March 10, 2011, received by OWCP on April 19, 2011, Dr. Vincent E.
Paul, a Board-certified orthopedic surgeon, discussed his prior treatment of appellant for a
work-related shoulder condition which required surgery. He noted that she related that she had
again injured her shoulder on February 12, 2011 “boxing mail and parcels at window service”
without a break or lunch. Dr. Paul diagnosed a loose right shoulder capsule and found that
appellant should be off work February 12 to May 12, 2011. In a duty status report of the same
date, he found that she could not work.3
On April 6, 2011 Dr. Justin Chandler, an orthopedic surgeon, noted that appellant had a
history of a work injury to her shoulder in 2001 and that she had been off work since
February 2011. In an April 29, 2011 progress report, he related that she “initially had an injury
back in 2001 at work and subsequently had reinjury at work in February of this year on
February 12, 2011. Appellant had a long period of boxing and overhead work at the [employing
establishment], which exacerbated her right shoulder and since that time, this has not improved.”
Dr. Chandler diagnosed a “high grade bursal sided rotator cuff tear with possible small full
thickness tear” and recommended surgery.
2

In a statement dated March 17, 2011, appellant’s supervisor related that he requested a meeting to discuss
appellant’s performance after her lunch on February 12, 2011. Appellant requested sick leave and became angry.
3

In April 28 and July 14, 2011 duty status reports, Dr. Paul found that appellant was unable to work pending
surgery.

2

On May 2, 2011 appellant filed a claim for compensation beginning February 12, 2011.
On May 16, 2011 OWCP again informed her that the evidence was insufficient to establish her
claim and referred to its March 25, 2011 letter requesting additional information.
By decision dated May 27, 2011, OWCP denied appellant’s claim after finding that she
did not establish fact of injury. It found that she failed to submit supporting factual information,
including the date and place of injury as requested.
On August 24, 2011 appellant requested reconsideration. She related that she had
surgery and was not working or receiving compensation. Appellant noted that she had two
different claim numbers and asked that OWCP review both File No. xxxxx241 and the current
file. She asserted that there should only be one file number.
By decision dated October 12, 2011, OWCP denied appellant’s request for
reconsideration after finding that she had not submitted evidence or raised an argument sufficient
to warrant reopening her case for further merit review. It determined that she had not submitted
any factual information relevant to the issue of whether her injury occurred as alleged. OWCP
advised appellant that it was aware of her assigned File No. xxxxxx241, accepted for right
shoulder sprain and arthritis with a date of injury of September 1, 2001, but found that the other
file was not relevant to establishing any injury in the current case.4
On appeal, appellant argued that OWCP does not know which file number her claim
should be assigned.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA5 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition, for which compensation is claimed are causally related to the
employment injury. 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
ANALYSIS -- ISSUE 1
Appellant filed an occupational disease claim on March 15, 2011 contending that she
experienced right shoulder pain, stress and depression causally related to her employment. She
attributed her condition to boxing mail, putting up parcels and working at the window from 6:00
4

In File No. xxxxxx241, OWCP accepted that appellant sustained right shoulder strain and localized
osteoarthritis due to a September 1, 2001 work injury. Appellant underwent multiple shoulder surgeries. In
numerous decisions in 2001, OWCP denied her claim requesting compensation beginning February 12, 2011 and for
various dates thereafter. It noted that it appeared that appellant was claiming a new injury on February 12, 2011.
5

Supra note 1.

6

Calvin E. King, 51 ECAB 394 (2000); Caroline Thomas, 51 ECAB 451 (2000).

3

a.m. until 1:00 p.m. with no break or lunch. Appellant indicated that she became aware of her
condition on February 12, 2011.
In a March 25, 2011 letter, OWCP requested that appellant provide additional factual
information supporting her claim, including a description of the work factors she believed caused
her condition supported by dates and locations and any sources of stress. Appellant did not,
however, respond with any factual evidence. After she filed a claim for disability compensation
beginning February 12, 2011, OWCP again notified her that the evidence was insufficient to
establish her claim and referred her to its March 25, 2011 letter. It is appellant’s burden of proof
to submit a detailed description of the employment factors or conditions that she believes caused
or adversely affected the condition or conditions for which compensation is claimed.7 She has
not submitted sufficient evidence for OWCP to determine whether she is claiming an
occupational disease or traumatic injury8 or provided a comprehensive description of the work
factors and the conditions claimed as a result of any identified work factors.
Appellant submitted medical evidence from Dr. Paul, who in a report dated March 10,
2011 noted that she experienced increased shoulder pain after working on February 12, 2011
boxing mail and parcels without a break. On April 6, 2011 Dr. Chandler related that she had a
reinjury to her right shoulder on February 12, 2011 after performing overhead work and boxing.
Appellant, however, has not submitted factual evidence sufficient to establish that she actually
experienced the claimed work factors. Consequently, the medical reports are based on a history
of injury that has not been factually established and thus are of diminished probative value.9
On appeal, appellant argues that OWCP does not know which file number her claim
should be assigned. The issue, however, is whether she has submitted sufficient evidence to
show that she experienced the work factors alleged to have resulted in her condition. Appellant
failed to provide the required factual evidence and thus failed to meet her burden of proof.10
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,11
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously

7

Penelope C. Owens, 54 ECAB 684 (2003).

8

A traumatic injury is defined as a “condition of the body caused by a specific event or incident or series of
events or incidents, within a single workday or shift.” 20 C.F.R. § 10.5(ee). An occupational disease is defined 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).
9

See Joseph M. Popp, 48 ECAB 624 (1997).

10

See Barbara R. Middleton, 56 ECAB 634 (2005); Paul Foster, 56 ECAB 208 (2004).

11

5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award
for or against payment of compensation at anytime on her own motion or on application.”

4

considered by OWCP.12 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.13 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.14
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.15 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.16 While the 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.17
ANALYSIS -- ISSUE 2
On August 24, 2011 appellant requested reconsideration.
In her request for
reconsideration, she did not show that OWCP erroneously applied or interpreted a specific point
of law. Appellant did not identify a specific point of law or show that it was erroneously applied
or interpreted, nor did she submit pertinent new and relevant evidence not previously submitted.
Moreover, she did not advance a new and relevant legal argument. In support of her
reconsideration request and on appeal, appellant argued that she had two separate claim numbers
which should both be reviewed and combined.18 Her argument is not relevant to the underlying
issue in the case at hand, which is whether she submitted sufficient factual evidence to establish
that occurrence of the work factors identified as causing her condition. Evidence or argument
that does not address the particular issue involved does not warrant reopening a case for merit
review.19 The Board accordingly finds that she did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2).
12

20 C.F.R. § 10.606(b)(2).

13

Id. at § 10.607(a).

14

Id. at § 10.608(b).

15

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

16

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).
17

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

18

OWCP procedures provide that cases should be doubled when a new injury is reported for an employee who
previously filed an injury claim for a similar condition and further indicates that the cases should be doubled as soon
as the need to do so becomes apparent . Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and
Management, Chapter 2.400.8(a) (February 2000). In this case, however, appellant has not submitted sufficient
evidence to establish the factual aspect of her claim and has not described the factors of employment to which she
attributed her right shoulder pain, stress and depression. Consequently, OWCP does not have sufficient information
to determine whether her claims should be combined.
19

J.P., 58 ECAB 289 (2007); Freddie Mosley, 54 ECAB 255 (2002).

5

CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty. The Board further finds that OWCP properly denied appellant’s request to
reopen her case for further review of the merits under section 8128.
ORDER
IT IS HEREBY ORDERED THAT the October 12 and May 27, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 22, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO, FIREARMS &
EXPLOSIVES, Detroit, MI, Employer
__________________________________________

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

Docket No. 19-1979
Issued: August 12, 2020

Case Submitted on the Record

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

JURISDICTION
On September 30, 2019 appellant filed a timely appeal from an August 22, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated August 16, 2018, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 17, 2018 appellant, then a 40-year-old criminal investigator (special agent), filed
a traumatic injury claim (Form CA-1) alleging that on May 9, 2018 he sustained soreness and
aching of the upper back when his vehicle was struck from behind while in the performance of
duty.
In a May 24, 2018 development letter, OWCP informed appellant that additional medical
evidence was needed to establish his claim. It advised him of the type of factual and medical
evidence needed, including medical evidence from a qualified physician which provided a
diagnosis and a rationalized explanation as to how the employment incident caused the diagnosed
condition. OWCP afforded appellant 30 days to submit the necessary evidence.
In progress notes dated May 17, 2018, Dr. Norman J. Kakos, a Board-certified internist,
noted appellant’s complaints of pain between the shoulder blades. Appellant told Dr. Kakos that
he had been involved in a motor vehicle accident (MVA) in which he was rear-ended. On physical
examination of the spine, Dr. Kakos observed no tenderness to palpation. He assessed appellant
had back pain after an MVA.
A diagnostic report dated May 21, 2018 noted results of appellant’s thoracic spine x-rays
taken on that date, which demonstrated unremarkable vertebral body height and alignment with no
definite bony destructive change, paraspinal mass, or acute fracture site. A diagnostic report of
the same date noted that x-rays of appellant’s cervical spine demonstrated a slight contour
deformity of the superior endplate at C6, which was of questionable significance, with otherwise
unremarkable results.
By decision dated June 27, 2018, OWCP denied the claim finding that appellant had not
established the medical component of fact of injury. While it accepted that the employment
incident on May 9, 2018 occurred as alleged, it found that no valid diagnosis had been established
in connection with the incident. OWCP concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA.
A cervical spine x-ray report dated May 17, 2018 demonstrated questionable findings in
relation to the spinous process at C5, with no other significant findings. An x-ray report of
appellant’s lumbar spine of even date demonstrated nonrib-bearing lumbar-type vertebral bodies
with probable transitional L5; unremarkable vertebral body height and alignment; relatively wellpreserved disc spaces with probable mild narrowing at L4-5; and no definite spondylosis, bony
destructive change, or acute fracture site.
On July 5, 2018 Dr. Kakos examined appellant for a complaint of neck pain. He noted that
appellant had no exacerbation of a preexisting condition due to the motor vehicle incident.
Physical examination of the musculoskeletal system was negative for symptoms. Dr. Kakos
diagnosed neck pain and hematuria following an MVA.
In a letter dated July 9, 2018, Dr. Kakos noted that appellant had been seen in his office on
May 17, 2018 for an MVA that took place on May 9, 2018, after which appellant complained of

2

neck and back pain. X-rays were negative and there was no exacerbation of preexisting medical
conditions due to the incident. Dr. Kakos diagnosed musculoskeletal pain.
On August 13, 2018 appellant requested reconsideration of OWCP’s June 27, 2018
decision.
By decision dated August 16, 2018, OWCP denied modification finding that appellant had
not submitted evidence containing a valid medical diagnosis in connection with the incident of
May 9, 2018.
On September 25, 2018 appellant requested reconsideration. With his request, OWCP
received a statement from a supervisor dated September 21, 2018, which verified that appellant
was in the performance of duty on May 9, 2018 when he was involved in an MVA. It also received
a police report dated May 9, 2018. Appellant also resubmitted Dr. Kakos’ letter of July 9, 2018.
By decision dated October 11, 2018, OWCP denied appellant’s request for reconsideration
of the merits of appellant’s claim.
On November 28, 2018 appellant requested reconsideration.
In a letter dated February 26, 2019, OWCP informed appellant that reconsideration was
not an appeal option from the October 11, 2018 nonmerit decision. It further informed him that,
even if he had indicated that he was requesting reconsideration of the June 27 or August 16, 2018
decisions, he had not submitted any new evidence or argument requiring a merit review of his case,
and that OWCP would have once again refused to review the prior decisions. OWCP explained
that no further action would be taken on appellant’s request and that, if he wished to request
reconsideration of a merit decision in his case, he must make such a request in writing within one
year of the date of the decision for which reconsideration is requested.
Appellant submitted an unsigned note dated May 17, 2017 containing information about
his visit with Dr. Kakos on that date, for an admitting diagnosis of MVA, as well as x-ray orders
dated May 21, 2018, which contained the same diagnosis. He resubmitted the thoracic and cervical
x-rays of May 17 and 21, 2018, as well as Dr. Kakos’ letter of July 9, 2018.
On May 30, 2019 appellant requested reconsideration of OWCP’s August 16, 2018
decision.
By decision dated August 22, 2019, OWCP denied appellant’s request for reconsideration
of the merits of the claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP has discretionary authority in this regard and has imposed certain
2
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his] own motion or on application.” 5 U.S.C. § 8128(a).

3

limitations in exercising its authority.3 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.4
A timely request for reconsideration, including all supporting documents, must set forth arguments
and contain evidence that either: (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.5
When a timely request for reconsideration does not meet at least one of the above-noted
requirements, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.6
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Although appellant timely requested reconsideration, he neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, he did not
advance relevant legal arguments not previously considered by OWCP. Accordingly, the Board
finds that appellant is not entitled to a review of the merits based on either the first or second
requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not fulfill the third requirement under 20 C.F.R.
§ 10.606(b)(3) because he did not submit relevant and pertinent new evidence not previously
considered by OWCP. OWCP previously denied his claim because the medical evidence of record
did not include a definitive diagnosis in connection with the accepted incident of May 9, 2018. In
support of his reconsideration request, appellant submitted an unsigned note dated May 17, 2017
containing information about his visit with Dr. Kakos, as well as x-ray orders dated May 21, 2018.
He also resubmitted thoracic and cervical x-ray reports from May 17 and 21, 2018, as well as
Dr. Kakos’ letter of July 9, 2018. The Board finds that the unsigned note dated May 17, 2018 did
not contain a valid diagnoses of a condition, nor did the x-ray orders dated May 21, 2018.
Although evidence submitted on reconsideration need not carry appellant’s burden entirely to
warrant reopening the claim for merit review, the new evidence must at least be relevant and
pertinent to the issue(s) upon which the claim was denied.7 While this evidence is new, it does not
address the relevant issues regarding the claim because it does not provide a definitive medical

3

20 C.F.R. § 10.607.

4

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
5

Id. at § 10.606(b)(3).

6

Id. at § 10.608(a), (b).

7

R.R., Docket No. 18-1562 (issued February 22, 2019).

4

diagnosis.8 The thoracic and cervical x-rays of May 17 and 21, 2018, as well as Dr. Kakos’ letter
of July 9, 2018, were before OWCP at the time of its August 16, 2018 decision and were reviewed
by OWCP in that decision. The Board has held that evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.9
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.10
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of the claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 12, 2020
Washington, DC

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

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

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

8

Id.

9

See J.B., Docket No. 18-1531 (issued April 11, 2019); D.K., 59 ECAB 141 (2007).

10
See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E.,
58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

5


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

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

Docket No. 17-0518
Issued: July 21, 2017

Case Submitted on the Record

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

JURISDICTION
On January 9, 2017 appellant filed a timely appeal from an October 26, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated May 17, 2016 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
OWCP accepted that on January 19, 2015 appellant, then a 56-year-old automotive
technician, sustained a sacroiliac ligament sprain when a postal vehicle he was testing was struck
1

5 U.S.C. § 8101 et seq.

from behind by another vehicle. Immediately following the accident he was transported by
ambulance to a hospital emergency room. Paramedics described the accident in a January 19,
2015 report. At the hospital, Dr. Andrew Abrass, an attending physician specializing in
emergency medicine, diagnosed neck and lumbar sprain/strains due to the motor vehicle
accident. A cervical computed tomography scan and lumbar x-rays demonstrated no evidence of
fracture. Dr. Abrass discharged appellant to home that day. Appellant stopped work on the date
of injury.
Appellant submitted a January 19, 2015 narrative statement describing the accident. His
supervisor confirmed the account in a January 20, 2015 accident report.
In a January 22, 2015 report, Dr. Milton D. Chan, an attending osteopathic physician
specializing in internal medicine, held appellant off work through February 4, 2015.
Beginning February 3, 2015, appellant was followed by Dr. Michael Hebrard, an
attending Board-certified physiatrist. Dr. Hebrard submitted reports dated February 3, 6, and 27
and March 18, 2015 diagnosing cervical radiculitis, cervical radiculopathy, an S1 joint strain,
sprains and strains of the sacroiliac ligament, sciatica, and brachial plexopathy. He held
appellant off work.
OWCP paid appellant compensation for temporary total disability from March 6, 2015 to
until he returned to full-time limited-duty work on March 30, 2015.2 On March 26, 2015
Dr. Hebrard released appellant to modified duty as of March 30, 2015. On May 28, 2015 he held
appellant off work from May 28 to 31, 2015.
On June 5, 2015 appellant filed claims for compensation (Forms CA-7) for May 28 and
29, 2015, and the period June 17 through July 15, 2015. In June 10 and 26, 2015 letters, OWCP
notified him of the additional evidence needed to establish his claims for compensation,
including a report from his attending physician explaining how and why the accepted sacroiliac
sprain would disable him for work for the dates claimed.
On June 17, 2015 Dr. Hebrard diagnosed sprains and strains of the sacroiliac ligament
and cervical radiculopathy. He held appellant off work from June 17 to July 15, 2015. A
June 18, 2015 lumbar magnetic resonance imaging (MRI) scan showed L4-5 left facet
arthropathy, L4-5 disc degeneration, and mild sacroiliac joint spurring. June 22, 2015 lumbar
x-rays showed a grade 1 anterolisthesis of L4 on L5 and L5 and S1. On June 24, 2015
Dr. Hebrard held appellant off work pending a surgical evaluation. In a July 15, 2015 report, he
diagnosed continued sciatica, sacroiliac ligament sprains and strains, and unspecified
complications of medical care. On July 16, 2015 Dr. Hebrard released appellant to limited duty,
with a 10-pound lifting limit.
On July 23, 2015 appellant accepted a modified position as a mechanic, with lifting
limited to 10 pounds.

2

OWCP also paid compensation on May 14, 2015 when appellant attended a medical appointment.

2

By decision dated July 29, 2015, OWCP denied appellant’s claims for wage-loss
compensation for May 28 and 29, 2015, and from June 17 to July 15, 2015, finding that the
medical evidence of record did not establish disability for the claimed periods due to a worsening
of the accepted January 19, 2015 work injury. It found that appellant’s physician attributed his
condition to work factors unrelated to the accepted injury, including conditions not accepted by
OWCP.
In an August 26, 2015 letter postmarked September 1, 2015, and received by OWCP on
September 4, 2015, appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. He submitted additional evidence.3
In an August 13, 2015 report, Dr. Celeste Lopez, attending Board-certified psychiatrist,
diagnosed post-traumatic stress disorder (PTSD) causally related to the January 19, 2015
employment injury.
In an August 18, 2015 report, Dr. Michael D. Tseng, an attending Board-certified
orthopedic surgeon, diagnosed lumbar degenerative disc disease with multilevel stenosis, a low
grade L4-5 anterolisthesis, a possible left S1 strain, and possible cervical radiculopathy due to
the January 19, 2015 work injury.
On September 1, 2015 OWCP obtained a second opinion from Dr. Aubrey A. Swartz, a
Board-certified orthopedic surgeon, who found that the accepted sacroiliac sprain had ceased
without residuals. Dr. Swartz released appellant to full duty with no restrictions.
Dr. Hebrard prescribed physical therapy on October 8, 2015.
By decision dated October 14, 2015, OWCP denied appellant’s request for an oral
hearing under 5 U.S.C. § 8124(b), finding that his request was not timely filed. It performed a
limited review of the evidence, and further denied the claim as the issue involved could be
addressed equally well accompanying a request for reconsideration.
OWCP paid compensation for appellant’s attendance at medical appointments on
September 1 and October 8, 2015 and January 26, 2016. On January 27, 2016 appellant accepted
a full-time modified-duty position as a mechanic, with lifting limited to 10 pounds. OWCP paid
compensation for his attendance at a February 16, 2016 medical appointment.
In a March 9, 2016 letter, received March 15, 2016, appellant requested reconsideration
of the October 14, 2015 decision. He submitted additional evidence.4
On May 14, 2015 Dr. Hebrard diagnosed a sacroiliac ligament sprain and sciatica, caused
by the January 19, 2015 employment-related motor vehicle accident. He prescribed medication
and a sacroiliac joint belt. In October 8, 2015 reports, Dr. Hebrard diagnosed a sacroiliac
ligament sprain. He contended that Dr. Swartz was no longer a practicing orthopedic surgeon,
3

Appellant also submitted duplicates of Dr. Hebrard’s July 15, 2015 report and the July 23, 2015 modified job
offer, considered by OWCP prior to the July 29, 2015 decision.
4

Appellant also submitted duplicates of Dr. Hebrard’s June 17 and 24, 2015 reports.

3

misinterpreted the medical evidence, performed an inadequate examination, and was not
qualified to render an opinion in the case.
In an October 29, 2015 report, Dr. Michael Levi, an attending Board-certified
psychiatrist, diagnosed PTSD causally related to the January 19, 2015 employment injury.
Dr. Tseng provided reports dated November 30 and December 8, 2015, January 26,
February 2 and 16, and March 22, 2016 diagnosing lumbar degenerative disc disease with
multilevel stenosis, a low grade L4-5 anterolisthesis, a possible left S1 strain, and possible
cervical radiculopathy due to the January 19, 2015 employment-related collision. He provided
work restrictions from January 26 to May 22, 2016.
By decision dated May 17, 2016, OWCP denied modification of its July 29, 2015
decision, finding that the medical evidence of record did not establish that appellant was disabled
for work for the claimed periods due to the accepted January 19, 2015 work injury.5
On July 28, 2016 appellant requested reconsideration.6 He submitted additional medical
evidence. On January 26, 2015 Dr. Chan noted appellant’s complaints of neck and low back
pain after the January 19, 2015 employment-related motor vehicle accident. He diagnosed a
lumbar strain, left trapezius strain, left shoulder sprain, and cervical whiplash injury related to
the employment injury. Appellant also resubmitted Dr. Hebrard’s June 17, 2015 report, which
held appellant off work from June 17 to July 15, 2015 as his modified duties allegedly
aggravated his symptoms.
A March 28, 2016 MRI scan of the cervical spine showed multilevel central canal
stenosis.
On May 17, 2016 Dr. Tseng diagnosed lumbar degenerative disc disease with multilevel
stenosis, a low-grade L4-5 anterolisthesis, and a possible left S1 strain and possible cervical
radiculopathy due to the January 19, 2015 employment-related injury. He repeated these
diagnoses in July 28 and 29, 2016 reports. Dr. Tseng provided work restrictions from May 17 to
July 17, 2016.
Dr. Fulton S. Chen, an attending Board-certified physiatrist, examined appellant on
May 17, 2016. In reports dated from June 3 through July 12, 2016, he opined that the
January 19, 2015 employment injury may have caused C5-6, L4-5, and L5-S1 disc herniations,
and aggravated previously quiescent cervical and lumbar degenerative disc disease. In an
August 9, 2016 report, Dr. Chen found that appellant had attained maximum medical
improvement. He diagnosed status post January 19, 2015 rear-end motor vehicle accident,
L5-S1 disc degeneration with annular tear, left lumbar radiculopathy, left sacroiliac joint strain,
5

By notice dated July 20, 2016, OWCP advised appellant of its preliminary determination to terminate his wageloss compensation and medical benefits as the medical record demonstrated that the accepted January 19, 2015 work
injury had ceased without residuals. There is no final decision of record regarding the termination of compensation.
6

In a July 12, 2016 letter, OWCP notified appellant that it authorized payment of wage-loss compensation for
3.75 hours on March 22, 2016, 4 hours on March 28, 2016, and 4 hours on May 17, 2016 to attend medical
appointments.

4

multilevel cervical degenerative disc disease, and left C6 or C7 radiculopathy.
repeated these diagnoses in September 1 and 23, 2016 reports.

Dr. Chen

In an August 10, 2016 letter, counsel at the time alleged that Dr. Swartz failed to review
or misinterpreted the medical record.
A September 19, 2016 cervical MRI scan showed multilevel cervical disc disease with
canal stenosis and loss of lordosis, and a paracentral C5-6 herniation.
In October 11, 2016 reports, Dr. Tseng diagnosed lumbar and cervical disc degeneration.
He noted appellant’s “underlying degenerative issues in [appellant’s] back,” with “much more
pain and dysfunction” following the January 19, 2015 employment injury.
Appellant also submitted duplicate copies of Dr. Chen’s January 22, 2015 report, the
June 18, 2015 lumbar MRI scan report, Dr. Tseng’s February 16 and March 22, 2016 reports,
Dr. Hebrard’s June 24, 2015 report, and medical literature on spinal injury.
By decision dated October 26, 2016, OWCP denied appellant’s request for a further
review of his case on the merits, finding that the additional evidence submitted was cumulative
or irrelevant, and therefore did not warrant a review of the merits of the claim. It found that the
January 19, 2015 paramedic report, and May 28 and June 17 and 24, 2015 work duty status
reports were copies of documents already of record and considered by OWCP. The remaining
medical reports were irrelevant as they did not address the claimed periods of disability, or did
not discuss the critical issue of causal relationship. Additionally, the August 10, 2016 letter from
appellant’s then counsel did not address appellant’s claims for wage-loss compensation.
LEGAL PRECEDENT
To require the office to reopen a case for merit review under section 8128(a) of FECA,7
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.8 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)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.9
In support of a request for reconsideration, appellant is not required to submit all
evidence which may be necessary to discharge his burden of proof.10 He need only submit

7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

10

Helen E. Tschantz, 39 ECAB 1382 (1988).

5

relevant, pertinent new evidence not previously considered by OWCP.11 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.12
ANALYSIS
OWCP accepted that appellant sustained a sacroiliac ligament sprain in a January 19,
2015 occupational motor vehicle accident. Appellant claimed wage-loss compensation for
temporary total disability for May 28 and 29, 2015, and from June 17 to July 15, 2015. OWCP
denied the claim by merit decisions dated July 29, 2015 and May 17, 2016.
Appellant again requested reconsideration on July 28, 2016.
OWCP denied
reconsideration by decision dated October 26, 2016, finding that his contentions and the factual
and medical evidence submitted were either irrelevant or cumulative.
The Board finds that OWCP properly denied appellant’s request for reconsideration. The
critical issue in the May 17, 2016 merit decision whether appellant established that he was
disabled for work on May 28 and 29, 2015, and June 17 to July 15, 2015 due to the
employment-related January 19, 2015 sacroiliac ligament sprain. To be relevant, the evidence
submitted on reconsideration must address that issue.
In support of his July 21, 2016 reconsideration request, appellant submitted January 26,
2015 reports from Dr. Chan, an attending osteopathic physician specializing in internal medicine,
reports dated from May 17 to July 29, 2016 from Dr. Tseng, an attending Board-certified
orthopedic surgeon, reports from Dr. Chen, an attending Board-certified physiatrist, dated from
May 17 to September 23, 2016, two reports dated October 11, 2016 from Dr. Tseng and MRI
scan studies of the cervical spine dated March 28 and September 19, 2016. Appellant also
submitted an August 10, 2016 letter from counsel at that time regarding the notice of proposed
termination, and medical literature regarding spinal injuries. None of this evidence addresses the
critical issue of whether he was disabled from work on May 28 and 29, 2015 and from June 17 to
July 15, 2015. As these documents are irrelevant to establishing the claimed period of disability,
they do not comprise a basis for reopening the case.13
Appellant also submitted duplicate copies of Dr. Chan’s January 22, 2015 report, a
June 17, 2015 work excuse note from Dr. Hebrard, an attending Board-certified physiatrist, the
June 18, 2015 lumbar MRI scan report, Dr. Tseng’s February 16, March 22, 2016 reports,
Dr. Hebrard’s June 24, 2015 report, and medical literature on spinal injury. However, evidence
which is duplicative, cumulative, or repetitive in nature is insufficient to warrant reopening a
claim for merit review.14 The duplicate copies of medical evidence previously of record are
11

See supra note 8. See also Mark H. Dever, 53 ECAB 710 (2002).

12

Annette Louise, 54 ECAB 783 (2003).

13

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

14

Denis M. Dupor, 51 ECAB 482 (2000).

6

therefore insufficient to warrant consideration on the merits. Moreover, the Board has held that
newspaper clippings, medical texts, and excerpts from publication are of no evidentiary value in
establishing 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
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence or argument. Appellant did not do so in this case. Therefore, the Board finds that,
pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal, appellant contends that Dr. Hebrard’s reports were sufficient to establish his
claim. He also alleges that Dr. Swartz failed to review the complete medical record and referred
to an examination that did not occur. These arguments pertain to the merits of the claim, which
are not within the Board’s jurisdiction.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

15

See C.F., Docket No. 16-1859 (issued February 23, 2017).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 26, 2016 is affirmed.
Issued: July 21, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND, San Diego, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1482
Issued: October 22, 2014

Case Submitted on the Record

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

JURISDICTION
On June 17, 2014 appellant filed a timely appeal from the March 20, 2014 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, and because more
than 180 days has elapsed between the last merit decision (March 5, 2013) and the filing of this
appeal on June 17, 2014, the Board lacks jurisdiction to review the merits of this claim.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim as her request was untimely filed and failed to demonstrate
clear evidence of error.
1
2

5 U.S.C. §§ 8101-8193.

See 20 C.F.R. §§ 501.2(c) and 501.3. Appellant submitted additional evidence after OWCP’s March 20, 2014
decision, but the Board cannot consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
OWCP accepted that by mid-1997 appellant, then a 45-year-old letter production
controller, sustained bilateral de Quervain’s tenosynovitis of the thumbs, bilateral carpal tunnel
syndrome, bilateral trigger finger and calcifying tendinitis of the shoulders. Appellant received
compensation on the periodic rolls for periods of disability.3
On June 16, 2010 OWCP issued a formal loss of wage-earning capacity decision
reducing appellant’s compensation based on her ability to work in the constructed position of
social services aide. It noted that she had successfully completed a vocational rehabilitation
program and that her vocational rehabilitation counselor determined that the position was
reasonably available in her general commuting area. OWCP indicated that the medical evidence
of record showed that work-related conditions did not prevent appellant from performing the
duties of the social services aide position.
In an April 21, 2011 letter, appellant requested reconsideration of her claim and requested
modification of OWCP’s June 16, 2010 loss of wage-earning capacity determination. She
argued that the June 16, 2010 determination was in error and that her work-related condition had
worsened such that she could not work in the rated position of social service aide. Appellant
argued that she did not have the vocational skills to work as a social services aide and she
questioned whether the position was actually available in her general commuting area. She
asserted that reports of Dr. Paul C. Murphy, an attending Board-certified orthopedic surgeon,
showed that she could not perform the physical duties of the social services aide position and she
alleged that OWCP had not properly considered all of her work-related injuries in reaching its
determination.
In an August 15, 2011 decision, OWCP denied appellant’s request for modification of its
June 16, 2010 loss of wage-earning capacity determination. It noted that she had not adequately
supported her argument that she was vocationally and physically unable to work as a social
services aide either at the time of the June 16, 2010 rating or at any point thereafter.
In a June 10, 2012 letter, appellant requested reconsideration of her claim and again
requested modification of OWCP’s June 16, 2010 loss of wage-earning capacity determination.
She continued to argue that the June 16, 2010 determination was in error and that her workrelated condition had worsened such that she could not work as a social service aide. Appellant
repeated a number of the arguments she made in connection with her April 2011 request for
modification of OWCP’s June 16, 2010 determination.
By decision dated March 5, 2013, OWCP denied appellant’s request for modification of
its June 16, 2010 loss of wage-earning capacity determination. It again indicated that she did not
3

OWCP accepted that appellant sustained work-related injuries under case files other than the present case file:
By November 1987, appellant sustained bilateral carpal tunnel syndrome (File No. xxxxxx830); by March 1996, she
sustained right lateral epicondylitis (File No. xxxxxx672); by July 1996, she sustained bilateral rotator cuff
syndrome and left lateral epicondylitis (File No. xxxxxx648); and on February 23, 2000, she sustained medial
meniscus tear of the right knee, strain of the lumbar region and sprains of the right hip, right thigh, left ankle and the
lateral collateral ligaments of both knees (File No. xxxxxx939).

2

adequately support her argument that she was vocationally and physically unable to work as a
social services aide.
In a form dated February 26, 2014 and received March 7, 2014, appellant requested
reconsideration of OWCP’s March 5, 2013 decision. In a letter dated February 20, 2014 and
received March 13, 2014, she also requested reconsideration of OWCP’s March 5, 2013
decision. Appellant asserted that OWCP did not consider all her work-related conditions in
making its June 16, 2010 loss of wage-earning capacity determination that she could work in the
constructed position of social services aide. She claimed that documents were missing or placed
in the wrong files with respect to her various work injuries. Appellant indicated that the job
duties of the social service aide position exceeded the work duties recommended by her
attending physicians. She discussed her physical limitations noting that she required assistance
to help her carry out her activities of daily living. Appellant claimed that she had been totally
disabled since February 15, 2012.
In an April 11, 2013 report, Dr. Murphy diagnosed bilateral osteoarthritis of the hands,
bilateral joint pain in the hands, bilateral carpal tunnel syndrome, bilateral calcifying tendinitis of
the shoulders, bilateral lateral epicondylitis, trigger finger of the left long finger and bilateral
sprain/strain of the wrists. He indicated that appellant was on partial temporary disability and
recommended work restrictions.4
In a March 20, 2014 decision, OWCP denied appellant’s request for further review of the
merits of her claim on the grounds that her request was untimely filed and failed to demonstrate
clear evidence of error. It determined that her reconsideration was untimely filed because it was
received on March 7, 2014, a date that was more than one year after the issuance of its March 5,
2013 decision. OWCP found that appellant had not shown clear evidence of error in its prior
decisions and stated:
“Many of the arguments that you are advancing in your letter of February 20,
2014 (but not received until March 7, 2014) were arguments that you previously
made and which were considered in the previous reconsideration decision.
Therefore, there is nothing new about these arguments. With respect to your
arguments about your other cases, these cases are combined with [xxxxxx100].
Therefore, your other conditions were considered in the decision regarding your
wage[-]earning capacity.”
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.5
4

Dr. Murphy stated, “Activity restrictions include bending, climbing, no fine manipulation, they are to take
frequent breaks, no repetitive grasping, firm grasping, no repetitive keyboarding, kneeling, reaching overhead,
reaching above chest, repetitive manipulation, repetitive motion, lifting restrictions with the left arm, lifting
restrictions with the right arm unable to lift due to bilateral thumb pain, no pulling, pushing, crawling. It is
recommended that the activity restriction(s) are maintained for six weeks, recommended that the activity
restriction(s) are maintained until the next appointment.”
5

20 C.F.R. § 10.607(a).

3

The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.6 OWCP’s
regulations at 20 C.F.R. § 10.607(a) establish a one-year time limit for requesting
reconsideration. The one-year period begins on the date of the original decision, and an
application for reconsideration must be received by OWCP within one year of the date of the
OWCP decision for which review is sought for merit decisions issued on or after
August 29, 2011.7
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes “clear
evidence of error.”8 OWCP regulations and 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(a), if the claimant’s application for review shows “clear evidence of error” on
the part of OWCP.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.10 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 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.14
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011).

8

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

9

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.5a (October 2011). OWCP procedures further provide, “The term ‘clear evidence of error’ is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made a
mistake. For example, a claimant provides proof that a schedule award was miscalculated, such as a marriage
certificate showing that the claimant had a dependent but the award was not paid at the augmented rate. Evidence
such as a detailed, well-rationalized medical report which, if submitted before the denial was issued would have
created a conflict in medical opinion requiring further development, is not clear evidence of error.”
10

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

11

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

12

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

13

See Leona N. Travis, supra note 11.

14

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

4

the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.15
ANALYSIS
In its March 20, 2014 decision, OWCP properly determined that appellant filed an
untimely request for reconsideration. Appellant’s reconsideration request was received on
March 7, 2014, more than one year after OWCP’s March 5, 2013 decision, and therefore she
must demonstrate clear evidence of error on the part of OWCP in issuing this decision.16
Appellant has not demonstrated clear evidence of error on the part of OWCP in issuing
its March 5, 2013 decision. She did not submit the type of positive, precise and explicit evidence
which manifests on its face that OWCP committed an error.
Appellant argued that OWCP did not consider all her work-related conditions in making
its June 16, 2010 loss of wage-earning capacity determination that she could work in the
constructed position of social services aide. She claimed that medical documents were missing
or placed in the wrong files and that the job duties of the social service aide position exceeded
her work restrictions. Appellant discussed her physical limitations and indicated that she had
been totally disabled since February 15, 2012. The Board notes that her arguments did not show
clear evidence of error in OWCP’s March 5, 2013 decision which denied her request for
modification of its June 16, 2010 loss of wage-earning capacity determination. Appellant’s
argument did not show that the original June 16, 2010 determination was in error or that her
work-related condition had worsened such that she could no longer perform the duties of the
social service aide position.17 Her argument was vague and general in nature and she did not
adequately explain her belief that OWCP failed to consider some of her work-related
conditions.18
Appellant submitted an April 11, 2013 report in which Dr. Murphy, an attending Boardcertified orthopedic surgeon, diagnosed various medical conditions, indicated that she was on
partial temporary disability and recommended work restrictions. A medical report indicating a
material change in the nature and extent of the injury-related condition of appellant, such that she
could no longer perform the duties of the wage-earning capacity position, could require OWCP
to evaluate whether the wage-earning capacity should be modified.19 However, although
15

See Sharon C. Clement, 55 ECAB 552 (2004).

16

Appellant’s reconsideration request was received by OWCP on March 7, 2014 and therefore her
reconsideration request was filed on March 7, 2014 according to OWCP’s regulations. See supra notes 5 through 7.
On appeal, appellant argued that her reconsideration request was timely filed, but she did not adequately explain
how the evidence of record showed that her request was timely filed.
17

See supra note 15.

18

Moreover, appellant did not identify specific medical reports which showed that work-related conditions
prevented her from working as a social services aide at the time of the original rating in June 2010 or at any point
thereafter.
19

C.R., Docket No. 14-111 (issued April 4, 2014).

5

Dr. Murphy recommended extensive work restrictions, he did not provide a clear opinion that
they were necessitated by accepted work-related conditions nor that they would have prevented
appellant’s performance of the constructed position of social services aide.
For these reasons, the evidence submitted by appellant does not raise a substantial
question concerning the correctness of OWCP’s March 5, 2013 decision and OWCP properly
determined that appellant did not show clear evidence of error in that decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 20, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 22, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6