United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
U.S. POSTAL SERVICE, OHARE AIR MAIL
CENTER, Chicago, IL, Employer
__________________________________________

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

Docket No. 07-347
Issued: April 24, 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 November 20, 2006 appellant filed a timely appeal from merit decisions of the Office
of Workers’ Compensation Programs dated April 24 and September 25, 2006 granting her a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
schedule award decision.
ISSUES
The issues are: (1) whether appellant has any permanent impairment of her right upper
extremity; and (2) whether appellant has more than a 10 percent permanent impairment of the
left upper extremity.
FACTUAL HISTORY
On April 2, 2004 appellant, then a 64-year-old mail handler, filed an occupational disease
claim alleging that she sustained carpal tunnel syndrome causally related to factors of her federal
employment. She did not stop work. The Office accepted her claim for bilateral carpal tunnel

syndrome. Appellant underwent a right carpal tunnel release on September 7, 2004. She
stopped work on September 7, 2004 and resumed work with restrictions on September 16, 2004.
Appellant retired on December 1, 2004.
On December 13, 2004 appellant filed a claim for a schedule award. On August 15, 2005
the Office requested that she submit an impairment evaluation from her attending physician
addressing the extent of any permanent impairment of the upper extremities in accordance with
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (5th ed. 2001).
In an impairment evaluation dated September 2, 2005, Dr. Mark S. Cohen, a Boardcertified orthopedic surgeon, stated:
“[Appellant] reports that her right-sided tingling and numbness have completely
resolved. Intermittently, she drops objects with her right hand. She states that her
left hand is currently her chief complaint. [Appellant] has some difficulty during
light activities such as sweeping. She reports tingling and numbness in her left
hand as well as some intermittent catching and locking of her left middle finger.”
On examination, Dr. Cohen measured the range of motion of appellant’s wrists as
60 degrees bilateral extension and 65 degrees bilateral flexion. He determined that she had
bilateral pinch strength of 16 pounds and grip strength of 60 pounds on the right and 35 pounds
on the left. Dr. Cohen noted that she experienced “tingling and numbness in her left hand during
a median nerve compression test.” In an accompanying form report, he found that appellant had
no impairment of the right upper extremity.
An Office medical adviser reviewed Dr. Cohen’s report and found that appellant had a
10 percent impairment of the left upper extremity due to loss of grip strength according to Tables
16-31 and 16-34 on page 509 of the A.M.A., Guides. He determined that appellant had no
impairment on the right side. The Office medical adviser indicated that she reached maximum
medical improvement on the right side on December 15, 2004 and on the left side on
September 2, 2005.
By decision dated April 24, 2006, the Office granted appellant a schedule award for a
10 percent impairment of the left upper extremity. The period of the award ran for 31.2 weeks
from September 20, 2005 to April 8, 2006.
On May 22, 2006 appellant requested a review of the written record. She submitted a
report dated July 31, 2006 from Dr. Cohen who discussed appellant’s complaints of pain and
numbness in her right hand. Dr. Cohen found no evidence of tenosynovitis, full range of motion
of the right wrist and grip strength of 58 pounds on the right and 45 pounds on the left. He
indicated that she had no “positive provocative tests for carpal tunnel syndrome” on examination.
Dr. Cohen questioned whether her symptoms on the right side were due to carpal tunnel
syndrome.
In a decision dated September 25, 2006, an Office hearing representative affirmed the
April 24, 2006 decision. The hearing representative found that appellant had no more than a
10 percent left upper extremity impairment and had no impairment of the right upper extremity.
2

LEGAL PRECEDENT -- ISSUE 1
A claimant seeking compensation under the Federal Employees’ Compensation Act,1 has
the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence.2 Section 8107 provides that if there is permanent disability
involving the loss or loss of use of a member or function of the body, the claimant is entitled to a
schedule award for the permanent impairment of the scheduled member or function.3 It is the
claimant’s burden to establish that he or she sustained permanent impairment of a scheduled
member or function as a result of an employment injury.4
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome. She
underwent a right carpal tunnel release on September 7, 2004. On December 13, 2004 she filed
a claim for a schedule award.
Appellant has not submitted evidence establishing that she has any permanent
impairment of the right upper extremity. In a report dated September 2, 2005, her attending
physician, Dr. Cohen, noted that the numbness and tingling on her right side had resolved. He
found that she had no impairment of the right upper extremity. An Office medical adviser
reviewed Dr. Cohen’s report on November 28, 2005 and concurred with his finding that
appellant had no right upper extremity impairment. On July 31, 2006 Dr. Cohen discussed
appellant’s complaints of numbness and pain of the right hand. He indicated that tests for carpal
tunnel syndrome were negative and questioned whether her right-sided symptoms were due to
carpal tunnel syndrome. As appellant has not submitted any medical evidence supporting that
she has a permanent impairment of the right upper extremity due to her accepted employment
injury, she has not established entitlement to a schedule award for the right side.5
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of the Act6 and its implementing federal regulation,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
the Act does not specify the manner in which the percentage of loss shall be determined. For

1

5 U.S.C. § 8107.

2

Tammy L. Meehan, 53 ECAB 229 (2001).

3

5 U.S.C. § 8107.

4

Edward W. Spohr, 54 ECAB 806 (2003).

5

Id.

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

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consistent results and to ensure equal justice under the law for all claimants, the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.8
The A.M.A., Guides provides that upper extremity impairment due to carpal tunnel
syndrome and other entrapment neuropathies should be calculated using section 16.5d and
Tables 16-10, 16-11 and 16-15.9 Section 16.5d of the A.M.A., Guides provides that, in rating
compression neuropathies, additional impairment values are not given for decreased grip
strength.10
ANALYSIS -- ISSUE 2
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome. She did not
undergo a left carpal tunnel release. In an impairment evaluation dated September 2, 2005,
Dr. Cohen discussed her complaints of numbness and tingling of the left hand. He measured
range of motion of the left wrist and listed findings for grip and pinch strength. Dr. Cohen noted
that appellant reported “tingling and numbness in her left hand during a median nerve
compression test.”
An Office medical adviser reviewed Dr. Cohen’s report on November 28, 2005. He
opined that appellant had a 10 percent impairment of the left upper extremity due to loss of grip
strength according to Tables 16-31 and 16-34 on page 509 of the A.M.A., Guides.
The A.M.A., Guides on page 495 provides three scenarios for determining the permanent
impairment due to carpal tunnel syndrome after an optimal recovery time following surgical
decompression. The Board notes, however, that as appellant did not undergo surgical
decompression on the left side, the specific method for determining impairment due to carpal
tunnel syndrome provided on page 495 of the A.M.A., Guides does not apply. The Office
medical adviser based his impairment finding on grip strength measurements. In evaluating
impairment due to carpal tunnel syndrome, however, there generally will be no ratings based on
loss of grip strength.11 Under the fifth edition of the A.M.A., Guides, schedule awards for carpal
tunnel syndrome are predicated only on motor and sensory impairments.12 As the Office medical
adviser did not properly apply the A.M.A., Guides in determining appellant’s left upper
extremity impairment, the case will be remanded to the Office. After such further development
as the Office deems necessary, it should issue an appropriate decision.

8

Id. at § 10.404(a).

9

Willie C. Howard, 55 ECAB 564 (2004).

10

A.M.A., Guides 494.

11

Id. at 494-95; David D. Cumings, 55 ECAB 285 (2004).

12

Robert V. Disalvatore, 54 ECAB 351 (2003).

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CONCLUSION
The Board finds that appellant has not established that she has a permanent impairment of
the right upper extremity. The Board further finds that the case is not in posture for decision on
the issue of whether appellant has more than a 10 percent permanent impairment of the left upper
extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 25, 2006 is affirmed in part and set aside in part. The
decision dated April 24, 2006 is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: April 24, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.A., Appellant
and
U.S. POSTAL SERVICE, TAMPA CARRIER
ANNEX, Tampa, FL, Employer
__________________________________________

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

Docket No. 09-109
Issued: February 24, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 15, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated January 9, 2008. Pursuant to 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 developed an emotional condition due to factors of his
federal employment.
FACTUAL HISTORY
On October 27, 2007 appellant, then a 54-year-old letter carrier, filed a traumatic injury
alleging that he developed job-related stress due to the actions of management at the employing
establishment on October 23, 2007.
Appellant reported to work at 7:00 a.m. on Mondays, Tuesdays and Wednesdays in
September 2007. The remainder of the workweek he reported to work at 7:30 a.m. Appellant
began to report to work at 7:00 a.m. on all workdays after September 24, 2007. On October 23,

2007 Debbie Draga, the station manager, criticized appellant’s work procedures and began
constantly observing him. She asked if all of his mail was cased, which appellant felt was a
“bullying” tactic. Appellant was expected to hold his route to an eight-hour day, but on
October 23, 2007 he received additional mail after he had cased his route. He requested to case
only the first class mail and leave the third class mail for the following day. Tom Faucette,
appellant’s supervisor, denied this request. Appellant advised that he would be unable to
complete his route within eight hours. Mr. Faucette responded that Ms. Draga should ride with
appellant. Ms. Draga objected and stated that appellant should take the whole route. She further
stated that if he failed to carry his entire route she would eliminate his 7:00 a.m. report time and
require trips on Saturdays. Appellant failed to hold his route to eight hours.
On October 24, 2007 the supervisors again asked appellant to hold his route to eight
hours. Mr. Faucette informed appellant that his start time would be changed to 7:30 a.m. every
morning as he had observed him standing around waiting for mail. Appellant felt that the change
in start time was a consequence of his failure to comply with Ms. Draga’s instructions and
constituted harassment by management. He requested to see his shop steward and his supervisor
Mr. Faucette denied his request. Appellant then requested leave due to excessive stress. He
alleged that Ms. Draga loudly commanded him to come to her on the workroom floor and
directed him to bring proper medical documentation. Appellant sought medical treatment on
October 24, 2007 and telephoned the employing establishment to determine the appropriate leave
request procedures and obtain a claim form. On October 25, 2007 he informed Mr. Faucette and
Ms. Draga that he was unable to leave a message on the leave line and was directed to contact his
supervisor. Ms. Draga instructed appellant to call the appropriate sick leave number, but failed
to provide him with this number. Appellant contended that Ms. Draga and Mr. Faucette engaged
in manipulation, harassment, bullying and a hostile work environment resulting in stress,
embarrassment and humiliation.
Ms. Draga submitted a statement dated May 16, 2007 and noted that appellant owned and
operated a lawn care business.
In a letter dated November 6, 2007, the Office requested additional factual and medical
evidence. In a statement dated October 24, 2007, Mr. Faucette noted that tour times were subject
to the needs of the employing establishment. He stated that appellant requested an earlier start
time to complete his route within eight hours and had agreed to a trial start time of 7:00 a.m.
Mr. Faucette changed appellant’s start time to 7:00 a.m. on Monday, Tuesday and Wednesday
and 7:30 a.m. on the remainder of his work schedule. Appellant subsequently requested
assistance. Mr. Faucette believed that appellant was upset about the time change. After
observing appellant, he felt that appellant engaged in time wasting practices. Mr. Faucette
changed appellant’s start time to 7:30 a.m. to ensure that the mail was fully available and to
reduce his morning down time. Appellant then requested sick leave. Mr. Faucette noted that
Ms. Draga requested that appellant come to her and he walked away stating that he was going
home. Ms. Draga again asked him to come to her and he stated that he would provide
documentation for his absence which she agreed was necessary. On October 24, 2007 appellant
reported difficulties in reaching the leave line. Mr. Faucette and Ms. Draga tried to ascertain if
appellant was calling the correct number and eventually Mr. Faucette agreed to document his
absence.

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Ms. Draga completed a statement on November 9, 2007. On October 23, 2007 appellant
asked for additional time to complete his route. Ms. Draga informed him that he was not
maintaining the demonstrated and agreed upon time for his route. Ms. Draga stated that
appellant attempted to engage in a debate and that she directed him to address requests to his
supervisor. Following his delivery, appellant requested a change in his start time which, if
granted would allow him to complete his route within eight hours. Ms. Draga denied this request
as she observed appellant on October 24, 2007 engaging in time wasting practices. She stated
that she instructed appellant to case his mail before doing anything else on his route. Ms. Draga
noted that, after Mr. Faucette informed appellant that his start time had changed, he requested a
leave form and indicated that he required sick leave. She asked if appellant had provided
documentation for his sick leave usage and Mr. Faucette indicated that he had not. Ms. Draga
then approached appellant, who walked away from her. She requested that appellant return to
his work area three times before he complied. Ms. Draga instructed him to provide acceptable
medical documentation to substantiate that he was unable to complete his assigned duties.
In a November 5, 2007 report, Dr. Gary K. Arthur, a Board-certified psychiatrist,
diagnosed major depressive illness recurrent and work stress.
In a statement dated October 24, 2007, appellant reiterated that he was singled out,
threatened for performance, embarrassed on the workroom floor, harassed, manipulated and
discouraged by management and worked in a hostile work environment. He stated that he was
unable to complete his route within his eight-hour work restriction. Appellant provided a
November 10, 2007 witness statement from Dena M. Ponticello, who affirmed that Ms. Draga
repeatedly instructed appellant to “come here” on October 24, 2007 and had requested
documentation for medical review.
By decision dated January 9, 2008, the Office denied appellant’s claim for an emotional
condition finding that he failed to establish a compensation factor of employment.
LEGAL PRECEDENT
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.1 Workers’ compensation law does not apply
to each and every injury or illness that is somehow related an employee’s employment. There
are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage of worker’s compensation. Where
the disability results from an employee’s emotional reaction to his regular of specially assigned
duties or to a requirement imposed by the employment, the disability comes within the coverage
of the Federal Employees’ Compensation Act.2 On the other hand, the disability is not covered

1

20 C.F.R. § 10.5(q).

2

5 U.S.C. §§ 8101-8193.

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where it results from such factors as an employee’s fear of a reduction-in-force or his frustration
from not being permitted to work in a particular environment or to hold a particular position.3
Generally, actions of the employing establishment in administrative or personnel matters
unrelated to the employee’s regular or specially assigned work duties, do not fall within the
coverage of the Act.4 While an administrative or personnel matter will be considered an
employment factor where the evidence discloses error abuse on the part of the employing
establishment, mere perceptions are insufficient. In determining whether the employing
establishment erred or acted abusively, the Board determines whether the employing
establishment acted reasonably.5 Although the handling of leave requests and attendance matters
are generally related to employment, they are administrative functions of the employer and not
duties of the employee. As a general rule, a claimant’s reaction to administrative or personnel
matters falls outside the scope of the Act. However, to the extent that the evidence demonstrates
that the employing establishment either erred or acted abusively in discharging its administrative
or personnel responsibilities, such action will be considered a compensable employment factor.6
The Board has held that the manner in which a supervisor exercises his or her discretion
falls outside the coverage of the Act. This principal recognizes that a supervisor or manager
must be allowed to perform their duties and that employee’s will at times disagree with actions
taken. Mere disagreement with or dislike of actions taken by a supervisor or manager will not be
compensable absent evidence establishing error or abuse.7
Verbal altercations and difficult relationships with supervisors, when sufficiently detailed
by the claimant and supported by the record, may constitute factors of employment. Although
the Board has recognized the compensability of verbal abuse in certain circumstances this does
not imply that every statement uttered in the workplace will give rise to coverage under the Act.8
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the Acts alleged or implicated by the employee did, in fact,
occur. Mere perceptions of harassment or discrimination are not compensable under the Act.9

3

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).
4

James E. Norris, 52 ECAB 93, 100 (2000).

5

Bonnie Goodman, 50 ECAB 139, 143-44 (1998).

6

James P. Guinan, 51 ECAB 604, 607 (2000).

7

Linda J. Edwards-Delgado, 55 ECAB 401 ( 2004).

8

Marguerite J. Toland, 52 ECAB 294 (2001).

9

Reco Roncoglione, 52 ECAB 454, 456 (2001).

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ANALYSIS
Appellant alleged that he sustained an emotional condition due to the actions of his
supervisors on October 23, 2007. However, in his narrative statement, he also attributed his
emotional condition to the events of October 23 through 25, 2007. As appellant’s emotional
condition developed over a period of more than one work shift, his claim is appropriately
considered one for occupational disease rather than a traumatic injury.
Appellant attributed his emotional condition to the denial of his request for aid to
complete his route on October 23, 2007, the denial to deliver third class mail on the following
day, to criticisms of Ms. Draga regarding his work practices and her constant observation on
October 23, 2004. He also attributed his emotional condition to the change of his start time on
October 24, 2004 to 7:30 a.m. These allegations pertain to appellant’s dislike of matters within
the discretion of his supervisors. Without evidence substantiating error or abuse, these
allegations do not constitute compensable factors of employment. Appellant has not submitted
any documentation, witness statements or other evidence substantiating that the actions by his
supervisors were in error or abusive in any administrative action.
Appellant attributed his emotional condition to an alleged confrontation with Ms. Draga
on October 24, 2007 regarding his need for medical documentation to support his leave request.
He alleged that Ms. Draga yelled at him from across the workroom floor directing him to come
to her. Ms. Draga denied raising her voice and noted that she requested that appellant return to
his workstation. Ms. Ponticello confirmed that Ms. Draga requested that appellant “come here”
and asked for medical documentation. Appellant has not submitted any evidence establishing
that Ms. Draga’s requests were abusive in nature. There mere fact that she repeatedly requested
his presence does not rise to the level of verbal abuse and is not a compensable factor of
employment.
Appellant also attributed his emotional condition to the actions of his supervisors on
October 25, 2007 regarding his leave request. Matters concerning leave are considered
personnel matters and noncompensable unless error or abuse is established. Appellant alleged
that Ms. Draga was abusive and argumentative by repeatedly suggesting that he call the leave
line number without providing him with the appropriate number. Mr. Faucette disputed this
account of events and noted that after providing appellant with the correct number and
ascertaining that he was unable to appropriately request leave, he agreed to document appellant’s
absence. Appellant has submitted no evidence to establish error or abuse on the part of his
supervisors regarding the events of October 25, 2007.
Appellant has further alleged that the foregoing described events and incidents
constituted harassment and discrimination by his supervisors. He has not submitted any
evidence, documentation or witness statements substantiating that these events were in fact
harassment or discrimination. As noted above, the mere perception of harassment or
discrimination is not sufficient to constitute a compensation factor of employment.

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For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met her burden of proof in establishing that he
sustained an emotional condition in the performance of duty.10
CONCLUSION
The Board finds that appellant has failed to substantiate a compensation factor of
employment and that the Office therefore properly denied his claim for an emotional condition.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 24, 2009
Washington, DC

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

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

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

10

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Memphis, TN, Employer
__________________________________________

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

Docket No. 18-0488
Issued: August 28, 2018

Case Submitted on the Record

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

JURISDICTION
On January 5, 2018 appellant filed a timely appeal from a December 19, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury in the
performance of duty on September 21, 2017, as alleged.
FACTUAL HISTORY
On October 21, 2017 appellant, then a 61-year-old automation technology specialist, filed
a traumatic injury claim (Form CA-1) alleging that on September 21, 2017 he developed dizziness
1

5 U.S.C. § 8101 et seq.

and pain in his mid-section while removing a monitor while in the performance of duty. He noted
blood in his urine for the next three days. Appellant provided a statement from a witness noting
that on September 21, 2017 he and appellant were attempting to move a monitor from its
connecting arm when appellant began to breathe heavily, stopped working, and sat down. He then
reported that he experienced shortness of breath and dizziness.
In a November 8, 2017 development letter, OWCP requested additional factual and
medical evidence in support of appellant’s traumatic injury claim. It afforded appellant 30 days
for response.
Dr. Leslie R. McGowan, a Board-certified urologist, examined appellant on October 18,
2017 due to hematuria. He noted that, after lifting an object weighing 80 pounds, appellant saw
blood in his urine for approximately three days. Appellant also reported dizziness and bladder
discomfort. Dr. McGowan noted that appellant had a history of prostate cancer and had a
prostatectomy approximately a year prior. On October 23, 2017 appellant underwent an
abdominal computerized tomography (CT), which demonstrated hepatic steatosis with stable left
adrenal adenoma, stable colonic diverticulitis, and previous prostatectomy. On November 10,
2017 Dr. David A. Gubin, a Board-certified urologist, performed a cystoscopy and removal of two
stitches at appellant’s bladder urethral anastomosis. Dr. McGowan provided a November 16, 2017
note indicating that he was treating appellant for urology issues.
By decision dated December 19, 2017, OWCP denied appellant’s traumatic injury claim,
finding that he had not established that the employment incident occurred as alleged on
September 21, 2017 and that he had not submitted medical evidence to substantiate a diagnosed
medical condition causally related to the claimed employment incident. As such, it found that
appellant had not established an injury as defined under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is 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.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit

2

Id.

3

A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

2

sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action. An employee has not met his or her burden of proof in establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statements
in determining whether a prima facie case has been established. However, an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.4
Second, the employee must submit medical evidence to establish that the employment
incident caused a personal injury.5 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical opinion evidence.6 The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury due to
a September 21, 2017 employment incident.
Appellant claimed that he sustained dizziness, shortness of breath, and experienced
midsection pain on September 21, 2017 while moving a monitor, in the performance of his federal
employment duties.
As noted above, to establish the fact of injury the employee must first submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place, and in the manner alleged.8 The Board finds that appellant has established that an
employment incident occurred on September 21, 2017. Appellant provided a witness statement
supporting that appellant was involved in moving a monitor on September 21, 2017 and that he
reported distress during this activity. He also reported the date and mechanism of the claimed
4

L.F., Docket No. 17-0689 (issued May 9, 2018).

5

A.D., supra note 3; T.H., 59 ECAB 388 (2008).

6

L.F., supra note 4.

7

A.D., supra note 3; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

8

L.F., supra note 4; Julie B. Hawkins, 38 ECAB 393 (1987).

3

September 21, 2017 injury in a consistent manner to OWCP and medical practitioners. Appellant
sought medical care for his claimed condition on October 18, 2017. The Board therefore finds that
there are no inconsistencies in the evidence which would cast serious doubt upon the validity of
appellant’s claim and his account of the September 21, 2017 incident at work is not refuted by
strong or persuasive evidence.9
The Board further finds that, although appellant has established a September 21, 2017
employment incident, he has not submitted rationalized medical evidence sufficient to establish an
injury causally related to the September 21, 2017 employment incident.10
Appellant submitted medical treatment notes from Dr. McGowan, dated October 18, 2017,
which noted that, after lifting an object weighing 80 pounds, appellant saw blood in his urine for
approximately three days. He also reported dizziness and bladder discomfort. Dr. McGowan did
not provide any discussion or opinion as to whether the lifting incident caused or was related to
appellant’s hematuria. The Board has held that medical evidence which does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship and; therefore, the submission of this report does not establish appellant’s claim for a
September 21, 2017 employment injury.11 The remainder of the medical evidence of record does
not mention the September 21, 2017 employment-related lifting incident and cannot establish
appellant’s claim.12 For these reasons, appellant has not met his burden of proof to establish an
injury due to the September 21, 2017 employment incident.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has established that the September 21, 2017 employment
incident occurred, as alleged. However, appellant has not established an injury causally related to
the accepted September 21, 2017 employment incident.

9

Id.

10

L.F., supra note 4; D.R., Docket No. 16-0528 (issued August 24, 2016)

11

See L.F., supra note 4; Charles H. Tomaszewski, 39 ECAB 461 (1988).

12

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: August 28, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 19-1499
Issued: January 27, 2020

Case Submitted on the Record

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

JURISDICTION
On July 3, 2019 appellant filed a timely appeal from a March 20, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
in the performance of duty on August 9, 2016, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 20, 2019 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.

FACTUAL HISTORY
On October 31, 2016 appellant, then a 34-year-old mechanic, filed an occupational disease
claim (Form CA-2) alleging that he sustained a left knee condition due to factors of his federal
employment. He stated that he was working and cleaning in the wash rack which required getting
up and down and while twisting. Appellant alleged that while getting up he slipped on the wet
floor and his left knee started to bother him badly while in the course of his employment duties.
He alleged that his left knee was swollen and weak with a burning feeling. Appellant noted that he
first became aware of his condition and realized its relation to his federal employment on
August 9, 2016.
On October 27, 2016 appellant completed a sworn narrative statement and asserted that on
August 9, 2016 he was working in the wash rack rinsing the bays and restocking soap when he
slipped and turned on the metal grating injuring his left knee. He noted that his left knee was
originally injured overseas in 2010.
In support of his claim, appellant submitted an October 25, 2016 report from
Dr. Christopher R. Mann, an osteopath, who diagnosed left knee internal derangement and left
knee meniscus tear.
In an October 31, 2016 letter, the employing establishment noted that appellant’s position
expired on October 30, 2016 “due to lack of workload.” It noted that he first reported his August 9,
2016 alleged injury on October 4, 2016 when he was informed that his position was ending. The
employing establishment requested a sworn statement, which appellant provided on
October 27, 2016. Appellant again informed the employing establishment that he had a prior left
knee injury, which he sustained while working overseas in 2010. The employing establishment
noted that he was active during the summer, coaching baseball and completing a “mud bog.”
In a November 7, 2016 development letter, OWCP notified appellant that it had converted
his claim to one for an August 9, 2016 traumatic injury and advised him of the deficiencies of his
claim. It requested additional factual and medical evidence and afforded him 30 days to respond.
On November 10, 2016 appellant underwent a left knee magnetic resonance imaging
(MRI) scan which demonstrated a linear posterior horn medial meniscal tear with superior and
inferior articular surface extension, stage II chondromalacia throughout the knee and patella, knee
effusion, and bone edema and acute irritation with in the medial femoral condyle.
By decision dated December 19, 2016, OWCP found that the August 9, 2016 employment
incident occurred as alleged, but denied appellant’s claim finding that there was no medical
evidence containing a medical diagnosis in connection with the incident. It concluded, therefore,
that the requirements had not been met to establish an injury as defined by FECA.
On May 8, 2017 appellant requested reconsideration of the December 19, 2016 decision.
OWCP continued to receive medical evidence. On October 25, 2016 Dr. Mann reported
that he had examined appellant due to left knee swelling, weakness and locking up. He noted that
appellant reported he was performing his regular duties on August 9, 2016 when his left knee
“gave-way.” Dr. Mann indicated that appellant was stepping over or around the frame of a large
2

vehicle when he twisted his left knee. He further noted that appellant had a previous left knee
injury on July 18, 2010 while working in Iraq. Dr. Mann found that appellant’s current condition
was an aggravation of a preexisting condition, that appellant’s previous injury was to the left knee
not the right as mentioned in contemporaneous medical records, and that he received no treatment
at the time of the original injury in 2010. In a note dated December 13, 2016, Dr. Mann again
diagnosed left knee internal derangement and left knee meniscal tear.
Appellant provided medical records dated July 19, 2010 from Dr. Robert Holmes, a Boardcertified internist, addressing his right knee pain sustained while working in Iraq on July 18, 2010.
Dr. Holmes aspirated appellant’s right knee and administered anesthesia in the knee. He diagnosed
knee sprain and likely medial meniscal tear. Dr. Holmes prescribed a brace.
By decision dated June 13, 2017, OWCP denied modification of the December 19, 2016
decision. It found that Dr. Mann’s October 25, 2016 report was not based on an accurate history
of injury as it did not address appellant’s August 9, 2016 slip on a grate while cleaning the wash
rack, but instead attributed his left knee injury to twisting while stepping over large vehicle frames.
On January 23, 2018 appellant requested reconsideration of the June 13, 2017 decision.
He submitted a December 20, 2017 report from Dr. Mann who indicated that he was aware that
appellant was working in the wash rack and that he slipped on the wet floor while walking around
the large vehicle which he worked on as a mechanic. He noted that appellant was getting up,
down, and twisting his left knee. Dr. Mann opined that appellant sustained a significant left knee
injury while performing his regular job at the employing establishment on August 9, 2016. He
found that appellant had sustained significant injury to the structures of the left knee that he did
not have prior to this incident. Dr. Mann also noted that this was an aggravation of a preexisting
injury that appellant first sustained at work on July 19, 2010.
By decision dated March 30, 2018, OWCP denied modification of the July 13, 2017
decision. It found that appellant’s claim was denied on the basis of factual inconsistencies
regarding how the injury occurred as well as late notification of the injury which cast doubt that
the injury occurred in the manner alleged.
On September 20, 2018 appellant requested reconsideration of the March 30, 2018 OWCP
decision. He provided April 30 and May 2, 2018 witness statements from coworkers who reported
that his July 2010 injury was to his left knee. Both noted that when he returned to work, appellant
drove heavy vehicles with a brace on his left knee.
In an August 22, 2018 report, Dr. Mann asserted that appellant sustained an acute injury
on August 9, 2016. He again asserted that appellant slipped at work causing a twisting injury to
his left knee. Dr. Mann noted that following the July 2010 injury appellant was allowed to drive
with a brace on his left knee and that the contemporaneous medical records inaccurately referenced
his right knee.
By decision dated December 20, 2018, OWCP modified the March 30, 2018 decision,
finding that appellant had established a diagnosis in connection to the work injury, but failed to
provide medical evidence establishing causal relationship between the accepted August 9, 2016
employment incident and the diagnosed left knee condition.

3

On March 13, 2019 appellant requested reconsideration of the December 20, 2018 OWCP
decision. In a January 3, 2019 report, Dr. Mann repeated that appellant’s left knee “gave way”
during a slip and twist injury at work. He opined that his diagnosed condition was due to his work
injury.
By decision dated March 20, 2019, OWCP modified the March 30, 2018 decision, finding
that appellant had not established that an employment incident occurred in the performance of duty
on August 9, 2016, as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.7 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.8 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of

3

Supra note 1

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
8

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9
A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 7.

4

action.10 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether the case has been established. An employee’s statements
alleging that an injury occurred at a given time and in a given manner is of great probative value
and will stand unless refuted by strong or persuasive evidence.11
ANALYSIS
The Board finds that the case is not in posture for decision.
On his October 31, 2016 claim form, appellant alleged that he injured his left knee on
August 9, 2016 when he slipped and twisted his left knee while at work. He sought medical
treatment on October 25, 2016 from Dr. Mann and provided a sworn affidavit confirming these
facts on October 27, 2016.
The Board finds, as OWCP had found in its decisions dated December 19, 2016, June 13,
2017, December 20, 2018, that appellant has established that the incident involving slipping and
twisting his left knee while at work occurred on August 9, 2016, as alleged. Appellant provided
consistent statements on his claim form, in his sworn statement, and to Dr. Mann which establish
that the alleged employment incident occurred on August 9, 2016. Appellant has provided a single
account of the mechanism of injury that has not been refuted by any evidence in the record.12
While Dr. Mann initially reported on October 25, 2016 that appellant’s left knee gave way on
August 9, 2016 when he twisted his left knee while stepping over a large vehicle frame, he
subsequently further explained in his December 20, 2017 report that appellant had been working
in the wash rack area on August 9, 2016, getting up and down, and twisting his left knee, when he
slipped on the wet floor while walking around the large vehicle he was working on as a mechanic.
As noted above, a claimant’s statement that an injury occurred at a given time, place, and in a
given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.13 As Dr. Mann specifically clarified in his December 20, 2017 report that appellant was
working and twisting his left knee on August 9, 2016 and that he thereafter slipped/left knee gave
out on a wet floor, the Board therefore finds that appellant has established that the August 9, 2016
employment incident occurred in the performance of duty, as alleged.

10

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

11

S.W., Docket No. 19-0653 (issued November 21, 2019); M.C., Docket No. 18-1278 (issued March 7, 2019); D.B.,
58 ECAB 464, 466-67 (2007).
12

B.S., Docket No. 19-0524 (issued August 8, 2019).

13

Supra note 11.

5

As appellant has established that the August 9, 2016 employment incident factually
occurred, the question becomes whether this incident caused a personal injury.14 The Board will,
therefore, remand the case for consideration of the medical evidence. Following this and other
such further development as deemed necessary, OWCP shall issue a de novo decision addressing
whether appellant has met his burden of proof to establish an injury or condition causally related
to the accepted August 9, 2016 employment incident.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 20, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: January 27, 2020
Washington, DC

Patricia H. Fitzgerald, Deputy 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

14

Supra note 12.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WESTERN NEW YORK VETERANS
ADMINISTRATION HOSPITAL, Buffalo, NY,
Employer
__________________________________________

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

Docket No. 07-1137
Issued: September 20, 2007

Case Submitted on the Record

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

JURISDICTION
On March 21, 2007 appellant filed a timely appeal from a November 9, 2006 merit
decision of the Office of Workers’ Compensation Programs, affirming that she did not sustain a
recurrence of disability beginning April 13, 2005, and a January 24, 2007 nonmerit decision,
denying her request for an oral hearing. Pursuant to 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 established that she sustained a recurrence of
disability beginning April 13, 2005 causally related to her August 6, 2004 employment injuries;
and (2) whether the Office properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On August 6, 2004 appellant, then a 61-year-old nurse, sustained injury to her lower back
and legs as a result of lifting a patient from the floor. She stated that the patient did not want to

stand up and when he buckled his knees she and a coworker tried to keep him from falling to the
floor. The Office accepted appellant’s claim for lumbosacral, left leg and thigh strains.
On April 19, 2005 appellant filed a claim alleging that she sustained a recurrence of
disability on April 13, 2005. In an accompanying statement, she related that her legs had
increasingly worsened which made it difficult for her to stand for long periods of time or walk
any amount of time or distance. Appellant walked to work on one of her jobs and experienced
pain after walking four blocks. She contended that her problems had not resolved since her
employment-related injury. On April 13, 2005 her attending neurosurgeon advised her not to lift
more than five pounds and recommended that she use a walker. On May 7, 2005 appellant
accepted the employing establishment’s April 13, 2005 job offer as a modified registered nurse
based on physical restrictions set forth by Dr. Gregory J. Bennett, an attending Board-certified
neurosurgeon.
On appellant’s recurrence of disability claim form, the employing establishment stated
that following the August 6, 2004 employment injuries, she had returned to full-time work with
no accommodations or adjustments to her regular work duties due to the accepted employment
injuries.
By letters dated May 13 to June 22, 2005, Delphine Ziolkowski, an employing
establishment program specialist, controverted the claim. She stated that appellant also worked
at the Roswell Park Cancer Institute as a nuclear medicine technician. Ms. Ziolkowski
contended that appellant performed full-duty work for nine months but failed to relate any job
duties or environment to any condition she sustained until she received the results of an
unauthorized magnetic resonance imaging (MRI) scan. She further contended that a physical
therapist’s progress notes indicated that appellant was involved in an automobile accident on
October 3, 2004 and that she subsequently sustained increased back pain.
By letter dated May 24, 2005, Bertha Ann Robinson, a nurse manager, questioned
whether appellant’s inability to perform full-duty work was due to her blood pressure or
employment-related injury. She stated that, in August 2004, a physician believed that she could
return to full-duty work as of August 27, 2004.
In an April 13, 2005 report, Dr. Bennett noted the increased size of appellant’s disc
herniation at L4-5 based on an April 1, 2005 MRI scan in comparison to an October 15, 1999
MRI scan. On physical examination, he reported intact strength throughout appellant’s legs and
noted that she walked slowly with moderate discomfort in the examination room. Dr. Bennett
cautioned her against heavy stresses on the spine and against falls.
In a June 15, 2005 report, Dr. Bennett noted appellant’s complaint of back and left leg
pain and reported normal findings on physical examination. He diagnosed lumbar disc
herniation at L4-5 and prescribed continued light-duty work for appellant for 12 weeks.
A July 27, 2005 report of Andrea R. Schmitt, a nurse practitioner, noted appellant’s
complaints of back and right leg pain and a tingling sensation in her lower extremity.
Ms. Schmitt reported normal findings on physical examination. She diagnosed moderate
radiculopathy of the lumbosacral spine and moderate lumbar disc herniation at L4-5. In a

2

July 27, 2005 prescription, Ms. Schmitt stated that appellant was not able to lift, push or pull
more than five pounds. In addition, appellant could not return to full-duty lifting due to the
diagnosed condition.
On August 25, 2005 the Office received reports dated September 18 to October 26, 2004
from Dr. Joseph F. Corigliano, a family practitioner, who opined that appellant sustained a
lumbar strain and sciatica due to the August 6, 2004 injury. Dr. Corigliano indicated with an
affirmative mark that the diagnosed conditions were caused by the August 6, 2004 employment
injuries. He stated that appellant did not miss work due to this injury.
In an August 17, 2005 report, Dr. Kevin J. Gibbons, a Board-certified neurosurgeon,
noted appellant’s complaints of back and leg pain. He reported normal findings on physical
examination and diagnosed right-sided lumbar disc herniation.
By letter dated September 14, 2005, the Office advised appellant to submit additional
factual and medical evidence. The Office requested that the employing establishment respond to
appellant’s statements and provide information including her job description and physical
requirements and whether she was performing regular full-time work prior to the alleged
recurrence of disability.
In a September 14, 2005 report, Ms. Schmitt noted normal findings on physical and
neurological examination. She diagnosed moderate lumbosacral radiculitis. Ms. Schmitt
recommended that appellant continue to avoid bending and lifting and pushing greater than five
pounds. She found that appellant could perform light-duty work at the employing establishment
as a registered nurse.
By letter dated September 17, 2005, appellant stated that she hurt her back on
December 9, 1997 when she tripped over a lead shield. She started experiencing back
discomfort in October 1999 and, at that time, an MRI scan demonstrated disc problems.
Appellant had no further problems until the August 6, 2004 employment injury. She reiterated
that her leg pain had worsened and that she had difficulty standing and walking.
By letter dated September 26, 2005, Ms. Ziolkowski reiterated that appellant lost no time
from work following the August 6, 2004 injury. She returned to full unrestricted duties on
August 27, 2004. Ms. Ziolkowski related that appellant worked part time, one to two days per
week, at the employing establishment. She also worked full time at the Roswell Park Cancer
Institute.
By decision dated November 3, 2005, the Office denied appellant’s recurrence of
disability claim. The evidence of record failed to establish that she sustained a recurrence of
total disability beginning April 13, 2005 causally related to her August 6, 2004 employment
injuries. On December 2, 2005 appellant requested a review of the written record by an Office
hearing representative.
On December 13, 2005 the Office received Dr. Bennett’s March 29, 2005 prescription.
He diagnosed moderate radiculopathy of the lumbosacral spine. It also received progress notes
dated November 1 and 18, 2004 from appellant’s physical therapists which addressed her lumbar
spine and lower extremity problems. Dr. Corigliano’s February 21 and July 21, 2005 progress
3

notes stated that appellant suffered from hypertension, urinary tract infection and obesity. His
June 27 and July 20, 2005 treatment notes addressed appellant’s back pain, blood in her urine
and her request for a handicap sticker.
A February 17, 2006 report of Natalie Passmore, a nurse practitioner, found that appellant
sustained a lumbosacral disc herniation at L5-S1. A February 9, 2006 report of Dr. Zachary D.
Grossman, a Board-certified radiologist, found that appellant had a normal radioiodine thyroid
scan and radioiodine uptake.
By decision dated April 11, 2006, an Office hearing representative affirmed the
November 3, 2005 decision. The hearing representative found that the medical evidence was
insufficient to establish that appellant sustained a recurrence of disability beginning April 13,
2005 causally related to her August 6, 2004 employment-related injuries.
In a letter dated September 1, 2006, appellant requested reconsideration of the hearing
representative’s April 11, 2006 decision.
By decision dated November 9, 2006, the Office denied modification of the April 11,
2006 decision.
In a letter dated December 27, 2006, appellant requested an oral hearing before a hearing
representative.
In a January 24, 2007 decision, the Office Branch of Hearings and Review denied
appellant’s request for an oral hearing. It found that the issue could be equally well addressed
through a request for reconsideration by submitting evidence not previously considered
establishing that she sustained a recurrence of disability on April 13, 2005 due to her August 6,
2004 employment injuries.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.1 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.2
A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which she claims
1

20 C.F.R. § 10.5(x).

2

Id.

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compensation is causally related to the accepted employment injury.3 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between her recurrence of disability and her employment injury.4 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.5 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.6
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.7 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.8 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.9
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained lumbar, left leg and thigh strains while in the
performance of duty on August 6, 2004. She claimed that beginning April 13, 2005, her
recurrent back and lower extremity problems were causally related to the accepted employment
injuries. The Board finds that appellant has failed to submit sufficient medical evidence to
establish that her claimed recurrent back and lower extremity problems were caused or
aggravated by her accepted employment-related injury.
The reports of Dr. Bennett and Dr. Gibbons found that appellant sustained a herniated
disc at L4-5. However, neither Dr. Bennett nor Dr. Gibbons provided an opinion on the causal
relationship between appellant’s disability beginning April 13, 2005 and her August 6, 2004
employment-related injuries. The physicians did not explain how or why this herniated disc was
caused by the accepted injury. The Board has held that medical reports not supported by medical
rationale are of limited probative value.10

3

Kenneth R. Love, 50 ECAB 193, 199 (1998).

4

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

5

Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

6

Alfredo Rodriquez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

7

See Ricky S. Storms, supra note 5; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).
8

For the importance of bridging information in establishing a claim for a recurrence of disability, see Richard
McBride, 37 ECAB 748 at 753 (1986).
9

See Ricky S. Storms, supra note 5; Morris Scanlon, 11 ECAB 384, 385 (1960).

10

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

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Dr. Bennett’s June 15, 2005 prescription directed appellant to perform light-duty work
for 12 weeks. He did not explain how her disability for work beginning April 13, 2005 was
causally related to her accepted injury, which was accepted for strains to her legs and back. The
Board finds that the medical evidence from Dr. Bennett is of diminished probative values as he
did not adequately address the issue of causal relation.11
Dr. Corigliano found that appellant sustained a lumbar strain and sciatica. He indicated
with an affirmative mark that her conditions were caused by the August 6, 2004 employment
injuries. Dr. Corigliano noted that appellant did not miss work due to her accepted injury. It is
well established that a report which only addresses causal relationship with a checkmark without
more by way of medical rationale explaining how the incident caused the injury, is insufficient to
establish causal relationship and is of diminished probative value.12 Dr. Corigliano did not opine
whether appellant was disabled on or after April 13, 2005 due to her accepted injury.
Dr. Corigliano’s July 21, 2005 progress note listed hypertension, urinary tract infection
and obesity. He addressed her back pain, blood in her urine and her request for a handicap
sticker. These reports are of limited probative value as they address conditions not accepted by
the Office. Dr. Corigliano did not address whether appellant had any current lumbar or lower
extremity conditions or disability causally related to her August 6, 2004 employment injury.
Dr. Corigliano’s September 18 and October 20 and 26, 2004 reports found that appellant
sustained a lumbar strain and sciatica. In a February 21, 2005 progress note, he opined that she
also had hypertension and obesity. In a December 3, 2004 report, Dr. Bennett found that
appellant sustained lumbar radiculopathy at the L5-S1 level on the right. His March 29, 2005
prescription stated that she had moderate radiculopathy of the lumbosacral spine. This evidence
predates the alleged recurrence of disability beginning on April 13, 2005. This evidence is
therefore not relevant to the issue of whether her disability after April 13, 2005 is related to the
August 6, 2004 employment injury.
The reports and prescription of Ms. Schmitt and Ms. Passmore, nurse practitioners, and
the progress notes from appellant’s physical therapists, do not constitute probative medical
evidence. Neither a nurse practitioner13 nor a physical therapist14 is “a physician” as defined
under the Federal Employees’ Compensation Act. Therefore, these reports do not constitute
competent medical evidence to support appellant’s claim.

11

Id.

12

Id.

13

See Sean O Connell, 56 ECAB ___ (Docket No. 04-1746, issued December 20, 2004). See also 5 U.S.C.
§ 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. See also
Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that a medical opinion, in general, can
only be given by a qualified physician).
14

See David P. Sawchuk, 57 ECAB ___ (Docket No. 05-1635, issued January 13, 2006).

6

Appellant failed to submit rationalized medical evidence establishing that her disability
beginning on April 13, 2005 resulted from the effects of her employment-related lumbar, left leg
and thigh strains. The Board finds that she has not met her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.15 Section 10.615 of the federal regulations
implementing this section of the Act provides that a claimant shall be afforded a choice of an
oral hearing or a review of the written record.16 The Office’s regulations provide that the request
must be sent within 30 days of the date of the decision for which a hearing is sought and also that
the claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.17
Additionally, the Board has held that the Office, in its broad discretionary authority in the
administration of the Act,18 has the power to hold hearings in certain circumstances where no
legal provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.19 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of the Act and Board precedent.20 Moreover,
the Board has held that the Office has the discretion to grant or deny a hearing when the request
is for a second hearing on the same issue.21
ANALYSIS -- ISSUE 2
The Office issued a decision on November 3, 2005, finding that appellant did not sustain
a recurrence of disability beginning April 13, 2005 causally related to her August 6, 2004
employment injuries. She requested and received a review of the written record on April 11,
2006 which affirmed the Office’s November 3, 2005 decision. Appellant then requested
reconsideration of the November 3, 2005 and April 11, 2006 decisions from the Office on
September 1, 2006. By decision dated November 9, 2006, the Office denied modification of its
prior decisions. Appellant requested another hearing before an Office hearing representative by
15

5 U.S.C. § 8124(b)(1).

16

20 C.F.R. § 10.615.

17

Id. at § 10.616(a).

18

5 U.S.C. §§ 8101-8193.

19

Marilyn F. Wilson, 52 ECAB 347 (2001).

20

Teresa M. Valle, 57 ECAB ___ (Docket No. 06-438, issued April 19, 2006). See Federal (FECA) Procedure
Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).
21

See Steven A. Anderson, 53 ECAB 367, 369-70 (2002); Johnny S. Henderson, 34 ECAB 216, 219 (1982).

7

letter dated December 27, 2006.
This hearing request was denied by the Office on
January 24, 2007. The Board finds that appellant was not entitled to a hearing as a matter of
right because she had previously received a hearing on the same issue22 and had previously
requested reconsideration of the Office’s November 3, 2005 and April 11, 2006 decisions.23 As
appellant previously obtained review before the Branch of Hearings and Review and review by
the district Office on reconsideration, the Office properly found that she was not entitled to a
hearing as a matter of right.
The Board finds that the Office properly exercised its discretion in determining that
appellant’s case could be addressed equally well by requesting reconsideration and submitting
evidence not previously considered to the district Office. An abuse of discretion is generally
shown through proof of manifest error or a clearly unreasonable exercise of judgment.24 The
Office properly advised appellant that she could seek reconsideration with additional evidence.
It did not abuse its discretion in denying her request for a second hearing.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability beginning April 13, 2005 causally related to her August 6, 2004 employment injuries.
The Board further finds that the Office properly denied appellant’s request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the January 24, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed as modified. The Office’s November 9, 2006
decision is affirmed.
Issued: September 20, 2007
Washington, DC

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
22

Id.

23

See Teresa M. Valle, supra note 20.

24

See Delmont L. Thompson, 51 ECAB 155 (1999).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO, FIREARMS &
EXPLOSIVES, Walnut Creek, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1869
Issued: May 4, 2016

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 September 7, 2015 appellant filed a timely appeal of a March 13, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from November 29, 2013 the date of the most recent OWCP merit decision, to the
filing of the 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 appellant’s
claim.2

1
2

5 U.S.C. § 8101 et seq.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from March 13, 2015, the date of OWCP’s last decision was
September 9, 2015. Since using September 14, 2015, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is September 7, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and failing to demonstrate clear evidence of error.
FACTUAL HISTORY
On August 9, 2012 appellant, then a 59-year-old fingerprint technician, filed an
occupational disease claim (Form CA-2). She attributed stress and vomiting to a hostile working
environment. Appellant indicated that she became aware of her condition and its relation to her
federal employment on July 31, 2012. She worked intermittently before she was terminated on
April 4, 2014.
Appellant submitted multiple medical reports assessing stress-related depression, anxiety,
migraines, and a history of high blood pressure.
By letter dated August 31, 2012, OWCP informed appellant of the type of evidence
needed to establish her claim.
By decision dated February 1, 2013, OWCP denied appellant’s claim because she failed
to submit a factual statement outlining specific details surrounding her claim.
Appellant submitted medical reports advising that she had two myocardial infarctions in
January and March 2013.
In April 27 and May 18, 2013 narrative statements, appellant claimed that she
experienced sexual harassment and stalking from security officers J.G. and a second unnamed
officer whom she claimed put his fingers under her bra and snapped it against her back. She also
alleged discrimination and retaliation from her supervisors D.R. and J.L. Appellant further
claimed that Coworker T.K. pointed long guns and dry fired at her, her supervisors failed to
promote her in favor of T.K., she was subject to a hostile work environment, her work was
sabotaged, and her supervisors refused to grant her reasonable accommodations, and advanced
sick leave. She contended that D.R. and J.L. were attempting to bankrupt her by keeping her in
nonpay status, she was given unsatisfactory performance evaluations in retaliation for filing
complaints against her supervisors, she was restricted from entering the laboratory, she was
placed on administrative leave after a dispute with T.K., she was erroneously found absent
without leave, a fellow coworker, C.D. violently threw a pen to intimidate her, and she was
yelled at and called a liar by D.R. Appellant noted that she submitted formal Equal Employment
Opportunity (EEO) complaints regarding discrimination and a complaint with the employing
establishment’s Internal Affairs Division regarding her sexual harassment claim. She claimed
that these incidents caused two heart attacks, depression, vomiting, panic attacks, vertigo,
migraines, loss of vison, anxiety, high blood pressure, and pain in the neck, chest, back, and hips.
By letter dated August 1, 2013 and received on August 6, 2013, appellant requested
reconsideration and reiterated assertions that she made in her May 18, 2013 statement.

2

In a February 13, 2013 e-mail to appellant, J.L. advised that appellant was approaching
240 hours of advanced sick leave and that once she exceeded that amount she would be required
to use leave without pay to cover her medical appointments.
Several documents regarding a proposed five-day suspension were submitted. Appellant
alleged that C.D. violently threw a pen to intimidate her in front of D.R. She was given a
July 16, 2012 proposed five-day suspension for making false allegations against C.D. An
August 22, 2013 memorandum from J.L. advised that the proposed five-day suspension was
rescinded. He advised that, although the disciplinary action was warranted, it was no longer
timely. Other documents from the employing establishment included a July 9, 2012
memorandum to appellant advising her that she was being placed on leave restriction for six
months with strict guidelines for taking leave. The memorandum advised that she was required
to provide medical documentation verifying treatment and informed her that failure to follow the
instructions provided would result in her absences being charged as absence without leave
(AWOL). In an October 24, 2012 memorandum, the employing establishment gave appellant a
notice of a proposed three-day suspension for being absent without leave from October 10
through 12, 2012. It advised that she failed to follow the procedures for taking leave as found in
the July 9, 2012 memorandum.
In a September 10, 2013 statement, D.R. denied the allegations made by appellant. She
contended that appellant had a proclivity to lie and fabricate stories. D.R. advised that these lies
became detrimental to her technical caseload and created a hostile working environment.
In a September 26, 2013 statement, J.L. denied the allegations made by appellant. He
noted that any stress sustained by appellant was related to her lack of performance and disruptive
conduct. J.L. noted that prior investigations by internal affairs and videotape evidence negated
appellant’s allegations.
By decision dated November 29, 2013, OWCP denied modification of its prior decision,
finding that appellant failed to establish any compensable work factors and that evidence did not
establish that the employing establishment erred or abused its discretion in its administrative
decisions. As appellant did not substantiate the factual element of her claim, OWCP did not
consider the medical evidence submitted.
Appellant continued to submit medical evidence.
In April 3, 17, and 18, 2012 e-mails to John Herring, an EEO representative, appellant
alleged that she became ill after meeting with J.L. and D.R. who advised her that she would be
punished harshly if she continued to communicate with Mr. Herring while on duty. She also
alleged that she witnessed the Walnut Creek Police question T.K. on April 16, 2012. Appellant
noted that she was unaware as to the reason, but speculated that it was related to her claim that
T.K. pointed a firearm in her direction while clicking it. She indicated that the following day her
credentials and pass card were taken, she was escorted out of the building, and placed on
administrative leave. Appellant argued that T.K. should have been placed on administrative
leave instead of her.

3

In an April 20, 2012 memorandum to G.C., the deputy assistant director, T.K. disputed
the allegation that she pointed guns at appellant and pulled the trigger. She contended that
appellant was psychologically unstable and that she feared for her safety. A May 24, 2012
memorandum from T.K. to J.L. and D.R. was submitted. T.K. detailed her interaction with
appellant and denied allegations made by appellant.
In a July 6, 2012 e-mail, J.L. advised that, the day before appellant’s scheduled workrelated travel, she notified him that she lost her government purchase card and cancelled her
travel plans as a result. He further noted that she had an outstanding fee of $6.49 which she was
required to pay without reimbursement, as the employing establishment was unable to accept
vouchers months after they were due.
On December 15, 2014 OWCP received a request for reconsideration dated
November 27, 2014. Appellant submitted both new and previously submitted evidence.
An October 10, 2012 e-mail from D.R. was submitted acknowledging receipt of
appellant’s message that she would be out on sick leave. Appellant also submitted an
October 10, 2012 e-mail to J.L. advising that she called him at 7:30 a.m. to inform him that she
would be taking sick leave that day. She noted that she was unable to reach him. Appellant also
submitted an October 19, 2012 e-mail sent to J.L. advising him that she asked her physician for a
certificate to verify the visit. However, J.L. did not think it was necessary as he previously
submitted documentation that she was under his care. Appellant noted that she did not have
control over what her physician chose to provide and indicated that it was retaliatory,
discriminatory, and cruel to find her AWOL when she was sick.
Appellant submitted several witness statements from former coworkers. In a June 29,
2013 statement, A.P. advised that she never witnessed appellant being violent or threatening.
She further noted that, although they had disagreements appellant was always professional and
courteous. In an April 30, 2014 e-mail, A.P. advised that she did not agree with anything D.R.
and J.L. did and that she filed a discrimination suit of her own. In a September 27, 2013
statement, J.M., appellant’s former coworker, advised that she never exhibited anger or
aggression and was very mild mannered. In a September 12, 2013 statement, F.H., appellant’s
former coworker, advised that she enjoyed a good relationship with D.R. until she had a neck
and shoulder injury. She claimed that after her injury she was demeaned, threatened, discredited,
stalked, interrogated, and treated with severe injustice. F.H. listed other employees who left due
to unfair treatment by D.R. She attached a complaint that she filed against D.R. for
discrimination. In a July 6, 2013 e-mail to appellant, R.G., appellant’s former supervisor at the
employing establishment, advised that he never witnessed her display any violent behavior.
Appellant submitted a July 8, 2013 decision from the Department of Justice where M.M.,
an applicant of the employing establishment, alleged that she was discriminated against on the
basis of her transgender status. The decision found that the employing establishment
discriminated against her.
Appellant argued that this showed that D.R. engaged in
discriminatory practices against her as well.
In an undated statement, appellant advised that she was ambushed at her home on
April 4, 2014 and wrongfully terminated. She noted that the employing establishment disputed

4

her entitlement to unemployment benefits because she was terminated for misconduct.
Appellant advised that A.S., special agent for the employing establishment, testified that the
source of the misconduct was mostly appellant filing a sexual harassment claim.
A decision from a September 9, 2014 hearing at the Oakland Office of the California
Unemployment Appeals Board noted that appellant challenged a determination that she was not
entitled to unemployment benefits. It advised that she was discharged after an investigation by
the employing establishment failed to confirm her allegations of sexual harassment. The judge
ruled that the employing establishment failed to prove that appellant was terminated for
misconduct and found that she was entitled to unemployment benefits.3
In a decision dated March 13, 2015, OWCP denied appellant’s request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
On appeal appellant argues the merits of her claim and made new allegations. She
contends that OWCP committed error by allowing D.R. and J.L. more time to complete their
statements in response to her claims than she was allowed. Appellant also argued that the
March 13, 2015 decision was authored by a reconsideration examiner who she believed was
employed by the employing establishment.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant’s application for review must be received within one year of the date of that decision.4
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.5
OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is untimely filed, it must nevertheless
undertake a limited review to determine whether the application demonstrates clear evidence of
error.6 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for

3

The employing establishment failed to appear at a preceding July 22, 2014 hearing. As it was able to establish
good cause, the administrative law judge allowed a new September 9, 2014 hearing.
4

20 C.F.R. § 10.607(a). 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 its decision for which review is sought for merit
decisions issued on or after August 29, 2011.
Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011). 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). See also Chapter 2.1602.4b.
5

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

6

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

5

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.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.8 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 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.12
ANALYSIS
The Board finds that, in its March 13, 2015 decision, OWCP properly determined that
appellant filed an untimely request for reconsideration. Appellant’s reconsideration request
dated November 27, 2014 was not received by OWCP until December 15, 2014. Because
appellant’s reconsideration request was not received within one year of the November 29, 2013
merit decision, appellant must demonstrate clear evidence of error by OWCP.13
The Board further finds that appellant did not show clear evidence of error by OWCP in
its November 29, 2013 decision. The evidence submitted by appellant did not raise a substantial
question concerning the correctness of OWCP’s decision. It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.14
Appellant submitted numerous statements from former coworkers advising that she was
neither violent, nor threatening. Various statements and evidence indicated that other employees
also filed complaints alleging discrimination against D.R. and the employing establishment. The
Board finds that, although this evidence was new, it was not relevant because it did not directly
7

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a)
(October 2011). OWCP procedures further provide that 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 an error.
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.
8

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

9

See Leona N. Travis, 43 ECAB 227, 240 (1991).

10

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

11

See supra note 7.

12

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

13

See 20 C.F.R. § 10.607(a) (an application for reconsideration must be received by OWCP within one year of
the date of OWCP’s decision for which review is sought).
14

Id. at § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

6

relate to appellant’s claim. Evidence that other employees alleged discrimination is not relevant
to whether appellant was exposed to compensable work factors that caused her claimed
conditions. Such irrelevant evidence cannot serve as a basis for reopening appellant’s claim.15
Appellant submitted a statement alleging that she was wrongfully terminated on
April 4, 2014. She also submitted a decision from a state unemployment appeals court which
determined that she was entitled to unemployment benefits as the employing establishment failed
to prove that she was discharged for misconduct. A state unemployment court’s characterization
of appellant’s termination was not at issue at the time of the November 29, 2013 merit decision.
Furthermore, it is well established that decisions of other federal agencies or governmental
bodies are not dispositive to issues raised under FECA. Decisions made by such tribunals are
pursuant to different statutes which have varying standards for establishing eligibility for
benefits.16 This evidence is insufficient to establish clear evidence of error.
Several medical reports were submitted with appellant’s request for reconsideration. As
OWCP found that there were no compensable factors of employment, the underlying issue is
factual in nature and medical evidence is insufficient to establish clear evidence of error.17
Appellant resubmitted several documents previously considered by OWCP. However,
she has not sufficiently explained how resubmission of this evidence is insufficient to raise a
substantial question as to the correctness of OWCP’s decision. Thus, this resubmitted evidence
is insufficient to show clear evidence of error.18
On appeal, appellant argues the merits of her claim and asserted new allegations.
However, as noted, the Board does not have jurisdiction over the merits of the claim. Appellant
also contends that OWCP gave her supervisors more time to draft a response to her allegations
than she was given. However, this allegation does not raise a substantial question as to the
correctness of OWCP’s decision. Appellant argues that the March 13, 2015 decision was
seemingly authored by someone employed by the employing establishment and that this
constituted clear evidence of error. The Board notes that the decision was authored by an OWCP
reconsideration examiner. OWCP typically sends the employing establishment a copy of its
decisions and the address provided under the reconsideration examiner’s name was the address
that the decision was forwarded to.
Appellant has not provided any argument or evidence of sufficient probative value to
shift the weight of the evidence in her favor and raise a substantial question as to the correctness

15

See E.R., Docket No. 09-599 (issued June 3, 2009) (to establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by OWCP; this evidence must be positive, precise and explicit and
must manifest on its face that OWCP committed an error).
16

Andrew Fullman, 57 ECAB 574 (2006).

17

See supra note 15.

18

See L.M., Docket No. 14-1734 (issued March 3, 2015) (duplicate medical reports which were previously
considered did not demonstrate clear evidence of error).

7

of OWCP’s November 29, 2013 decision. Consequently, OWCP properly denied her
reconsideration request as her request does not demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and failing to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 13, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 4, 2016
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