United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rockingham, NC, Employer
__________________________________________

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

Docket No. 13-1263
Issued: September 20, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 30, 2013 appellant filed a timely appeal of the decision of the Office of
Workers’ Compensation Programs (OWCP) dated December 21, 2012 denying appellant’s claim
for an employment injury. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an employment-related
injury to her left foot on February 23, 2012, as alleged.
On appeal, appellant contends that nobody established that she was injured outside of
work. She also made negative comments about her supervisor, contended that the employing
establishment made her work against physician’s orders and stated that other employees have
had their claims covered.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 25, 2012 appellant, then a 36-year-old city carrier, filed a traumatic injury claim
alleging that on February 23, 2012 she fractured metatarsals in her left foot while working her
route. In a July 6, 2012 letter, the employing establishment controverted her claim, noting that
she claimed that she hurt her foot on February 23, 2012 but did not file a claim at that time. The
employing establishment also indicated that appellant and her husband owned a farm and that
there was a possibility that the injury occurred there.
In a March 28, 2012 report, Dr. Harvey H. Wolf, a Board-certified internist, indicated
that appellant was there for follow up on multiple arthralgias. He noted that she stated that she
had broken her left foot and that Dr. A. Anthony Haro, III, her treating podiatrist, put her in a
boot but that she was still delivering mail. Dr. Wolf noted that appellant had broken her foot at
least one other time. He noted that he cannot explain how she broke the foot. Dr. Wolf stated:
“Maybe she just overuses that foot delivering the mail. It is just so curious in a premenopausal
woman.” He also noted that appellant wasconsiderably overweight and that may be a part of
hercurrent problem.
Appellant submitted numerous progress reports by Dr. Haro.In a March 20, 2012 report,
Dr. Haro diagnosed fracture of the second metatarsal with positive signs of callus forming. He
further noted that appellant reportedpain for approximately one month. Dr. Haro stated that she
should use crutches with instructions for nonweight-bearing left foot with exception of heel
touch for balance. In an April 18, 2012 report,hediagnosed follow up of second left metatarsal
fracturewith resolution of pain and positive signs of bone consolidation. In a May 7,2012 report,
Dr. Haronoted that appellant was initially diagnosedin clinic around March 20,2012 with
pasthistory of approximately one month prior to that of pain for which she was doing well;
however, she indicated that after increased walking over time and work for the employing
establishment and walking on postop shoe there was a return of pain and swelling. He diagnosed
metatarsal fracture left second with incomplete consolidation and pain with swelling inleft foot.
In a May 21, 2012 note, Dr. Haro ordered limited weight-bearing as tolerated for left foot while
wearing cam boot. In a June 8, 2012 report,heindicated that appellant returned for follow-up
with regard to left second metatarsal fracture. Dr. Haro diagnosed status post second left
metatarsal fracture with date of fracture being March 30, 2012 with positive signs of bone
consolidation occurring, edema and pain with reported episodes of burning in left foot and
soreness in right foot.
In a July 16, 2012 letter, the employing establishment further challenged appellant’s
claim, noting that her medical records indicate that she is obese and show past history of
cellulitis and abscess of foot, pain and possible gout.
By decision dated August 20, 2012, OWCP denied appellant’s claim as it determined that
the evidence did not establish that the events occurred as alleged. It also noted that the medical
evidence did not establish that she had a diagnosed medical condition causally related to the
work injury or event.
On September 18, 2012 OWCP appellant requested a review of the written record.In
further support of her claim, appellant submitted magazine or internet articles with regard to

2

employees being unable to work and an article on fractures of the first and fourth metatarsals.
She also submitted a statement dated September 18, 2012 wherein she noted that, on
February 23, 2012, while walking in Hamlet city, she was nearly unable to finish the walking
and received help to finish the route. Appellant noted that she continually walked on her foot in
pain until March 19, 2012 when she visited Dr. Haro. She stated that when x-rays were taken of
her foot it was found that she had been walking on a fractured second and third metatarsal the
whole time. Appellant stated that, despite the physician’s note putting heron light duty for two
weeks with a boot, she was not given light duty. She contended that, after being worked against
physician’s orders on numerous occasions, she was placed in the boot and began hurting again
on May 7, 2012. Appellant statedthat she was placedon light duty again but was made to workon
May 8, 2012 and that, after carrying that route, she informed management that, if they could not
offer her light duty, she would be off for two weeks per her physician’s note. She noted that she
walked many miles with a soft cast on her foot. Appellant also resubmitted the reports of
Dr. Haro that were already in the record.
By decision dated December 21, 2012, OWCP modified the August 20, 2012 decision to
find that there was evidence to support incident but that the evidence was insufficient to support
causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.3
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place and in the manner
alleged.4

2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

4

Linda S. Jackson, 49 ECAB 486 (1998).

3

The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.5 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
ANALYSIS
OWCP accepted that appellant established that the employment incident occurred as
alleged by her. However, it denied her claim as it found that she had not established that she
sustained an injury causally related to the employment incident of February 23, 2012.
Although the medical evidence establishes that appellant fractured her left foot, there is
no rationalized medical evidence that supports that she sustained an injury causally related to the
incidents of February 23, 2012. Dr. Wolf indicated that it was possible that she fractured her
foot delivering mail, but that it was curious in a premenopausal woman. His opinion is vague,
speculative and insufficient to carry the weight of the evidence.7 Dr. Haro never positively
attributed appellant’s fractured foot to her employment activities of February 23, 2012. He noted
that she complained of pain while working and discusses his treatment of her. Dr. Haro noted
that, when appellant first saw him on March 20, 2012, she had pain in the left foot for one
month. However, the mere fact that a condition became evident during a period of employment
does not establish causation.8
Appellant also submitted magazine or internet articles in support of her claim. The Board
has held that such articles lack evidentiary value as they are of general application and not
determinative of whether specific conditions are causally relate to the particular employment
factors in a claim.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was caused by his employment is sufficient to
establish causal relationship.10 As appellant did not submit a rationalized medical opinion
5

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

6

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

7

G.S., Docket No. 11-1939 (issued April 17, 2012).

8

A.N., Docket No. 11-809 (issued January 17, 2012); see also Robert G. Morris, 48 ECAB 238,239 (1996).

9

K.R., Docket No. 11-34 (issued August 2, 2011).

10

Walter D. Morehead, 31 ECAB 188 (1986).

4

establishing a causal relationship between her accepted employment activities and a diagnosed
medical condition, she has failed to meet her burden of proof.
Appellant submitted new evidence on appeal. However, the Board lacks jurisdiction to
review such evidence for the first time on appeal.11
Appellant may submit this or any other new evidence or argument with a written request
for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained an employment-related
injury to her left foot on February 23, 2012, as alleged.
ORDER
IT IS HEREBY ORDERED THATthe December 21, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 20, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

11

See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Middleburg Heights, OH, Employer
__________________________________________

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

Docket No. 19-0997
Issued: October 21, 2019

Case Submitted on the Record

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

JURISDICTION
On April 9, 2019 appellant, through counsel, filed a timely appeal from a March 14, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left foot condition
causally related to the accepted factors of his federal employment.

1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 18, 2018 appellant, then a 56-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he sustained a “lesion plantar nerve left” due to factors of his
federal employment. He indicated that he first became aware of his condition and first realized it
was caused or aggravated by his federal employment duties on June 12, 2017. Appellant did not
stop working.
In a development letter dated June 26, 2018, OWCP advised appellant of the deficiencies
of his claim and instructed him as to the factual and medical evidence necessary to establish his
claim. It afforded him 30 days to submit additional evidence and respond to its inquiries.
By decision dated August 6, 2018, OWCP denied appellant’s claim finding that the
evidence of record did not establish that any injury, accident, or employment exposure occurred
and therefore, the factual component of fact of injury had not been established. It concluded that
he had not met the requirements to establish an injury as defined by FECA.
On August 13, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted a June 12, 2017 report from Dr. Joseph R. Bartal, a podiatrist, who
diagnosed lesion of plantar nerve, left, and indicated that appellant had suffered a similar condition
a year prior in the right second intermetatarsal space.
A telephonic hearing was held before an OWCP hearing representative on
January 15, 2019. Appellant testified that he had worked as a letter carrier for 21 years and then
retired in September 2018. He stated that, prior to his retirement, his federal duties required him
to walk for 1.5 hours per day, including walking on uneven surfaces and across lawns. The hearing
representative held the case record open for 30 days for the submission of additional evidence.
OWCP did not receive additional evidence.
By decision dated March 14, 2019, OWCP denied appellant’s claim. It accepted that his
federal employment required walking on uneven surfaces and crossing lawns as alleged, but denied
the claim finding that the medical evidence of record was insufficient to establish causal
relationship between his diagnosed left foot condition and the accepted factors of his federal
employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an 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

3

Id.

2

injury.4 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee. 6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. 8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left foot
condition causally related to the accepted factors of his federal employment.
The Board finds that Dr. Bartal did not adequately explain how appellant sustained the
claimed injury. While he diagnosed a lesion of the left plantar nerve, Dr. Bartal did not identify
the specific employment factors alleged by appellant and did not provide a pathophysiological
explanation as to how those activities either caused or contributed to appellant’s diagnosed
condition.10 He did not opine that appellant’s left foot condition was a direct result of the accepted
factors of his federal employment. Medical evidence that does not offer an opinion regarding the
cause of an employee’s condition or disability is of no probative value on the issue of causal
relationship.11 Additionally, the Board has held that neither the mere fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or condition

4

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
5

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

8

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

9

Id.; Victor J. Woodhams, supra note 6.

10

Supra note 8 and 9.

11

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

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was caused or aggravated by employment factors or incidents is sufficient to establish a causal
relationship.12
As appellant has not submitted rationalized medical evidence to establish his claim of a left
foot condition causally related to the accepted employment factors, he has not met his burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left foot
condition causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 21, 2019
Washington, DC

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

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

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

12

See J.L., Docket No. 18-1804 (issued April 12, 2019).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Syracuse, NY, Employer
__________________________________________

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Appearances:
Christina Faliero, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1142
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On July 22, 2021 appellant filed a timely appeal from a May 25, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated May 8, 2020, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.3
1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the May 25, 2021 decision, OWCP received additional evidence. 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 17, 2019 appellant, then a 58-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on May 17, 2019 he injured his right hip when he slipped and fell
on a patient’s urine while in the performance of duty. He indicated that he did “the splits” with
his right leg slid backwards behind him and felt immediate discomfort in the area of the right
posterior hip. Appellant did not stop work.
In a medical report dated August 6, 2019, Dr. Michael T. Clarke, a Board-certified
orthopedic surgeon, indicated that appellant related complaints of right hip pain , which he
attributed to hyperextending the right hip when he slipped in liquid on May 17, 2019. He noted
that he experienced immediate pain in the posterior right hip and, on physical examination, he
documented mild deep hip irritation, tenderness over the ischial tuberosity, and pain with
hyperextension. Dr. Clarke reviewed x-rays, which revealed mild degenerative changes and
femoral neck thickening. He diagnosed right hip pain and offered a differential diagnosis of
potential hamstring tear versus posterior labral tear. Dr. Clarke recommended magnetic resonance
imaging (MRI) scan of the right hip.
A report of an MRI scan of the right hip dated August 30, 2019 demonstrated mild
osteoarthropathy, a tear of the anterior superior labrum, and a mild partial tear of the right common
hamstring origin.
In a follow-up report dated September 6, 2019, Dr. Clarke reviewed the MRI scan results
and diagnosed right hip pain. He opined that appellant’s pain was originating in the proximal
hamstring, and that the May 17, 2019 employment incident was a competent medical cause of the
injury. Dr. Clarke recommended physical therapy and medication.
In an October 18, 2019 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence necessary, including a
narrative medical report from his treating physician containing a detailed description of findings
and a diagnosis, explaining how his work activities caused, contributed to, or aggravated his
medical conditions. OWCP afforded appellant 30 days to submit the requested information.
Thereafter, OWCP received a report dated October 1, 2019 from Elizabeth Lannier, a
physical therapist, who noted that appellant related right hip pain, which he attributed to a workrelated hyperextension injury of the right hip. Ms. Lannier recommended various therapeutic
exercises and modalities. Additional notes dated October 3 through November 5, 2019
documented physical therapy treatments for the right hip.
In a follow-up report dated October 22, 2019, Dr. Clarke diagnosed right hip pain and
hamstring tendinosis. He performed a cortisone and lidocaine injection.
In an attending physician’s report (Form CA-20) dated November 14, 2019, Dr. Clarke
diagnosed right hip labral tear, right hip partial tear common hamstring, right hamstring tendinosis,
2

and right hip pain. He answered in the negative as to whether appellant had a history of a
preexisting injury and checked a box marked “Yes” indicating that the diagnosed conditions were
caused when appellant hyperextended his right hip after slipping on a vinyl floor at work.
By decision dated November 27, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he had not submitted medical evidence establishing a causal relationship between his
diagnosed conditions and the accepted May 17, 2019 employment incident. Consequently, it
found that he had not met the requirements to establish an injury or medical condition causally
related to the accepted employment incident.
OWCP continued to receive evidence including physical therapy notes dated November 8
through 29, 2019.
In a December 3, 2019 follow-up note, Dr. Clarke noted that appellant had experienced
significant relief of his right hip pain f ollowing the cortisone injection and opined that his
complaints and examination findings were related to the May 17, 2019 employment incident.
In a report dated January 14, 2020, Dr. Clarke indicated that appellant was working full
duty with ongoing complaints of discomfort in his right buttock. He diagnosed right hip pain and
ischial tendinosis of the hamstring insertion and opined that forcible contraction of the hamstring
during his fall “could clearly have caused this problem” and “should be related to” his claim.
Dr. Clarke injected the area with a steroid.
On February 21, 2020 appellant requested reconsideration of OWCP’s November 27, 2019
decision.
By decision dated May 8, 2020, OWCP denied modification of its prior decision, finding
that appellant had not provided rationalized medical opinion eviden ce supporting causal
relationship between his accepted employment incident and his diagnosed medical conditions .
On May 6, 2021 appellant, through counsel, requested reconsideration of the May 8, 2020
decision. Counsel contended that OWCP erred in issuing its May 8, 2020 decision. She explained
that Dr. Clarke’s medical reports were sufficient to establish causal relationship and that his reports
were not speculative.
By decision dated May 25, 2021, OWCP denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a), finding that his request for reconsideration
neither raised substantial legal questions, nor included new or relevant evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a
matter of right. 4 OWCP has discretionary authority in this regard and has imposed certain

4

5 U.S.C. § 8128(a).

3

limitations in exercising its authority. 5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought. 6
A timely request for reconsideration, including all supporting documents, must set forth
arguments, and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not p reviously
considered by OWCP. 7 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In support of his request for reconsideration, appellant, through counsel, argued that OWCP
erred in finding that his claim required a fully rationalized medical opinion in order to establish a
causal relationship between his diagnosed medical conditions and the accepted May 17, 2019
employment incident. The Board finds, however, that appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal
argument not previously considered by OWCP. Accordingly, he is not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under section
10.606(b)(3). 9
Appellant also did not submit any new medical evidence. The underlying issue in this case
is causal relationship, which is medical in nature, and he did not submit any pertinent new and
relevant medical evidence not previously considered by OWCP. Therefore, appellant is not
entitled to further review of the merits of his claim based on the third requirement under section
10.606(b)(3). 10

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued
February 20, 2020).
8

Id. at § 10.608.

9

Id. at § 10.606(b)(3); see also C.C., Docket No. 19-1622 (issued May 28, 2020); M.S., Docket No. 18-1041 (issued
October 25, 2018); C.N., Docket No. 08-1569 (issued December 9, 2008).
10

See 20 C.F.R. § 10.606(b)(3)(iii).

4

The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Baltimore, MD, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-701
Issued: August 15, 2012

Case Submitted on the Record

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

On February 9, 2012 appellant filed a timely appeal from a September 23, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration as it was untimely and did not establish clear evidence of error. The Board
docketed the appeal as No. 12-701.1
The Board has reviewed the record on appeal and finds that the case must be remanded to
OWCP for application of the appropriate standard of review to appellant’s timely request for
reconsideration of a May 16, 2008 schedule award decision. By decision dated July 8, 2004,
OWCP granted him a schedule award for a 10 percent permanent impairment of the right lower
extremity. In a merit decision dated February 10, 2005, it denied modification of its July 8, 2004

1

Appellant submitted a timely request for oral argument before the Board under 20 C.F.R. § 501.5(b). Pursuant
to 20 C.F.R. § 501.5(a), oral argument may be held in the discretion of the Board. The Board has duly considered
the matter and finds that his request for oral argument is denied. The Board finds that oral argument would delay
issuance of a Board decision and would not serve a useful purpose. Appellant’s contentions are addressed in this
decision based on the record as submitted.

decision.2 On October 26, 2007 OWCP denied appellant’s request for reconsideration of the
February 10, 2005 decision after finding it untimely and not sufficient to demonstrate clear
evidence of error. In November 2007, appellant appealed the October 26, 2007 decision to the
Board. By decision dated May 16, 2008, OWCP denied his claim for a schedule award for the
upper extremities.3
On May 23, 2008 appellant made a timely request for reconsideration of the May 16,
2008 schedule award decision finding that he had not established a permanent impairment of the
upper extremity. OWCP, however, informed him that, as the schedule award issue was presently
before the Board, it could not take any action on his request.
On February 17, 2009 appellant questioned why OWCP could not consider his May 23,
2008 request for reconsideration given that it had issued the May 16, 2008 decision while his
appeal of the October 26, 2007 decision was pending before the Board. On December 23, 2009
he noted that he had requested reconsideration of the May 16, 2008 decision on May 23, 2008.
On May 29, 2010 and September 12, 2011 appellant again requested reconsideration of the
May 16, 2008 decision.4 He referenced his previously submitted request for reconsideration on
May 23, 2008.
By decision dated September 23, 2011, OWCP denied appellant’s request for
reconsideration as it was untimely and insufficient to establish clear evidence of error.
The Board finds that appellant timely requested reconsideration of the May 16, 2008
decision on May 23, 2008. In its September 23, 2011 decision, OWCP determined that he was
requesting reconsideration of the last merit decision issued, which it found was the Board’s
August 15, 2008 decision affirming a nonmerit denial of reconsideration. Appellant, however,
clearly requested that OWCP adjudicate his timely request for reconsideration of the May 16,
2008 schedule award decision.5 As his May 23, 2008 request for reconsideration was made
within a year of the May 16, 2008 decision, it was timely. In its September 23, 2011 decision,
OWCP applied the clear evidence of error standard. This standard is the appropriate standard
2

In a nonmerit decision November 1, 2004, OWCP denied appellant’s request for reconsideration of the July 8,
2004 decision. On August 1, 2006 it denied his request for reconsideration of the February 10, 2005 decision as it
was untimely and insufficient to show clear evidence of error. Appellant appealed to the Board. In an order dated
February 9, 2007, the Board vacated the August 1, 2006 decision after finding that OWCP failed to transmit the case
record for review. Docket No. 06-1852 (issued February 9, 2007).
3

In a decision dated August 15, 2008, the Board affirmed the October 26, 2007 nonmerit decision. Docket No.
08-331 (issued August 15, 2008); petition for recon. denied, Docket No. 08-331 (issued May 5, 2009).
4

On May 29, 2010 appellant requested reconsideration of a purported June 24, 2009 decision; however, there is
no decision on that date under this file number.
5

OWCP found that it could not consider appellant’s May 23, 2008 request for reconsideration as he had appealed
to the Board. However, at the time of his May 23, 2008 request for reconsideration, he had appealed OWCP’s
October 26, 2007 nonmerit decision denying his request for reconsideration of its finding regarding the extent of his
right lower extremity impairment. Appellant’s May 23, 2008 request for reconsideration was on a separate issue,
the question of whether he had a permanent impairment of an upper extremity. Consequently, OWCP and the Board
did not have concurrent jurisdiction over the same issue in a case. 20 C.F.R. § 10.626; see also Douglas E. Billings,
41 ECAB 880 (1990).

2

only for cases in which a reconsideration request is untimely filed.6 Since OWCP erroneously
reviewed the request for reconsideration under the clear evidence of error standard, the Board
will remand the case to OWCP for application of the standard for reviewing a timely request for
reconsideration set forth at 20 C.F.R. § 10.606(b)(2).7 After such development as OWCP deems
necessary, it should issue an appropriate decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 23, 2011 is set aside and the case is remanded for
further proceedings consistent with this order of the Board.
Issued: August 15, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6

See Donna M. Campbell, 55 ECAB 241 (2004).

7

Section 10.606(b)(2) provides that an application for reconsideration must show that OWCP erroneously applied
or interpreted a specific point of law, advance a relevant legal argument not previously considered by OWCP, or
include the submission of relevant and pertinent new evidence not previously considered by OWCP. 20 C.F.R.
§ 10.606(b)(2).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, STATUE OF
LIBERTY NATIONAL MONUMENT,
Liberty Island, NY, Employer
__________________________________________

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Appearances:
Paul A. Smith, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1103
Issued: September 4, 2013

Case Submitted on the Record

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

JURISDICTION
On April 3, 2013 appellant, through his attorney, filed a timely appeal from a
December 19, 2012 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying his reconsideration request. There is no merit decision issued within 180 days
of April 3, 2013, the date appellant filed his appeal with the Board. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does
not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

On appeal, counsel acknowledged that after appellant filed a timely September 28, 2010
request for reconsideration of OWCP’s November 6, 2009 merit decision, he “asked that no
further action be taken” until the submission of additional medical evidence. He asserted that
OWCP did not properly consider appellant’s request for reconsideration after submission of
additional evidence. Counsel contends that appellant’s reconsideration request was timely filed.
FACTUAL HISTORY
On September 21, 2009 appellant, then a 62-year-old emergency medical technician
coordinator, filed a traumatic injury (Form CA-1) claiming that while stepping out of his vehicle
on September 20, 2009 he sustained lumbar pain radiating into the right leg.2 He stopped work
on September 20, 2009. In a September 25, 2009 letter, an employing establishment supervisor
confirmed that appellant went to the hospital on September 20, 2009 for back pain.
In a September 23, 2009 letter, OWCP advised appellant of the additional evidence
needed to establish his claim. It requested factual evidence regarding the September 20, 2009
incident and a statement from his attending physician explaining how and why that incident
would cause the claimed lumbar injury. Appellant was afforded 30 days to submit such
evidence.
Appellant submitted September 20, 2009 hospital emergency room discharge instructions
for a back sprain and a September 30, 2009 report from Dr. Burak Alptekin, an attending
physiatrist, who diagnosed sacroiliac dysfunction attributable to a September 20, 2009 incident.
In an October 21, 2009 note, Dr. Alptekin released appellant to full duty as of October 25, 2009.
In an October 15, 2009 letter to Dr. Alptekin, appellant described a July 2008 occupational
lumbar injury while retrieving an oxygen bottle.
By decision dated November 6, 2009, OWCP denied appellant’s claim on the grounds
that causal relationship was not established. It accepted that the September 20, 2009 incident
occurred at the time, place and in the manner alleged. OWCP found, however, that appellant
submitted insufficient medical evidence to establish that the accepted incident caused or
aggravated a back condition.
In a September 28, 2010 letter, appellant requested reconsideration of the November 6,
2009 decision. He submitted an August 28, 2008 lumbar x-ray report and a chart note regarding
a February 17, 2009 lumbar epidural steroid injection. Appellant also provided a September 20,
2009 form report from a physician whose signature is illegible. It noted a history of spinal
stenosis and diagnosed a back sprain/strain with right-sided sciatica.
In an October 19, 2010 letter, counsel requested that OWCP “refrain from further action”
on appellant’s September 28, 2010 reconsideration request until counsel obtained the requested
information from appellant’s treating physician. “We will supplement the record once it is
received.”

2

Appellant filed a second Form CA-1 on October 7, 2009 for the same incident. On November 4, 2009 he
claimed that the September 20, 2009 injury was not a traumatic incident but a recurrence of disability.

2

In a November 1, 2010 letter, OWCP advised counsel that, in compliance with his
October 19, 2010 letter, it would take no further action on appellant’s September 28, 2010
reconsideration request. If appellant wished to pursue reconsideration of his claim, counsel was
asked to contact OWCP.
Counsel next contacted OWCP by June 2, 2011 letter, enclosing a May 11, 2011 report
from Dr. Alptekin, who attributed a lumbar sprain and right sacral disorder to a July 2008 work
incident. In a September 1, 2011 letter, OWCP asked counsel if he wanted to pursue
reconsideration.
On March 5, 2012 appellant claimed a schedule award. He submitted a November 14,
2011 impairment rating by Dr. Morris Horwitz, a physician specializing in legal and forensic
medicine, finding a four percent impairment of the right lower extremity due to lumbar
radiculopathy according to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment. In a July 20, 2012 letter, OWCP advised counsel that it
could not process the schedule award claim as appellant’s injury claim had been denied. It noted
that, if he still wished to appeal, he should follow the instructions attached to the November 6,
2009 decision.
In a December 7, 2012 letter, counsel requested clarification regarding the status of
appellant’s claim. He asserted that appellant’s “request for reconsideration was timely filed,
however, it was never acted upon by [OWCP].” Counsel submitted copies of documents
previously of record.
By decision dated December 19, 2012, OWCP denied reconsideration on the grounds that
appellant’s December 7, 2012 letter requesting reconsideration was not timely filed and failed to
present clear evidence of error. It found that counsel withdrew appellant’s September 28, 2010
request for reconsideration. OWCP further found that the evidence submitted was insufficient to
create a substantial question regarding the correctness of OWCP’s November 6, 2009 decision
denying the claim or to establish any procedural error by OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA3 does not entitle a claimant to a review of an OWCP decision
as a matter of right.4 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.5 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is filed
within one year of the date of that decision.6 The Board has found that the imposition of this
3

5 U.S.C. § 8128(a).

4

Thankamma Mathews, 44 ECAB 765, 768 (1993).

5

Id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

6

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority;
see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

3

one-year time limitation does not constitute an abuse of the discretionary authority granted
OWCP under 5 U.S.C. § 8128(a).7
In those cases where requests for reconsideration are not timely filed, OWCP must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its regulations.8
OWCP regulations state that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in OWCP’s regulations, if the claimant’s
request for reconsideration shows “clear evidence of error” on the part of OWCP.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
decided by OWCP.10 The evidence must be positive, precise and explicit and must be manifest
on its face that OWCP committed an error.11 Evidence which does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error.12 It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion.13 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error by OWCP.14 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.15
ANALYSIS
In its December 19, 2012 decision, OWCP properly determined that appellant failed to
file a timely application for review.
It issued its most recent merit decision on
November 6, 2009. Appellant initially requested reconsideration on September 28, 2010, within
one year of the November 6, 2009 decision. Counsel withdrew appellant’s timely request for
reconsideration on October 19, 2010, asking that OWCP take no further action until additional
medical evidence was submitted. OWCP advised counsel by November 1, 2010 letter that it take
no action on appellant’s reconsideration request and that counsel should contact OWCP if
appellant wished to request reconsideration in the future.
7

5 U.S.C. § 10.607(b); supra note 4, Jesus D. Sanchez, supra note 5.

8

Supra note 4.

9

20 C.F.R. § 10.607(b).

10

Supra note 4.

11

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

12

Jesus D. Sanchez, supra note 5.

13

Supra note 11.

14

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

15

Gregory Griffin, supra note 6.

4

Counsel submitted additional medical evidence with a June 2, 2011 letter, but did not
request reconsideration. On a September 1, 2011 OWCP asked counsel if he wished to pursue
reconsideration. Appellant claimed a schedule award on March 5, 2012 but did not request
reconsideration. OWCP again advised counsel in a July 20, 2012 letter that he should follow the
appeal rights accompanying the November 6, 2009 decision if he still sought to appeal. Counsel
submitted a December 7, 2012 letter contending that OWCP had failed to act on appellant’s
September 28, 2010 reconsideration request. He enclosed documents previously of record.
OWCP denied the December 7, 2012 request in a December 19, 2012 decision finding that it was
not timely filed and failed to present clear evidence of error.
The Board finds that the December 7, 2012 reconsideration request was not timely filed.
It must now be determined whether the request demonstrated clear evidence of error in OWCP’s
November 6, 2009 decision. The Board finds that counsel’s December 7, 2012 letter does not
raise a substantial question as to whether the November 6, 2009 decision was in error or shift the
weight of the evidence in appellant’s favor. Therefore, it is insufficient to establish clear
evidence of error.
The medical evidence submitted following the November 6, 2009 decision did not
address the causal relationship between the September 20, 2009 workplace incident and the
claimed lumbar injury; the issue at the time of the November 8, 2009 merit decision. The
August 28, 2008 x-ray report and February 17, 2009 chart note predate that incident.
Dr. Alptekin’s May 11, 2011 report does not address causal relationship and Dr. Horwitz’
impairment rating is not relevant to the issue of causal relationship in establishing appellant’s
claim of injury. Therefore, these reports do not establish clear evidence of error.16 The
September 20, 2009 report is unattributed and therefore cannot be considered as medical
evidence.17 Accompanying his December 7, 2012 letter, counsel submitted copies of evidence
previously of record. The Board has held that evidence that repeats or duplicates evidence
previously submitted is insufficient to prima facie shift the weight of the evidence in favor of the
claimant.18
Appellant has not provided any argument or evidence of sufficient probative value to
shift the weight of the evidence in his favor or raise a substantial question as to the correctness of
OWCP’s November 6, 2009 decision. Consequently, OWCP properly denied his reconsideration
request as his request does not establish clear evidence of error.
On appeal, counsel acknowledges that he instructed OWCP not to take action on
appellant’s timely September 28, 2010 request for reconsideration. He asserts, however, that
OWCP should have considered the withdrawn request as timely. As noted, after counsel
withdrew appellant’s timely reconsideration request, he did not submit a request for
reconsideration within one year of the November 6, 2009 decision. OWCP advised counsel of
this deficiency by letters dated November 1, 2010, September 1, 2011 and July 20, 2012.
16

Supra note 11.

17

See Merton J. Sills, 39 ECAB 572, 575 (1988).

18

D.E., 59 ECAB 438 (2008).

5

Counsel did not request reconsideration until December 7, 2012. OWCP properly denied
counsel’s December 7, 2012 request as it was untimely filed and did not present clear evidence
of error.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not present clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 19, 2012 is affirmed.
Issued: September 4, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
DEPARTMENT OF THE AIR FORCE,
LACKLAND AIR FORCE BASE, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-2209
Issued: June 28, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

Appellant, a 55-year-old air conditioning equipment mechanic, has an accepted claim for
right eye laceration and traumatic cataract, which occurred on March 12, 2007. He underwent
surgery on March 13, 2007, which included an intraocular lens implant. By decision dated
May 14, 2010, the Office granted appellant a schedule award for 15 percent impairment of visual
system, right eye. It based the award on the district medical adviser’s (DMA) May 5, 2010
report, which in turn was based on the February 22, 2010 examination findings of Dr. William F.
Davitt III, a Board-certified ophthalmologist and Office referral physician.1 Appellant filed the
instant appeal on August 30, 2010.
The Board finds that the case is not in posture for decision. The Federal Employees’
Compensation Act provides that the “degree of loss of vision ... is determined without regard to
correction.”2 Following the May 1, 2009 implementation of the sixth edition of the A.M.A.,
Guides, the procedure manual noted with respect to loss of vision that the percentage of
impairment “continues to be based on best uncorrected vision.”3 (Emphasis added.) Both the
1

Appellant’s impairment was calculated based on the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment.
2

5 U.S.C. § 8107(c)(19) (2006); see D.F., 59 ECAB 288, 290 (2007).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4c (January 2010).

Office referral physician and the DMA relied on appellant’s “best corrected vision” in
calculating his visual system impairment. Once the Office undertakes development of the
record, it must do a complete job in procuring medical evidence that will resolve the relevant
issues in the case.4 As the medical evidence developed by the Office was based in part on an
analysis of appellant’s best corrected vision, the case will be remanded for further development.
After the Office has developed the case record to the extent it deems necessary, a de novo
decision shall by issued.
IT IS HEREBY ORDERED THAT the May 14, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: June 28, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4

Richard F. Williams, 55 ECAB 343, 346 (2004).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.G., Appellant
and
DEPARTMENT OF THE NAVY,
Bremerton, WA, Employer
__________________________________________

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

Docket No. 17-0494
Issued: July 6, 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 3, 2017 appellant filed a timely appeal from an August 10, 2016 merit decision
and a November 17, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant established that her claimed increased hearing loss
is causally related to her accepted occupational exposure; and (2) whether OWCP properly denied
appellant’s request for reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence with her appeal to the Board. The Board’s jurisdiction is limited to
reviewing the evidence which was before OWCP at the time of its decision. Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262
(issued December 5, 2012).

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts follow.
On May 5, 2015 appellant, then a 56-year-old pipefitter leader, filed an occupational
disease claim (Form CA-2) alleging that her binaural hearing loss was caused by factors of her
federal employment. She indicated that she first became aware of her condition and its relationship
to her federal employment on January 2, 2004.4 By decision dated July 28, 2015, OWCP denied
appellant’s claim for compensation as the medical evidence of record failed to demonstrate that
the claimed hearing loss in the present claim was causally related to the accepted employmentrelated noise exposure. Appellant filed an appeal to the Board. The Board set aside and remanded
the case for OWCP to further develop the medical evidence for a reasoned opinion regarding
whether she had an increased hearing loss due to her accepted employment injury. The Board
explained that the second opinion physician, Dr. Randolph, a Board-certified otolaryngologist,
provided an opinion in appellant’s prior claim, File No. xxxxxx125, that she had a work-related
binaural hearing loss of 28 percent for which she received a schedule award on March 10, 2008.
The Board found that his most recent report was dated July 20, 2015, and was in conflict with his
prior report and was insufficient to resolve the issue of whether she was entitled to an increased
schedule award.
Following the remand, by letter dated July 15, 2016, OWCP requested that Dr. Randolph
provide a supplemental opinion clarifying his opinion from July 20, 2015 and his January 16, 2007
report. It noted that, in his January 16, 2007 report, under claim, File No. xxxxxx125, he opined
that appellant sustained industrial noise-related hearing loss. However, in a July 20, 2015 report,
in the present claim, Dr. Randolph opined that her progressive hearing loss since 1984 was in a
manner not consistent with hearing loss due to work noise exposure. OWCP requested an opinion
with regard to whether appellant sustained an increased hearing loss beginning October 10, 2006,
due to work-related noise exposure. It noted that a new statement of accepted facts (SOAF) was
being provided and advised that she retired on July 3, 2015.
In a July 19, 2016 supplemental report, Dr. Randolph explained that he had not been
provided with the prior claim information from 2006 when he made his report. He related that,
prior to 2006, there was audiometric evidence that appellant’s hearing loss had likely been
aggravated by noise exposure in those frequencies generally affected by noise. However,
Dr. Randolph indicated that since 2006, more information had become available, which included
that she had a significant increase in her hearing loss since the claim of 2006. He explained that a
review of the materials revealed that appellant’s hearing had not increased in severity in those
frequencies affected by noise since the prior evaluation performed in 2006. Dr. Randolph
explained that the ratable hearing loss did increase significantly due to an increase in hearing loss
3

Docket No. 15-1750 (issued June 15, 2016).

4

The record reflects that appellant had filed a prior claim for a schedule award (Form CA-7) under OWCP Master
File No. xxxxxx125. In that file OWCP accepted occupational hearing loss and referred appellant to Dr. Gerald
Randolph, a Board-certified otolaryngologist and a second opinion physician for an impairment evaluation. Appellant
was awarded a schedule award for 28 percent binaural hearing loss on March 10, 2008.

2

in the lower frequencies, which were not generally affected by industrial noise exposure. He
explained that the new SOAF did not reveal any significant industrial noise exposure prior to
February 2000. Dr. Randolph opined that his extensive review revealed that “on a more likely
than not basis, [appellant’s] hearing loss had not increased in severity due to industrial noise
exposure since placement of her prior claim of 2006.”
By decision dated August 10, 2016, OWCP denied appellant’s schedule award claim for
increased hearing loss, as the evidence did not establish increased hearing loss due to occupational
exposure.
On a September 14, 2016 appellant requested reconsideration arguing that she did not
know where Dr. Randolph got the impression that she was not exposed to noise during her last
nine years of employment. She indicated that she was a pipefitter from 1988 to 2015 when she
retired and explained that she was “never away from noise exposure.” Appellant noted that
Dr. Randolph was inconsistent with regard to his opinions on hearing loss. She also advised that
a comparison of her audiograms from 2006 and 2015 revealed a decrease in hearing in each of the
frequencies. Appellant argued that the difference was the degree of hearing loss and her noise
exposure partially or wholly caused her additional hearing loss. She enclosed a copy of the
audiograms utilized by Dr. Randolph to formulate his July 20, 2015 opinion.
By decision dated November 17, 2016, OWCP denied appellant’s request for
reconsideration finding that statements and the audiograms submitted were insufficient to warrant
a merit review of the case.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA5 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that any specific condition or disability for work for which he or she claims
compensation is causally related to the employment injury.6
In an occupational disease claim, to establish that an injury was sustained in the
performance of duty, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;7 (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition;8 and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.9

5

Supra note 1.

6

See Jacquelyn L. Oliver, 48 ECAB 232 (1996).

7

Michael R. Shaffer, 55 ECAB 386 (2004).

8

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

9

Beverly A. Spencer, 55 ECAB 501 (2004).

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A claim for an increased schedule award may be based on new employment exposure;
however, additional occupational exposure is not a prerequisite. A claim for an increased schedule
award based on additional exposure constitutes a new claim.10 Absent additional employment
exposure, an increased schedule award may also be based on evidence demonstrating that the
progression of an employment-related condition has resulted in a greater permanent impairment
than previously calculated.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that her claimed increased hearing loss
is causally related to her accepted occupational exposure.
As noted in the prior appeal, it is undisputed that appellant was exposed to work-related
noise, which included noise exposure from 1988 to the present as a pipefitter. The record also
reflects that OWCP accepted her claim for noise exposure under claim File No. xxxxxx125. Under
that claim, appellant received a schedule award on March 10, 2008 in the amount of 28 percent for
binaural hearing loss based upon January 29, 2007 reports from Dr. Randolph, who opined that
her hearing loss was work related. Dr. Randolph determined that she had 27.5 percent
employment-related binaural hearing loss and recommended bilateral hearing aids.
Appellant subsequently filed the present occupational disease claim on May 5, 2015
alleging additional hearing loss due to noise exposure while working for the employing
establishment. As she sustained a period of additional exposure, OWCP properly considered it as
a new claim.12
Following remand by the Board, by letter dated July 15, 2016, OWCP provided
Dr. Randolph with a new SOAF and requested that he clarify his opinion with regard to whether
appellant sustained any additional increased employment-related hearing loss subsequent to
October 10, 2006.
In a July 19, 2016 report, Dr. Randolph explained that he was not provided with the prior
claim information from 2006 when he made his report. He related that, prior to 2006, there was
evidence audiometrically that appellant’s hearing loss was aggravated by noise exposure in those
frequencies generally affected by noise. However, Dr. Randolph determined that since 2006, more
information had become available. He indicated that appellant’s hearing loss had not increased in
severity in those frequencies affected by industrial noise exposure since the prior evaluation
performed in 2006. Dr. Randolph explained that the ratable hearing loss did increase significantly
due to an increase in hearing loss in the lower frequencies, which were not generally affected by
industrial noise exposure. He explained that the SOAF did not reveal any significant industrial
10

See James R. Hentz, 56 ECAB 573 (2005); Paul Fierstein, 51 ECAB 381 (2000).

11

Linda T. Brown, 51 ECAB 115 (1999).

12

See James R. Hentz supra note 10; additionally, OWCP’s procedures provide that a claim for an additional
schedule award based on an additional period of exposure to the same work factors, such as often occurs in hearing
loss cases, should be adjudicated as a new claim. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.9(c) (February 2013).

4

noise exposure prior to February 2000. Dr. Randolph opined that his extensive review revealed
that “on a more likely than not basis, [appellant’s] hearing loss had not increased in severity due
to industrial noise exposure since placement of her prior claim of 2006.”
The Board finds that Dr. Randolph’s opinion is based on a review of the evidence and
supported by medical rationale explaining that appellant’s increased hearing loss was not due to
industrial noise exposure since placement of her prior claim of 2006. Dr. Randolph explained that
her hearing had not increased in severity in those frequencies affected by noise since the prior
evaluation performed in 2006. He also related that, while appellant did have an increase in hearing
loss, it was in the lower frequencies, which were not generally affected by industrial noise
exposure. The Board finds that Dr. Randolph’s opinion was sufficient to establish that she has not
shown an increase in her bilateral hearing loss due to additional workplace noise exposure.13
Appellant has not submitted any additional evidence in support of an increased hearing loss for
purposes of an additional schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,14 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(1) Shows that [OWCP] erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
[OWCP].”15
Section 10.608(b) provides that any application for review of the merits of the claim which
does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP
without review of the merits of the claim.16

13

See J.B., Docket No. 15-1474 (issued March 4, 2016).

14

5 U.S.C. § 8128(a).

15

20 C.F.R. § 10.606(b)(3).

16

Id. at § 10.608(b).

5

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly declined to reopen appellant’s claim for
consideration of the merits.
Appellant has not shown that OWCP erroneously applied or interpreted a specific point of
law or advanced a relevant legal argument not previously considered by OWCP.
In support of her request for reconsideration, appellant argued that she did not know where
Dr. Randolph got the impression that she was not exposed to noise during her last nine years of
employment. She explained that she was a pipefitter from 1988 to 2015 when she retired and that
she was “never away from noise exposure.” The Board notes that there is no indication in the
record that she was not exposed to noise and this argument does not have any reasonable color of
validity. Rather, Dr. Randolph explained that the additional hearing loss exhibited was at
frequencies not expected to be lost due to industrial noise exposure.
Appellant also argued that Dr. Randolph was inconsistent with regard to his opinions on
hearing loss. However, the Board finds that he explained his findings before and after her earlier
award for hearing loss. Dr. Randolph explained why appellant’s claim for increased hearing loss
due to occupational factors was not valid in his medical opinion. Thus, this argument does not
show that OWCP erroneously applied or interpreted a point of law nor did it advance a point of
law or fact not previously considered by OWCP.
Appellant also argued that a comparison of her audiograms from 2006 and 2015 revealed
a decrease in hearing in each of the frequencies. She argued that the difference was the degree of
hearing loss and her noise partially or wholly caused her additional hearing loss. Appellant
provided a copy of the referenced audiograms. However, lay persons are not competent to render
a medical opinion.17 The relevant issue in this claim, whether appellant has established an
increased hearing loss causally related to her occupational exposure, is a medical question and
must be resolved by the submission of relevant medical evidence.18 The Board finds that her
general statements and allegations on reconsideration have not otherwise shown that OWCP
erroneously applied or interpreted a point of law nor did it advance a point of law or fact not
previously considered by OWCP. Consequently, appellant is not entitled to a review of the merits
of her claim based on the first and second above-noted requirements under section 10.606(b)(3).
With regard to medical evidence submitted with appellant’s reconsideration request, the
Board notes the audiograms she submitted were previously of record. Material which is
cumulative or duplicative of that already in the record has no evidentiary value in establishing the
claim and does not constitute a basis for reopening a case for further merit review.19
Appellant therefore did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or constitute
17

Jaja K. Asaramo, 55 ECAB 200, 206 (2004).

18

Id.

19

Betty A. Butler, 56 ECAB 545 (2000).

6

new and relevant evidence not previously considered. As she did not meet any of the necessary
regulatory requirements, she is not entitled to further merit review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her claimed
increased hearing loss is causally related to her accepted occupational exposure. The Board also
finds that OWCP properly refused to reopen her case for further review of the merits of her claim
under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 17 and August 10, 2016 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: July 6, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, CLIFFDALE
STATION, Fayetteville, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Daniel F. Read, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1266
Issued: February 8, 2011

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 April 5, 2010 appellant, through counsel, filed a timely appeal from a February 24,
2010 merit decision of the Office of Workers’ Compensation Programs terminating her
compensation benefits. 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 the Office properly terminated appellant’s compensation for
wage-loss and medical benefits effective December 18, 2008 on the grounds that she no longer
had any residuals or disability causally related to his accepted employment-related injury; and
(2) whether she had any continuing employment-related residuals or disability after
December 18, 2008.
On appeal appellant’s counsel contends the Office failed to consider whether her
employment injury aggravated her preexisting left knee condition and that she became totally
disabled following her injury.

FACTUAL HISTORY
On August 27, 2005 appellant, then a 47-year-old casual carrier, sustained a left knee
sprain while walking her route. The Office accepted the claim for left knee strain and authorized
left knee arthroscopic surgery, which was performed on January 3, 2006. It subsequently
accepted synovitis and tenosynovitis of the left knee. By letter dated July 26, 2006, the Office
placed appellant on the periodic rolls for temporary total disability.
In a September 24, 2008 report, Dr. Stephen H. Kouba, a treating Board-certified
orthopedic surgeon, noted that appellant sustained an August 20, 2005 employment-related left
knee sprain and that she had a preexisting history of arthritis with prior surgery in 1991. He
opined that she continued to have preexisting left knee osteoarthritis and that her employmentrelated left knee injury had resolved. Dr. Kouba found that appellant was capable of
employment and released her from his care.1
On October 30, 2008 the Office issued a notice of proposed termination of compensation
benefits.
On December 1, 2008 Dr. Kouba reviewed the October 30, 2008 notice proposing to
terminate appellant’s compensation benefits. He reported that appellant had a left knee problem
consistent with chronic knee pain and osteoarthritis. Dr. Kouba agreed with appellant that it
would be difficult for her to find employment due to her physical restrictions. He related that
appellant wanted to continue with her compensation benefits as she believed she was
unemployable.
By decision dated December 18, 2008, the Office terminated appellant’s medical and
wage-loss compensation effective that day.
Following the December 18, 2008 termination decision, the Office received a
December 1, 2008 disability note from Dr. Kouba stating that appellant was unable to return to
work until further notice.
On May 27, 2009 appellant requested reconsideration of the decision terminating her
benefits.
By nonmerit decision dated June 11, 2009, the Office denied appellant’s request for
reconsideration.
In a letter dated December 8, 2009, appellant’s counsel requested reconsideration. He
contended that appellant’s claim should be accepted for an aggravation of left knee degenerative
joint disease and arthritis. In an October 9, 2009 form report, Dr. Kouba opined that appellant’s
progression and interval development of the anterior and lateral aspect of partial thickness
cartilage loss of the medial femoral condyle was consistent with arthritis. In response to a
question posed by appellant’s attorney, he stated that appellant’s progressive stiffness, inability
1

Dr. Kouba noted that appellant no longer worked as a casual carrier and was attending classes at a local
community college.

2

to bend the knee or walk, and pain with weight bearing was a natural consequence of the left
knee injury. Dr. Kouba noted that a joint sprain or strain involved an articular bone surface
injury which when damaged resulted in accelerating wear of the articular cartilage. He opined
that appellant would not have had this condition without the August 2005 employment injury.
By decision dated February 24, 2010, the Office denied modification of the December 18,
2008 termination decision. It noted that Dr. Kouba failed to provide sufficient explanation on
causal relationship or for changing his September 24, 2008 opinion that appellant’s employmentrelated condition had resolved.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.2 After it has determined that an
employee has disability causally related to his federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.3 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.5 To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.6
ANALYSIS -- ISSUE 1
The Office accepted that on August 27, 2005 appellant sustained a left knee sprain,
synovitis and tenosynovitis of the left knee and authorized arthroscopic surgery, which was
performed on January 3, 2006. It paid medical and wage-loss compensation benefits.
The Office based its decision to terminate appellant’s compensation benefits on the
opinion of Dr. Kouba, her attending Board-certified orthopedic surgeon. On September 24, 2008
Dr. Kouba determined that appellant’s employment-related injury had resolved. He noted
appellant currently had left knee osteoarthritis which was a preexisting condition related to prior
knee surgery in 1991 and not employment related. Dr. Kouba reported that appellant was
capable of returning to work and discharged her from further medical care.

2

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

4

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

5

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

6

Kathryn E. Demarsh, supra note 5; James F. Weikel, 54 ECAB 660 (2003).

3

The Board finds that Dr. Kouba’s September 24, 2008 opinion constitutes the weight of
medical opinion on appellant’s residual disability. Dr. Kouba was appellant’s treating physician
and his opinion that her employment-related injury had resolved is unrefuted by any probative
medical evidence. His report is rationalized and based upon a proper factual background. The
Board finds that the weight of the medical evidence establishes that appellant no longer had any
residuals of her accepted employment-related left knee strain, synovitis or tenosynovitis.
Dr. Kouba concluded that appellant was capable of resuming her employment and released her
from his care, finding that no further treatment was necessitated. He addressed her preexisting
left knee arthritis, but noted it would continue to cause problems. No other medical evidence
contemporaneous with the Office’s termination found disability or residuals due to the accepted
left knee strain, synovitis and tenosynovitis. On December 1, 2008 Dr. Kouba noted appellant’s
belief that she remained unemployable and diagnosed chronic degenerative joint disease of the
patellofemoral compartment. However, he did not attribute this condition to appellant’s accepted
injury. The reports of Dr. Kouba support the Office’s decision to terminate benefits.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to his accepted
injury.7
ANALYSIS -- ISSUE 2
Appellant’s counsel requested reconsideration on December 8, 2009 and submitted an
October 9, 2009 report from Dr. Kouba who advised that appellant’s symptoms were consistent
with arthritis of her left knee and that her employment injury had aggravated her preexisting left
knee osteoarthritis. Dr. Kouba provided no explanation for the change in his opinion from
concluding that appellant’s employment-related left knee condition had resolved to an opinion
that her preexisting left knee osteoarthritis had been aggravated by the August 27, 2005
employment injury. As he failed to provide any reason for the change in his opinion or present
any medical rationale explaining how or why appellant’s employment injury had aggravated her
preexisting left knee osteoarthritis, his opinion is of diminished probative value as it contains
insufficient medical rationale explaining the change in his opinion.8 Thus, appellant has failed to
establish that she has any continuing residuals or disability due to her accepted employment
injury.
On appeal appellant’s counsel contends that the Office failed to consider that the
August 27, 2005 injury aggravated her preexisting left knee osteoarthritis which rendered her
totally disabled and that her claim should be expanded to include this condition. The Board
notes that appellant has the burden of proof to establish that conditions not accepted by the
Office are causally related to the employment injury through the submission of rationalized
medical

7

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

8

Robert Broome, 55 ECAB 339 (2004).

4

evidence.9 The Board finds that the medical evidence of record is presently insufficient to
establish that she sustained an aggravation of her preexisting left knee osteoarthritis condition
due to her work injury. Dr. Kouba did not address any aggravation of appellant’s preexisting
osteoarthritis until his October 9, 2009 report; rather his September 24, 2008 report noted only
that her employment-related condition had resolved. As noted, he did not fully explain
appellant’s prior medical history or how the employment injury had aggravated her preexisting
left knee osteoarthritis.10 Such explanation was especially needed since the Office had not
accepted an aggravation of a preexisting condition as employment related. The Board finds that
his opinion is of diminished probative value as it contains insufficient medical rationale
explaining the change in his opinion other than noting that a joint sprain accelerates articular
cartilage change.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective December 18, 2008. The Board further finds that appellant did
not meet her burden of proof to establish that she had any continuing disability or residuals after
December 18, 2008 causally related to her accepted employment injury.

9

G.A., 61 ECAB ___ (Docket No. 09-2153, issued June 10, 2010); T.M., 60 ECAB ___ (Docket No. 08-975,
issued February 6, 2009); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51 ECAB 638 (2000).
10

Robert Broome, supra note 8.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 24, 2010 is affirmed.
Issued: February 8, 2011
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

6