United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE NATIONAL
OFFICE, Richmond, VA, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-2093
Issued: May 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 10, 2013 appellant, through her attorney, filed a timely appeal from an
August 23, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for cervical surgery. 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 OWCP properly denied appellant’s request for cervical surgery due
to her accepted employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 3, 2009 appellant, then a 60-year-old tax examiner, filed an occupational
disease claim (Form CA-2) alleging that she developed hand, back, neck, shoulder and arm
problems as a result of repetitive data entry from her federal employment duties. By decision
dated March 17, 2010, OWCP accepted the claim for brachial neuritis or radiculitis. Appellant
stopped work and filed a claim for compensation (Form CA-7) for leave without pay beginning
September 26, 2011.
On January 12, 2012 OWCP referred appellant to Dr. Donald Mauldin, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In his February 20, 2012 report,
Dr. Mauldin opined that there was no clear relationship between her symptoms and her
employment, noting that there was no objective documentation as to why work would cause her
brachial neuritis or significant radiculitis. He noted that appellant needed an additional
independent evaluation by a Board-certified neurosurgeon relative to the status of her cervical
spine and should also be seen by a neurologist to determine if her tremors were work related.
Dr. Mauldin stated that, although he was not a spine surgeon, he did not think that anterior
cervical disc fusion would resolve her issues.
By letter dated May 17, 2012, OWCP provided a copy of the independent medical
examination to Dr. Anthony Hicks, appellant’s treating physician Board-certified in internal
medicine, for review and comment.
In a May 22, 2012 report, Dr. Hicks disagreed with Dr. Mauldin’s findings, and noted
that he was not a qualified spinal surgeon and thus his opinion was of limited probative value.
In medical reports dated June 5 to 16, 2012, Dr. Scott Spann, a Board-certified orthopedic
surgeon, diagnosed cervicalgia, spinal stenosis in the cervical region, degeneration cervical four
disc and brachial neuritis/radiculitis. He submitted a request for surgical intervention and
recommended an anterior cervical discectomy and fusion of the C5-6 and C6-7 levels.
The case file was referred to Dr. Michael M. Katz, a district medical adviser (DMA) and
Board-certified orthopedic surgeon, for an opinion on appellant’s diagnosed conditions and
whether surgical intervention was warranted. In a July 31, 2012 report, Dr. Katz diagnosed
brachial neuritis or radiculitis, recommended surgery and opined that the surgical procedure was
related to the accepted work-related injury.
On August 17, 2012 OWCP found a conflict of opinion between the reports of Dr. Hicks
and Dr. Mauldin’s second opinion report. An OWCP Form CA-19A Memorandum Referral
noted that a referee examination was required from a neurosurgeon. It referred appellant, the
case file, a statement of accepted facts and a series of questions to Joshua T. Woody, M.D., for a
referee examination and opinion on appellant’s diagnosed condition, whether she was totally
disabled due to her work injury, whether the surgery requested was due to the accepted work
injury and whether her accepted condition of brachial neuritis and radiculitis was caused by her
work duties.

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In a September 10, 2012 referee report, Dr. Woody opined that the accepted condition of
aggravated brachial neuritis or radiculitis was not caused by appellant’s work duties and that her
condition was a result of age-related degenerative changes. He noted that surgery was due to
cervical degenerative disc disease and central canal stenosis, which was a nonwork-related issue.
By decision dated September 28, 2012, OWCP denied appellant’s request for cervical
surgery finding that the weight of the medical evidence rested with Dr. Woody. It noted that
Dr. Woody concluded that the requested surgery was not a result of the accepted work-related
condition.
By letter dated July 8, 2013, appellant, through counsel, requested reconsideration of
OWCP’s decision. In support of her claim, she submitted additional statements and medical
reports.
By decision dated August 23, 2013, OWCP affirmed the September 28, 2012 decision
denying authorization for cervical surgery because the weight of the medical evidence rested
with Dr. Woody.
LEGAL PRECEDENT
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.2 In situations where there are opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based on a proper factual background, must be given special
weight.3
A referee physician is selected on a rotational basis from the Medical Management
Application. The database of Board-certified physicians used for referee examinations contains
over 30 specialties. The services of all available Board-certified specialists will be used as far as
possible to eliminate the inference of bias or partiality.4 The Board has placed great importance
on the appearance as well as the fact of impartiality and only if the selection procedures which
were designed to achieve this result are scrupulously followed may the selected physician carry
the special weight accorded to an impartial specialist.5
Section 8103(a) of FECA states in pertinent part: The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers
2

5 U.S.C. § 8123(a).

3

Nathan L. Harrell, 41 ECAB 402 (1990).

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b(6)(a-b)
(July 2011).
5

B.S., Docket No. 08-2103 (issued August 21, 2009).

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likely to cure, give relief, reduce the degree or the period of disability or aid in lessening the
amount of the monthly compensation.6 The Board has found that OWCP has great discretion in
determining whether a particular type of treatment is likely to cure or give relief.7 The only
limitation on OWCP’s authority is that of reasonableness.8 Abuse of discretion is generally
shown through proof of manifest error, clearly unreasonable exercise of judgment, or actions
taken which are contrary to both logic and probable deductions from established facts. It is not
enough to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.9 In order to be entitled to reimbursement of medical expenses, it must be shown that
the expenditures were incurred for treatment of the effects of an employment-related injury or
condition.10
ANALYSIS
OWCP determined that a conflict existed between Dr. Hicks, appellant’s treating
physician, and Dr. Mauldin, a second opinion referral physician, regarding the nature and extent
of her employment-related condition, disability and need for surgery. The August 17, 2012
OWCP CA-19A form Memorandum Referral noted that a referee examination was required from
a specialist in the neurosurgery field due to a conflict of opinion. Pursuant to 5 U.S.C. § 8123(a),
it referred appellant to Dr. Woody for an impartial medical evaluation (referee examination) to
resolve the conflict.
The Board has recognized OWCP’s procedures, which provide that the Medical
Management System will select Board-certified physicians,11 in the designated specialty in the
appropriate geographic area.12 A physician who is not Board-certified may be used if he or she
has special qualifications for performing the examination, but the scheduler must document the
reasons for the selection in the case record.13
With respect to the selection of Dr. Woody, he does not appear on the electronic
American Board of Medical Specialties database or in the electronic database of Board-certified
physicians maintained by the American Osteopathic Association. There is no probative evidence
that Dr. Woody was Board-certified at the time of his September 10, 2012 report. While
OWCP’s procedures state that a physician who is not Board-certified may be used if the
physician has special qualifications for performing the examination, the medical management
6

5 U.S.C. § 8103.

7

Vicky C. Randall, 51 ECAB 357 (2000).

8

Lecil E. Stevens, 49 ECAB 673, 675 (1998).

9

Rosa Lee Jones, 36 ECAB 679 (1985).

10

Bertha L. Arnold, 38 ECAB 282, 284 (1986).

11

See B.B., Docket No. 13-320 (issued January 29, 2014).

12

See supra note 4 at Chapter 3.500.4b (July 2011).

13

Id. at Chapter 3.500.4b(6)(f).

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assistant did not document reasons for Dr. Woody’s selection in the case record.14 No evidence
was presented that Dr. Woody was selected for his special qualifications and no documentation
supporting the selection was provided.15
The Board further notes that the CA-19A form directed OWCP to refer appellant for a
referee examination by a Board-certified neurosurgeon specialist. Both Dr. Hicks, appellant’s
treating physician, and Dr. Mauldin, the second opinion referral physician, stated that appellant
should be evaluated by a neurosurgeon. However, there is no indication that Dr. Woody
specializes in neurosurgery.16
Accordingly, the Board finds that OWCP abused its discretion in denying authorization
for appellant’s cervical surgery as it failed to resolve the conflict between Dr. Hicks, appellant’s
treating physician and Dr. Mauldin, OWCP’s second opinion physician.17
Dr. Woody’s report cannot resolve the conflict and therefore, the case will be set aside
and remanded for further development.
CONCLUSION
The Board finds that OWCP abused its discretion in denying appellant’s request for
cervical surgery without properly resolving the conflict in medical opinion.

14

Id.

15

P.T., Docket No. 08-1404 (issued December 9, 2008).

16

J.S., Docket No. 13-523 (issued May 13, 2013).

17

See Paul J. Poulin, Docket No. 03-2034 (issued December 18, 2003).

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ORDER
IT IS HEREBY ORDERED THAT the August 23, 2013 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: May 6, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.N., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, PALM BEACH
INTERNATIONAL AIRPORT,
West Palm Beach, FL, Employer
__________________________________________

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

Docket No. 12-396
Issued: July 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 14, 2011 appellant filed a timely appeal from July 29 and October 19, 2011
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury to the right shoulder causally related to factors of his federal employment on
December 30, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 3, 2011 appellant, then a 42-year-old program analyst, filed a claim for
traumatic injury, alleging that he sustained an injury to his right shoulder on December 30, 2010
while moving a portable on demand storage (PODS) unit. OWCP received the claim on
June 16, 2011.2
By letter dated June 27, 2011, OWCP advised appellant that he should submit further
evidence in support of his claim, including a medical report that provided a diagnosis of his right
shoulder condition and a physician’s opinion explaining the causal relationship to his alleged
work event.
In response, appellant submitted a July 6, 2011 medical report from Dr. Michael
Mikolajczak, an osteopathic physician, who noted that appellant helped three other men move a
PODS unit on December 30, 2010 and had some immediate shoulder pain, which had gotten
progressively worse. Dr. Mikolajczak also noted that appellant had a prior right shoulder injury
a year ago. He diagnosed right shoulder impingement, possible partial rotator cuff tear, but
offered no opinion regarding the cause of this condition.
A July 8, 2011 magnetic resonance imaging (MRI) scan report from Dr. Stanley Higgins,
a Board-certified physician in diagnostic radiology, noted that appellant’s impingement could
have been caused by a “low lying Type I acromion” with respect to the distal clavicle.
On July 29, 2011 OWCP denied appellant’s claim on the grounds that he had failed to
establish that his condition was causally related to his work incident.
After the decision, appellant submitted a July 26, 2011 report from Dr. Mikolajczak,
wherein he noted that the MRI scan showed some tendon changes. Dr. Mikolajczak also
diagnosed appellant with “post[-]traumatic work-related rotator cuff tendinitis with
impingement.”
On August 26, 2011 appellant requested reconsideration of the July 29, 2011 decision.
Along with the request, appellant submitted a supplemental statement wherein he
explained that he had an accepted right shoulder injury which occurred on January 22, 2009. He
submitted a February 2, 2009 medical report from Dr. Mikolajczak, noting a work incident on
January 22, 2009, that led to the onset of shoulder/periscapular pain. Appellant also submitted a
July 6, 2011 report from Dr. Mikolajczak wherein he diagnosed right shoulder impingement and
possible partial rotator cuff tear.
OWCP also received a February 2, 2009 report from Dr. Mikolajczak, who noted that
appellant had onset of right shoulder/periscapular pain while carrying an object at work on
January 22, 2009.
2

Appellant filed a notice on June 16, 2011 alleging a recurrence of his right shoulder condition, with an onset
date of June 8, 2011. He stated that recurrences to his shoulder injury occurred “on and off” after
December 30, 2010.

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On October 19, 2011 OWCP affirmed the denial of appellant’s claim on the grounds that
the medical evidence did not support that his right shoulder condition was causally related to the
December 30, 2011 work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden to establish the essential
elements of his 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, 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. 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.5 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.6
To establish a causal relationship between a claimant’s condition and the employment
event or incident, he must submit rationalized medical opinion evidence based on a complete
factual and medical background supporting such a causal relationship. Rationalized medical
opinion evidence is medical evidence which includes a physician’s 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.7
ANALYSIS
OWCP has accepted that the December 30, 2010 incident occurred as alleged. The Board
finds that the evidence appellant submitted in support of his claim did not provide a rationalized
medical opinion explaining how his right shoulder condition was causally related to the
employment incident. Appellant therefore did not meet his burden of proof.

3

5 U.S.C. §§ 8101-8193.

4

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

6

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

7

Gary J. Watling, 52 ECAB 278 (2001).

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Dr. Higgin’s MRI scan examination of July 8, 2011 indicates that appellant had a
congenital right shoulder condition of low lying Type I acromion with respect to the distal
clavical, which could have caused an impingement syndrome. The record also indicates that
appellant had a previous work-related 2009 right shoulder injury.
While the evidence of record substantiates that appellant experienced right shoulder pain
after helping move a PODS unit on December 30, 2010, he has not submitted a medical report
which correlates the December 30, 2010 event to a diagnosed right shoulder condition, with
supporting medical rationale.
The Board has consistently held that medical reports lacking rationale regarding causal
relationship have little probative value.8 While the medical reports from Dr. Mikolajczak,
appellant’s description of the employment incident, and his onset of right shoulder pain, they did
not provide medical rationale explaining how the incident caused his right shoulder condition.
Such medical explanation is especially important in cases such as this where appellant has
congenital and or preexisting conditions which might be the cause of the current condition. As
such, these medical reports are insufficient to satisfy the causal relationship requirement of his
claim.
Dr. Mikolajczak’s July 26, 2011 medical report opined that appellant’s rotator cuff
tendinitis condition was “work related,” but it did not provide a rational medical basis to support
this conclusion. He did not explain how appellant’s reported injury occurred, given appellant’s
preexisting right shoulder conditions and the mechanics of the PODS move he carried out with
three other individuals on December 30, 2010. The Board has held that medical reports
consisting solely of conclusory statements without supporting rationale are of diminished
probative value.9 In the absence of rationalized medical opinion evidence explaining how
moving a PODS unit caused a diagnosed right shoulder condition, appellant did not meet 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 did not establish that his right shoulder condition was
causally related to his December 30, 2010 employment incident.

8

See Mary E. Marshall, 56 ECAB 420 (2005).

9

William C. Thomas, 45 ECAB 591 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the October 19 and July 29, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 9, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sayville, NY, Employer
__________________________________________

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Appearances:
Jeffrey Amster, for the appellant
No appearance, for the Director

Docket No. 11-189
Issued: August 3, 2011

Oral Argument March 17, 2011

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 2, 2010 appellant, through her representative, filed a timely appeal from a
July 8, 2010 merit decision of the Office of Workers’ Compensation Programs granting her a
schedule award and an October 20, 2010 nonmerit decision of the Office denying her request for
a hearing. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than a one percent permanent impairment
of the right upper extremity; and (2) whether the Office properly denied her request for an oral
hearing as untimely under 5 U.S.C. § 8124.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a decision dated October 14, 2009,
the Board affirmed a November 12, 2008 Office decision finding that appellant received an
overpayment of $10,954.64 for the period December 8, 2005 to April 14, 2006 because she
received both compensation from the Office and leave from the employing establishment.2 It
further affirmed the Office’s finding that she was at fault in creating the overpayment. The facts
and circumstances from the prior decision are hereby incorporated by reference.
The relevant facts pertinent to this appeal will be set forth. The Office accepted that
appellant sustained right calcific tendinitis, right shoulder capsulitis and right medial
epicondylitis due to factors of her federal employment. On January 10, 2008 she filed a claim
for a schedule award. In an impairment evaluation dated July 29, 2009, Dr. Paul Yerys, a Boardcertified orthopedic surgeon, related that appellant had full range of motion of the right shoulder
with no peripheral nerve impairment or complex regional pain syndrome. He noted that she
experienced discomfort using her right arm for internal and external rotation. Dr. Yerys
diagnosed right shoulder impingement syndrome with postoperative scarring of the subdeltoid
bursa due to the work injury. He asserted that appellant had the minimal impairment under the
state workers’ compensation guidelines of 7.5 to 10 percent.
On May 24, 2010 an Office medical adviser reviewed the evidence and applied the sixth
edition of the A.M.A., Guides to Dr. Yerys’ findings. He utilized the diagnosis of impingement
syndrome provided by Table 15-5 on page 402 of the A.M.A., Guides and noted that the default
impairment value was one. The medical adviser applied a grade modifier of zero for physical
examination based on appellant’s full range of motion and function, a grade modifier of one for
clinical studies based on prior diagnostic studies, and a grade modifier of one for functional
history due to her shoulder surgery and previous symptoms. Applying the net adjustment
formula, (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), he calculated that she should receive
a net adjustment down one from the default grade of one, which under Table 15-5 resulted in a
one percent impairment of the right upper extremity. The medical adviser opined that appellant
reached maximum medical improvement on July 29, 2009.
By decision dated July 8, 2010, the Office granted appellant a schedule award for a one
percent permanent impairment of the right upper extremity. The period of the award ran for 3.12
weeks from July 29 to August 19, 2009. The Office deducted the amount payable to appellant
for the schedule award from the amount that she owed due to the overpayment of compensation.
In an appeal request form dated and postmarked September 22, 2010, appellant requested
an oral hearing before an Office hearing representative on the July 8, 2010 decision. In a
decision dated October 20, 2010, the Office’s Branch of Hearings and Review denied her request
on the grounds that it was not untimely under section 8124.

2

Docket No. 09-722 (issued October 14, 2009). In a previous decision dated July 24, 2008, the Board issued an
order remanding the case for the Office to provide appellant with a telephone conference. Docket No. 08-748
(issued July 24, 2008).

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On appeal appellant argues that she is entitled to a greater schedule award than that
awarded by the Office as her attending physician found that she had a greater impairment. She
also notes that she subsequently submitted another impairment evaluation showing that she had a
greater impairment. Appellant questions why the award ran from July to August 19, 2009, after
her retirement.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act,3 and its implementing federal regulations,4 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
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.5 As of May 1,
2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).7 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained right calcific tendinitis, right shoulder
capsulitis and right medial epicondylitis causally related to her work duties. Appellant submitted
a July 29, 2009 impairment evaluation from Dr. Yerys in support of her schedule award claim.
Dr. Yerys found normal range of motion and function of the right shoulder with no nerve
involvement or impairment due to complex regional pain syndrome. He diagnosed employmentrelated impingement syndrome of the right shoulder with postoperative scarring of the subdeltoid
bursa. Dr. Yerys opined that appellant had the minimum impairment provided under state
workers’ compensation guidelines of 7.5 to 10 percent. Under the Act, however, the extent of
any impairment is determined using the sixth edition of the A.M.A., Guides. Dr. Yerys did not
utilize the sixth edition of the A.M.A., Guides; consequently, his opinion is of diminished
probative value.8

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

A.M.A., Guides 494-531.

8

Fritz A. Klein, 53 ECAB 642 (2002).

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On May 24, 2010 the Office medical adviser applied the sixth edition of the A.M.A.,
Guides to Dr. Yerys’ findings. He identified the diagnosis as impingement syndrome using the
diagnosis-based regional grid for the shoulder set forth in Table 15-5. The Office medical
adviser used the default percentage for a class 1 impairment due to impingement syndrome of
one percent. He adjusted the default impairment percentage by a grade modifier of zero for
physical examination based on appellant’s full range of motion and function. The Office
medical adviser found a grade modifier of one for clinical studies due to prior results of
diagnostic testing and a grade modifier of one for functional history due to appellant’s history of
shoulder symptoms and surgery. He applied the net adjustment formula, (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX), which yielded (1-1) + (0-1) + (1-1) = -1. The Office medical
adviser found that appellant should receive an adjustment down one from the default grade,
which yielded a one percent impairment of the right upper extremity according to Table 15-5.
The Board finds that the report of the Office medical adviser rationalized Dr. Yery’s findings
conforms to the A.M.A., Guides (6th ed.) and represents the weight of the medical evidence
regarding the extent of permanent impairment to appellant’s right upper extremity. There is no
medical evidence conforming to the A.M.A., Guides establishing greater percentage impairment.
On appeal appellant asserts that she is entitled to a greater schedule award based on the
findings of her attending physician. As discussed, however, her attending physician did not
utilize the A.M.A., Guides and thus his opinion is of diminished probative value.
Appellant further questions the date of the schedule award. It is well established that the
period covered by the schedule award commences on the date that the employee reaches
maximum medical improvement from the residuals of the accepted employment injury. The
determination of whether maximum medical improvement has been reached is based on the
probative medical evidence of record, and is usually considered to be the date of the evaluation
by the attending physician which is accepted as definitive by the Office.9 The Office properly
began the schedule award on July 29, 2009, the date of Dr. Yerys examination.
Appellant also maintains that, subsequent to the Office’s schedule award decision, she
submitted an impairment evaluation consistent with the A.M.A., Guides showing that she had a
greater impairment. The Board has no jurisdiction to review evidence on appeal that was not
before the Office at the time it issued the decision.10
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progressing of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of the Act, concerning a claimant’s entitlement to a hearing, states:
“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
9

D.R., 57 ECAB 720 (2006); Mark A. Holloway, 55 ECAB 321 (2004).

10

See 20 C.F.R. § 501.2(c)(1).

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issuance of the decision, to a hearing on his claim before a representative of the Secretary.”11 As
section 8124(b)(1) is unequivocal in setting forth the time limitation for requesting a hearing, a
claimant is not entitled to a hearing as a matter of right unless the request is made within the
requisite 30 days.12
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”13
Section 10.616(a) further provides, “A claimant injured on or after July 4, 1966, who had
received a final adverse decision by the district Office may obtain a hearing by writing to the
address specified in the decision. The hearing request must be sent within 30 days (as
determined by postmark or other carrier’s date marking) of the date of the decision for which a
hearing is sought.”14
The Office, in its broad discretionary authority in the administration of the Act, has the
power to hold hearings in certain circumstances where no legal provision was made for such
hearings, and the Office must exercise this discretionary authority in deciding whether to grant a
hearing. Specifically, the Board has held that the Office has the discretion to grant or deny a
hearing request on a claim involving an injury sustained prior to the enactment of the 1966
amendments to the Act which provided the right to a hearing, when the request is made after the
30-day period established for requesting a hearing, or when the request is for a second hearing on
the same issue.15 The Office’s procedures, which require the Office to exercise its discretion to
grant or deny a hearing when a hearing request is untimely or made after reconsideration under
section 8128(a), are a proper interpretation of the Act and Board precedent.16
ANALYSIS -- ISSUE 2
The Office issued a decision on July 8, 2010 granting appellant a schedule award.
Appellant requested an oral hearing by letter dated and postmarked September 22, 2010. It
denied her hearing request as untimely by decision dated October 20, 2010. As appellant request
for a hearing was postmarked September 22, 2010, more than 30 days after the Office issued its
July 8, 2010 decision, she was not entitled to a hearing as a matter of right.
The Office has the discretionary power to grant a hearing or review of the written record
when a claimant is not entitled to a hearing or review as a matter of right.17 It properly exercised
11

5 U.S.C. § 8124(b)(1).

12

N.M., 59 ECAB 511 (2008); Leona B. Jacobs, 55 ECAB 753 (2004).

13

20 C.F.R. § 10.615.

14

Id. at § 10.616(a).

15

See André Thyratron, 54 ECAB 257 (2002).

16

J.C., 59 ECAB 206 (2007); Sandra F. Powell, 45 ECAB 877 (1994).

17

Afegalai L. Boone, 53 ECAB 533 (2002).

5

its discretion by stating that it had considered the matter in relation to the issue involved and
denied appellant’s request for an oral hearing on the basis that the case could be resolved by
submitting additional evidence to the Office in a reconsideration request. The Board has held
that the only limitation on the Office’s discretionary authority is reasonableness. An abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deduction from
established facts.18 The evidence of record does not establish that the Office committed any
action in connection with its denial of appellant’s request for an oral hearing which could be
found to be an abuse of discretion. Accordingly, the Board finds that the Office properly denied
her request for an oral hearing as untimely under section 8124 of the Act.
CONCLUSION
The Board finds that appellant has no more than a one percent permanent impairment of
the right upper extremity and that the Office properly denied her request for an oral hearing as
untimely under section 8124.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 20 and July 8, 2010 are affirmed.
Issued: August 3, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

See Andre Thyratron, supra note 15.

6


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
W.J., Representative of the Estate of E.J.,
Appellant
and
DEPARTMENT OF THE ARMY, TRAINING &
DOCTRINE COMMAND, Fort Benning, GA,
Employer
__________________________________________
Appearances:
Robert S. Poydasheff, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 18-1035
Issued: July 9, 2019

Case Submitted on the Record

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

On April 23, 2018 appellant, through counsel, filed a timely appeal from a March 26, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the
Appellate Boards docketed the appeal as No. 18-1035.

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
Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). By order dated April 4, 2019, the Board exercised its discretion and denied the request as appellant’s
arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the
record. Order Denying Request for Oral Argument, Docket No. 18-1035 (issued April 4, 2019).

The Board has duly considered the matter and finds that the case is not in posture for
decision.
OWCP accepted that on December 14, 1989 the employee, then a 49-year-old fire
protection inspector, sustained a cervical strain and an aggravation of preexisting cervical
spondylosis as a result of a work-related motor vehicle accident. The employee stopped work on
December 14, 1989 and did not return. OWCP paid wage-loss compensation and medical benefits.
In February 1990 it placed the employee on the periodic rolls. The employee died on
October 23, 2017.
By notice dated January 25, 2018, OWCP advised the employee’s estate of its preliminary
determination of an overpayment of compensation in the amount of $20,535.14 due to its failure
to deduct the employee’s postretirement life insurance premiums from no reduction to 50 percent
reduction for the period May 12, 1993 through October 23, 2017 and its failure to deduct optional
life insurance premiums for the period February 5, 1991 through October 23, 2017. It also found
that the employee had been at fault in the creation of the overpayment as he should have reasonably
been aware that the premiums were not deducted from the ongoing wage-loss compensation
benefits. OWCP advised the employee’s estate that it could submit evidence challenging the fact,
amount, or finding of fault, and request waiver of recovery of the overpayment. It also directed
the employee’s estate to complete an overpayment recovery questionnaire (Form OWCP-20), and
advised it of its appeal rights. OWCP provided copies of the employee’s compensation benefits,
which he received by check, along with its overpayment calculation worksheets.
On January 31, 2018 appellant, the employee’s spouse, contested the finding of fault as to
the overpayment and requested waiver. She denied having knowledge of anything that had
occurred between the employee and OWCP. Appellant did not complete or return the Form
OWCP-20 or provide any financial documentation.
By decision dated March 26, 2018, OWCP finalized the overpayment of compensation and
the finding of fault, noting that the employee’s estate had not refuted either the fact or amount of
the overpayment or the finding of fault. It required repayment of the overpayment in full.
OWCP’s procedures regarding recovery of an existing debt from a deceased employee’s
estate which were in effect at the time of OWCP’s March 26, 2018 decision provided as follows:3
“Upon learning that a claimant with an existing overpayment has died, the District
Office shall immediately contact the OPM to determine the availability of any OPM
benefits payable at the time of death that may be administratively offset, e.g., basic
employee death benefits, survivor annuity benefits, or lump[-]sum refund of the
deceased employee’s retirement contributions (5 C.F.R. § 831.1805).
“If the claimant recently passed away, OWCP may refer the debt to FMS [Financial
Management System] for offset of the deceased claimant’s last Federal tax refund
under the Treasury’s Offset Program (TOP). 31 C.F.R. § 285.2. The OWCP has a

3
See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(e)(2) (June 2009).

2

special profile with FMS under TOP for the collection of these specific estate
debts….”
To initiate action against an estate for debt recovery, OWCP’s procedures require that
certain steps be taken. If the estate requests a waiver determination or otherwise asks to be excused
from the debt, then financial information should be requested from the estate and a waiver
determination should be prepared. However, in most situations waiver will be denied and
collection will proceed if the estate’s resources, after liabilities are established, allows for recovery
of the overpayment. The Board has held that OWCP must follow its procedures when initiating
action against an estate for debt recovery.4
The evidence of record does not substantiate the actions OWCP has taken to recover the
overpayment debt through an offset from OPM benefits or through the Treasury Offset Program,
prior to taking overpayment actions against the estate. Although OWCP has demanded repayment
of the overpayment in full, the Board cannot make an informed decision regarding the amount of
overpayment to be collected against the estate. The case shall therefore be remanded for OWCP
to follow all procedures as outlined in Chapter 6.500.15 of its procedure manual.5 Following this

4

See C.A., Docket No. 18-0470 (issued March 7, 2019); K.S., Docket No. 11-2021 (issued August 21, 2012).

5

Supra note 3 at Chapter 6.500.15 (September 2018).

3

and any other further development as deemed necessary, OWCP shall issue a de novo decision
regarding the deceased employee’s overpayment.
IT IS HEREBY ORDERED THAT the March 26, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action in
accordance with this order of the Board.
Issued: July 9, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, HIGHLAND MILLS
POST OFFICE, Highland Mills, NY, Employer
__________________________________________

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

Docket No. 19-1093
Issued: June 25, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On April 19, 2019 appellant, through counsel, filed a timely appeal from a March 18, 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.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
3

5 U.S.C. § 8101 et seq.

The Board notes that following the March 18, 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left knee condition
causally related to the accepted August 3, 2017 employment incident.
FACTUAL HISTORY
On October 5, 2017 appellant, then a 50-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 3, 2017 she sustained a meniscus tear of her left knee
when she stepped out of her work truck and felt a pull in the back of her knee while in the
performance of duty.4 She did not stop work.
In support of her claim, appellant submitted an undated note from Dr. Carol P. Taylor,
Board-certified in family medicine, who diagnosed medial and lateral meniscus tears of the left
knee and a rotator cuff tear of the left shoulder.
A September 22, 2017 magnetic resonance imaging (MRI) scan of the left knee contained
an impression of complex tear at the junction of the posterior horn and mid-zone of the medial
meniscus with surrounding synovitis, chondral loss in the compartment without subchondral
edema, mild-to-moderate effusion, patellofemoral synovitis, popliteal cyst, mild fluid signal in the
popliteal fossa, slight sprain of the medial collateral ligament (potentially related to medial
meniscal pathology in the absence of recent trauma), and red marrow hyperplasia within the long
bones without fracture or suspicious bony lesion.
In a note dated October 3, 2017, Dr. John M. Uhorchak, a Board-certified orthopedic
surgeon, indicated that appellant continued to perform full-duty work and was likely to need
surgery due to a meniscal tear of her left knee.
On October 5, 2017 an employing establishment official properly executed an
authorization for examination and/or treatment form (Form CA-16) authorizing medical treatment
for appellant’s alleged August 3, 2017 injury.
On October 23, 2017 Dr. Uhorchak examined appellant for complaints of left knee pain,
noting that she reported that her injury occurred at work on August 3, 2017 when she stepped out
of a truck and felt stiffness and a popping sensation in the back of her left knee. He noted that
appellant reported that she had no prior injury to her left knee. On physical examination of the left
knee, Dr. Uhorchak observed active range of motion (ROM) from 0 to 120 degrees with pain at
extremes of flexion, good strength at extension/flexion against resistance, stability to varus/valgus
stress, normal sensation, moderate tenderness at the medial joint, and positive rotary stress and
maximal flexion tests with medial joint pain. He diagnosed medial meniscus tear of the left knee
and recommended the performance of arthroscopic partial medial meniscectomy of the left knee.
Dr. Uhorchak opined that appellant’s current symptoms were “causally related to the injury at

4
In an undated statement accompanying her claim, appellant advised that, when she stepped out of her truck her
left knee gave way and she felt a pop. She indicated that she developed pain in her left knee and saw a physician who
diagnosed left medial/lateral meniscus tears.

2

work,” explaining that her complaints were consistent with the history of injury and that the history
of injury was consistent with his objective findings.
In a report dated January 5, 2018, Dr. Uhorchak reviewed appellant’s history of injury and
noted left knee examination findings similar to those observed on October 23, 2017. He diagnosed
complex tear of the medial meniscus of the left knee. Dr. Uhorchak again opined that appellant’s
current symptoms were “causally related to the injury at work,” noting that her complaints were
consistent with the history of injury and that the history of injury was consistent with his objective
findings.
In a development letter dated January 19, 2018, OWCP requested that appellant submit
additional evidence in support of her traumatic injury claim, including a physician’s opinion
supported by a medical explanation as to how the claimed August 3, 2017 employment incident
caused or aggravated a medical condition. It provided a questionnaire for her completion which
posed a series of questions regarding the reported August 3, 2017 employment incident. OWCP
afforded appellant 30 days to respond.5
On February 12, 2018 appellant responded to OWCP’s questionnaire by submitting a
statement in which she provided further details of the claimed August 3, 2017 injury. She
explained that she delayed reporting the August 3, 2017 incident at work to her supervisor because
she thought her condition would improve. Appellant also indicated that she had not suffered a
prior injury to her left knee.
Appellant submitted a January 31, 2018 letter from Dr. Uhorchak who advised that he
initially saw appellant on September 5, 2017, at which time she reported having been injured on
August 3, 2017 when she stepped out of a truck and felt stiffness in the back of her left knee.
Dr. Uhorchak summarized the results of his September 5, 2017 examination of the left knee, noting
findings including active ROM from 0 to 120 degrees with pain at extremes of flexion, moderate
tenderness at the patella, and positive Apley’s grind and maximal flexion tests with diffuse joint
pain. He indicated that the mechanism of appellant’s injury was stepping out of her work vehicle
on August 3, 2017 and feeling immediate stiffness to the left knee. Dr. Uhorchak noted that she
reported having no prior history of injury to her left knee and opined, within a degree of medical
certainty, that her left knee condition was “directly related to her work injury on August 3, 2017.”
By decision dated March 1, 2018, OWCP accepted that appellant established the August 3,
2017 employment incident occurred as alleged in the form of stepping out of her work truck and
feeling stiffness and a popping sensation in the back of her left knee. However, it denied her
traumatic injury claim, finding that she had not submitted sufficient medical evidence to establish
causal relationship between her diagnosed left knee condition and the accepted August 3, 2017
employment incident.

5
Appellant requested authorization for arthroscopic partial medial meniscectomy of the left knee and, in a
January 24, 2018 informational letter, OWCP advised appellant that her request could not be approved at that time.
The case record does not contain a final decision of OWCP regarding appellant’s request for authorization of this
surgery and the matter is not currently before the Board. See 20 C.F.R. § 501.2(c).

3

On December 17, 2018 appellant, through counsel, requested reconsideration of OWCP’s
March 1, 2018 decision.
Appellant submitted a March 30, 2018 report from Dr. Uhorchak in which he discussed
appellant’s history of injury and detailed his examination of her left knee. Dr. Uhorchak observed
active ROM from 5 to 95 degrees, moderate tenderness at the medial joint, and positive rotary
stress, maximal flexion, and McMurray tests with medial joint pain. He diagnosed complex tear
of the left medial meniscus and advised that he did not recommend left knee surgery as it would
not reliably improve appellant’s pain or function. Dr. Uhorchak maintained that, within a degree
of medical certainty, appellant’s left knee condition was directly related to her work injury on
August 3, 2017, noting that her complaints were consistent with the history of injury and that the
history of injury was consistent with his objective findings.
On June 26, 2018 Dr. Uhorchak reported examination findings for appellant’s left knee
which were similar to those previously reported and diagnosed complex tear of the left medial
meniscus. He noted that appellant had opted for surgery to treat her left knee condition.
In a report dated November 12, 2018, Dr. Uhorchak summarized the medical treatment of
appellant’s left knee and advised that she had undergone an arthroscopic partial medial
meniscectomy of the left knee on July 18, 2018.6 He noted that appellant told him she was doing
reasonably well until September 6, 2018 when she slipped and fell on a wet floor at a food store,
and that she was diagnosed with left knee contusion after seeking emergency medical treatment.
On examination of the left knee, Dr. Uhorchak reported moderate-to-marked tenderness along the
medial joint line, mild swelling along the medial joint and pes bursal area, pain with maximal
flexion on the medial side, and moderate tenderness over the pes anserine bursal area. He
diagnosed complex tear of the left medial meniscus and pes anserine bursitis of the left knee.
In a report dated July 27, 2018, Dr. Uhorchak noted that, on examination of the left knee,
appellant had active ROM to 135 degrees, normal strength/neurovascular status, and closed, clean,
and dry portals from the July 18, 2018 surgery. He diagnosed complex tear of the left medial
meniscus and referred her to physical therapy. Dr. Uhorchak opined that the August 3, 2017
incident was the competent medical cause of appellant’s condition, that her complaints were
consistent with the history given for the condition, and that the history of the condition was
consistent with his objective findings.
By decision dated March 18, 2019, OWCP denied modification of its March 1, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable

6
The July 18, 2018 surgery was not authorized by OWCP and the case record does not contain a report detailing
the performance of the surgery.

4

time limitation period of FECA,7 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.8 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.9
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.10 The second component is whether the employment incident caused a personal injury.11
Rationalized medical opinion evidence is required to establish causal relationship. 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 incident.12
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted August 3, 2017 employment incident.
Appellant submitted several reports from Dr. Uhorchak in support of her claim. In reports
dated October 23, 2017 and January 5, 2018, Dr. Uhorchak opined that appellant’s left knee
condition was causally related to the reported August 3, 2017 injury at work, noting that her
complaints were consistent with the history of injury and that the history of injury was consistent
with his objective findings. In a January 31, 2018 letter, he indicated that “the mechanism of
injury” was appellant’s stepping out of her work truck and feeling immediate left knee stiffness on
August 3, 2017. Dr. Uhorchak noted that appellant reported having no prior history of injury to
her left knee and opined that her left knee condition was “directly related to her work injury on
August 3, 2017.” On March 30, 2018 he maintained that appellant’s left knee condition was
directly related to her work injury on August 3, 2017, again noting that her complaints were
7

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
8
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
9

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

11

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

12

S.S., Docket No. 18-1488 (issued March 11, 2019).

13

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

5

consistent with the history of injury and that the history of injury was consistent with his objective
findings. In a report dated July 27, 2018, Dr. Uhorchak diagnosed complex tear of the left medial
meniscus and opined that the August 3, 2017 incident was the competent medical cause of
appellant’s condition, that her complaints were consistent with the history given for the condition,
and that the history of the condition was consistent with his objective findings. In these reports
Dr. Uhorchak did not explain the medical mechanism of how the accepted August 3, 2017
employment incident, i.e., stepping out of a work truck, could have caused or contributed to the
diagnosed left knee conditions.14 The Board has held that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how an
employment incident was sufficient to have caused or aggravated a medical condition.15 Thus,
these reports are insufficient to establish the claim.
In his January 31, 2018 letter, Dr. Uhorchak suggested that his opinion on causal
relationship was supported by the fact that appellant reported not having left knee
problems/symptoms prior to the occurrence of the August 3, 2017 employment incident. The
Board has found that the mere fact that a condition manifests itself or is discovered after an
employment incident is insufficient to establish causal relationship between the condition and the
incident.16 Therefore, these reports of Dr. Uhorchak are insufficient to establish appellant’s claim
for an employment-related August 3, 2017 left knee injury.
Appellant also submitted an October 3, 2017 note from Dr. Uhorchak who indicated that
appellant was likely to need surgery due to a meniscal tear of the left knee. On June 26, 2018
Dr. Uhorchak reviewed appellant’s history of injury and examined her left knee, diagnosing
complex tear of the left medial meniscus. In a November 12, 2018 report, he reported examination
findings and diagnosed complex tear of the left medial meniscus and pes anserine bursitis of the
left knee. In these medical documents, Dr. Uhorchak did not opine as to the cause of appellant’s
diagnoses and their relationship to the accepted August 3, 2017 employment incident. In his
November 12, 2018 report, he noted that appellant had undergone left knee surgery on July 18,
2018, but he did not indicate that the surgery was necessitated by an employment injury. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.17 Therefore,
these reports of Dr. Uhorchak are of no probative value regarding an August 3, 2017 left knee
injury and are insufficient to establish appellant’s claim.
Appellant submitted an undated note from Dr. Taylor who diagnosed medial and lateral
meniscus tears of the left knee and rotator cuff tear of the left shoulder. This report does not

14

See H.A., Docket No. 18-1466 (issued August 23, 2019); L.R., Docket No. 16-0736 (issued September 2, 2016)
(medical opinion evidence should offer a medically sound explanation of how the specific employment incident or
work factors physiologically caused injury).
15

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

16

K.L., Docket No. 18-1029 (issued January 9, 2019); Y.D., supra note 15.

17

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

6

contain an opinion on causal relationship and is of no probative value regarding appellant’s claim
for an August 3, 2017 employment injury.18
OWCP also received a report of a September 22, 2017 MRI scan of appellant’s left knee.
However, this report is of no probative value on the underlying issue of the case. The Board has
held that diagnostic studies, standing alone, lack probative value on the issue of causal relationship
as they do not address whether the employment incident caused any of the diagnosed conditions.19
As such, the record lacks rationalized medical evidence establishing causal relationship
between the accepted August 3, 2017 employment incident and appellant’s diagnosed left knee
conditions. Thus, the Board finds that she has not met her burden of proof.20
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 her burden of proof to establish a left knee
condition causally related to the accepted August 3, 2017 employment incident.

18

Id.

19

J.S., Docket No. 17-1039 (issued October 6, 2017).

20

The Board notes that the case record contains an October 5, 2017 Form CA-16. A properly completed CA-16
form authorization may constitute a contract for payment of medical expenses to a medical facility or physician, when
properly executed. The form creates a contractual obligation, which does not involve the employee directly, to pay
for the cost of the examination or treatment regardless of the action taken on the claim. The period for which treatment
is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP.
See 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018); N.M., Docket No. 17-1655 (issued
January 24, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

7

ORDER
IT IS HEREBY ORDERED THAT the March 18, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 25, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Brooklyn, NY, Employer
__________________________________________

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Appearances:
Stephen I. Feder, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2022
Issued: August 25, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 11, 2008 appellant, through counsel, filed a timely appeal of a June 6, 2008
nonmerit decision of the Office of Workers’ Compensation Programs, denying her request for
reconsideration because it was not timely filed and failed to establish clear evidence of error.
Because more than one year has elapsed between the most recent merit decision dated March 12,
2007 and the filing of the appeal, the Board lacks jurisdiction to review the merits of her claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On January 10, 1997 appellant, then a 31-year-old clerk, filed a traumatic injury claim
alleging that she injured her back, leg, shoulder and head on that date as a result of being pushed
out of a chair by a coworker. She stopped work on January 10, 1997. The Office accepted

appellant’s claim for multiple contusions to the body. By letter dated May 3, 2006, the Office
accepted that she sustained a recurrence of disability beginning on March 11, 2006 causally
related to her January 10, 1997 injury.
On May 8, 2006 the employing establishment offered appellant a modified clerk position
based on the April 24, 2006 work restrictions of Dr. Laxmidhar Diwan, an attending Boardcertified orthopedic surgeon.1 By letter dated May 10, 2006, the Office advised her that the
offered position was suitable, currently available and within her physical restrictions and
commuting area. Appellant was afforded 30 days to either accept the position or submit a
written explanation for her refusal. The Office notified her of the statutory penalty for refusing
an offer of suitable work.
On June 9, 2006 appellant rejected the job offer. She contended that the offered position
was not within her physical restrictions and it did not allow her to take two consecutive days off
to rest as required by an attending physician. Appellant was concerned about her personal safety
in the position as it required her to sit at a desk in a lobby while all of her coworkers worked
behind a bulletproof window.
On June 13, 2006 the Office advised appellant that she had not provided any valid
reasons for refusing the employing establishment’s job offer. It notified her that she had 15 days
to accept the offer.
By decision dated July 11, 2006, the Office terminated appellant’s compensation
effective that date for refusing an offer of suitable work. On August 9, 2006 she requested an
oral hearing before an Office hearing representative.
In a March 12, 2007 decision, an Office hearing representative affirmed the termination
of appellant’s compensation. She found that the offered position was suitable, that the Office
complied with all procedural requirements and that appellant refused an offer of suitable
employment.
On June 25, 2007 appellant requested reconsideration. In an April 18, 2007 report,
Dr. Diwan stated that appellant required two consecutive days off work to rest from her
employment-related injury and to prevent further damage or an acute exacerbation of the
employment-related injury.
By decision dated July 18, 2007, the Office denied appellant’s request for
reconsideration. It found that the evidence submitted was repetitious in nature and, thus,
insufficient to warrant further merit review of its prior decisions.
In a letter dated March 13, 2008, received by the Office on March 14, 2008, appellant,
requested reconsideration of the March 12 and July 18, 2007 decisions. Counsel contended that
1

Dr. Diwan restricted appellant from sitting and standing more than 15 to 20 minutes, lifting more than 10
pounds, reaching, climbing, bending, pushing and pulling. The offered modified clerk position required appellant to
work from 11:00 a.m. to 7:30 p.m. with Sundays and Thursdays off. It also required answering customer inquiries
and directing customers to lines. A table and chair would be provided to appellant. The physical requirements
included sitting and standing at will, and no reaching, climbing, bending, pushing and pulling.

2

the offered position was not within appellant’s physical restrictions. He stated that the
requirements of the position were similar to the requirements of a lobby director, a position
previously held by appellant for only two days because she suffered from pain. Counsel
contended that the hearing representative did not consider her hearing testimony regarding this
work experience.
Appellant submitted a partial copy of the December 19, 2006 hearing transcript, which
documented her testimony regarding her inability to sit and stand in the lobby director position
and requirement of having two consecutive days off work. A March 12, 2008 letter of Jim
Musumeci, a union president, described the requirements of the lobby director position. He
stated that the position required continuous sitting and standing for long periods of time
depending on customer needs, and weighing and lifting heavy bundles and packages.
Mr. Musumeci stated that the position was not limited to answering customer inquires or
directing customers to lines as stated by the employing establishment. A copy of the lobby
director position was submitted by appellant. In a March 13, 2008 report, Dr. Diwan stated that
appellant was unable to work as a lobby director because it required continuous sitting and
standing and lifting weights which were beyond her medical restrictions. He opined that these
requirements would create undo strain and pressure on her already weak spinal musculature and
nerve components, and further increase her radiculopathy and parasthesia. Dr. Diwan noted that
appellant previously worked in an identical position for a short period of time but was unable to
continue working due to her medical condition. He had always required her to have two
consecutive days off work and did not see the need to order it again. An undated treatment note
with an illegible signature stated that appellant sustained an injury on January 10, 1997 and that
she suffered from low back pain which radiated to her right knee. She was restricted from heavy
lifting.
By decision dated June 6, 2008, the Office found that appellant’s March 14, 2008 letter
requesting reconsideration was dated more than one year after the March 12, 2007 merit
decision, and was untimely. It further found that she did not submit any evidence establishing
clear evidence of error in the Office’s denial of her claim.2
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
The Secretary of Labor may review an award for or against payment of compensation at
any time on his own motion or on application. The Secretary, in accordance with the facts found
on review may -“(1) end, decrease or increase the compensation awarded; or

2

On appeal appellant has submitted new evidence. The Board may not consider evidence for the first time on
appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c).
Appellant can submit this evidence to the Office and request reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.

3

“(2) award compensation previously refused or discontinued.”3
The Office’s imposition of a one-year time limitation within which to file an application
for review as part of the requirements for obtaining a merit review does not constitute an abuse
of discretionary authority granted the Office under section 8128(a).4 This section does not
mandate that the Office review a final decision simply upon request by a claimant.
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a). Thus, section 10.607(a) of the implementing
regulations provide that an application for reconsideration must be sent within one year of the
date of the Office decision, for which review is sought. If submitted by mail, the application will
be deemed timely if postmarked by the employing establishment within the time period allowed.5
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.6
ANALYSIS
The Board finds that appellant failed to file a timely application for review of the
March 12, 2007 merit decision. In implementing the one-year time limitation, the Office’s
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original Office decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues.7
On appeal, appellant, through counsel, contended that the Office incorrectly stated that
her request for reconsideration was dated March 14, 2008 rather than March 13, 2008. The
Board finds that appellant’s request for reconsideration is dated March 13, 2008. The most
recent merit decision was issued by the Office hearing representative on March 12, 2007. The
hearing representative affirmed the termination of appellant’s compensation on the grounds that
she refused an offer of suitable employment. As her March 13, 2008 letter requesting
reconsideration was made more than one year after the Office hearing representative’s March 12,
2007 decision, the Board finds that it was not timely filed.
The Board further finds that appellant has not submitted evidence establishing clear
evidence of error by the Office in finding that she refused an offer of suitable work. Appellant’s
attorney contends that the offered position did not conform to her physical restrictions, that the
3

5 U.S.C. § 8128(a).

4

Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b).

7

Larry L. Litton, 44 ECAB 243 (1992).

4

requirements of this position were similar to those of a lobby director which appellant previously
performed for only two days due to pain, and that the Office hearing representative failed to
consider appellant’s hearing testimony regarding this prior work experience. These arguments,
however, do not establish clear evidence of error. The evidence reflects that the offered position
was based on the restrictions set forth by Dr. Diwan, appellant’s attending physician. The Board
finds that counsel’s arguments are not of sufficient probative value to shift the weight of the
evidence in favor of appellant or raise a substantial question as to the correctness of the Office’s
decision.8
The December 19, 2006 hearing transcript reflects that appellant argued that she was
unable to sit and stand as a lobby director and required two consecutive days off work.
Mr. Musumeci’s March 12, 2008 letter described the requirements of the lobby director position
which were different from those set forth in the employing establishment’s job offer. A copy of
the lobby director position set forth its requirements. This evidence is insufficient to shift the
weight of the evidence in favor of appellant’s claim. The submission of factual evidence does
not show clear evidence of error because it is not relevant to the main issue in the present case,
which is medical in nature. The Board finds that the hearing transcript, Mr. Musumeci’s letter
and position description do not raise a substantial question concerning the correctness of the
Office’s March 12, 2007 termination decision and, therefore, do not establish clear evidence of
error.
Dr. Diwan’s March 13, 2008 report stated that appellant was unable to work as a lobby
director because it required her to work beyond her medical restrictions which included no
continuous sitting and standing or lifting weights. He opined that these requirements would
create undo strain and pressure on her already weak spinal musculature and nerve components,
and further increase her radiculopathy and parasthesia. Dr. Diwan indicated that appellant
previously worked in an identical position for a short period of time but, she was unable to
continue to do so due to her medical condition. He recommended two consecutive days off
work. The Board notes that the offered clerk position allowed appellant to sit and stand at will.
It also provided her with a chair and table. Dr. Diwan did not provide sufficient medical
rationale explaining why appellant have two consecutive days off work due to the accepted
January 10, 1997 employment injury. It is well established that a fear of future injury is not a
sufficient basis on which to reject an offer of suitable work.9 The Board finds that Dr. Diwan’s
March 13, 2008 report does not shift the weight of the evidence in favor of appellant or raise a
substantial question as to the correctness of the Office’s termination decision and, therefore, does
not establish clear evidence of error.
An undated treatment note with an illegible signature stated that appellant sustained an
injury on January 10, 1997 and that she suffered from low back pain which radiated to her right
knee. She was restricted from heavy lifting. This evidence does not provide clear evidence of
error because it bears an illegible signature which makes it impossible for the Board to determine

8

Nancy Marcano, 50 ECAB 110 (1998).

9

See, e.g., Antoinette Florian, Docket No. 04-2227 (issued May 4, 2005), citing Edward P. Carroll, 44 ECAB
331 (1992).

5

whether the person completing the report qualifies as a physician as defined by the Act.10
Additionally, the report does not address the issue of whether appellant was able to perform the
duties of the offered modified clerk position.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 6, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 25, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

10

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2). Section 8101(2) of the Act provides
as follows: (2) physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice as defined by State law. See Merton J. Sills, 39
ECAB 572, 575 (1988).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Memphis, TN, Employer
__________________________________________

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

Docket No. 07-1697
Issued: December 27, 2007

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 June 4, 2007 appellant filed a timely appeal of decisions of the Office of Workers’
Compensation Programs dated May 10 and 29, 2007, finding that her requests for
reconsideration were untimely and failed to show clear evidence of error. Pursuant to 20 C.F.R.
§ 501.3, the Board’s jurisdiction is limited to decisions issued within one year of the filing of the
appeal. Since the last merit decision was issued March 25, 1993, the Board does not have
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly determined that appellant’s requests for
reconsideration were untimely and failed to show clear evidence of error.
FACTUAL HISTORY
This is the fifth appeal in the case. The Office terminated appellant’s compensation on
the grounds that she refused an offer of suitable work in an April 17, 1992 decision and denied
modification in a March 25, 1993 decision. In a decision dated October 1, 1998, the Board

affirmed a January 12, 1996 Office decision finding that appellant’s reconsideration request was
untimely and failed to show clear evidence of error.1 By decision dated January 23, 2003, the
Board affirmed Office decisions dated April 26 and September 7, 2001 and April 11 and July 26,
2002, denying requests for reconsideration as untimely and failing to establish clear evidence of
error.2 In the next appeal, the Board affirmed an August 8, 2003 Office decision that found
appellant’s June 28, 2003 reconsideration request was untimely and failed to show clear evidence
of error.3 By decision dated November 23, 2004, the Board affirmed decisions dated May 17
and April 4, 2004, finding that appellant’s requests for reconsideration were untimely and failed
to show clear evidence of error. The history of the case is contained in the Board’s prior
decisions and is incorporated herein by reference.
In a letter dated April 30, 2007, appellant requested reconsideration of her claim. She
argued that the termination decisions were erroneous, as she was “never given any priority
consideration for extended recovery time” and her physician restricted her from any employment
with the employing establishment. Appellant also stated that the employing establishment did
not provide the requested information prior to the March 25, 1993 merit decision. According to
appellant, the job offer was invalid under Office regulations as there was no evidence “that
shows when the job first became available to me and how long it would be available.”
By decision dated May 10, 2007, the Office determined the application for
reconsideration was untimely. The Office denied merit review on the grounds that appellant did
not establish clear evidence of error.
In a letter dated May 18, 2007, appellant again requested reconsideration. She reiterated
her argument that the job offer was not medically suitable and was not a valid job offer.
Appellant submitted a portion of a federal employee publication regarding reemployment
following an employment injury.4
By decision dated May 29, 2007, the Office again found appellant’s application for
reconsideration was untimely. The Office denied merit review of the claim on the grounds that
the application did not show clear evidence of error by the Office.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision.5 The employee shall exercise this right through a request to

1

Docket No. 96-2518 (issued October 1, 1998).

2

Docket No. 02-1814 (issued January 23, 2003).

3

Docket No. 03-2128 (issued October 30, 2003).

4

Department of Labor Publication CA-810 (rev. 2/94), A Handbook for Employee Agency Personnel.

5

5 U.S.C. § 8128(a).

2

the district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”6
Section 8128(a) of the Act7 does not entitle a claimant to a review of an Office decision
as a matter of right.8 This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.9 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).10
As one such limitation, the Office has stated that it will not review a decision denying or
terminating a benefit unless the application for reconsideration is filed within one year of the
date of that decision.11 The Board has found that the imposition of this one-year limitation does
not constitute an abuse of the discretionary authority granted the Office under 5 U.S.C.
§ 8128(a).12
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.13 In accordance with this holding the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.14
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.15 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.16 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
6

20 C.F.R. § 10.605 (1999).

7

5 U.S.C. § 8128(a).

8

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

9

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
10

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a specific point of law; (2) advancing a relevant legal
argument not previously considered by the Office; or (3) submitting relevant and pertinent evidence not previously
considered by the Office; see 20 C.F.R. § 10.606(b).
11

20 C.F.R. § 10.607(a).

12

See Leon D. Faidley, Jr., supra note 8.

13

Leonard E. Redway, 28 ECAB 242 (1977).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

15

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

16

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

3

clear evidence of error.17 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.18 This entails a limited review by the Office 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 the Office.19 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.20 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.21
ANALYSIS
The last merit decision is dated March 25, 1993. The applications for reconsideration in
this case are dated April 30 and May 18, 2007. Since they are more than one year after the merit
decision, they are untimely.
To require the Office to reopen the case for merit review, appellant must therefore show
clear evidence of error by the Office. The April 30, 2007 application for reconsideration alleges
error, but fails to provide probative evidence sufficient to establish clear evidence of error.
Appellant alleges, for example, that the job offer was not medically suitable. The record
indicates that her physician signed the job offer on February 27, 1992, indicating that she could
perform the job duties. She asserts the job offer was invalid as it did not discuss availability.
The Office received information from the employing establishment indicating that the job
remained available and, as noted by the Office in its March 25, 1993 decision, appellant had an
opportunity prior to termination of benefits to provide reasons for not accepting the position, but
failed to provide reasons.
The May 18, 2007 application raises similar arguments without providing pertinent
evidence supporting an allegation of error. The reference to a handbook for employing
establishment personnel does not establish a procedural error with respect to termination based
on refusal of suitable work pursuant to 5 U.S.C. § 8106(c). As noted above, the record contains
evidence supporting medical suitability and availability of the position offered.
The Board accordingly finds that appellant has not submitted evidence establishing clear
evidence of error by the Office. The Office properly denied the applications for reconsideration
without merit review of the claim.
17

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

18

See Leona N. Travis, supra note 16.

19

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

20

Leon D. Faidley, Jr., supra note 8.

21

Gregory Griffin, 41 ECAB 458 (1990).

4

CONCLUSION
The applications for reconsideration were untimely and failed to establish clear evidence
of error by the Office. Therefore, the Office properly denied the applications for reconsideration
without merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 29 and 10, 2007 are affirmed.
Issued: December 27, 2007
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

5


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

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Appearances:
Brian Stephens, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1952
Issued: February 6, 2013

Case Submitted on the Record

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

JURISDICTION
On September 23, 2012 appellant, through her representative, filed a timely appeal from
the August 9, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied wage-loss compensation. 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 OWCP properly denied appellant’s claim for wage-loss
compensation from September 12, 2009 to February 14, 2010.
FACTUAL HISTORY
In the prior appeal,2 the Board found that the case was not in posture for decision on
whether appellant was entitled to a resumption of compensation for total wage loss from
1

5 U.S.C. § 8101 et seq.

2

Docket No. 11-556 (issued November 4, 2011).

September 12, 2009 to February 14, 2010, notwithstanding an existing wage-earning capacity
determination in 2005. The Board found that if appellant were claiming compensation for a
closed or limited period, OWCP should adjudicate her claim as one of recurrence. The facts of
this case as set forth in the Board’s prior decision are hereby incorporated by reference.3
On February 21, 2012 OWCP denied appellant’s claim for wage-loss compensation. It
found that a claimant may sustain a recurrence following a loss of wage-earning capacity
determination only when there is a brief period of medical disability and not when the claimant
claims wage loss due to a withdrawal of light duty. OWCP found that the evidence did not
substantiate that appellant had met one of the three criteria for modifying a formal loss of wageearning capacity determination.
On August 9, 2012 an OWCP hearing representative affirmed the February 21, 2012
OWCP decision, finding that appellant had not established a recurrence of disability due to a
worsening of her work-related injury for a closed period. Appellant submitted no medical
evidence that her condition materially worsened. Rather, she established that she stopped work
because her limited-duty position was withdrawn under the National Reassessment Process
(NRP). Further, the hearing representative found that appellant did not claim and did not
establish that the existing wage-earning capacity determination should be modified.
Appellant indicates on appeal that by regulation the term “recurrence of disability” also
means an inability to work that take place when a light-duty 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).4
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of her duty.5 “Disability” means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.6
A “recurrence of disability” includes an inability to work that take place when a limitedduty 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.7
3

Appellant, a mail handler, developed carpal tunnel syndrome as a result of continuous heavy lifting in the
performance of duty. OWCP accepted her claim for bilateral carpal tunnel syndrome/wrist tendinitis, bilateral/
lateral epicondylitis, bilateral de Quervain’s tenosynovitis, bilateral upper trapezius strain and cervicothoracic
sprain.
4

20 C.F.R. § 10.5(x).

5

5 U.S.C. § 8102(a).

6

20 C.F.R. § 10.5(f).

7

Id. at § 10.5(x).

2

Wage-earning capacity is a measure of the employee’s ability to earn wages in the open
labor market under normal employment conditions.8 The wage-earning capacity of an employee
is determined by the employee’s actual earnings if the employee’s actual earnings fairly and
reasonably represent his or her wage-earning capacity.9
Once the loss of wage-earning capacity is determined, a modification of such
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated,
or the original determination was, in fact, erroneous. The burden of proof is on the party
attempting to show modification of the award.10
When an employee claims a recurrence of disability because his or her limited-duty
position was withdrawn under NRP, and a wage-earning capacity determination has been issued,
FECA Bulletin No. 09-05 requires that OWCP develop the evidence to determine whether a
modification of that determination is appropriate. If OWCP fails to follow those very specific
guidelines, the Board will return the case for further development.
FECA Bulletin No. 09-05, however, outlines OWCP procedures when limited-duty
positions are withdrawn pursuant to NRP. If, as in the present case, a formal wage-earning
capacity decision has been issued, OWCP must develop the evidence to determine whether a
modification of that decision is appropriate.11
ANALYSIS
In situations such as this, where a formal loss of wage-earning capacity determination has
been issued and the claimant’s limited-duty position is withdrawn under NRP, the Board has
determined that OWCP must follow the guidance issued in FECA Bulletin No. 09-05.12
When a formal loss of wage-earning capacity determination has been issued, FECA
Bulletin No. 09-05 requires OWCP to develop the evidence to determine whether a modification
of that determination is appropriate. FECA Bulletin No. 09-05 asks OWCP to confirm that the
file contains documentary evidence supporting that the position was an actual bone fide position.
It requires OWCP to review whether a current medical report supports work-related disability
and establishes that the current need for limited duty or medical treatment is a result of injuryrelated residuals and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.
Further, FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage
this type of case, may undertake further nonmedical development, such as requiring that the
8

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

9

5 U.S.C. § 8115(a).

10

Daniel J. Boesen, 38 ECAB 556 (1987).

11

FECA Bulletin No. 09-05 (issued August 18, 2009).

12

E.g., H.N., Docket No. 11-155 (issued September 24, 2012).

3

employing establishment address in writing whether the position on which the loss of wageearning capacity determination was based was a bona fide position at the time of the rating, and
to direct the employing establishment to review its files for contemporaneous evidence
concerning the position.
As OWCP has not followed the guidelines in FECA Bulletin No. 09-05, the Board will
set aside the hearing representative’s August 9, 2012 decision and remand the case for further
consideration. After proper compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall
issue an appropriate de novo decision on appellant’s entitlement to wage-loss compensation
beginning September 12, 2009.13
CONCLUSION
The Board finds that this case is not in posture for decision. Further action is warranted.
ORDER
IT IS HEREBY ORDERED THAT the August 9, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: February 6, 2013
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

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H.R., Docket No. 12-1642 (issued December 20, 2012).

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