United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, GROSSE POINTE
STATION, Grosse Pointe, MI, Employer
__________________________________________

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Appearances:
Glenn L. Smith, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0850
Issued: June 23, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 9, 2020 appellant, through counsel, filed a timely appeal from a September 30,
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a back condition
causally related to the accepted April 25, 2017 employment incident.
FACTUAL HISTORY
On April 27, 2017 appellant, then a 50-year-old letter carrier, filed a recurrence of medical
treatment claim (Form CA-2a) under OWCP File No. xxxxxx914.3 She alleged that she suffered
a recurrence on April 25, 2017 when she felt “a little” lower back pain while loading her mail
truck. Appellant stopped work on April 25, 2017. As a new employment incident was implicated,
OWCP converted the recurrence claim to a new traumatic injury claim (Form CA-1) and assigned
OWCP File No. xxxxxx680 which is the claim presently before the Board.
In an April 25, 2017 narrative statement, appellant noted that, when she went into work on
April 25, 2017, she was healthy and fine, but she developed pain while loading her vehicle. The
pain increased as she continued with her route and ascending and descending stairs.
In a disability certificate dated April 25, 2017, Dr. Sumner Camisa, a Board-certified
internist, advised that appellant was disabled from work for the period April 25 through
May 3, 2017. In a duty status form (Form CA-17) dated April 25, 2017, he diagnosed low back
severe pain and limited range of motion. Dr. Camisa checked a box marked “Yes” to the question
of whether the diagnosis was due to injury. He noted that appellant’s lower back pain started after
loading mail. Dr. Camisa found appellant disabled from performing her usual duties.
In a development letter dated June 7, 2017, OWCP informed appellant that additional
factual and medical evidence was needed to establish her claim. It provided appellant a
questionnaire for completion. OWCP advised appellant of the type of additional medical evidence
needed and afforded her 30 days to submit the necessary evidence.
On June 27, 2017 appellant responded to OWCP’s development questionnaire. She denied
that she had been involved in a motor vehicle accident in March. Rather, appellant explained that
on March 11, 2017 she slipped and fell down her basement steps. She sustained injuries to her
teeth and bruised shins and ankles due to her March 11, 2017 accident. Appellant explained that
she developed low back pain while working her route.
In a July 7, 2017 report, Dr. Camisa noted that in October 2015 appellant sustained a severe
back injury due to lifting at work. He noted that she had complained of back pain over the last 10
years due to lifting. Dr. Camisa summarized the history of her back pain, her medical treatment,
and related that appellant had developed back pain following a lifting injury at work on
April 25, 2017. Currently, appellant was receiving physical therapy and was instructed not to lift
anything more than 10 pounds. Dr. Camisa noted that she had debilitating pain resulting in an
inability to walk or sit in place for more than 15 minutes and difficulty with bending and twisting.
3

In OWCP File No. xxxxxx914, appellant filed a traumatic injury claim (Form CA-1) alleging that on October 20,
2015 she injured her lower back while lifting a heavy package out of a gurney. OWCP accepted the claim for low
back muscle, fascia, and tendon strain.

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He noted that his diagnosis was lumbosacral strain, while the specialist appellant had been referred
to diagnosed degenerative disc disease and severe sacroiliitis. Dr. Camisa opined that appellant’s
preexisting condition had been aggravated by continuous lifting at work.
By decision dated July 10, 2017, OWCP denied appellant’s claim, finding the medical
evidence failed to establish a causal relationship between the diagnosed medical condition and the
accepted April 25, 2017 employment incident.
On August 2, 2017 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on January 10, 2018. OWCP continued
to receive medical evidence.
An unsigned April 25, 2017 authorization for examination and/or treatment (Form CA-16),
noted an injury date of April 25, 2017 and described the injury or disease as lower back pain. In
Part B of Form CA-16, the attending physician’s report, dated April 25, 2017, Dr. Camisa reported
that appellant developed severe low back pain while lifting mail that day. He diagnosed low back
strain and sciatica. Dr. Camisa noted that appellant had a preexisting disc herniation from a 2015
injury and checked a box marked “Yes,” indicating that the diagnosed conditions were caused or
aggravated by the described employment activity. He opined that she was totally disabled from
work for the period April 25 through May 3, 2017.
In clinic notes dated April 25, 2017, Dr. Camisa noted that appellant was seen for severe
low back pain, which had developed that morning after lifting mail onto a truck. Appellant
complained of pain radiating down to her posterior thighs without any numbness, tingling or
weakness and an inability to stand or sit for more than 15 minutes without having severe pain.
Examination findings were detailed and he noted appellant’s history of disc herniation.
In progress notes dated July 26, 2017, Dr. Craig E. Whitmore, a Board-certified physiatrist,
diagnosed bilateral sacroiliitis, chronic low back pain, lumbar spinal stenosis, and lumbar spine
degenerative joint and disc disease with L4-5 leftward disc protrusion. Examination findings
included lumbar pain with forward flexion and extension, tenderness on palpation of the sacroiliac
joints, normal hip flexor strength, and slightly decreased gait cadence and stride length.
In an August 4, 2017 report, Dr. Whitmore diagnosed bilateral sacroiliitis, which he
attributed to an April 25, 2017 employment incident. He related that appellant was lifting trays up
and over packages into her mail truck when she developed mild back pain, which worsened as the
day progressed. According to appellant, her pain became so intense that she could not work.
Dr. Whitmore, in a report dated January 19, 2018, diagnosed bilateral sacroiliitis, which he
attributed to an April 25, 2017 employment injury. He explained that sacroiliitis occurs when a
person develops low back pain upon twisting, walking, and bending. Appellant was performing
those activities on April 25, 2017 when she was lifting mail trays and packages onto her mail truck.
Dr. Whitmore reported that these actions placed more stress on her sacroiliac joints than she could
tolerate, resulting in sacroiliitis.
Dr. Whitmore, in a February 2, 2018 report, opined that appellant sustained a bilateral
sacroiliac injury on April 25, 2017 as the result of loading her mail truck. He explained that the
way she reached into the mail truck combined with the weight of the mail tray caused stress on the
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sacroiliac joint. The stress on the sacroiliac joint resulted in sacroiliitis or bilateral sacroiliac joint
inflammation, which was confirmed by physical examination findings.
By decision dated March 27, 2018, OWCP’s hearing representative affirmed the July 10,
2017 decision, finding that the medical evidence of record was insufficient to establish causal
relationship. She also instructed that, upon return of the file to OWCP, the current claim should
be administratively combined with OWCP File No. xxxxxx914.4
In a September 27, 2018 report, Dr. Whitmore noted that he had treated appellant since
June 28, 2017. He explained that sacroiliitis is an inflammation of the sacroiliac joint with low
back pain as a symptom. Dr. Whitmore reported that this diagnosis is usually a clinical diagnosis
rather than an objective finding based on diagnostic tests. He explained that appellant had a
preexisting lumbar disc herniation with radiculopathy as the result of an October 2015 injury.
Dr. Whitmore indicated that, prior to the April 25, 2017 incident, she had back pain from an
October 2015 employment injury. He concluded that the bending, twisting, and lifting appellant
performed while loading her mail truck on April 25, 2017 caused significant stress on her
sacroiliac joint resulting in a sacroiliac strain and sacroiliitis. Dr. Whitmore diagnosed sacroiliitis
and summarized the treatment provided.
On October 9, 2018 appellant, through counsel, requested reconsideration.
By decision dated October 25, 2018, OWCP denied modification, finding that the evidence
of record was insufficient to establish causal relationship.
On December 26, 2018 appellant, through counsel requested reconsideration and submitted
additional evidence.
In a June 28, 2017 report, Dr. Whitmore summarized appellant’s injury history, which
included an October 2015 injury from picking up and lifting packages on April 25, 2015. He also
detailed medical treatment appellant received following both injuries. A physical examination
revealed sacral pain with forward flexion and lateral bending, discomfort on palpation of the
sacroiliac joint and buttocks, negative straight leg raising, negative Faber’s, and normal gait.
Dr. Whitmore diagnosed chronic low back pain, lumbar spinal stenosis, L4-5 leftward disc
protrusion, lumbar spine degenerative joint and disc disease, and bilateral sacroiliitis. He placed
appellant off work for a month.
Dr. Whitmore, on December 12, 2018 response to questions, noted that he began treating
appellant on June 28, 2017. He answered “yes” to the question of whether appellant sustained an
employment injury on April 25, 2017. Dr. Whitmore diagnosed sacroiliac joint/ligament strain.
He explained that this was more of a clinical diagnosis as there were few, if any, objective findings.
Dr. Whitmore discussed the physical findings, which led to his diagnosis, which included tender
sacroiliac joint, pain worsened with forward flexion, and pain in the sacral area with lateral
bending. He found that appellant’s current injury was not a lumbar condition, but rather a
sacroiliac joint condition. As to the issue of causal relationship, he referenced his February 2,
4

On March 29, 2018 OWCP administratively combined the files and designated OWCP File No. xxxxxx914 as the
master file number.

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2018 letter, in which he explained how the diagnosed condition was caused by the accepted
April 25, 2017 employment incident.
By decision dated March 26, 2019, OWCP denied modification.
On August 30, 2019 appellant, through counsel, requested reconsideration.
In an August 9, 2019 report, Dr. Whitmore responded to questions posed by counsel. He
indicated that his prior reference to an incident on April 25, 2015 was a typographical error, and
the date was actually April 25, 2017. He related that the sacroiliac joint is the pivot point for the
entire upper body. He noted that appellant’s bending forward together with the 25 pounds of mail
caused overwhelming pressure on the sacroiliac joint. The overwhelming pressure occurred from
the sacroiliac joint trying to remain stable in a situation where person bends forward from the
sacroiliac joint and has 25 pounds added to the scenario. Dr. Whitmore opined that this
overwhelming press can cause the joint to move when it is supposed to remain stable which results
in a joint strain. Specifically, he explained the lifting and holding of a 20 to 25 pound mail tray at
mid-arm length while concurrently pushing and bending caused significant stress on the sacroiliac
joint at the base of the lumbar spine. He reiterated that significant stress was placed on the
sacroiliac joint from appellant’s bending forward and extending 20 to 25 pounds on April 25, 2017.
By decision dated September 30, 2019, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,6 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.7 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.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.9 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
5

Supra note 2.

6

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chidden, Sr., 40
ECAB 312 (1988).
8

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Elliott, 41 ECAB 992 (1990).
9
R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17,
2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

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employment incident at the time, place, and in the manner alleged.10 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.11
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.12 The opinion of the physician
must be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.13
ANALYSIS
The Board finds that this case is not in posture for decision.
Dr. Whitmore provided a proper factual and medical history of injury. In reports dated
January 19, February 2, June 28, September 27, and December 12, 2018, and August 9, 2019,
Dr. Whitmore opined that the lifting and holding of a 20- to 25-pound mail tray at mid-arm length
while concurrently pushing and bending caused significant stress on the sacroiliac joint at the base
of appellant’s lumbar spine. He explained that there was overwhelming pressure on the sacroiliac
joint when it tried to remain stable while appellant was bending forward and lifting 25 pounds of
mail. Dr. Whitmore concluded that appellant sustained a sacroiliac joint/ligament strain and
bilateral sacroiliitis due to the accepted April 25, 2017 employment incident.
The Board finds that the reports from Dr. Whitmore are sufficient to require further
development of the medical evidence. Dr. Whitmore is a Board-certified physiatrist who is
qualified in his field of medicine to render rationalized opinions on the issue of causal relationship
and he provided an understanding of the medical record and case history. His reports explained
how loading mail weighing up to 25 pounds onto her mail truck resulted in a diagnosis of sacroiliac
joint/ligament strain and bilateral sacroiliitis. The Board has long held that it is unnecessary that
the evidence of record in a case be so conclusive as to suggest causal connection beyond all
possible doubt. Rather, the evidence required is only that necessary to convince the adjudicator
that the conclusion drawn is rational, sound, and logical.14 Accordingly, Dr. Whitmore’s

10
S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB
137 (2005).
11

A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9,
2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 9.
12

See F.C., Docket No. 19-0594 (issued August 13, 2019); K.V., Docket No. 18-0723 (issued November 9, 2018).

13

See F.C., id.; I.J., 59 ECAB 408 (2008).

14

B.C., Docket No. 20-0498 (issued August 27, 2020); L.P., Docket No. 18-1252 (issued June 4, 2020); W.M.,
Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011); Kenneth J.
Deerman, 34 ECAB 641, 645 (1983).

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January 19, February 2, June 28, September 27, and December 12, 2018, and August 9, 2019
medical opinions are, therefore, sufficient to require further development of appellant’s claim.15
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.16 OWCP has an obligation to see that justice is
done.17
On remand, OWCP shall refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts. Its referral physician shall provide a well-rationalized
opinion as to whether her diagnosed medical conditions are causally related to the accepted
employment factors. If the second opinion disagrees with the explanations provided by
Dr. Whitmore, he or she must provide a fully-rationalized explanation explaining why the accepted
employment factors were insufficient to have caused or aggravated her diagnosed left shoulder
and cervical conditions. After this and other such further development of the case record as OWCP
deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

15

J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).
16

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
17
See B.C., supra note 14; N.L., Docket No. 19-1592 (issued March 12, 2020); E.J., Docket No. 09-1481 (issued
February 19, 2010); John J. Carlone, 41 ECAB 354 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the September 30, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this decision.
Issued: June 23, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
PHILADELPHIA DISTRICT OFFICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1263
Issued: October 10, 2007

Case Submitted on the Record

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

JURISDICTION
On April 10, 2007 appellant filed a timely appeal from an October 26, 2006 merit
decision of the Office of Workers’ Compensation Programs that affirmed the denial of his
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he developed
an occupational disease in the performance of duty.
FACTUAL HISTORY
On August 27, 2002 appellant, then a 33-year-old former veterans service representative,
filed an occupational disease claim alleging that he developed chronic low back pain in the
performance of duty. He first became aware of his condition on November 1, 2000 and first
related it to his employment on April 19, 2002. Appellant attributed his low back pain to

repetitive bending and lifting while performing filing and other activities. He noted beginning
work for the employing establishment on June 5, 2000, stopping work on April 1, 2001 and
being terminated on February 2, 2002.
In a December 17, 2002 report, Dr. Peter Wang, Jr., an orthopedic surgeon, noted that
appellant’s medical history was significant for a gunshot wound to the neck in 1991, which
caused a central cord injury at the C4 level and left appellant with “significant disability” in both
the upper and lower extremities. He explained that appellant sought administrative work at the
employing establishment but his job required him to bend and lift files for several hours at a
time. Dr. Wang found that appellant’s back was stiff and painful with limited to nonexistent
range of motion. He concluded that appellant’s pain was likely a myofascial syndrome that
would be chronic.
On May 30, 2002 appellant explained that he was hired as a veterans service
representative, a position described as mostly sedentary and that the employing establishment
was aware of his preexisting condition at the time he was retained. However, he stated that he
was required to bend and stoop to lift heavy files and use his mostly contracted left hand to
manipulate pages while scanning the files with a barcode reader on a weekly basis.
In an undated medical report, received into the record on April 4, 2003, Dr. Jonathan
Cowen, an osteopath, reported that appellant was doing fairly well until he began his job with the
employing establishment and was required to move files. He noted that appellant had seen
multiple specialists, including a neurologist who had determined that appellant’s pain was likely
caused by “mechanical stresses.” Dr. Cowen concluded: “[Appellant’s] pain syndrome has
escalated since the beginning of his filing duties. This very well may have caused or aggravated
his now constant back pain.”
On May 19, 2003 appellant explained that “walking, sitting, standing, bending and lifting
even light things aggravates my constantly painful lower back and right leg.” He stated that
while he was in “constant pain from the neck down” due to his preexisting cervical injury, “the
pain since [his] employment is different.” Appellant characterized his low back pain as “more
intense and debilitating,” with radicular symptoms into the right leg. Also provided was a
position description for the veterans service representative job, which stated: “The work
normally involves mental rather than physical exertion. The work is mostly sedentary.”
By decision dated June 3, 2003, the Office denied appellant’s occupational disease claim.
Appellant requested a hearing which took place on January 28, 2004.
By decision dated April 12, 2004, an Office hearing representative vacated the June 3,
2003 decision and remanded the case for further medical development.
In an April 5, 2004 report, Dr. Wang noted that a 2004 MRI scan revealed no significant
disc herniation, foraminal or central canal stenosis, some disc bulging and some mild arthrosis.
He reviewed appellant’s medical history and noted that he had no pain before taking on the job
and that the pain occurred after he started work. This suggested that appellant’s pain was work
related. Dr. Wang also concluded that appellant’s cervical injury contributed to appellant’s
condition, as standing for prolonged periods of time, bending, stooping or reaching would put a

2

strain on the lumbar support musculature. Appellant would not be able to tolerate very well in
comparison to someone who did not have a preexisting neurologic injury.
On May 7, 2004 the Office referred appellant, together with a statement of accepted facts
to Dr. Steven Valentino, an osteopath, for a second opinion examination.
In a June 1, 2004 report, Dr. Valentino reviewed appellant’s prior medical history and
diagnostic reports from January 11, February 9 and August 22, 2001, which he found essentially
normal. On physical examination, he noted that appellant walked with a shuffling gait, which
was a residual of his spinal cord injury about the cervical spine. Dr. Valentino determined that
appellant’s cervical range of motion was moderately restricted without spasm, while appellant’s
thoracic and lumbar flexibility was complete, intact and painless. He diagnosed “status post
cervical cord lesion, no evidence of low back injury” and concluded that appellant did not have a
low back condition that was causally related to his federal employment. Dr. Valentino explained
that appellant’s diagnostic studies revealed only age-related degenerative changes about the
lumbar spine. There was no evidence of any acute or traumatic finding. Any diagnosis of a
myofascial condition would have resolved with conservative care over a short period of time.
Dr. Valentino advised that residuals of the gunshot wound which involved the cervical spine
were permanent, preexisting and not related to appellant’s employment. In a work capacity
report, he advised that appellant had “no limitations regarding low back symptoms” and could
work a full eight-hour day.
In a June 16, 2004 decision, the Office denied appellant’s claim.
On June 21, 2004 appellant requested a hearing. He submitted a December 19, 2000
electromyogram (EMG) report from Dr. Richard A. Buckler, a Board-certified neurologist, who
diagnosed a mildly abnormal EMG. Dr. Buckler opined that appellant’s right lower extremity
pain may be due to mild lumbar radiculopathy or disc herniation. On March 7, 2005
Dr. Daniel L. Skubick, a Board-certified neurologist, noted widespread musculoskeletal
dysfunction. He stated: “There is also an issue as to whether or not he has ongoing organic
problems in his back. [Dr. Valentino] has considered him to be completely recovered with no
underlying pathology of his lumbar spine, which is ludicrous, given the degree of activity that we
have seen on two occasions.” In a March 23, 2005 report, Dr. Cory Krueger, a Board-certified
internist, stated that appellant complained of sharp shooting pains in his middle and low back and
that he performed poorly on heel and toe walks, “indicating the disease in the L4 and S1 regions
of his spine.” Upon reviewing Dr. Cowen’s report and appellant’s history, Dr. Krueger opined
“with reasonable medical certainty that appellant’s current severe back pain and exacerbation of
previous pain conditions were appreciated by the physical work required by his employer.
An oral hearing was held on March 30, 2005. After the hearing, appellant submitted
reports from Dr. William E. Gusa, Jr., a Board-certified anesthesiologist, who noted performing
branch blocks and joint injections in appellant’s back in reports dated June 15, July 7
and 20, 2004. Dr. Gusa did not address the cause of appellant’s back condition.
In an April 19, 2005 report, Dr. Skubick opined, based upon appellant’s stated medical
history, that there was a direct relationship between the physical demands of appellant’s job and
his musculoskeletal complaints. He diagnosed myofascial pain syndrome involving iliocostalis

3

and longissimus in the thoracolumbar region with secondary involvement of the right quadratus
lumborum and the right gluteal complex. Dr. Skubick reiterated that appellant sustained a
musculoskeletal injury to the paraspinal musculature/gluteal complex on the right as a direct
result of his employment in 2000 and 2001.
In a decision dated June 2, 2005, the hearing representative affirmed the denial of
appellant’s occupational disease claim.
On July 13, 2005 appellant requested reconsideration. In a June 28, 2005 report,
Dr. Skubick explained that myofascial pain syndrome was a recognized condition and he had
identified the lumbar paraspinal musculature, the quadratus lumborum and the right gluteal
complex as the affected muscles. He noted:
“I have linked this pathologically specific (myofascial trigger point) and
anatomically specific diagnosis (the above listed muscles) to [appellant’s] work at
the [employing establishment]. It is impossible to offer a more specific diagnosis,
either physiologically or anatomically, than I have offered. The diagnosis is
incredibly specific and is not in any way a nonspecific musculoskeletal injury.”
On March 24, 2004 Dr. Gusa diagnosed chronic low back pain with right radicular
symptoms and noted that a lumbar MRI scan revealed mild lumbar degenerative changes. On
April 6, 2004 he diagnosed low back and right lower extremity pain consistent with right
sacroiliitis. Dr. Skubick also provided status notes as did Dr. Michael Kaye, a chiropractor, to
whom he referred appellant.1
In a November 15, 2005 report, Dr. Thomas E. Greene, a Board-certified orthopedic
surgeon, noted appellant’s medical history and “problems dating back to a work activity since
the year 2000.” He diagnosed persistent lumbar myofascial-type syndrome encompassing the
lumbar paraspinal muscles, the quadratus lumborum, posterior gluteus and gluteus medius.
Dr. Greene noted that appellant’s x-rays appeared normal but that a physical examination
revealed back stiffness and decreased range of motion. He concluded that appellant’s onset of
back discomfort was secondary to his work activity.
By decision dated July 7, 2006, the Office denied modification of its June 2, 2005
decision.
Appellant requested reconsideration on July 18, 2006.
In a March 21, 2006 report, Dr. Valentino noted examining appellant upon referral from
Dr. Krueger. He diagnosed lumbar degenerative disc disease and residuals of cervical
myelopathy. Dr. Valentino noted that appellant’s facet and sacroiliac joints were normal but that
his lumbar flexibility was mildly restricted. He opined that appellant’s myelopathy affected his
low back and leg complaints and recommended further diagnostic testing and consideration of a
spinal cord stimulator or pain pump for treatment.

1

Dr. Kaye did not report a diagnosis of spinal subluxation as demonstrated by x-ray.

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In a March 31, 2006 report, Dr. Skubick remarked that Dr. Valentino previously found
that appellant had nothing wrong but, when acting as a second opinion examiner had found
muscles skeletal symptoms so significant as to recommend rather aggressive treatment. He also
noted appellant’s continuing lumbar pain and tenderness.
By decision dated October 26, 2006, the Office denied modification of the July 7, 2006
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.3
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.4
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.5 The test for determining whether
appellant sustained a compensable occupational disease or injury is three-pronged. To establish
the factual elements of the claim, appellant must submit: “(1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.”6
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between his or her claimed injury and his
or her employment.7 To establish a causal relationship, appellant must submit a physician’s
report, in which the physician reviews the employment factors identified by appellant as causing
his condition and, taking these factors into consideration as well as findings upon examination of

2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

6

Michael R. Shaffer, 55 ECAB 386, 389 (2004), citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, supra note 4.
7

Donald W. Long, 41 ECAB 142 (1989).

5

appellant and his medical history, states whether the employment injury caused or aggravated
appellant’s diagnosed conditions and presents medical rationale in support of his or her opinion.8
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.9 The
opinion of the physician must be based on a complete factual and medical background of the
claimant10 and must be one of reasonable medical certainty11 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.12
ANALYSIS
Appellant alleged that he sustained chronic low back pain due to his employment duties
from June 5, 2000 to April, 1, 2001 as a service representative. The Board finds that appellant
has not submitted sufficient medical evidence to establish a causal relationship between his
diagnosed conditions and his employment activities.
Appellant provided several medical reports supporting his claim. In a December 17,
2002 report, Dr. Wang noted appellant’s preexisting cervical injury with significant disability in
the upper and lower extremities. He addressed appellant’s complaints of pain after performing
filing duties for the employing establishment. Dr. Wang found no conclusive evidence of pain
emanating from the spine and opined that it was likely due to a myofascial syndrome. On
April 5, 2004 he noted being unable to make any findings concerning pathology. However,
Dr. Wang attributed appellant’s condition to his employment based on appellant’s stated medical
history and the fact that appellant had not reported similar symptoms before starting his federal
employment. However, he did not present sufficient rationale supporting his conclusion.
Dr. Wang did not explain why the particular work duties would cause or aggravate his lumbar
condition. The Board has held that a medical opinion not fortified by medical rationale is of
little probative value.13 Moreover, the mere fact that appellant’s symptoms arose after starting
employment, without more, is not probative. The Board has held that the concurrence of
symptom development with a period of employment is insufficient to establish causal
relationship.14 Dr. Cowen’s April 4, 2003 report similarly did not establish causal relationship,
as the physician presented insufficient rationale explaining how work activities caused or
8

Id.

9

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

10

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

11

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

12

Judy C. Rogers, 54 ECAB 693 (2003).

13

Caroline Thomas, 51 ECAB 451, 456 n. 10 (2000); Brenda L. Dubuque, 55 ECAB 212, 217 (2004).

14

Robert M. Sanford, 27 ECAB 115 (1975).

6

aggravated a diagnosed condition. He merely observed that appellant was “doing fairly well”
until he began his employment. This is insufficient to establish causal relationship.15
The Office referred appellant to Dr. Valentino for a second opinion examination. In a
June 1, 2004 report, Dr. Valentino concluded, based on the medical history and diagnostic testing
results, that appellant exhibited age-related, nonemployment-related degenerative changes in the
lumbar spine. He noted that myofascial condition would have resolved with conservative care
over a short period of time. Dr. Valentino also noted that physical examination findings were
essentially normal with regard to appellant’s lumbar, thoracic and cervical spine. He concluded
that any pathology was preexisting and a residual of appellant’s nonemployment cervical spine
injury. Dr. Valentino later examined appellant upon referral by Dr. Krueger and provided a
March 21, 2006 report diagnosing lumbar degenerative disc disease and residuals of cervical
myelopathy. He did not support a causal relationship between appellant’s employment factors
and his back condition; in fact, he attributed appellant’s low back complaints to his cervical
myelopathy. Although appellant asserts that Dr. Valentino’s two reports are contradictory, the
Board notes that he was consistent in finding that appellant had degenerative changes. In neither
report did Dr. Valentino attribute the degenerative changes to appellant’s work activities during
2000 and 2001. The Board finds that the weight of medical opinion is represented by the reports
of Dr. Valentino.
In a March 7, 2005 report, Dr. Skubick diagnosed “widespread musculoskeletal
dysfunction” and noted that there was an “issue as to whether or not [appellant] has ongoing
organic problems in his back.” He found Dr. Valentino’s June 1, 2004 report to be “ludicrous.”
On April 19, 2005 Dr. Skubick opined that there was a direct relationship between appellant’s
“musculoskeletal complaints” and the physical demands of his work. However, these reports are
insufficiently rationalized to establish causal relationship. Dr. Skubick did not describe the
particular employment factors identified in any detail or provide explanation concerning how
specific employment factors caused appellant’s condition. He did not explain how appellant’s
work duties from June 2000 to April 2001 would contribute to any preexisting disability
impacting his lower extremities. Other reports by Dr. Skubick did not specifically address causal
relationship.
In a March 23, 2005 report, Dr. Krueger opined that there was a direct relationship
between appellant’s current complaints and the physical tasks of his former position. However,
he provided insufficient explanation of the causal relationship between appellant’s condition and
his employment factors. Dr. Krueger did not identify the specific physical duties involved,
explain how they exceeded appellant’s capabilities, or discuss why his work factors caused or
aggravated his back condition. Dr. Greene’s November 15, 2005 report attributed appellant’s
condition to “problems dating back to a work activity” but he did not identify the work activity
to which he referred or explain the reasons why it caused appellant’s condition. He also noted
that he relied partially on appellant’s own stated medical history in reaching his conclusion that
there was a causal relationship between the unspecified “work activity” and appellant’s
condition. However, a medical opinion based on the claimant’s beliefs concerning causal

15

See id.

7

relationship, rather than the physician’s independent reasoning, is of little probative value.16
Therefore, Dr. Greene’s opinion is insufficiently rationalized to support causal relationship.
Other reports submitted by appellant, including those from Dr. Buckler and Dr. Gusa, are
insufficient to establish the claim as they do not specifically address whether appellant’s
employment factors caused or aggravated a diagnosed condition.17
Appellant contends that the Office erred in not finding a conflict between Dr. Valentino,
and his treating physician. As noted however, the reports of appellant’s physicians are not well
rationalized on the issue of causal relationship such that they are of diminished probative value.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
developed an occupational disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 10, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

16

Earl David Seal, 49 ECAB 152, 155-56 (1997).

17

Reports from Dr. Kaye, a chiropractor, are of no probative value. A chiropractor may only be considered a
physician under the Act to the extent that he or she diagnoses a spinal subluxation as demonstrated by x-ray. See
5 U.S.C. § 8101(2). Dr. Kaye did not diagnose a spinal subluxation as demonstrated by x-ray and is not considered a
physician. See Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in general,
can only be given by a qualified physician).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.O., Appellant
and
U.S. POSTAL SERVICE, WEST GRAND POST
OFFICE, Oakland, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0247
Issued: December 13, 2021

Case Submitted on the Record

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

JURISDICTION
On November 6, 2019 appellant filed a timely appeal from a July 10, 2019 merit decision
and July 31, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish
compensation for time lost from work to attend medical appointments on intermittent dates during
the period August 28 through October 4, 2018 causally related to her accepted November 24, 2017
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 31, 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.

employment injuries; and (2) whether OWCP properly denied appellant’s request for
reconsideration of the merits of her claim for intermittent disability during the period January 22
through 29, 2018, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
FACTUAL HISTORY
On December 8, 2017 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 24, 2017 she injured her left leg and knee when she
missed a step and fell down stairs while in the performance of duty. She stopped w ork on
November 26, 2017. On February 2, 2018 OWCP accepted appellant’s claim for contusions of
the left knee and left lower leg, and sprain of the left knee. It paid her wage-loss compensation on
the supplemental rolls commencing February 13, 2018.
In a January 16, 2018 primary treating physician’s progress report, Dr. Sarah Ann Mansell,
an attending Board-certified family practitioner, noted that she evaluated appellant on
January 15, 2018. She also noted a date of injury as November 24, 2017 and that appellant was
not currently working because her job was unable to accommodate her modifications. Dr. Mansell
diagnosed left knee contusion and tendinitis of the left patellar tendon. She placed appellant on
modified activity at work and home with restrictions from January 15 through 29, 2018.
On February 23, 2018 appellant filed a claim for compensation (Form CA-7) for disability
from work during the period January 22 through 29, 2018. On the reverse side of the claim form,
the employing establishment indicated that she had returned to modified-duty work following her
accepted employment injuries. 3 On an accompanying February 26, 2018 time analysis form (Form
CA-7a), appellant claimed compensation due to “no work” on January 22, 23, 25, 26, 27, and
29, 2018.4
On March 9, 2018 the employing establishment verified that appellant was marked as
absent without leave (AWOL) for the period January 22 through 29, 2018.
In a March 9, 2018 letter, OWCP informed appellant that the evidence submitted was
insufficient to establish entitlement to compensation for the period January 22 through 29, 2018.
It requested that she submit medical evidence from her physician explaining how her employmentrelated conditions worsened such that she was unable to perform her work duties during the
claimed period. OWCP noted that the evidence of record did not establish that the employing
establishment was unable to provide a light/limited-duty position within appellant’s medical
restrictions. It related that the employing establishment confirmed that she was placed on AWOL
status during the claimed period. OWCP requested that appellant submit evidence to support why
she was unable to work. It afforded her 30 days to submit the necessary evidence.
3

On January 30, 2018 appellant accepted a job offer as a full-time modified city carrier with the employing
establishment at two hours per day.
4

Appellant also claimed 4.50 hours to attend a medical appointment on February 15, 2018. OWCP, in a March 9,
2018 letter, notified her that payment had been authorized for 4.50 hours of leave without pay (LWOP) taken on
February 15, 2018.

2

On March 13, 2018 appellant informed OWCP that the employing establishment had
corrected her status from AWOL to LWOP.
Dr. Mansell, in a January 29, 2018 progress note, related a history of the accepted
November 24, 2017 employment injury. She reiterated her diagnoses of left knee contusion and
tendinitis of the left patellar tendon. Dr. Mansell again placed appellant on modified activity at
work and home from January 29 to February 15, 2018.
Additional progress notes dated January 15 and 18, 2018 from Dr. Roman P. Kownacki, a
Board-certified occupational medicine physician, and Dr. W.J. Kevin Maher, a family practitioner,
respectively, noted a history of the accepted November 24, 2017 employment injury. The
physicians provided assessments of tendinitis of the left patellar tendon and left knee contusion,
subsequent. Appellant was placed on modified activity at work and home from January 18 through
29, 2018.
OWCP, by decision dated July 18, 2018, denied appellant’s claim for compensation for the
period January 22 through 29, 2018. It found that the medical evidence of record was insufficient
to establish a material change in her accepted employment-related conditions that rendered her
unable to perform her light-duty work duties. OWCP also found that the evidence of record was
insufficient to establish that the employing establishment was unable to provide appellant with a
light/limited-duty assignment within her medical restrictions during the claimed period.
On September 18, 2018 the employing establishment offered appellant a part-time
modified city carrier position effective that day based on the work restrictions set forth by
Dr. Scott M. Taylor, an orthopedic surgeon.
Appellant accepted the job offer on
September 19, 2018.
In an October 4, 2018 visit note, Dr. Taylor related a history of the accepted November 24,
2017 employment injury. He diagnosed sprain of unspeciﬁed site of the left knee, subsequent
encounter. Dr. Taylor advised that appellant should continue to perform modified work. He
advised that she could return to regular work on December 1, 2018.
On October 16, 2018 appellant filed an additional Form CA-7 for time lost from work to
attend medical appointments on intermittent dates during the period August 28 through
October 4, 2018. In an accompanying October 17, 2018 Form CA-7a, she claimed compensation
for LWOP taken on the following dates to attend medical appointments: 1.29 hours on August 28,
2018; 1.63 hours on August 29, 2018; 1.32 hours on September 24, 2018; and 1.53 hours on
October 2, 2018.5
OWCP, in an October 22, 2018 development letter, informed appellant that it received her
claim for compensation for intermittent time loss for medical appointments on August 28 and 29,
September 24, and October 2, 2018. It requested that she submit additional medical evidence to

5

Appellant also claimed compensation for 4.51 hours of LWOP taken on September 20, 2018 and 2.48 hours on
October 4, 2018, which was paid on October 22, 2018.

3

establish her attendance at a medical appointment on the claimed dates. OWCP afforded appellant
30 days to provide the requested information.
Thereafter, OWCP received additional medical evidence from Dr. Taylor. In a
December 20, 2017 industrial work status report and November 6 and December 4, 2018 visit
notes, Dr. Taylor reiterated his diagnoses of left knee contusion, subsequent, and left knee sprain,
subsequent. He placed appellant on modified activity at work and home from December 20, 2017
to January 15, 2018 and again advised that she could return to regular work on December 1, 2018.
In prescription notes dated November 6 and December 4, 2018, Dr. Taylor ordered physical
therapy.
By decision dated July 10, 2019, OWCP denied appellant’s claim for compensation for
August 28 and 29, September 24, and October 2, 2018 finding that she had not submitted evidence
to support medical evaluation or treatment for her accepted conditions on the claimed dates.
On July 24, 2019 appellant requested reconsideration of OWCP’s July 18, 2018 decision.
In an accompanying letter dated July 9, 2019, she contended that the employing establishment
erred in placing her on AWOL status as she was willing and able to work during the period
January 22 through 29, 2018 for which she requested wage-loss compensation. Appellant noted
that she was given an “Employee Leave Information Letter, Complete Day” by the employing
establishment and was told by management not to come to work and that she would be contacted
when work was available. She indicated that a copy of that letter dated January 18, 2018
accompanied her request for reconsideration. Appellant also noted that she was attaching a
March 29, 2019 settlement agreement of a grievance that she had filed against the employing
establishment, which addressed the mistake it made in placing her on AWOL status. She
concluded that OWCP was free to contact her union representative and manager.6 Additionally,
appellant submitted March 13, 2018 Form CA-7a again claiming compensation for intermittent
dates during the period January 22 through 29, 2018. She also submitted a copy of OWCP’s
July 18, 2018 decision.
OWCP received a September 11, 2018 prescription from Dr. Taylor who diagnosed sprain
of unspecified site of the left knee, sequela for 3 to 10 months.
By decision dated July 31, 2019, OWCP denied appellant’s request for reconsideration of
its July 18, 2018 decision denying her disability claim for the period January 22 through 29, 2018,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that
besides the uncertified CA-7 form and a copy of its July 18, 2018 decision she submitted in support
of her untimely reconsideration request, no additional materials were received as part of the request
despite her statement that they were being submitted as a part of her request.

6

The Board notes that the evidence that appellant references in her reconsideration request is not found in the case
record.

4

LEGAL PRECEDENT -- ISSUE 1
OWCP’s procedures provide that wages lost for compensable medical examinations or
treatment may be reimbursed. 7 A claimant who has returned to work following an accepted injury
or illness may need to undergo examination or treatment and such employee may be paid
compensation for wage loss while obtaining medical services and for a reasonable time spent
traveling to and from the medical provider’s location.8 Wage loss is payable only if the
examination, testing, or treatment is provided on a day which is a scheduled workday and during
a scheduled tour of duty. Wage-loss compensation for medical treatment received during off-duty
hours is not reimbursable. 9 The evidence should establish that a claimant attended an examination
or treatment for the accepted work injury on the dates claimed in order for compensation to be
payable.10 For a routine medical appointment, a maximum of four hours of compensation may be
allowed. However, longer periods of time may be allowed when required by the nature of the
medical procedure and/or the need to travel a substantial distance to obtain the medical care. The
claims for wage loss should be considered on a case-by-case basis.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish entitlement to
wage-loss compensation for up to four hours of time lost for medical treatment on intermittent
dates during the period August 28 through October 4, 2018 causally related to her accepted
November 24, 2017 employment injuries.
Appellant alleged on an October 17, 2018 Form CA-7a that she was disabled from work
on August 28 and 29, September 24, and October 2, 2018 due to medical appointments. The
medical evidence of record, however, does not establish that she attended medical appointments
on the claimed dates.12 The Board therefore finds that the medical evidence of record is
insufficient to establish appellant’s claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment, Chapter
2.901.19 (February 2013).
8

Id. at Chapter 2.901.19.a.

9

Id. at Chapter 2.901.19.a(2).

10

Id. at Chapter 2.901.19.a(3).

11

Id. at Chapter 2.901.19.c.

12

In order to establish entitlement to compensation for any time missed from work due to medical treatment for an
employment-related condition, a claimant must submit supporting medical evidence. S.H., Docket No. 18-1342
(issued February 26, 2019); Dorothy J. Bell, 47 ECAB 624 (1996); Zane H. Cassell, 32 ECAB 1537 (1981).

5

LEGAL PRECEDENT -- ISSUE 2
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
request for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought. 13 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS).14
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA. 15
OWCP may not deny a request for reconsideration solely because the request was untimely
filed. When a request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether the request demonstrates clear evidence of error.16 OWCP’s
regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
request demonstrates clear evidence of error on the part of OWCP. 17
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error.18 It is not enough merely to show that the evidence
could be construed so as to produce a contrary conclusion. 19 This entails a limited review by
OWCP of how the evidence submitted with the reconsideration request bears on the evidence
previously of record and whether the new evidence demonstrates clear evidence on the part of
OWCP.20 The Board makes an independent determination of whether a claimant has demonstrated
merit review in the face of such evidence.21
OWCP’s procedures further provide that the term clear evidence of error is intended to
represent a difficult standard. 22 The claimant must present evidence that on its fact shows that
OWCP made an error. Evidence such as a detailed, well-rationalized medical report that, if

13

20 C.F.R. § 10.607(a).

14

Supra note 7 at Chapter 2.1602.4 (February 2016).

15

G.L., Docket No. 18-0852 (issued January 14, 2020).

16

20 C.F.R. § 10.607(b); R.S., Docket No. 19-0180 (issued December 5, 2019).

17

Id.; supra note 7 at Chapter 2.1602.5a (February 2016).

18

20 C.F.R. § 10.607(b); B.W., Docket No. 19-0626 (issued March 4, 2020); Fidel E. Perez, 48 ECAB 663,
665 (1997).
19

See G.B., Docket No. 19-1762 (issued March 10, 2020); Leona N. Travis, 43 ECAB 227, 240 (1991).

20

B.W., supra note 18.

21

Id.; Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

22

Supra note 17.

6

submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error.23
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
OWCP’s regulations24 and procedures25 establish a one-year time limitation for requesting
reconsideration, which begins on the date of the original OWCP merit decision. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.26
Appellant requested reconsideration of the July 18, 2018 decision denying of her claim for wageloss compensation for the period January 22 through 29, 2018. As appellant’s request for
reconsideration was not received by OWCP until July 24, 2019, more than one year after the
July 18, 2018 merit decision, the Board finds that it was untimely filed. 27 Consequently, appellant
must demonstrate clear evidence of error on the part of OWCP in denying her claim for
compensation.
The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP in its July 18, 2018 merit decision. With her July 24, 2019 untimely request for
reconsideration, appellant indicated that she was submitting a January 18, 2018 letter from the
employing establishment and a March 29, 2019 grievance settlement agreement. However, no
such evidence was received.
On reconsideration, OWCP received a March 13, 2018 Form CA-7a wherein she again
claimed compensation for intermittent dates during the period January 22 through 29, 2018.
Appellant also submitted a duplicate copy of OWCP’s July 18, 2018 decision. This evidence had
previously been considered by OWCP and she did not explain how this evidence was positive,
precise, and explicit in manifesting on its face that OWCP committed an error in denying her claim
for compensation. 28 As the underlying issue is medical in nature, these documents are insufficient
to shift the weight of the evidence.

23

G.B., supra note 19.

24

F.N., Docket No. 18-1543 (issued March 6, 2019); 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB
247 (2005).
25

Supra note 24; see J.M., Docket No. 19-1842 (issued April 23, 2020); L.A., Docket No. 19-0471 (issued
October 29, 2019); Veletta C. Coleman, 48 ECAB 367, 370 (1997).
26

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert F. Stone, 57 ECAB 292 (2005).

27

20 C.F.R. § 10.607(b); see J.M., supra note 25; L.A., supra note 25; Debra McDavid, 57 ECAB 149 (2005).

28

J.F., Docket No. 14-1938 (issued February 6, 2015).

7

Appellant has not submitted any argument or evidence to demonstrate clear evidence of
error in OWCP’s July 18, 2018 decision. The Board, thus, finds that OWCP properly found that
her request for reconsideration failed to demonstrate clear evidence of error. 29
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish compensation
for time lost from work to attend medical appointments on intermittent dates d uring the period
August 28 through October 4, 2018 causally related to her accepted November 24, 2017
employment injuries. The Board further finds that OWCP properly denied appellant’s request for
reconsideration of the merits of her claim for intermittent disability during the period January 22
through 29, 2018, finding that it was untimely filed and failed to demonstrate clear evidence of
error.

29

See J.D., Docket No. 18-1765 (issued June 11, 2019).

8

ORDER
IT IS HEREBY ORDERED THAT the July 10 and 31, 2019 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: December 13, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Ukiah, CA, Employer
)
___________________________________________ )
L.S., Appellant

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

Docket No. 09-1698
Issued: June 1, 2010

Case Submitted on the Record

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

JURISDICTION
On June 25, 2009 appellant filed a timely appeal of a May 20, 2009 merit decision of the
Office of Workers’ Compensation Programs, which denied modification of a May 29, 2008
decision, which denied her claim for a recurrence. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant was entitled to wage-loss compensation benefits as of
June 10, 2004.
FACTUAL HISTORY
On December 30, 2002 appellant, then a 55-year-old rehabilitation clerk, filed an
occupational disease claim alleging that she developed a lower lumbar strain in the performance
of duty. She indicated that she first became aware of the injury and its relation to her work on
December 14, 2001. Appellant returned to limited duty for four hours a day on January 9, 2003.
On December 11, 2003 the Office accepted the claim for lumbago secondary to aggravation of

lumbar degenerative disc disease.1 Appellant received wage-loss compensation for hours she did
not work for certain periods including from December 29, 2003 to May 21, 2004.2
On February 2, 2004 the Office referred appellant for vocational rehabilitation services.
In a March 17, 2004 duty status report, Dr. Bob Dozor, Board-certified in family
medicine and appellant’s treating physician, indicated that appellant could work up to eight hours
daily within restrictions.
On May 28, 2004 the employing establishment offered appellant a full-time limited-duty
position as a distribution window clerk, which she accepted on May 28, 2004. The physical
requirements were listed as sitting, standing and walking, intermittently; moderate lifting, 5 to 30
pounds and moderate intermittent twisting; sitting or standing with intermittent walking and
occasional twisting with moderate lifting 5 to 20 pounds; sitting or standing; sitting or standing
with moderate lifting, 1 to 30 pounds and sitting or standing with intermittent walking. The
additional restrictions included: sitting only for one-hour continuously, maximum; walking for
20 minutes continuously; and standing for 20 minutes, continuously. Appellant returned to the
limited-duty position on June 1, 2004.
In a June 10, 2004 report, Dr. Dozor advised that appellant’s return to work was not
successful and opined that she was totally unable to work within her particular job description at
the employing establishment. He noted that “absent sitting in one position for prolonged periods
doing repetitive work, her back is OK. Therefore, she does n[o]t need therapy as much as
finding a different job description.” Dr. Dozor diagnosed low back pain, obesity and
osteoarthritis in the leg. He recommended that appellant stay away from the employing
establishment as she could not do prolonged periods of repetitive work.
In a June 18, 2004 report, Dr. Dozor opined that he stood by his prior opinion. He noted
that written job descriptions “are one thing and what is actually demanded in the workplace is
another.” Dr. Dozor characterized appellant’s position as a “symphony orchestra conductor”
noting that “her hands and arms are waving around handling 500 to 1,000 pieces of mail per day.
This causes pain in low back radiating into thighs, which remits when she goes home each day.”
He opined that her return to the employing establishment was not going to work. Dr. Dozor
noted that he reviewed the job description and advised that “she cannot stay in one position
working repetitively, but needs to be in a variety of positions and to be able to choose them as
her body dictates. He reiterated that appellant could not return to the employing establishment.
On June 21, 2004 appellant claimed a recurrence of disability on June 8, 2004 causally
related to the December 14, 2001 employment injury. She stopped work on June 9, 2004.
Appellant alleged that her recurrence occurred because she returned to the exact same duties
previous to her injury and her duties increased to eight hours per day and she was under pressure
1

It vacated the earlier decisions denying the claim.

2

The record reflects that appellant’s treating physician, Dr. Kenneth Wiesner, a Board-certified internist,
recommended that a workstation consultant address appellant’s issues related to discomfort in her back and knees.
A recommendation to provide an ergonomic chair and a desk of proper height was made.

2

to perform from the postmaster. The employing establishment indicated that it complied with
work restrictions and noted that she was observed reading “want ads” while on duty.
In a July 2, 2004 letter, Beatriz Camacho, an injury compensation specialist, indicated
that, on June 8, 2004, appellant was disciplined by the postmaster because she was reading the
local want ads. She indicated that, thereafter, appellant’s physician placed her on temporary total
disability. Ms. Camacho enclosed a copy of e-mail correspondence from the postmaster
confirming the noted events.
On July 13, 2004 the Office advised appellant that additional factual and medical
evidence was needed. It allotted her 30 days within which to submit the requested information.
In another July 13, 2004 letter, the Office characterized appellant’s work stoppage as a failure to
participate in vocational rehabilitation. It advised her to participate in vocational rehabilitation
or her compensation could be reduced.
In a letter dated August 2, 2004, appellant indicated that she was ordered by her
physician not to work. She indicated that she would return to work once her physician released
her. In a separate August 2, 2004 letter, appellant indicated that she prepared the mail per
management’s instruction on June 7, 2004. However, on June 8, 2004, she was directed to
process the back logged mail until it was current. Appellant alleged that this violated her
May 21, 2004 restrictions of a maximum of one-hour of continuous sitting, bending, lifting,
pushing, pulling or twisting, which were supposed to be intermittent. She alleged that she was
asked to work beyond her medical restrictions. Appellant also denied that her absence from
work was due to discipline and noted that she did not receive any letter of warning or suspension.
She also enclosed statements from witnesses to support that she was asked to remove the stacked
up mail and work in a continuous manner. In an August 1, 2004 report, Dr. Dozor repeated his
opinion that “prolonged sitting” was the cause of appellant’s back pain.
On August 16, 2004 the Office reduced appellant’s compensation to zero, effective
August 12, 2004, as she refused to cooperate with her vocational rehabilitation program. It
advised that its rehabilitation efforts placed her in an appropriate job and that she did not
cooperate with these efforts.
In an August 17, 2004 decision, the Office denied appellant’s claim for a recurrence of
disability beginning June 12, 2004.
By letter dated August 12, 2005, appellant’s representative requested reconsideration of
the August 16 and 17, 2004 decisions.3 The Office received additional evidence comprised of
previously submitted medical reports, physical therapy reports and copies of previously
submitted witness statements.
By decision dated November 17, 2005, the Office denied modification of the previous
decisions.

3

Appellant filed a new claim for an occupational disease on June 12, 2004. However, the claim was the same as
the present claim and it was denied in January 31 and December 1, 2005 decisions. File No. xxxxxx286.

3

By letter dated February 2, 2006, appellant’s representative requested reconsideration.
His arguments included that appellant’s workstation was not ergonomic as it was confined and
her telephone was not within arm’s reach. In a January 26, 2006 report, Dr. Dozor noted that
while she was provided an ergonomic chair, the ergonomic recommendations, which included
ensuing that the telephone was within arm’s reach were not implemented. He indicated that as a
result of appellant having to bend and stretch to reach the telephone approximately 10 times per
hour, the back pain returned and her conditions exacerbated. Dr. Dozor also noted that she was
“a very large woman” who worked in a caged area. He noted that the rest of her work space was
cramped with a backlog of mall which made maneuvering almost impossible. Dr. Dozor added
that sitting was one of the worst things appellant could do for her lower back condition. He
opined that the position she returned to did not comply with his restrictions. Dr. Dozor opined
that if appellant continued to work in these conditions, her disability would have become
permanent.
By decision dated April 13, 2006, the Office denied modification of its prior decision.
By letter dated August 16, 2006, appellant requested reconsideration. She alleged that
she was working beyond her restrictions and that her workstation was not ergonomic. In an
August 7, 2006 report, Dr. Dozor opined that the employing establishment never rectified the
prominent cause of her condition, which was that her workstation was not ergonomic. He
explained that the employing establishment failed to institute an ergonomically appropriate
workstation. Dr. Dozor noted that appellant had very specific restrictions, to include an
ergonomically redesigned workstation. He indicated that from June 7 to 9, 2004 her back pain
recurred and worsened daily until she left work on June 9, 2004. Dr. Dozor indicated that he saw
appellant on June 10, 2004 and advised that it was her that had “suffered a recurrence of her
previous back injury due to the exact same ergonomic inadequacies of her workstation.” He
opined that “it was not surprising that she was reinjured, which was a direct result of ignoring
this recommendation. Had I understood, that the [employing establishment] could and would
ignore this recommendation, I would never have sent her back to work.”
In a letter dated February 5, 2007, appellant alleged that Dr. Dozor’s recommendation
and release of her to work was premised on the employing establishment providing her with an
ergonomic workstation.
By decision dated March 13, 2007, the Office denied modification of its prior decisions.
On March 10, 2008 appellant requested reconsideration and submitted additional
evidence. In a February 28, 2008 report, Dr. Dozor opined that his words were “misconstrued.”
He explained an ergonomic analysis and implementation of the ergonomic conditions were a
condition of appellant’s return to work. Dr. Dozor noted that when he saw her on June 10, 2004,
the symptoms that she exhibited on the date required that he remove her from her work
environment. He opined that: “[it] appears that absent sitting in one position for prolonged
periods doing repetitive work, her back is OK.” Dr. Dozor noted that appellant’s back condition
had steadily improved after being absent from her work environment. He explained that “minus
[employing establishment] related activities of prolonged periods doing repetitive work, her back
is OK. The reintroduction of the work scenario without the protective values afforded by
ergonomics destroyed the improvement garnered over the previous 10 months and added

4

additional injury.” Dr. Dozor explained that the employing establishment failed to implement an
ergonomic work environment and on June 10, 2004, her back was symptomatic. He also
explained that he was aware of appellant’s nonwork-related ranch activities and they were not a
factor. Dr. Dozor explained that those activities helped to offer muscle endurance, joint
mobility, lowered blood pressure, weight control and reduce depression. He indicated that
appellant had degenerative joint disease, (lumbago), exacerbated by work-related activity.
Dr. Dozor indicated that, in June 2004, she was in the very early stages of stability and her injury
was “exceedingly vulnerable to additional trauma.” He indicated that, despite being offered a
limited-duty position, it did not comport with the conditions of returning to work as the
ergonomic recommendations were not implemented. Dr. Dozor opined that “the tissue irritant
that first disabled [appellant] had recurred in her ‘(pseudo)new’ position at the [employing
establishment.” He noted that the employing establishment returned appellant to the same poor
ergonomics that exacerbated her initial injury and opined that “the failure to implement
ergonomic principles on behalf of [appellant] assured her failure in her rehabilitation efforts and
caused additional injury.”
Appellant also submitted statements from friends and neighbors indicating that she did
not perform strenuous activities in her home life.
By decision dated May 29, 2008, the Office denied modification of the March 13, 2007
decision. It found that the evidence did not establish a recurrence of disability beginning
June 12, 2004.
In a January 21, 2009 report, Dr. Dozier opined that appellant’s condition was related to
the physical demands of her duties in June 2004. He explained that the ergonomics of her
workplace clearly caused her back pain and advised that, while the chair was ergonomic, her
work table, was not. Dr. Dozor explained that the work surface provided in the registry cage was
that of a table. He noted that the working surface of a table is higher than the elbows of the
seated individual. Dr. Dozor explained that the raising of one’s hands above one’s elbows to
manipulate objects increased the load on the spine and caused the back muscles to contract to
counter the increased load. He further noted that “over use of the back muscles increases muscle
tension” and “in extension the intervertebral discs are flattened (pinched) at the posterior edge.”
Dr. Dozor indicated that the increased pressure and reduced circulation within the disc readily
resulted in disc inflammation, (lumbago) and/or additional joint injury, including degenerative
joint disease. He opined that the lumbar irritation/inflammation that appellant experienced was
“consistent with a person manipulating objects at an excessive height, exacerbated by downward
pressure (repetitive application of a rubber stamp). I am certain that this is the mechanism of her
injury.”
On February 11, 2009 appellant requested reconsideration. She alleged that upon her
return to work in June 2004, she was assigned to the bulk mail workstation for the dates of
June 1, 2, 3 and 4, 2004. Appellant noted that she was furnished with a chair that was
specifically purchased for her use and advised that she experienced no physical difficulty on any
of those dates. However, she explained that she was directed to the registry cage for the dates of
June 7, 8 and 9, 2004 and the chair was moved to the registry cage for her use. However,
appellant noted that the working surface available in the cage was that of a table and she was
tasked to process “Return to Sender” mail. She alleged that the process required that she

5

manually apply a rubber stamp to each piece of mail. Appellant alleged that she began to suffer
symptoms of low back pain and stiffness on June 8, 2004 and her pain was intolerable by early
June 10, 2004. She provided a January 12, 2009 statement from Larry Olsen, a coworker, who
indicated that her workstation was a letter carrier work table with the shelves removed and not a
desk. Appellant also provided a January 28, 2009 statement from Bruce Robert Rustenhoven, a
coworker, who indicated that when he worked in the cage with appellant, it contained a safe, a
chair and a letter carrier table.
By decision dated May 20, 2009, the Office denied modification of its prior decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits. After it has determined that, an employee has disability
causally related to his federal employment, the Office may not terminate compensation without
establishing that the disability ceased or that it is no longer related to the employment.4
Generally, the Office can meet this burden by showing that the employee returned to work; even
if that work is light duty rather than the date-of-injury position, if thereafter the employee earns
no less than he had before the employment injury.5 A short-lived and unsuccessful attempt to
return to duty, however, does not automatically discharge the Office’s burden to justify
termination of compensation.6
The Office’s procedures require that, in cases where recurrent disability for work is
claimed within 90 days or less from the first return to duty, the attending physician should
describe the duties which the employee cannot perform and the demonstrated objective medical
findings that form the basis for the renewed disability for work.7
ANALYSIS
The Office accepted that appellant sustained lumbago secondary to aggravation of lumbar
degenerative disc disease and paid wage-loss compensation for hours of work missed.
Appellant returned to a limited-duty position on June 1, 2004. In its decision, the Office
characterized her claim for compensation starting on June 12, 2004 as a claim for recurrence of
total disability due to her employment injury. It placed the burden of proof for establishing
disability on appellant indicating that she had the burden of proof to show that she was totally
disabled from light-duty work. The Office found that she did not meet her burden of proof and
did not pay wage-loss compensation after June 12, 2004. As noted, however, a short-lived return
to work does not shift the burden of proof regarding employment-related disability. The Board
4

Vivien L. Minor, 37 ECAB 541 (1986).

5

Billy Sinor, 35 ECAB 419 (1983).

6

Fred Reese, 56 ECAB 568 (2005).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6(a) and (b)
(September 2003).

6

has held that such a shift in burden of proof is not appropriate when there is a brief return to
work and the medical evidence does not establish that the claimant could continue to perform the
light-duty job.
The Board finds no probative medical evidence establishing that appellant’s employmentrelated condition had ceased on or after June 10, 2004 or that her inability to perform the lightduty job was not related to her employment injury. Although Dr. Dozor initially indicated that
she could return to light-duty work for eight hours a day, after she attempted to work full time,
on June 10, 2004, he reported that her return to work was not successful and opined that she was
totally unable to work within her particular job description at the employing establishment. He
noted that “absent sitting in one position for prolonged periods doing repetitive work, her back is
OK.” Dr. Dozor recommended that appellant not return to the employing establishment as she
could not do prolonged periods of repetitive work.
In a June 18, 2004 report, Dr. Dozor reiterated his prior opinion. He noted that the
attempt to return to work was not successful. Dr. Dozor opined that appellant could not stay in
one position working repetitively but needed to be in a variety of positions. He indicated that she
could not return to the employing establishment. In his August 1, 2004 report, Dr. Dozor
repeated that “prolonged sitting” was the cause of appellant’s back pain. He also noted, in a
January 26, 2006 report, that while she received an ergonomic chair, the ergonomic
recommendations, which included insuring that the telephone was within arm’s reach were not
implemented and her back pain was exacerbated having to bend and stretch to reach the
telephone several times per hour. Dr. Dozor also indicated that the rest of appellant’s work space
was cramped with a backlog of mail which made maneuvering almost impossible. He opined
that the position she returned to did not comply with his restrictions. In an August 7, 2006
report, Dr. Dozor reiterated that the employing establishment never rectified the prominent cause
of appellant’s condition, which was that her workstation was not ergonomic. He indicated that
he saw her on June 10, 2004 and advised that it was apparent that she had “suffered a recurrence
of her previous back injury due to the exact same ergonomic inadequacies of her workstation.”
Dr. Dozor explained that he would never have sent appellant back to work if he knew the
employing establishment would ignore his recommendations. He repeated his opinion in his
reports dated February 28, 2008 and January 21, 2009. Dr. Dozor explained further that the
work surface provided in the registry cage was a table with a work surface that was higher than
the elbows of the seated person. He explained that the “raising of one’s hands above one’s
elbows to manipulate objects increased the load-on-the-spine and caused the back muscles to
contract to counter the increased load.” Dr. Dozor indicated that the “over use of the back
muscles increases muscle tension” and “in extension the intervertebral discs are flattened
(pinched) at the posterior edge.” He opined that the lumbar irritation/inflammation that appellant
experienced was “consistent with a person manipulating objects at an excessive height,
exacerbated by downward pressure (repetitive application of a rubber stamp). I am certain that
this is the mechanism of her injury.”
The Board finds that appellant’s short-lived return to the light-duty position was not
sufficient for the Office to shift the burden to appellant. It remains the Office’s burden of proof
to terminate compensation and the Board finds that the Office essentially terminated wage-loss
benefits without sufficient supporting medical evidence.

7

CONCLUSION
The Board finds that the Office did not establish that appellant was not entitled to
appropriate wage-loss compensation beginning June 10, 2004.
ORDER
IT IS HEREBY ORDERED THAT the May 20, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 1, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF THE AIR FORCE,
SPECIAL OPERATIONS COMMAND,
RANDOLPH AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 15-499
Issued: April 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 8, 2015 appellant, through counsel, filed a timely appeal from a
December 16, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying his request for reconsideration. Because more than 180 days elapsed since the
most recent merit decision dated May 2, 2011 and the filing of this appeal on January 8, 2015,
the Board lacks jurisdiction to review the merits of appellant’s case pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the December 16, 2014 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, counsel contends that OWCP’s decision is contrary to law and fact.
FACTUAL HISTORY
This case was previously before the Board.3 Briefly, on March 25, 2009 appellant, a 54year-old wood worker/forklift operator, filed a traumatic injury claim (Form CA-1) alleging that
he sustained a right shoulder injury in the performance of duty on March 24, 2009 while pushing
a sheet of plywood. By decision dated May 2, 2011, OWCP denied the claim on the basis that
the medical evidence was insufficient to establish a causal relationship between appellant’s
condition and the March 24, 2009 employment incident. In the most recent appeal of the Board,
in a decision dated January 27, 2014, it affirmed OWCP’s March 21, 2013 decision denying
appellant’s request for reconsideration as it was not timely filed and did not establish clear
evidence of error. The facts of the case, as set forth in the prior decision, are incorporated by
reference.
On December 5, 2014 appellant, through counsel, requested reconsideration and
resubmitted medical evidence dated October 6, 2009 through October 31, 2011 from Dr. Mimi
Zumwalt, a Board-certified orthopedic surgeon, which were previously considered by OWCP.
Dr. Zumwalt diagnosed a torn right rotator cuff based on clinical examination and diagnostic
studies. On October 6, 2009 she indicated that appellant had a history of a lifting injury about 30
years prior and had noticed a pop and pain while pushing plywood. Dr. Zumwalt reported on
October 24, 2001 that she treated appellant for a work-related shoulder injury sustained at work
two years prior.
By decision dated December 16, 2014, OWCP denied appellant’s request for
reconsideration of the merits, finding that he did not submit pertinent new and relevant evidence
and did not show that it erroneously applied or interpreted a point of law not previously
considered by OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right. It vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.4 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).5

3

Docket No. 13-1816 (issued January 27, 2014). In an appeal request form postmarked June 4, 2011, appellant
requested a telephonic oral hearing before an OWCP hearing representative. By decisions dated July 13, 2011 and
August 24, 2012, OWCP denied appellant’s request for an oral hearing finding it untimely because it was not made
within 30 days of its May 2, 2011 merit decision. On March 14, 2013 appellant, through counsel, requested
reconsideration of the May 2, 2011 decision.
4

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
5

See Annette Louise, 54 ECAB 783, 789-90 (2003).

2

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.6 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.7 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.8
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record9 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.10
ANALYSIS
In support of his December 5, 2014 reconsideration request, appellant resubmitted
medical evidence dated October 6, 2009 through October 31, 2011. The Board finds that this
evidence did not require reopening appellant’s case for merit review because appellant had
submitted the same evidence, which was previously reviewed by OWCP and this Board. As the
reports repeat evidence already in the case record, it is duplicative and does not constitute
relevant and pertinent new evidence. Thus, appellant has not established a basis for reopening
his case.11
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law or advanced a relevant legal argument not previously considered by the OWCP. Because
appellant only submitted repetitive evidence with his request for reconsideration, the Board finds
that he did not meet any of the necessary requirements and is not entitled to further merit
review.12
On appeal, counsel contends that OWCP’s decision is contrary to law and fact. Based on
the findings and reasons stated above, the Board finds that counsel’s arguments are not
substantiated.

6

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

See supra note 5. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

10

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

11

See D.K., 59 ECAB 141 (2007).

12

See L.H., 59 ECAB 253 (2007).

3

CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 16, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 10, 2015
Washington, DC

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

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

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

4