United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

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Appearances:
Linda Temple, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1748
Issued: December 18, 2007

Case Submitted on the Record

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

JURISDICTION
On June 20, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 29 and May 14, 2007 merit decisions denying his claim for an
employment-related injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty.
FACTUAL HISTORY
On October 19, 2006 appellant, then a 58-year-old letter carrier, filed a traumatic injury
claim alleging that he sustained an injury at work in the form of back pain and bilateral knee
pain. Regarding the cause of the injury, appellant stated, “I usually sit at work, but not able to sit
and old injuries are flaring up knee and back pain.”1 In an October 19, 2006 statement, appellant
1

This claim bears the file number 02-2521687.

indicated that, while working his route on October 19, 2006 his knees and lower back were
hurting him.2 He stopped work on October 21, 2006.
Appellant submitted an October 19, 2006 form report which listed the date of injury as
October 19, 2006 and noted that he reported that he “hurt knees and back while racking mail.”
Another October 19, 2006 form report indicated in the history of injury section that appellant
reported, “back and knee in pain since now he has to stand.” Both reports were stamped with the
name and address of a medical care center but were not signed.
In an October 21, 2006 form report, a physician with an illegible signature listed the date
of injury as October 19, 2006 and noted clinical findings of “tenderness and swelling” but did
not provide a diagnosis. An unsigned form report dated October 20, 2006 lists a history of
“bilateral knee pain and swelling,” findings of “bilateral swelling and tenderness” and a
diagnosis of “degenerative arthritis.” In a December 4, 2006 form report, a physician with an
illegible signature listed the date of injury as October 19, 2006, the history of injury as “back and
both knees” and clinical findings of knee swelling and decreased range of motion.
In an undated form report, Dr. Lev J. Paukman, an attending Board-certified internist,
listed the history of injury as “had injury on October 19, 2006 at work” and diagnosed
“degenerative arthritis of both knees.” He checked a box indicating that the diagnosed condition
was employment related but did not identify any particular employment factors as causing or
aggravating the condition. On December 7, 2006 Dr. Eddy Leveque, an attending Boardcertified family practitioner, indicated that appellant complained of low back and knee pain for
many years but had more severe symptoms since October 2006.
In a December 26, 2006 letter, the Office requested that appellant submit additional
factual and medical evidence. Appellant submitted an unsigned January 15, 2007 form report
which listed the date of injury as October 19, 2006 but did not describe a mechanism of injury.
In a January 29, 2007 decision, the Office denied appellant’s claim that he sustained an
employment injury on the grounds that he did not establish the factual aspect of his claim. The
Office found that appellant did not adequately identify which particular employment factors
caused or aggravated his claimed injury.
On January 15, 2006 Dr. Paukman indicated that appellant came to him on October 20,
2006 complaining of severe bilateral knee pain and swelling and severe low back pain
“exacerbated by sitting or standing for prolonged periods of time, bending, lifting, pushing and
climbing stairs.”3 He diagnosed severe lumbosacral strain and sprain and severe bilateral knee
injury.
On February 11, 2007 appellant requested reconsideration of his claim. He indicated that
he was requesting reconsideration of the present claim (file number 02-2521687), but alleged
2

A supervisor asserted that appellant was upset that he was no longer allowed to sit and deliver mail and filed his
claim as a form of retaliation.
3

Dr. Paukman also noted a history of appellant tripping and falling at work on an unspecified date and injuring
his left knee on an unspecified date. In a February 7, 2007 report, he indicated that the fall occurred in 2001.

2

that this claim was improperly treated as a new traumatic injury rather than a recurrence of an
“old injury” under file number 02-2008915. Appellant asserted that his supervisor gave him the
wrong form and that he had “filled out the correct form and it is being submitted with my
medical and other pertinent information.” In a February 16, 2007 statement, he again indicated
that his claim should have been considered as a claim for recurrence of disability under file
number 02-2008915. Appellant also indicated that a chair was taken away from him on
October 16, 2006 and that he then had to stand for four hours per day whereas he usually only
had to stand for one hour per day. He stated that “the claimed condition was directly related to
the removal of the chair.”
In an October 19, 2006 report, Dr. Joseph Fassl, an attending Board-certified internist,
indicated that appellant reported back and knee symptoms which had worsened recently.
Appellant also submitted medical reports detailing treatment of his left knee problems in 2001
which included a torn medial meniscus. He submitted diagnostic test results from January 2007
regarding his back and knee conditions.
In a May 14, 2007 decision, the Office affirmed its January 29, 2007 decision. It again
indicated that appellant had not adequately identified the claimed cause of his injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his 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 disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.5 The medical evidence
required to establish a causal relationship between a claimed period of disability and an
employment injury 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
compensable employment factors.6
ANALYSIS
The Board finds that the Office properly denied appellant’s claim on the grounds that he
did not adequately identify which particular employment factors caused or aggravated his
claimed injury. As noted above, a claimant has the burden of proof to identify employment
factors believed to have caused or aggravated a claimed employment-related condition.

4

5 U.S.C. §§ 8101-8193.

5

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

3

On October 19, 2006 appellant filed a traumatic injury claim alleging that he sustained an
injury at work in the form of back pain and bilateral knee pain. Regarding the cause of the
injury, appellant stated, “I usually sit at work, but not able to sit and old injuries are flaring up
knee and back pain.” In an October 19, 2006 statement, appellant indicated that, “while working
my route” on October 19, 2006 he felt that his knees and lower back were hurting him.
However, he did not provide any indication of what aspects of working his route he felt caused
him to sustain an injury. Appellant submitted several form reports dated between October and
December 2006 which listed the date of injury as October 19, 2006 and contained the diagnosis
of degenerative disease of the knees. None of these reports contain any description of the
mechanism of injury.
In February 11 and 16, 2007 letters, appellant indicated that his present claim (file
number 02-2521687), was improperly treated as a new traumatic injury rather than a recurrence
of an older employment injury under file number 02-2008915.7 Appellant created further
confusion over the cause of his claimed injury when he also indicated that he had to stand for
longer periods because a chair was taken away from him on October 16, 2006. He stated that
“the claimed condition was directly related to the removal of the chair.” The record also
contains a January 15, 2006 report of Dr. Paukman, an attending internist, which seems to
implicate other ostensible employment factors. Dr. Paukman indicated that appellant came to
him on October 20, 2006 complaining of severe bilateral knee pain and swelling and severe low
back pain “exacerbated by sitting or standing for prolonged periods of time, bending, lifting,
pushing and climbing stairs.”
For these reasons, appellant has not clearly identified the employment factors which he
believed caused or aggravated his claimed condition and therefore the Office properly denied his
claim.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty.

7

Appellant suggested that he had filed a recurrence of disability claim in connection with file
number 02-2008915. This matter is not currently before the Board.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 14 and January 29, 2007 decisions are affirmed.
Issued: December 18, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
San Diego, CA, Employer
__________________________________________

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

Docket No. 15-0843
Issued: July 6, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 4, 2015 appellant filed a timely appeal from a December 18, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision of July 8, 2014 to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this claim.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the December 18, 2014 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration, pursuant
to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

ISSUE
The issue is whether OWCP properly denied appellant’s October 1, 2014 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 24, 2014 appellant, then a 48-year-old customs and border patrol (CBP)
officer, filed an occupational disease claim alleging that she sustained pain in her neck, upper
back, and right arm while assigned to work “VACIS 1.”3 She stated that she felt a severe pain in
her neck, upper back, and right arm and informed her shift supervisor. Appellant went home and
then to urgent care the next day. She first became aware of her disease and realized it resulted
from her employment on February 27, 2014. The record does not indicate that appellant stopped
work.
In a letter dated April 29, 2014, OWCP advised appellant that no evidence was submitted
to establish her claim. It requested a detailed description of the specific work factors that she
believed caused her claimed injury and medical evidence to demonstrate that she sustained a
diagnosed condition as a result of her employment duties.
On February 28, 2014 appellant was treated in urgent care by Dr. Emi Misao Latham,
Board-certified in emergency medicine, who examined appellant for complaints of right neck,
arm, and shoulder pain. Dr. Latham related that appellant had a previous injury when she
strained her neck muscles while training at work. Upon examination, she observed no point
tenderness along the cervical, thoracic, or lumbar spine. Dr. Latham noted palpable muscle
spasm to the right trapezial area. She stated that appellant had right-sided trapezial muscle
spasm that appeared to be an exacerbation of an old injury. Dr. Latham noted that it was unclear
what exacerbated appellant’s condition.
In a decision dated July 8, 2014, OWCP denied appellant’s claim. It determined that she
failed to describe the specific work factors that she believed caused or contributed to her claimed
condition and the type of injury she claimed to have sustained.
On October 1, 2014 OWCP received appellant’s request for reconsideration.
In a September 18, 2014 report, Dr. Marc R. Gottlieb, a chiropractor, noted appellant’s
complaints of discomfort and paresthesia in the upper thoracic, right cervical, and left thoracic
dorsal areas. Upon examination he observed multiple subluxations with spasm, hypomobility,
and end-point tenderness. Dr. Gottlieb noted moderate-to-severe spasm upon palpation of the
muscles. He stated that appellant’s prognosis was guarded and uncertain.
By decision dated December 18, 2014, OWCP denied appellant’s request for
reconsideration finding that her request did not meet any of the requirements for further merit
review pursuant to 5 U.S.C. § 8128(a).

3

There is no further explanation in the record as to what “VACIS 1” entailed.

2

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.4 OWCP regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his or her right through a request to the district OWCP.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by it; or (3) constitutes relevant and pertinent new evidence not previously considered
by OWCP.6
A request for reconsideration must also be submitted within one year of the date of
OWCP’s decision for which review is sought.7 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.8 If the request is timely but fails to
meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.9
ANALYSIS
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; she has not advanced a relevant legal argument not previously
considered by OWCP; and she has not submitted relevant and pertinent new evidence not
previously considered by OWCP.
By decision dated July 8, 2014, OWCP denied appellant’s claim finding that she failed to
describe the specific work factors that she believed caused or contributed to her claimed
condition and the type of injury she allegedly sustained. On October 1, 2014 it received her
request for reconsideration. Appellant submitted a September 18, 2014 chiropractor report. The
Board finds that this evidence is insufficient to review her case on the merits. This
September 18, 2014 medical report does not mention or describe any of appellant’s work factors.

4

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

5

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
6

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued
December 9, 2008).
7

Id. at § 10.607(a).

8

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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The Board notes that the submission of evidence that does not address the particular issue
involved does not constitute a basis for reopening a case.10
Appellant did not submit any factual evidence or narrative description of the employment
factors that she believed caused or contributed to her condition. She did not therefore submit
new and relevant evidence which would require OWCP to reopen her claim for merit review.
On appeal, appellant reviewed the medical treatment she had received and related that her
job required that she stand, sit, twist, turn, bend, squat, and lift things that are heavy at all times.
The Board notes that appellant on appeal is addressing the merits of her claim. As previously
stated, the Board does not have jurisdiction to review the merits of her claim. Furthermore, it
cannot review new evidence which was not presented to OWCP before it issued its final
decision.11 The Board can only review the December 18, 2014 nonmerit reconsideration
decision to determine whether OWCP properly denied appellant’s reconsideration request.
The Board finds that appellant failed to submit relevant and pertinent new evidence, a
relevant legal argument not previously considered by OWCP, or evidence or argument which
shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP
properly refused to reopen her case for further consideration of the merits of her claim under
5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that OWCP properly denied appellant’s October 10, 2014 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).

10

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

See 20 C.F.R. §§ 501.2(c)(1) and 501.3(e). See also supra note 2.

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ORDER
IT IS HEREBY ORDERED THAT the December 18, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 6, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, SOUTH JERSEY
PROCESSING & DISTRIBUTION CENTER,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 09-1967
Issued: September 9, 2010

Case Submitted on the Record

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

JURISDICTION
On July 29, 2009 appellant timely appealed the April 17, 2009 merit decision of the
Office of Workers’ Compensation Programs, which affirmed the termination of her wage-loss
compensation and medical benefits. 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 the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective September 23, 2008.
FACTUAL HISTORY
Appellant, a 49-year-old modified manual clerk, has an accepted occupational disease
claim for left shoulder (trapezius) sprain and exacerbation of chronic cervical sprain, which arose

on or about June 18, 2005 (xxxxxx183 and xxxxxx048).1 She also has an accepted claim for a
September 11, 2002 right upper extremity injury (xxxxxx936).2 At the time of her June 18, 2005
injury, appellant was working in a limited-duty capacity as a consequence of her previous
employment injury. Beginning July 25, 2005 she received appropriate wage-loss compensation.
The Office then placed appellant on the periodic compensation rolls effective October 2, 2005.
Appellant continued to receive wage-loss compensation for temporary total disability for
approximately three years.3
In February 2008 appellant’s treating physician, Dr. Craig H. Rosen, restricted her to
limited duty with no overhead use and no repetitive use of the left shoulder.4 He also imposed a
10-pound limitation with respect to pushing, pulling and lifting. Additionally, Dr. Rosen
recommended that appellant obtain a new magnetic resonance imaging (MRI) scan, which she
did on April 16, 2008. He reviewed appellant’s new left shoulder MRI scan when he saw her on
May 13, 2008. Dr. Rosen noted that the latest scan showed tendinosis in the rotator cuff. He
also noted evidence of fluid and what appeared to be a small area of cortical impaction and bone
contusion at the posterior and superior aspect of the humeral head. Appellant reported
tenderness in the area as well as anteriorly. Dr. Rosen indicated that she adamantly denied any
trauma to the shoulder. He further noted that appellant’s left upper extremity was still intact
from a neurovascular standpoint. Dr. Rosen recommended obtaining a bone scan for further
evaluation. He also advised that appellant remain at the same job status as previously detailed in
February 2008.
Dr. Zohar Stark, a Board-certified orthopedic surgeon and Office referral physician,
examined appellant on July 1, 2008. He also reviewed various medical records and a May 27,
2008 statement of accepted facts (SOAF). Dr. Stark stated there were no objective findings on
physical examination indicating that the accepted condition of left shoulder sprain was still
active. He also advised that appellant reached maximum medical improvement and was capable
of returning to her date-of-injury job with no restrictions.5 Dr. Stark further indicated that
1

The Office mistakenly assigned two separate claim numbers to appellant’s June 27, 2005 claim (Form CA-2) for
injury to her neck, left arm and left shoulder. Once it realized its mistake the two identical claims were combined
and claim number xxxxxx048 was designated as the master file.
2

With respect to the September 11, 2002 employment injury, appellant’s accepted conditions include right lateral
epicondylitis, right carpal tunnel syndrome, right shoulder impingement syndrome, right bicipital tenosynovitis and
right brachial neuritis. The Office also authorized a December 12, 2003 right shoulder arthroscopic procedure.
Additionally, appellant received a May 17, 2006 schedule award for 46 percent impairment of the right upper
extremity.
3

While on the periodic compensation rolls appellant participated in Office-sponsored vocational rehabilitation
that included enrollment in a community college program for medical office administration. She reportedly
exacerbated her left shoulder condition carrying textbooks during the spring and summer of 2007. The Office
suspended rehabilitation services in October 2007 pending further medical evaluation.
4

Dr. Rosen is a Board-certified orthopedic surgeon. He previously treated appellant for her right upper extremity
condition and he also performed the December 12, 2003 right shoulder arthroscopic procedure authorized under
claim number xxxxxx936.
5

Dr. Stark was aware that appellant previously injured her right shoulder, which required surgery. He was also
aware that she had been working in a limited-duty capacity at the time of her June 18, 2005 left shoulder injury.

2

appellant was not disabled from any type of job regarding the accepted condition of left shoulder
sprain.
The Office requested a supplemental report from Dr. Stark because it had previously been
omitted from the SOAF information regarding appellant’s other accepted conditions. It amended
the May 27, 2008 SOAF to include information regarding appellant’s duplicate claim
(xxxxxx048) that had been accepted for left shoulder sprain and exacerbation of chronic cervical
sprain. The amended SOAF also noted her September 11, 2002 claim (xxxxxx936) that had
been accepted for “right shoulder tendinitis.”
In a July 31, 2008 supplemental report, Dr. Stark noted that he had reviewed the recently
amended SOAF. Based on his July 1, 2008 examination, he indicated that there was no evidence
that appellant’s condition from all of her claims still persisted. Dr. Stark reiterated that she had
reached maximum medical improvement and that she was able to return to her preinjury job with
no restrictions. He concluded that appellant was “not disabled with regard to the accepted
conditions of left shoulder sprain and exacerbation of chronic cervical strain nor right shoulder
tendinitis.”
On August 21, 2008 the Office issued a notice of proposed termination of compensation
and medical benefits based on Dr. Stark’s opinion. It afforded appellant 30 days to submit
additional evidence or argument to the extent she disagreed with the proposed termination of
benefits.
The Office subsequently received a September 2, 2008 letter from appellant’s counsel
challenging Dr. Stark’s opinion.6 It also received a July 22, 2008 report from Dr. Jeffrey S.
Leitman, a family practitioner, who indicated that appellant was unable to accept the job she had
been offered. Although he did not identify a specific job offer, Dr. Leitman indicated that
appellant had restrictions on both of her shoulders and could not do any overhead and repetitive
work. He also noted that she was restricted with her lifting, pulling and carrying. Additionally,
the Office received a September 10, 2008 left shoulder bone scan that revealed increased
periarticular tracer uptake in the shoulders, left greater than right. Diagnostic considerations
included arthritis as well as post-traumatic change.
On September 23, 2008 the Office issued a final decision terminating appellant’s
compensation and medical benefits. It was not persuaded by counsel’s challenge to Dr. Stark’s
opinion, noting that counsel’s “dissatisfaction” with the reports in question was “not sufficient to
warrant the continuation of ... wage[-]loss compensation and medical benefits.” The Office
further found that the recent bone scan and Dr. Leitman’s July 22, 2008 report were outweighed
by Dr. Stark’s opinion.
Appellant requested a hearing, which was held on January 12, 2009. At the hearing
counsel reiterated his previous challenge to Dr. Stark’s opinion. He also submitted a new report
from Dr. Rosen dated October 2, 2008, which counsel argued created a conflict in medical
opinion.
6

Counsel argued, in part, that Dr. Stark’s opinion was based on a flawed factual medical history, particularly with
respect to appellant’s September 11, 2002 employment injury.

3

In his October 2, 2008 report, Dr. Rosen provided a summary of the treatment he
provided appellant for her left shoulder condition dating back to January 2006. He also noted
that he had previously treated her for her right shoulder, including surgery. Dr. Rosen indicated
that appellant had permanent restrictions regarding her right shoulder. With respect to her left
shoulder, Dr. Rosen stated that he similarly imposed permanent restrictions in April 2006 and
then discharged her from his care. Appellant returned in July 2007 complaining that she had
developed left shoulder pain from carrying heavy books while attending school over the past few
months. Dr. Rosen reported that her examination was again consistent with mild to moderate left
shoulder anterior instability. He placed appellant in physical therapy and maintained her limitedduty work restriction. Dr. Rosen also commented on her April 16, 2008 left shoulder MRI scan,
which revealed some tendinosis in the rotator cuff. He also noted his March 13, 2008
examination findings as well as the results of the September 10, 2008 bone scan. When
Dr. Rosen last saw appellant on September 23, 2008 she still complained of persistent left
shoulder pain. He indicated that he had arranged for her to undergo left shoulder arthroscopy
with anterior capsular placation.
Regarding causal relationship, Dr. Rosen explained that appellant’s initial injury on
June 18, 2005 aggravated her underlying left shoulder instability, which remained symptomatic.
He further explained that he placed her on permanent limited duty in April 2006 and advised her
to return on an as needed basis. Appellant returned in July 2007 after carrying books at school,
which further aggravated her shoulder. Dr. Rosen stated that appellant’s underlying anterior
instability and current problems were part of her body habitus, which was aggravated on June 18,
2005 and then further aggravated in spring of 2007. He indicated that appellant remained
consistently symptomatic until most recently when arrangements were made for her to undergo
arthroscopic surgery. Dr. Rosen also stated that there was “no doubt that [appellant’s] repetitive
job [at the employing establishment] did not help with her left shoulder pain.” He stated that her
prognosis was guarded. Between the June 18, 2005 original injury and the spring of 2007
aggravation, Dr. Rosen could not state the exact percentage of each injury responsible for
appellant’s continued and ongoing shoulder complaints.
By decision dated April 17, 2009, the hearing representative affirmed the September 23,
2008 decision terminating compensation and medical benefits. She found that Dr. Rosen’s
opinion was of diminished probative value and that the weight of the medical evidence rested
with Dr. Stark’s well-reasoned report. Dr. Rosen’s opinion was purportedly based solely on
subjective complaints of pain. The hearing representative further commented that even if the
symptoms of pain could be shown to be work related, there was no objective evidence to
establish that the residuals were restricting appellant’s functional abilities to the point that she
could not perform the job she held at the time of her June 18, 2005 injury.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.7 Having determined that an employee has a disability
causally related to her federal employment, the Office may not terminate compensation without
7

Curtis Hall, 45 ECAB 316 (1994).

4

establishing that the disability has either ceased or that it is no longer related to the employment.8
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.9 To terminate authorization for medical treatment, the Office
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.10
ANALYSIS
Appellant’s counsel argues that there is an unresolved conflict in medical opinion
between Dr. Rosen and Dr. Stark.11 For a conflict to arise the opposing physicians’ viewpoints
must be of “virtually equal weight and rationale.”12 It is the Office that bears the burden to
justify modification or termination of benefits.13 Counsel correctly argued that Dr. Stark had not
been apprised of the full extent of appellant’s September 11, 2002 employment injury. Based on
the May 27, 2008 amended SOAF the only accepted condition of which Dr. Stark was aware
regarding the September 11, 2002 employment injury was “right shoulder tendinitis.” The
Office failed to inform him at that time that appellant’s September 11, 2002 injury had also been
accepted for right lateral epicondylitis, right carpal tunnel syndrome, right bicipital tenosynovitis
and right brachial neuritis. The amended SOAF also did not mention that appellant received a
schedule award for 46 percent impairment of the right upper extremity. Absent a comprehensive
factual background, it is different for Dr. Stark to conclude that all of appellant’s employmentrelated injuries had resolved. The Board further notes that Dr. Rosen’s latest opinion was not
based entirely on appellant’s subjective complaints of pain. Dr. Rosen referenced both the
April 16, 2008 left shoulder MRI scan and the September 10, 2008 bone scan.
While neither Dr. Rosen’s nor Dr. Stark’s opinion is fully rationalized, their respective
findings are at least equally weighted. With respect to the existence and extent of any ongoing
employment-related residuals, the Board finds that the relevant and probative medical evidence
is in equipoise. Because there is an unresolved conflict in medical opinion, the Office has not
met its burden to justify termination of benefits.14 Accordingly, its decision to terminate
appellant’s compensation and medical benefits shall be reversed.

8

Jason C. Armstrong, 40 ECAB 907 (1989).

9

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

10

Calvin S. Mays, 39 ECAB 993 (1988).

11

The Federal Employees’ Compensation Act provides that, if there is disagreement between the physician
making the examination for the Office and the employee’s physician, the Office shall appoint a third physician who
shall make an examination. 5 U.S.C. § 8123(a) (2006); Shirley L. Steib, 46 ECAB 309, 317 (1994).
12

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

13

Curtis Hall, supra note 7.

14

Id.

5

CONCLUSION
The Office improperly terminated appellant’s benefits effective September 23, 2008.
ORDER
IT IS HEREBY ORDERED THAT the April 17, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 9, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION, Jacksonville, FL, Employer
__________________________________________

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

Docket No. 09-180
Issued: July 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 23, 2008 appellant filed a timely appeal from a September 12, 2008 decision
of the Office of Workers’ Compensation Programs adjudicating his schedule award claim.
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 has more than four percent impairment due to hearing loss
in his left ear, any ratable hearing loss in his right ear and whether he is entitled to a schedule
award for his tinnitus.
FACTUAL HISTORY
On March 31, 2004 appellant, then a 54-year-old metals inspector, filed an occupational
disease claim alleging that he sustained bilateral hearing loss and tinnitus due to 10 years of
noise exposure at work, including noise from high speed air tools, drilling and grinding
equipment and aircraft engines. He indicated that his hearing loss began in 1999. On July 21,
2004 the Office accepted appellant’s claim for binaural sensorineural hearing loss. In a separate

decision dated July 21, 2004, the Office found that the medical evidence established that his
hearing loss was not severe enough to be ratable. By decision dated January 27, 2005, an Office
hearing representative affirmed the July 21, 2004 decision.
On October 7, 2005, Dr. A.E. Anderson, an otolaryngologist and an Office medical
adviser, stated that, based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), appellant was entitled to up to five percent
impairment for tinnitus in the presence of measurable hearing loss if the tinnitus impacted his
ability to perform activities of daily living. He stated that “measurable hearing loss” was defined
as “ratable hearing loss.” Appellant did not have ratable hearing loss based on the medical
evidence.1
By decision dated October 18, 2005, the Office found that appellant’s accepted binaural
hearing loss was not severe enough to be ratable. It also denied his claim for tinnitus. By
decision dated October 18, 2006, an Office hearing representative found that the record was
unclear as to whether tinnitus was an accepted condition in appellant’s case. He remanded the
case for the Office to make a specific finding as to whether tinnitus was an accepted condition.
In an October 29, 2007 report, Dr. John A. Fetchero, Jr., an otolaryngologist, diagnosed
binaural progressive high frequency sensorineural hearing loss and binaural tinnitus.
Audiometric testing performed for Dr. Fetchero on October 29, 2007 by Thomas Williams, an
audiologist, revealed at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second
(cps): right ear decibel losses of 15, 15, 20 and 50; left ear decibels of 15, 15, 15 and 65. On
December 14, 2007 Dr. Williams noted that appellant’s bilateral tinnitus was a high-pitched
persistent ringing sound which was very bothersome.
On November 6, 2007 an Office medical adviser reviewed the results of the audiometric
testing performed for Dr. Fetchero and applied the Office’s standardized procedures. He totaled
the decibel losses of 15, 15, 20 and 50 in the right ear for the frequency levels of 500, 1,000,
2,000 and 3,000 cps at 100 decibels and divided by 4 to obtain the average hearing loss of 25
decibels. This average was then reduced by 25 decibels to equal 0 decibels and multiplied by the
established factor of 1.5 to compute zero percent impairment in the right ear. The Office medical
adviser totaled the losses of 15, 15, 15 and 65 in the left ear at 110 decibels and divided by 4 to
obtain the average hearing loss of 27.5 decibels. This average was then reduced by 25 decibels
to equal 2.5 which was multiplied by the established factor of 1.5 to compute 3.75, rounded to
four percent monaural hearing loss in the left ear. The Office medical adviser noted that
appellant was entitled to a schedule award for five percent impairment in the presence of a
ratable hearing loss if tinnitus affected his ability to perform activities of daily living. He
indicated that, if the October 29, 2007 audiogram, which demonstrated four percent left ear
impairment, was used by the Office for granting a schedule award, tinnitus should be an accepted

1

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (October 2005) (these procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified, especially when there is more than one evaluation of the impairment present).

2

condition because the onset of this condition was associated with the onset of appellant’s
accepted work-related noise-induced hearing loss in 1999.
On November 19, 2007 the Office expanded appellant’s claim to include binaural
tinnitus.
On June 10, 2008 appellant filed a claim for a schedule award.
By decision dated September 12, 2008, the Office granted appellant a schedule award for
four percent monaural hearing loss in his left ear for 2.08 weeks from October 29 to
November 12, 2007.2
LEGAL PRECEDENT
The schedule award provision of the Act3 provides for compensation to employees
sustaining permanent impairment loss of use of scheduled members. The Act, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter in which rests within the sound discretion of the
Office. For consistent results and to ensure equal justice under the law to all claimants, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office for evaluating
schedule losses and the Board has concurred in the adoption of this standard.4
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A, Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each
frequency are added and averaged.6 Then, the “fence” of 25 decibels is deducted because, as the
A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.7 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.8 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.9

2

The Federal Employees’ Compensation Act provides for 52 weeks of compensation for complete loss of hearing
in one ear. 5 U.S.C. § 8107(c)(13)(A). Multiplying 52 weeks by four percent equals 2.08 weeks of compensation.
3

5 U.S.C. § 8107.

4

See 20 C.F.R. § 10.404; Thomas O. Bouis, 57 ECAB 602 (2006).

5

A.M.A., Guides 250 (5th ed. 2001).

6

Id.

7

Id.

8

Id.

9

Id.

3

ANALYSIS
On November 6, 2007 an Office medical adviser reviewed the results of the audiometric
testing performed for Dr. Fetchero and applied the Office’s standardized procedures. He totaled
the decibel losses of 15, 15, 20 and 50 in the right ear for the frequency levels of 500, 1,000,
2,000 and 3,000 cps at 100 decibels and divided by 4 to obtain the average hearing loss of 25
decibels. This average was then reduced by 25 decibels to equal 0 decibels and multiplied by the
established factor of 1.5 to compute 0 percent impairment in the right ear. Dr. Anderson totaled
the losses of 15, 15, 15 and 65 in the left ear at 110 decibels and divided by 4 to obtain the
average hearing loss of 27.5 decibels. This average was reduced by 25 decibels to equal 2.5 and
was multiplied by the established factor of 1.5 to compute 3.75, rounded to four percent,
monaural hearing loss in the left ear.
The Board finds that the Office properly calculated appellant’s right and left ear
impairment due to hearing loss. However, further development is needed on the issue of whether
appellant is entitled to a schedule award for impairment caused by his accepted binaural tinnitus.
The A.M.A, Guides notes that tinnitus, in the presence of unilateral (monaural) or
binaural hearing impairment, may impair speech discrimination. For this reason, it allows for
compensation of up to five percent for tinnitus “in the presence of measurable hearing loss if the
tinnitus impacts the ability to perform activities of daily living.”10 The Office accepted binaural
tinnitus as related to appellant’s industrial noise-induced hearing loss. The audiologist who
performed the audiometric testing noted that appellant’s bilateral tinnitus was a high-pitched
persistent ringing sound which was very bothersome. The Office medical adviser noted that,
under the A.M.A., Guides, appellant was entitled to a schedule award for five percent
impairment in the presence of a ratable hearing loss if tinnitus affected his ability to perform
activities of daily living. In its September 12, 2008 decision, the Office did not address the issue
of appellant’s claim for impairment due to his accepted tinnitus. On remand, the Office should
refer appellant to an otolaryngologist for an examination and determination as to whether his
tinnitus affects his ability to perform the activities of daily living. If the examining physician so
determines, an Office medical adviser should provide a rationalized explanation as to whether
appellant is entitled to the maximum five percent impairment for tinnitus or a lesser percentage.
After such further development as the Office deems necessary, it should issue an appropriate
decision on appellant’s claim for a schedule award due to his accepted binaural tinnitus.
CONCLUSION
The Board finds that appellant has no more than four percent impairment for hearing loss
in his left ear and has no ratable hearing loss in his right ear. The Board further finds that further
development is needed on the issue of whether appellant is entitled to a schedule award for his
accepted binaural tinnitus.

10

A.M.A., Guides 246; Leslie M. Mahin, 55 ECAB 311 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2008 is affirmed as to appellant’s impairment due
to hearing loss in his ears and remanded for further development on the issue of appellant’s
tinnitus.
Issued: July 7, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NATIONAL CEMETERY ADMINISTRATION,
LONG ISLAND NATIONAL CEMETERY,
Farmingdale, NY, Employer
__________________________________________

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

Docket No. 21-0641
Issued: August 25, 2021

Case Submitted on the Record

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

JURISDICTION
On March 17, 2021 appellant filed a timely appeal from a December 23, 2020 merit
decision and a March 15, 2021 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a medical
condition causally related to the accepted September 15, 2020 employment incident; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim, pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 22, 2020 appellant, then a 49-year-old cemetery caretaker, filed a traumatic
injury claim (Form CA-1) alleging that on September 15, 2020 he injured his right hip when
excavating a gravesite while in the performance of duty. He did not immediately stop work.
Appellant was treated in the emergency room by Dr. Candie Richardson, a Board-certified
emergency room physician, on September 23, 2020 for right hip pain. She recounted that, while
digging a grave, he accidentally rammed his leg against a piece of machinery. Findings on
examination revealed arthralgias, myalgias, shooting pain down the right leg, and tenderness to
touch of the right hip and gluteal region. Dr. Richardson noted that an x-ray of appellant’s right
hip of even date was unremarkable. She diagnosed right hip pain. In a work excuse note dated
September 23, 2020, Dr. Richardson returned appellant to work on September 25, 2020.
In a September 23, 2020 authorization for examination and/or treatment (Form CA-16),
the employing establishment authorized appellant to seek medical care. In Part B of the Form CA16, attending physician’s report, of even date, Dr. Richardson reported that, while he was digging
a grave, a machine jammed into his right hip. She diagnosed right hip pain. Dr. Richardson opined
that the diagnosed conditions were caused or aggravated by the described employment activity and
that appellant could return to light-duty work with limited standing and no climbing.
In a November 3, 2020 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence necessary to establish a
claim and attached a questionnaire for his completion. OWCP afforded appellant 30 days to submit
the requested evidence.
Appellant continued to submit medical evidence. On October 14, 2014 he was treated by
Dr. David Wiles, a Board-certified neurosurgeon, for an acute onset of right L4 distribution pain
and numbness radiating into the right lower extremity. He reported that appellant’s symptoms
began on September 15, 2020 while he was at work digging a grave. Appellant’s history was
significant for a C6-7 cervical fusion. Findings on physical examination revealed mild painful
range of motion of the lumbar spine, decreased sensory testing at C5, C6, C7, and L4. Dr. Wiles
noted an October 14, 2020 magnetic resonance imaging (MRI) scan of the cervical spine revealed
an anterior cervical discectomy and fusion (ACDF) with a plate at C6-7, residual disc bulge,
foraminal stenosis at C6-7, and bilateral foraminal stenosis at C5-6. He diagnosed acute onset of
right L4 distribution pain and numbness, absent right L4 knee reflex, and radiculopathy. Dr. Wiles
noted work restrictions of no lifting over 10 pounds, no repetitive bending or twisting, and no
standing or walking for more than 1 hour without a 10-minute break.
An x-ray of the lower spine, dated October 16, 2020, revealed grade-two spondylolisthesis
at L4-5 and severe loss of disc height at L5-S1.
By decision dated December 23, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence submitted was insufficient to establish causal relationship
between his diagnosed condition and the accepted September 15, 2020 employment incident.

2

On January 29, 2021 appellant requested reconsideration. In support of his request, he
submitted an October 14, 2020 report from Dr. Wiles, previously of record.
By decision dated March 15, 2021, OWCP denied appellant’s request for reconsideration
of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 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.5
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.6 Fact
of injury consists of two components that must be considered in conjunction with one another.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place, and in the manner alleged.7 Second, the employee
must submit sufficient evidence to establish that the employment incident caused a personal
injury.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background. Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

2

Id.

3
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).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

8

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

9

L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

3

rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment incident.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted September 15, 2020 employment incident.
Appellant was treated in the emergency room by Dr. Richardson on September 23, 2020
for right hip pain. She recounted that, while digging a grave, he accidentally rammed his leg
against a piece of machinery. Dr. Richardson diagnosed right hip pain. The Board has consistently
held that a diagnosis of “pain” does not constitute the basis for payment of compensation, as pain
is a symptom, not a specific diagnosis.11
In a May 21, 2018 Form CA-20 report, Dr. Richardson affirmed that appellant’s right hip
pain was causally related to the accepted September 15, 2020 employment incident. Similarly, in
a work excuse note dated September 23, 2020, she returned him to work on September 25, 2020.
Further, on October 14, 2020 Dr. Wiles noted work restrictions of no lifting over 10 pounds, no
repetitive bending or twisting, and no standing or walking for more than 1 hour without a
10-minute break. Neither Dr. Richardson nor Dr. Wiles provided an opinion as to whether a
diagnosed condition was causally related to the accepted employment incident. The Board has
held that medical evidence that does not include an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.12 These notes are, therefore,
insufficient to establish appellant’s claim.
In an October 14, 2020 report, Dr. Wiles treated appellant for an acute onset of right L4
distribution pain and numbness radiating into the right lower extremity. Appellant reported that
his symptoms began on September 15, 2020 while he was at work digging a grave. Dr. Wiles
diagnosed acute onset of right L4 distribution pain and numbness, absent right L4 knee reflex, and
radiculopathy. He, however, did not explain how appellant digging a grave caused his diagnosed
right L4 distribution pain and radiculopathy. To be of probative medical value, a medical opinion
must explain how physiologically the movements involved in the employment incident caused or
contributed to the diagnosed conditions.13 As such, Dr. Wiles’ report is insufficient to establish
appellant’s claim. Additionally, as noted above, pain is a symptom and not a compensable medical
diagnosis.14

10

B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

11

J.P., Docket No. 19-0303 (issued August 13, 2019).

12

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

13

A.W., Docket No. 19-0327 (issued July 19, 2019).

14
G.L., Docket No. 18-1057 (issued April 14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

4

Appellant submitted multiple diagnostic testing reports. The Board has held that diagnostic
studies, standing alone, are of limited probative value as they do not address whether the
employment incident caused any of the diagnosed conditions.15
As appellant has not submitted rationalized medical evidence sufficient to establish that his
diagnosed medical condition was caused or aggravated by the accepted September 15, 2020
employment incident, the Board finds that he has not met his burden of proof.16
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.17 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.18 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.19
A timely request for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.20 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits.21

15

J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

16

See T.J., Docket No. 19-1339 (issued March 4, 2020); F.D., Docket No. 19-0932 (issued October 3, 2019); D.N.,
Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued December 31, 2018).
17

5 U.S.C. § 8128(a).

18

20 C.F.R. § 10.607.

19

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
20

Id. at § 10.606(b)(3); see B.R., Docket No. 19-0372 (issued February 20, 2020).

21

Id. at § 10.608.

5

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
On reconsideration appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, or advance a new and relevant legal argument not previously considered.
Consequently, he is not entitled to a review of the merits of his claim under the first and second
above-noted requirements under 20 C.F.R. § 10.606(b)(3).22
In support of his request for reconsideration, appellant resubmitted the October 14, 2020
report of Dr. Wiles. As this report repeats evidence already of record, it is cumulative and does
not constitute relevant and pertinent new evidence. Therefore, it is insufficient to require OWCP
to reopen the claim for consideration of the merits.23 Because appellant did not provide relevant
and pertinent new evidence not previously considered by OWCP, he was not entitled to a review
of the merits based on the third requirement under 20 C.F.R. § 10.606(b)(3).24
The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted September 15, 2020 employment incident. The Board
further finds that OWCP properly denied his request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).25

22

M.O., Docket No. 19-1677 (issued February 25, 2020); E.W., Docket No. 19-1393 (issued January 29, 2020);
C.B., Docket No. 18-1108 (issued January 22, 2019).
23

S.F., Docket No. 18-0516 (issued February 21, 2020); James W. Scott, 55 ECAB 606, 608 n.4 (2004); Eugene F.
Butler, 36 ECAB 393, 398 (1984).
24

See 20 C.F.R. § 10.606(b)(3)(iii).

25

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No.
17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the December 23, 2020 and March 15, 2021
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 25, 2021
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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Appearances:
Alexander Liu, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0189
Issued: September 2, 2016

Case Submitted on the Record

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

JURISDICTION
On November 10, 2015 appellant, through his representative, filed a timely appeal of an
October 14, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly rescinded its acceptance of appellant’s claim for
right bunion, sprain of right foot and metatarsophalangeal, and right hammer toe.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 28, 2015 appellant, then a 25-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed right hyperkeratotic lesion and
metatarsophalangeal joint pain as a result of prolonged walking on his mail route. He became
aware of his condition and realized that it was causally related to his employment on
August 5, 2014. Appellant stopped work on March 30, 2015.
Appellant submitted an undated statement and noted that on August 5, 2014 he
experienced severe pain on the bottom of his feet. He was treated by Dr. Robert Kadish, a
podiatrist, for the removal of corns and calluses caused by excessive walking and standing.
Appellant indicated that he requested a different mail route with less walking and asserted that
excessive walking on his current route caused the foot calluses. In an April 6, 2015 operative
report, Dr. Kadish performed a right fifth metatarsal head resection and diagnosed right tailor
bunion. In a certificate of health care provider, he noted appellant’s condition had commenced
on August 5, 2014. Dr. Kadish noted that appellant was unable to perform any of his job
functions as a mail carrier at this time, which included walking and standing for prolonged
periods of time. He diagnosed parakeratosis, keratoderma, and hammertoe. In a report dated
April 21, 2015, Dr. Kadish treated appellant for corns and a fifth metatarsal head resection on the
right foot. He noted findings of intact reflexes, intact sensation in the bilateral lower extremities,
contracture in the left second, third, fourth and fifth toes and the right second, third and fourth
toe, without prominence on the lateral and plantar aspect of the fifth metatarsal phalangeal joint
on the right foot. Dr. Kadish diagnosed bunion, hammer toe, keratoderma, and parakeratosis.
On July 10, 2015 OWCP accepted appellant’s claim for right bunion, sprain of the right
foot metatarsophalangeal, and right hammer toe.
Appellant submitted a June 9, 2015 duty status report from Dr. Kadish who noted that
appellant could return to work part time with restrictions on May 20, 2015. In a work capacity
form dated July 21, 2015, Dr. Kadish noted that appellant was not capable of performing his
usual job without restrictions. He noted that appellant was unable to work for longer than two
hours, walking was limited to two hours, and unlimited driving was allowed. Dr. Kadish noted
that the restrictions would apply for one year. He advised that maximum medical improvement
had not been reached.
Appellant submitted a claim for compensation (Form CA-7) for total disability for the
period beginning August 14, 2014.
By letter dated August 18, 2015, OWCP asked appellant to submit additional information
including a comprehensive medical report from his treating physician to support that the period
of disability claimed was causally related to the accepted conditions of his claim.
On August 20, 2015 OWCP proposed to rescind the acceptance of appellant’s claim for a
right bunion, sprain of the right foot metatarsophalangeal, and right hammer toe as it had
accepted the claim before it had properly developed whether causal relationship was established.

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Appellant submitted a prescription note from Dr. Kadish dated August 20, 2015, who
noted that appellant could work in a sedentary position. In a report dated August 20, 2015,
Dr. Kadish treated appellant for pain on the outside of his foot, which commenced in the prior
week. He advised that appellant did not relate any trauma other than normal work activity.
Dr. Kadish noted findings of normal deep tendon reflexes bilaterally, intact sensation, and no
focal motor or sensory deficits in the bilateral lower extremities. He noted that x-rays revealed a
fracture located at the right fourth metatarsal on the medial base which was transverse and
incomplete with no articular involvement. Dr. Kadish diagnosed stress fracture of the
metatarsals and prescribed a pneumatic cam walker to aid in ambulation and light-duty work.
By letter dated August 25, 2015, OWCP advised appellant of the type of factual and
medical evidence needed to establish his claim and requested that he submit such evidence,
particularly requesting that he submit a physician’s reasoned opinion addressing the relationship
of his claimed condition and specific employment factors.
Appellant submitted an August 25, 2015 work capacity evaluation from Dr. Kadish, who
diagnosed bunions, sprain of right foot, metatarsophalangeal of the right root, and hammer toes.
Dr. Kadish noted that appellant was totally disabled from his regular job due to a broken right
foot. In an August 28, 2015 report, he indicated that appellant presented on October 7, 2014
with right ankle pain. An ultrasound revealed swelling around the tendon. Dr. Kadish diagnosed
tibial tendinitis, resolved. He noted that on August 20, 2015 appellant presented with a different
pain on the outside edge of his right foot and reported that the pain began one week prior and did
not relate to any trauma other than normal work activity. Dr. Kadish reported that x-rays
revealed a fracture located on the right foot fourth metatarsal on the medial base which was
transverse and incomplete with no articular involvement. He prescribed a cam walker and lightduty work.
In a September 3, 2015 report, Dr. Kadish noted first seeing appellant on October 7, 2014
for a painful right ankle and then for painful callous on the fifth sub metatarsal of the right foot.
He noted findings on examination and diagnostic testing. Dr. Kadish related that appellant did
extensive walking and climbing at work and he opined that the callous on the fifth sub metatarsal
was caused from bone structure, pressure, and friction. He noted that when appellant “walks
well over eight hours a day and over 10 miles of extensive walking and climbing at work, his
callous can be very painful to ambulate on” and advised that “his callous may need to be
trimmed occasionally to alleviate the pain.” Dr. Kadish further noted that appellant’s tibial
tendinitis “can flare up at times from all the extensive walking and climbing [appellant] does”
but, at that time, it was resolved. He noted appellant’s course of treatment, including his
August 20, 2015 right foot pain. Dr. Kadish noted that appellant had not related any trauma
“other than normal work activity.” In a work capacity evaluation dated September 10, 2015, he
diagnosed right bunion, sprain of the foot metatarsophalangeal, and hammer toe. Dr. Kadish
noted that appellant was totally disabled. In a work capacity evaluation dated September 24,
2015, he repeated his diagnoses and noted that appellant could return to work two hours per day
with restrictions of no walking. In a prescription note dated October 8, 2015, Dr. Kadish
released appellant to work without restrictions.
In an undated statement, appellant indicated that on August 5, 2014 he felt pain in both
feet and Dr. Kadish diagnosed hammer toe, callous, and tibial tendinitis. He indicated that his

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manager would not accept medical documentation unless it was a CA-7 form. Appellant
reported filling out the wrong claim form without assistance from management. He indicated
that the employing establishment required that he walk a 10-mile route and he could not bear the
pain of walking the long mail route due to swelling and inflammation of his foot. Appellant filed
a grievance and noted management threatened termination because he did not report for work or
was not able to complete his route. He requested a shorter walking route or a riding route, but
management did not accommodate his request.
Appellant submitted a claim for compensation (Form CA-7) for total disability from
July 22 to August 21, 2015.
In an October 14, 2015 decision, OWCP rescinded its prior acceptance of appellant’s
claim for right bunion, sprain of the right foot metatarsophalangeal, and right hammer toe. It
found that the prior acceptance of his claim for right foot condition was improper because the
record did not contain a rationalized medical report relating these conditions to the August 5,
2014 alleged work condition. OWCP advised that appellant failed to submit a medical report
containing a clear opinion that his right foot conditions were due to prolonged walking at work.
LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.3 The Board
has upheld OWCP’s authority to reopen a claim at any time on its own motion under section
8128 of FECA and, where supported by the evidence, set aside or modify a prior decision and
issue a new decision.4 The Board has noted, however, that the power to annul an award is not an
arbitrary one and that an award for compensation can only be set aside in the manner provided
by the compensation statute.5
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation employing establishment and in conformity with
statutory provisions, where there is good cause for so doing, such as mistake, or fraud. It is well
established that, once OWCP accepts a claim, it has the burden of justifying the termination or
modification of compensation benefits. This holds true where OWCP later decides that it
erroneously accepted a claim. In establishing that its prior acceptance was erroneous, OWCP is
required to provide a clear explanation of the rationale for rescission.6
ANALYSIS
On July 10, 2015 OWCP accepted that appellant developed a right bunion, sprain of the
right foot metatarsophalangeal, and right hammer toe due to prolonged walking while delivering
3

5 U.S.C. § 8128.

4

John W. Graves, 52 ECAB 160, 161 (2000).

5

See 20 C.F.R. § 10.610.

6

Supra note 3; see Delphia Y. Jackson, 55 ECAB 373 (2004).

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his mail route.7
August 14, 2014.

Appellant filed a claim for disability compensation beginning on

On October 14, 2015 OWCP rescinded its July 10, 2015 decision accepting appellant’s
claim for right bunion, sprain of the right foot metatarsophalangeal, and right hammer toe. It
found that the prior acceptance of his claim for right foot conditions was improper because the
record did not contain a rationalized medical report relating these conditions to the August 5,
2014 alleged work duties. OWCP advised that appellant had failed to submit a medical report
containing a clear opinion that his right foot conditions were due to prolonged walking at work.
Section 10.126 of OWCP’s regulations provides that a decision of OWCP shall contain
findings of fact and a statement of reasons and be accompanied by information about the
claimant’s appeal rights.8 A final decision of OWCP must also include findings of fact and
provide a correct description of the basis for the decision so that the parties of interest will have a
clear understanding of the precise defect of the claim and the kind of evidence which would tend
to overcome it.9 The Board finds that OWCP failed to set forth proper findings and provide
analysis in its decision as required under section 10.126 of OWCP’s regulations. Therefore,
OWCP has failed to render a proper decision to rescind the acceptance of the claim.10
CONCLUSION
The Board finds that OWCP failed to meet its burden to rescind acceptance of appellant’s
claim for right bunion, sprain of the right foot metatarsophalangeal, and right hammer toe.

7

Appellant reporting developing a right bunion and hammer toe conditions as a result of prolonged walking
required as a letter carrier.
8

20 C.F.R. § 10.126.

9

Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).

10

See Robert A. Redmond, 40 ECAB 796 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 14, 2015 decision is reversed.
Issued: September 2, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Denver, CO, Employer
__________________________________________

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

Docket No. 08-1271
Issued: April 13, 2009

Oral Argument March 3, 2009

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 1, 2008 appellant filed a timely appeal of the December 31, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied his request for
reconsideration. The Office issued its latest merit decision on June 1, 2006, which is more than a
year prior to the filing of the current appeal. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board does not have jurisdiction over the merits of appellant’s claim. The only decision properly
before the Board is the Office’s December 31, 2007 nonmerit decision.
ISSUE
The issue is whether the Office properly denied appellant’s May 27, 2007 request for
reconsideration under 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On February 16, 2000 appellant, then a 43-year-old mail handler/equipment operator,
filed a claim for “stress/depression,” which allegedly arose on or about February 17, 1999.1 He
described the work environment as “deplorable” and he alleged that supervisors were encouraged
to “harass and badger employees.” Medical evidence that accompanied the claim revealed a
diagnosis of major depressive disorder, single episode, anxiety disorder and personality
disorder.2 The Office subsequently requested that appellant provide a more detailed account of
the employment incidents that allegedly caused or contributed to his claimed condition.
In a statement dated May 3, 2000, appellant identified several employment incidents that
occurred between December 1998 and October 1999, which purportedly contributed to his
emotional condition. On December 8, 1998 he was accused of operating his tow motor in an
unsafe manner.3 Appellant believed the proposed disciplinary action stemming from the
December 8, 1998 tow motor incident was retaliatory in nature. He also mentioned two
attendance-related disciplinary actions that occurred on January 19 and February 12, 1999, which
he said were eventually either reduced or rescinded. Another alleged incident involved a request
for leave on February 16, 1999, which had initially been approved but later denied. Appellant
also complained that the employing establishment had improperly denied a request for
reasonable workplace accommodations. Additionally, he referenced a February 3, 1999
employing establishment memorandum limiting employee access to tow motors, which
essentially reduced the number of eligible two motor operators by more than 25 percent.
Appellant stated that this single action more than doubled his job stress. It was reportedly
rescinded in March 1999. Lastly, appellant complained about the employing establishment’s
failure to take action with respect to a nonproductive coworker in the flat operation section
where he worked. He said he was the only tow motor operator and needed help, but nothing was
done to alleviate the workload and stress he was dealing with on a daily basis.
Appellant submitted copies of various grievances he had filed, including settlement
agreements and an arbitrator’s decision dated June 8, 1999. He also submitted documentation
with respect to his denied request for a reasonable workplace accommodation.
In an August 17, 2000 decision, the Office denied appellant’s emotional condition claim
because he had not established any compensable employment factors. It found that the majority
of incidents appellant described were administrative or personnel matters and therefore,
noncompensable.

1

Appellant stopped working on February 25, 1999; almost a year prior to filing the instant claim. According to
the Office, he had previously filed three stress-related claims: xxxxxx137 (reported date of injury-DOI 4/23/91);
xxxxxx401 and xxxxxx450 (DOI August 7, 1998). It further indicated that one of appellant’s claims was accepted
for temporary aggravation of anxiety and personality disorders and he had received compensation for a closed
period ending January 3, 1992 (xxxxxx137).
2

Appellant was under the care of Mark W. Gidney, a licensed psychologist.

3

Appellant was reportedly driving in the wrong direction down a one-way aisle.

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Appellant requested reconsideration on March 16, 2006. He submitted additional
documentation regarding his previously denied reasonable accommodation request. Appellant
also submitted a May 12, 1998 grievance settlement as well as additional medical records. The
Office reviewed the merits of the claim and denied modification by decision dated June 1, 2006.
On May 27, 2007 appellant filed another request for reconsideration. This latest request
was accompanied by 34 pages of documents, many of which had previously been submitted.
The newly submitted evidence included medical reports from Dr. Gidney dated October 2, 1997,
April 9 and August 2, 1999.
Appellant also submitted a May 13, 1999 report from
Dr. Charles E. Wilson, the employing establishment’s associate area medical director.4 The
Office also received a November 10, 1997 grievance settlement regarding time and attendance
issues during the period of July 5 through September 26, 1997. Additionally, appellant
submitted general information regarding the process for requesting a reasonable accommodation
and a position description for custodial laborer.
In a decision dated December 31, 2007, the Office denied reconsideration. It found that
the evidence submitted was either duplicative or irrelevant. Appellant also failed to show that
the Office erroneously applied or interpreted a specific point of law and he did not advance a
relevant legal argument not previously considered by the Office.
LEGAL PRECEDENT
The Office has the discretion to reopen a case for review on the merits.5 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.6
When an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.7
ANALYSIS
Appellant’s May 27, 2007 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Appellant
4

Dr. Wilson’s report did not pertain to appellant, but to another employing establishment employee,
Jim M. Wisch. Appellant claimed to have initially submitted this report with his March 16, 2006 request for
reconsideration. However, the Office noted in its June 1, 2006 decision that Dr. Wilson’s May 13, 1999 report was
not in appellant’s file.
5

5 U.S.C. § 8128(a) (2006).

6

20 C.F.R. § 10.606(b)(2) (2008).

7

Id. at § 10.608(b).

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merely submitted the appeal request form that accompanied the Office’s June 1, 2006 decision.
He placed an “x” on the appropriate line for requesting reconsideration, but he did not otherwise
elaborate on the grounds upon which he was seeking reconsideration. Therefore, appellant is not
entitled to a review of the merits of his claim based on the first and second above noted
requirements under section 10.606(b)(2).8
Appellant also failed to satisfy the third requirement under section 10.606(b)(2). He did
not submit any relevant and pertinent new evidence with his May 27, 2007 request for
reconsideration. At oral argument, appellant questioned why the Office had not considered
several medical reports authored by his psychologist, Dr. Gidney. In both the August 17, 2000
and June 1, 2006 merit decisions, it found that appellant had not established a compensable
employment factor as the cause of his claimed emotional condition. Given the disposition of the
claim, it was not obligated to address the medical evidence of record.9 The issue on
reconsideration was not whether the medical evidence demonstrated an employment-related
psychiatric disorder, but whether appellant established a compensable employment factor. This
is a factual and legal analysis of alleged employment incidents and not a medical issue.
Accordingly, the Office properly found that the newly submitted medical reports from
Dr. Gidney were not relevant to the issue on reconsideration.
Dr. Wilson’s May 13, 1999 report regarding Jim Wisch’s physical and psychiatric
condition is similarly irrelevant. He merely reported the findings from an April 1999 fitness-forduty examination. In Dr. Wilson’s March 16, 2006 request for reconsideration appellant
indicated that the employing establishment had granted Mr. Wisch a reasonable accommodation
for his nonwork-related mental condition. To the extent appellant is arguing he was the victim of
disparate treatment, Dr. Wilson’s May 13, 1999 letter does not support that position. The
document does not address what, if any, accommodation Mr. Wisch received. On its face, this
document is simply some other individual’s personal medical information.
The November 10, 1997 grievance settlement is also irrelevant to the issue on
reconsideration. This particular grievance pertained to time and attendance issues that arose
during the period July 5 through September 26, 1997. These incidents occurred outside the
timeframe during which appellant’s claimed emotional condition allegedly arose. In his May 3,
2000 statement, he indicated that the employment incidents that contributed to his condition
occurred between December 1998 and October 1999. The earliest reported employment incident
was the December 8, 1998 tow motor mishap. As such, the November 10, 1997 grievance
settlement is not relevant to the current claim.

8

Id. at § 10.606(b)(2)(i) and (ii).

9

To establish that he sustained an emotional condition causally related to factors of his federal employment,
appellant must submit: (1) factual evidence identifying and supporting employment factors or incidents alleged to have
caused or contributed to his condition; (2) rationalized medical evidence establishing that he has an emotional condition
or psychiatric disorder; and (3) rationalized medical opinion evidence establishing that his emotional condition is
causally related to the identified compensable employment factors. See Kathleen D. Walker, 42 ECAB 603 (1991).
Unless a claimant establishes a compensable factor of employment, it is unnecessary to address the medical
evidence of record. Garry M. Carlo, 47 ECAB 299, 305 (1996).

4

Appellant also submitted a job analysis for the position of custodial laborer as well as
general information regarding reasonable accommodation requests. It is not readily apparent
from these documents how he is aided in establishing a compensable employment factor. The
Office found that this information is irrelevant and the Board agrees. The remaining documents
appellant submitted on reconsideration were already part of the record. This includes
documentation regarding numerous grievances and the denial of his request for a reasonable
accommodation. Submitting additional evidence that repeats or duplicates information already
in the record does not constitute a basis for reopening a claim.10 The evidence that accompanied
appellant’s May 27, 2007 request for reconsideration was either duplicative or irrelevant.
Consequently, appellant is not entitled to a review of the merits of his claim based on the third
requirement under section 10.606(b)(2).11
CONCLUSION
The Office properly denied appellant’s May 27, 2007 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the December 31, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 13, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

10

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

11

20 C.F.R. § 10.606(b)(2)(iii).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
_________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 22-0115
Issued: March 22, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On November 1, 2021 appellant through counsel, filed a timely appeal from an
October 4, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 22-0115.
In a letter dated February 18, 2022, counsel requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that counsel ’s request f or the
dismissal of the appeal should be granted. Accordingly,

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In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
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 b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT the request for the dismissal of the appeal is
granted. The appeal docketed as No. 22-0115 is dismissed.
Issued: March 22, 2022
Washington, DC

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

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

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

2