United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Lubbock, TX, Employer
__________________________________________

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

Docket No. 13-1822
Issued: November 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 31, 2013 appellant filed a timely appeal from a July 24, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) denying her claim for compensation.
Pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established entitlement for wage-loss compensation on
June 9, 2013,the day prior to attending a medical appointment.
FACTUAL HISTORY
OWCP accepted that on June 9, 2011 appellant, then a 40-year-old transportation security
officer, sustained a thoracic or lumbosacral neuritis or radiculitis in the performance of duty.
1

5 U.S.C. § 8101 et seq.

She received wage-loss compensation for total disability effective July 24, 2011 for which she
was placed on periodic rolls.2Appellant stopped work on June 10, 2011 and returned to limitedduty work on October 18, 2012.
By letter dated March 26, 2013, appellant requested that her treating physician be
changed because her current physician no longer accepted workers’ compensation cases. By
letter dated April 10, 2013, OWCP authorized Dr. Mary Burgesser, Board-certified in physical
medicine and rehabilitation, as appellant’s treating physician. Appellant first sought treatment
with Dr. Burgesser on May 7, 2013. Dr. Burgesser prescribed a BuTrans pain patch to be worn
on appellant’s skin weekly and Celebrex to aid with her status post lumbar fusion. In a May 27,
2013 follow-up report, she noted that the patch and Celebrex made appellant sick and prescribed
her a Revlon cream as a treatment alternative.
Appellant did not seek follow-up treatment with Dr. Burgesser and began treatment on
June 10, 2013 with Dr. Jacob Rosenstein, a Board-certified neurological surgeon, whose practice
was located in Arlington, Texas.
In a June 18, 2013 OWCP telephone memorandum, the claims examiner noted that
appellant stated that Dr. Rosenstein’s office was located over 400 miles from her home and
appellantrequested overnight stays for her medical visits. Appellant also stated that the pain
patch Dr. Burgesser prescribed resulted in side effects. As a result, she sought treatment with
Dr. Rosenstein. The claims examiner informed appellant that she should find a treating
physician closer to her local commuting area. Appellant stated that no one took workers’
compensation cases. The claims examiner informed appellant that mileage would be reimbursed
for her travel but that she needed to find a closer treating physician.
On June 19, 2013 appellant filed a claim for compensation (Form CA-7) for leave
without pay for the period June 2 to 15, 2013. In a June 20, 2013 time analysis form (CA7a),she requested eight hours for travel for a physician’s visit on June 9, 2013 and eight hours for
a physician’s visit on June 10, 2013.
By letter dated July 24, 2013, OWCP advised appellant that it had received her CA-7
form. It informed her that it could not authorize her to miss her regular work shift on June 9,
2013 to attend the June 10, 2013physician’s appointment. Appellant would be authorized for
round-trip mileage reimbursement.3

2

The Board notes that appellant had a prior appeal before the Board regarding an overpayment issue. By
decision dated January 2, 2013, the Board affirmed a July 2, 2012 OWCP merit decision, which found that appellant
received a $1,924.56 overpayment of compensation for the period July 24 to September 24, 2011 and that OWCP
did not abuse its discretion by refusing to waive recovery of the overpayment. Docket No. 12-1486 (issued
January 2, 2013). The findings of fact and conclusions of law from the prior decision and order are hereby
incorporated by reference.
3

The Board notes that,although OWCP’s July 24, 2013 letter was not accompanied by appeal rights, it effectively
denied appellant’s request for wage-loss compensation on July 9, 2013. The Board considers the claims examiner’s
July 24, 2013 action a final, adverse decision subject to review under 20 C.F.R.§§501.2(c) and 501.3(a).

2

By letter dated July 31, 2013, appellant stated that she was informed by OWCP that it
was her responsibility to find a physician to treat her. She stated that she lived in Amarillo,
Texas and found a treating physician in Arlington, Texas. Appellant explained that it was a
six-hour drive to see her physician which took her seven hours because she needed to stop and
rest several times as a result of her back pain. She stated that she was appealing the July 24,
2013 OWCP decision, which did not allow her to miss her regular work shift the day before her
appointment. Appellant stated that her regular work hours were 12:00 p.m. to 9:00 p.m., after
which she would have to drive a seven-hour trip to arrive to her physician’s appointment at
10:30 a.m. the following day and then attend another physician’s appointment at 3:00 p.m.
before driving back home another seven hours. She argued that she should be allowed to travel
the day before and receive compensation for wage loss, attend her physician’s appointment the
following day and travel home after she finished with her appointments.
LEGAL PRECEDENT
For each period of disability claimed, the employee has the burden of proving that he or
she was disabled for work as a result of the accepted employment injury.4 As used in FECA, the
term disability means incapacity, because of an employment injury, to earn the wages that the
employee was receiving at the time of injury. Disability is thus, not synonymous with physical
impairment, which may or may not result in an incapacity to earn wages.5 Whether a particular
injury caused an employee disability from employment is a medical issue, which must be
resolved by competent medical evidence.6
With respect to claimed disability for medical treatment, section 8103 of FECA provides
for medical expenses, along with transportation and other expenses incidental to securing
medical care, for injuries.7 Appellant would be entitled to compensation for any time missed
from work due to medical treatment for an employment-related condition.8 However, OWCP’s
obligation to pay for medical expenses and expenses incidental to obtaining medical care, such
as loss of wages, extends only to expenses incurred for treatment of the effects of any
employment-related condition. Appellant has the burden of proof, which includes the necessity
to submit supporting rationalized medical evidence.9
OWCP’s procedure manual provides that wages lost for compensable medical
examination or treatment may be reimbursed.10 It notes that a claimant who has returned to work
4

See Fereidoon Kharabi, 52 ECAB 291 (2001).

5

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

6

See Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

7

5 U.S.C. § 8103(a).

8

Vincent E. Washington, 40 ECAB 1242 (1989).

9

Dorothy J. Bell, 47 ECAB 624 (1996); Zane H. Cassell, 32 ECAB 1537 (1981).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16
(December 1995).

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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.11 As a rule, no more
than four hours of compensation or continuation of pay should be allowed for routine medical
appointments. 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.12
Medical expenses, along with transportation and other expenses incidental to securing
medical care, are covered by section 8103 of FECA.13 This section provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the
Secretary of Labor considers likely to cure, give relief, reduce the degree of the period of any
disability or aid in lessening the amount of any monthly compensation. The employee may
initially select a physician to provide medical services, appliances and supplies, in accordance
with such regulations and instructions as the Secretary considers necessary and may be furnished
necessary and reasonable transportation and expenses incident to the securing of such services,
appliances and supplies. In interpreting this section, the Board has recognized that OWCP has
broad discretion in approving services provided under FECA. The only limitation on OWCP’s
authority is that of reasonableness.14
OWCP regulations provide that the employee is entitled to reimbursement of reasonable
and necessary expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what is a reasonable distance to travel, OWCP will consider
the availability of services, the employee’s condition and the means of transportation. Generally,
25 miles from the place of injury, the worksite or the employee’s home, is considered a
reasonable distance to travel.15
ANALYSIS
OWCP accepted appellant’s claim for thoracic or lumbosacral neuritis or radiculitis.
Appellant filed a claim for wage-loss compensation for eight hours of leave without pay on
June 9, 2013 to travel to a medical appointment and eight hours for time spent at the medical
appointment on June 10, 2013.
OWCP found that shewas not entitled to wage-loss
compensation on June 9, 2013, noting that she was not authorized to miss eight hours of her
regular work shift to travel to a physician’s appointment. It found that appellantwas entitled to
reimbursement for mileage for round-trip travel.
11

See also Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).
13

Supra note 7.

14

Lecil E. Stevens, 49 ECAB 673, 675 (1998); see Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad
discretionary authority in the administration of FECA and must exercise that discretion to achieve the objectives of
section 8103).
15

20 C.F.R. § 10.315 (1999).

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On March 26, 2013 appellant requested that her treating physician be changed to
Dr. Burgesser. She sought treatment with Dr. Burgesser on May 7 and 27, 2013 and failed to
follow up stating that the pain patchand medication that Dr. Burgesser prescribed caused
sideeffects. Appellant then sought treatment with Dr. Rosenstein on June 10, 2013. She stated
that his practice was located over 400 miles from her home in Arlington, Texas.
By decision dated July 24, 2013, OWCP denied eight hours of wage-loss compensation
for travel the day before the medical appointment on June 9, 2013. The Board notes that
appellant is entitled to reimbursement for reasonable and necessary travel expenses as provided
under 20 C.F.R. § 10.315. The regulations provide, however, that a reasonable distance to travel
is generally 25 miles from the place of injury, the worksite or the employee’s home. In
determining what constitutes a reasonable travel distance, OWCP must consider the availability
of medical services in appellant’s area, her condition and the means of transportation.16
OWCP has broad discretion in considering whether to reimburse or authorize travel
expenses. As the only limitation on OWCP’s authority is reasonableness, abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment or
actions taken which are contrary to both logic and probable deduction from known facts.17 There
was no evidence establishing that this travel was reasonable and necessary in order to obtain
medical treatment where there was no indication that competent and appropriate medical care
was not available within the commuting area of Amarillo, Texas.18 OWCP considered
appellant’s accepted conditions and the availability of medical services in Amarillo, Texas.The
Board finds that OWCP gave due regard to the relevant factors and is not required to provide
wage-loss compensation due to travel between her home in Amarillo, Texas and
Dr. Rubenstein’s office in Arlington, Texas.19 The expenses must be considered personal to
appellant and OWCP’s denial of her request for wage-loss compensation on June 9, 2013 was
reasonable.
Moreover, the medical reports provided by Dr. Burgesser and Dr. Rubenstein do not
indicate thatappellant was medically required to drive to her appointments the day before as a
result of her accepted disability.20 As the record did not establish that appellant was unable to
obtain competent and appropriate medical care within her commuting area, OWCP properly
denied her wage-loss compensation on June 9, 2012.21

16

W.M., 59 ECAB 132 (2007).

17

See William B. Webb, 56 ECAB 156 (2004); Lecil E. Stevens, 49 ECAB 673 (1998).

18

See David Spearman, 49 ECAB 445 (1998).

19

J.J.,Docket No. 10-1908 (issued June 16, 2011).

20

D.W., Docket No. 10-1967 (issued June 22, 2011).

21

The Board notes that appellant may submit a request to OWCP to change her treating physician to a qualified
physician who is closer to her home commuting area in Amarillo, Texas. 20 C.F.R. § 10.315.

5

Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she is
entitled to compensation for time missed from work due to travel for medical treatment on
June 9, 2013.
ORDER
IT IS HEREBY ORDERED THATthe July 24, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 26, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, San Francisco, CA, Employer
__________________________________________

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 13-92
Issued: April 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 18, 2012 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) August 9, 2012 nonmerit decision denying his request for
reconsideration. Because more than one year elapsed from the last OWCP merit decision of
April 11, 2008 to the filing of this appeal, the Board lacks jurisdiction to review the merits of the
claim 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 determined that appellant’s request for
reconsideration was untimely filed and failed to show clear evidence of error.
1
2

5 U.S.C. §§ 8101-8193.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On February 15, 2008 appellant, then a 55-year-old special agent, filed an occupational
disease claim for aggravation of injuries previously sustained on September 27, 2007. He stated
that on January 31, 2008 he injured his back and left elbow during nondeadly force training,
which included heavy pushing, punching, kicking and swinging. OWCP converted the claim to
a traumatic injury rather than an occupational disease as the injury described occurred during the
course of one work shift.
By decision dated April 11, 2008, OWCP denied the claim on the basis that it was not
established that the claimed medical condition was related to the established work-related events.
In a May 7, 2012 letter, appellant, through his representative, requested reconsideration.
In support of the reconsideration request, an April 18, 2008 report from Dr. Fred Blackwell, a
Board-certified orthopedic surgeon, was resubmitted.
The representative noted that
Dr. Blackwell’s report was submitted after the April 11, 2008 decision. In his report,
Dr. Blackwell stated the history of injury and that appellant was working full-time modified duty
with restrictions when the injury occurred. He provided examination findings and an impression
of chronic musculoligamentous strain and sprain of the cervicothoracic spine with acute
aggravation and chronic contusion and sprain left elbow with acute aggravation. Dr. Blackwell
noted that, while appellant was more symptomatic than previously, he stated it did not appear
that appellant had a new and greater injury, but more of an exacerbation of the injuries sustained
on September 27, 2007 and therefore he did not report it as a new injury. He opined that there
was no permanent impairment as a result of the January 31, 2008 injury over and above that
which would be characterized for the September 27, 2007 injury.
By decision dated August 9, 2012, OWCP denied reconsideration on the grounds that
appellant’s request was untimely filed and did not present clear evidence of error. It found that
the submitted report as well as the reconsideration request failed to provide any explanation as to
how OWCP’s decision was improperly decided.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.3
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.4
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.5 OWCP regulations and procedure provide that it will reopen a claimant’s
3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

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

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case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R.
§ 10.607(a), if the claimant’s application for review shows clear evidence of error on the part of
OWCP.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.7 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.11
ANALYSIS
In its August 9, 2012 decision, OWCP properly determined that appellant failed to file a
timely application for review. It issued its most recent merit decision on April 11, 2008.
Appellant’s request for reconsideration was dated May 7, 2012, more than one year after
April 11, 2008. Accordingly, his request for reconsideration was not timely filed. Appellant
must therefore demonstrate clear evidence of error on the part of OWCP in issuing its April 11,
2008 decision.
The Board finds that the evidence submitted by appellant in support of his application for
review does not raise a substantial question as to the correctness of OWCP’s decision and is
insufficient to demonstrate clear evidence of error. The underlying issue in this case is whether
OWCP properly denied appellant’s claim for an injury in the performance of duty on the grounds
that the medical evidence was insufficient to establish that any diagnosed condition was caused
or contributed to by the accepted employment incident of January 31, 2008.
With his May 7, 2012 request for reconsideration, appellant’s representative submitted
Dr. Blackwell’s April 18, 2008 report. Dr. Blackwell noted appellant’s history of injury and
provided impressions of several conditions. He stated that appellant was more symptomatic than
he had been and opined that the January 31, 2008 incident was more of an exacerbation of his
September 27, 2007 conditions. The Board finds that, while this medical report provides some
6

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004). OWCP procedure further provides the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made an error (for
example, proof that a schedule award was miscalculated).
7

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

8

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

9

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

10

See Leona N. Travis, supra note 8.

11

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

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support for causal relationship, it is insufficient to establish clear evidence of error as it does not
show that OWCP’s denial of the claim was erroneous or raise a substantial question as to the
correctness of OWCP’s determination that appellant did not establish an injury in the
performance of duty. The Board has held that the term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that
OWCP made an error (for example, proof of a miscalculation in a schedule award). Evidence
such as a detailed, well-rationalized report, which if submitted prior to OWCP’s denial, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error and would not require a review of a case.12
The Board finds that this evidence is insufficient to shift the weight of the evidence in
favor of appellant’s claim or raise a substantial question that OWCP erred in denying appellant’s
claim for an injury in the performance of duty. Therefore, the Board finds that appellant has not
presented clear evidence of error.
On appeal, appellant’s representative references two Board decisions but provides no
explanation of the relevance of either case. Of the first case cited, C.P., Docket No. 08-2523
(issued July 13, 2009), the Board notes no such case exists. To the extent appellant is referring
to C.P., Docket No. 08-2535 (issued July 13, 2009), the Board notes that such case is not
germane to the appeal presently before the Board as it pertains to the standard of review to be
used when a reconsideration request is timely, which is a different standard of review than that
used for an untimely reconsideration request. Similarly, the second case cited, Billy B. Scoles, 57
ECAB 258 (2005), also pertains to a timely request for reconsideration. To reopen a claim for a
merit review where a reconsideration request is made within one year of the most recent merit
decision, the claimant must meet one of the three requirements of 20 C.F.R. § 10.606(b). As
explained, where the reconsideration request is untimely, the claimant must demonstrate clear
evidence of error on the part of OWCP in its most recent merit decision.13 The Board notes that,
while Dr. Blackwell’s April 18, 2008 report was submitted after the claim was denied, appellant
did not request reconsideration until May 7, 2012. As noted, for the reasons articulated herein,
appellant has not established clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.

12

Annie L. Billingsley, 50 ECAB 210 (1998).

13

See supra notes 3, 4.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 9, 2012 is affirmed.
Issued: April 4, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 07-2427
Issued: April 16, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 25, 2007 appellant filed a timely appeal from a December 5, 2006
nonmerit decision of the Office of Workers’ Compensation Programs which denied his request
for reconsideration on the grounds that the request was not timely filed and failed to establish
clear evidence of error. The most recent merit decision is the Office’s May 23, 2005 decision.
Because more than one year has elapsed from the last merit decision and the filing of this appeal,
the Board lacks jurisdiction to review the merits of the appeal pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On June 10, 2004 appellant, then a 43-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that he injured his back due to repetitive heavy lifting on
May 12 and 13, 2004. Appellant stopped work on May 13, 2004 and sought medical treatment
on May 31, 2004. The record reflects that appellant has a preexisting degenerative joint

condition and, under claim number 092041200, has accepted lumbar and cervical strains for a
December 12, 2003 work-related injury.
In a July 2, 2004 letter, the Office requested additional factual and medical information,
including a comprehensive medical report.
In an August 6, 2004 decision, the Office denied the claim on the grounds that fact of
injury had not been established.
On September 5, 2004 appellant requested reconsideration.
By decision dated
September 24, 2004, the Office found that appellant established that the work exposure occurred,
but affirmed the denial of his claim on the basis that a causal relationship between the diagnosed
condition of cervical radiculopathy due to C5-6 disc herniation and his work factors had not been
established.
On October 21, 2004 appellant disagreed with the Office’s September 24, 2004 decision
and requested reconsideration. By decision dated November 8, 2004, the Office denied
modification of its September 24, 2004 decision. It found that the new medical evidence, which
included a medical progress note of July 27, 2004 from Dr. Ronald L. Young, II, a Boardcertified neurosurgeon, failed to provide a well-rationalized medical opinion explaining how
appellant’s May 13, 2004 work injury caused, aggravated, accelerated or precipitated his
herniated disc condition.
On May 1, 2005 appellant requested reconsideration. By decision dated May 23, 2005,
the Office denied modification of its prior decision. It found that the medical evidence from
Dr. Young lacked a discussion regarding the relationship between the diagnosed condition and
the claimed employment factors of May 13, 2004.
On September 8, 2005 appellant requested reconsideration of the Office’s May 23, 2005
decision. The Office also received an additional report from Dr. Young and physical therapy
notes from June 2004, previously of record. By decision dated October 18, 2005, the Office
denied appellant’s request for reconsideration on the grounds that the evidence was cumulative
in nature.
On May 15, 2006 appellant requested reconsideration. In a separate statement, he
indicated that someone from Dr. Young’s office would be contacting the Office.
In a May 24, 2006 letter to Dr. Young, the Office provided a history of appellant’s
December 12, 2003 work injury and the alleged injury of heavy lifting on May 13, 2004 and
requested that the physician respond to the various questions provided regarding the extent of
appellant’s disability in relation to the May 13, 2004 injury. Dr. Young was afforded 30 days
from the date of the correspondence to respond. Dr. Young, however, did not respond.
By decision dated July 24, 2006, the Office denied appellant’s request for reconsideration
finding that the evidence submitted was cumulative in nature.
In a letter dated August 23, 2006, appellant requested reconsideration of the Office’s
decision. He acknowledged that Dr. Young did not respond to the Office’s May 24, 2006
2

questions until July 18, 2006, which was past the Office’s deadline of June 24, 2006. Appellant
noted that, since Dr. Young did not meet the Office’s deadline, the Office advised him to file
another request for reconsideration.
In a July 18, 2006 report, Dr. Young stated that appellant had a sudden onset of cervical
radiculopathy on May 13, 2004 while doing repeated lifting of heavy objects at work. He noted
appellant’s preexisting degenerative disc disease, but explained that appellant did not have any
arm pain or indication of cervical radiculopathy prior to May 2004. Dr. Young explained that
symptoms of a degenerative condition may be aggravated by a specific activity which may cause
the disc herniation, which, in turn, resulted in appellant’s cervical radiculopathy. He advised that
appellant did not require treatment for his underlying degenerative disc disease. Dr. Young
opined that the evidence of appellant’s cervical spine condition being work related was the
temporal relationship between the onset of symptoms, which were attributable to the disc
herniation and caused by a repeated strain.
By decision dated December 5, 2006, the Office denied reconsideration on the grounds
that his request was untimely filed and did not present clear evidence of error.
On appeal, appellant contends that the Office reopened his case by sending the May 24,
2006 letter to Dr. Young. He therefore argued that the Office should consider the new evidence
from Dr. Young and reopen his case.
LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.1
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.2 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.3
ANALYSIS
On May 23, 2005 the Office denied modification of appellant’s claim on the grounds that
the evidence of record failed to demonstrate a causal relationship between the diagnosed
condition and the claimed employment factors of May 13, 2004. Following the May 23, 2005
decision, appellant requested reconsideration on May 15, 2006. In the May 24, 2006 letter to
Dr. Young, the Office then conducted further development of appellant’s claim by requesting
that Dr. Young respond to various questions regarding appellant’s May 13, 2004 injury. In
soliciting this information, the Office proceeded to exercise its discretionary authority under
5 U.S.C. § 8128. The Office’s May 24, 2006 letter to Dr. Young was in further development of
1

5 U.S.C. § 8128(a).

2

Alberta Dukes, 56 ECAB 247 (2005); 20 C.F.R. § 10.607.

3

Id.

3

appellant’s claim by having Dr. Young respond to various questions regarding appellant’s
claimed injury. While Dr. Young did not submit a July 18, 2006 report within the 30-day
deadline provided by the Office in its May 24, 2006 letter, as the record currently stands, the
Office has not issued a merit decision evaluating the evidence it solicited and eventually obtained
from Dr. Young. This case is analogous to David F. Garner,4 in which the Board found that,
after soliciting and receiving new evidence on reconsideration, the Office did not conduct a
proper review of the case and erred in finding that the reconsideration request was untimely.
Because the Office reopened appellant’s case by soliciting additional medical evidence, it
cannot now deny appellant’s reconsideration request using the clear evidence of error standard.
Rather, the Office should have issued an appropriate merit decision under section 8128(a) of the
Act.5
CONCLUSION
The Board finds that the Office improperly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated December 5, 2006 is set aside and the case remanded for further proceedings
consistent with this decision.
Issued: April 16, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
4

43 ECAB 459 (1992); see also Joyce A. Fasanello, 49 ECAB 490 (1998).

5

See id. at 462.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.V., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
SAN FRANCISCO REGIONAL PUBLIC
AFFAIRS OFFICE, Richmond, CA, Employer
__________________________________________

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

Docket No. 20-1138
Issued: December 15, 2020

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 May 11, 2020 appellant, through counsel, filed a timely appeal from an April 22, 20202
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act3 (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

OWCP reissued its prior April 7, 2020 decision on April 22, 2020 after being informed by appellant that the
April 7, 2020 decision was issued without appeal rights.
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left shoulder
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On November 29, 2017 appellant, then a 55-year-old claims authorizer, filed an
occupational disease claim (Form CA-2) alleging that, due to factors of her federal employment,
she developed pain in her shoulder and arm. She noted that she first became aware of her condition
and first realized its relation to her federal employment on November 10, 2017. Appellant
explained that she performed daily computer key-entry and developed soreness over time. She
indicated that she previously had work-related tendinitis in the 1990’s that required her to have
modified work duties.4 Appellant did not stop work.
In a December 7, 2017 development letter, OWCP informed appellant that it had received
no evidence in support of her occupational disease claim. It advised her of the type of factual and
medical evidence necessary to establish her claim and provided a questionnaire for her completion.
OWCP also requested a narrative medical report from appellant’s treating physician, which
contained a detailed description of findings and diagnoses, explaining how her work activities
caused, contributed to, or aggravated her medical conditions. It afforded her 30 days to respond.
OWCP subsequently received a November 10, 2017 diagnostic report, which indicated that
Dr. Eric Saldinger, a Board-certified diagnostic radiologist, had performed an x-ray scan of
appellant’s left shoulder and diagnosed calcific tendinitis.
In medical reports dated from November 17 to December 20, 2017, Dr. Cynthia Lim,
Board-certified in family medicine, evaluated appellant for left shoulder pain and swelling and
indicated that she was unable to work due to pain. Appellant informed her that she experienced
similar symptoms in the past due to another work injury and also noted that she spent her time at
work on the computer. Dr. Lim referenced her x-ray scan of the left shoulder that revealed
calcification and diagnosed acute pain of the left shoulder, neck pain, and cervical disc disease and
indicated that she suspected her symptoms were an overuse repetitive motion injury. She opined
that appellant’s injury was most likely a reaggravation of her previous work disability and reasoned
that working at a desk on the computer all day for many years can cause the symptoms appellant
was experiencing. Dr. Lim placed her on light duty and referred her to another doctor for her
workers’ compensation claim.
In response to OWCP’s development questionnaire, appellant submitted a December 26,
2017 statement in which she explained that she sat at her desk all day at work typing on the
computer and noted that, when she made a request to have her desk adjusted, it took a year for the
adjustment to occur. She performed her duties for eight hours a day for five days a week. In
relation to her comment about the development of her tendinitis in the 1990’s, appellant provided
that she had left shoulder pain, could not raise her arm, and was restricted to working four hours a

4
The Board notes that there is no indication that appellant previously filed a claim with OWCP for work-related
tendinitis.

2

day. She stated that she no longer had the records due to the amount of time that had passed since
her original injury.
Appellant submitted an unsigned December 27, 2017 diagnostic report in which she
underwent a magnetic resonance imaging (MRI) scan of her left shoulder that revealed
impingement syndrome and a possible small posterosuperior labral tear with a paralabral cyst.
In a February 12, 2018 medical report, Dr. Lim diagnosed an unspecified tear of the left
rotator cuff, biceps tendinitis of the left shoulder, rotator cuff impingement of the left shoulder and
a disorder of the intervertebral disc of the cervical spine. She provided that appellant would be off
work from November 13, 2017 to March 31, 2018.
By decision dated March 5, 2018, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that her left shoulder
conditions were causally related to the accepted work factors.
On May 4, 2018 appellant requested reconsideration of OWCP’s March 5, 2018 decision.
In a March 19, 2018 medical report, Dr. Brian Feeley, a Board-certified orthopedic
surgeon, evaluated appellant for left shoulder pain related to a September 2017 work injury.
Appellant informed him that the pain in her left shoulder made it difficult for her to perform her
work duties and also noted her previous diagnosis of tendinitis from work-related pain. On
examination Dr. Feeley provided that appellant’s symptoms were consistent with a rotator cuff
impingement. He administered an injection and stated that appellant would continue physical
therapy to treat her injury.
Appellant submitted an April 23, 2018 after visit summary in which she discussed her
employment duties with Dr. Feeley. Dr. Feeley provided that her left shoulder systems were
consistent with a rotator cuff impingement and discussed possible treatment options.
By decision dated May 17, 2018, OWCP denied modification of its March 5, 2018
decision.
On August 8, 2018 appellant requested reconsideration of OWCP’s May 17, 2018 decision.
In support thereof, appellant submitted a June 14, 2018 medical report, wherein
Dr. Arzhang Zereshki, Board-certified in physical medicine, recounted appellant’s history of
injury, including left shoulder tendinitis in 1990, minor injuries to her neck in 2011 following a
motor vehicle accident as well as the left shoulder and neck pain she began to develop in
September 2017. She informed him that her pain was work related and caused by her working at
the computer all day with repetitive reaching and some lifting. Dr. Zereshki recounted appellant’s
history of medical treatment and previous diagnostic studies of her left shoulder. On examination
he diagnosed left shoulder impingement syndrome and cervical spondylosis. Dr. Zereshki
explained that appellant’s left shoulder pain was certainly due to impingement syndrome and
opined that her condition appeared to be partially work related.
In a July 11, 2018 medical note, Dr. Feeley indicated that appellant would be undergoing
left shoulder surgery on July 17, 2018 to address shoulder pain she had experienced since
September 2017.
3

In a July 16, 2018 medical note, Dr. Lim made note of appellant’s work duties, including
typing, reaching over her head, and some lifting. She opined that these activities could lead to
shoulder injuries or aggravate an existing shoulder problem.
By decision dated September 17, 2018, OWCP denied modification of its May 17, 2018
decision.
On December 19, 2018 appellant requested reconsideration of OWCP’s September 17,
2018 decision.
In support thereof, appellant submitted a December 6, 2018 letter and December 13, 2018
medical note, wherein Dr. Feeley opined that appellant’s shoulder pain had worsened due to her
30 years of work. Dr. Feeley explained that the repetitive motion of typing for seven hours a day
and overhead activity can contribute to calcific tendinitis and rotator cuff injury. He provided a
brief overview of appellant’s medical treatment and stated that she would continue to undergo
further evaluation.
By decision dated January 24, 2019, OWCP denied modification of its September 17, 2018
decision.
In a December 20, 2019 letter, appellant, through counsel, requested reconsideration of
OWCP’s January 24, 2019 decision and submitted additional medical evidence.
In a December 6, 2019 medical report, Dr. Anthony Luke, Board-certified in sports
medicine, consulted with appellant concerning her continued left shoulder pain. Appellant wanted
to know the nature of her condition and asked him if her work activities could have worsened her
problems. Dr. Luke explained that, in general, degenerative changes can be affected by repetitive
motions and opined that motions such as overhead movements and lifting would likely cause more
pain with her conditions. He diagnosed left shoulder calcific tendinosis and arranged appellant to
undergo conservative treatment to address her symptoms.
By decision dated April 22, 2020, OWCP denied modification of its January 24, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 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

5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

4

to the employment injury.6 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.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.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 implicated employment factor(s) must be based on a
complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).11
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted factors of her federal employment.
In medical evidence dated from March 19 to December 13, 2018, Dr. Feeley noted
appellant’s previous diagnosis of tendinitis and claimed that her shoulder pain had worsened due
to her 30 years of work. He provided that appellant’s symptoms were consistent with a rotator
cuff impingement and opined that the repetitive motions of typing for seven hours a day and
6
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

10

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

11

Id.; Victor J. Woodhams, supra note 8.

12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
V.W., Docket No. 19-1537 (issued May 13, 2020); N.C., Docket No. 19-1191 (issued December 19, 2019); R.D.,
Docket No. 18-1551 (issued March 1, 2019).

5

overhead activity can contribute to calcific tendinitis and rotator cuff injury. While Dr. Feeley
provided an affirmative opinion on causal relationship, he did not offer medical rationale sufficient
to explain how and why he believes appellant’s employment duties could have resulted in or
contributed to her diagnosed condition. Without explaining how repetitive typing and overhead
activity caused or contributed to appellant’s injury, Dr. Feeley’s medical evidence is of limited
probative value.13 Further, the Board has consistently held that complete medical rationalization
is particularly necessary when there is a preexisting condition involving the same body part,14 and
has required medical rationale differentiating between the effects of the work-related injury and
the preexisting condition in such cases.15 For these reasons, Dr. Feeley’s medical evidence is
insufficient to meet appellant’s burden of proof.
In his April 23, 2018 after visit summary and July 11, 2018 medical note, Dr. Feeley
provided that appellant’s left shoulder symptoms were consistent with a rotator cuff impingement
and indicated that she would undergo left shoulder surgery on July 17, 2018. The Board has held
that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.16 For this reason, these
reports are also insufficient to meet appellant’s burden of proof.
In medical reports dated from November 17, 2017 to July 16, 2018, Dr. Lim made note of
appellant’s left shoulder symptoms, a November 10, 2017 x-ray of her left shoulder as well as her
past experience with similar symptoms due to a separate work injury. She diagnosed acute pain
of the left shoulder, neck pain and cervical disc disease and indicated that she suspected her
symptoms were an overuse repetitive motion injury. Dr. Lim opined that appellant’s injury was
most likely a reaggravation of her previous work disability and reasoned that working at a desk on
the computer all day for many years can cause the symptoms appellant was experiencing or
exacerbate a previous shoulder injury. As stated above, without explaining how working at the
computer all day for many years caused or contributed to appellant’s injury, Dr. Lim’s medical
evidence is of limited probative value.17 Further, a complete medical rationalization is particularly
necessary when there is a preexisting condition involving the same body part,18 and has required
medical rationale differentiating between the effects of the work-related injury and the preexisting
condition in such cases.19 For these reasons, Dr. Lim’s medical evidence is insufficient to meet
appellant’s burden of proof.

13

See A.P., Docket No. 19-0224 (issued July 11, 2019).

14

K.R., Docket No. 18-1388 (issued January 9, 2019).

15

See, e.g., A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued December 31,
2018); J.B., Docket No. 17-1870 (issued April 11, 2018); E.D., Docket No. 16-1854 (issued March 3, 2017); P.O.,
Docket No. 14-1675 (issued December 3, 2015).
16

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019).

17

Supra note 13.

18

Supra note 14.

19

Supra note 15.

6

Dr. Lim’s remaining medical evidence consist of a February 12, 2018 medical report where
she diagnosed an unspecified tear of the left rotator cuff, biceps tendinitis of the left shoulder,
rotator cuff impingement of the left shoulder and a disorder of the intervertebral disc of the cervical
spine. As stated previously, medical evidence that does not offer an opinion regarding the cause
of an employee’s condition is of no probative value on the issue of causal relationship.20
In Dr. Zereshki’s June 14, 2018 medical report, he recounted appellant’s history of injury,
including left shoulder tendinitis in 1990, minor injuries to her neck in 2011 following a motor
vehicle accident as well as the left shoulder and neck pain she began to develop in September 2017.
On examination he diagnosed left shoulder impingement syndrome and cervical spondylosis and
opined that her left shoulder pain was certainly due to impingement syndrome and appeared to be
partially work related. While Dr. Zereshki provided an affirmative opinion on causal relationship,
he did not offer medical rationale sufficient to explain how and why he believes appellant’s
employment duties could have resulted in or contributed to her diagnosed condition. As stated
previously, without explaining how appellant’s work activity caused or contributed to her injury,
Dr. Zereshki’s medical report is of limited probative value.21 Further, a complete medical
rationalization is particularly necessary when there is a preexisting condition involving the same
body part,22 and has required medical rationale differentiating between the effects of the workrelated injury and the preexisting condition in such cases.23 For these reasons, Dr. Zereshki’s
June 14, 2018 medical report is insufficient to meet appellant’s burden of proof.
In hisDecember 6, 2019 medical report, Dr. Luke diagnosed left shoulder calcific
tendinosis and explained that, in general, degenerative changes can be affected by repetitive
motions. He opined that motions such as overhead movements and lifting would likely cause more
pain with her conditions. As stated above, without explaining how appellant’s repetitive motions
at work caused or contributed to her diagnosed condition, Dr. Luke’s medical report is of limited
probative value.24 For this reason, Dr. Luke’s December 6, 2019 medical report is insufficient to
meet appellant’s burden of proof.
The remaining medical evidence consists of diagnostic reports dated November 10 and
December 12, 2017. The Board has held, however, that diagnostic test reports standing alone lack
probative value as they do not provide an opinion on causal relationship between employment
factors and a diagnosed condition.25 As such, this evidence is also insufficient to meet appellant’s
burden of proof.

20

Supra note 16.

21

Supra note 13.

22

Supra note 14.

23

Supra note 15.

24

Supra note 13.

25

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

7

As appellant has not submitted rationalized medical evidence establishing that her left
shoulder conditions are causally related to the accepted factors of her federal employment, the
Board finds that she has not met her burden of proof to establish her 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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 22, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 15, 2020
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 08-1251
Issued: November 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 24, 2008 appellant filed a timely appeal from a January 29, 2008 decision of
the Office of Workers’ Compensation Programs denying his occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant has established that he sustained a neck condition in the
performance of duty.
FACTUAL HISTORY
On February 13, 2007 appellant, then a 45-year-old clerk, claimed a recurrence of
disability commencing January 27, 2007 related to an accepted April 24, 2001 neck sprain
sustained when a car struck him while he was walking his delivery route.1 He also attributed his
1

OWCP File No. xxxxxx476.

neck and back pain to lifting, twisting and turning at work. Appellant noted that he first
developed neck symptoms after an accepted April 13, 1992 left orbital fracture sustained in a
work-related motor vehicle accident. He stopped work shortly after January 27, 2007. It is
unclear when appellant returned to work.
In a June 13, 2007 letter, the Office advised appellant that his claim would be adjusted as
an occupational disease claim as he attributed his condition to new work factors.2 It described
the additional evidence needed to establish his claim. The Office afforded appellant 30 days in
which to submit such evidence.
Appellant sought treatment for muscular neck and back pain from February through
December 1998.3 He also provided records regarding the April 24, 2001 neck injury. Imaging
studies performed on April 25 and 26, 2001 showed advanced, multilevel degenerative disc
disease from C5-6 with an old fracture of the C7 spinous process. Dr. Kyra Harvey, an
attending, Board-certified internist, treated appellant for neck and back pain from
November 2002 to December 2003. She diagnosed degenerative disc disease from C5-7,
cervical spondylosis and an old C4 fracture. Dr. Harvey submitted progress notes through
July 10, 2006 regarding lumbar pain.
Appellant was also treated by Dr. Plas T. James, an attending Board-certified orthopedic
surgeon. In a February 6, 2007 report, Dr. James provided a history of injury and treatment,
including the April 13, 1992 and April 24, 2001 injuries. He related appellant’s account of
increased neck pain with driving, head movements and sneezing. Dr. James obtained x-rays
showing severe degenerative disc disease at C4-5 and C6-7.4 He performed an anterior fusion
and decompression at C5-6 and C6-7 on April 2, 2007. In a June 27, 2007 form report,
Dr. James diagnosed statuspost cervical fusion, degenerative disc disease and a herniated
cervical disc. He checked a box “yes” indicating his support for a causal relationship between
these diagnoses and appellant’s history of motor vehicle accidents.
By decision dated July 17, 2007, the Office denied appellant’s claim on the grounds that
causal relationship was not established.5 It accepted that appellant’s duties required frequent
bending, lifting and twisting. The Office found, however, that appellant submitted insufficient
medical evidence to establish that those factors caused or contributed to the claimed neck
condition.
2

The Office assigned the February 13, 2007 claim File No. xxxxxx462.

3

An October 13, 1998 x-ray showed anterior osteophytes from C5-7.

4

A February 13, 2007 magnetic resonance imaging (MRI) scan showed a central cord lesion at C6-7 with severe
degenerative disc disease at C5-6. A March 5, 2007 electromyography (EMG) and nerve conduction velocity
(NCV) study of the right upper extremity showed a low grade chronic C7 radiculopathy vs. myelopathy.
5

The Office initially denied the claim by decision dated July 9, 2007. It then determined that the July 9, 2007
decision was issued prematurely, less than 30 days after the June 13, 2007 letter. The Office therefore vacated the
July 9, 2007 decision.

2

In an August 2, 2007 letter, appellant requested a telephonic hearing, held
December 3, 2007. During the hearing, he asserted that his cervical condition began with the
accepted 1992 motor vehicle accident, worsened after the April 24, 2001 accident and was
aggravated by repetitive twisting, turning and bending at work. Appellant submitted additional
evidence.6
In a July 31, 2007 letter, Dr. James provided a history of injury and treatment. He stated
that in January 2007, appellant experienced increased neck pain at work while performing
activities of daily living. As imaging studies showed a cord lesion at C6-7 with severe
degenerative disc disease, a herniated disc and foraminal stenosis at C5-6, appellant required the
April 2, 2007 decompression and fusion. Dr. James explained that due to appellant’s previous
disc herniation and degenerative disc disease, it was “very possible” that repetitive lifting,
bending and twisting at work would “cause the herniation to progress and worsen” such that
surgery was required.
In a second July 31, 2007 letter, Dr. James opined that appellant’s “job of repetitive
bending, lifting or twisting … will increase the odds of the herniation to progress and worsen to
the degree that the patient would need surgical intervention.”
By decision dated and finalized January 29, 2008, an Office hearing representative
affirmed the July 17, 2007 decision, finding that the medical evidence was insufficiently
rationalized to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act7 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 filed within the applicable time limitation; that an injury was sustained while 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.8 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.9
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
6

Appellant also submitted medical reports regarding the April 13, 1992 left orbital fracture, including April 28
and October 9, 1992 surgeries. These reports do not discuss a neck injury.
7

5 U.S.C. §§ 8101-8193.

8

Joe D. Cameron, 41 ECAB 153 (1989).

9

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

3

which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally 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. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medial 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.10
ANALYSIS
Appellant claimed that he sustained a neck condition on or before January 27, 2007 due
to lifting, bending and twisting in the performance of duty. Dr. Harvey, an attending Boardcertified internist, and Dr. James, an attending Board-certified orthopedic surgeon, diagnosed
degenerative cervical disc disease. The Office accepted as factual that appellant’s duties as a
mail clerk required frequent twisting, bending and lifting. The issue is whether, he submitted
sufficient medical evidence to establish a causal relationship between his diagnosed neck
condition and the accepted work factors.
Dr. James submitted a June 27, 2007 form report in which he checked a box “yes”
indicating his support for a causal relationship between appellant’s degenerative disc disease and
the accepted motor vehicle accidents. The Board has held that checking a box on a form report
is of little probative value in establishing causal relationship.11 In July 31, 2007 letters,
Dr. James opined that it was “very possible” that repetitive lifting, bending and twisting at work
“could cause the herniation to progress and worsen.” He then stated that appellant’s work duties
“will increase the odds of the herniation to progress and worsen. The Board finds these reports
are too speculative to establish causal relationship in this case.12
The Office advised appellant by June 13, 2007 letter of the need to submit rationalized
medical evidence explaining how and why work factors would cause the claimed neck condition.
Appellant did not submit such evidence. Therefore, he did not meet his burden of proof.
CONCLUSION
The Board finds that appellant has not established that he sustained a neck condition in
the performance of duty.
10

Solomon Polen, 51 ECAB 341 (2000).

11

Calvin E. King, 51 ECAB 394 (2000).

12

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006); see Leonard J. O’Keefe, 14 ECAB 42,
48 (1962) (where the Board held that medical opinions which are speculative or equivocal in character have little
probative value).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 29, 2008 is affirmed.
Issued: November 19, 2008
Washington, DC

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

Colleen Duffy Kiko, 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.A., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Long Beach, CA,
Employer
__________________________________________

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

Docket No. 18-0379
Issued: November 7, 2019

Case Submitted on the Record

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

JURISDICTION
On December 18, 2017 appellant, through counsel, filed a timely appeal from a
November 6, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).2 As more than one year has elapsed from OWCP’s last relevant merit decision, dated

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

The November 6, 2017 non-merit decision pertained to appellant’s claim for wage-loss compensation beginning
on or about October 1, 2002. OWCP’s most recent merit decision was its February 27, 2017 decision regarding
entitlement to a schedule award for permanent impairment of the right upper extremity, which issue is not currently
before the Board. It last addressed the issue of entitlement to wage-loss compensation in an October 27, 2008 merit
decision.

October 27, 2008, to the filing of this appeal,3 pursuant to the Federal Employees’ Compensation
Act4 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits
of this case.5
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On June 26, 2002 appellant, then a 49-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on June 25, 2002 she injured her right index finger when
sweeping mail while in the performance of duty.6 On the reverse side of the claim form, the
employing establishment indicated that she continued to work following her alleged injury.
OWCP assigned the claim File No. xxxxxx258. After initially denying the claim, on July 17, 2003
it accepted appellant’s traumatic injury claim for right index finger strain.7
On December 18, 2006 appellant filed a claim for wage-loss compensation (Form CA-7)
beginning October 2002 and continuing, due to her accepted right index finger strain under OWCP
File No. xxxxxx258.
With respect to OWCP File No. xxxxxx258, appellant was treated by Dr. Daniel Chan, a
Board-certified family practitioner, from June 4, 2004 to May 2, 2006, for right hand, right wrist,
and right elbow pain. She reported sustaining an injury on June 25, 2002 while working on a
machine at work. Dr. Chan noted that appellant reached maximum medical improvement (MMI)
and was “permanent and stationary” on April 21, 2006.

3
For final adverse decisions of OWCP issued prior to November 19, 2008, the Board’s review authority is limited
to appeals which are filed within one year from the date of issuance of OWCP’s decision. See 20 C.F.R.
§ 501.3(d)(2) (2008).
4

5 U.S.C. § 8101 et seq.

5

The Board notes that following the November 6, 2017 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.
6

Appellant indicated that her finger got caught in a machine, but she was able to quickly pull it out.

7

Appellant subsequently filed three additional FECA claims for injuries that allegedly arose on or about March 2,
2004, January 1, 2005, and July 4, 2006. The first claim, assigned OWCP File No. xxxxxx093, was for an alleged
work-related emotional condition, which OWCP denied. The second claim, assigned OWCP File No. xxxxxx419,
was for alleged injuries to appellant’s bilateral upper extremities, which OWCP similarly denied. The latter claim,
assigned OWCP File No. xxxxxx408, was for a respiratory condition, which OWCP accepted for environmentallyinduced cough. The case records associated with appellant’s three above-referenced occupational disease claims are
not currently before the Board.

2

In a letter dated April 10, 2007, OWCP requested that appellant submit additional
information to support her claim for compensation beginning October 2002, including medical
evidence establishing that her total disability was due to the accepted condition for the period
claimed.
On May 8, 2007 appellant filed another claim for wage-loss compensation (Form CA-7)
for the period October 2002 through December 18, 2006.
OWCP received additional treatment records from Dr. Chan dated May 3 and 14, 2007.
Dr. Chan diagnosed bilateral wrist tendinitis, and noted a June 2002 history of sudden pull on right
hand and index finger by a machine at work. He attributed appellant’s left-side complaints to
overcompensation with the left extremity as a consequence of her right upper extremity injury.
OWCP also received various medical reports which included the cervical and thoracic
spine, respiratory complaints, and a right knee condition.
By decision dated May 23, 2007, OWCP denied appellant’s claim for compensation for
total disability for the period beginning October 2002 due to her accepted right index finger strain.
Appellant was reexamined by Dr. Chan on May 14, 2008 for a chronic pain condition.
Dr. Chan continued appellant’s restrictions noting that she could not work more than four hours a
day.
On May 22, 2008 appellant requested reconsideration.
By decision dated October 27, 2008, OWCP denied modification of the decision dated
May 23, 2007. It found that the medical evidence did not support that appellant’s right index finger
injury caused any of her other diagnosed upper extremity conditions. OWCP also found that the
medical evidence did not support either total or partial disability beginning October 2002 due to
her accepted right index finger strain.
Appellant was again examined by Dr. Chan on April 28, 2015 who noted that she reached
MMI with regard to her right index finger and did not require any additional treatment.
In a letter dated May 17, 2017, OWCP provided appellant with copies of the decisions
dated May 23, 2007 and October 27, 2008, which denied her claim for total disability for the period
beginning October 2002.
On June 10, 2017 appellant requested an oral hearing before an OWCP hearing
representative. She noted that she was appealing the May 17, 2017 decision.
In a letter dated July 10, 2017, OWCP informed appellant that the correspondence dated
May 17, 2017 was informational in nature and not a final decision. It indicated that two decisions
dated May 23, 2007 and October 27, 2008 were enclosed with that correspondence. OWCP further
indicated that because the May 17, 2017 letter was not a decision the case was not in posture for a
hearing.

3

On August 10, 2017 appellant requested reconsideration of the decisions dated May 23,
2007 and October 27, 2008. She indicated that she was going through stress due to her injury and
was incapacitated. Appellant stated that because she was taking so much medication her husband
would drive her to doctors’ appointments. She provided psychiatric treatment records dated
July 16, 2004, March 3 and 14, 2006, and April 10, 2007. Appellant asserted that the evidence
submitted supported that she was incapacitated, thereby precluding her from pursuing her
reconsideration.
By decision dated November 6, 2017, OWCP denied appellant’s August 10, 2017
reconsideration request, finding that it was untimely filed and failed to demonstrate clear evidence
of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.8 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be received within one year of the date of
OWCP’s decision for which review is sought.9 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.10 Imposition of this one-year filing limitation does not
constitute an abuse of discretion.11
OWCP may not deny a reconsideration request solely because it was untimely filed.
When a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake
a limited review to determine whether it demonstrates clear evidence of error.12 If an application
demonstrates clear evidence of error, it will reopen the case for merit review.13
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error. It is not enough to merely show that the evidence could be
construed so as to produce a contrary conclusion. This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously
8

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
9

20 C.F.R. § 10.607(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

11

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
12

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
13
L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 10 at Chapter 2.1602.5.

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of record and whether the new evidence demonstrates clear error on the part of OWCP. To
demonstrate clear evidence of error, the evidence submitted must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision.14
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as
a detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.15 The Board makes an independent determination of whether a claimant has
demonstrated clear evidence of error on the part of OWCP.16
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations17 and procedures18 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issue(s).19
The most recent merit decision regarding appellant’s entitlement to wage-loss compensation was
OWCP’s October 27, 2008 decision. As her request for reconsideration was not received by
OWCP until August 10, 2017, more than one year after the October 27, 2008 decision, the Board
finds that it was untimely filed. Because appellant’s request was untimely, she must demonstrate
clear evidence of error on the part of OWCP in denying her claim for wage-loss compensation
beginning October 2002.
The Board further finds that appellant’s reconsideration request failed to demonstrate
clear evidence of error on the part of OWCP in its last merit decision.
OWCP previously denied appellant’s claim for wage-loss compensation beginning
October 2002 because the medical evidence failed to establish that her accepted right index finger
injury either caused or contributed to any of her other diagnosed upper extremity conditions. It
also found the relevant medical evidence insufficient to establish that the accepted right index
finger strain was either totally or partially disabling during the claimed period. In her August 10,
2017 request for reconsideration, appellant submitted medical evidence regarding her unrelated
14

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

15

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 10 at Chapter 2.1602.5(a).

16

D.S., Docket No. 17-0407 (issued May 24, 2017).

17

20 C.F.R. § 10.607(a); see J.W., supra note 14; Alberta Dukes, 56 ECAB 247 (2005).

18

Supra note 10 at Chapter 2.1602.4; Veletta C. Coleman, 48 ECAB 367, 370 (1997).

19

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

5

psychiatric condition, but nothing with respect to any ongoing disability due to her accepted right
index finger strain.
In an April 28, 2015 report, Dr. Chan noted that appellant reached MMI with regard to her
right index finger. He further noted that she did not presently need any treatment that would
produce a cure for her work-related condition. Dr. Chan did not specifically comment on whether
appellant’s accepted condition precluded her from performing her prior duties as a mail processing
clerk. As such, this evidence does not address the relevant issue.20 The Board notes that clear
evidence of error is intended to represent a difficult standard. Evidence such as a detailed, wellrationalized medical report which, if submitted before the denial was issued, would have created
a conflict in medical opinion requiring further development, is not clear evidence of error.21 The
Board finds that this evidence does not rise to the level of clear evidence of error. Moreover,
while appellant disagreed with OWCP’s decision denying her claim for compensation, this does
not demonstrate clear evidence of error as it does not raise a substantial question as to the
correctness of OWCP’s most recent merit decision denying appellant’s claim for compensation for
total disability for the period beginning October 2002. Consequently, OWCP properly found that
appellant’s August 10, 2017 request for reconsideration was untimely filed and failed to
demonstrate clear evidence of error.
On appeal counsel asserted that there was an unresolved conflict of medical opinion and
that OWCP failed to adjudicate the claim in accordance with proper causation standard. As noted
above, the Board does not have jurisdiction over the merits of the claim and appellant has not
presented evidence or argument that raises a substantial question as to the correctness of OWCP’s
decision for which review is sought.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

20

F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the claim
was denied is insufficient to demonstrate clear evidence of error).
21

D.G., 59 ECAB 455 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the November 6, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 15-0715
Issued: July 7, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On February 2, 2015 appellant filed a timely appeal from a November 18, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 3, 2013 appellant, then a 57-year-old administrative support clerk, filed an
occupational disease claim alleging that he had depressive disorder and hypertension related to a
high-stress work environment. He did not stop work.
On his claim form, appellant stated that, since April 2011, he was experiencing
short-term memory loss, short temper, irritability, and lack of concentration. He advised that he
was in a high-stress work environment, relating that, if he took annual leave, he was subject to
call backs. Appellant indicated that he was subjected to “gross multitasking,” working 12-hour
shifts, and being overloaded with work assignments to the point that he could not remember
“what I had to do next.” He advised that he saw his physician on January 31, 2012 and was
diagnosed with memory loss and anxiety. Appellant stated that he was referred for a psychiatric
evaluation. He noted that he became aware of his condition on April 1, 2011 and its relation to
his employment on January 31, 2012.
By letter dated October 11, 2013, OWCP notified appellant that the evidence was
insufficient to establish his claim. Appellant was instructed to complete a questionnaire
substantiating the factual basis of his claim and was also advised of the type of medical evidence
needed. In another October 11, 2013, letter, OWCP requested that the employing establishment
comment on appellant’s assertions.
In a January 31, 2012 report, Dr. Milton Dalbow, Board-certified in internal medicine,
assessed memory loss and anxiety. He ordered a psychological evaluation.
In an April 5, 2012 report, Dr. Renata Jurczak, Board-certified in psychiatry, advised that
appellant was under treatment related to being in a high-stress environment. She noted that he
was experiencing memory loss, irritability, and poor sleep since April 2011. Dr. Jurczak advised
that appellant had been a supervisory police officer for the employing establishment, but later
switched to a different position where he was not required to carry a weapon. She noted that he
related that multi-tasking, a high-stress environment, and lack of sleep contributed to his
depression. Dr. Jurczak also noted that appellant reported having short-term memory loss
symptoms in the 1990’s when he was a firearms instructor. She assessed major depressive
disorder, hypertension, and stressors related to high-stress work. Dr. Jurczak stated that, over the
last year, appellant was under a significant amount of stress at work that brought about
depressive symptoms. She advised that he could work with accommodations.
In a November 8, 2013 response to an OWCP questionnaire, the employing establishment
disputed that there were aspects of appellant’s job that could be perceived as stressful, noting that
he worked more in the capacity of a dispatcher providing advice to officers when necessary to
successfully complete their assigned duties. It noted that he was accommodated to reduce stress
by placing him in a nonuniformed position and then eventually transferring him to human
resources. The employing establishment agreed that appellant was subject to call backs when he
was on annual leave because of the nature of police work and his position as a supervisor. It
noted that he was generally able to perform his required duties and that there were no staff
shortages during the period of his employment which affected his workload.

2

By decision dated March 7, 2014, OWCP denied appellant’s emotional condition claim
as he failed to establish any compensable work factors within the scope of his employment.
On March 26, 2014 appellant requested an oral hearing. A telephonic oral hearing was
scheduled for October 20, 2014. Appellant failed to appear for the hearing. On October 21,
2014 he contacted OWCP and asserted that the telephone number for accessing the hearing did
not work for him. Appellant agreed to convert his request to a review of the written record.
By decision dated November 18, 2014, an OWCP hearing representative affirmed the
March 7, 2014 decision. She noted that appellant failed to provide specific facts upon which a
claim for injury within the performance of duty could be positively adjudicated.
LEGAL PRECEDENT
To establish a claim that he or she sustained an emotional or stress-related condition in
the performance of duty, an employee must submit: (1) factual evidence identifying employment
factors or incidents alleged to have caused or contributed to the condition; (2) medical evidence
establishing that he or she has an emotional or stress-related disorder; and (3) rationalized
medical opinion evidence establishing that the identified compensable employment factors are
causally related to the condition. If a claimant implicates a factor of employment, OWCP should
determine whether the evidence of record substantiates that factor. Allegations alone are
insufficient to establish a factual basis for an emotional condition claim and must be supported
with probative and reliable evidence. If a compensable factor of employment is established, it
must then base its decision on an analysis of the medical evidence.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.3 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.4
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.5 However,
the Board has held that where the evidence establishes error or abuse on the part of the
2

G.S., Docket No. 09-764 (issued December 18, 2009).

3

Supra note 1; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

4

Gregorio E. Conde, 52 ECAB 410 (2001).

5

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’ d on recon., 42
ECAB 556 (1991).

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employing establishment in what would otherwise be an administrative matter, coverage will be
afforded.6 In determining whether the employing establishment has erred or acted abusively, the
Board will examine the factual evidence of record to determine whether the employing
establishment acted reasonably.7
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a high-stress
work environment. OWCP denied his emotional condition claim because he failed to establish
any compensable employment factors. The Board must, therefore, initially review whether the
alleged incidents and conditions of employment are covered employment factors under the terms
of FECA. The Board notes that appellant’s allegations do not sufficiently identify specific work
factors or conditions to implicate work factors under Cutler. Appellant noted “gross
multitasking” working 12-hour shifts, and being overloaded with work assignments. While such
matters might be compensable if established by the factual evidence as necessary to meet the
demands of his position, he did not specify any particular occurrence on any specific date and
time. Such vague allegations are insufficient to establish a compensable employment factor
under these circumstances.8 Similarly, overwork may constitute a compensable factor of
employment if a claimant submits sufficient evidence to substantiate this allegation.9 Appellant
failed to submit any factual evidence substantiating these allegations. Therefore, these matters
are not compensable factors of employment.
Appellant alleged that being subject to call backs when he took annual leave contributed
to his emotional condition. Although the handling of leave requests is generally related to the
employment, it is an administrative function of the employing establishment and not a duty of
the employee and thus only compensable where the evidence discloses error or abuse.10 The
employing establishment agreed that he was subject to call backs when he was on annual leave.
It noted that all supervisors and patrol officers alike were subject to call back while on leave due
to the nature of police work and the need to call in officers in the unlikely event of a mass
casualty, civil disorder, or missing patients. Such actions do not rise to the level of error or
abuse by the employing establishment in administrative matters as there is no evidence that these
actions were unreasonable.11
On appeal appellant argues that OWCP ignored medical evidence submitted with his
claim. However, he must establish compensable work factors any medical evidence becomes

6

See William H. Fortner, 49 ECAB 324 (1998).

7

Ruth S. Johnson, 46 ECAB 237 (1994).

8

See T.E., Docket No. 14-582 (issued December 15, 2014) (allegations alone by a claimant are insufficient to
establish a factual basis for an emotional condition claim).
9

See Bobbie D. Daly, 53 ECAB 691 (2002).

10

C.S., 58 ECAB 137 (2006).

11

See id.

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relevant. As appellant has not established any compensable work factors, the Board need not
address the medical evidence.12
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a compensable factor of employment
and, therefore, has not met his burden of proof to establish a claim for an emotional condition.
ORDER
IT IS HEREBY ORDERED THAT the November 18, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 7, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

See Margaret S. Krzycki, 43 ECAB 496 (1992).

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