United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Phoenix, AZ, Employer
__________________________________________

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Appearances:
Dale Mackelprang, for the appellant
Office of Solicitor, for the Director

Docket No. 06-1681
Issued: January 31, 2007

Case Submitted on the Record

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

JURISDICTION
On July 17, 2006 appellant, through her representative, filed a timely appeal of the Office
of Workers’ Compensation Programs’ merit decisions dated February 9 and July 6, 2006.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
developed a left shoulder condition as a consequence of her accepted right shoulder injury; and
(2) whether the Office properly denied appellant’s claim for disability compensation for the
period June 10, 1995 through July 22, 2005.
FACTUAL HISTORY
On July 7, 1992 appellant, then a 33-year-old distribution clerk, filed an occupational
disease claim alleging that she developed a right shoulder and neck condition due to factors of
her federal employment. At the time of her injury, appellant was earning $28,584.00 per year

and entitled to both night differential pay and Sunday premium pay. The Office accepted
appellant’s claim for cervical strain and right shoulder strain on September 29, 1992. It
authorized surgery on March 17, 1993. Appellant underwent arthroscopy of the right shoulder
with subacromial decompression and mini-repair of the rotator cuff on March 30, 1993. She
returned to full-time light-duty work on February 3, 1994 on her original duty tour. The Office
granted appellant schedule awards for five percent impairment of her right arm.
In a letter dated February 15, 1994, appellant stated that she was working full time and
requested a rehabilitation position. She accepted a general clerk, modified, position on June 9,
1995 with a salary of $34,105.00 per year. Appellant’s work schedule was from 8:30 a.m.
to 5:00 p.m. and her scheduled days off were Sunday and Monday. In an undated handwritten
note, appellant stated:
“I worked Tour I from 10:00 (p.m.) to 6:30 a.m.. At this point I am willing to
take as volunteer to Tour II work from 8:30 a.m. to 5:00 (p.m.). I was also aware
that there was work available for me in Tour I with my restrictions.”
In a decision dated October 18, 1995, the Office determined that the general clerk,
modified, position fairly and reasonably represented appellant’s wage-earning capacity. It
reduced appellant’s compensation benefits to zero as her actual earnings in this position meet or
exceeded the wages of her date-of-injury position. The Office’s decision did not include any pay
rate calculations.
Appellant filed a recurrence of disability claim on March 10, 2005 alleging that she had
developed a left shoulder condition due to the limited range of motion of her right shoulder. She
stated that she used her left arm for overhead lifting and reaching above the shoulder. Appellant
stopped work on March 10, 2005 and returned to work on March 29, 2005.
On September 5, 2005 appellant submitted a claim for compensation requesting night
differential pay and Sunday premium pay for the period June 10, 1995 through July 22, 2005.
She also submitted a statement in support of this claim, dated September 5, 2005, noting that she
began working in day position on June 10, 1995. Appellant believed this position was
permanent, but the employing establishment recently eliminated the general clerk (modified)
position and returned her to her date-of-injury position. Appellant stated: “The reason I was
again assigned to Tour I job was because the department was under the impression that I was
being paid the night differential and weekend premium, which was not true.” She alleged that
she was ordered by management to write a statement that the change in shifts was voluntary, but
that at the time she felt she had no choice but to accept the sedentary day job due to restrictions
from her right shoulder injury. Appellant requested compensation from the lost night pay
differential and Sunday premium pay.
In a letter dated September 7, 2005, the Office requested additional factual and medical
evidence in support of appellant’s consequential injury claim. Dr. Edward D. Campbell, Jr., a
Board-certified orthopedic surgeon, examined appellant on June 13, 2005 and stated that
appellant had undergone a rotator cuff repair and subacromial decompression. In a note dated
July 20, 2005, Dr. Campbell stated: “At this stage, based on her repetitive motion and the fact
that she had a rotator cuff on the opposite side that was repaired 10 years ago from a similar-type

2

injury, it certainly appears that the rotator cuff tear, based on her history is really job related on
the left.” He continued to recommend light-duty work.
The employing establishment responded to appellant’s allegations regarding her loss pay
on February 7, 2006 and denied that appellant was forced onto the day shift.
By decision dated February 9, 2006, the Office denied appellant’s claim for a
consequential left shoulder injury finding that Dr. Campbell attributed her left shoulder condition
to her job duties rather than as a consequence of the right shoulder injury.1
In a separate decision dated February 9, 2006, the Office denied appellant’s claim for
disability compensation consisting of night differential pay and Sunday premium pay for the
period June 10, 1995 through July 22, 2005 on the grounds that she had failed to submit evidence
establishing that these lost wages were incidental to her accepted right shoulder condition. The
Office stated:
“Since the [employing establishment] had work available in your original work
shift that had ND [night differential] and SP [Sunday premium], but you declined
that work shift and volunteered to work a different work which did not include
ND and SP, this Office finds that the lost wages of ND and SP were not incidental
to your disability or any medical treatment such that you are entitled to wage-loss
compensation.”
The employing establishment submitted a statement dated February 10, 2006 from
Connie McCarthy regarding appellant’s change of work schedule. Ms. McCarthy stated that
appellant requested placement in the rehabilitation program and wanted to work day hours. She
further denied forcing appellant to write a statement that she had volunteered for the day shift
position. Ms. McCarthy included a letter dated June 6, 1995 to appellant’s supervisor, requesting
approval for a transfer of appellant, noting, “[Appellant] is presently assigned to Tour I, but can
no longer case mail.”
Appellant requested reconsideration of the Office’s February 9, 2006 decision on
April 8, 2006. She alleged that she was not offered work on Tour I at the time she took the
rehabilitation position. Appellant alleged that she could not waive her compensation rights and
that her handwritten note was unenforceable. She further noted that she was moved to Tour II
due to her inability to case mail and as such, her loss of night differential pay and Sunday
premium pay was incidental to her disability.
By decision dated July 6, 2006, the Office reopened appellant’s claim for consideration
of the merits and denied modification of its February 9, 2006 decision, finding that appellant had
not established entitlement to additional wage-loss compensation.

1

The Office recommended that appellant file a claim for an occupational disease for this injury.

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LEGAL PRECEDENT -- ISSUE 1
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.2
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, then a subsequent injury, whether an aggravation of the original
injury or a new and distinct injury, is compensable if it is the direct and natural result of a
compensable primary injury.3
A claimant bears the burden of proof to establish her claim for a consequential injury. As
part of this burden, a claimant must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship.4 Causal relationship is a
medical question that can generally be resolved only by rationalized medical opinion evidence.5
Rationalized medical evidence, is evidence which relates a work incident, work injury or factors
of employment to a claimant’s condition, with stated reasons of a physician.6 The opinion of the
physician must be one of reasonable medical certainty and must be supported by medical rational
explaining the nature of the relationship of the diagnosed condition and the specific employment
factors or employment injury.7
ANALYSIS -- ISSUE 1
Appellant alleged that she developed a left shoulder condition as a consequence of her
accepted right shoulder condition. She stated that due to her limitations regarding reaching and
lifting above her shoulder and head with her right arm, she was required to overuse her left
shoulder for such activities. In support of her claim, appellant submitted reports from
Dr. Campbell, a Board-certified orthopedic surgeon, noting that he performed a surgical repair of
appellant’s left shoulder and that appellant was limited to light-duty work as a result of this
surgery. In his July 20, 2005 report, Dr. Campbell opined that as appellant’s right shoulder
condition resulted from her work duties, so did her left shoulder condition. He did not indicate
that appellant’s left shoulder condition was a consequence of her right shoulder injury, but
instead appears to attribute this condition to unnamed but similar job duties which resulted in the
accepted right shoulder condition. Appellant failed to submit any other medical opinion offering
an opinion on the causal relationship between her accepted employment injury to her right
shoulder and her alleged consequential left shoulder injury. As there is no medical evidence
2

Albert F. Ranieri, 55 ECAB 598, 602 (2004); A. Larson, The Law of Workers’ Compensation § 10.01 (2000).

3

Charles W. Downey, 54 ECAB 421, 422-23 (2003).

4

Id.

5

Steven S. Saleh, 55 ECAB 169, 172 (2003).

6

Downey, supra note 3.

7

Id.

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attributing appellant’s left shoulder condition to her accepted employment injury, she has not met
her burden of proof in establishing a consequential injury and the Office properly denied her
claim.
LEGAL PRECEDENT -- ISSUE 2
A wage-earning capacity decision is a determination that, a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.8
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless the original rating was in error, there is a material
change in the nature and extent of the injury-related condition or that the employee has been
retrained or otherwise vocationally rehabilitated. The burden of proof is on the party attempting
to show a modification of the wage-earning capacity.9
ANALYSIS -- ISSUE 2
Following appellant’s submission of claim for compensation requesting Sunday premium
pay and night differential pay from June 10, 1995 to July 22, 2005, the Office developed the
evidence and determined that the issue presented was whether appellant had lost wages of night
differential pay and Sunday premium pay incidental to her disability or any medical treatment
such that she was entitled to wage-loss compensation. Under the circumstances of the case,
however, the Board finds that the issue presented was whether the October 18, 1995 loss of
wage-earning capacity determination should be modified.
Through the filing of the claim for compensation requesting Sunday premium pay and
night differential pay from June 10, 1995, the date appellant began working in the Tour II
general clerk, modified, position to July 22, 2005, appellant alleged that the original wageearning capacity decision was incorrect as it was based on an incorrect pay rate. It is well
established that either a claimant or the Office may seek to modify a formal loss of wage-earning
capacity determination.10 The Board finds that appellant has requested modification of the
October 18, 1995 loss of wage-earning capacity determination and entitled to a merit decision on
that issue. On remand, the Office should develop the record as necessary and issue a de novo
decision with regard to appellant’s loss of wage-earning capacity.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that she
developed a left shoulder condition and a consequence of her accepted right shoulder injury. The
8

Katherine T. Kreger, 55 ECAB 633, 634-35 (2004); Sharon C. Clement, 55 ECAB 552, 555-56 (2004).

9

Id.

10

Gary L. Moreland, 54 ECAB 638, 640 (2003).

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Board further finds that the Office failed to properly address appellant’s request for modification
of the October 18, 1995 wage-earning capacity determination and that the case must be
remanded for additional development and a proper decision on this issue.
ORDER
IT IS HEREBY ORDERED THAT the July 6 and February 9, 2006 decisions
regarding appellant’s claim for compensation are set aside and remanded for further development
consistent with this decision of the Board. The February 9, 2006 decision denying her claim for
a consequential injury is affirmed.
Issued: January 31, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lititz, PA, Employer
__________________________________________

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

Docket No. 09-373
Issued: September 15, 2009

Case Submitted on the Record

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

JURISDICTION
On November 17, 2008 appellant filed a timely appeal from a July 18, 2008 decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury causally related to factors of her
federal employment.
FACTUAL HISTORY
On April 5, 2007 appellant filed an occupational disease claim (Form CA-2) indicating
that she had injured her left ankle after she stepped in a pothole on October 19, 2006. She also

reported that she strained her lower back. The reverse of the claim form indicated that appellant
had filed a traumatic injury claim for the October 19, 2006 injury.1
By letter dated April 25, 2007, the Office requested additional information from
appellant, including a statement describing the employment factors she believed caused an
injury. On May 15, 2007 it received medical treatment notes regarding her back.
In a decision dated June 18, 2007, the Office denied the claim for compensation. It found
that appellant had not submitted the factual and medical evidence necessary to establish her
claim.
On September 19, 2007 appellant submitted medical evidence with respect to her
treatment for the back and left leg.2 She requested reconsideration of the claim on
April 21, 2008.
By decision dated July 18, 2008, the Office reviewed the case on its merits and denied
modification.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.4
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying 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 diagnosed condition is causally related to the
employment factors identified by the claimant.5
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.6 A physician’s opinion on the issue of whether there is a
1

OWCP File No. xxxxxx149. The record also indicates that appellant filed a traumatic injury claim for a back
injury on September 1, 2005. OWCP File No. xxxxxx513.
2

A December 19, 2006 MRI scan report of the left foot noted findings consistent with tenosynovitis and probable
plantar fasciitis. The report did not address causal relationship.
3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

See Robert G. Morris, 48 ECAB 238 (1996).

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causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.7
Additionally, in order to be considered rationalized, the 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 factors.8
ANALYSIS
On appeal, appellant addressed her traumatic injury claims and the filing of recurrence of
disability claims.9 However, these claims are not presently before the Board on this appeal.
With respect to the April 5, 2007 CA-2 form, appellant stated that she “did not prepare” the form
and characterized it as “fraudulent.” The record contains a CA-2 form signed by appellant and
the Office developed the claim under file number xxxxxx527. The Office issued decisions under
this claim and she filed an appeal. Although appellant questions this claim, the jurisdiction of
the Board is to review final decisions of the Office.10 She can withdraw her claim in an
appropriate manner with the Office. The issue on this appeal is whether appellant met her
burden of proof to establish an occupational claim.11
As noted, appellant must submit a factual statement identifying the employment factors
contributing to her condition. She did not submit factual evidence with regard to employment
factors she believed caused her ankle or back conditions. As to the October 19, 2006 incident,
appellant previously filed a traumatic injury claim regarding this incident. She must submit
medical evidence establishing causal relationship between a diagnosed condition and the
identified employment factors. Appellant did not submit any probative medical evidence
addressing the issue of causal relationship. The evidence submitted consists of medical excuse
forms or evidence addressing her back condition rather than her left ankle. The Board
accordingly finds appellant did not meet her burden of proof in this case.
CONCLUSION
The Board finds that appellant did not establish an injury causally related to factors of her
federal employment.

7

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

Id.

9

Appellant also submitted documents to the Board. The review of the case is limited to evidence in the case
record that was before the Office at the time of its final decision. 20 C.F.R. § 501.2(c).
10

20 C.F.R. § 501.2(c).

11

An occupational disease or illness is a condition produced by the work environment over a period longer than a
single workday or shift. 20 C.F.R. § 10.5(q).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 18, 2008 is affirmed.
Issued: September 15, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, SOUTH TROOST
STATION, Kansas City, MO, Employer
__________________________________________

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

Docket No. 21-0096
Issued: June 11, 2021

Case Submitted on the Record

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

JURISDICTION
On October 23, 2020 appellant filed a timely appeal from a July 8, 2020 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 to
consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish more than 16 percent
permanent impairment of the right lower extremity for which she previously received a schedule
award.
FACTUAL HISTORY
On July 13, 2012 appellant, then a 46-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date she sustained a right ankle sprain as she fled from three
1

5 U.S.C. § 8101 et seq.

dogs that were chasing her while in the performance of duty.2 On August 9 and 14, 2012 OWCP
accepted the claim for right ankle sprain and right posterior tibial tendon attenuation. Appellant
underwent an OWCP-authorized right posterior tibial tendon repair with application of right
posterior cast-splint on September 7, 2012, right flexor digitorum longus (FDL) transfer, posterior
tibial tendon debridement, cotton osteotomy with medial cuneiform, right medializing calcaneal
osteotomy, right gastroc release, three views interpretation with use of fluoro on January 24, 2018,
and removal of hardware from the first metatarsal of the right foot on August 29, 2018.
On January 8, 2019 appellant filed a claim for a schedule award (Form CA-7).
By decision dated March 11, 2015, OWCP granted appellant a schedule award for 16
percent permanent impairment of the right lower extremity (ankle). The award ran for 46.08 weeks
from December 2, 2014 through October 20, 2015 and was based on the impairment ratings of
Dr. Kala Danushkodi, a Board-certified physiatrist and an OWCP referral physician, and
Dr. Daniel D. Zimmerman, a Board-certified internist serving as a district medical adviser (DMA).
Subsequently, on December 8, 2017 OWCP expanded the acceptance of appellant’s claim
to include rupture of other tendons of the right foot and ankle.
On January 7, 2019 appellant filed a claim for an increased schedule award (Form CA-7).
OWCP, by development letter dated January 10, 2019, requested that appellant submit an
impairment evaluation from her attending physician that addressed whether she had obtained
maximum medical improvement (MMI) and provided a permanent impairment rating in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).3
In a January 4, 2019 progress note, Dr. Bryan G. Vopat, an attending Board-certified
orthopedic surgeon, noted appellant’s medical history, which included removal of hardware over
her first metatarsal and a calcaneal osteotomy, FDL transfer, gastroc release and medial cuneiform
osteotomy. He noted examination findings and advised that appellant had reached maximum
medical improvement (MMI).
On February 27, 2019 OWCP referred the record, including a statement of accepted facts
(SOAF), to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as an OWCP DMA,

2

OWCP assigned the claim File No. xxxxxx411. Appellant also has several prior claims. Under File No.
xxxxxx455, OWCP accepted appellant’s traumatic injury claim for contusion, medial meniscus tear, and Baker’s cyst
of the left knee sustained on February 12, 2011 and authorized left knee arthroscopy which was performed on
September 26, 2011. Under File No. xxxxxx664, it accepted her occupational disease claim (Form CA-2) for
enteropathy and tibialis tendinitis of the right ankle. Under File No. xxxxxx210, OWCP accepted appellant’s traumatic
injury claim for left knee sprain sustained on November 7, 2015 and authorized left knee arthroscopy which was
performed on November 6, 2018. It accepted her occupational disease claim under File No. xxxxxx302 for right
rotator cuff tear and authorized right arthroscopic rotator cuff repair, superior labral anterior posterior repair,
subacromial decompression, distal clavicle excision, and extensive glenhumeral debridement of a type 1 anterior and
posterior labral tear which were performed on February 3, 2017.
3

A.M.A., Guides (6th ed. 2009).

2

to determine appellant’s percentage of permanent impairment pursuant to the sixth edition of the
A.M.A., Guides and her date of MMI.
In a March 2, 2019 report, Dr. Harris reviewed the medical record, which indicated that
appellant underwent right calcaneal osteotomy, medial cuneiform osteotomy, posterior tibial
tendon debridement, FDL tendon transfer, and gastroc release on January 24, 2018 and right first
metatarsal hardware removal on August 29, 2018. He utilized the diagnosis-based impairment
(DBI) rating method of the sixth edition of the A.M.A., Guides at Table16-2, page 501, and
determined that appellant had 10 percent permanent impairment of the right lower extremity due
to her diagnosis of posterior tibial tendon insufficiency. Dr. Harris noted that the range of motion
(ROM) impairment rating method was not applicable.
On April 22, 2019 OWCP referred appellant, together with a SOAF, and the case file to,
Dr. Sivakoti R. Katta, a Board-certified orthopedic surgeon, for a second opinion evaluation of her
permanent impairment for schedule award purposes.
In a May 8, 2019 report, Dr. Katta noted appellant’s history of injury and medical
treatment, and discussed examination findings. He provided: assessments of chronic right ankle
tendinitis with associated osteoarthritis of the right ankle and foot; status post chronic sprain and
posterior tibial tendon attenuation from appellant’s July 13, 2012 work-related injury, and surgical
repair performed on September 7, 2012, January 24 and August 29, 2018; osteoarthritis of both
knee joints and left ankle; probable degenerative disc disease of the lumbar vertebrae without any
radiculopathy; and hypertension. Utilizing the DBI method at Table 16-2, page 501 of the sixth
edition of the A.M.A., Guides, Dr. Katta determined that appellant had six percent permanent
impairment of the right lower extremity for a diagnosis of chronic right ankle sprain with
associated posterior tibial tendon insufﬁciency. He noted that he did not use the ROM method
because appellant’s right ankle had full ROM. Dr. Katta determined that appellant reached MMI
on January 4, 2019, the date of Dr. Vopat’s examination.
On May 17, 2019 OWCP requested that Dr. Harris review Dr. Matta’s May 8, 2019 report
and provide whether he agreed with his findings.
In a May 21, 2019 report, Dr. Harris reviewed Dr. Matta’s May 8, 2019 report and agreed
with Dr. Matta that appellant had six percent permanent impairment of the right lower extremity
pursuant to the A.M.A., Guides as a result of her accepted posterior tibial deficit. He determined
that she reached MMI on May 8, 2019.
By decision dated July 3, 2019, OWCP denied appellant’s claim for an increased schedule
award for permanent impairment of her right lower extremity. It noted that she had previously
been paid a schedule award for 16 percent permanent impairment of the right lower extremity.
On July18, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.4 The hearing was held on
November 4, 2019.

4

Appellant retired on disability from the employing establishment effective September 16, 2019.

3

By decision dated January 17, 2020, an OWCP hearing representative affirmed the July 3,
2019 decision. She found that the weight of the medical opinion evidence established that
appellant did not have more than the 16 percent right lower extremity permanent impairment
previously awarded.
On May 12, 2020 appellant requested reconsideration. In support of her reconsideration
request, he submitted an April 7, 2020 report from Dr. Zimmerman, who formerly served as
OWCP’s DMA. Dr. Zimmerman noted his review of appellant’s medical records and discussed
examination findings. He diagnosed double or triple arthrodesis of the midfoot with moderate
malalignment as demonstrated by a right foot and ankle x-ray performed on the date of his
examination. Dr. Zimmerman used the DBI method and determined that, under Table 16-2, page
508 of the sixth edition the A.M.A., Guides, appellant had 26 percent permanent impairment of
the right lower extremity. He used grade modifiers in Table 16-6, Table 16-7, and Table 16-8 and
the net adjustment formula based on class 3 for a class of diagnosis (CDX) of double or triple
arthrodesis. Dr. Zimmerman determined that appellant had reached MMI as of the date of his
impairment evaluation.
On May 26, 2020 OWCP requested that Dr. Harris review Dr. Zimmerman’s April 7, 2020
report and determine whether he agreed with his impairment rating.
On May 29, 2020 Dr. Harris, DMA, reviewed Dr. Zimmerman’s April 7, 2020 findings
and disagreed with his impairment rating. He noted that appellant had not undergone double or
triple arthrodesis. Instead, appellant had undergone a reconstructive procedure for posterior tibial
insufficiency, including medial cuneiform osteotomy with tendon transfer. Dr. Harris advised that
appellant reached MMI on April 7, 2020, the date of Dr. Zimmerman’s impairment evaluation.
He reiterated his prior opinion that she had six percent right lower extremity permanent
impairment. Dr. Harris also reiterated that appellant’s diagnosis did not meet the criteria to allow
impairment to be calculated by the ROM methodology. He concluded that she had no increased
impairment.
By decision dated July 8, 2020, OWCP denied modification of the January 17, 2020
decision.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

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standard for evaluating schedule losses.7 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved the use
by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, the evaluator identifies the impairment CDX, which
is then adjusted by grade modifiers based on grade modifier for functional history (GMFH), grade
modifier for physical examination (GMPE), and grade modifier for clinical studies (GMCS).11
The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).12
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning, Disability and Health
(ICF).13 In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated.
In determining impairment for the lower extremities, an evaluator must establish the
appropriate diagnosis for each part of the lower extremity to be rated. With respect to the knee,
the relevant portion of the leg for the present case, reference is made to Table 16-3 (Knee Regional
Grid) beginning on page 509.14 After the CDX is determined from the Knee Regional Grid
(including identification of a default grade value), the net adjustment formula is applied using the
GMFH, GMPE, and GMCS. The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).15 Under Chapter 2.3, evaluators are directed to provide reasons for their

7

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017).
9

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
11

Id. at 493-556.

12

Id. at 521.

13

Supra note 10.

14

Id. at 509-11.

15

Id. at 515-22.

5

impairment rating choices, including choices of diagnoses from regional grids and calculations of
modifier scores.16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.17
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than 16
percent permanent impairment of the right lower extremity for which she previously received a
schedule award.
In support of her claim for an increased schedule award, appellant submitted an April 7,
2020 report from Dr. Zimmerman, who used tables in the sixth edition of the A.M.A., Guides and
opined that appellant had 26 percent permanent impairment of the right lower extremity due to her
diagnosis of double or triple arthrodesis of the right midfoot with moderate malalignment. In
accordance with its procedures, OWCP properly referred the medical record to Dr. Harris, a
DMA,18 who reviewed Dr. Zimmerman’s April 7, 2020 report and concluded that Dr. Zimmerman
erroneously based his impairment rating on a diagnosis of double or triple arthrodesis. He noted
that appellant did not undergo double or triple arthrodesis, but instead she underwent a
reconstructive procedure for posterior tibial insufficiency, including medial cuneiform osteotomy
with tendon transfer.
Appellant also submitted Dr. Vopat’s January 4, 2019 progress note in which he found that
she had reached MMI status post the removal of hardware over her first metatarsal and a calcaneal
osteotomy, FDL transfer, gastroc release and medial cuneiform osteotomy. However, he did not
describe a permanent impairment due to her accepted right ankle sprain.19 Before the A.M.A.,
Guides can be utilized a description of impairment must be obtained from the claimant’s physician.
The evaluation made by the attending physician must include a description of the impairment
including, where applicable, the loss in degrees of active and passive motion of the affected
member or function, the amount of any atrophy or deformity, decrease in strength or disturbance
of sensation or other pertinent descriptions of the impairment.20 This description must be in
sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations.21 The Board finds that
16

Id. at 23-28.

17

See supra note 8 at Chapter 2.808.6(f) (March 2017). See also P.W., Docket No. 19-1493 (issued August 12,
2020); Frantz Ghassan, 57 ECAB 349 (2006).
18

Id.

19

See K.J., Docket No. 19-1492 (issued February 26, 2020); K.F., Docket No. 18-1517 (issued October 9, 2019).

20

See S.W., Docket No. 19-1078 (issued January 9, 2020).

21

K.F., supra note 19; A.T., Docket No. 18-0864 (issued October 9, 2018).

6

Dr. Vopat’s progress note does not describe the impairment to appellant’s right ankle in sufficient
detail so that it can be visualized on review, and does not compute the percentage of impairment
in accordance with the A.M.A., Guides.
In a May 8, 2019 report, Dr. Matta, an OWCP referral physician, used the DBI method
found at Table 16-222 and determined that appellant had six percent permanent impairment of the
right lower extremity for a diagnosis of chronic right ankle sprain with associated posterior tibial
tendon insufﬁciency.
OWCP again properly referred the medical record to Dr. Harris, a DMA,23 who reviewed
Dr. Matta’s May 21, 2019 report and agreed with Dr. Matta that appellant had six percent
permanent impairment of the right lower extremity pursuant to the A.M.A., Guides as a result of
her accepted posterior tibial deficit.
The Board finds that OWCP properly determined that the clinical findings and reports of
Dr. Matta and Dr. Harris constituted the weight of the medical evidence.24 There is no probative
medical evidence of record demonstrating greater impairment than that previously awarded.25
Therefore, appellant has not met her burden of proof to establish an increased schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than 16
percent permanent impairment of the right lower extremity for which she previously received a
schedule award.

22

A.M.A., Guides 501, Table 16-2.

23

See supra note 17.

24

D.L., Docket No. 20-1016 (issued December 8, 2020); K.M., Docket No. 19-1526 (issued January 22, 2020);
Y.S., Docket No. 19-0218 (issued May 15, 2020).
25

See D.L., id.; K.M., id.; J.M., Docket No. 18-1334 (issued March 7, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the July 8, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 11, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Memphis, NY, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 18-1764 &
19-0709
Issued: August 27, 2020

Case Submitted on the Record

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

On September 21, 2018 appellant, through counsel, filed a timely appeal from an April 10,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP) in relation to
OWCP File No. xxxxxx169. The Clerk of the Appellate Boards assigned Docket No. 18-1764.
On February 19, 2019, appellant, through counsel, filed a timely appeal from a September 11, 2018
decision in relation to OWCP File No. xxxxxx674. The Clerk of the Appellate Boards assigned
Docket No. 19-0709.2

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 Board notes that following the September 11, 2018 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.

Appellant’s claims have previously been before the Board.3 The facts and circumstances
as set forth in the Board’s prior decisions and orders are incorporated herein by reference. The
relevant facts are as follows.
On October 5, 1998 appellant, then a 47-year-old part-time flexible distribution/window
clerk, filed an occupational disease claim (Form CA-2) alleging post-traumatic stress disorder
(PTSD), anxiety, and depression because a customer who had molested her and threatened to kill
her as a child was a daily patron at the Memphis, New York, location of the employing
establishment and she had to interact with him in her capacity as a window clerk. She noted that
she first became aware of her claimed condition on January 3, 1995 and related it to her federal
employment on May 22, 1998. On the reverse side of the claim form, the employing establishment
noted that appellant stopped work and reported her condition to a supervisor on June 27, 1998.
OWCP assigned that claim OWCP File No. xxxxxx169 and accepted PTSD as an employmentrelated condition.
On March 26, 1999 appellant accepted the employing establishment’s offer of a position
as a part-time flexible hub clerk at the Martville, New York Post Office as an accommodation to
her employment restrictions put into place due to her accepted and continuing PTSD condition.
While working at the Martville Post Office location she encountered an individual who bore a
resemblance to and had the same last name of the man who had abused, assaulted, and threatened
her as a child -- possibly that man’s nephew. Following her encounters with this individual,
appellant ceased employment on October 5, 2002.4
On June 9, 2010 appellant filed a notice of recurrence (Form CA-2a) of disability
commencing October 5, 2002. By decision dated September 1, 2010, the recurrence claim was
denied. Appellant was instructed that a new claim should be filed in an emotional condition claim,
rather than a recurrence claim, for exposure to new factors other than the previously accepted
employment factors.
By decision dated September 2, 2010, OWCP issued a retroactive loss of wage-earning
capacity (LWEC) determination based on appellant’s actual earnings as a part-time flexible hub
clerk at the employing establishment. It found that she had worked in the position for over three
years, commencing March 27, 1999, and that the employment fairly and reasonably represented
her wage-earning capacity. OWCP found that appellant had 72 percent LWEC and paid her
compensation for this loss for the period March 27, 1999 to October 4, 2002.5
On October 14, 2010 appellant filed a new occupational disease claim (Form CA-2)
alleging an aggravation of her PTSD condition as a result of employment-related interactions with
the possible nephew of the man who had abused her and threatened her as a child. That claim was
3

Docket No. 14-0693 (issued January 12, 2016); Docket No. 12-1854 (issued June 25, 2013); Docket No. 06-1155
(issued February 23, 2007); Docket No. 05-0581 (issued June 9, 2005).
4

Appellant reported to Dr. Teresa R. Miller, an attending physician Board-certified in psychiatry, that she
encountered this individual in the workplace as early as September 2001. She indicated that, on multiple occasions
prior to ceasing employment, she waited on this individual as a customer and handed him mail.
5

The record contains no evidence showing that appellant received wage-loss compensation after October 4, 2002.

2

assigned OWCP File No. xxxxxx674. By decision dated May 3, 2011, OWCP denied appellant’s
occupational disease claim in File No. xxxxxx674 finding that she had not met her burden of proof
to establish a new injury in that she had not established a compensable employment factor.
Appellant submitted additional requests for reconsideration under OWCP File No. xxxxxx674, but
OWCP denied modification by merit decisions dated March 23, 2012 and August 16, 2013.
Appellant requested modification of the September 2, 2010 LWEC determination.6 By
decision dated October 23, 2013, OWCP denied modification of the September 2, 2010 LWEC
determination.
Appellant appealed to the Board on February 6, 2014. By decision dated January 12, 2016,
the Board determined that OWCP had erroneously issued a retroactive LWEC determination on
September 2, 2010 after appellant had submitted medical evidence supporting a change in her
work-related condition and after she had filed a recurrence claim. The Board notes that, while the
order portion of the January 12, 2016 decision indicates that the decision dated “October 23, 2013
is remanded,” no remand instructions were given to OWCP regarding the September 2, 2010
LWEC determination. Given that the Board clearly determined that the September 2, 2010 LWEC
determination was erroneous, this LWEC determination is no longer in place.
The Board’s January 12, 2016 decision also set aside OWCP’s August 16, 2013 decision
and remanded the case to OWCP with instructions for further development of the evidence. The
Board found that OWCP made no specific findings in its August 16, 2013 decision regarding the
alleged employment factors, i.e., appellant’s interactions with the individual at the Martville Post
Office, and failed to provide a reason why they would not be considered compensable employment
factors.7 The Board directed OWCP, on remand, to make adequate findings of facts regarding this
matter, to be followed by the issuance of a de novo decision.
By decision dated April 10, 2018, OWCP determined, in OWCP File No. xxxxxx169, that
the formal September 2, 2010 LWEC determination should be considered modified to reflect that
it was issued in error, in accordance with the determination of the Board in its January 12, 2016
decision. It also found that, pursuant to its procedures, appellant’s filing of a claim for a recurrence
of disability “was not possible” given that her prior claim had been accepted for an emotional
condition. The Board indicated that, in emotional condition cases, a new claim should always be
filed.
By decision dated September 11, 2018, OWCP denied appellant’s occupational disease
claim because she had not established any compensable employment factors. In a brief discussion
in the analysis section of the decision, it indicated that she had not proven that the individual she

6

By order dated June 25, 2013, the Board directed OWCP to administratively combine appellant’s claims under
OWCP File Nos. xxxxxx674 and xxxxxx169. On August 16, 2013 OWCP administratively combined the files,
designating OWCP File No. xxxxxx169 as the master file.
7

The Board noted that there was no discussion as to whether appellant’s allegations were supported by the evidence
of record or whether the allegations were outside the scope of coverage. The Board further noted that OWCP did not
consider evidence from Dr. Miller, as well as other statements, which were relevant to the issue of whether appellant
established a compensable employment factor.

3

encountered at the Martville Post Office was a nephew of the man who had previously sexually
abused her or that she was “caused harm” by him.
The Board, having duly considered the matter, further concludes that this case is not in
posture for decision.
Appellant filed two claims, one for a recurrence of disability and one for a new
occupational disease, which included a claim for ongoing total disability caused by her PTSD, an
accepted condition in OWCP File No. xxxxxx169.
Preliminarily, the Board finds that it was erroneous for OWCP to find in the context of the
present case that, given that appellant’s claim has been accepted for an emotional condition, her
filing of a claim for a recurrence of disability was improper.
A recurrence of disability can be established when an inability to work has been shown
after an employee has returned to work, caused by a spontaneous change in a medical condition
which resulted from a previous injury or illness without an intervening injury, or new exposure to
the work environment that caused the illness.8 The FECA procedure manual provides additional
guidance as to when a notice of recurrence should be filed. OWCP’s procedures provide, in
relevant part, that a recurrence of disability does not include a work stoppage caused by “[a]
condition which results from a new injury, even if it involves the same area of the body previously
injured, or by renewed exposure to the causative agent of a previously suffered occupational
disease.”9 If a new work-related injury or exposure occurs, a Form CA-1 or CA-2 should be
completed accordingly.10 The FECA procedure manual further provides:
“[I]n some occupational disease cases where the diagnosis remains the same but
disability increases due to additional exposure to the same work factors, the
claimant may submit Form CA-2a rather than filing a new claim. For instance, a
claimant with carpal tunnel syndrome who has returned to work but whose
repetitive work activities result in the need for surgery, is not required to file a new
claim.
“Note, however, that in emotional stress and hearing loss cases, a new claim should
always be filed.”11
The Board has recognized PTSD as a compensable consequential injury under
circumstances where a certain triggering event has been medically demonstrated to have caused a

8

20 C.F.R. § 10.5(x).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3c(5) (June 2013).

10

Id.

11

Id.

4

reawakening or exacerbation of existing PTSD systems.12 OWCP has not adjudicated whether
appellant has sustained a consequential injury through an exacerbation of her accepted PTSD.
The Board had held that in cases involving a diagnosis of PTSD, the provisions of
Chapter 2.1500.3c(5) the procedure manual will not always be applicable.13 As the Board has
recognized PTSD as a potential consequential injury, under circumstances where a certain
triggering event has been medically demonstrated to have caused a “reawakening or exacerbation”
of PTSD, it becomes necessary to remand the case for adjudication of whether appellant sustained
a consequential injury due to the accepted PTSD condition, and whether such an injury caused
disability on and after October 5, 2002.
The Board also finds that, in connection with the denial of appellant’s claim for a new
occupational disease, OWCP erroneously found that there were no accepted employment factors.
As previously noted, OWCP has accepted under OWCP File No. xxxxxx169 that appellant
sustained PTSD because a customer who had molested her and threatened to kill her as a child was
a daily patron at the Memphis, New York, location of the employing establishment and she had to
interact with him in her capacity as a window clerk. Because appellant has implicated this
previously accepted employment factor as part of her claim for a new occupational disease, it
therefore is also an accepted employment factor of this new claim.
Moreover, the Board finds that OWCP has failed to make adequate findings of facts and
statements of reasons in its decisions regarding appellant’s consolidated consequential injury,
recurrence of disability, and new occupational disease claims. For example, OWCP did not
adequately explain why appellant’s claimed exposures in 2001 and 2002 to the individual at the
Martville Post Office would not constitute a “triggering event” or “reawakening or exacerbation”
of her previously accepted PTSD, thereby causing a consequential injury, or why it would not be
a compensable employment factor with respect her new occupational disease claim. Section
8124(a) of FECA provides that OWCP shall determine and make findings of fact and make an
award for or against payment of compensation.14 Section 10.126 of Title 20 of the Code of Federal
Regulations provides that a decision shall contain findings of fact and a statement of reasons. The
Board has held that the reasoning behind OWCP’s evaluation should be clear enough for the reader
to understand the precise defect of the claim and the kind of evidence which would overcome it.15
The Board will therefore set aside OWCP’s April 10 and September 11, 2018 decisions
which form the basis of the present appeals, and remand the case to OWCP for further
development.

12

See P.H., Docket No. 15-0482 (issued August 4, 2015).

13

See B.I., Docket No. 18-0253 (issued August 2, 2018).

14

5 U.S.C. § 8124(a).

15

L.M., Docket No. 13-2017 (issued February 21, 2014); D.E., Docket No. 13-1327 (issued January 8, 2014); L.C.,
Docket No. 12-0978 (issued October 26, 2012); Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances
Chapter 2.1400.5 (February 2013) (all decisions should contain findings of fact sufficient to identify the benefit being
denied and the reason for the disallowance).

5

On remand OWCP shall evaluate the factual and medical evidence to determine, in one
merit decision whether: 1) appellant sustained, by October 5, 2002, a consequential injury
resulting from her accepted employment-related PTSD condition; 2) appellant sustained a
recurrence of disability of her accepted PTSD condition; and/or 3) appellant sustained a new
occupational disease causally related to her accepted employment factor of exposures in 2001 and
2002 to an individual at work.
OWCP shall thereafter determine appellant’s entitlement, if any, to wage-loss
compensation. Following such further development as deemed necessary, OWCP shall issue a de
novo decision, with adequate findings of fact and a statement of reasons, consistent with this order
of the Board. Accordingly,
IT IS HEREBY ORDERED THAT the September 11 and April 10, 2018 decisions of
the Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: August 27, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Albany, NY, Employer
__________________________________________

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

Docket No. 18-1309
Issued: April 16, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 18, 2018 appellant filed a timely appeal from February 7 and June 5, 2018 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to his accepted November 16, 2017 employment incident.
FACTUAL HISTORY
On November 20, 2017 appellant, then a 36-year-old medical support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on November 16, 2017 he suffered stress-related
1

5 U.S.C. § 8101 et seq.

loss of circulation in his lower left extremity, which caused him to lose his coordination and
balance, while in the performance of duty. He explained that he fell and sprained his left ankle
and suffered a minor contusion on the back of his head. On the reverse side of the form, the
employing establishment checked the box marked “no” in response to whether the employee was
in the performance of duty at the time of the incident and added that his injury was “due to another
medical condition outside facility control.” Appellant stopped work on November 17, 2017 and
returned on November 24, 2017.
In a November 16, 2017 triage note, Dr. Gene R. Pellerin, Board-certified in emergency
medicine, noted that appellant had chief complaints of left ankle pain. He related that appellant
indicated that he may have twisted his ankle when he fell. In a separate note, Dr. Pellerin explained
that appellant was treated on an emergency basis only for near syncope (near fainting).
In a separate emergency room note also dated November 16, 2017, Dr. Pasquala Reyes, a
Board-certified family practitioner, diagnosed near syncope and ankle paresthesia. She indicated
that appellant presented with a syncopal episode during a meeting at work. Dr. Reyes related that
appellant explained that he indicated that he was standing close to the wall, “felt a paresthesias of
his left ankle, and went to reposition his leg and he rolled his ankle and fell up against wall.” She
advised that appellant noted that he fell mostly on his buttock and then slightly hit his head towards
the back. Additionally, appellant indicated that he had a little bump on his head, but denied any
significant headaches, dizziness, or blurred vision. Dr. Reyes also advised that appellant denied
neck pain and indicated that he had mild discomfort in the left ankle. She noted that appellant was
on chronic anti-depressant medication and had “increased stressors lately.” In a November 16,
2017 discharge note, Dr. Reyes diagnosed an ankle sprain and provided care instructions.
In November 20, 2017 treatment notes, Dr. Pellerin noted that appellant presented for a
near syncope event and left ankle sprain.
OWCP also received a November 20, 2017 disability slip from a nurse who placed
appellant off work until he was cleared by his physician.
On November 22, 2017 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16) authorizing treatment with Dr. Mariam Roth, a
Board-certified internist. On that same day Dr. Roth indicated that appellant was seen for status
post near syncope event and left ankle sprain. She checked the box marked “no” in response to
whether appellant had a prior history or preexisting condition and checked the box marked “yes”
in response to whether she believed the condition was caused or aggravated by the employment
activity. Dr. Roth noted that appellant indicated that he was “standing at meeting for 30 min[utes]
and suddenly leg locked up and he fell back.”
In a November 22, 2017 return to work form, Dr. Roth diagnosed left ankle sprain and
recommended a return to work on November 24, 2017.
In a January 4, 2018 development letter, OWCP explained that, while appellant’s claim
was filed as a traumatic injury, since he alleged that his condition was stress related, it had been
converted to a claim for an occupational disease. It explained that additional evidence was needed
to establish his claim and requested that he submit additional medical and factual evidence and

2

complete a questionnaire describing in detail the employment-related conditions or incidents he
believed contributed to his illness. A development letter of even date was sent to the employing
establishment asking for factual information related to the claim along with investigation notes
and a position description. It afforded both appellant and the employing establishment 30 days to
submit the requested information.
In a January 10, 2018 statement in response to OWCP’s request, appellant alleged that his
supervisor was pressuring him and his coworkers on the date of the injury during remarks about
his job performance. He also indicated his source of stress was a one-on-one meeting about his
performance and that his fall was due to stress-related tightening of his body. Appellant denied
having a history of fainting spells. He explained that his head hit the wall when he fell. Appellant
explained that his leg gave out due to a loss of circulation from prolonged standing in an
unnecessary meeting. Regarding outside stress, he noted only normal every day stress. Appellant
also indicated that he had been treated for depression, anxiety, and bulimia for 18 years. Regarding
a nonwork-related condition, he declined to discuss his condition other than to indicate that he was
a disabled Veteran and cited privacy concerns.
The employing establishment did not respond to the development questions, but on
January 10, 2018 it submitted a copy of appellant’s position description.
By decision dated February 7, 2018, OWCP denied appellant’s claim as he had not
provided medical or factual evidence to substantiate that the alleged employment incident occurred
as alleged, or that he sustained a medical or emotional condition causally related to the alleged
incident while in the performance of duty.
In a February 16, 2018 letter, appellant indicated that he believed that OWCP’s decision
was in error because he did not have a preexisting condition. He explained that he fell due to a
loss of circulation in his left leg, which was a result of stress due to comments made from his
supervisor that were “accusatory and attacking in nature.” Appellant explained that his fall
occurred while in the performance of his job duties, as his department was in a department wide
meeting at the time, discussing aspects of their job functions. He indicated that appropriate
accommodations were not made and there was inadequate space and seating for all the employees.
As a result, appellant was required to “huddle” in a cramped office where there was not enough
space for everyone to be seated. He noted that this practice was recently changed after his fall.
Appellant also indicated that he was submitting additional medical documentation and witness
statements.
On February 27, 2018 appellant requested a review of the written record before an OWCP
hearing representative.
In a January 16, 2018 statement, S.D., a coworker, confirmed that she was behind appellant
during a “morning huddle” when they had to stand because all of the available seats were taken.
She noted that, after standing for some time, “very sudden and with no warning” appellant started
to lean to the left and hit the door to the left of him and went down, hitting his left knee on the
floor. Another coworker, J.O., confirmed that she heard appellant fall during the meeting.

3

A November 16, 2017 magnetic resonance imaging (MRI) scan of the left knee, read by
Dr. Terence Gibboney, a Board-certified diagnostic radiologist, revealed a partial tear of the
anterior cruciate ligament.
By decision dated June 5, 2018, OWCP’s hearing representative modified the prior
decision to find that performance of duty had been established, but denied the claim as the evidence
of record was insufficient to establish causal relationship. He explained that causal relationship
was a medical issue and there was no medical evidence in the record which established a nexus
between the event and the diagnosed condition.
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,2 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.3 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To determine if an employee sustained a traumatic injury in the performance of duty, OWCP
begins with an analysis of whether fact of injury has been established.5 Generally, fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
An employee may establish that an injury occurred in the performance of duty as alleged, but fail
to establish that the disability or specific condition for which compensation is being claimed is
causally related to the accepted incident.8
To establish causal relationship between the claimed condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized

2
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4

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).
5

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

6

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

7

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

8

D.D., Docket No. 18-0648 (issued October 15, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

4

medical opinion evidence supporting such causal relationship.9 Causal relationship is a medical
issue, and the medical evidence required to establish causal relationship is rationalized medical
evidence.10 The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.11 Neither the mere fact that a disease
or condition manifests itself during a period of employment, nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted November 16, 2017 employment incident.
OWCP received emergency room treatment notes dated November 16 and 17, 2017 from
Dr. Pellerin, who noted that appellant had complaints of left ankle pain and may have twisted his
ankle when he fell. Dr. Pellerin indicated that appellant was treated on an emergency basis for a
near syncope and fainting. In a November 20, 2017 treatment note, he diagnosed left ankle sprain.
Likewise, in separate emergency room notes also dated November 16, 2017, Dr. Reyes diagnosed
near syncope and ankle paresthesia. She indicated that appellant presented with a syncopal episode
at a meeting at work and related that appellant indicated that he “felt a paresthesias of his left ankle
and went to reposition his leg and he rolled his ankle and fell up against wall.” She diagnosed an
ankle sprain. While the physicians provided diagnoses, they did not offer an opinion on causal
relationship. 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.13
These reports, therefore, are insufficient to establish appellant’s claim.
In a November 22, 2017 authorization for examination and/or treatment (Form CA-16),
Dr. Roth noted that appellant was seen for near syncope event and left ankle sprain. She checked
the box marked “yes” in response to whether she believed the condition was caused or aggravated
by the employment activity. The Board has held that an opinion consisting of a checkmark
notation supporting causation, without supporting medical rationale, is of limited probative value
and insufficient to establish causal relationship.14

9

J.L., Docket No. 18-0698 (issued November 5, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
465 (2005).
10

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

12

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

13

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

14

J.R., Docket No. 18-1609 (issued March 7, 2019); M.D., Docket No. 18-1267 (issued February 12, 2019).

5

OWCP also received a November 16, 2017 MRI scan report. However, diagnostic studies
are of limited probative value as they do not address whether the employment incident caused the
diagnosed conditions.15
The record contains a November 20, 2017 disability slip from a nurse. Under FECA, the
term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by the
applicable state law.16 Consequently, the nurse’s notes are not considered medical evidence and
are of no probative medical value.17
As appellant has not submitted reasoned medical evidence explaining how a diagnosed
medical condition is causally related to his accepted employment incident, he has not met his
burden of proof.18
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 and 20 C.F.R.
§§ 10.605 through 10.607.19
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted November 16, 2017 employment incident.

15

C.M., Docket No. 18-0146 (issued August 16, 2018); see also J.S., Docket No. 17-1039 (issued October 6, 2017).

16

5 U.S.C. § 8101(2). See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).
17

See E.M., Docket No. 18-1599 (issued March 7, 2019); M.F., Docket No. 18-0330 (issued September 14, 2018).

18

See A.J., Docket No. 18-1116 (issued January 23, 2019); E.C., Docket No. 17-0902 (issued March 9, 2018).

19

The Board notes that it appears that the employing establishment issued appellant a signed authorization for
examination and/or treatment (Form CA-16) authorizing treatment with Dr. Roth. The Board has held that where an
employing establishment properly executes a CA-16 form, which authorizes medical treatment as a result of an
employee’s claim for an employment-related injury, it creates a contractual obligation which does not involve the
employee directly to pay the cost of the examination or treatment regardless of the action taken on the claim. See 20
C.F.R. §§ 10.300, 10.304; R.W., Docket No. 18-0894 (issued December 4, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the June 5 and February 7, 2018 decision of the
Office of Workers’ Compensation Programs is affirmed.
Issued: April 16, 2019
Washington, DC

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

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

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

7


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

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

Docket No. 08-1606
Issued: December 3, 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 May 17, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated January 7, 2008 finding that he had not established an injury due
to his federal employment. He also appealed a May 8, 2008 nonmerit decision. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over both the merit and nonmerit
issues of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof in establishing that he
sustained a stress fracture of his left foot on June 30, 2007; and (2) whether the Office properly
refused to reopen appellant’s case for further consideration of the merits of his claim pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 3, 2007 appellant, then a 42-year-old electronic technician, filed a traumatic
injury claim alleging on June 30, 2007 he sustained a stress fracture of his left foot in the

performance of duty. In a narrative statement, he reported that his foot began to hurt on June 30,
2007 but that he continued to work despite the pain for the next three days. In a statement dated
July 5, 2007, Robert Steward, a coworker, noted on June 30, 2007 that appellant informed him
that his foot became swollen and had been painful for several days. Dr. Mark J. Ray, a
podiatrist, completed a form report on July 10, 2007 and diagnosed metatarsal stress fractures on
the left. He indicated that appellant’s condition was due to prolonged standing and walking at
work.
In a letter dated August 17, 2007, the Office requested additional medical and factual
evidence in support of appellant’s claim. It allowed 30 days for a response.
By decision dated September 27, 2007, the Office denied appellant’s claim on the
grounds that he failed to submit the necessary medical opinion evidence to establish a causal
relationship between his diagnosed stress fractures and his employment.
Appellant requested reconsideration on October 5, 2007. He submitted a report dated
September 18, 2007 from Dr. Ray, noting that he sought treatment on July 3, 2007 for
ulcerations of his toes. Dr. Ray opined that appellant’s diabetic neuropathy raised his pain
tolerance. Due to appellant’s prolonged working, he sustained stress fractures in one of his
metatarsals and the other metatarsals subsequently fractured. Dr. Ray stated that appellant’s
second, third and fourth metatarsals seemed likely to have been fractured before his fifth
metatarsal as those bones were further along in the healing process.
By decision dated January 7, 2008, the Office denied modification of appellant’s prior
decision finding that the medical evidence did not support his claim for a traumatic injury on
June 30, 2007.
Appellant requested reconsideration on March 1, 2008 and resubmitted Dr. Ray’s
September 18, 2007 report.
By decision dated May 5, 2008, the Office declined to reopen appellant’s claim for
reconsideration of the merits on the grounds that he failed to submit relevant new evidence or
argument.
LEGAL PRECEDENT -- ISSUE 1
The Office’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to
time and place of occurrence and member or function of the body affected.1 In order to
determine whether an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred. The second component is whether the employment
1

20 C.F.R. § 10.5(ee).

2

incident caused a personal injury. Causal relationship is a medical question that can generally be
resolved only by rationalized medical opinion evidence.2 As part of an employee’s burden of
proof, he or she must present rationalized medical opinion evidence, based on a complete factual
and medical background, establishing causal relation. The weight of the medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.3
ANALYSIS -- ISSUE 1
The Office accepted that appellant walked in the performance of duty on June 30, 2007.
Appellant attributed this employment activity as a cause of his foot pain on that date. However,
the Office found that he did not submit sufficient medical evidence to establish that walking on
June 30, 2007 was the cause of his multiple stress fractures to the left foot.
Dr. Ray, a podiatrist, completed a report on July 10, 2007 and diagnosed multiple
metatarsal stress fractures of the left foot. He indicated that appellant’s condition was due to
prolonged standing and walking at work. However, Dr. Ray did not explain what factors on
which he based his stated conclusion. On September 18, 2007 he diagnosed multiple stress
fractures of appellant’s metatarsal of his left foot. Dr. Ray and stated that he believed that
appellant’s preexisting diabetic neuropathy had raised his pain tolerance to such an extent that
appellant was unaware that he had sustained stress fractures and continued to walk and stand for
prolonged periods result in additional fractures. The medical evidence does not support
appellant’s claim for a traumatic injury on June 30, 2007. Dr. Ray’s reports suggest that
appellant’s stress fractures resulted from prolonged walking and standing for a period greater
than a single work shift. He noted the preexisting diabetic neuropathy but did not address how
appellant’s work on June 30, 2007 would contribute to the diagnosed fractures. The medical
evidence does not support appellant’s claim. The Office properly denied appellant’s claim for a
traumatic injury arising on June 30, 2007.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,4 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.5 When a claimant fails to meet one of the above standards, the Office

2

Steven S. Saleh, 55 ECAB 169, 171-72 (2003).

3

James Mack, 43 ECAB 321, 328-29 (1991).

4

5 U.S.C. §§ 8101-8193, § 8128(a).

5

20 C.F.R. § 10.606(b)(2).

3

will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS -- ISSUE 2
Appellant requested reconsideration on March 1, 2008 and resubmitted Dr. Ray’s
September 18, 2007 report. As this evidence was already considered by the Office in reaching
the January 7, 2008 decision, this is not relevant and pertinent new evidence not previously
considered by the Office and is not sufficient to require the Office to reopen appellant’s claim for
consideration of the merits under section 8128(a) of the Act.
CONCLUSION
The Board finds that appellant has not submitted rationalized medical opinion evidence to
establish that the stress fractures of his left foot occurred as the result of a traumatic injury on
June 30, 2007. The Board further finds that the Office properly declined to reopen appellant’s
claim for consideration of the merits on May 5, 2008 on the grounds that his request for
reconsideration was not accompanied by relevant and pertinent new evidence.
ORDER
IT IS HEREBY ORDERED THAT the May 8 and January 7, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 3, 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
6

Id. at § 10.608(b).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Topanga Canyon, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-1066
Issued: December 12, 2011

Case Submitted on the Record

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

On March 24, 2011 appellant filed an application for review of a January 31, 2011
decision of the Office of Workers’ Compensation Programs (OWCP) denying modification of a
September 8, 2010 decision rejecting his occupational disease claim for neck strain and stress.
OWCP assigned File No. xxxxxx082 to this claim. Both decisions referenced another claim filed
by appellant for a back injury sustained on May 1, 2008. The evidence of record indicates that
this other claim, to which OWCP assigned File No. xxxxxx121, was accepted for lumbosacral
sprain. File No. xxxxxx121 is not presently before the Board.
Having duly reviewed the matter, the Board finds that the case is not in posture for a
decision. Under its procedures, OWCP has determined that cases should be combined when
correct adjudication of the issues depends on frequent cross-reference between files.1 In the
instant claim, File No. xxxxxx082, appellant alleged that he sustained neck strain and stress as a
result of the accepted May 1, 2008 employment incident. He also asserted that Files Nos.
xxxxxx121 and xxxxxx082 should be merged since both claims arose out of a May 1, 2008

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(September 2011).

incident.2 Moreover, OWCP acknowledged in a December 31, 2009 letter to appellant, “It is not
clear [from] your statement how your claimed conditions [differ] from the condition accepted
under claim number xxxxxx121 with date of injury May 1, 2008.” Its procedures provide for
doubling of a claim when a new injury case is reported for an employee who previously filed an
injury claim for a similar condition or the same part of the body and also where two or more
separate injuries (not recurrences) have occurred on the same date.3
Therefore, for a full and fair adjudication, both of appellant’s claims pertaining to injuries
or illness stemming from incidents occurring in early May 2008 should be doubled pursuant to
OWCP’s procedures. The case will be remanded to OWCP to combine File Nos. xxxxxx082 and
xxxxxx121. Following this and such other development as deemed necessary, OWCP shall issue
an appropriate decision on appellant’s claim for compensation.
IT IS HEREBY ORDERED THAT the January 31, 2011 decision be set aside and the
case remanded to the Office of Workers’ Compensation Programs for further proceedings
consistent with this order of the Board.
Issued: December 12, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

The record contains a May 15, 2008 traumatic injury claim identifying the nature of the injury sustained on
May 1, 2008 as low back, neck and shoulder. A December 11, 2009 occupational disease claim identifies the nature
of the illness as neck strain and stress and indicates awareness of the condition since May 9, 2008.
3

Supra note 1 at Chapter 2.400.8(c)(1)-(2).

2


United States Department of Labor
Employees’ Compensation Appeals Board

________________________________________
J.R., Appellant
and
DEPARTMENT OF AGRICULTURE,
Minneapolis, MN, Employer
_________________________________________

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

Docket No. 12-279
Issued: August 7, 2012

Case Submitted on the Record

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 14, 2011 appellant filed a timely appeal from May 18, 2011 decisions of
the Office of Workers’ Compensation Programs (OWCP) which denied her request for
reconsideration without conducting a merit review. Because more than one year has elapsed
between the most recent merit decision dated August 20, 2008 and the filing of this appeal, the
Board lacks jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3.1
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
1

For final adverse 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 December 19, 2006 appellant, a 46-year-old poultry inspector, filed a traumatic injury
claim alleging that, on December 18, 2006, she was on a poultry stand, which popped off without
warning and caused her to fall in the performance of duty. She indicated that she sustained
injuries to her lower back. Appellant did not initially stop work. On February 23, 2007 OWCP
adjudicated this injury under claim number xxxxxx632 and accepted the claim for sprain of back
and lumbar region.2
On September 5, 2007 appellant filed a claim for a schedule award. By decision dated
September 25, 2007, OWCP denied appellant’s claim for a schedule award. It found that she
was not eligible for a schedule award as she had not reached maximum medical improvement.
On January 3, 2008 appellant requested reconsideration and submitted additional medical
evidence. By decision dated August 20, 2008, OWCP denied modification of its September 25,
2007 decision denying her claim for a schedule award.
On November 6, 2008 appellant requested reconsideration and submitted additional
evidence. In a November 19, 2008 decision, OWCP denied her request for reconsideration of the
August 20, 2008 decision without a review of the merits on the grounds that the evidence was
duplicative and did not address permanent impairment due to the accepted lumbar conditions and
was insufficient to warrant review of its prior decision.
On February 16, 2011 appellant requested reconsideration in claim number xxxxxx632.
She advised OWCP that she was submitting updated medical evidence in support of her claim
but no evidence accompanied the request.3 Appellant also asserted that she had additional back
conditions that caused pain and radiculopathy.
In a decision dated May 18, 2011, OWCP denied appellant’s request for reconsideration
of the November 19, 2008 decision for the reason that it was not timely filed and failed to
present clear evidence of error.

2

Appellant also filed a prior claim, number xxxxxx261, for an injury sustained on January 19, 2005, when a
swivel chair broke causing her to fall. OWCP accepted the claim for sprain/strain of the neck, sprain of the back,
sprain/strain of the thoracic region and unspecified thoracic lumbosacral neuritis or radiculitis. Appellant’s two
claims were administratively combined. In claim number xxxxxx261, OWCP subsequently referred appellant for a
second opinion regarding permanent impairment, in which the specialist found that appellant had two percent
impairment of the right leg due to L5 radiculopathy. In a March 26, 2009 decision, OWCP granted appellant a
schedule award for two percent right leg impairment. Appellant subsequently requested reconsideration of the
decision several times and OWCP issued decisions pursuant to these requests. On the present appeal, appellant
indicates that she seeks review of the May 18, 2011 decision issued in claim number xxxxxx632.
3

Appellant also requested reconsideration in claim number xxxxxx261 after which OWCP issued a May 18, 2011
decision. OWCP denied merit review of the claim. On appeal, appellant did not indicate that she sought review of
matters adjudicated under xxxxxx261. See id.

2

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”4
OWCP’s imposition of a one-year time limitation within which to file an application for
review as part of the requirements for obtaining a merit review does not constitute an abuse of
discretionary authority granted OWCP under section 8128(a).5 This section does not mandate
that OWCP review a final decision simply upon request by a claimant.
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a). Thus, section 10.607(a) of the implementing regulations
provide that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought.6
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error on the part of OWCP in its most
recent merit decision. The reconsideration request must establish that OWCP’s decision was, on
its face, erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that 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 establish clear
evidence of error. It is not enough merely to 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 of record and
whether the new evidence demonstrates clear error on the part of OWCP.8 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
4

5 U.S.C. § 8128(a).

5

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

6

20 C.F.R. § 10.607(a).

7

Id. at § 10.607(b).

8

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

3

a substantial question as to the correctness of OWCP’s decision. The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.9
ANALYSIS -- ISSUE 2
In its May 18, 2011 decision, OWCP properly determined that appellant failed to file a
timely application for review. It rendered its most recent merit decision in the claim for which
appellant sought reconsideration on August 20, 2008. Appellant requested reconsideration on
February 16, 2011, more than one year after the August 20, 2008 merit decision and her request
was, therefore, untimely.
In accordance with internal guidelines and with Board precedent, OWCP properly
proceeded to perform a limited review to determine whether appellant’s application for review
showed clear evidence of error, which would warrant reopening appellant’s case for merit review
under section 8128(a) of FECA, notwithstanding the untimeliness of her application. OWCP
reviewed the evidence submitted by appellant in support of her application for review, but found
that it did not clearly show that OWCP’s most recent merit decision was in error.
The Board finds that appellant did not submit evidence in support of her application for
review to demonstrate clear evidence of error. With her February 16, 2011 request for
reconsideration, she indicated that she was submitting medical evidence but no such evidence
accompanied the request. Appellant also asserted that she had additional back conditions that
caused pain and radiculopathy. The Board finds that this evidence is insufficient to shift the
weight of the evidence in favor of her claim or raise a substantial question that OWCP erred.
Appellant’s assertions on reconsideration do not raise a substantial question as to the correctness
of OWCP’s decision. Therefore, the Board finds that she has not presented clear evidence of
error.
On appeal, appellant indicated that her reconsideration request was timely. As explained,
the February 16, 2011 reconsideration request in file number xxxxxx632 was not timely filed.10
The Board notes that the request for reconsideration of the August 20, 2008 decision was
received on February 22, 2011 and was therefore untimely. Furthermore, as noted in the first
issue, OWCP addressed her other request of the same date, as she specified the date of the
decision for which she was appealing.
The Board also notes that appellant may request a schedule award or increased schedule
award at any time based on evidence of a new exposure or medical evidence showing

9

Id.

10

As indicated, supra notes 2-3, this decision does not affect adjudication of matters under appellant’s other
claim, number xxxxxx261.

4

progression of an employment-related condition resulting in permanent impairment or increased
impairment.11
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the May 18, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 7, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

11

The Board notes that subsequent to the OWCP’s May 18, 2011 decision, appellant submitted additional
evidence. The Board has no jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c);
James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

5