United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE NAVY,
CHARLESTON NAVAL SHIPYARD,
North Charleston, SC, Employer
__________________________________________

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Appearances:
Lawrence C. Kobrovsky, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0087
Issued: August 24, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 19, 2015 appellant, through counsel, filed a timely appeal of a September 3,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish modification of a
November 22, 2002 loss of wage-earning capacity determination.
On appeal appellant contends that his accepted skin condition has worsened without any
intervening cause or break in the chain of causation. He argues that he is totally disabled from
working due to his accepted employment condition.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated September 3, 2002,
the Board reversed an OWCP decision dated September 5, 2000 concerning a loss of wageearning capacity determination.3 In reaching its determination, the Board found that OWCP had
failed to consider all the medical evidence from appellant’s treating psychologists and failed to
provide sufficient rationale regarding the suitability of the constructed position. Thus, the Board
found OWCP had improperly reduced appellant’s wage-loss compensation based on its finding
that he was capable of performing the constructed position of credit clerk. The facts and
circumstances as referred to in the prior Board decision are incorporated herein by reference.
On December 10, 1986 appellant, then a 33-year-old sandblaster, filed an occupational
disease claim (Form CA-2) alleging bilateral hand contact dermatitis. He noted that on April 2,
1985 he first obtained medical care for his condition, but did not realize until September 17,
1986 that the condition was due to working with paint and paint thinner. He did not initially stop
work. OWCP accepted the claim for contact dermatitis.
The record contains a Notification of Personnel Action (Form SF-50) notifying appellant
that his employment was terminated effective March 14, 1992 due to a reduction-in-force.
Appellant thereafter received wage-loss compensation as of March 14, 1992. He was placed on
the periodic rolls as of April 3, 1994.
In a letter dated September 2, 1999, D.G., payroll coordinator, with the Berkeley County
School District, verified that appellant was employed with the school district as a child care
attendant. Appellant’s employment began on August 9, 1999 with a gross pay for the school
year of 1999 to 2000 of $8,366.74. In a December 8, 2000 letter, J.F., principal, Goose Creek
High School verified that appellant was employed as a classroom assistant at the school since
August 1999.
By decision dated November 22, 2002, OWCP reduced appellant’s wage-loss
compensation effective November 3, 2002 based on its finding that his actual wages as a child
care attendant of $160.94 per week fairly and reasonably represented his wage-earning capacity.
It noted that because he had shown the ability to perform the duties of the position for 60 days or
more, the position was considered suitable to his partially disabled condition. OWCP then
applied the Shadrick formula to calculate appellant’s loss of wage-earning capacity.4 This
3

Docket No. 01-2002 (issued September 3, 2002).

4

Albert C. Shadrick, 5 ECAB 376 (1953).

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calculation showed that, effective November 3, 2002, appellant had a loss of wage-earning
capacity of 30 percent. The payment of wage-loss compensation every four weeks was
$1,143.60.
The record contains yearly reports from 2007 to 2011 by Dr. Pierre Jaffe, a treating
Board-certified dermatologist. In the annual reports for this period, Dr. Jaffe noted that
appellant’s dermatitis condition was under control. On February 8, 2007 he indicated that the
dermatitis was controlled by the job change to teaching and current environment. Dr. Jaffe, in
reports dated February 16, 2009, February 17, 2010, and February 18, 2011, noted that appellant
also suffered from hyperhidrosis (excessive sweating), which was controlled by medication.
In a January 12, 2012 report, Dr. Jaffe noted that appellant was seen for his yearly visit
and that both appellant’s atopic dermatitis and hyperhidrosis were under control with medication.
He completed a work capacity evaluation (Form OWCP-5c) on January 12, 2012 indicating that
appellant was totally disabled for work and noted that he should avoid heat.
Dr. Jaffe, in a June 8, 2012 report, reiterated findings from his January 12, 2012 report.
He noted that appellant’s symptoms and medical condition were controlled by current treatment.
Dr. Jaffe opined that appellant’s condition went back over 27 years and would persist
indefinitely.
A statement of accepted facts dated July 5, 2012 noted that appellant’s claim had been
accepted for allergic contact dermatitis, however, appellant had nonwork-related conditions of
degenerative disc disease, lumbar spinal stenosis, and lumbar spondylosis. Appellant underwent
a minimally invasive lumbar decompression bilaterally at L5-S1 and L4-5 on August 2, 2010.
On August 9, 2012 OWCP referred appellant for a second opinion evaluation with
Dr. Elizabeth Sherertz, a Board-certified dermatologist, for an assessment of his employmentrelated condition. Dr. Sherertz diagnosed contact dermatitis and other eczema due to solvents,
generalized hyperhidrosis, and right foot impetigo. She opined that appellant’s contact
dermatitis had not resolved. Dr. Sherertz further opined that his sweating and itching was
unlikely due to the accepted contact dermatitis, but were more likely attributable to
environmental factors such as airborne irritants, heat, and humidity.
In a February 6, 2014 report, Dr. Jaffe reported that appellant continued to suffer from his
accepted chronic allergic dermatitis. Other diagnoses included hyperhidrosis, chronic exfoliative
dermatitis, mild eczematization, and adjustment disorder with mixed emotions of depression and
preoccupation with his health. Dr. Jaffe opined that appellant’s condition had changed as his
condition was now only partly controlled by medication. He reported that appellant’s pruritus,
continuous itching, and dermatitis had resulted in his skin thickening, hardening, and caused
excoriations, as well as erythema. Dr. Jaffe further noted that appellant became depressed and
anxious as the result of his chronic contact dermatitis. He noted that 50 percent of appellant’s
body was involved. Next, Dr. Jaffe reported that the skin condition was aggravated by heat,
moisture, humidity, airborne irritants, chemicals, working in wet and humid environments, and
sweat, causing pain and discomfort. He concluded that appellant was disabled from working as
the stress of holding a job “appear[ed] to flare his rash” and his excessive sweating required
multiple changes of clothes during the day. Dr. Jaffe also reported that appellant had episodes of

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memory loss and headaches as well as periods of chronic neurodermatitis and tenseness.
Appellant had related that his excessive sweating limited his ability to write, handle a steering
wheel, and walk, due to weakness in his arms, feet, legs and hands. Dr. Jaffe opined that
appellant’s excessive sweating and skin breakouts caused stress and impaired his ability to
perform daily functions.
In a letter dated May 5, 2014, appellant requested modification of the November 22, 2002
loss of wage-earning capacity determination as his condition and disability had materially
worsened. In support of his claim, appellant attached an April 30, 2009 letter to Goose Creek
School in which he resigned his position as child care attendant. He noted that he had resigned
from the position due to the impact his excessive sweating had on his life including an inability
to handle a steering wheel while driving and skin breakouts which caused emotional stress.
By decision dated October 10, 2014, OWCP denied appellant’s request for modification
of the November 22, 2002 loss of wage-earning capacity determination. It found that his current
skin condition had been aggravated by new work factors. OWCP also found that the medical
evidence established that appellant was disabled due to intervening nonwork-related
degenerative lumbar and knee conditions.
Appellant requested an oral hearing before an OWCP hearing representative.
By decision dated September 3, 2015, an OWCP hearing representative affirmed the
October 10, 2014 decision denying modification of the November 22, 2002 loss of wage-earning
capacity determination. He found that appellant’s change in his skin condition had been caused
by the change in his child care attendant duties and was not a basis for modification of the loss of
wage-earning capacity.
LEGAL PRECEDENT
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.5 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6 OWCP’s procedure manual provides that, if a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss.7 In this instance
the claims examiner will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.8

5

D.M., 59 ECAB 59 ECAB 164; Harley Sims, Jr., 56 ECAB 320 (2005).

6

Katherine T. Kreger, 55 ECAB 633 (2004); see Robert H. Merritt, 11 ECAB 64 (1959).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity
Decisions, Chapter 2.1501.2(b) (June 2013). See Mary E. Marshall, 56 ECAB 420 (2005).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity
Decisions, Chapter 2.1501.3 (June 2013). See Harley Sims, Jr., supra note 5.

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Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.9 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.10
The Board has held that a new injury does not constitute a material change in the nature
and extent of the original injury-related condition such that a wage-earning capacity
determination should be modified.11
ANALYSIS
OWCP accepted that appellant sustained contact dermatitis as the result of working with
paint and paint thinner in his job as a sandblaster. It paid him wage-loss compensation beginning
March 14, 1992 due to the termination of his federal employment as the result of a reduction-inforce.
By decision dated November 22, 2002, OWCP reduced appellant’s wage-loss
compensation based on his actual wages as a child care attendant. Appellant requested
modification of the November 22, 2002 loss of wage-earning capacity determination in a May 5,
2014 letter.
The Board finds appellant has not met his burden of proof to modify OWCP’s
November 22, 2002 loss of wage-earning capacity determination. Appellant has not alleged or
otherwise shown that the original loss of wage-earning capacity determination was erroneous.
He worked in the child care attendant position for over three years before OWCP made its loss of
wage-earning capacity decision. The loss of wage-earning capacity decision was properly based
on his actual wages as a child care attendant working for a private employer.12
Appellant also did not establish a material change in the nature and extent of his
employment-related condition. In support of his request for modification, he submitted reports
from Dr. Jaffe including several annual reports covering the period 2007 to 2014. Dr. Jaffe
opined that appellant’s dermatitis was under control in his reports from 2007 to 2011 and in a
June 8, 2012 report. He reported an additional condition of hyperhidrosis in his February 16,
2009 report. It was not until completing a January 12, 2012 OWCP-5c form that Dr. Jaffe
determined that appellant was totally disabled and should avoid heat. In his attached report,
Dr. Jaffe noted the conditions of atopic dermatitis and hyperhidrosis were controlled with
medication. In the February 6, 2014 report, he diagnosed chronic allergic dermatitis,
hyperhidrosis, chronic exfoliative dermatitis, mild eczematization, and adjustment disorder with
mixed emotions of depression and preoccupation with his health. Dr. Jaffe opined that
9

See D.M., supra note 5; Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000);
Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).
10

Id.; Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

11

M.E., Docket No. 07-2306 (issued March 24, 2008).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity, Chapter 2.815.5(d)
(June 2013).

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appellant’s condition had worsened as the condition was only partly controlled by medication
and that appellant’s skin condition had been aggravated by heat, moisture, humidity, airborne
irritants, chemicals, working in wet and humid environments, and sweat. He also opined that
appellant was disabled from working as a result of his excessive sweating, rash flare ups, and
stress. Lastly, Dr. Jaffe noted that as a result of the excessive sweating and skin breakouts
appellant had become stressed and his ability to perform daily functions was impaired.
The reports from Dr. Jaffe are insufficient to establish a material change in appellant’s
accepted condition of contact dermatitis. Dr. Jaffe did not describe a change of the accepted
condition, based upon objective medical findings and rationale, or explain how it had materially
worsened causing appellant to become unable to work as a child care attendant such that the
wage-earning capacity determination should be modified.13 Rather, he attributed a worsening of
appellant’s condition to factors associated with his employment as a child care attendant and
hyperhidrosis, a condition which arose subsequent to the accepted injury and was unrelated to his
prior federal job. In addition, Dr. Jaffe suggests a possible new injury rather than a material
change in the work-related condition that was sustained prior to the November 22, 2002 loss of
wage-earning capacity determination. As noted above, the Board has held that a new injury does
not constitute a material change in the nature and extent of the original injury-related condition
such that a wage-earning capacity determination should be modified.14 Thus, these reports by
Dr. Jaffe are of little probative value on the issue of whether appellant’s employment-related
contact dermatitis had materially changed to support modification of the wage-earning capacity
determination.15
The record also contains an August 20, 2012 report from Dr. Sherertz, a second opinion
Board-certified dermatologist, who opined that appellant’s contact dermatitis had not resolved,
but that his sweating and itching were attributable to environmental factors such as airborne
irritants, heat, and humidity rather than to the accepted contact dermatitis. When OWCP referred
appellant to Dr. Sherertz it was not for the purpose of modification of the loss of wage-earning
capacity determination as the referral predated appellant’s claim for modification. Thus it is not
germane to the issue before the Board.16

13

Where residuals of an accepted employment-related condition prevent the employee from performing regular
duties, physical ailments that preexisted the accepted condition must be taken into consideration. Physical ailments
acquired subsequent to and unrelated to the accepted injury are excluded from any wage-earning determination.
Lee A. Dent, 54 ECAB 704 (2003).
14

M.E., supra note 10.

15

See A.P., Docket No. 08-1822 (issued August 5, 2009) (rationalized medical opinion evidence is medical
evidence based on a complete factual and medical background of reasonable medical certainty and supported by
medical rationale explaining the opinion offered); see also Sue A. Sedgwick, 45 ECAB 211 (1993) (medical
evidence must show a material change in the nature and extent of the employment-related condition).
16

Id.

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As the medical evidence submitted by appellant fails to adequately describe a material
worsening of his accepted work-related contact dermatitis, the Board finds that it is insufficient
to establish that his loss of wage-earning capacity determination should be modified.17
On appeal appellant contends that his accepted employment condition has worsened
without any intervening cause and, thus, modification of the November 22, 2002 loss of wageearning capacity determination is warranted. As discussed above, the medical evidence of record
does not establish that appellant’s accepted contact dermatitis had worsened such that he was
disabled from performing the position of child care attendant. While medical reports from both
Dr. Jaffe and Dr. Sherertz support that appellant continues to suffer from contact dermatitis, they
do not establish that he was disabled from performing the position of child care attendant due to
the accepted condition.
Appellant may request modification of the loss of wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that
modification of the November 22, 2002 loss of wage-earning capacity decision was warranted.

17

P.C., 58 ECAB 504 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 3, 2015 is affirmed.
Issued: August 24, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.E., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
NATIONAL PROTECTION & PROGRAMS
DIRECTORATE, Arlington, VA, Employer
__________________________________________

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

Docket No. 19-1020
Issued: November 5, 2019

Case Submitted on the Record

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

JURISDICTION
On April 9, 2019 appellant filed a timely appeal from a February 27, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated April 6, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s February 7, 2019 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 5, 2012 appellant, then a 53-year-old management analyst, filed a traumatic injury
claim (Form CA-1) alleging that on June 1, 2012 she broke a bone in her right foot and hurt her
lower back and left knee when she slipped and fell down while in the performance of duty. She
reportedly tripped on a board that was covered while walking to the parking garage. Appellant
stopped work on June 4, 2012 and returned to full duty on July 23, 2012.
In a June 5, 2012 report, Dr. Jorge A. Mondino, an orthopedic surgeon, described the
June 1, 2012 employment incident and provided examination findings. He noted swelling of the
right ankle and tenderness on palpation and tenderness over the superolateral aspect of appellant’s
left knee. Dr. Mondino reported that examination of appellant’s lumbar spine showed tenderness,
mostly on the right paraspinal area and negative straight leg raise testing. He diagnosed acute
lumbar strain, left knee sprain, and right ankle sprain.
OWCP accepted appellant’s claim for lumbar sprain, left knee lateral ligament sprain, and
right ankle sprain.
On October 20, 2016 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record to Dr. Donald B. Haskins, a Board-certified orthopedic surgeon,
for a second-opinion evaluation. In a November 22, 2016 report, Dr. Haskins indicated that he
had reviewed the SOAF and discussed her history of injury. He noted that appellant’s claim was
accepted for lumbar sprain, left knee lateral ligament sprain, and right ankle sprain. Upon
examination of appellant’s lumbar spine, Dr. Haskins reported her complaints of pain in the left
buttock area. He observed normal gait and negative straight leg raise testing. Examination of
appellant’s left knee revealed full range of motion without effusion. Dr. Haskins also reported
tenderness about the tarosmetatarsal articulation and mild supination of the right foot. He
diagnosed resolved lumbar sprain, resolved ankle sprain, resolved left knee sprain, degenerative
disc disease of the lumbar spine, and mid-foot pain. Dr. Haskins noted that there were no
significant abnormal objective findings and indicated that the conditions of degenerative disc
disease of the lumbar spine and foot arthritis were not related to the June 1, 2012 employment
injury. He concluded that appellant no longer required medical treatment for her accepted lumbar
sprain, left knee sprain, and right ankle sprain conditions and that she was capable of working full
time.
On December 22, 2016 OWCP proposed to terminate appellant’s medical benefits. It
found that the weight of the medical evidence rested with the opinion of Dr. Haskins, the secondopinion examiner, who opined in a November 22, 2016 report that appellant no longer had
residuals of her accepted June 1, 2012 employment injury. OWCP provided appellant 30 days to
submit additional evidence and/or argument if she disagreed with the proposed termination.
OWCP received additional medical evidence. An August 27, 2016 report of a lumbar spine
MRI scan showed intervertebral disc degeneration and facet osteoarthritis with mild spinal stenosis
at L4-5.
In reports dated October 27 and December 19, 2016, Dr. Teresa M. Kerge, a Boardcertified physiatrist, recounted appellant’s complaints of low back pain radiating down her lower

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extremities following a June 1, 2012 employment injury. She reported examination findings of
tenderness to palpation of the lower lumbar facet joints, slight tenderness to palpation of the lower
lumbar spine, tenderness to palpation of the bilateral greater trochanteric bursae, and tenderness to
palpation of the bilateral sacroiliac (SI) joints. Dr. Kerge diagnosed low back, right knee, left
knee, and right shoulder pain, lumbosacral spondylosis, and bilateral trochanteric bursitis.
In a January 4, 2017 report, Dr. David A. Zijerdi, a Board-certified orthopedic surgeon,
noted right shoulder examination findings of full range of motion and positive Hawkin’s and
Neer’s tests. He diagnosed right shoulder rotator cuff tendinitis and impingement.
In a January 11, 2017 report, Dr. Aaron J. Greenberg, a Board-certified orthopedic
surgeon, related that appellant was treated for follow up of lumbar spondylosis, SI joint pain,
trochanteric bursitis, and neuropathy. He recommended SI injections.
On February 7, 2017 OWCP finalized the termination of appellant’s wage-loss
compensation and medical benefits, effective February 8, 2017. It found that the weight of the
medical evidence rested with the November 22, 2016 second opinion report of Dr. Haskins who
determined that appellant no longer had residuals or disability causally related to her accepted
June 1, 2012 employment injury.
Following the termination decision, OWCP received a series of additional medical reports
from Dr. Kerge dated February 6, 2017 to December 26, 2018 regarding her treatment of appellant
for her right shoulder and lumbar conditions. Dr. Kerge provided examination findings and
diagnosed right shoulder pain, right shoulder lesions, sacral and sacrococcygeal disorders,
spondylosis without myelopathy or radiculopathy, and sacroiliitis.
In an April 17, 2017 report, Dr. Zijerdi also examined appellant for complaints of right
upper extremity pain and numbness and diagnosed right shoulder rotator cuff tendinitis and
impingement and right cubital tunnel syndrome.
On February 7, 2019 appellant, through counsel, requested reconsideration of the
February 7, 2017 termination decision. In a February 6, 2019 letter, counsel requested
reinstatement of appellant’s medical benefits and compensation for residuals of her accepted injury
and compensation for terminated benefits since February 8, 2017. She asserted that the June 1,
2012 emergency room hospital records showed that appellant had a chipped bone in her right foot
and that even after appellant returned to work, she continued to receive medical treatment for
ankle, foot, back, and knee pains, which were residuals of the June 1, 2012 employment injury.
Counsel argued that OWCP should not rely on Dr. Haskins’ November 22, 2016 second-opinion
report as he failed to acknowledge appellant’s chipped bone in her right foot. She also contended
that Dr. Haskins could not provide an opinion on appellant’s work-related residuals or disability
as he did not evaluate appellant before the June 1, 2012 injury to determine what her baseline was
at the time.
In a January 3, 2019 letter, Dr. Kerge related that she had treated appellant since
October 2016 for complaints of low back pain radiating to her bilateral lower extremities, bilateral
knee pain, right shoulder pain, and right elbow pain following a 2012 work injury. She noted that
appellant’s initial diagnoses were low back pain, lumbosacral spondylosis, sacral and

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sacrococcygeal disorders, sacroiliitis, right and left knee pain, right shoulder pain, and greater
trochanteric bursitis, bilaterally. Dr. Kerge described a September 22, 2016 work injury that
aggravated appellant’s June 1, 2012 initial injury and also caused issues with her right shoulder
and elbow. She explained that she was unable to determine residuals of appellant’s work injuries
because she did not evaluate appellant prior to the injury to determine what her baseline was at the
time.
In a January 18, 2019 letter, Dr. Raymon Aggarwal, a Board-certified internist, indicated
that appellant had been his patient from 2004 to 2011. He related that as of her last visit in 2011,
appellant was in good health and had no complaints regarding low back pain, bilateral right/left
knee pain, right/left shoulder pain, right/left elbow pain, right/left calf pain, and right/left ankle
pain.
By decision dated February 27, 2019, OWCP denied appellant’s reconsideration request
finding that it was untimely filed and failed to demonstrate that OWCP’s February 7, 2017 decision
was issued in error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.3 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.4
Timeliness is determined by the document receipt date of the request for reconsideration as is
indicated by the “received date” in the integrated Federal Employees’ Compensation System
(iFECS).5
OWCP will consider an untimely request for reconsideration only if the request
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision.6 The
request must establish on its face that such decision was erroneous.7 Where a request is untimely

2

This section provides in pertinent part: [t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.607; S.C., Docket No. 18-0126 (issued May 14, 2019).

4

Id. at § 10.607(a); L.W., Docket No. 18-1475 (issued February 7, 2019). For merit decisions issued on or after
August 29, 2011, a request for reconsideration must be received by OWCP within one year of OWCP’s decision for
which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(February 2016).
5

Federal (FECA) Procedure Manual, id. at Chapter 2.1602.4(b).

6

20 C.F.R. § 10.607(b).

7

Id.

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and fails to demonstrate clear evidence of error, OWCP will deny the request for reconsideration
without reopening the case for a review of the merits.8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error.9 It is not enough merely to show that the evidence
could be construed so as to produce a contrary conclusion.10 The evidence submitted must not
only be of sufficient probative value to create a conflict in medical opinion or demonstrate a clear
procedural error, but must be of sufficient probative value to shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.11
The Board has held that even a report such as a detailed, well-rationalized medical report which,
if submitted before the denial was issued, would have created a conflict in medical evidence
requiring further development is insufficient to demonstrate clear evidence of error.12 OWCP
procedures further provide that the term clear evidence of error is intended to represent a difficult
standard.13
The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s February 7, 2019 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
On February 7, 2019 appellant requested reconsideration of the February 7, 2017
termination decision. As previously noted, OWCP’s regulations and procedures establish a oneyear time limit for requesting reconsideration, which begins on the date of the original OWCP
decision.15 As the last merit decision on this issue was the February 7, 2017 decision, appellant
had one year from the date of this decision, which was February 7, 2018, to make a timely request
for reconsideration with OWCP. Because appellant’s reconsideration request was received on
February 7, 2019, some two years after the February 7, 2017 OWCP decision, the Board finds that

8

Id. at § 10.608(b).

9

20 C.F.R. § 10.607(b); P.L., Docket No. 18-0813 (issued November 20, 2018); Fidel E. Perez, 48 ECAB 663,
665 (1997).
10

See Leona N. Travis, 43 ECAB 227, 240 (1991).

11

V.L., Docket No. 17-1493 (issued September 12, 2018); Annie L. Billingsley, 50 ECAB 210 (1998).

12

A.R., Docket No. 15-1598 (issued December 7, 2015).

13

Federal (FECA) Procedure Manual, supra note 4 at Chapter 2.1602.5a (October 2011).

14

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

15

Supra notes 4 and 5.

5

her request for reconsideration was untimely filed.16 Consequently, appellant must demonstrate
clear evidence of error by OWCP in the termination of her medical compensation benefits.17
The Board has reviewed the record and finds that appellant’s arguments on reconsideration
do not raise a substantial question as to the correctness of OWCP’s February 7, 2017 merit decision
or shift the weight of the evidence of record in her favor.
OWCP terminated appellant’s compensation and medical benefits finding that the weight
of the evidence rested with the November 22, 2016 second-opinion report of Dr. Haskins, who
opined that appellant’s accepted June 1, 2012 employment injuries had resolved. On
reconsideration, counsel argued that OWCP improperly relied on Dr. Haskins’ November 22,
2016 second-opinion report because he failed to acknowledge appellant’s chipped bone in her right
foot and he did not evaluate her before the June 1, 2012 employment injury to determine what her
baseline was at the time. The Board finds, however, that Dr. Haskins provided a well-rationalized
opinion that appellant’s accepted June 1, 2012 injuries had resolved, which was based on a
complete factual background, a review of the medical record, and physical examination findings.
Therefore, at the time of OWCP’s February 7, 2017 decision, the medical evidence of record was
sufficient to justify the termination of appellant’s compensation benefits.18 Appellant’s argument
on reconsideration, therefore, did not raise a substantial question concerning the correctness of
OWCP’s termination decision, and thus, failed to demonstrate clear evidence of error.19
The evidence submitted to the record following OWCP’s February 7, 2017 merit decision
consisted of several medical reports. To demonstrate clear evidence of error in the termination of
appellant’s medical benefits, the new evidence has to establish her continued need for medical
treatment in order to treat her accepted June 1, 2012 lumbar, left knee, and right ankle sprain. The
series of reports by Dr. Kerge from 2017 to 2019 and January 3, 2019 letter, Dr. Zijerdi’s April 17,
2017 report, and Dr. Aggarwal’s January 18, 2019 letter did not address the relevant issue of
whether appellant had any continuing residuals or disability causally related to her accepted June 1,
2012 employment injury. Thus, these reports are insufficient to demonstrate error by OWCP.20
Appellant has not submitted medical evidence sufficient to shift the weight of the evidence
in her favor or raise a substantial question as to the correctness of OWCP’s decision.
Consequently, the Board finds that she has failed to demonstrate clear evidence of error on the part
of OWCP such that it abused its discretion in denying merit review.

16

See L.C., Docket No. 18-1407 (issued February 14, 2019).

17

Supra notes 6 and 8.

18

See L.T., Docket No. 17-0954 (issued January 12, 2018).

19
Supra note 4 at Chapter 2.1602.5 (February 2016) (the term clear evidence of error is intended to represent a
difficult standard); see also A.F., Docket No. 18-0645 (issued October 26, 2018); Dean D. Beets, 43 ECAB
1153 (1992).
20
See E.B., Docket No. 18-1091 (issued December 18, 2018); B.C., Docket No. 16-1404 (issued April 14, 2017);
F.R., Docket No. 09-0575 (issued January 4, 2010).

6

Appellant further contends on appeal that the factual and medical evidence of record is
sufficient to establish continuing employment-related residuals and disability and that
Dr. Haskins’ report did not constitute the weight of the medical opinion evidence. However, as
noted, the Board does not have jurisdiction over the merits of the claim. Appellant has not
presented evidence or argument that raises a substantial question as to the correctness of OWCP’s
termination decision for which review is sought.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s February 7, 2019 request
for reconsideration was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Burbank, CA, Employer
__________________________________________

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

Docket No. 20-0226
Issued: June 25, 2021

Case Submitted on the Record

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

JURISDICTION
On November 6, 2019 appellant filed a timely appeal from an October 7, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 7, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted August 31, 2019 employment exposure.
FACTUAL HISTORY
On September 1, 2019 appellant, then a 50-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on August 31, 2019 she felt nauseous and
experienced tingling in her throat, arms, and hands while in the performance of duty. In an
accompanying narrative statement, she explained that, while sweeping inside an advanced imaging
technology machine, the machine began moving and scanning. Appellant noted that she became
nauseous and felt tingling in her throat and arms. On the reverse side of the claim form the
employing establishment controverted her claim, noting that the cause of her injury was unknown.
In a September 3, 2019 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit the necessary evidence.
In a September 4, 2019 report, Dr. Cynthia Deveikis, an osteopathic physician specializing
in emergency medicine, listed diagnoses of exposure to x-ray radiation and nausea. She noted that
it was inconclusive if the findings and diagnoses were consistent with appellant’s account of the
incident.
By decision dated October 7, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between her diagnosed medical conditions and the accepted August 31, 2019 employment
exposure.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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,4 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

3

Supra note 1.

4
G.L., Docket No. 18-1057 (issued April 14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

2

to the employment injury.5 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.6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 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 incident identified by the claimant.10
However, in clear-cut traumatic injury claims, where the fact of injury is established and is
clearly competent to cause the condition described (for instance, a worker falls from a scaffold and
breaks an arm), a fully rationalized medical opinion is not needed.11 The physician’s diagnosis
and an affirmative statement are sufficient to accept the claim.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted August 31, 2019 employment exposure.
Appellant submitted a September 4, 2019 report from Dr. Deveikis who diagnosed of
exposure to x-ray radiation and nausea. However, Dr. Deveikis indicated that it was inconclusive
if the findings and diagnoses were consistent with appellant’s account of the incident. The Board
has held that medical evidence that does not include an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.13 As there is no
5

M.G., Docket No. 18-1616 (issued April 9, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6

20 C.F.R. § 10.115; A.S., Docket No. 19-1955 (issued April 9, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.K., Docket No. 19-0904 (issued April 10, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

8

Y.D., Docket No. 19-1200 (issued April 6, 2020); John J. Carlone, 41 ECAB 354 (1989).

9

L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

11

C.J., Docket No. 15-1697 (issued February 5, 2016); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3d(1) (January 2013).
12

Id.

13

G.L., supra note 4; M.D., Docket No. 17-0478 (issued July 5, 2018).

3

affirmative statement from Dr. Deveikis regarding causal relationship, this report is insufficient to
establish appellant’s claim. The Board finds, therefore, that appellant has not met her burden of
proof.
On appeal appellant contends that she sustained radiation to her body and that she is
extremely sensitive to radiation. She alleges that there are no tests in the medical field that can
prove exposure to radiation. As explained above, however, the medical evidence of record is
insufficient to establish the claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted August 31, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 7, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 25, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Morgantown, WV, Employer
__________________________________________

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

Docket No. 09-2147
Issued: June 22, 2010

Case Submitted on the Record

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

JURISDICTION
On August 25, 2009 appellant filed a timely appeal from an August 28, 2008 decision of
the Office of Workers’ Compensation Programs denying her claim as untimely filed. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant filed a timely claim for compensation within the
applicable time limitation provisions of the Federal Employees’ Compensation Act.
On appeal, appellant contends that the time for filing her claim should not have begun to
run at the time of the tick bite as Lyme’s disease is a systemic infection creating a disease of
insidious onset. She stated that the general public is not aware that large brown ticks, as opposed
to deer ticks, carry Lyme’s disease and that she did not know of the potential infection.

FACTUAL HISTORY
On June 26, 2007 appellant, then a 45-year-old coal mine safety and health inspector,
filed an occupational disease claim (Form CA-2) alleging that she contracted Lyme’s disease
after she was bitten by a tick at the base of her skull while inspecting a refuse belt, which
required her to travel through high grass at a sawmill preparation plant. She indicated that she
first became aware of the disease on February 26, 2007 but did not immediately file a claim
because she was gathering information and a witness statement. The employing establishment
indicated that appellant first reported her condition on June 25, 2007.
By letters dated June 28, 2007, the Office requested that appellant and the employing
establishment provide additional factual and medical information regarding the claim.
In a May 24, 2007 statement, appellant claimed that between May 28 and June 10, 2002
she was performing an inspection for a sawmill preparation plan with Dave Bartlett, a plant
superintendent. She recalled experiencing something at the base of her skull while walking
through tall grass. Mr. Bartlett inspected her neck and removed a tick that was attached to her
head. Appellant stated that the tick appeared to be a brown dog tick and she had thought only the
smaller deer ticks carried Lyme’s disease. She stated that she was certain that she had discussed
the occurrence with her coworkers and supervisors as it was an unusual occurrence. Appellant
further claimed that she had experienced symptoms consistent with Lyme’s disease, including a
lack of concentration and memory, which were attributed by her health care providers to stress,
normal aging and menopause.
On May 22, 2007 Mr. Bartlett stated that, during the summer or spring of 2002, he
accompanied appellant to an inspection of an overland refuse belt and other areas of a plant
facility. Late in the day, appellant requested that he look at the back of her neck because she felt
something there. Upon looking, Mr. Bartlett found an attached tick, which he removed and
found it to be intact.
In a July 18, 2007 letter, appellant claimed that she was unaware of any exposure to
Lyme’s disease other than the tick bite and that this was confirmed by her friends and family.
She stated that she would provide additional medical evidence as soon as it was available.
On July 10, 2007 the employing establishment stated that to the best of its knowledge, the
statements and information provided by appellant were correct and that it did not have any
reason to believe that she was submitting false information. It noted that no specific equipment
was issued to appellant to minimize exposure to tick bites. The employing establishment further
stated that appellant did not initially file a claim in this case as she was not diagnosed with
Lyme’s disease until recently.
By decision dated September 24, 2007, the Office denied appellant’s claim on the
grounds that she did not establish with sufficient evidence that she was bit by a tick carrying
Lyme’s disease in 2002 or that she contracted Lyme’s disease causally related to her
employment. It noted that, as appellant only claimed that she experienced a single tick bite
during one shift, her claim should be adjudicated as a traumatic injury.

2

On October 22, 2007 appellant filed a request for an oral hearing before an Office hearing
representative. An oral hearing was held on June 16, 2008 where appellant testified that she did
not file a claim in 2002 after she experienced the tick bite because she believed that only small
brown ticks carry Lyme’s disease. Appellant did not know that wood ticks could also carry the
disease and was not aware that she could be infected.
By decision dated August 28, 2008, the Office hearing representative denied appellant’s
claim on the grounds that it was not timely filed within a three-year period. She found that
appellant’s condition resulted from a tick bite on one specific day, thus, her claim was for a
traumatic incident of which she was immediately aware. As appellant did not file her claim until
June 20, 2007, it was untimely as over three years had passed since the 2002 incident. The
Office hearing representative further found that there was no evidence her supervisor had actual
knowledge of the injury within 30 days as appellant’s illness was not diagnosed within 30 days
of the tick bite.
LEGAL PRECEDENT
Section 8122(a) of the Act1 provides that an original claim for compensation for
disability or death must be filed within three years after the injury or death.2 In cases involving a
traumatic injury, the time limitation commences to run on the date of the incident even though
the employee may not be aware of the seriousness or ultimate consequences of the injury or the
nature of the injury is not diagnosed until sometime later.3
Even if a claim was not filed within the required three-year period, it would still be
regarded as timely under section 8122(a)(1) of the Act if the claimant’s immediate superior had
actual knowledge of the injury within 30 days,4 or under section 8122(a)(2) if written notice of
injury was given within 30 days as specified in section 8119.5 This knowledge must be such as
to put the immediate superior reasonably on notice of an on-the-job injury or death.6
ANALYSIS
The issue is whether appellant filed a claim for compensation within the applicable time
limitations provided by the Act.
Appellant claimed that around June 2002, she was bit by a tick while walking through tall
grass at an inspection site. Although she initially filed an occupational disease claim, she
claimed a single, identifiable incident, namely a tick bite, on a single workday. Appellant further
1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8122.

3

See Paul S. Devlin, 39 ECAB 715 (1988); Kenneth W. Beard, 32 ECAB 210 (1980).

4

5 U.S.C. § 8122(a)(1). See Larry Young, 52 ECAB 284 (2001). See also Jose Salas, 41 ECAB 743 (1990).

5

Id. at §§ 8119, 8122(a)(2).

6

Id. at § 8122(a)(1). See Jose Salas, supra note 4 at 746.

3

acknowledged that she was aware that the incident occurred and submitted a witness statement to
this effect. As such, her claim meets the definition of a traumatic injury.7 The Board has held
that in cases involving a traumatic incident of which the employee is immediately aware, the
time for filing a claim begins to run at the time of the traumatic incident even though all sequelae
of the injury may not be known until later.8 Thus, the time for filing a claim for compensation
began to run at the time appellant experienced the tick bite incident in 2002, despite the fact that
she was not aware that the tick was potentially carrying Lyme’s disease or that the Lyme’s
disease was not diagnosed until several years later. Appellant’s claim was not filed until
June 26, 2007, well over three years after the 2002 incident.
However, appellant’s claim may be regarded as timely under section 8122(a)(1) of the
Act if her immediate superior had actual knowledge of the injury within 30 days or under section
8122(a)(2) if written notice of injury was given within 30 days.9 In the August 28, 2008
decision, the Office hearing representative stated that appellant’s supervisor did not have
knowledge of the injury within 30 days as appellant’s condition was not diagnosed within 30
days of the tick bite. However, it is not required that a supervisor had actual knowledge of the
Lyme’s disease, which was not diagnosed until years later. Rather, the issue is whether
appellant’s supervisor had actual knowledge of the tick bite itself within 30 days.10 The Board
finds that this issue has not been properly developed by the Office.
Appellant submitted a written statement claiming that she was sure she notified her
supervisor and other coworkers of the tick bite as it was an unusual occurrence. The employing
establishment stated that, to the best of its knowledge, the statements and information provided
by appellant were correct and that it did not have any reason to believe that she was submitting
false information. The Office did not attempt to elicit any additional information from
appellant’s supervisors regarding whether they were aware of the tick bite. Moreover, appellant
submitted a May 22, 2007 witness statement from Mr. Bartlett, a plant supervisor, who stated
that he was aware of the tick bite and had removed the tick from appellant’s neck at the time of
injury. It is unclear of Mr. Bartlett’s relationship to appellant or whether he was her supervisor
at the time of her injury.
It is well established that proceedings under the Act are not adversarial in nature nor is
the Office a disinterested arbiter. While appellant has the burden to establish her claim, the
Office shares responsibility in the development of the evidence, particularly when such evidence
7

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). See also Laura Swilley, Docket No. 93-1769
(issued November 16, 1994) (where the Board found that although the employee filed an occupational disease claim
for Lyme’s disease, the tick bite itself would have occurred within a single work shift and her claim was for a
traumatic injury.)
8

Corey W. Davis, 57 ECAB 674 (2006).

9

5 U.S.C. § 8122(a)(1), (2). See also David R. Morey, 55 ECAB 642 (2004).

10

For actual knowledge of a supervisor to be regarded as timely filing, an employee must show not only that the
immediate superior knew that he or she was injured, but also knew or reasonably should have known that it was an
on-the-job injury. See David R. Morey, id.; Duet Brinson, 52 ECAB 168 (2000).

4

is of the character normally obtained from the employing establishment.11 Once the Office has
begun investigation of a claim, it must pursue the evidence as far as reasonably possible.12
The Board finds that the issue of whether appellant’s immediate supervisor had actual
knowledge of the 2002 tick bite was not fully developed by the Office. Accordingly, the case
will be remanded to the Office in order for it to secure information regarding the relationship
between Mr. Bartlett and appellant at the time of the tick bite, in addition to any available
statements from appellant’s supervisors regarding their knowledge at the time of the claimed
incident. After such further development as the Office deems necessary, it shall issue a de novo
decision.
CONCLUSION
The Board finds the case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development of
the evidence consistent with this decision.
Issued: June 22, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See Robert C. Fay, 39 ECAB 163 (1987).

12

See Monroe Fears, 42 ECAB 608 (1992).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
MATERIAL COMMAND, Corpus Christi, TX,
Employer
__________________________________________

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Appearances:
Chris J. Soto, for the appellant
Office of Solicitor, for the Director

Docket No. 09-127
Issued: April 3, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 17, 2008 appellant filed a timely appeal from a July 1, 2008 merit decision of
the Office of Workers’ Compensation Programs denying his traumatic injury claim and an
August 6, 2008 nonmerit decision denying reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether appellant has established that he sustained an injury in the
performance of duty on May 1, 2008 as alleged; and (2) whether the Office properly refused to
reopen his case for further review of the merits under 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On May 13, 2008 appellant, then a 56-year-old aircraft sheet metal worker, filed a Form
CA-1, traumatic injury claim, alleging that on May 1, 2008 he sustained injuries to the right side

of his torso, face and back when he fell approximately 12 feet from a helicopter onto a large
work table and floor. He felt a tug on his lifeline prior to falling. On the claim form, Ralph
Coleman, a coworker, advised he witnessed the incident. Appellant stopped work on May 1,
2008 and returned to work on or about May 13, 2008.
In a May 21, 2008 letter, the Office advised appellant of the factual and medical evidence
needed to establish his claim and allowed 30 days for the submission of evidence. It asked that
he have his attending physician submit a detailed, narrative medical report that included a history
of injury, a firm diagnosis and an explanation regarding why the condition diagnosed was
believed to have been caused or aggravated by the May 1, 2008 incident.
In response, appellant submitted a statement describing how the May 1, 2008 incident
occurred. He indicated that he was taken by ambulance to Bayview Hospital and released that
day. A copy of the May 1, 2008 ambulance report was received together with a May 1, 2008
work release and a May 1, 2008 medication form from Corpus Christi Medical Center Bay Area
Emergency Department.
In a May 12, 2008 dispensary permit, Dr. L.L. Grabhorn, an employing establishment
physician, released appellant to full work without limitations.
In a July 1, 2008 decision, the Office denied appellant’s claim on the grounds that fact of
injury was not established. It found that the May 1, 2008 incident occurred as alleged.
However, there was no medical evidence that established an injury to the incident.
On July 24, 2008 appellant requested reconsideration.
submitted.

No additional evidence was

By decision dated August 6, 2008, the Office denied appellant’s request for
reconsideration of the merits as he had not submitted any new evidence or argument with his
request.1
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation, that an injury was sustained while in the performance
of duty and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.3

1

The record contains evidence received after the Office issued the August 6, 2008 decision. The Board may not
consider evidence that was not before the Office at the time it rendered its final decision. 20 C.F.R. § 501.2(c).
Appellant may submit such evidence to the Office with a request for reconsideration under 5 U.S.C. § 8128.
2

5 U.S.C. §§ 8101-8193.

3

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

2

In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must first determine whether fact of injury has been established.
Fact of injury consists of two components that must be considered in conjunction with one
another. The first is whether the employee actually experienced the employment incident that is
alleged to have occurred. The second component is whether the incident caused a personal
injury, which generally, can be established only by medical evidence.4
When determining whether the implicated employment factors caused the claimant’s
diagnosed condition, the Office generally relies on the rationalized medical opinion of a
physician.5 To be rationalized, the opinion must be based on a complete factual and medical
background of the claimant,6 and must be one of reasonable medical certainty,7 explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.
ANALYSIS -- ISSUE 1
The record supports that on May 1, 2008 appellant fell approximately 12 feet from a
helicopter onto the floor during the performance of his duties. The Office accepted the incident.
The Board finds appellant has established that he experienced the employment incident as
claimed. Appellant alleged that the May 1, 2008 incident caused injuries to the right side of his
torso, face and back. However, he has not submitted sufficient medical evidence establishing
that the May 1, 2008 employment incident caused or aggravated a diagnosed medical condition.
On May 21, 2008 the Office advised appellant of the medical evidence needed to
establish his claim. Appellant submitted a copy of a May 1, 2008 ambulance report, portions of
his May 1, 2008 emergency records from Corpus Christi Medical Center Bay Area Emergency
Department, and a May 12, 2008 dispensary permit. However, this evidence does not note any
specific diagnosis arising from the May 1, 2008 employment incident. To establish fact of
injury, appellant must submit a medical report from a physician establishing that the work
incident caused a personal injury or diagnosed condition. Dr. Grabhorn’s May 12, 2008 report
indicated that appellant could perform regular duty. He did not address whether the May 1, 2008
work incident caused or aggravated a diagnosed condition. The medical evidence of record does
not establish that appellant sustained a diagnosed condition arising from the May 1, 2008
employment incident.8 Because appellant has not submitted sufficient medical evidence, the
Board finds he has not met his burden of proof to establish fact of injury in this case.

4

Ellen L. Noble, 55 ECAB 530 (2004).

5

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

6

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

7

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

8

As previously noted, the record on appeal contains evidence received after the Office issued the August 6, 2008
decision. See supra note 1.

3

LEGAL PRECEDENT -- ISSUE 2
The Act9 provides that the Office may review an award for or against payment of
compensation at any time on its own motion or upon application.10 The employee shall exercise
this right through a request to the district Office. The request, along with the supporting
statements and evidence, is called the application for reconsideration.11
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.12
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.13 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.14
ANALYSIS -- ISSUE 2
On July 24, 2008 appellant requested reconsideration. However, he did not submit any
new evidence or arguments with his request.
Appellant did not raise any new arguments or present new evidence that the Office
erroneously applied or interpreted a specific point of law. He did not advance any relevant legal
arguments not previously considered by the Office or present any relevant and pertinent new
evidence not previously considered. Appellant is not entitled to further review of the merits of
his claim under any of the criteria of section 10.606(b)(2).15
9

5 U.S.C. § 8101 et seq.

10

Id. at § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

11

20 C.F.R. § 10.605.

12

Id. at § 10.606. See Susan A. Filkins, 57 ECAB 630 (2006).

13

20 C.F.R. § 10.607(a). See Joseph R. Santos, 57 ECAB 554 (2006).

14

20 C.F.R. § 10.608(b). See Candace A. Karkoff, 56 ECAB 622 (2005).

15

20 C.F.R. § 10.606(b)(2); see W.C., 59 ECAB ___ (Docket No. 07-2257, issued March 5, 2008).

15

5 U.S.C. §§ 8101-8193.

4

As appellant did not meet any of the regulatory requirements for review of the merits of
his claim, the Board finds that the Office properly denied his July 24, 2008 request for
reconsideration.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on May 1, 2008 as alleged. The Board further finds that the Office properly
denied appellant’s request for merit review of his claim pursuant to section 8128.
ORDER
IT IS HEREBY ORDERED THAT the August 6 and July 1, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed, as modified.
Issued: April 3, 2009
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 11-290
Issued: September 23, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 16, 2010 appellant filed a timely appeal from a September 23, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) affirming denial of a
schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant sustained a ratable hearing impairment entitling him to a
schedule award.
FACTUAL HISTORY
On September 10, 2008 appellant, then a 61-year-old machinist supervisor, filed an
occupational disease claim alleging that he sustained hearing loss. He became aware of his

1

5 U.S.C. § 8101 et seq.

condition and its relationship to his employment on October 28, 1985. Appellant did not stop
work.
OWCP received audiometric records. An August 13, 1976 audiogram exhibited the
following decibel (dBA) losses at 500; 1,000; 2,000 and 3,000 Hertz (Hz): 25, 10, 0 and 5 for
the right ear and 30, 25, 15 and 10 for the left ear. At the same frequency levels, an October 12,
1983 audiogram showed dBA losses of 5, 0, 0 and 10 for the right ear and 5, 5, 0 and 10 for the
left ear while an April 3, 2000 audiogram recorded dBA losses of 0, 5, 0 and 25 for the right ear
and 5, 0, 5 and 30 for the left ear. At 500; 1,000; 2,000 and 3,000 Hz, a March 28, 2007
audiogram revealed losses of 10, 0, 15 and 50 dBA for the right ear and 10, 5, 15 and 35 dBA for
the left ear. A March 4, 2008 audiogram exhibited losses of 5, 0, 10 and 50 dBA for the right ear
and 15, 10, 10 and 35 dBA for the left ear at the same frequency levels.
The employing establishment provided a summary detailing appellant’s history of
exposure to workplace noise above 85 dBA, eight-hour time-weighted average (TWA). From
September 1976 to October 1988, appellant was exposed to noise above 85 dBA TWA between
one and six percent of his workdays. Since October 1988, he was exposed to such noise 11
percent of his workdays. Appellant’s predicted noise-induced hearing loss was zero dBA.
In an October 23, 2008 report, Dr. Ting J. Tai, an employing establishment physician
Board-certified in occupational medicine, reviewed appellant’s audiograms and the 85 dBA
TWA summary and concluded that he did not sustain a work-related hearing loss. Specifying
that 30 years of unprotected exposure to noise above 85 dBA TWA 100 percent of each workday
was expected to bring about a maximum loss of one or two dBA in OWCP’s compensable range,
Dr. Tai pointed out that appellant was exposed to such noise between 1 and 11 percent of his
workdays and wore hearing protection since 1988, which further reduced noise levels at the inner
ear by at least 10 dBA. She also observed that the March 4, 2008 audiogram did not demonstrate
a ratable loss. As appellant lacked a sufficient history of high-intensity noise exposure, Dr. Tai
opined that his federal employment did not contribute to a compensable condition.
A December 15, 2008 statement of accepted facts noted that appellant worked for the
employing establishment since September 7, 1976 as a tool maker and machinist supervisor and
was exposed to noise generated by punch and hydraulic presses, stud lathes, impact wrenches, air
chisels and grinders, chipping hammers, crane horns and ventilation fans, inter alia. Appellant
wore ear plugs since 1988 and was subjected to noise above 85 dBA TWA six days a week until
September 10, 2008. In addition, he sustained vertigo sometime in 1989. Prior to his federal
employment, appellant was a doffer from November 1965 to September 1966, a motor
transporter for the military from September 1966 to August 1968 and a machinist from
September 1968 to February 1975.2
OWCP referred appellant for a second opinion examination to Dr. Robert Hurlbutt, a
Board-certified otolaryngologist. In a January 9, 2009 report, after reviewing the statement of
accepted facts and the audiometric data, Dr. Hurlbutt observed that the August 13, 1976
audiogram showed mild low-frequency losses in both ears and mild losses at 4,000 and 6,000 Hz
2

Although the statement of accepted facts categorized appellant’s machinist position for the period
September 1968 to February 1975 as federal employment, the record indicates that he was in private industry.

2

in the right ear while the October 12, 1983 audiogram documented bilateral low-frequency
improvement. A January 9, 2009 audiogram exhibited the following dBA losses at 500, 1,000,
2,000 and 3,000 Hz: 10, 10, 20 and 45 for the right ear and 15, 10, 20 and 40 for the left ear.
Apart from high-frequency otoacoustic emission test results, which were outside normal limits,
the physical examination was unremarkable. Dr. Hurlbutt opined that appellant sustained
bilateral high-frequency sensorineural hearing loss slightly in excess of what would normally be
predicated on the basis of presbycusis. He concluded that, although appellant was intermittently
exposed to hazardous noise in the course of his federal employment, this exposure was
insufficient to cause hearing loss.
By decision dated January 26, 2009, OWCP denied appellant’s claim, finding the medical
evidence insufficient to establish that he sustained a work-related hearing loss.
Appellant requested reconsideration on October 12, 2009, reiterating that his condition
was due to occupational noise exposure.
On November 16, 2009 an OWCP medical adviser reviewed the statement of accepted
facts and Dr. Hurlbutt’s report and determined that appellant’s bilateral sensorineural hearing
loss was caused by acoustic trauma on the job. Applying the standard provided by the American
Medical Association, Guides to the Evaluation of Permanent Impairment3 (hereinafter A.M.A.,
Guides) to the January 9, 2009 audiometric results, he found that appellant did not have a ratable
hearing loss. The medical adviser did not authorize hearing aids and identified January 9, 2009
as the date of maximum medical improvement.
On November 18, 2009 OWCP modified the January 26, 2009 decision in part, finding
the medical evidence sufficient to establish that appellant sustained work-related bilateral
sensorineural hearing loss. However, it denied a schedule award on the grounds that he did not
sustain a ratable impairment.4
Appellant requested reconsideration on January 13, 2010 and furnished a December 30,
2009 prescription note from Dr. J. Scott Robertson, a Board-certified otolaryngologist, who
recommended binaural digital hearing aids.
By decision dated January 27, 2010, OWCP denied appellant’s request for
reconsideration on the basis that he did not present new evidence or legal contentions warranting
further merit review.
Appellant requested reconsideration on July 19, 2010 and submitted new audiological
evidence. At 500, 1,000, 2,000 and 3,000 Hz, a May 17, 2010 audiogram revealed dBA losses of
20, 20, 30 and 60 for the right ear and 15, 15, 25 and 50 for the left ear. At the same frequency
levels, a July 12, 2010 audiogram exhibited dBA losses of 25, 25, 30 and 60 for the right ear and
25, 25, 30 and 55 for the left ear. Neither audiogram was certified by a physician.

3

A.M.A., Guides (6th ed. 2008).

4

OWCP also determined that appellant was not entitled to hearing aids or other medical benefits.

3

On September 23, 2010 OWCP denied modification of the November 18, 2009 decision.
LEGAL PRECEDENT
FECA’s schedule award provision and its implementing regulations5 set forth the number
of weeks of compensation payable to employees sustaining permanent impairment from loss of
or loss of use of scheduled members or functions of the body. An employee is entitled to a
maximum award of 52 weeks of compensation for complete loss of hearing of one ear and 200
weeks of compensation for complete loss of hearing of both ears.6 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. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the “fence” of 25 dBA is deducted
because, as the A.M.A., Guides points out, losses below 25 dBA result in no impairment in the
ability to hear everyday speech under everyday conditions. The remaining amount is multiplied
by a factor of 1.5 to arrive at the percentage of monaural hearing loss. Binaural loss is
determined by first calculating the loss in each ear using the formula for monaural loss: the
lesser loss is multiplied by five, then added to the greater loss, and the total is divided by six to
arrive at the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.8
ANALYSIS
Appellant filed a claim for hearing loss and was referred to Dr. Hurlbutt for a second
opinion examination. After conducting a thorough examination and reviewing the medical file,
Dr. Hurlbutt determined that, while he sustained bilateral high-frequency sensorineural hearing
loss, his condition did not result from occupational noise exposure. However, an OWCP medical
adviser reviewed the evidence and opined that appellant’s injury was due to acoustic trauma in
the workplace. Thereafter OWCP accepted that appellant had a work-related binaural hearing
loss. However, it denied a schedule award on the grounds that the hearing loss was not ratable.
On November 16, 2009 an OWCP medical adviser applied the A.M.A., Guides standard
for rating hearing impairment to the January 9, 2009 audiogram obtained by Dr. Hurlbutt.
Appellant’s right ear recorded losses of 10, 10, 20 and 45 dBA. The total loss was 85 dBA.
When divided by four, the result was an average hearing loss of 21.25 dBA. The average
5

20 C.F.R. § 10.404.

6

5 U.S.C. § 8107(c)(13).

7

20 C.F.R. § 10.404. See also Mark A. Holloway, 55 ECAB 321, 325 (2004).

8

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

4

hearing of 21.25 dBA was reduced by the fence of 25 dBA to 0 dBA. This figure was then
multiplied by the established factor of 1.5, yielding zero percent monaural impairment of the
right ear. At the same frequency levels, appellant’s left ear recorded losses of 15, 10, 20 and 40
dBA at 500, 1,000, 2,000 and 3,000 Hz, respectively. The total loss was 85 dBA. When divided
by four, the result was an average hearing loss of 21.25 dBA. The average hearing of 21.25 dBA
was reduced by the fence of 25 dBA to equal 0 dBA. This figure was then multiplied by the
established factor of 1.5, yielding zero percent monaural impairment of the left ear. Therefore,
an OWCP medical adviser properly determined that appellant did not sustain a ratable hearing
impairment.
Appellant contends on appeal that the May 17 and July 12, 2010 audiograms that he
provided with his request for reconsideration demonstrated a ratable impairment. However, the
Board has held that, if an audiogram is prepared by an audiologist, it must be certified by a
physician as being accurate before it can be used to determine the percentage of hearing loss.9
Because these audiograms were not certified, they lacked probative value.10
The Board notes that appellant submitted new evidence on appeal. The Board lacks
jurisdiction to review evidence for the first time on appeal.11 Appellant may request a schedule
award 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 did not sustain a ratable hearing impairment entitling him
to a schedule award.

9

Joshua A. Holmes, 42 ECAB 231 (1990). Appellant has the burden to submit a properly-certified audiogram for
review. Id. See also James A. England, 47 ECAB 115 (1995).
10

R.B., Docket No. 10-1512 (issued March 24, 2011).

11

20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the September 23, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6