United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF DEFENSE, DEFENSE
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COMMISSARY AGENCY, Camp Pendleton, CA, )
Employer
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__________________________________________ )
D.L., Appellant

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

Docket No. 10-2291
Issued: July 13, 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 September 7, 2010 appellant filed a timely appeal of an August 25, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which reduced her
compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s compensation
effective August 29, 2010 based on its determination that the constructed position of social
service aide represented her wage-earning capacity.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 14, 1998 appellant, then a 38-year-old commissary store worker, submitted
a traumatic injury claim alleging that on October 17, 1997 she experienced back and lower leg
pain when a pallet fell and pushed her into a machine. OWCP accepted her claim for cervical
strain, lumbar contusion and a temporary aggravation of cervical degenerative disc disease. On
May 27, 1999 OWCP placed her on the periodic rolls for temporary total disability.
In a July 27, 1999 medical report, Dr. Mark S. Stern, a Board-certified neurological
surgeon, stated that appellant was capable of working eight hours a day but limited her to no
more than one hour of continuous walking or standing, no overhead repetitive reaching with
arms, limited reaching over shoulders or twisting, and pushing, pulling, and lifting up to 15
pounds. The employer was unable to accommodate appellant’s work restrictions.
In a letter dated December 14, 1999, OWCP referred appellant for development of a
vocational rehabilitation program based on Dr. Stern’s July 27, 1999 medical report. On
January 3, 2000 the vocational rehabilitation counselor met with appellant for plan development
and suggested additional education to receive more training. Appellant completed a General
Educational Development (GED) preparation course and enrolled in classes to receive an
Associates Degree as a personal computer information specialist. On February 5, 2002 the
vocational rehabilitation counselor selected the positions of office helper and administrative
assistant for appellant. Both jobs were considered light and sedentary.
In a July 26, 2002 work restriction form, Dr. Adekola Ashaye, a Board-certified internist,
examined appellant and diagnosed degenerative cervical strain, aggravated by degenerative disc
disease of the cervical spine and lumbar contusion. He limited appellant’s work to three to four
hours of sitting, one to two hours of walking, one to two hours of pushing, pulling, and lifting up
to 15 pounds, and no standing, reaching above the shoulder, twisting, squatting, kneeling,
climbing, squatting or kneeling. The vocational rehabilitation counselor advised appellant that
the new work restrictions of only working three to four hours prevented her from reaching her
goal of returning to the labor market. Appellant’s case was placed in interrupted status until the
issue of her work restrictions resolved. Appellant continued to further her education and receive
training.
In a May 17, 2005 work evaluation form, Dr. Ashaye, modified appellant’s work
restrictions and stated that she was capable of working eight hours with an appropriate chair, one
to two hours of walking, standing, reaching, twisting, bending, and stooping, and one to two
hours of pushing, pulling and lifting up to 10 pounds. Dr. Ashaye noted appellant’s October 16,
1997 injury and stated that she had been a patient since May 2002 for continued neck, shoulder,
and back pain, diabetes and hypothyroidism.
In a letter dated December 15, 2005, OWCP advised the employing establishment that
appellant was able to return to work with restrictions and requested whether work was available
within her restrictions. On May 22, 2006 the employing establishment notified OWCP that it did
not have any positions available which fit those restrictions.

2

In a July 30, 2007 work capacity evaluation, Dr. Ashaye modified appellant’s work
restrictions to eight hours of sitting in a supportive chair, three to four hours of walking, one to
two hours of standing, reaching, reaching above the shoulder, twisting, bending, and stooping,
and one to two hours of repetitive wrist and elbow movements, pushing, pulling and lifting up to
10 pounds. Appellant was restricted from any squatting, kneeling and climbing. Dr. Ashaye
advised that appellant needed proper back and neck support and an ergonomic workstation. On
an August 2, 2007 medical report his physician’s assistant and Dr. Ashaye provided an accurate
history of the October 16, 1997 injury and noted her complaints of continued neck, back, and
shoulder pain, particularly of radiating pain down her right arm and numbness on the lateral
aspect of her right thigh. Dr. Ashaye observed sequela of appellant’s medical conditions of
degenerative disc disease in both her cervical and lumbar spine. A recent x-ray revealed marked
degeneration of her lumbar discs that was possibly exacerbated by her work injury. Dr. Ashaye
concluded that of her diagnosed conditions, degeneration of the cervical spine was the only one
present and that appellant was capable of performing a sedentary job without a great deal of
manual lifting.
On April 17, 2008 OWCP referred appellant for vocational rehabilitation services for the
period April 23 to July 23, 2008. On May 1, 2008 the vocational rehabilitation counselor met
with appellant and noted that her medical history revealed treatments for carpal tunnel syndrome,
osteoarthritis in her feet, hypothyroidism, Type II diabetes, rheumatoid arthritis, and high
cholesterol. The vocational rehabilitation counselor also reviewed her education and noted that
she obtained her Basic PC Skills certificate in August 2003 and her Associate of Applied Science
degree in Human Services in May 2006. Appellant reported an interest in working in the schools
or a medical based facility with a focus on human services, but felt that some barriers to her
employment included her medical conditions, lack of recent paid work experience, no driver’s
license, limited finances and targeting a wage of $12.00 to $15.00/hour.
On July 14, 2008 appellant’s case was put on hold for vocational services until more
specific medical information regarding appellant’s work-related restrictions was obtained.
In a July 30, 2008 magnetic resonance imaging (MRI) scan report, Dr. Martin Butler, a
Board-certified diagnostic radiologist, observed normal vertebral marrow signal with no
subluxation and abnormal paraspinal mass. He diagnosed anterior bridging osteophytes
compatible with diffuse idiopathic skeletal hyperostosis and multilevel degenerative disc disease
with multilevel protrusions and bulge and multilevel central protrusions.
In a September 29, 2008 report, Dr. Ashaye noted that appellant was injured on
October 16, 1997 when a palate hit her from behind at work. Appellant continued to complain of
neck and shoulder pain with loss of functionality. Dr. Ashaye stated that her conditions were
permanent and that the injury aggravated her idiopathic skeletal hyperostosis and degenerative
disc disease of her cervical spine, as confirmed by the July 30, 2008 MRI scan report. He
reported that appellant was not expected to return to her preinjury status and had since developed
right shoulder bursitis and carpal tunnel syndrome in her right wrist. Dr. Ashaye provided a
work capacity evaluation form indicating that appellant was unable to work for eight hours a day
with restrictions due to weakness in her arms, loss of stamina and increasing neck pain with
activity. He further stated that appellant’s restrictions were permanent and that it was unlikely
that appellant would be able to work an eight-hour workday. Dr. Ashaye restricted appellant to

3

eight hours of sitting with a supportive chair, three to four hours of walking and repetitive
movement of her wrists and elbows, one to two hours of standing, reaching, reaching above
shoulder, twisting, bending or stooping, one to two hours of pushing, pulling, and lifting up to 10
pounds, and no squatting, kneeling or climbing.
In a December 12, 2008 rehabilitation report, the vocational counselor reviewed
Dr. Ashaye’s September 29, 2008 medical report and work restrictions. She noted that appellant
was released to work from three to four hours a day in a sedentary capacity permanently. The
counselor remained guarded about appellant’s probability of success due to her lack of recent
paid work experience, a driver’s license and concern over using public transportation.
Appellant continued her job search activities and her cooperation with vocational
rehabilitation services. She reported that she was looking for work but was unable to find a job.
The vocational rehabilitation counselor referred her for computer training to refresh her typing
and computer skills.
The vocational rehabilitation counselor selected two positions for appellant as a social
services aide and an administrative clerk. Both jobs were considered light involving up to 20
pounds of force occasionally, 10 pounds of force frequently, and a negligible amount of force
constantly. Regarding the social services aid position, the rehabilitation counselor conducted a
labor market survey and contacted twelve employers in appellant’s geographic area. Of the
twelve employers contacted, only three hired applicants with an associate degree, but no
bachelor degree. Of these three employers, one required that the applicant hold a valid drivers
license with auto liability insurance. Neither of the two remaining employers verified that the
position was available on a part-time basis. The rehabilitation counselor found that there were
part-time and full-time employment opportunities in the designated geographic area for the
selected positions outlined. She stated in a May 12, 2009 report that these constructed positions
were being performed in sufficient numbers so as to make the jobs reasonably available for
appellant within her commuting areas.
On July 1, 2009 appellant’s 90 days of job search concluded that OWCP authorized an
additional 30 days. She continued to cooperate with vocational rehabilitation services and
participate in job search activities.
In an October 5, 2009 report, the vocational rehabilitation counselor found that appellant
was unable to find employment due to the current state of the economy and high unemployment
rate. She also noted that appellant had various obstacles to employment, including her physical
condition, lack of a driver’s license, concern over using public transportation, and work hour
shift issues that were unrelated to her accepted conditions. The counselor opined that it was
unlikely that additional time would provide a placement opportunity for appellant. She advised
that the case be closed and a loss of wage-earning capacity be determined.
In a letter dated March 24, 2010, OWCP proposed to reduce appellant’s wage-loss
benefits. It determined that the medical evidence established that she was no longer totally
disabled and had the capacity to earn wages as a part-time social service aide at the rate of
$265.49 a week. In an attached worksheet, OWCP found that appellant’s pay rate when she
sustained her injury was $251.08; the current adjusted pay rate for her job on the date of injury

4

was $446.30 a week. OWCP determined that she had a 59 percent wage-earning capacity of
$148.14 a week and a loss of wage-earning capacity of $102.94. At the three-fourths augmented
compensation rate, appellant would receive wage-loss benefits of $77.21 a week, increased by
cost-of-living adjustments to $104.25 per week, for a net compensation of $417.00 every four
weeks.
By decision dated August 25, 2010, OWCP reduced appellant’s compensation benefits
effective August 29, 2010, finding that the position of part-time social service aide was
medically and vocationally suitable.
LEGAL PRECEDENT
Section 8115(a) of FECA provides in determining compensation for partial disability, the
wage-earning capacity of an employee is determined by her actual earnings, if her actual
earnings fairly and reasonably represent her wage-earning capacity.2 If the actual earnings do
not fairly and reasonably represent wage-earning capacity or if the employee has no actual
earnings, her wage-earning capacity is determined with due regard to the nature of her injury, her
degree of physical impairment, her usual employment, her age, her qualifications for other
employment, the availability of suitable employment and other factors and circumstances which
may affect her wage-earning capacity in her disabled condition.3 Wage-earning capacity is a
measure of the employee’s ability to earn wages in the open labor market under normal
employment conditions.4 In determining an employee’s wage-earning capacity, OWCP may not
select a makeshift or odd-lot position or one not reasonably available on the open labor market.5
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.6 When it
makes a medical determination of partial disability and of specific work restrictions, it may refer
the employee’s case to a vocational rehabilitation counselor authorized by OWCP or to an
OWCP wage-earning capacity specialist for selection of a position, listed in the Department of
Labor’s Dictionary of Occupational Titles (DOT) or otherwise available in the open labor
market, that fits that employee’s capabilities with regards to her physical limitation, education,
age and prior experience. Once this selection is made, a determination of wage rate and
availability in the open labor market should be made through contact with the state employment
service or other applicable service. Finally, application of the principles set forth in Albert C.
Shadrick will result in the percentage of the employee’s loss of wage-earning capacity.7
2

Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971).

3

5 U.S.C. § 8115(a); Pope D. Cox, 39 ECAB 143, 148 (1988).

4

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

5

Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

6

Beatty F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984); H.N., Docket No. 091628 (issued August 19, 2010).
7

Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999); Hattie Drummond, 39 ECAB 904 (1988); see Alfred C.
Shadrick, 5 ECAB 376 (1953).

5

ANALYSIS
OWCP determined that appellant had the capacity to earn wages as a part-time social
services aid at the rate of $265.49 per week part time. It found that the position was within her
work limitations. The Board finds, however, that OWCP did not properly determine that the part
time position was within appellant’s educational and licensing qualifications or reasonably
available within appellant’s commuting area.
In a September 29, 2008 work capacity evaluation, Dr. Ashaye noted that appellant was
unable to work eight-hour days, but that appellant could return to work with restrictions.
A vocational rehabilitation counselor selected the position of part-time social services
aide for appellant and determined that the position was being performed in sufficient numbers so
as to make the job reasonably available within appellant’s commuting area.
It is well established that OWCP must consider various factors when determining the
suitability of a constructed position, including qualifications for employment such as education,
previous employment and work limitations. The Board finds that OWCP did not properly
consider these factors when modifying appellant’s compensation based on her wage-earning
capacity in the constructed position of social services aide. According to the labor market
survey, all but three of the job positions required a bachelor’s degree; one of the three positions
also required a valid driver’s license with insurance. Appellant, however, only has an associate’s
degree and does not have a driver’s license.
OWCP also did not meet its burden of proof to establish that the position was reasonably
available on a part-time basis. The Board has found that, if OWCP determines that appellant is
capable of performing only part-time work, then it must find a position within appellant’s work
limitation that is reasonably available on a part-time basis.8 A general finding that the position is
reasonably available is not sufficient because a position available on a full-time basis may not be
available on a part-time basis.9 In this case, of the 12 employers contacted in the labor market
survey, pertaining to the social services aide position, after ruling out 10 of the positions because
appellant did not qualify based upon education or licensing, none of the remaining two
employers indicated that the position was available on a part-time basis. Thus, the Board finds
that OWCP did not properly determine that the position of social services aid was reasonably
available within appellant’s commuting area on a part-time basis.
Thus, the Board finds that OWCP improperly determined that the constructed position of
part-time social service aide represented her wage-earning capacity. Accordingly, the case
should be reversed.

8

Lewis B. Jackson, 32 ECAB 1225 (1981); Wordie G. Turner, 19 ECAB 530 (1968).

9

Id.; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.8(c)(3) (April 2011).

6

CONCLUSION
The Board finds that OWCP did not meet its burden of proof to reduce appellant’s
compensation effective August 29, 2010 based on its determination that the constructed position
of social services aid represented her wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the August 25, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 13, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, Ohio, Employer
__________________________________________

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

Docket No. 09-1102
Issued: November 6, 2009

Case Submitted on the Record

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

JURISDICTION
On March 17, 2009 appellant filed a timely appeal from a February 20, 2009 merit
decision of the Office of Workers’ Compensation Programs’ Branch of Hearings and Review
affirming an August 1, 2008 merit decision. 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 sustained an injury in the performance of duty on
May 7, 2008.
FACTUAL HISTORY
On June 23, 2008 appellant, a 40-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that she tripped and fell while delivering mail on May 7, 2008, sustaining
hip strain. The employing establishment controverted her claim. Appellant’s supervisor stated
that she was on leave until May 24, 2008, that when appellant returned to duty she mentioned hip

pain to her, but did not mention the incident until June 23, 2008; that she waited for six weeks to
file the claim, and that she could not remember the exact address where she allegedly fell.
Appellant submitted a report dated June 20, 2008, signed by Dr. Blazenka Skugor, a
Board-certified internist, which noted her history of injury as “while delivering mail, tripped on
raised concrete, stumbled forward and landed hard on right leg.” Dr. Skugor diagnosed lumbar
strain, sciatica and right hip and knee pain. X-rays of appellant’s hip and spine revealed no
abnormality.
By decision dated August 1, 2008, the Office denied appellant’s claim because the
evidence of record was insufficient to establish that the claimed medical condition was causally
related to the identified employment incident.
On August 21, 2008 appellant, through her attorney, requested a hearing.
In August 8 and 22, 2008 notes, Dr. Skugor reviewed appellant’s history of injury,
reviewed her subjective complaints and proposed a course of treatment. He opined that it was
“reasonable to believe that [it] is possible that [appellant’s] back pain is related to or aggravated
by her tripping accident.”
On September 3, 2008 Dr. Kristine Blackham, a Board-certified diagnostic radiologist,
reported findings following x-rays of appellant’s lumbar spine. She diagnosed minimal
degenerative changes.
In a September 25, 2008 report, Dr. Daniel W. Koontz, a Board-certified neurologist,
noted appellant’s history that she developed pain in her right leg four months prior after tripping
and landing on her leg. He diagnosed a small central disc bulge but offered no opinion regarding
the cause of the condition.
Appellant submitted notes concerning appointments attended between July 18 through
October 24, 2008 and diagnostic tests.
Appellant submitted a November 14, 2008 report in which Dr. Sami Moufawad, a Boardcertified physiatrist, reported findings on examination and diagnosed right lumbar radiculopathy
at the L5 level, lumbar disc bulge and myofascial pain.
A hearing was conducted on December 4, 2008 at which appellant and her attorney were
present. She testified that she had fallen on more than one occasion while delivering mail, and
that she waited to file the claim because she believed that her hip pain would resolve itself, as it
had in the past.
By decision dated February 20, 2009, the hearing representative modified the Office’s
August 1, 2008 decision denying appellant’s claim. He found that appellant had not established
that the alleged May 7, 2008 “injury” occurred as alleged.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of the claim, including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was filed within
the applicable time limitation, that an injury was sustained while in the performance of duty as
alleged and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.2 These are essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.4 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.5
ANALYSIS
The hearing representative found that appellant had not established that she sustained an
“injury” in the time, place and manner alleged. The record reflects that appellant alleged that her
injury occurred after tripping and falling while delivering mail on May 7, 2008. The employing
establishment controverted her claim because her supervisor was on leave for several weeks
following the alleged incident and she did not immediately report the injury to her supervisor,
upon the supervisor’s return or immediately file a claim. Appellant’s supervisor also noted that
appellant could not remember the exact address where the fall occurred. The Office initially
determined that the trip and fall incident occurred as alleged, but the hearing representative
found that she had not established that the “injury” occurred as alleged. Whether appellant
sustained the “incident” as alleged or sustained an “injury” as alleged are two distinct questions.
As there is no evidence of record disputing that the employment incident occurred as alleged, she
has established that she did trip and fall during her employment. An employee’s statement
alleging that an incident occurred at a given time and in a given manner is of great probative
value and will stand unless refuted by strong or persuasive evidence.6 The only remaining issue
then is whether this incident caused a personal injury.
1

5 U.S.C. §§ 8101-8193.

2

C.S., 60 ECAB ___ (Docket No. 08-1585, issued March 3, 2009).

3

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

4

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

5

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
6

Elaine Pendleton, 40 ECAB 1143 (1989).

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Appellant’s burden is to demonstrate that the identified employment incident caused a
personal injury. Causal relationship is a medical issue that can only be proven through
production of rationalized medical opinion evidence.7 The Board finds the evidence of record
insufficient to satisfy appellant’s burden of proof and, therefore, appellant has not established
that she sustained an injury in the performance of duty on May 7, 2008.
The relevant medical evidence of record consists of reports and notes from
Drs. Blackham, Moufawad and Skugor. These reports and notes are of little probative value on
the issue of causal relationship as they lack a rationalized opinion on the causal relationship
between the conditions they diagnosed and the identified May 7, 2008 employment incident.
Although Dr. Skugor opined that it was “reasonable to believe that [it] is possible that
[appellant’s] back pain is related to or aggravated by her tripping accident[,]” this is an equivocal
statement and, therefore, is of diminished probative value.8 As such, these reports are
insufficient to satisfy her burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.9 Appellant has not submitted rationalized medical opinion
evidence establishing that the identified employment incident caused a medically diagnosed
personal injury and, therefore, has not satisfied her burden of proof.
CONCLUSION
The Board finds that appellant did not satisfy her burden of proof to establish that she
sustained an injury in the performance of duty on May 7, 2008.

7

The hearing representative mistakenly found that appellant had not established that she sustained an injury at the
time, place and in the manner alleged. The record reflects that appellant alleged that her injury occurred after
tripping and falling while delivering mail. The medical evidence of record supports her allegation concerning the
time, place and manner of the alleged injury. While the employing establishment controverted appellant’s claim it
did not controvert her assertion that this incident occurred as alleged. As there was no evidence of record
demonstrating that the alleged employment incident did not occur as alleged, appellant has, in fact, established that
she tripped and fell. The only remaining issue then is whether this incident caused a personal injury.
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.3(g) (April 1993).
9

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

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ORDER
IT IS HEREBY ORDERED THAT the February 20, 2009 and August 1, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 6, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, Vallejo, CA,
Employer
__________________________________________

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

Docket No. 07-1433
Issued: November 23, 2007

Case Submitted on the Record

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

JURISDICTION
On May 2, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated March 30, 2007 finding that he had not established a
consequential injury or entitlement to schedule awards. 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 his burden of proof in establishing that he
developed diabetes as a consequence of his accepted emotional condition; and (2) whether
appellant is entitled to schedule awards for his emotional condition and his diabetes.
FACTUAL HISTORY
This case has been before the Board on four occasions. On July 7, 1986 appellant, a
46-year-old pipe fitter, injured his left knee when he lost his balance on a concrete step and fell
against a handrail. He also alleged injury to his left shoulder and arm by holding onto the railing.

Appellant sustained an additional left arm injury on December 28, 1986 lifting a pipe in the
performance of duty. The Office accepted his claims for left knee strain, left rotator cuff tear and
depression with adjustment reaction. The Office granted appellant a schedule award for
33 percent impairment of his left upper extremity on May 26, 1989. The Office entered
appellant on the periodic rolls on June 15, 1990. By decision dated July 9, 1993, the Board
remanded the case for the Office to resolve a conflict of medical opinion evidence regarding
whether appellant’s left small finger trigger symptoms were due to his accepted employment
injuries.1 The Board reviewed appellant’s claim on February 14, 1997 and determined that the
weight of the medical evidence, as represented by an impartial medical examiner’s report,
established that appellant’s ulnar neuropathy was not related to his employment injury.2 On
November 2, 1999 the Board found that the Office properly denied appellant’s request for review
of the merits of his claim that his ulnar nerve condition was employment related.3 In an Order
Remanding Case dated June 14, 2006, the Board remanded the case to the Office as it did not
provide the case record in a timely manner.4 The facts and the circumstances of the case as set
out in the Board’s prior decisions are adopted herein by reference.
The Office informed appellant on January 27, 2004 that a portion of his record had been
lost and requested that he provide any documentation regarding his file that he had in his
possession.5
Appellant’s attorney alleged on February 26, 2004 that his accepted emotional condition
led to the development of adult onset diabetes. In a report dated January 13, 1999,
Dr. Charles Noonan, a Board-certified psychiatrist, listed appellant’s current medical conditions
as diabetes, aortic valve replacement and four vessel coronary artery bypass, hypothyroidism,
hypercholesterolemia and essential hypertension. In a separate report of the same date,
Dr. Noonan stated that he was including an article documenting research regarding the causal
link between diabetes and stress or depression.6 On June 2, 2004 the Office noted that the
conditions of prolonged depressive reaction and adjustment reaction with anxiety features were
accepted as employment related.
In a letter dated June 8, 2004, appellant’s attorney requested a schedule award due to his
accepted emotional conditions. He further indicated that appellant believed that his diabetes was
due to his accepted emotional conditions and requested a schedule award for this condition as
well.

1

Docket No. 92-1488 (issued July 9, 1993).

2

Docket No. 94-2032 (issued February 14, 1997).

3

Docket No. 97-2868 (issued November 2, 1999).

4

Docket No. 06-97 (issued June 14, 2006).

5

The information currently contained in appellant’s case record begins in January 1988. There is an additional
gap in the case record from June 10, 1992 through March 22, 2002.
6

The record currently before the Board does not contain this article.

2

By decision dated June 18, 2004, the Office granted appellant a schedule award for
66 percent impairment of his left upper extremity.
This schedule award runs
through May 24, 2008. On August 4, 2004 the Office granted appellant’s request for a lumpsum payment of his schedule award.
By decision dated June 24, 2004, the Office denied appellant’s claim that he developed
diabetes as a consequence of his accepted emotional conditions. The Office also denied
appellant’s request for a schedule award due to his emotional conditions.
In a letter dated June 6, 2005, appellant, through his attorney, requested reconsideration
of the Office’s June 24, 2004 decision. He alleged that he sustained damage to his heart,
pancreas and kidneys due to his July 7, 1986 employment injuries. In support of his claim,
appellant submitted a series of reports from Dr. Noonan commencing August 1, 1992.
Dr. Noonan stated that appellant’s diabetes was directly connected to his July 7, 1986
employment injuries and resulting emotional conditions. He stated that appellant’s diabetes
“suddenly appeared for no other reasons that can be seen, other than a stress-induced
disorder….” In a report dated July 1, 1994, Dr. Noonan noted that appellant’s diabetes arose in
October 1989 and attributed this condition to stress and strain due to his injury and claims before
the Office. He stated: “[Appellant] had undergone extensive suffering from this, which
triggered off the onset of the patient’s diabetes at that time….” On November 24, 1998
Dr. Noonan opined that appellant was 100 percent disabled due to his emotional conditions.7
By decision dated September 20, 2005, the Office stated that it had not reviewed the
merits of the June 24, 2004 decision. The Office reviewed Dr. Noonan’s August 1, 1992 report
and found that he had no medical basis for his opinion that the diabetes “suddenly appeared,” the
Office also noted that he provided no medical rationale for his opinion. The Office stated:
“Although the medical opinion of a physician supporting causal relationship need not reduce the
cause or etiology of a disease or condition to an absolute medical certainty, neither can such
opinion be speculative or equivocal.” The Office further noted that the July 1, 1994 report did
not include the article referred to by Dr. Noonan, that this textual evidence would have little
probative value in support of appellant’s claim. The Office stated: “Absolutely, no medical
evidence has been submitted that establishes that either the diabetes was work related or that the
claimant’s emotional condition somehow caused injury to the claimant’s heart, pancreas or
kidneys.” The Office also stated that the relevant medical evidence was duplicative in nature.
The Office stated: “Although the physical portion of the file is not currently available, such
reports were reviewed and considered in the past.”8
Appellant requested that the Board review the Office’s September 20, 2005 decision.
Following the Board’s June 14, 2006 Order Remanding Case, appellant submitted additional new
evidence from Dr. Kurt Gibson M.D., addressing his various physical conditions.
7

As noted previously, these documents were not included in the record before the Office at the time of its
June 24, 2004 decision.
8

The Board notes that although the Office stated that it was not reviewing the merits of appellant’s claim, the
decision reflects that the Office weighed the evidence submitted and determined that it was not sufficient to establish
appellant’s claim.

3

By decision dated March 30, 2007, the Office stated that it had not reviewed the merits of
appellant’s claim. The Office reattached the memorandum to the director associated with the
September 20, 2005 decision which addressed the weight of the evidence. 9
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.10
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.11
A claimant bears the burden of proof to establish his 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.12 Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion
evidence.13 Rationalized medical opinion 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.14 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.15
ANALYSIS -- ISSUE 1
Appellant submitted medical evidence in support of his claim that he had developed
diabetes as a consequence of his accepted emotional condition claims. Dr. Noonan, a Boardcertified psychiatrist, submitted the only medical reports addressing appellant’s claim for a
relationship between his diabetes and his employment injuries. He first opined that appellant’s
adult onset diabetes was the result of his accepted emotional condition on August 1, 1992
alleging that his diabetes occurred suddenly as a stress-induced disorder. This report is not
9

The Board notes that following the Office’s March 30, 2007 decision, appellant submitted new evidence. As the
Office did not review this evidence in its March 30, 2007 decision, the Board will not consider it for the first time on
appeal. 20 C.F.R. § 501.2(c).
10

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

11

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

12

Id.

13

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

14

Charles W. Downey, supra note 11.

15

Id.

4

sufficient to meet appellant’s burden of proof. Although Dr. Noonan opined that there was a
causal relationship between appellant’s diabetes and stress, he did not adequately explain how
adult on set diabetes would be caused or contributed by the accepted emotional condition.
In a report dated July 1, 1994, Dr. Noonan attributed appellant’s diabetes to both his
accepted emotional conditions and to the development of his claims by the Office. While he
attributed his condition to appellant’s employment injuries, he did not offer any medical
reasoning in support of the stated condition on causal relationship. Without medical rationale,
this report is not sufficient to meet appellant’s burden of proof in establishing a consequential
injury.
In a January 13, 1999 report, Dr. Noonan suggested that appellant’s diabetes was related
to his stress and depression and that he was enclosing an article documenting this relationship.
The record does not contain any such article. Furthermore, Dr. Noonan’s January 13, 1999
report does not contain a clear explanation as to how appellant’s diabetes was due to his
employment injuries. Appellant has not submitted sufficient rationalized medical opinion
evidence establishing a causal relationship between his accepted emotional conditions and his
diagnosed diabetes. He has not met his burden of proof in establishing a consequential injury in
this regard.16
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of the Federal Employees’ Compensation Act17 and its
implementing regulations18 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, the Act 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 American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.
No schedule award is payable for a member, function or organ of the body that is not
specified in the Act or in the implementing regulations.19 The Act’s list of scheduled members
includes the eye, arm, hand, fingers, leg, foot and toes.20 The Act also specifically provides for
compensation for loss of hearing and loss of vision.21 Section 8107(c)(22) of the Act vests the
Secretary of Labor with the authority to expand the list of scheduled members to include “any
16

Charles W. Downey, supra note 11 at 422-23.

17

5 U.S.C. § 8107.

18

20 C.F.R. § 10.404 (1999).

19

Brent A. Barnes, 56 ECAB ___ (Docket No. 04-2025, issued February 15, 2005).

20

5 U.S.C. § 8107(c).

21

Id.

5

other important external or internal organ of the body….”22 In accordance with the authority
granted under section 8107(c)(22), the Secretary of Labor added the breast, kidney, larynx, lung,
penis, testicle, ovary, uterus and tongue to the list of scheduled members.23 Neither the Act nor
the regulations authorize payment of a schedule award for the brain, an emotional condition,
diabetes or pancreas.24
ANALYSIS -- ISSUE 2
Appellant requested a schedule award due to his emotional condition and his diabetes.
Neither the brain nor the pancreas is included among the list of scheduled members under the
Act and regulations.25 Thus, he cannot receive schedule awards for his emotional condition or
his diabetes under the Act. There is no medical evidence that appellant’s accepted emotional
condition has affected any scheduled members. The medical evidence of record fails to establish
that appellant has permanent impairment of a scheduled member due to these conditions.
Accordingly, the Office properly denied appellant’s claim for a schedule award.
CONCLUSION
The Board finds that the Office reviewed the merits of appellant’s claims on March 30,
2006 and that he has not met his burden of proof in establishing that he developed diabetes as a
consequence of his accepted emotional conditions. The Board further finds that appellant is not
entitled to a schedule award for either his diabetes or his emotional condition.

22

5 U.S.C. § 8107(c)(22).

23

20 C.F.R. § 10.404(a).

24

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a).

25

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the March 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: November 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MEDICAL CENTER, Tuskegee, AL, Employer
__________________________________________

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

Docket No. 15-1484
Issued: December 24, 2015

Case Submitted on the Record

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

JURISDICTION
On June 30, 2015 appellant filed a timely appeal of a May 20, 2015 merit decision and a
June 12, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an injury due to factors of her federal employment; and (2) whether OWCP properly
refused to reopen appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant argues that she has submitted sufficient medical and factual evidence
to establish her claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 8, 2015 appellant, then a 66-year-old housekeeping aid, filed an occupational
disease claim (Form CA-2) alleging that on January 28, 2015 she first realized that her right long
finger flexor tendon sheath tenosynovitis, right long finger extensor tendon subluxation and
triggering, joint hand pain, and right knee contusion were the result of her filling linen carts on a
daily basis.
By correspondence dated April 17, 2015 OWCP informed appellant that the evidence of
record was insufficient to establish her claim. Appellant was advised as to the medical and
factual evidence required and was afforded 30 days to provide the requested information.
An unattributed October 8, 2014 clinic chart note2 documents appellant’s chief
complaints as right knee, hand, and wrist pain. Diagnoses included right long finger extensor
tendon subluxation.
In an October 15, 2015 clinic note, Dr. Ronald Hillyer, a treating Board-certified
orthopedic surgeon, diagnosed subluxing extensor tendon with possible carpal tunnel syndrome.
A physical examination revealed positive Tinel’s and Phalen’s signs and right long finger
subluxing extensor tendon into the ulnar canal. He reported that appellant has had symptoms
since a 1997 work injury.
In an October 29, 2014 clinic note, Dr. Hillyer diagnosed right long finger extensor
tendon subluxation and trigger of right long finger flexor tendon sheath tenosynovitis. He
reviewed a nerve conduction study performed that day and reported no obstruction of the ulnar
or median nerves at the wrist or elbow.
Dr. Hillyer, in a December 3, 2014 clinic chart note, reported appellant was seen for
persistent right hand problems. He reported that appellant has had right hand difficulties since
2002 and that she sustained a knee injury in 1997. Dr. Hillyer noted appellant was first seen
eight years after her 1997 injury in 2005 and that as a result of the injury she developed traumatic
arthritis. Next, he reported appellant also had long finger extensor tendon subluxation and some
flexor tendon tenosynovitis. Dr. Hillyer concluded that appellant has had persistent problems
since her initial employment injury which have worsened over time and resulted in traumatic
arthritis. He noted that in 2006 he requested OWCP to reopen appellant’s claim due to her
difficulties at that time.
In a letter dated December 3, 2014, Dr. Hillyer noted that since 1997 appellant has had
difficulty with her right hand. At the time of his first examination in 2005, arthritic changes
were seen which he determined were traumatic and thus caused by her employment injury.
Dr. Hillyer opined that appellant’s condition had progressed to the point where she was having
difficulty performing work tasks with her right hand. On January 28, 2015 he reported that she
was seen for persistent right hand pain and some left hand changes. Dr. Hillyer noted that
appellant continued to have metacarpophalangeal (MCP) right hand joint arthritis and right long
finger extensor tendon subluxation, which he attributed to a 1997 injury. He reported that her
2

There is only one page and no identification as to whether the report was authored by a physician.

2

right hand condition has been persistent and gotten worse over the years. A review of an x-ray
interpretation revealed basilar joint area bone-on-bone deformity. Dr. Hillyer, in a visit noted
dated January 28, 2015, reviewed an x-ray interpretation of the left hand and diagnosed bilateral
hand osteoarthros, right ligament laxity, and left hand joint pain.
In a February 25, 2015 disability note, Dr. Hillyer diagnosed hand osteoarthritis and
reported that appellant was unable to work.
In a February 25, 2015 report, Dr. Hillyer detailed appellant’s treatment and noted a
history of hypertension and depression. He observed that she was unable to keep her long finger
straight. Dr. Hillyer diagnosed right hand joint pain and osteoarthros. In clinic chart notes dated
February 25, 2015, he diagnosed right knee tenderness, left thumb basilar joint arthritis, and
MCP right hand joint arthritis and right long finger extensor tendon subluxation.
In March 25, 2015 clinic chart note, Dr. Hillyer diagnosed right long finger subluxing
extensor tendon at the MCP joint, left thumb basilar joint arthritis, and persistent right knee
tenderness. A review of x-ray interpretations revealed right knee arthritic changes. With respect
to work capability, Dr. Hillyer reported that appellant was very limited as to what work she was
capable of performing. He, in a March 25, 2015 disability note, diagnosed hand osteoarthritis
and joint pain and released appellant to light-duty work on March 30, 2015.
By decision dated May 20, 2015 OWCP denied the claim as it found appellant failed to
establish fact of injury. It found the evidence submitted failed to establish that the events
described by appellant occurred as alleged as she did not respond to the factual questions posed.
OWCP also found that medical evidence of record failed to establish that the diagnosed
condition was causally related to the event alleged by appellant.
In a form dated June 2, 2015 appellant requested reconsideration and resubmitted
progress reports and letter for the period October 15, 2014 to May 28, 2015, releases to work
with restrictions, and disability slips/work excuse notes from Dr. Hillyer. She also resubmitted a
November 14, 2014 employee health record.
The only new evidence submitted by appellant was a May 28, 2015 report from
Dr. Hillyer diagnosing right upper extremity and knee difficulty. Dr. Hillyer discussed
impairment ratings and referenced a 1997 employment injury. In concluding, he opined that
appellant’s condition was due to the 1997 employment injury.
By decision dated June 12, 2015 OWCP denied reconsideration.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 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 FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
3

5 U.S.C. § 8101 et seq.

3

disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.8 The opinion of the physician must be based on a complete
factual and medical background of the employee, 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.9
ANALYSIS -- ISSUE 1
Appellant alleged that her right long finger flexor tendon sheath tenosynovitis, right long
finger extensor tendon subluxation and triggering, joint hand pain, and right knee contusion were
due to her employment duties. OWCP denied her claim finding that the evidence of record was
insufficient to establish that she performed the duties alleged and the medical evidence was
insufficient to establish a causal relationship between the diagnosed medical conditions and
identified employment duties.
The Board finds that the factual evidence of record is insufficient to establish the work
factors that caused or aggravated appellant’s right long finger flexor tendon sheath tenosynovitis,
right long finger extensor tendon subluxation, and triggering, joint hand pain, and right knee
contusion.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
8

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006)

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

4

Appellant alleged in a Form CA-2 dated April 8, 2015 that her right long finger flexor
tendon sheath tenosynovitis, right long finger extensor tendon subluxation and triggering, joint
hand pain, and right knee contusion were sustained while in the performance of duty. OWCP
informed her in an April 17, 2014 letter that additional medical and factual evidence was needed
to establish her occupational disease claim and afforded her opportunities to submit statements
clarifying the job activities that resulted in the injuries, as well as a comprehensive medical
report containing a diagnosis and an explanation as to how her diagnosed conditions were caused
by the identified employment activities. Appellant did not respond with any additional factual
evidence. As part of her burden of proof, appellant must provide a detailed description of the
employment factors or conditions that she believes caused or adversely affected the condition or
conditions for which compensation is claimed.10 The Board finds, therefore, that she has not
established the alleged employment activities. Appellant failed to meet her burden of proof.11
On appeal appellant argues that medical evidence and documents submitted establish her
claim. OWCP denied her claim as the factual evidence was insufficient to establish fact of
injury. It requested additional medical and factual evidence from appellant describing her work
duties which she believed caused or contributed to the diagnosed conditions. Appellant did not
provide a statement or detailed description of the duties she performed and attributed as causing
her condition was provided. As discussed above, OWCP properly denied her claim as she failed
to supply the factual evidence requested regarding her work duties.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,12
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) submit relevant and pertinent new evidence not previously
considered by OWCP.13 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.14 When a claimant fails to meet one of the above standards, OWCP
10

C.C., Docket No. 14-0939 (issued July 6, 2015); Penelope C. Owens, 54 ECAB 684 (2003).

11

Since appellant did not establish the factual component of fact of injury, it is not necessary for the Board to
consider the medical evidence with respect to causal relationship. C.C., supra note 10; D.F., Docket No. 10-1774
(issued April 18, 2011).
12

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
13

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
14

20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB
657 (2006).

5

will deny the application for reconsideration without reopening the case for review on the
merits.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion in denying appellant’s request
for reconsideration.
Appellant’s June 2, 2015 request for reconsideration neither alleged, nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. She did not identify a
specific point of law or show that it was erroneously applied or interpreted. Additionally,
appellant did not advance a relevant legal argument not previously considered by OWCP.
Consequently, appellant is not entitled to a review of the merits of her claim based on the first
and second above-noted requirements under section 10.606(b)(3).16
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered by OWCP. Appellant submitted a new report from Dr. Hillyer dated
May 28, 2015 attributing her right upper extremity and knee conditions to a 1997 employment
injury and resubmitted medical evidence from October 15, 2014 to March 25, 2015 from
Dr. Hillyer and a November 14, 2014 employee health record. The submitted medical evidence
is irrelevant as the underlying issue is factual in nature; whether appellant established
employment factors which she claimed caused right long finger flexor tendon sheath
tenosynovitis, right long finger extensor tendon subluxation and triggering, joint hand pain, and
right knee contusion.17 The Board, therefore, finds that Dr. Hillyer’s May 28, 2014 report is
insufficient to reopen appellant’s claim for a merit review.
Appellant resubmitted progress reports and letters for the period October 15, 2014 to
May 28, 2015, releases to work with restrictions, and disability slips/work excuse notes from
Dr. Hillyer and a November 14, 2014 employee health record. This evidence was previously of
record and considered by OWCP in its May 20, 2015 decision. Evidence which is duplicative or
cumulative in nature is insufficient to warrant reopening a claim for merit review.18 The Board
finds, therefore, that this evidence is insufficient to reopen appellant’s claim for a merit review.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. §10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

15

20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
16

20 C.F.R. § 10.606(b)(3).

17

R.M., 59 ECAB 690 (2008); Betty A. Butler, 56 ECAB 545 (2005).

18

L.H., 59 ECAB 253 (2007); Denis M. Dupor, 51 ECAB 482 (2000).

6

CONCLUSION
The Board finds that appellant failed to establish that she sustained an injury due to
factors of her federal employment. The Board further finds that OWCP properly denied
appellant’s request for further merit review of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 12 and May 20, 2015 are affirmed.
Issued: December 24, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


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

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Docket No. 16-0912
Issued: September 6, 2016

Case Submitted on the Record

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

On April 1, 2016 appellant filed a timely appeal of a November 30, 2015 merit decision
of the Office of Workers’ Compensation (OWCP) that denied his claim for left wrist surgery and
concurrent wage-loss compensation. OWCP adjudicated the case under File No. xxxxxx466.
The Board docketed the appeal as 16-0912.
On January 24, 2014 appellant filed a traumatic injury claim (Form CA-1) alleging that
on January 10, 2014 he sprained his left wrist while pushing a heavy mail cart onto a trailer.
OWCP denied this claim on March 14, 2014. Appellant requested a hearing, and in a decision
dated November 7, 2014, an OWCP hearing representative reversed the March 14, 2014
decision. OWCP accepted left wrist sprain (under File No. xxxxxx466).
In a telephone conversation on February 4, 2015, appellant related that he reinjured his
left wrist on January 31, 2015. OWCP advised him to file a new claim. Appellant filed a new
claim, adjudicated by OWCP under File No. xxxxxx212.
Under the instant claim (File No. xxxxxx466), in March 2015 appellant began submitting
claims for compensation (Form CA-7) beginning on March 11, 2015. The record also contains a
request for fusion of the left wrist, dated March 11, 2015.

By decision dated May 29, 2015, OWCP denied the compensation claims and
authorization for surgery. It noted that appellant had a new claim, File No. xxxxxx212, that had
not been formally adjudicated and, although he asked that it be withdrawn, OWCP continued to
develop this new injury.1 Appellant requested a hearing that was held on October 1, 2015. He
testified that on January 31, 2015 he was lifting a plate weighing 100 pounds and felt immediate
severe pain. Appellant indicated that, on the advice of the clinic where he was treated and an
employing establishment supervisor, he submitted all information regarding the 2015 left wrist
injury under File No. xxxxxx466. In a November 30, 2015 decision, an OWCP hearing
representative denied appellant’s claims for wage-loss compensation and surgical authorization
under File No. xxxxxx466 because the medical evidence was insufficient to establish the need
for surgery due to the January 10, 2014 injury. The hearing representative explained that, if the
January 31, 2015 injury played a role in materially worsening appellant’s left wrist condition
precipitating the need for surgery, he should request authorization under File No. xxxxxx212.
The hearing representative also indicated that OWCP should consider doubling the files.
The Board has duly considered the matter and concludes that this case is not in posture
for decision. OWCP procedures provide that cases should be combined when correct
adjudication of the issues depends on frequent cross-reference between files.2 In the instant case,
OWCP denied claims for wage-loss compensation and surgical authorization for a January 10,
2014 left wrist injury (File No. xxxxxx466). As noted, appellant has a second claim for a
January 31, 2015 left wrist injury (File No. xxxxxx212). OWCP denied the claims for disability
and surgical authorization under File No. xxxxxx466, and noted that OWCP should consider
doubling the files.
Upon review of the case record, the Board notes that an addendum to a left wrist x-ray,
dated January 22, 2014, shortly after the January 10, 2014 left wrist injury, advised that a
scaphoid lunate ligamentous insufficiency or tear was present. On July 23, 2015 Dr. Michael F.
Sacco, a Board-certified orthopedic surgeon, noted a history that appellant hyperextended his left
wrist on January 10, 2014. He advised that his review of the January 22, 2014 x-ray plus an
x-ray he took for comparison were consistent with a scapholunate ligament tear, which was
consistent with appellant’s injury. Dr. Sacco recommended surgery. On October 29, 2015
Dr. Jaspal Sidhu, appellant’s attending physician who is Board-certified in emergency medicine,
noted his review of appellant’s medical history and the transcript of the October 2015 hearing.
He described both appellant’s left wrist injuries. Dr. Sidhu advised that instability, caused by the
January 1, 2014 injury, was made much worse by the January 31, 2015 reinjury. He concluded
that appellant’s current left wrist condition was caused by these employment injuries and
recommended surgical repair.
As these files have not been combined, the Board is unable to determine whether all
pertinent evidence had been reviewed in order to establish the need for surgery and concurrent
disability compensation, either due to the January 10, 2014 left wrist injury, the January 31, 2015
left wrist injury, or both. The record before the Board does not contain the evidence from the
1

File No. xxxxxx212 remains open and is under development.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).

2

2015 claim. The Board, therefore, is unable to properly adjudicate the issues of appellant’s
claims for compensation and surgical authorization. The Board finds the case is not in posture
for decision as the record before the Board is incomplete and would not permit an informed
adjudication of the case by the Board. The case must be remanded to OWCP to combine the
files and for further reconstruction and development deemed necessary, to be followed by an
appropriate de novo decision.3
IT IS HEREBY ORDERED THAT the November 30, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: September 6, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3

See W.B., Docket No. 15-1751 (issued March 8, 2016).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, West Orange, NJ,
Employer
__________________________________________

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

Docket No. 16-1028
Issued: August 17, 2016

Case Submitted on the Record

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

JURISDICTION
On April 19, 2016 appellant, through counsel, filed a timely appeal from a March 29,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established bilateral carpal tunnel syndrome causally
related to the accepted factors of his federal employment.
FACTUAL HISTORY
On September 11, 2014 appellant, then a 47-year-old supervisory air marshal, filed an
occupational disease claim (Form CA-2) alleging that he sustained bilateral carpal tunnel
syndrome causally related to his federal employment. He indicated that he performed repetitive
keyboard activity with respect to administrative duties, and also had participated in agency
training sessions since 2002. Appellant’s supervisor noted on the reverse of the claim form that
appellant’s work assignment had changed as he had been performing “administrative duties”
since August 15, 2014.
By letter dated September 25, 2014, OWCP requested that appellant submit additional
rationalized medical evidence to support his claim for compensation. Appellant was afforded 30
days to submit this evidence.
On October 3, 2014 OWCP received a supplemental statement from appellant dated
August 29, 2014. Appellant explained that, in addition to administrative duties, he was required
to participate in quarterly fitness assessments, which required weight lifting and activity such as
push-ups. He indicated that he also participated in defense measures and arrest training, as well
as firearms training. Appellant wrote that he must maintain proficiency in firearms and the
employing establishment required participation in firearms training. In an October 3, 2014 letter,
he wrote that as a squad supervisor since 2002 he was required to participate “daily, weekly,
and/or monthly” in training which included physical activity such as hand-to-hand combat and
fitness assessments.
Appellant submitted an August 28, 2014 report from Dr. Brett Gerstman, a Boardcertified physiatrist. Dr. Gerstman indicated that he had treated appellant since June 30, 2014
and an electromyogram (EMG) dated August 15, 2014 had confirmed carpal tunnel syndrome.
He reported that appellant’s job involved significant administrative and manual tasks using hands
and wrists, and he used firearms and his upper extremities for hand-to-hand combat.
Dr. Gerstman opined, “it is likely the current symptoms were aggravated by employment.” In a
Form CA-20 attending physician’s report, dated September 17, 2014, he diagnosed carpal tunnel
syndrome and checked a box marked “no” that the condition was caused or aggravated by
employment activity.
By decision dated December 5, 2014, OWCP denied the claim for compensation. It
found that the employment factors occurred as alleged, but that the medical evidence was
insufficient to establish a diagnosed carpal tunnel syndrome as causally related to accepted
factors of employment.
In a letter dated December 15, 2014, received by OWCP on December 18, 2014,
appellant, through counsel, requested a hearing before an OWCP hearing representative. A

2

hearing was held on June 26, 2015. Appellant indicated that he had lumbar surgery on April 16,
2015 and was not currently working.
Appellant submitted a June 30, 2015 report from Dr. Gerstman, who provided results on
examination. Dr. Gerstman diagnosed moderate-to-severe bilateral carpal tunnel syndrome. He
opined, “Considering [appellant’s] job training and continued need to use his firearm, it is likely
that this frequent use of his firearm predisposed him to develop carpal tunnel syndrome. I
believe there is a causal relationship between his employment and his development of carpal
tunnel syndrome.”
By decision dated September 9, 2015, an OWCP hearing representative affirmed the
December 5, 2014 OWCP decision. He found the medical evidence of record was insufficient to
establish causal relationship between carpal tunnel syndrome and his federal employment.
Appellant requested reconsideration on November 2, 2015 and submitted an October 15,
2015 report from Dr. Matthew Zornitzer, a Board-certified orthopedic surgeon. Dr. Zornitzer
recommended carpal tunnel release surgery. He opined, “Considering the repetitive activity and
grappling and training that he needs to do with his hands for 20+ hours a week as well as the fact
that he reported to me he fires 3,000 to 5,000 rounds through a 357 Magnum, I would state
within a reasonable degree of medical probability that his carpal tunnel syndrome is work
related.”
By decision dated March 29, 2016, OWCP reviewed the merits of the claim, but found
that the medical evidence submitted remained insufficient to establish the claim for
compensation. It indicated that the evidence did not contain a rationalized medical opinion as to
how the accepted work factors caused or aggravated appellant’s bilateral carpal tunnel syndrome.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or 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.3
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.4

3

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

4

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

3

Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.5 A physician’s opinion on the issue of whether there is a
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.6
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.7
ANALYSIS
In the present case, appellant has alleged bilateral carpal tunnel syndrome as a result of
his federal employment. He discussed repetitive activity in keyboard entry and other
administrative duties. In addition, appellant indicated that he was required to attend training at
times, which included use of the hands in arrest training and use of firearms. OWCP has
accepted that the factors occurred as alleged. The Board finds that appellant has not established
that he sustained carpal tunnel syndrome causally related to the accepted work factors.
Dr. Gerstman diagnosed bilateral carpal tunnel syndrome based on an August 15, 2014
EMG. The issue is whether there is sufficient medical evidence to establish causal relationship
between the diagnosed condition and the identified employment factors. Dr. Gerstman provided
a brief history in his August 28, 2014 report that appellant’s job included administrative tasks,
and training with firearms and hand-to-hand combat. He did not provide additional details
demonstrating how long appellant worked at the employing establishment and how often he
engaged in specific activities. The opinion that employment “likely” aggravated symptoms is of
little probative value without additional explanation.8 The Board also notes that in the
September 17, 2014 CA-20 report Dr. Gerstman checked “no” with regard to causal relationship.
In the June 30, 2015 report, Dr. Gerstman referred only to the use of firearms, without providing
a rationalized medical opinion. The Board finds that Dr. Gerstman did not provide a rationalized
medical opinion based upon a complete medical and factual background explaining causal
relationship between the accepted factors of appellant’s employment and his bilateral carpal
tunnel syndrome.9
Dr. Zornitzer provided an October 15, 2015 report opining that appellant’s carpal tunnel
syndrome was work related. He does not provide a complete history or discuss the nature and
duration of appellant’s identified employment activity. Dr. Zornitzer briefly refers to repetitive
5

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

6

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

7

Id.

8

Medical opinions such as a condition is “probably” related, “most likely” related or “could be” related are
speculative and diminish the probative value of the medical opinion evidence. Kathy A. Kelley, 55 ECAB 206,
211 (2004).
9

Supra note 6.

4

activity, “grappling” and firing large quantities of ammunition. It is not clear from the record
how often appellant was required to undergo firearms training. Moreover, no explanation is
provided as to how a specific work activity contributed to carpal tunnel syndrome. If the
physician is opining that work activity caused carpal tunnel syndrome, there must be a clear
explanation as to the mechanism of injury and how the work activity caused carpal tunnel
syndrome.10 If there was an aggravation, the nature and extent of the aggravation must be
discussed. An opinion with respect to aggravation must differentiate between the effects of the
work-related injury or disease and the preexisting condition.11 The Board has held that the
physician must clearly explain the nature and extent of any aggravation, including whether
temporary or permanent.12
It is appellant’s burden of proof to establish the claim for compensation. The Board finds
that appellant did not meet his burden of proof in this case.
On appeal counsel argues that the physicians did substantiate causation, that OWCP’s
decision did not properly consider the evidence and engaged in argument not analysis, and that
OWCP creates an impossible evidentiary standard. The March 29, 2016 OWCP decision finds
that the medical evidence does not provide a rationalized medical opinion on causal relationship
between the diagnosed condition and factors of federal employment. It is well established that a
claimant must provide rationalized medical opinion evidence on causal relationship, based on a
complete background, to establish the claim for compensation.13
For the reasons discussed above, the Board finds that appellant did not meet his burden of
proof in this case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established bilateral carpal tunnel syndrome
causally related to the accepted factors of his federal employment.

10

See L.W., Docket No. 14-0036 (issued March 6, 2014).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e) (January 2013).

12

See R.H., Docket No. 15-1785 (issued January 29, 2016).

13

Supra note 7.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 29, 2016 is affirmed.
Issued: August 17, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL ARKANSAS VETERANS HEALTH
CARE SYSTEM, Little Rock, AR, Employer
__________________________________________

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

Docket No. 15-382
Issued: April 3, 2015

Case Submitted on the Record

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

JURISDICTION
On December 5, 2014 appellant filed a timely appeal of a June 10, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA), the Board has jurisdiction over the June 10, 2014
nonmerit decision. The Board does not have jurisdiction over a decision on the merits of the
claim.2

1
2

5 U.S.C. § 8101 et seq.

The last merit decision was an OWCP decision dated December 6, 2012. Under the Board’s Rules of Procedure
an appeal must be filed within 180 days from the date of the last OWCP decision. An appeal is considered filed
upon receipt by the Clerk of the Board. One hundred and eighty days from June 10, 2014, the date of OWCP’s
decision was December 8, 2014. Since using December 9, 2014, the date the appeal was received by the Clerk of
the Board, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The
date of the U.S. Postal Service postmark is December 5, 2014, rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely and failed to show clear evidence of error.
FACTUAL HISTORY
On September 7, 2012 appellant, then a 46-year-old nurse, filed an occupational disease
claim (Form CA-2) alleging that she sustained a neck and shoulder injury as a result of her
federal employment. On the claim form, she referred to work activity on June 30 and
July 1, 2012.
By decision dated December 6, 2012, OWCP denied the claim for compensation. It
found the medical evidence was insufficient to establish the claim.
On December 6, 2013 OWCP received a letter from appellant dated November 3, 2013
and additional evidence. Appellant noted that her claim had been denied on December 6, 2012
and she identified OWCP claim number. She stated that the letter and additional documents
were “submitted in request for reconsideration” of her claim. The medical evidence submitted
on December 6, 2013 included a July 11, 2013 report from Dr. Manuel Kelley, a Board-certified
family practitioner, and an undated report from Dr. Obama Asemota, a surgeon.
On December 8, 2013 OWCP received an appeal request form dated December 5, 2013
from the December 6, 2012 decision. Appellant checked “reconsideration” on the form.
By decision dated June 10, 2014, OWCP found that appellant’s request for
reconsideration was untimely. According to it, the request for reconsideration was not received
until December 8, 2013. OWCP denied the request on the grounds that it did not show clear
evidence of error.
LEGAL PRECEDENT
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.3 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.”4
According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP
decision as a matter of right.5 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.6 OWCP, through
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.605.

5

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

Under section 8128 of FECA, “[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.”

2

regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
§ 8128(a) of FECA. As one such limitation, 20 C.F.R. § 10.607 provides that an application for
reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.7 According to OWCP procedures, the date received is the determined by the
document received date in the Integrated Federal Employees’ Compensation System (iFECS).8
ANALYSIS
In the present case, OWCP has made an improper finding that appellant’s application for
reconsideration was untimely. The last merit decision was dated December 6, 2012. Appellant
has one year to timely request reconsideration. The one-year time limitation begins to run on the
date following the date of the original OWCP decision.9 Therefore, appellant had until
December 6, 2013 to timely file an application for reconsideration.
On December 6, 2013 OWCP received a request dated November 13, 2013 for
reconsideration of the December 6, 2012 decision. Appellant identified OWCP’s decision and
its file number. She stated that she was requesting reconsideration and submitted additional
evidence. Also received was a single appeal request form which was dated December 5, 2013
and received on December 8, 2013. As noted in OWCP procedures, an application for
reconsideration does not have to be on an appeal request form.10 In this case, appellant’s
reconsideration request was dated November 13, 2013 and received by OWCP on December 6,
2013 making the request timely.
The Board accordingly finds that appellant filed a timely application for reconsideration
on December 6, 2013. OWCP reviewed the evidence under a clear evidence of error standard,
which is appropriate only for untimely applications for reconsideration.11 The case will
accordingly be remanded to OWCP for proper review of the timely application for
reconsideration and issuance of an appropriate decision.12
CONCLUSION
The Board finds that OWCP improperly found appellant had submitted an untimely
application for reconsideration.

7

20 C.F.R. § 10.607.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011). This
section provides that, for decisions prior to August 29, 2011, the application for reconsideration must be mailed
within one year.
9

See C.K., Docket No. 10-1665 (issued May 25, 2011).

10

Supra note 8, Chapter 2.1602.3 (October 2011) (letter format is acceptable, and should contain sufficient detail
to discern the decision being contested); see also E.R., Docket No. 13-1800 (issued February 21, 2014).
11

See J.P., Docket No. 12-1596 (issued March 27, 2013); 20 C.F.R. § 10.607(b).

12

See E.B., Docket No. 12-84 (issued May 15, 2012).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 10, 2014 is set aside and the case remanded to OWCP for
further action consistent with this decision of the Board.
Issued: April 3, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY
& HEALTH ADMINISTRATION,
Pikeville, KY, Employer
__________________________________________

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

Docket No. 10-748
Issued: December 3, 2010

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 January 25, 2010 appellant filed a timely appeal from a July 27, 2009 decision of the
Office of Workers’ Compensation Programs, which denied merit review.1 Because more than
one year has elapsed since the most recent merit decision dated July 9, 2008 and the filing of this
appeal on January 25, 2010, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501.2 and 501.3.2
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for merit
review under 5 U.S.C. § 8128(a).
1

The 180th day following the Office decision date was January 24, 2010. As this falls on a Sunday the next
business day is January 25, 2010, rendering the appeal timely. 20 C.F.R. § 501.3(f)(2).
2

For Office decisions issued prior to November 19, 2008 a claimant had one year to file an appeal. 20 C.F.R.
§ 501.3(d) (2008). An appeal, of Office decisions issued on or after November 19, 2008 must be filed within 180
days of the decision. 20 C.F.R. § 501.3(e) (2009).

FACTUAL HISTORY
On February 28, 2006 appellant, then a 58-year-old coalmine safety and health inspector,
was injured when his vehicle struck a slow moving coal truck in the rear. He sustained injuries
to his right shoulder, right ankle, back of neck and left arm. Appellant went to the emergency
room for treatment and remained off work on the advice of his physician, Dr. Van S. Breeding, a
Board-certified family practitioner, who ordered a period of physical therapy. The Office
accepted the claim for cervical sprain and paid wage-loss compensation benefits. Appellant
returned to regular duty before taking disability retirement for another condition.3
On March 7, 2008 the Office received appellant’s request for authorization of a cervical
discectomy and fusion. On March 21, 2008 an Office medical adviser reviewed his request
along with the medical evidence of file and determined that additional medical opinion was
needed before a determination could be made on the request.
In an April 15, 2008 letter, the Office advised appellant that the evidence of record was
not sufficient to authorize the proposed surgery because the request was not supported by
history, examination findings or diagnostic studies. It requested that he provide medical reports
from all caregivers as well as all diagnostic studies performed on his cervical spine and right
upper extremity, including any electrophysiologic studies, electromyogram/nerve conduction
(EMG/NCS) study.
The Office received notes from Mountain Comprehensive Health Corporation dated
March 2 to July 25, 2007; treatment notes from Dr. Breeding dated March 2, 2006 to May 16,
2007; a June 4, 2007 EMG/NCS; a May 23, 2007 cervical magnetic resonance imaging (MRI)
scan; x-ray reports for the right foot, right ankle, right shoulder and cervical spine; a May 16,
2007 report from Dr. Mahmood Alam, a Board-certified internist; and a June 20, 2006 treatment
note from Dr. Fares Khater, a Board-certified internist. The record reflects that appellant
underwent surgery for a cervical discectomy and fusion on April 9, 2008.
On June 15, 2008 an Office medical adviser reviewed the medical evidence and found
that the requested surgery should not be authorized. He noted that the Office had accepted a
cervical sprain on February 28, 2006. An MRI scan of the cervical spine obtained 15 months
later was consistent with appellant’s age. Further, there was a gap in appellant’s report of neck
pain from March 2006 to May 2007, during while Dr. Breeding treated him for a burn injury and
chest pain without any reference to the cervical spine. The Office medical adviser found that
appellant’s accepted cervical sprain was not responsible for appellant’s cervical degenerative
disease or disc condition that required the April 9, 2008 two-level surgical procedure.
By decision dated July 9, 2008, the Office denied appellant’s request for authorization
and payment of the April 9, 2008 surgery. It found that the medical evidence of file was not
sufficient to establish that the need for surgery resulted from the February 28, 2006 work injury.

3

The record reflects appellant has other claims which the Office accepted. Under case number xxxxxx006, the
Office accepted a cervical strain for an April 24, 2003 work injury. Under case number xxxxxx367, the Office
accepted binaural hearing loss which developed on July 19, 1989.

2

On July 3, 2009 appellant requested reconsideration. In a June 30, 2009 statement, he
noted his various claims before the Office and indicated that he was referred to a pain
management clinic as a result of his work injuries. With regard to the April 9, 2008 surgery,
appellant stated that the last thing he wanted was to have back surgery and that he tried to work
as long as he could. He also stated that he had bariatric surgery.
Appellant submitted documents related to his various claims. In an October 21, 2008
treatment note, Dr. Duane Densler, a neurosurgeon, addressed appellant’s progress following his
anterior cervical discectomy and fusion.
In a July 27, 2009 decision, the Office denied appellant’s reconsideration request on the
grounds that it did not raise any substantive legal questions or include new and relevant evidence
sufficient to warrant review of the prior decision.
LEGAL PRECEDENT
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
will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
Appellant’s reconsideration request did not show that the Office erroneously applied or
interpreted a specific point of law. Additionally, he did not advance a relevant legal argument
not previously considered by the Office. Appellant’s request for reconsideration addressed his
various work injuries and that he was referred to a pain management clinic as a result. His letter
did not show that the Office erroneously applied or interpreted a point of law or advance a point
of law or fact not previously considered by the Office. Appellant did not identify any particular
point of law or fact that the Office had not considered or establish that the Office had
erroneously interpreted a point of law. Consequently, he is not entitled to a review of the merits
of his claim based on the first and second above-noted requirements under section 10.606(b)(2).
Appellant also did not submit relevant and pertinent new evidence not previously
considered by the Office. The relevant issue in this case is whether the cervical surgery he
underwent on April 9, 2008 resulted from his February 28, 2006 cervical strain. This is a
question that must be addressed by medical evidence. Evidence pertaining to appellant’s gastric
4

5 U.S.C., §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.608(b).

3

bypass and hearing loss conditions and evidence predating the current claim are not relevant to
the issue of his cervical surgery denial. The Board has held that the submission of evidence
which does not address the particular issue involved does not constitute a basis for reopening a
case.7 The Board notes much of the remaining evidence submitted is duplicative of that already
of record and previously considered by the Office in its July 9, 2008 decision.8 Therefore, this
evidence is insufficient to warrant a merit review.
The Office properly denied a merit review as appellant did not show that the Office
erroneously applied or interpreted a point of law; advance a point of law or fact not previously
considered by the Office and did not submit relevant and pertinent evidence not previously
considered by the Office.
On appeal, appellant asserts that he is still being treated for his work injury and that
pictures he submitted confirmed how much damage was done during his accident. The Board
only has jurisdiction to consider whether the Office properly denied further merit review of his
claim. As explained, appellant did not meet one of the three regulatory requirements for
reopening his claim.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).

7

The Board has held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case. Patricia G. Aiken, 57 ECAB 441 (2006).
8

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).

4

ORDER
IT IS HEREBY ORDERED THAT the July 27, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 3, 2010
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

5