United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 13-1347
Issued: February 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 14, 2013 appellant, through her attorney, filed a timely appeal from a March 26,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) reducing her
compensation benefits. 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 the claim.
ISSUE
The issue is whether OWCP properly determined that the selected position of customer
complaint clerk represented appellant’s wage-earning capacity.
On appeal, counsel asserts that OWCP’s March 26, 2013 decision is contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before July 7, 2007 appellant, then a 52-year-old mail handler,
sustained repetitive motion injuries to her right hand and middle finger. It accepted right carpal
tunnel syndrome and right trigger finger. Appellant has other claims that were combined with
the present file: File No. xxxxxx518, accepted for degenerative osteoarthritis and meniscal tear
of the right knee occurring on or before March 14, 2000, permanent and stationary as of
April 23, 2009; File No. xxxxxx876 accepted for May 22, 2002 traumatic right shoulder and
head injuries; File No. xxxxxx482 accepted for a third degree ligament tear of the right thumb
occurring on October 6, 2003, resolved with no work restrictions as of November 20, 2003; File
No. xxxxxx362, involving a 2004 occupational disease claim accepted for left shoulder, elbow,
wrist and thumb sprains; File No. xxxxxx542 accepted for right lateral epicondylitis sustained on
or before October 28, 1994, open for medical treatment; File No. xxxxxx805 accepted for a right
shoulder strain and tendinitis of the right hand sustained on or before April 1, 2005, open for
medical treatment. OWCP denied her claim under File No. xxxxxx374 for right ankle tendinitis.
On January 4, 2007 appellant underwent surgical reconstruction of the left thumb
ligament, de Quervain’s tendon interposition arthroplasty and release of first dorsal
compartment. She returned to light duty on March 1, 2007, with intermittent work absences
through March 2009.
Dr. Nicole Pham-Bailey, an attending Board-certified physiatrist, treated appellant for
right carpal tunnel syndrome, right carpometacarpal arthritis, right long digit trigger finger, a
partial tear of the right supraspinatus tendon and a tear of the right medial meniscus. She
administered steroid injections and prescribed medication from 2007 through 2009.
By decision dated March 10, 2009, OWCP granted appellant a schedule award for an 11
percent impairment of the left arm due to arthroplasty of the carpometacarpal joint of the left
thumb. The date of maximum medical improvement was September 17, 2007.
Appellant stopped work on April 9, 2009 as the employing establishment could no longer
provide modified duty. She did not return to work and received wage-loss compensation on the
periodic rolls. On April 25, 2009 appellant underwent right thumb trapeziectomy and pinning
and right middle digit trigger release, authorized by OWCP.
In an October 1, 2009 report, Dr. Pham-Bailey permanently restricted gripping or
grasping with the right hand to no more than 15 minutes at one time and for no more than 20
cumulative minutes an hour. She limited lifting and carrying limited to 10 pounds.
As Dr. Pham-Bailey found that appellant could perform limited-duty work, OWCP
referred her for vocational rehabilitation. Appellant completed a functional capacity evaluation
and vocational aptitude testing.2 A vocational rehabilitation counselor noted on November 9,
2009 that appellant had a high school diploma, worked for nine years as a file clerk, two years as
2

An October 8, 2009 functional capacity evaluation demonstrated that appellant could perform full-time work at
the medium physical demand level. A November 3, 2009 vocational aptitude test revealed ninth grade reading level
and a sixth grade math level.

2

a shipping clerk, one year as a driving instructor and 21 years as a mail handler. The vocational
rehabilitation counselor completed a transferrable skills analysis finding that appellant could
perform a clerical position after computer skills training.
On January 8, 2010 the vocational rehabilitation counselor identified the position of
customer complaint clerk (U.S. Department of Labor’s Dictionary of Occupational Titles
#241.367-014) as a vocational goal. The position was at the sedentary physical demand level,
with occasional lifting up to 10 pounds, occasional reaching, no stooping, kneeling, crouching or
climbing. The customer complaint clerk position required specific vocational preparation of six
months to one year, commensurate with appellant’s 11 years of clerical job experience.
Appellant’s work history also met the four- to six-month vocational reparation requirement. The
vocational rehabilitation counselor recommended that appellant enroll in a six-month office
management course at a community college. OWCP approved the rehabilitation plan on
February 11, 2010.
Appellant began classes on February 17, 2010, taking five computer courses in word
processing and accounting and a class in career development. She earned a certificate in Office
Management Systems on August 11, 2010. OWCP conducted placement efforts from August 20,
2010 to February 1, 2011.3
On February 25, 2011 appellant underwent a surgical repair of a left supraspinatus tear
and a closed manipulation of the right shoulder under anesthesia. Dr. Pham-Bailey provided
permanent work restrictions on April 11, 2011 limiting lifting or forceful grasping with the left
hand to 10 pounds and no repetitive overhead reaching or forceful pulling/pushing with the left
arm. She provided identical restrictions for the left arm on August 23, 2011, noting that
appellant’s condition was permanent and stationary.
On June 9, 2011 appellant retired from the employing establishment.
The vocational rehabilitation counselor resumed job placement activities on
December 28, 2011. She performed a labor market survey on January 24, 2012, determining that
entry level customer complaint clerk positions were available in appellant’s commuting area with
a starting salary of $8.00 to $19.23 an hour. The vocational rehabilitation counselor noted that
appellant successfully completed a six-month office management program, which qualified her
for entry level work, in addition to prior work experience as a file clerk, shipping clerk and mail
handler.
By notice dated June 27, 2012, OWCP advised appellant that it proposed to reduce her
monetary compensation under 5 U.S.C. §§ 8106 and 8115 based on her projected earnings of
$13.33 an hour or $533.20 a week in the selected position of customer complaint clerk. It noted
that the position was within the work restrictions provided by Dr. Pham-Bailey, as it did not
require lifting more than 10 pounds or repetitive upper extremity motion. OWCP afforded

3

The vocational rehabilitation counselor provided numerous job contacts for appellant from August 2010 to
January 2011. Appellant applied for over 60 clerical positions from October 2010 and January 2011. The
vocational rehabilitation counselor found appellant fully cooperative.

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appellant 30 days to submit evidence or argument against the proposed reduction of
compensation. Appellant did not submit additional evidence prior to August 16, 2012.
By decision dated August 16, 2012, OWCP finalized the proposed reduction of
appellant’s compensation effective August 26, 2012 based on her projected earnings of $533.20
a week as a customer complaint clerk. It found that the selected position was medically and
vocationally appropriate. OWCP noted that appellant had not submitted evidence or argument
indicating that she was unable to perform the job. Beginning August 26, 2012, appellant would
receive $418.75 in weekly compensation.
In an August 21, 2012 letter, counsel requested a telephonic oral hearing, held on
December 12, 2012. At the hearing, he asserted that the customer complaint clerk position
exceeded appellant’s medical limitations and her vocational skills. Following the hearing,
appellant submitted the January 12 and December 13, 2013 reports of Dr. Pham-Bailey
reiterating previous work restrictions for both upper extremities.
By decision dated March 26, 2013, OWCP’s hearing representative affirmed the
August 16, 2012 decision finding that the selected position of customer complaint clerk properly
represented appellant’s wage-earning capacity. She found that the selected position was within
the left upper extremity restrictions under File No. xxxxxx362 and the right upper extremity
restrictions under File No. xxxxxx241. The hearing representative noted that a review of
appellant’s other claim files revealed no other current work restrictions. She further found that
the job was commensurate with appellant’s work experience and vocational preparation in office
management services.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction of benefits.4 Under section 8115(a), wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent his or her wageearning capacity or if the employee has no actual earnings, his or her wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, his or
her usual employment, age, qualifications for other employment, the availability of suitable
employment and other factors and circumstances which may affect wage-earning capacity in his
or her disabled condition.5
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regards to his or
her physical limitations, education, age and prior experience. Once this selection is made, a
4

David W. Green, 43 ECAB 883 (1992).

5

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

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determination of wage rate and availability in the 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,6 will result in the percentage of the employee’s loss of
wage-earning capacity.7
ANALYSIS
OWCP accepted that appellant sustained multiple upper and lower extremity injuries and
conditions while working as a mail handler, including biltateral rotator cuff tears, carpometacaral
arthritis of both thumbs and a long right trigger finger. Appellant stopped work on April 9, 2009
and did not return. Dr. Pham-Bailey, an attending Board-certified physiatrist, found appellant
able to perform full-time restricted duty as of October 1, 2009.
The medical evidence establishes that appellant could perform light duty. OWCP
referred her for vocational rehabilitation in November 2009. Appellant completed a functional
capacity evaluation and vocational assessment. Dr. Pham-Bailey provided permanent work
restrictions for both upper extremities on February 25 and August 23, 2011. She restricted lifting
to 10 pounds, with no repetitive overhead reaching, forceful gripping, grasping or pushing. The
vocational rehabilitation counselor identified the position of customer complaint clerk as within
appellant’s physical limitations and vocational aptitudes. The customer complaint clerk position
was classified as sedentary, with occasional lifting up to 10 pounds and occasional reaching.
The physical requirements are within the restrictions set forth by Dr. Pham-Bailey. The
vocational rehabilitation counselor determined the prevailing wage rate of these positions and
their reasonable availability in the open labor market. Based on these considerations, OWCP
issued the March 26, 2013 decision reducing appellant’s compensation based on her ability to
earn $533.20 a week as a customer complaint clerk.
The Board finds that OWCP appropriately considered the proper factors, such as
availability of customer complaint clerk positions and appellant’s physical limitations, in
determining that the job represented her wage-earning capacity. OWCP properly considered
Dr. Pham-Bailey’s restrictions and the medical evidence in each of appellant’s claims in
determining that the customer complaint clerk position was medically suitable work. Appellant
completed a six-month office management course and had extensive prior work experience as a
file and chipping clerk. OWCP followed the established procedures under the Shadrick decision
in calculating appellant’s employment-related loss of wage-earning capacity. Counsel does not
contest OWCP’s calculations. Also, appellant did not submit probative medical evidence
indicating that she was not capable of performing the selected position.
The Board finds that OWCP properly found that appellant was medically and
vocationally capable of working eight hours a day as a customer complaint clerk. Thus,
OWCP’s March 26, 2013 decision affirming the prior reduction of appellant’s compensation

6

5 ECAB 376 (1953).

7

Francisco Bermudez, 51 ECAB 506 (2000); James A. Birt, 51 ECAB 291 (2000).

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based on her ability to earn wages in the selected position of customer complaint clerk is proper
under the law and facts of this case.8
On appeal, counsel asserts that OWCP’s March 26, 2013 decision was contrary to fact
and law. The Board finds that the selected position of customer complaint clerk is within
appellant’s medical limitations and commensurate with her work experience and vocational
training.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly determined that the selected position of customer
complaint clerk represented appellant’s wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 26, 2013 is affirmed.
Issued: February 18, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8

E.T., Docket No. 10-559 (issued March 28, 2011).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
SAN ANTONIO AIR LOGISTICS CENTER,
KELLY AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 07-1112
Issued: November 27, 2007

Case Submitted on the Record

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

JURISDICTION
On March 19, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ nonmerit decision dated February 28, 2007. The last merit decision of
record is the Board’s February 2, 2005 decision. As more than one year has elapsed between the
last merit decision and the filing of this appeal on March 19, 2007, the Board lacks jurisdiction to
review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits of his claim on the grounds that it was untimely filed and failed to
show clear evidence of error.
FACTUAL HISTORY
This is the fifth appeal in this case. On April 22, 1994 appellant, then a 51-year-old clerk
typist, filed an occupational disease claim alleging that he developed chronic anxiety due to

factors of his federal employment. The Board reviewed his claim on March 17, 19981 and found
that appellant had substantiated a compensable factor of employment, that he was required to
work rotating shifts. The Board concluded that the medical evidence was not sufficient to
establish appellant’s claim. On May 2, 20002 the Board again found that appellant had not
submitted the necessary rationalized medical opinion evidence to establish a causal relationship
between his accepted employment factor of rotating work shifts and his alleged emotional
condition. The Board reviewed appellant’s claim for a third time on August 11, 20033 and found
that appellant had not established an additional employment factor of error or abuse on the part
of the employing establishment in regard to his resignation. The Board also found that the
medical evidence was not sufficient to establish a causal relationship between appellant’s
accepted factor of employment and his diagnosed emotional condition. The Board reviewed
appellant’s claim on the merits on February 2, 20054 and found that he failed to substantiate
additional employment factors regarding his termination by the employing establishment, alleged
forced resignation and errors of the Merit Systems Protection Board. The Board found that
appellant had not submitted the necessary medical opinion evidence to establish a causal
connection between his accepted employment duty of rotating work shifts and his diagnosed
emotional condition of anxiety.
In letters dated July 10 and August 10, 2004, appellant stated that he was fired in 1989
because of his disease. He stated that on April 1991 the Merit Systems Protection Board placed
him on leave without pay for one year and then instructed him to resign. Appellant stated that he
had not resigned and requested severance pay. He submitted a termination of appointment from
his position of clerk-typist dated June 28, 1993 and effective July 1, 1993. Appellant also
submitted an involuntary termination dated August 3, 1989 and effective July 28, 1989. A
notification of personnel action established that appellant resigned effective June 30, 1990. In a
letter dated December 17, 2002, the employing establishment stated that it had allowed appellant
to resign in lieu of being terminated and that appellant was not entitled to severance pay. In a
letter dated June 1, 2004, appellant stated that he was discriminated against as he had 2 years of
college and worked for 14 years, but was not classified as a GS-4 as required by the minimum
qualification requirements.
In letters dated January 14 and February 9, 2006, appellant requested punitive and
compensation damages. He alleged that he had won a case against the government, but had not
received any money. Appellant alleged that in 1989 he was forced to resign. He submitted his
fully successful performance appraisal covering the period January 7, 1991 through
June 30, 1992. In a letter dated April 10, 1985, the employing establishment stated that appellant
was restored to his position of data transcriber based on evidence that his past medical problems
were resolved and that he could return to work with no restrictions. Appellant’s congressman,
Frank Tejeda, submitted a letter to the employing establishment on July 6, 1994 and alleged that
1

Docket No. 95-1495 (issued March 17, 1998).

2

Docket No. 99-1133 (issued May 2, 2000).

3

Docket No. 03-1315 (issued August 11, 2003).

4

Docket No. 04-802 (issued February 2, 2005).

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appellant was separated due to his inability to perform his job duties due to employment-related
stress and anxiety. He noted that appellant might have a workers’ compensation claim.
Mr. Tejeda submitted a letter to the Office on August 18, 1994 and stated that appellant believed
his emotional condition was caused by stress and anxiety at work. He stated that the Office of
Personnel Management approved appellant’s disability application and waived the one-year time
limitation as appellant had established mental incompetency at the time of separation. On
August 29, 1994 Mr. Tejeda stated that the employing establishment was aware of appellant’s
fragile mental health in 1982. He asked whether stress and anxiety related to appellant’s job
which led to a decline in his work performance would be considered compensable. Appellant’s
congressman, Henry B. Gonzales, informed him on February 23, 1989 that the employing
establishment would inform him of a final determination regarding his grievance and
discrimination complaint in the near future.
Appellant submitted letters dated April 2, 7 and May 4, 16, 22 and June 14, 2006 and
requested to appeal actions by the employing establishment. He alleged that he had established
that he was not mentally competent in 1994. Appellant asserted that he was denied in grade step
increases, that he was discriminated against based on his national origin and disability, that he
should have received severance pay from the employing establishment as well as punitive and
compensatory damages as he prevailed in a 1985 legal suit against the employing establishment.
In a document dated February 10, 1989, the employing establishment noted that appellant had
filed a grievance expressing his dissatisfaction with his performance appraisal which was
resolved. Appellant then filed an informal discrimination complaint regarding the same issues
and rejected the employing establishment settlement offer on this claim, instead proceeding to
file a formal discrimination complaint. The employing establishment declined to release
appellant’s medical records to him on the grounds that it could damage his mental and physical
health.
Appellant submitted medical evidence including a September 24, 2006 magnetic
resonance imaging report regarding his lumbar spine. A note dated September 11, 2006 which
addressed appellant’s complaints of chronic testicular pain and radicular pain from hip to ankle
on the left side. On December 1, 2006 appellant presented with complaints of left foot
discomfort. His diagnoses included L4-5 radiculopathy and plantar fasciitis.
In a letter dated July 21, 2006, appellant requested reconsideration based on letters from
his congressman in 1985 and 1994. He asserted that the employing establishment knew of his
stress condition and did not help him. Appellant then analyzed the 1994 letter from Mr. Tejeda
and alleged that the employing establishment and Office failed to take appropriate action to
develop his claim. He requested damages and compensation.
By decision dated February 28, 2007, the Office declined to reopen appellant’s claim for
consideration of the merits on the grounds that his request for reconsideration was not timely
filed and did not demonstrate clear evidence of error on the part of the Office.

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LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act5 does not entitle a claimant
to a review of an Office decision as a matter of right.6 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.7 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority. One such limitation is that the Office will not review a decision denying
or terminating a benefit unless the application for review is filed within one year of the date of
that decision.8 The Board has found that the imposition of this one-year time limitation does not
constitute an abuse of the discretionary authority granted the Office under 5 U.S.C. § 8128(a).9
The Office’s regulations require that an application for reconsideration must be submitted
in writing10 and define an application for reconsideration as the request for reconsideration
“along with supporting statements and evidence.”11 The regulations provide:
“[The Office] will consider an untimely application for reconsideration only if the
application demonstrates clear evidence of error on the part of [the Office] in its
most recent decision. The application must establish, on its face that such
decision was erroneous.”12
In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its
regulations.13
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.14 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.15 Evidence which does not raise a
5

5 U.S.C. § 8128(a).

6

Thankamma Mathews, 44 ECAB 765, 768 (1993).

7

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

8

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989); petition for recon. denied, 41 ECAB 458 (1990).
9

5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 6 at 769; Jesus D. Sanchez, supra note 7 at 967.

10

20 C.F.R. § 10.606.

11

20 C.F.R. § 10.605.

12

20 C.F.R. § 10.607(b).

13

Thankamma Mathews, supra note 6 at 770.

14

Id.

15

Leona N. Travis, 43 ECAB 227, 241 (1991).

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substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.16 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.17 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.18 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.19 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.20
ANALYSIS
The one-year time limitation begins to run on the date following the date of the original
Office decision. A right to reconsideration within one year accompanies any subsequent merit
decision on the issues.21 Therefore, appellant had one year from the February 2, 2005 decision
of the Board to submit a timely request for reconsideration. Appellant requested reconsideration
on July 21, 2006. Because this request was received more than one year after the February 2,
2005 merit decision, the Office found that the request was untimely.
However, the Board notes that the Office also received a letter from appellant dated
January 14, 2006 requesting punitive and compensatory damages. While this letter was not
received by the Office until March 29, 2006, the envelope bearing the letter was not retained by
the Office. Chapter 2.1602.3(b)(1) of the Office procedure manual provides that timeliness for a
reconsideration request is determined not by the date the Office receives the request, but by the
postmark on the envelope.22 As the Office did not retain the envelope for appellant’s January 14,
2006 letter, Office procedures state that, when there is no evidence to establish the mailing date,

16

Jesus D. Sanchez, supra note 7 at 968.

17

Leona N. Travis, supra note 15.

18

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

19

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

20

Gregory Griffin, supra note 8.

21

Jack D. Jackson, 57 ECAB ___ (Docket No. 06-433, issued May 17, 2006).

22

The Office’s procedures require that an imaged copy of the envelope that enclosed the request for
reconsideration should be in the case record. If there is no postmark, or it is not legible, other evidence such as a
certified mail receipt, a certificate of service and affidavits may be used to establish the mailing date. In the absence
of such evidence, the date of the letter itself should be used. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004).

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the date of the letter itself should be used.23 For this reason, The Board finds that appellant’s
letter dated January 14, 2006, if a reconsideration request, is considered timely filed.
The Board finds that the January 14, 2006 letter does not constitute a request for
reconsideration. The mere fact that the January 14, 2006 letter did not mention the word
“reconsideration” does not prevent it from acting as a request for reconsideration from the
Office. In Vincente P. Taimanglo,24 Gladys Mercado,25 and Jack D. Johnson26 the Board found
that letters written by the employees constituted timely requests for reconsideration even though
they did not mention the work reconsideration. In Taimanglo, the Board stated that, while no
special form is required, the request must be made in writing, identify the decision and the
specific issue, for which reconsideration is being requested and be accompanied by relevant and
pertinent new evidence or argument note considered previously.27 In Taimanglo, the claimant
had identified the Office decision in his letter, indicated that additional medical evidence had
been submitted and stated that he was waiting for a response. The Board found that the letter
constituted a timely request for reconsideration. In Mercado, the claimant asked the Office to
help her reopen her case, provided her case number and submitted additional medical evidence.
The Board found that the claimants letter constitutes a timely request for reconsideration. In
Johnson, the claimant, advised that he was enclosing pertinent information related to his claim
and submitted additional medical evidence. Again the Board found that this letter constituted a
timely request for reconsideration. However, in the January 14, 2006 letter, appellant merely
requested that the Office help him obtain punitive and compensatory damages due him through
some unnamed legal “case” against the government won in 1985. He did not provide a claim
number or any further identification of the case he had won. The only documentation
accompanying the January 14, 2006 letter was an April 10, 1985 notification from the employing
establishment informing appellant that he would be restored to his position of data transcriber
and suggesting that appellant might be entitled to back pay. The January 14, 2006 letter does not
constitute a timely request for reconsideration as appellant did not identify any decision of the
Office or Board, and as the letter was not accompanied by relevant and pertinent new evidence
addressing appellant’s emotional condition claim.28 Appellant first requested an unnamed
“appeal” on April 2, 2006 and formally requested reconsideration on July 21, 2006. He did not
submit a timely request for reconsideration from the Office within one year of the most recent
merit decision, the February 2, 2005 decision of the Board, and consequently he must
demonstrate clear evidence of error by the Office in denying his claim for compensation.
23

Id.; see also Jack D. Jackson, supra note 21.

24

Vincent P. Taimanglo, 45 ECAB 504 (1994).

25

Gladys Mercado, 52 ECAB 255 (2001).

26

Jack D. Johnson, 57 ECAB ___ (Docket No. 06-433, issued May 17, 2006).

27

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2 (January 2004);
Vicente P. Taimanglo, supra note 24.
28

A request for reconsideration must be in writing and set forth argument and contain evidence showing that the
Office erroneously applied or interpreted a specific point of law, or advance a relevant legal argument not previously
considered by the Office or contain relevant and pertinent new evidence not previously considered by the Office.
20 C.F.R. § 10.606.

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Appellant attempted to establish additional compensable factors of employment which he
felt led to the development of his diagnosed emotional condition of anxiety. These alleged
factors were that the employing establishment forced him to resign, that the employing
establishment discriminated against him based on his national origin and disability and that the
employing establishment failed to aid in the development of his emotional condition claim.
Appellant has not submitted any evidence substantiating these alleged factors. The mere
allegation of additional factors of employment does not establish error on the part of the Office
and is not sufficient to establish clear evidence of error.29
In order to establish clear evidence of error, the evidence must be of sufficient probative
value to prima facie shift the weight of the evidence in favor of the claimant and raise a
substantial question as to the correctness of the merits of the Office’s decision. The evidence
submitted on reconsideration failed to meet this standard and, thus, the Office properly denied
merit review.30
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for review of
the merits of this claim on the grounds that his request was not timely filed and did not
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 28, 2007 is affirmed.
Issued: November 27, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
29

Robert G. Burns, 57 ECAB ___ (Docket No. 06-380, issued June 26, 2006).

30

Id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stanhope, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1516
Issued: May 14, 2021

Case Submitted on the Record

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

JURISDICTION
On July 8, 2019 appellant, through counsel, filed a timely appeal from a January 30, 2019
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.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 30, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits as she no longer had residuals or disability causally related to
her accepted December 27, 2012 employment injury.
FACTUAL HISTORY
On December 27, 2012 appellant, then a 32-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on that date she sustained a neck injury as a result
of a motor vehicle accident while in the performance of duty. She stopped work on the date of
injury and was treated at a hospital emergency room. OWCP initially accepted appellant’s claim
for cervical, thoracic, and lumbar sprains. On June 20, 2013 it expanded the acceptance of the
claim to include post-concussion syndrome. OWCP paid appellant wage-loss compensation on
the supplemental rolls as of February 11, 2013, and on the periodic rolls as of June 30, 2013.
Appellant sought medical treatment from Dr. Avery Katz, a Board-certified neurologist.
In a February 25, 2015 report, Dr. Katz noted appellant’s history of a December 27, 2012 motor
vehicle accident and assessed post-concussion syndrome, memory loss, migraine, and anxiety.
In an August 4, 2015 report, Dr. Timothy Henderson, a Board-certified orthopedic
surgeon, noted that appellant reported that she lost consciousness as a result of the December 27,
2012 incident. He diagnosed lumbar sprain and cervical radiculopathy causally related to the
December 27, 2012 incident and opined that she could work full time with restrictions.
On August 24, 2017 Dr. Katz noted that appellant had been seen for several years with
dysfunctional headaches, fluctuating left-sided weakness and cognitive complaints after an
employment-related accident. He indicated that she frequently decompensated from minimal
emotional or physical stressors and that there were additional issues at home due to separation
from her husband. Dr. Katz reported essentially normal general examination and neurological
examination, with minimal give-way left weakness. He noted that appellant had a “longstanding
history of headaches worsened by prior accident and history of fluctuating left-sided weakness and
actually has been having more psychologic issues than other neurologic events.” Dr. Katz
diagnosed: chronic PTSD, for which he recommended a psychologist; migraine without aura; and
cognitive deficit in attention.
In April 2018, OWCP referred appellant, along with an updated statement of accepted facts
(SOAF), the medical record and a list of questions, to Dr. Jeffrey Lakin, a Board-certified
orthopedic surgeon, and Dr. Melvin P. Vigman, a Board-certified neurologist, for second opinion
evaluations. The SOAF indicated that on February 27, 2012 appellant was involved in a motor
vehicle accident and that she reported injury to the neck. It noted: the accepted conditions were
sprain of neck; sprain of back, thoracic region; sprain of back, lumbar region; and post-concussion
syndrome. OWCP requested that the physicians use the SOAF as a framework for their opinions
and evaluate whether appellant continued to have residuals/disability causally related to her
accepted December 27, 2012 employment injury.
In an April 24, 2018 report, Dr. Lakin reviewed the SOAF and appellant’s medical history
and records. He noted that she reported a loss of consciousness when describing the December 27,
2

2012 incident. Dr. Lakin opined that appellant’s cervical, thoracic, and lumbar spine sprains were
directly caused by the December 27, 2012 employment injury, but were no longer active. He
found no objective findings on physical examination with regard to the accepted orthopedic
conditions, reporting that the examination revealed minimal tenderness with excellent function of
the cervical spine, upper extremities, thoracolumbar spine, and the lower extremities. Dr. Lakin
opined that appellant had reached maximum medical improvement (MMI) as of April 24, 2018
and that she was able to return to full-time, full-duty work without restrictions.
In an April 30, 2018 report, Dr. Vigman provided a second opinion neurological evaluation
with regard to appellant’s accepted post-concussion syndrome. He reviewed appellant’s
neurologically relevant medical records along with the SOAF and indicated that she had no history
of head injury and no loss of consciousness from the December 27, 2012 incident.4 Dr. Vigman
also performed a detailed neurological examination, noting decreased cutaneous sensation in the
entire left side of the face and entire left upper and lower extremity areas, which he indicated was
outside any standard neurological boundary and was considered a factitious sensory loss. He
provided an impression of no neurological disease, damage, or dysfunction. Dr. Vigman opined
that since there was no head injury or loss of consciousness, appellant’s neurological diagnoses
related to cerebral functioning, including neuropsychological, and various headaches were not due
to the December 27, 2012 employment injury. He indicated that the headaches were migraine type
by history and that her mental dysfunction could not be considered due to the December 27, 2012
employment injury since there was no head injury. Dr. Vigman also noted that there was no
evidence of cervical radiculopathy on examination. He indicated that he saw evidence of factitious
sensory loss, a diagnosis that implied exaggerated symptom magnification. Dr. Vigman opined
that appellant had reached MMI with no neurological problems. He further opined that there was
no need for further testing or treatment and that she could return to her date-of-injury position.
Dr. Vigman indicated that the treatment of appellant’s migraines should continue, but it should not
be considered related to the December 27, 2012 employment injury. He completed a work
capacity evaluation (Form OWCP-5c), noting that she could perform full-time medium-type work
with no restrictions.
In a May 10, 2018 letter, OWCP advised appellant that it proposed to terminate her wageloss compensation and medical benefits because she ceased to have residuals/disability causally
related to her accepted December 27, 2012 employment injury. It advised her that the proposed
action was based on the opinions of its second opinion physicians, Drs. Lakin and Vigman, and
afforded her 30 days to submit additional evidence or argument challenging the proposed action.
OWCP subsequently received additional evidence, including an April 13, 2015 x-ray
report, an April 13, 2015 state Range of Motion chart, and an April 14, 2016 blood work report.
In an April 17, 2016 narrative report, Dr. Changaramk Sivadas, an internal medicine
specialist, indicated that appellant reported suffering a head injury in a December 2013 automobile
accident while driving her mail vehicle with complaints of headaches, anxiety, insomnia, and
memory problems since the accident. He indicated that her physical examination was
4
Dr. Vigman noted that December 27, 2012 hospital report indicated a history of motor vehicle accident with neck
pain and no serious injury. Appellant also denied any head injury and there was no visual change of paresthesia
reported at the time. Dr. Vigman further explained that there was no contemporaneous record of a head injury
associated with the December 27, 2012 employment injury.

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unremarkable and provided a diagnosis of post-concussion syndrome. Dr. Sivadas also diagnosed
blindness in the right eye and anemia.
In a June 29, 2017 attending physician’s report (Form CA-20), Dr. Katz diagnosed PTSD,
cervical radiculopathy and headache caused or aggravated by the December 27, 2012 employmentrelated motor vehicle accident. He opined that she could return to part-time, light-duty work, and
gradually work her way to full-time work.
In a May 18, 2018 mental residual functional capacity assessment Judith Hancox, a
licensed clinical social worker, diagnosed PTSD and post-concussion syndrome. She opined that
appellant was totally disabled from work.
By decision dated July 18, 2018, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective July 22, 2018. It found that the weight of the medical evidence
was represented by the well-rationalized medical opinions of Drs. Lakin and Vigman.
On July 24, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on December 12,
2018, during which appellant testified about the December 27, 2012 employment injury and her
treatment by various physicians. She noted that she had been awarded social security disability
benefits. Appellant testified that Dr. Vigman did not listen when she described the history of the
December 27, 2012 employment injury.
Additional evidence was received. In a February 1, 2018 report, Dr. Jerry Weber, a
chiropractor, noted that appellant had significant injuries from a 2012 motor vehicle accident. He
indicated that radiological findings were normal and diagnosed cervical radiculopathy and postconcussive syndrome.
In a March 5, 2018 report, Dr. Katz provided findings of vision loss, left-sided numbness,
and weakness that seemed to stem from an employment-related accident when appellant was
driving her mail truck in 2012. He indicated that no definitive abnormalities were seen on prior
testing and that she has had various medication trials in the past. Dr. Katz noted increased
symptoms and increased stressors. He diagnosed major depressive disorder, PTSD, tinnitus, vision
loss, and insomnia.
In a July 25, 2018 note, Dr. Katz opined that all of appellant’s symptoms were the direct
result of the December 27, 2012 employment incident and that her ongoing stressors continued to
cause her condition to fluctuate. He opined that she could work four hours per day with
restrictions.
In a December 12, 2017 report, Dr. Katz indicated that appellant had severe stressors. He
diagnosed complicated migraine, major depressive disorder, psychologic conversion disorder, and
chronic PTSD.
By decision dated January 30, 2019, an OWCP hearing representative affirmed OWCP’s
July 18, 2018 termination decision. The hearing representative amended the accepted conditions
to include cervical radiculopathy, based on Dr. Henderson’s 2015 second opinion examination,
but found it resolved as of April 30, 2018, the date of Dr. Vigman’s second opinion evaluation.

4

LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.5 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.6 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.7
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.8 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.9
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits for the accepted conditions of cervical sprain, thoracic sprain,
lumbar sprain, and cervical radiculopathy as she no longer had residuals or disability causally
related to her accepted December 27, 2012 employment injury.
OWCP accepted the conditions of cervical sprain, thoracic sprain, lumbar sprain, and postconcussion syndrome. In his January 30, 2019 decision, OWCP’s hearing representative expanded
the accepted conditions to include a cervical radiculopathy, resolved as of April 30, 2018. The
hearing representative also affirmed the termination of appellant’s wage-loss compensation and
medical benefits effective July 22, 2018 for the accepted conditions of cervical sprain, thoracic
sprain, lumbar sprain, and post-concussion syndrome based on the opinions of second opinion
examiners, Drs. Lakin and Vigman.
On April 24, 2018 appellant underwent a second opinion examination with Dr. Lakin with
respect to the accepted orthopedic conditions of cervical sprain, thoracic sprain, and lumbar
sprain.10 In his report, Dr. Lakin reviewed her medical history and presented findings on physical
examination. He opined that appellant’s employment-related conditions were no longer active
because of a normal physical examination with minimal tenderness on examination. Dr. Lakin
opined that she had no need for additional treatment as she reached MMI and she was capable of
5

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
7

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8
A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman and G. Peake, 41 ECAB 361, 364 (1990).
9

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

10

See 20 C.F.R. § 10.320.

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performing her usual job without restrictions. The Board has reviewed his opinion and finds that
it has reliability, probative value, and convincing quality with respect to its conclusions regarding
the relevant issue in the present case.11 Dr. Lakin’s opinion is based on a proper factual and
medical history and he thoroughly reviewed the SOAF and medical records.12 He also provided
medical rationale explaining that appellant no longer had residuals or disability caused by the
accepted sprain conditions. The Board thus finds that OWCP properly relied on Dr. Lakin’s
second opinion report in terminating her wage-loss compensation and medical benefits for the
accepted orthopedic conditions of cervical sprain, thoracic sprain, and lumbar sprain.13
As noted, OWCP’s hearing representative amended the accepted conditions to include
cervical radiculopathy, based upon appellant’s 2015 second opinion examination. The hearing
representative, however, found that appellant’s cervical radiculopathy had resolved as of
April 30, 2018, as Dr. Vigman did not find evidence of cervical radiculopathy. The Board notes
that the record contains 2018 treatment notes from Dr. Weber, a chiropractor, who diagnosed
cervical radiculopathy. Dr. Weber is only considered to be a qualified physician under FECA to
the extent he diagnoses a subluxation demonstrated by x-ray.14 Consequently, he is not considered
a physician under FECA and his opinions do not constitute probative medical evidence.15 Thus,
there is no current objective medical examination finding or diagnostic testing which establishes
evidence of a cervical radiculopathy. The Board accordingly finds that OWCP properly
determined that the accepted cervical radiculopathy condition had resolved.
The Board further finds that OWCP has not met its burden of proof to terminate her wageloss compensation and medical benefits for the accepted condition of post-concussion syndrome.
OWCP referred appellant for a second opinion neurological evaluation with Dr. Vigman
to determine whether she had ongoing residuals or disability with regards to the accepted postconcussion syndrome. It noted that it provided him with a SOAF, the medical record, and a list of
questions, which he acknowledged. In his April 30, 2018 report, Dr. Vigman noted the history of
the employment injury, reviewed the medical records and the SOAF and found that there was no
evidence of a head injury or loss of consciousness. He opined that since appellant had not
experienced a head injury or loss of consciousness, her neurological diagnoses related to cerebral
functioning, including neuropsychological and various headaches, were not due to the
11

C.E., Docket No. 19-0661 (issued October 1, 2019); see also R.W., Docket No. 12-0375 (issued
October 28, 2013).
12

See M.H., Docket No. 17-0210 (issued July 3, 2018); Melvina Jackson, 38 ECAB 443 (1987).

13

K.W., Docket No. 19-1224 (issued November 15, 2019).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); B.K., Docket No. 19-0829 (issued September 25, 2019); T.C.,
Docket No. 19-0227 (issued July 11, 2019); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006) (under FECA the term physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by the applicable
state law).
14

15

R.D., Docket No. 19-1528 (issued January 17, 2020); see Jay K. Tomokiyo, 51 ECAB 361 (2000).

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December 27, 2012 employment injury. Dr. Vigman concluded that she had reached MMI from
a neurological standpoint with no permanency and that she could return to her usual job without
any restrictions. OWCP’s hearing representative found that Dr. Vigman’s examination showed
that the accepted post-concussion syndrome condition, even if correctly diagnosed, was no longer
active.
The Board notes that the list of questions sent to Dr. Vigman directed him to refer to the
SOAF and to use the SOAFs as the framework for his answers. OWCP’s procedures dictate that
when an OWCP medical adviser, second opinion specialist, or referee physician renders a medical
opinion based on a SOAF which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is seriously diminished
or negated altogether.16 Dr. Vigman did not use the SOAF as the framework in forming his
opinion. Rather, as counsel properly alleged on appeal, Dr. Vigman based his opinion that
appellant no longer had residuals or disability from the accepted post-concussion syndrome as he
had concluded that since she did not suffer a head injury or loss of consciousness. As he did not
accept findings provided in the SOAF, which specifically noted the acceptance of the postconcussion syndrome condition, the probative value of his opinion is diminished and insufficient
to be afforded the weight of the medical evidence.17 The Board therefore finds that OWCP failed
to meet its burden of proof in terminating appellant’s wage-loss compensation and medical
benefits, effective July 22, 2018, for the accepted condition of post-concussion syndrome.
On appeal, counsel contends that OWCP’s decisions did not refer to the psychological
injuries that appellant also suffered as a result of the employment injury. For conditions not
accepted as being employment related, it is the employee’s burden to provide rationalized medical
evidence sufficient to establish causal relationship.18
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits for the accepted conditions of cervical sprain, thoracic
sprain, lumbar sprain, and cervical radiculopathy. However, the Board finds that OWCP did not

16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); see J.T., Docket No. 18-1300 (issued March 22, 2019); L.J., Docket No. 14-1682 (issued
December 11, 2015).
17

See J.T., id.; L.J., Docket No. 16-1852 (March 22, 2018).

18
See L.B., Docket No. 19-1380 (issued February 11, 2020); G.A., Docket No. 09-2153 (issued June 10, 2010);
Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51 ECAB 638 (2000).

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meet its burden of proof to terminate her wage-loss compensation and medical benefits for the
accepted condition of post-concussion syndrome.
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part.
Issued: May 14, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECUIRTY
ADMINISTRATION, Chicago, IL, Employer
__________________________________________

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

Docket No. 11-1559
Issued: April 11, 2012

Case Submitted on the Record

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

JURISDICTION
On June 21, 2011 appellant, through his attorney, filed a timely appeal from the May 2,
2011 decision of the Office of Workers’ Compensation Programs (OWCP) affirming an
October 20, 2010 termination decision. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation
effective October 24, 2010.
FACTUAL HISTORY
On October 22, 2002 appellant, then a 36-year-old transportation security screener,
injured his lower back while lifting a heavy bag onto a screening table. OWCP accepted the
1

5 U.S.C. §§ 8101-8193.

claim for a lumbar sprain, lumbar radiculitis, disc displacement and an aggravation of
degenerative disc disease. Appellant was unable to return to work and was placed on the
periodic compensation rolls. He remained under the care of several physicians and eventually
underwent an authorized L4-5 microdiscetomy on September 19, 2009, which Dr. Christopher J.
DeWald, a Board-certified orthopedic surgeon, performed.
In a January 20, 2010 letter, Dr. DeWald provided an impression of acute herniated disc,
disc degeneration and resulting reflex sympathetic dystrophy (RSD) in the lower extremities
after multiple epidural steroid injections. He opined that appellant should resume treatment of
his RSD through Dr. April Fetzer, a Board-certified physiatrist.2 On February 23, 2010 appellant
requested OWCP change his treating physician to Dr. Fetzer, which OWCP authorized in a
March 9, 2010 letter.
In a February 17, 2010 report, Dr. Fetzer performed nerve conduction studies and
electromyography on appellant’s bilateral upper limbs. She noted there was mild right-sided
sensorimotor ulnar neuropathy, entrapment at the elbow. No evidence of left ulnar of bilateral
median entrapment neuropathy or bilateral cervical radiculopathy was found. In a May 10, 2010
report, Dr. Fetzer noted that appellant had a work-related injury occurring October 22, 2002 with
lumbar surgery in September 2009. Appellant reported postoperative symptomatic improvement
with a recurrence of pain in March 2010. Dr. Fetzer reviewed his medical record and noted
examination findings. Appellant was found to have no clinical evidence of RSD on examination.
An impression of bilateral lower limb pain with hypoesthesia, subjective status post L4-5
decompression discectomy and history of RSD was provided. Dr. Fetzer noted the results of
appellant’s February 12, 2010 MRI scan and indicated that based on that result and the absence
of any physiologic findings on examination and only subjective findings, appellant would best be
served in a pain management clinic. She opined that appellant did not need to be off work as his
pain was subjective and no work restrictions were indicated. Dr. Fetzer advised that appellant
would be referred for pain management.
In a June 18, 2010 report, Dr. Xiaoyuan Xie, a Board-certified anesthesiologist and pain
specialist, noted that appellant’s October 22, 2002 work injury occurred after lifting a heavy box
and noted his medical treatment thereafter. He noted examination findings and provided
impressions of chronic lower back pain and lower extremity radicular pain; status post
laminectomy times two, failed back syndrome; evidence of bilateral lower extremity peripheral
neuropathy; possible bilateral lower extremity complex regional pain syndrome; chronic bilateral
upper extremity pain, rule out radicular pain; and possible bilateral lower extremity peripheral
vascular disease. On June 29, 2010 appellant underwent an MRI scan of the lumbosacral spine
and bilateral lower extremity noninvasive arterial examination. The MRI scan showed a stable
appearance of mild lumbar spondylosis with disc degeneration along with postsurgical reactive
fibrotic change. There was no conspicuous recurrent or residual disc herniation. In July 9 and
August 17, 2010 reports, Dr. Xie noted the results of the diagnostic testing. On August 17, 2010

2

In a February 9, 2010 report, Dr. DeWald noted that appellant reported complaints of pains in his arms and
spasms since his work-related injury but stated that the symptoms had come and gone. He noted that a magnetic
resonance imaging (MRI) scan showed bulging disc in cervical spine with no significant nerve root compression and
no spinal stenosis. Dr. DeWald noted examination findings and recommended an electromyography (EMG).

2

he opined that appellant had radicular pain. Dr. Xie recommended more testing as well as
treatment with a psychologist to address appellant’s anger.
On September 17, 2010 OWCP issued a notice of proposed termination of compensation
for wage-loss benefits. It proposed to terminate appellant’s wage-loss compensation on the basis
that the weight of the medical evidence, as represented by Dr. Fetzer’s May 10, 2010 report,
established that his pain was subjective and there was no need to be off work.
Following the notice of proposed termination, appellant submitted copies of reports and
diagnostic studies already of record along with a September 7, 2010 report from Dr. Xie noting
appellant’s status. Dr. Xie noted that appellant’s pain was a little better. He recommended that
appellant continue psychotherapy and return in two months.
By decision dated October 20, 2010, OWCP terminated appellant’s wage-loss benefits
effective October 24, 2010. It found that the weight of the medical evidence remained with
Dr. Fetzer’s May 10, 2010 report. OWCP further noted that appellant’s entitlement to medical
treatment and a schedule award were not affected.
On October 25, 2010 appellant, through his attorney, disagreed with the decision and
requested a telephonic hearing, which was held on February 10, 2011. Appellant stated that he
was disabled and continued to have pain and weakness in his back. He also stated that he
recently had a heart attack and developed a left shoulder condition.
New evidence received included an August 26, 2010 consultation report from
Dr. Steven A. Kval, clinical psychologist, several prescription scripts, a September 29, 2010
letter from appellant to his attorney. Dr. Kval noted treating appellant for psychological pain
management. He indicated that appellant’s condition arose from several factors including the
work injury and subsequent chronic pain conditions. Dr. Kval’s assessments included pain,
depressive and anxiety disorders.
By decision dated May 2, 2011, an OWCP hearing representative affirmed the
termination decision.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.4

3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Id.

3

ANALYSIS
OWCP accepted that appellant sustained a lumbar sprain, lumbar radiculitis, disc
displacement and an aggravation of degenerative disc disease. It also authorized an L4-5
microdiscetomy. OWCP terminated appellant’s wage-loss compensation benefits based on the
opinion of Dr. Fetzer, appellant’s attending physician, who opined, in her May 10, 2010 report,
that appellant need not be off work because his pain was subjective. She advised that appellant
had no work restrictions.
In her May 10, 2010 report, Dr. Fetzer concluded that appellant was not totally disabled.
She based her opinion on the results of appellant’s February 12, 2010 MRI scan in conjunction
with the absence of any physiologic findings on examination and only subjective findings. The
Board has carefully reviewed the opinion of Dr. Fetzer and notes that it has reliability, probative
value and convincing quality with respect to its conclusions regarding the relevant issue of the
present case. Dr. Fetzer provided a thorough factual and medical history and accurately
summarized the relevant medical evidence.5 She provided sufficient medical rationale for her
opinion that appellant could return to work with no restrictions by explaining that her evaluation
of appellant, including the findings of a comprehensive physical examination, showed that
appellant’s pain was subjective with no physiological basis. The medical evidence from Dr. Xie
and Dr. Kval, while supporting that appellant had pain, failed to provide any opinion as to
whether such pain arose from the work-related conditions and was disabling. Thus OWCP
properly relied upon Dr. Fetzer’s opinion that appellant was no longer disabled and had no work
restrictions to terminate appellant’s wage-loss benefits.
While appellant’s counsel argues the decision is contrary to fact and law, the medical
evidence fails to support any disability due to the accepted condition. 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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective October 24, 2010 on the grounds that he no longer had any disability
causally related to his accepted employment-related injuries.

5

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated May 2, 2011 is affirmed.
Issued: April 11, 2012
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bloomfield, NY, Employer
__________________________________________

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

Docket No. 13-1711
Issued: December 12, 2013

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 July 10, 2013 appellant filed a timely appeal from two May 13, 2013 merit decisions
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury to the left knee causally related to factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review evidence for the first time
on appeal. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On June 13, 2011 appellant, then a 58-year-old sales and services distribution associate,
filed a traumatic injury claim (Form CA-1) alleging a contusion to the left knee in the
performance of duties on April 11, 2011. She stated that her injury occurred as a result of a fall.
Appellant did not stop work.
By letter dated June 13, 2011, appellant’s supervisor stated that appellant reported her
injury on April 12, 2011, telling him that she had fallen to the floor on her left knee and that it
became swollen, but that it would resolve, but the next day she told her supervisor that it had not
resolved.
In an undated attending physician’s form report, Dr. Karai P. Balaji, a Board-certified
internist, stated that appellant had ongoing knee pain. He checked a box indicating that the
condition was caused or aggravated by employment activity, but did not provide an explanation
in the space provided. In a June 15, 2011 duty status report, Dr. Balaji recommended a total
work restriction from kneeling until June 22, 2011.
In a report dated July 21, 2011, Dr. Luke Loveys, a Board-certified orthopedic surgeon,
stated his impression that appellant had left knee pain and that it was an ongoing work-related
injury. Appellant stated that she was doing well and had no preexisting left knee symptoms
when she sustained a fall on a hard surface at work. Upon examination, Dr. Loveys noted
tenderness along the lateral joint line of her left knee and a range of motion from full extension
to 100 degrees flexion with discomfort at the extremes. The x-rays of appellant’s left knee
revealed no acute fractures or significant joint space narrowing and mild degenerative changes
with osteophyte formation along the lateral border of the patella. Dr. Loveys assessed appellant
as having joint pain of the left leg. He recommended a further diagnostic workup with a
magnetic resonance imaging (MRI) scan to rule out the possibility of a lateral meniscus tear.
In an attending physician’s form report dated July 25, 2011, Dr. Loveys stated that
appellant had left knee pain and that findings from x-rays showed mild degenerative changes.
He checked a box indicating that the condition was caused or aggravated by employment
activity, explaining that she fell on her knee at work.
In a report dated September 1, 2011, Dr. Loveys reviewed the results of an MRI scan,
stating that there was no evidence for significant internal derangement, no meniscus tear or
ligament tear and no fracture. He advised that appellant had joint pain and osteoarthrosis of the
left leg
In a report dated December 6, 2011, Dr. Loveys stated that there had been definite
improvement in appellant’s condition, although she did not feel she was back to baseline and
continued to have difficulty kneeling for any length of time. Upon examination, he noted no
effusion, erythema or warmth and no focal tenderness to palpitation of the knee. Dr. Loveys
advised that appellant’s knee was stable and had excellent strength, noting that she had a range
of motion from full extension to 115 degrees flexion. He assessed appellant as having
osteoarthrosis and joint pain of the left leg.

2

In a report dated March 6, 2012, Dr. Loveys stated that appellant was doing well and had
no specific concerns. Upon examination, he found no effusion, erythema or warmth but there
was mild tenderness along the medial joint line. Dr. Loveys stated that appellant’s ligamentous
examination was stable and that she had a range of motion from full extension to 115 degrees
flexion. He assessed her as having osteoarthrosis and joint pain of the left leg.
On September 23, 2012 appellant filed a recurrence of disability claim stating that her
knee pain continued from time to time after recurring on November 17, 2011, and that kneeling
and bending were painful. She noted that her last two appointments with Dr. Loveys had been
denied.
On April 11, 2013 OWCP requested additional factual and medical evidence from
appellant. It noted that the evidence submitted was insufficient to establish that she sustained a
traumatic injury in the performance of duty on April 11, 2011. On the same date, OWCP
requested additional medical evidence from appellant to establish a recurrence of her medical
condition on November 17, 2011.
On April 23, 2013 appellant responded to OWCP’s inquiries relating to the incident of
April 11, 2011. On that date she was holding onto a tray of letters and coming around a corner
when her pant leg caught on a tub of mail. Appellant fell approximately three to four feet onto a
concrete tile floor. Her left knee impacted the floor and took all her weight. Appellant did not
file a claim until over two months after her injury because she was hoping that her condition
would improve, but she notified her supervisor the next day. She noted that she was never
notified that her claim had been closed and found out when her doctor’s office told her that her
last two visits had been denied.
As to the recurrence of her medical condition on November 17, 2011, appellant stated
that her alleged injury was ongoing and she had not sustained any other injuries or illnesses,
either on or off duty, since April 11, 2011. She noted that she had iced her knee after the
incident and that she could not put pressure on it when kneeling. Appellant outlined the medical
care she had received since April 11, 2011.
By decision dated May 13, 2013, OWCP denied appellant’s claim. It accepted that the
April 11, 2011 incident occurred as alleged but found that the medical evidence was not
sufficient to establish that her left knee condition was causally related to the accepted incident.
By decision also dated May 13, 2013, OWCP denied appellant’s claim for a recurrence of her
medical condition, finding that because her original claim for a traumatic injury had been denied,
it could not consider a claim for recurrence.
LEGAL PRECEDENT
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 determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.6
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.9 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 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
compensable employment factors.12 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.13

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

5

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4 n.4.

7

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 4 n.4.
9

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

10

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

11

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D Wayne Avila, 57
ECAB 642, 649 (2006).
12

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

13

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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ANALYSIS
Appellant alleged that she sustained a contusion to the left knee as a result of a fall onto
concrete on April 11, 2011. OWCP found the evidence of record sufficient to establish that the
incident occurred as alleged, but found that the evidence did not contain a rationalized opinion
finding a causal relationship between her condition and the April 11, 2011 employment incident.
The issue is whether appellant has established that her left knee condition was causally related to
the April 11, 2011 employment incident. The Board finds that she has failed to meet her burden
of proof.
In the undated attending physician’s report, Dr. Balaji stated his impression that appellant
had ongoing knee pain. He checked the box indicating that the condition was caused or
aggravated by employment activity, but did not provide an explanation in the space provided.
In the report dated July 21, 2011, Dr. Loveys stated his impression that appellant had left
knee pain and that it was an ongoing work-related injury due to a fall on a hard surface at work.
Upon examination, he noted tenderness along the lateral joint line of appellant’s left knee and a
range of motion from full extension to 100 degrees flexion with discomfort at the extremes.
Dr. Loveys found no acute fractures or significant joint space narrowing and mild degenerative
changes with osteophyte formation along the lateral border of the patella. He assessed appellant
as having joint pain of the left leg. Dr. Loveys recommended a further diagnostic workup with
an MRI scan to rule out the possibility of a lateral meniscus tear. In his July 25, 2011 report, he
again diagnosed left knee pain. Dr. Loveys stated that findings from x-rays showed mild
degenerative changes. He checked the box indicating that the condition was caused or
aggravated by employment activity, explaining that appellant fell on her knee at work.
The Board notes that pain is generally a description of a symptom and not considered a
firm medical diagnosis.14 Thus, the assessments of left knee pain from Drs. Balaji and Loveys
are descriptions of a symptom and not diagnoses that could support a claim for compensation.
Dr. Balaji’s reports and Dr. Lovey’s reports before September 1, 2011 do not contain any
diagnoses of appellant’s condition.
Dr. Loveys later reviewed the results of the MRI scan and found no evidence or
significant internal derangement, no meniscus tear or ligament tear and no fracture. He assessed
appellant as having joint pain and osteoarthrosis of the left leg. In his December 6, 2011 and
March 6, 2012 report, Dr. Loveys found her knee stable with excellent strength, noting that she
had a range of motion from full extension to 115 degrees flexion. He assessed appellant as
having osteoarthrosis and joint pain of the left leg.
Dr. Loveys diagnosed appellant with a condition other than “pain,” that of osteoarthrosis
of the left leg, in reports dating from September 1, 2011 through March 6, 2012, but he did not
offer an opinion as to the issue of whether the April 11, 2011 employment incident caused or
aggravated her diagnosed condition. The Board has held that medical evidence that does not

14

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 10, 2008).

5

offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.15
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.16 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. Consequently, the Board finds that she has not met her burden of
proof to establish that her claimed left knee condition was causally related to the April 11, 2011
employment incident. As such, it is not necessary to consider whether appellant has sustained a
recurrence of disability.17
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 failed to establish that she sustained a left knee condition
causally related to the accepted April 11, 2011 employment incident.

15

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Ellen L.
Noble, 55 ECAB 530, 534 (2004).
16

See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., 59 ECAB 158, 162 (2007); Robert Broome, 55
ECAB 339, 341 (2004).
17

The Board precedent contemplates that, in order for there to be a recurrence, there must be an accepted
condition. See, e.g., Ricky S. Storms, 52 ECAB 349, 351-52 (2001) (the medical evidence must demonstrate that the
claimed recurrence was caused, precipitated, accelerated or aggravated by the accepted injury). The fact that OWCP
administratively allowed the payment of a limited amount of medical expenses, does not, by itself, constitute a
formal acceptance of any particular condition or period of disability. See Gary L. Whitmore, 43 ECAB 441, 446
(1992) (where the Board found that payment of compensation by OWCP does not, in and of itself, constitute
acceptance of a particular condition or disability in the absence of evidence from OWCP indicating that a particular
condition or disability has been accepted as work related).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 13, 2013 are affirmed.
Issued: December 12, 2013
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

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