United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Orlando, FL, Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1144
Issued: July 23, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 12, 2020 appellant, through counsel, filed a timely appeal from a November 14,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

The Board notes that, following the November 14, 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.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
commencing April 9, 2017 causally related to her accepted August 20, 2014 employment injury.
FACTUAL HISTORY
On August 27, 2014 appellant, then a 61-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on August 20, 2014 she injured her left arm,
abdomen, neck, and back when she tripped on the base of a stanchion while in the performance of
duty. She stopped work on August 20, 2014. OWCP accepted the claim for neck sprain, lumbar
sprain, and contusions of the abdominal wall, back, and left wrist. It subsequently expanded the
acceptance of her claim to include postconcussion syndrome, left shoulder impingement, and a
partial left rotator cuff tear.
On November 19, 2015 Dr. Sean M. McFadden, an osteopath, performed a repair of the
labrum and subacromial decompression of the left shoulder.
On March 2, 2016 appellant returned to full-time modified employment. In an April 20,
2016 progress report, Dr. McFadden diagnosed status post left shoulder labrum repair and
subacromial decompression and found that she could resume her usual employment without
restrictions.
In a report dated March 2, 2017, Dr. Robert C. Nucci, a Board-certified orthopedic
surgeon, evaluated appellant for problems with her neck and back.5 He noted that she had
experienced a slip and fall on August 20, 2014. Dr. Nucci diagnosed cervical strain and spasm
with underlying disc herniations at C4-5 and C5-6 causing pain and weakness radiating into the
upper extremities. He further diagnosed left shoulder impingement and tendinitis and lumbar
sprain and spasms with grade one instability at L4 and L5 and radiation into the legs. Dr. Nucci
attributed the diagnosed conditions to the accepted employment injury. He advised that appellant’s
cervical condition was a surgical issue and referred her for diagnostic testing. In a work capacity
evaluation (Form OWCP-5c) of even date, Dr. Nucci found that she was disabled from work.
A nerve conduction velocity (NCV) study performed on April 12, 2017 showed evidence
of diffuse mixed sensory motor polyneuropathy and possible L5-S1 radiculopathy.
3

5 U.S.C. § 8101 et seq.

4
The record also contains a December 4, 2019 OWCP decision granting appellant a schedule award for 17 percent
permanent impairment of the right upper extremity. As counsel did not appeal from that decision, it is not presently
before the Board. See 20 C.F.R. § 501.3.
5
On March 2, 2017 Dr. Wendell J. Bulmer, an osteopath, evaluated appellant for a left shoulder injury, which he
noted had occurred at work on August 20, 2014. He diagnosed rotator cuff syndrome, impingement of the left
shoulder, left carpal tunnel syndrome, and a work-related injury. Dr. Bulmer found that appellant could continue
working with her current restrictions.

2

In a report dated April 18, 2017, Dr. Cesar Lassalle, a Board-certified anesthesiologist,
evaluated appellant for bilateral shoulder, neck, leg, and low back pain and headache. He
diagnosed postconcussion syndrome, cervical spine sprain, lumbar sprain, a low back contusion,
and long-term drug therapy. Dr. Lassalle noted that appellant had recently undergone a
lumpectomy. He advised that she had damage to her lumbar and cervical spine.
On April 28, 2017 Dr. Robert R. Reppy, an osteopath, indicated that appellant had begun
radiation therapy for cancer and was scheduled for surgery on her left elbow. He related, “Between
her cancer surgery and the elbow surgery she will be out of work for quite a while.” Dr. Reppy
diagnosed post-traumatic cephalalgia, postconcussion syndrome, left cubital entrapment
syndrome, migraines, anterograde amnesia, a left rotator cuff tear, mixed sensory/motor
polyneuropathy, lumbar spinal stenosis, radiculopathy at L5-S1, a history of seizures, and
noninsulin dependent diabetes mellitus. In a duty status report (Form CA-17) of even date, he
found that appellant was unable to work for four weeks.
On May 5, 2017 appellant filed a claim for wage-loss compensation (Form CA-7) for
disability from work commencing April 9, 2017.
In a May 16, 2017 progress report, Dr. Lassalle repeated his diagnoses as in his previous
April 18, 2017 report.6 He noted that appellant had begun radiation therapy and would begin
chemotherapy the following month.
On May 19, 2017 Dr. Reppy discussed appellant’s complaints of neck pain. He advised
that she indicated that “reaching overhead triggers pain, but it is unclear as to how much is due to
the neck and how much is due to the … cancer surgery….” Dr. Reppy provided the same
diagnoses as in his April 28, 2017 report. In an accompanying Form CA-17 report of even date,
he found that appellant could not work for four months.
On June 23, 2017 Dr. Reppy noted that electrodiagnostic testing performed June 7, 2017
had revealed possible L5-S1 bilateral radiculopathy. He repeated his diagnoses as in his prior
reports.7 In Form CA-17 reports dated July and August 2017, Dr. Reppy advised that appellant
was disabled from employment.
In an August 23, 2017 report, Dr. Marc Sharfman, a neurologist, obtained a history of
appellant sustaining an injury at work on August 20, 2014 when part of a pole broke and she fell
forward, landing on top of the pole. He noted that she did not know if she had struck her head, but
that she believed she had lost consciousness. Dr. Sharfman advised that a computerized
tomography (CT) scan and magnetic resonance imaging (MRI) scan of the brain had not shown
trauma at the time of injury. He diagnosed postconcussion syndrome and recommended additional
diagnostic testing. Dr. Sharfman indicated that Dr. Reppy was addressing appellant’s work status.
An MRI scan of the brain dated August 29, 2017 showed small nonspecific foci of altered
signal intensity bilateral subcortical and deep supratentorial white matter and newly demonstrated
6

The record contains progress reports from Dr. Lassalle dated June through September 2017 describing his
treatment of appellant.
7

Dr. Reppy provided a similar progress report on August 25, 2017.

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small foci in the left frontal white matter. An August 30, 2017 MRI scan of the cervical spine
revealed cervical spondylotic changes predominant at C4-5 and C5-6. An MRI scan of the left
shoulder of the same date showed supraspinatus tendinopathy with a partial thickness tear.
In a September 13, 2017 memorandum of telephone call (Form CA-110), the employing
establishment related to OWCP that appellant had been working full time without restrictions until
early 2017, when she was diagnosed with cancer.
On September 20, 2017 Dr. Reppy evaluated appellant for thoracic outlet syndrome. He
advised that testing could not rule out neurological damage. Dr. Reppy further performed an NCV
study suggesting left cubital entrapment syndrome and possible bilateral C7 and right C8
entrapment.
In a development letter dated September 26, 2017, OWCP informed appellant of the
deficiencies of her claim for compensation. It advised her of the type of evidence necessary to
establish her compensation claim, including a detailed report from her treating physician
explaining how her employment-related condition had worsened such that she was no longer able
to work as of April 9, 2017. OWCP afforded appellant 30 days to submit the necessary
information.
Subsequently, appellant submitted a September 22, 2017 Form CA-17 report from
Dr. Reppy, who diagnosed neuropathy and concussion syndrome and found that appellant was
unable to work. In an accompanying narrative report, Dr. Reppy diagnosed post-traumatic
cephalalgia, postconcussion syndrome, left cubital entrapment syndrome, migraines, anterograde
amnesia by history, a left rotator cuff tear, mixed sensory/motor polyneuropathy, lumbar stenosis,
radiculopathy from L5-S1, a history of seizures, and noninsulin dependent diabetes mellitus.
On September 25, 2017 Dr. Sharfman discussed the history of appellant’s August 20, 2014
employment injury and provided the results of neurocognitive testing. 8 In a progress report of
even date, he evaluated her for postconcussion syndrome. Dr. Sharfman noted that a
November 21, 2014 MRI scan of the brain had showed minor ischemic disease without trauma
and an August 29, 2017 MRI scan of the brain showed postconcussive white matter changes. He
diagnosed postconcussion syndrome.9
In a report dated October 27, 2017, Dr. Reppy discussed appellant’s history of a trip and
fall at work on August 2, 2014 and her subsequent medical treatment. He reviewed the accepted
conditions and opined that she had sustained more than lumbar and neck sprains due to her injury.
Dr. Reppy noted that on March 2, 2017 Dr. Nucci had diagnosed C4-5 and C5-6 disc herniations
due to her August 20, 2014 employment injury and had recommended a cervical fusion. He
related, “It is clear [appellant] should be on no work status pending the surgery. She did have …
cancer surgery on March 16, 2017. [Appellant] was already on a non-work status for her cervical
and lumbar conditions as surgery was recommended for those conditions on March 2, 2017. Those
8

Dr. Sharfman completed a state workers’ compensation form of the same date.

9
Diagnostic testing performed October 18, 2017 by Dr. Sharfman revealed evidence of “significant central
vestibular dysfunction.” On October 25, 2017 Dr. Sharfman obtained a history of a pole breaking and appellant falling
on top of it, losing consciousness for an undetermined amount of time. He advised that he was treating only
postconcussion syndrome.

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conditions remain symptomatic and cause disability.” Dr. Reppy noted that appellant had
preexisting degenerative changes, but attributed the herniations to the accepted employment injury.
He advised that her accepted conditions should be expanded to include cervicalgia, disc
displacement at C4-5 and C5-6, left shoulder bursitis, and lumbar spondylolisthesis. Dr. Reppy
also indicated that appellant had sustained a concussion at the time of her injury. He advised that
she was “taken out of work for her cervical and lumbar conditions two weeks before her … cancer
[surgery].”
On November 9, 2017 Dr. Nucci noted that an MRI scan demonstrated C4-5 and C5-6 disc
herniations and advised that appellant was a candidate for surgery. He opined that, regarding her
lumbar spine, she had “a slip at L4-5 with a symptomatic bulge and resulting stenosis at this level
and would benefit from a posterior intravertebral spacer with decompression of her lumbar stenosis
at the L4-5 level.” Dr. Nucci indicated that appellant’s work status had not changed. In a Form
OWCP-5c of even date, he found that she was disabled from employment.
By decision dated November 27, 2017, OWCP denied appellant’s claim for wage-loss
compensation for disability from work commencing April 9, 2017.
Thereafter, appellant submitted progress reports and Form CA-17 reports dated
October 2017 through January 2019 from Dr. Reppy.10
On January 28, 2019 Dr. Lassalle diagnosed postconcussion syndrome, a sprain of the
cervical spine ligaments, lumbar sprain, and low back contusion. He indicated that appellant
remained off work due to an employment injury.
In a February 9, 2018 progress report, Dr. Nucci opined that appellant had sustained a
cervical spine injury at work on August 20, 2014. He related that her fall at work had caused a
disc injury as confirmed by an MRI scan and her symptoms of radiculopathy. Dr. Nucci diagnosed
disc herniations at C4-5 and C5-6 causing cervical stenosis and radiculopathy. He advised that he
would be requesting authorization for surgery from OWCP.
On November 27, 2018 appellant, through counsel, requested reconsideration. He asserted
that the reports from Dr. Reppy and Dr. Nucci supported that she was disabled from employment.
Counsel advised that appellant had undergone surgery for cancer on March 23, 2017, but had no
further disability due to her surgery. He contended that she had sustained herniated discs due to
her employment injury and required surgery.
By decision dated February 13, 2019, OWCP denied modification of its November 27,
2017 decision.
In an April 5, 2019 progress report, Dr. Reppy related that he had repeatedly advised
OWCP that appellant had sustained more than strains and contusions as a result of her employment
injury.11 He advised that her “true diagnoses” were lumbar disc disease with radiculopathy at L5S1, noninsulin dependent diabetes mellitus, lumbar stenosis, mixed sensory/motor polyneuropathy
10

The record contains progress reports from Dr. Sharfman dated November 2018 through January 2019 and
progress reports from Dr. Lassalle dated December 2017 to November 2018.
11

The record contains progress reports from Dr. Lassalle dated February through October 2019.

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of the upper extremities, a left rotator cuff tear, bilateral radiculopathy at T1, left cubital
entrapment syndrome, and postconcussion syndrome. In a Form CA-17 report of even date,
Dr. Reppy found appellant disabled from employment.12
On July 12, 2019 Dr. Reppy reviewed appellant’s history of an August 20, 2014
employment injury and subsequent medical treatment. He advised that she had sustained more
than strains of her neck and lumbar spine due to her injury. Dr. Reppy asserted that appellant had
herniations as a result of her employment injury. He requested that OWCP expand her accepted
conditions to those diagnosed by Dr. Nucci. Dr. Reppy further advised that he had found appellant
disabled from employment prior to her March 2017 cancer surgery. He indicated that the
restrictions from her cancer surgery had lasted only four weeks.
On July 15, 2019 Dr. Shenin Sachedina, an osteopath and Board-certified surgeon, advised
that appellant had undergone a lumpectomy on March 23, 2017 and was cleared to resume work
on April 24, 2017.
In a revised report dated August 2, 2019, Dr. Reppy noted that appellant could have
resumed work no later than April 24, 2017 due to her cancer surgery.
On August 7, 2019 appellant, through counsel, requested reconsideration. He contended
that she was only disabled from work for four weeks following her cancer surgery. Counsel
advised that appellant had restrictions due to her employment injury.
OWCP subsequently received an October 17, 2019 report, wherein Dr. Sharfman noted
appellant’s history of an August 20, 2014 employment injury and diagnosed intractable chronic
post-traumatic headache, postconcussion syndrome, and bilateral vertigo of central origin.13
By decision dated November 14, 2019, OWCP denied modification of its February 13,
2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA14 has the burden of proof to establish the
essential elements of his or her claim including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.15 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
for work as a result of the accepted employment injury.16 Whether a particular injury causes an

12

Dr. Reppy provided a progress report dated May through November 2019 with the same diagnoses.

13

Dr. Sharfman also submitted progress reports dated March 12 and July 19, 2019.

14

Supra note 3.

15

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
16

R.M., Docket No. 18-1067 (issued May 7, 2020); M.C., Docket No. 18-0919 (issued October 18, 2018).

6

employee to become disabled for work, and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.17
Under FECA, the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury. 18 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.19 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability as that term is used in FECA.20
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.21
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work, commencing April 9, 2017, causally related to her accepted August 20, 2014 employment
injury.
Following her August 20, 2014 employment injury, appellant returned to modified
employment on March 2, 2016. She subsequently filed a claim for wage-loss compensation for
disability from work beginning April 9, 2017. On September 13, 2017 the employing
establishment advised that appellant had worked without restrictions until early 2017, when she
stopped work after she was diagnosed with cancer.
In a report dated October 27, 2017, Dr. Reppy discussed appellant’s history of a trip and
fall at work on August 2, 2014 and her subsequent medical treatment. He noted that on March 2,
2017 Dr. Nucci had recommended a cervical fusion due to disc herniations at C4-5 and C5-6.
Dr. Reppy opined that appellant was on no work status due to her cervical and lumbar conditions
prior to her March 16, 2017 cancer surgery and that these conditions continued to cause disability.
He asserted that appellant had sustained cervicalgia, disc displacement at C4-5 and C5-6, left
shoulder bursitis, and lumbar spondylolisthesis due to her employment. However, Dr. Reppy
attributed her disability to medical conditions not accepted by OWCP. Appellant has the burden
of proof to submit evidence establishing that additional conditions not accepted or approved by
OWCP resulted from the employment injury through the submission of reasoned medical

17

See C.E., Docket No. 19-1617 (issued June 3, 2020); K.C., Docket No. 17-1612 (issued October 16, 2018).

18

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

19

See L.W., Docket No. 17-1685 (issued October 9, 2018).

20

B.O., Docket No. 19-0392 (issued July 12, 2019); N.M., Docket No. 18-0939 (issued December 6, 2018).

21

See D.P., Docket No. 18-1439 (issued April 30, 2020); A.W., Docket No. 18-0589 (issued May 14, 2019).

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evidence.22 Dr. Reppy has not provided rationale for his causation finding and, thus, his opinion
is insufficient to meet her burden of proof.23
On July 12, 2019 Dr. Reppy reviewed appellant’s history of an August 20, 2014
employment injury and subsequent medical treatment. He advised that she had sustained more
than strains of her neck and lumbar spine due to her employment injury. Dr. Reppy asserted that
appellant had herniations as a result of her employment injury. He further indicated that he had
found appellant disabled from employment prior to her March 2017 cancer surgery, noting that the
restrictions from that surgery had lasted only four weeks. On August 2, 2019 Dr. Reppy noted that
appellant could have resumed work as of April 24, 2017 as a result of her surgery for cancer. He,
however, attributed his disability determination to conditions not accepted by OWCP as
employment related and failed to provide rationale for his conclusion, consequently, his report is
insufficient to establish appellant’s claim.24
In a report dated March 2, 2017, Dr. Nucci obtained a history of appellant slipping and
falling on August 20, 2014. He diagnosed cervical strain and spasm with underlying disc
herniations at C4-5 and C5-6 causing pain and weakness radiating into the upper extremities and
impingement and tendinitis and lumbar sprain and spasms with grade one instability at L4 and L5
and radiation into the legs. Dr. Nucci attributed the diagnosed conditions to the August 20, 2014
employment injury. He provided similar findings in a November 9, 2017 report. In OWCP-5c
forms of even date, Dr. Nucci opined that appellant was disabled from work. He did not, however,
directly address the cause of her disability. The Board has held that medial evidence that does not
offer an opinion regarding the cause of an employee’s disability is of no probative value on the
issue of causal relationship.25 As such, this report is insufficient to establish appellant’s claim.
On April 28, May 19, and September 22, 2017 Dr. Reppy diagnosed post-traumatic
cephalalgia, postconcussion syndrome, left cubital entrapment syndrome, migraines, anterograde
amnesia, a left rotator cuff tear, mixed sensory/motor polyneuropathy, lumbar spinal stenosis,
radiculopathy at L5-S1, a history of seizures, and noninsulin dependent diabetes mellitus. In
accompanying CA-17 forms, he found appellant totally disabled for four weeks. Dr. Reppy
continued to submit similar progress reports and CA-17 form reports dated 2017 through 2019.
However, in these reports, he failed to address the cause of her disability from employment. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s disability is of no probative value on the issue of causal relationship.26 As such, these
reports are insufficient to establish appellant’s claim.
Appellant also submitted CA-17 form reports dated April 2017 through April 2019. These
reports, however, are merely form reports and do not contain an opinion on whether the accepted
22

See R.J., Docket No. 19-0179 (issued May 26, 2020); JaJa K. Asarmano, 55 ECAB 200 (2004).

23

Id.

24

See R.R., Docket No. 19-0173 (issued May 2, 2019).

25

See R.J., Docket No. 18-1701 (issued May 18, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
26

See id.

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employment injury caused disability from employment.27 Consequently, they are of no probative
value on the issue of causal relationship.28
Dr. Sharfman submitted reports dated 2017 through 2019 regarding his treatment of
appellant for postconcussion syndrome. On February 9, 2018 Dr. Nucci opined that her fall at
work on August 20, 2014 had caused a disc injury as confirmed by her symptoms of radiculopathy
and an MRI scan. In progress reports from 2017 to 2019, Dr. Lassalle diagnosed postconcussion
syndrome, cervical spine sprain, lumbar sprain, a low back contusion, and long-term drug therapy.
On January 289, 2019 he noted that appellant was off work due to a back injury. None of these
physicians, however, addressed whether appellant was disabled from work for the period claimed.
The Board will not require OWCP to pay compensation for disability in the absence of medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.29 Thus, these reports are insufficient to establish appellant’s disability claim.
On appeal counsel contends that OWCP improperly found that she was off work due to
cancer instead of her employment-related shoulder and back conditions. As explained above,
however, appellant has the burden of proof to submit rationalized medical evidence supporting
causal relationship between any claimed disability and her accepted September 20, 2014
employment injury.30 She did not submit such evidence and, thus, has failed to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work, commencing April 9, 2017, causally related to her accepted August 20, 2014 employment
injury.

27

See L.S., Docket No. 20-0570 (issued December 15, 2020); L.S., Docket No 19-0959 (issued
September 24, 2019).
28

Id.

29

See S.L., Docket No. 19-0603 (issued January 28, 2020); E.B., Docket No. 17-0875 (issued December 13, 2018).

30

Supra note 16. See S.J., Docket No. 20-0310 (issued April 21, 2021).

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ORDER
IT IS HEREBY ORDERED THAT the November 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 2021
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chester, VA, Employer
__________________________________________

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

Docket No. 14-245
Issued: May 2, 2014

Case Submitted on the Record

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

JURISDICTION
On November 15, 2013 appellant filed a timely appeal from an August 21, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Because more than 180 days elapsed from January 16, 2013, the date of the
most recent merit decision, to the filing of this appeal and pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen her claim for
further merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 15, 2012 appellant, then a 54-year-old rural mail carrier, filed an
occupational disease claim (Form CA-2) alleging that she sustained arthritis of the foot and foot1

5 U.S.C. § 8101 et seq.

related deformities as a result of her federal employment. She first became aware of her
condition and of its relationship to her employment on July 10, 2009. Appellant first reported
her condition to a supervisor on October 15, 2012.
In a letter dated July 25, 2012, Dr. Laurence G. Rubin, a podiatrist, diagnosed appellant
with arthritis of both feet. He stated that weight bearing and walking aggravated her condition
and noted that her job required both activities. Dr. Rubin reported that appellant was undergoing
conservative treatment. Appellant also submitted several illegible medical forms dated from
October 12, 2009 through July 25, 2012.
By letter dated November 26, 2012, OWCP requested additional medical evidence from
appellant. It indicated that she had not submitted sufficient medical evidence in support of her
claim, because it was illegible and did not contain a physician’s diagnosis or opinion as to how
her employment activities caused, contributed to or aggravated her condition. OWCP afforded
appellant 30 days to submit additional evidence. Appellant did not respond.
By decision dated January 16, 2013, OWCP denied appellant’s claim. It found that she
did not submit sufficient medical evidence containing a rationalized opinion from a physician on
the issue of causal relationship. OWCP noted that the medical report from Dr. Rubin diagnosed
arthritis, but did not contain a basis for his opinion on causal relationship based on the nature of
her work and her medical history.
By letter dated August 13, 2013, appellant requested reconsideration of OWCP’s
January 16, 2013 decision. She stated that she enclosed a letter from Dr. Rubin with her request,
together with photographs and x-rays from 2009 and 2013. Appellant noted that she had worked
for the postal service for 23 years and that her condition resulted from standing on concrete
floors and driving for five to six hours a day for five days a week. OWCP received x-rays of her
feet and photographs on August 16, 2013, but the letter from Dr. Rubin does not appear in the
case record.
By decision dated August 21, 2013, OWCP declined appellant’s request for
reconsideration. It noted that the statement from Dr. Rubin had not been included with her
request and that she had not submitted new and relevant evidence. OWCP informed appellant
that any future request for reconsideration must be made within one year from the prior decision
and accompanied by new and relevant evidence or legal contentions not previously considered.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by 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) constitute relevant and pertinent new
evidence not previously considered by OWCP.2 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three

2

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007).

2

requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.3
The Board has held that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.4 The Board also has held that the submission of evidence which
does not address the particular issue involved does not constitute a basis for reopening a case.5
While the reopening of a case may be predicated solely on a legal premise not previously
considered, such reopening is not required where the legal contention does not have a reasonable
color of validity.6
ANALYSIS
OWCP issued a January 16, 2013 decision denying appellant’s claim for compensation.
On August 13, 2013 appellant requested reconsideration of this decision.
The Board does not have jurisdiction over the merits of the January 16, 2013 decision.
The issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. In her
August 13, 2013 request for reconsideration, she did not show that OWCP erroneously applied or
interpreted a specific point of law or advance a new and relevant legal argument not previously
considered. Thus, 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)(2).
The relevant issue in this case is whether appellant submitted sufficient medical evidence
to establish that her condition was causally related to duties of her federal employment. A
claimant may be entitled to a merit review by submitting new and relevant evidence, however,
appellant did not do so in this case. Appellant submitted photographs of her feet and x-rays
together with her request for reconsideration. However, while this evidence was not previously
of record, it is irrelevant to the grounds upon which OWCP denied her claim. Appellant’s claim
was denied because the medical evidence lacked a rationalized opinion from a physician, with a
physiological description of how her claimed injury resulted from duties of her employment and
a full and accurate factual and medical history, on the issue of causal relationship. As the
photographs and x-rays do not contain such an opinion, they were not relevant and insufficient to
require a merit review of her claim.
Appellant claims that she also attached a letter from Dr. Rubin to her request for
reconsideration; but such material was not received by OWCP before its August 21, 2013 denial
of reconsideration. If a claimant fails to submit relevant evidence not previously of record or

3

Id. at § 10.608(b); K.H., 59 ECAB 495, 499 (2008).

4

See Daniel Deparini, 44 ECAB 657, 659 (1993).

5

P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB
180, 187 (2000).
6

Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000).

3

advance legal contentions of facts not previously considered, OWCP has the discretion to refuse
to reopen a case for further consideration of the merits.7
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). She did not show that OWCP erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by OWCP or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
The Board notes that appellant submitted evidence after the issuance of the August 21,
2013 decision. The Board lacks jurisdiction to review evidence for the first time on appeal.8
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the merits
of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 21, 2013 is affirmed.
Issued: May 2, 2014
Washington, DC

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

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

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

7

Pamela I. Holmes, 49 ECAB 581, 586 (1998).

8

20 C.F.R. § 501.2(c). Appellant may resubmit this evidence to OWCP with a request for reconsideration.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.L., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL DETENTION CENTER,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Major Derrick P. Lynch, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1726
Issued: December 7, 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 June 15, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated February 1, 2007 which denied her claim and a
decision dated April 6, 2007 which denied her request for a hearing. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an emotional condition in the performance of duty causally related to factors of her
federal employment; and (2) whether the Office properly denied her request for a hearing.
FACTUAL HISTORY
On August 24, 2006 appellant, then a 37-year-old correctional officer, filed a Form CA-2,
occupational disease claim, alleging that she sustained anxiety and duress caused by workrelated stress. She stated that she became aware of the condition on July 9, 2006 and its

relationship to her employment on August 15, 2006. Appellant did not stop work. She
submitted slips showing that she had appointments on August 17 and 23, 2006, panic attack
literature and a self-report regarding depression. On a return-to-work form dated August 17,
2006, Dr. Nicholas Truong, an internist, advised that appellant was under his care for anxiety and
could return to work on August 23, 2006.
By letter dated October 27, 2006, the Office informed appellant of the evidence needed to
support her claim. This was to include a description of the employment-related conditions or
incidents that she believed contributed to her illness and a comprehensive medical report which
described symptoms, a diagnosis and an opinion regarding the cause of her condition. The
employing establishment was asked to respond to the claim.
In a decision dated February 1, 2007, the Office denied appellant’s claim. The Office
noted that she did not respond to the October 27, 2006 letter. In a request postmarked March 9,
2007, appellant, through her representative, requested a hearing. By decision dated April 6,
2007, an Office hearing representative denied the hearing request.
LEGAL PRECEDENT -- ISSUE 1
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her stress-related condition.1 If a claimant does implicate a factor of employment, the
Office should then determine whether the evidence of record substantiates that factor.2 When the
matter asserted is a compensable factor of employment and the evidence of record establishes the
truth of the matter asserted, the Office must base its decision on an analysis of the medical
evidence.3
ANALYSIS -- ISSUE 1
The Board finds that appellant did not establish that she sustained an employment-related
emotional condition. An essential element of an emotional condition claim is that the claimant
submit factual evidence identifying employment factors or incidents alleged to have caused or
contributed to the claimed condition.4 By letter dated October 27, 2006, the Office informed
appellant that she should provide a description of the employment-related conditions or incidents
she believed contributed to her illness. She did not respond to this request. Since appellant did

1

Leslie C. Moore, 52 ECAB 132 (2000).

2

Dennis J. Balogh, 52 ECAB 232 (2001).

3

Id.

4

Leslie C. Moore, supra note 1.

2

not identify employment factors she felt caused her condition, she failed to meet her burden of
proof to establish that she sustained an employment-related emotional condition.5
LEGAL PRECEDENT -- ISSUE 2
Any claimant dissatisfied with a decision of the Office shall be afforded an opportunity
for an oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a review of the written record must be submitted in writing, within 30 days of the date
of the decision for which a hearing is sought. If the request is not made within 30 days or if it is
made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.6 The Board has held that the Office, in its broad discretionary
authority in the administration of the Federal Employees’ Compensation Act,7 has the power to
hold hearings in certain circumstances where no legal provision was made for such hearings and
that the Office must exercise this discretionary authority in deciding whether to grant a hearing.8
The Office’s procedures, which require the Office to exercise its discretion to grant or deny a
hearing when the request is untimely or made after reconsideration, are a proper interpretation of
the Act and Board precedent.9
ANALYSIS -- ISSUE 2
The Office denied appellant’s request for a hearing on the grounds that it was untimely
filed. In an April 6, 2007 decision, the Office found that she was not, as a matter of right,
entitled to a hearing as her request, postmarked March 9, 2007, had not been made within 30
days of its February 1, 2007 decision. As appellant’s request was postmarked March 9, 2007,
more than 30 days after the date of the February 1, 2007 decision, the Office properly determined
that she was not entitled to a hearing as a matter of right as her request was untimely filed.10
The Office also has the discretionary power to grant a request for a hearing when a
claimant is not entitled to such as a matter of right. In the August 30, 2006 decision, the Office
properly exercised its discretion by stating that it had considered the matter in relation to the
issue involved and had denied appellant’s request on the basis that the issue in this case could be
addressed through a reconsideration application. The Board has held that, as the only limitation
on the Office’s authority is reasonableness, abuse of discretion is generally shown through proof
of manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary
to both logic and probable deduction from established facts.11 In the present case, the evidence
5

Id.

6

Claudio Vazquez, 52 ECAB 496 (2001).

7

5 U.S.C. §§ 8101-8193.

8

Marilyn F. Wilson, 52 ECAB 347 (2001).

9

Claudio Vazquez, supra note 6.

10

Id.

11

See Mary Poller, 55 ECAB 483 (2004).

3

of record does not indicate that the Office committed any act in connection with its denial of
appellant’s request for a hearing which could be found to be an abuse of discretion. The Office
therefore properly denied her request.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty causally related to factors of her
federal employment. The Board further finds that the Office properly denied her request for a
hearing.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 6 and February 1, 2007 be affirmed.
Issued: December 7, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
CORRECTIONAL INSTITUTION
PETERSBURG, Petersburg, VA, Employer
__________________________________________

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

Docket No. 20-0294
Issued: October 21, 2020

Case Submitted on the Record

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

JURISDICTION
On November 18, 2019 appellant filed a timely appeal from a May 21, 2019 merit decision
and a July 17, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 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
A claimant has 180 days from the date of OWCP’s decision to timely file an appeal. 20 C.F.R. § 501.3(e). In this
case, the 180-day period for the May 21, 2019 decision expired on Sunday, November 17, 2019. If the last day to file
an appeal falls on a Saturday, Sunday, or Federal holiday, the 180-day period runs until the close of the next business
day. 20 C.F.R. § 501.3(f)(2). The appeal in this case, received by the Board on Monday, November 18, 2019, was
therefore timely filed.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 17, 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.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that his
diagnosed conditions were causally related to the accepted December 5, 2018 employment
incident; and (2) whether OWCP properly denied appellant’s request for a review of the written
record before an OWCP hearing representative as untimely filed under 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On December 5, 2018 appellant, then a 46-year-old cook supervisor, filed a traumatic
injury claim (Form CA-1) alleging that on that date he strained his back when he felt a pull in the
upper back as he lifted a 50-pound bag of oatmeal while in the performance of duty. On the reverse
side of the claim form, the employing establishment acknowledged that he was injured in the
performance of duty. Appellant did not stop work.
On December 14, 2018 appellant submitted x-rays of his thoracic and lumbar spine which
revealed mild chronic endplate irregularities at multiple levels, chronic inferior anterior endplate
deformity at the L1 level with a mild convex left scoliotic deformity, and severe chronic
degenerative disc disease at the L5-S1 level.
In a December 14, 2018 report, Dr. Ricky Placide, a Board-certified orthopedic surgeon,
noted that appellant had been experiencing upper thoracic and left posterior arm pain. He reported
that, two weeks prior, appellant had lifted an object and felt pain in his upper thoracic area radiating
into the left posterior arm. Dr. Placide indicated that appellant had a significant past history with
anterior cervical discectomy and fusion surgery. He reviewed radiographs of appellant’s thoracic
spine and diagnosed upper thoracic and left arm pain, which he indicated may represent a lower
cervical radiculopathy. Dr. Placide reported that appellant had previously undergone a fusion of
C5-6 and C6-7. In a physical therapy prescription note of even date, he diagnosed cervicothoracic
radiculopathy.
Appellant submitted physical therapy treatment notes dated December 19, 2018 through
March 20, 2019.
In an April 18, 2019 development letter, OWCP indicated that when appellant’s claim was
first received it appeared to be a minor injury that resulted in minimal or no lost time from work
and, based on these criteria and because the employing establishment did not controvert
continuation of pay or otherwise challenge the case, payment of a limited amount of medical
expenses was administratively approved. It explained that it had reopened the claim for
consideration because his medical expenses had exceeded $1,500.00. OWCP requested additional
factual and medical evidence in support of appellant’s claim and provided a questionnaire for his
completion. It afforded him 30 days to submit the necessary evidence. No additional evidence
was received.
By decision dated May 21, 2019, OWCP denied appellant’s traumatic injury claim finding
that, although he had established that the December 5, 2018 employment incident occurred as
alleged, the medical evidence of record was insufficient to establish that a diagnosed medical
condition was causally related to the accepted employment incident.

2

In an appeal request form dated June 17, 2019, appellant requested a review of the written
record before an OWCP hearing representative. The request was postmarked June 21, 2019 and
received by OWCP on June 26, 2019.
In support of his claim, appellant submitted a March 1, 2019 magnetic resonance imaging
scan of the cervical spine, an additional report dated March 29, 2019 from Dr. Placide, physical
therapy treatment notes dated March 1 through June 4, 2019, and a June 14, 2019 report from
physician assistant Jeffrey D. Grant.
By decision dated July 17, 2019, OWCP’s hearing representative denied appellant’s
request for a review of the written record finding that it was untimely as it was not postmarked
within 30 days of the May 21, 2019 decision. After exercising its discretion, the hearing
representative found that the merits of the claim could equally well be addressed through the
reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred. The second component is whether the employment incident caused a personal injury.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
4

Supra note 2.

5

Y.W., Docket No. 19-1877 (issued April 30, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6
C.B., Docket No. 20-0250 (issued April 28, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
7

20 C.F.R. § 10.115; H.A., Docket No. 18-1253 (issued April 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-1891 (issued April 3, 2020); John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
9

L.P., Docket No. 19-1812 (issued April 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

3

be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the claimant.10
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed conditions were causally related to the accepted December 5, 2018 employment
incident.
In a December 14, 2018 report, Dr. Placide diagnosed upper thoracic and left arm pain and
noted that it may represent lower cervical radiculopathy. In an accompanying physical therapy
prescription note, he listed a diagnosis of cervicothoracic radiculopathy. The Board has held that
pain is not a compensable medical diagnosis, but merely a symptom of an underlying condition.12
The Board has also held that medical evidence that does not offer an opinion regarding the cause
of an employee’s condition is of no probative value on the issue of causal relationship.13 As
Dr. Placide has not offered an opinion as to whether appellant’s cervicothoracic condition was
causally related to the accepted December 5, 2018 employment incident, the Board finds that his
reports were insufficient to meet appellant’s burden of proof.14
Appellant submitted December 14, 2018 x-rays of the thoracic and lumbar spine which
revealed mild chronic endplate irregularities at multiple levels, chronic inferior anterior endplate
deformity at the L1 level with a mild convex left scoliotic deformity, and severe chronic
degenerative disc disease at the L5-S1 level. However, the Board has held that diagnostic studies
standing alone lack probative value on the issue of causal relationship as they do not address
whether the employment incident caused any of the diagnosed conditions.15
The remaining medical evidence consists of physical therapy treatment notes dated
December 19, 2018 through March 20, 2019. The Board has held that medical notes signed solely
by physical therapists are of no probative value as such healthcare providers are not considered

10

C.B., supra note 6; Leslie C. Moore, 52 ECAB 132 (2000).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
V.W., Docket No. 19-1537 (issued May 13, 2020).
12

L.P., supra note 9.

13

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

14

C.C., Docket No. 19-1071 (issued August 26, 2020).

15

Id.

4

physicians as defined under FECA.16 Accordingly, these notes are insufficient to establish
appellant’s claim.
As appellant has not submitted rationalized, probative medical evidence sufficient to
establish a diagnosed medical condition causally related to the accepted December 5, 2018
employment incident, he has not met his burden of proof.
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
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”17
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.18 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.19 Although there is no right to a review of the written record or an oral hearing,
if not requested within the 30-day time period, OWCP may within its discretionary powers grant
or deny appellant’s request and must exercise its discretion.20
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for a review of the written
record as untimely filed under 5 U.S.C. § 8124(b).
OWCP’s regulations provide that a request for a review of the written record must be made
within 30 days of the date of the decision for which a review is sought. Because appellant’s
June 17, 2019 request for a review of the written record was postmarked June 21, 2019, it postdated

16
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). See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); S.K., Docket
No. 18-1414 (issued April 29, 2020) (physical therapists are not considered physicians under FECA).
17

Id. at § 8124(b)(1).

18

20 C.F.R. §§ 10.616, 10.617.

19

Id. at § 10.616(a).

20
D.R., Docket No. 19-1899 (issued April 15, 2020); D.S., Docket No. 19-1764 (issued March 13, 2020); Eddie
Franklin, 51 ECAB 223 (1999).

5

OWCP’s May 21, 2019 decision by more than 30 days and was therefore untimely. As such, he
was not entitled to a review of the written record as a matter of right.21
Although appellant’s request for a review of the written record was untimely, OWCP has
the discretionary authority to grant the request and must exercise such discretion.22 The Board
finds that, in the July 17, 2019 decision, OWCP’s hearing representative properly exercised
discretion by determining that the issue in the case could be equally well addressed through a
request for reconsideration before OWCP along with submitting additional medical evidence.
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.23 In this case, the evidence of record does not show that OWCP abused its
discretion by denying appellant’s request for a review of the written record. Accordingly, the
Board finds that OWCP properly denied his request for a review of the written record.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed conditions were causally related to the accepted December 5, 2018 employment
incident. The Board further finds that OWCP properly denied his request for a review of the
written record as untimely filed under 5 U.S.C. § 8124(b).

21

See D.S., id.

22

Id.

23

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the July 17 and May 21, 2019 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: October 21, 2020
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brazil, IN, Employer
__________________________________________

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

Docket No. 10-1626
Issued: March 1, 2011

Case Submitted on the Record

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

JURISDICTION
On June 3, 2010 appellant filed a timely appeal of the February 22, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error. Because more than one year has elapsed between the most recent merit decision dated
September 22, 2008 and the filing of this appeal, the Board lacks jurisdiction to review the merits
of this case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

1

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

On appeal, appellant contends that he did not receive a copy of the Office’s
September 22, 2008 decision denying his claim for a left shoulder condition. He was notified
about the denial of his claim when he was contacted about an unpaid bill dated for physical
therapy.
FACTUAL HISTORY
On February 12, 2008 appellant, then a 61-year-old rural carrier, filed a traumatic injury
claim alleging that he slipped on ice and jammed his left shoulder while delivering a package.
He submitted medical records dated February 12 to May 5, 2008 from a hospital, Dr. Jeffery A.
Bollenbacher, an attending osteopath, and Dr. Susan A. Koslow, a Board-certified radiologist,
which addressed his left shoulder conditions, medical treatment and work capability.
By letter dated August 11, 2008, the Office advised appellant that the evidence submitted
was insufficient to establish his claim. It requested additional medical evidence.
In reports dated June 4, 2008, Dr. Bollenbacher advised that appellant had left shoulder
impingement syndrome and a partial rotator cuff tear. He released him to return to work with no
restrictions.
Dr. Bollenbacher advised that appellant had reached maximum medical
improvement. He had two percent impairment of the left upper extremity which represented one
percent impairment of the whole person based on the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001).
By decision dated September 22, 2008, the Office denied appellant’s claim. The medical
evidence submitted was found insufficient to establish that he sustained an injury causally related
to the accepted February 12, 2008 employment incident. The decision was mailed to appellant’s
address of record.
On January 22, 2010 appellant requested reconsideration of the September 22, 2008
decision.
In a February 22, 2010 decision, the Office denied appellant’s request for reconsideration
on the grounds that it was not timely filed and failed to present clear evidence of error. It found
that his request was not timely filed within one year of the most recent merit decision in the case.
The Office also found that appellant did not submit any evidence to establish clear evidence of
error.2

2

Following the issuance of the Office’s February 22, 2010 decision, the Office received additional evidence. On
appeal, appellant submitted new evidence. The Board may not consider new evidence for the first time on appeal
that was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c)(1). Appellant
may submit this new evidence with a formal, written request for reconsideration to the Office under 5 U.S.C.
§ 8128(a) and 20 C.F.R. § 10.606.

2

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act3 does not entitle a claimant
to a review of an Office decision as a matter of right.4 The Office, through its regulations, has
imposed limitations on the exercise of its discretionary authority under section 8128(a). Section
10.607(a) of the Office’s implementing regulations provide that an application for
reconsideration must be sent within one year of the date of the Office decision for which review
is sought.5
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.6
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.7 The evidence must be positive, precise and explicit and
must be manifest on its face that the Office committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by 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.11
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 decision.12 The
Board makes an independent determination of whether a claimant has submitted clear evidence

3

5 U.S.C. § 8128(a).

4

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b).

7

Nancy Marcano, 50 ECAB 110, 114 (1998).

8

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

9

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

10

Leona N. Travis, supra note 8.

11

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

12

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

3

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.13
ANALYSIS
The Board finds that appellant did not file a timely request for reconsideration. Its
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original Office decision.14 However, a right to reconsideration within one year
also accompanies any subsequent merit decision on the issues.15
The most recent merit decision in this case was the Office’s September 22, 2008 decision.
As appellant’s January 22, 2010 request for reconsideration of the merits of his claim by the
Office was made more than one year after the September 22, 2008 merit decision,16 the Board
finds that it was not timely filed.
The Board further finds that appellant’s January 22, 2010 request for reconsideration
does not raise a substantial question as to whether the decision finding that he did not sustain an
injury causally related to the accepted February 12, 2008 employment incident was in error or
shift the weight of the evidence in his favor. The Board notes that the underlying issue on which
appellant’s claim was denied is medical in nature. Appellant did not submit any new medical
evidence or explain how the previously submitted evidence was sufficient to shift the weight of
the evidence in his favor and establish that the Office erred in denying his claim for a traumatic
injury on February 12, 2008. The Board finds that his application for reconsideration did not
establish clear evidence of error by the Office. In the absence of clear evidence of error, the
Office properly denied merit review of the claim.
Appellant contended on appeal that he did not receive a copy of the Office’s
September 22, 2008 decision. The record supports that the Office mailed the September 22,
2008 decision to his address of record. Appellant did not establish that his address changed or
that the address of record used by the Office was incorrect. In the absence of evidence to the
contrary, a letter properly addressed and mailed in the due course of business, such as in the
course of the Office’s daily activities, is presumed to have been received at the mailing address
in due course. This is known as the mailbox rule.17 As the decision was properly mailed to
appellant’s address of record, there is no evidence to substantiate his allegation of nonreceipt.18

13

Thankamma Mathews, 44 ECAB 765, 770 (1993).

14

20 C.F.R. § 10.607(a); see A.F., 59 ECAB 714 (2008).

15

D.G., 59 ECAB 455 (2008); Robert F. Stone, 57 ECAB 292 (2005).

16

Appellant had one year to request reconsideration by the Office of its September 22, 2008 decision. See
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.6a (January 2004).
17

C.T., 60 ECAB ___ (Docket No. 08-2160, issued May 7, 2009); Jeffrey M. Sagrecy, 55 ECAB 724 (2004).

18

Id.

4

CONCLUSION
The Board finds that appellant’s January 22, 2010 request for reconsideration was
untimely filed and failed to show clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-997
Issued: November 9, 2011

Case Submitted on the Record

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

JURISDICTION
On March 15, 2011 appellant filed a timely appeal from the March 2, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) concerning an overpayment of
compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $2,933.12 overpayment of
compensation; and (2) whether OWCP properly determined that appellant was at fault in creating
the overpayment of compensation, thereby precluding waiver of recovery of the overpayment

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a November 9, 2009 decision,2 the
Board reversed a January 12, 2009 determination by OWCP that appellant received a $4,202.12
overpayment of compensation and that she was at fault in creating the overpayment.3 The Board
found that, while it appeared that appellant might have received some degree of overpayment of
compensation beginning in August 2008, OWCP did not present adequate facts and findings to
identify the precise cause and extent of any overpayment. The record did not contain any clear
determination regarding appellant’s entitlement to compensation on or after August 11, 2008.
OWCP had not adjudicated the issue of wage-earning capacity in light of appellant’s nonfederal
employment or analyzed her eligibility for wage-loss compensation under such a wage-earning
capacity determination.4 The Board found that OWCP did not adequately explain its
determination that appellant was not entitled to any compensation for the period August 11 to
November 22, 2002 and therefore she could not fully understand the consequences of its
determination in this regard. The Board remanded the case to OWCP for further development
including consideration of appellant’s actual wages in the private sector to determine whether
they fairly and reasonably reflected her wage-earning capacity.
On remand, OWCP requested additional information from appellant and the Bienville
Parish School District regarding her earnings after she started working as a schoolteacher on
August 11, 2008. Appellant submitted a pay stub indicating that on August 25, 2008 she
received a check for $1,547.20 in gross earnings from the Bienville Parish School District. She
indicated that this represented her earnings for the month of August 2008.5
In a July 28, 2010 decision, OWCP concluded, “Based on the evidence of record, a
correct determination of wage-earning capacity and the correct amount of overpayment for the
overpayment period August 11 [to] November 22, 2008 cannot be made. The decision dated
January 12, 2009 remains in place.” OWCP indicated that appellant only provided a pay stub for
August 2008 but noted that Chapter 2.814.7(d)(4) of its procedure manual dictated that
appellant’s earnings for the “entire period” should be averaged.
In a December 12, 2010 decision, an OWCP hearing representative reversed OWCP’s
July 28, 2010 decision and remanded the case to OWCP for further determination of the
overpayment issues, including a proper determination of appellant’s wage-earning capacity in the
2

Docket No. 09-964 (issued November 9, 2009).

3

The record reflects that appellant started working as a schoolteacher in the private sector on August 11, 2008 but
received wage-loss compensation for disability from that date through November 22, 2008. OWCP calculated that
she received $4,202.12 in compensation for the period August 11 to November 22, 2008 and declared that amount as
an overpayment of compensation.
4

The Board indicated that OWCP also did not issue a decision finding that the medical evidence established that
appellant had no disabling residuals of her accepted March 13, 2008 employment injury on or after August 11, 2008
such that she would not be entitled to compensation after that point.
5

The Bienville Parish School District did not provide the requested information indicating that appellant had
called and asserted her legal right to prevent it from releasing the information.

2

teaching position she began on August 11, 2008. The hearing representative found that OWCP
had referenced a provision of OWCP’s procedure manual that was not relevant to the present
case. She found that OWCP should apply Chapter 2.814.7(c)(2) of its procedure manual
concerning application of the Shadrick formula.6
OWCP obtained information from the employing establishment regarding appellant’s job
classification on the date of injury, the pay rate for that position on the date of injury and the
present pay rate for that position. Appellant submitted additional information regarding her pay
as a schoolteacher, indicating that she received she received $1,547.20 in gross earnings for
August 2008, $1,547.20 for September 2008, $3,094.41 for October 2008 and $3,094.41 for
November 2008. OWCP performed a calculation of the Shadrick formula using these figures.7
In a January 28, 2011 letter, OWCP advised appellant that it had made a preliminary
determination that she had received a $2,933.12 overpayment of compensation for the period
August 11 to November 22, 2008. It also made a preliminary determination that she was at fault
in creating the overpayment, thereby precluding waiver of recovery of the overpayment.
Regarding the calculation of the overpayment, OWCP stated:
“You were previously paid $1,131.34 on the periodic payment roll for the periods
August 3 to 30, [20]08; August 31 to September 27, [20[08; September 28 to
October 25, [20]08; and October 26 to November 22, [20]08. The overpayment
was calculated by taking the net amount of your compensation payment of
$1,131.34, dividing by 28, which is the number of days in the periodic roll cycle
($1,131.34/28 = $40.405 daily). $40.405 was then multiplied by the number of
days you were working and were paid for on the periodic roll (August 11 to
November 22, [20]08 = 31 days).
“Your overpayment for 104 days is $4,202.12 ($40.405 x 104 = $4,202.12).
“However, you were entitled to receive $1,269.00 after returning to work in the
private sector as a schoolteacher for the period August 11 to November 22,
[20]08, thus reducing your overpayment from $4,202.12 to $2,933.12.
“$4,202.12 - $1,269.00 = $2,933.12 actual overpayment owed.”
In a March 2, 2011 decision, OWCP determined that appellant received a $2,933.12
overpayment of compensation and that she was at fault in creating the overpayment of
compensation, thereby precluding waiver of recovery of the overpayment. It stated that the
overpayment occurred because she “began employment as a schoolteacher in the private sector
on August 11, 2008 and continued to receive compensation on the periodic payment rolls
through November 22, 2008.”
6

The Shadrick formula is derived from the case Albert Shadrick, 5 ECAB 376 (1953) and is used to calculate a
claimant’s wage-earning capacity.
7

In addition to a January 20, 2011 document recording this Shadrick calculation, the record contains an undated
OWCP document indicating, “The claimant was entitled to $1,269.00 in compensation after returning to work in the
private sector as a schoolteacher on August 11, 2010.” No explanation was provided for this statement.

3

LEGAL PRECEDENT
Section 8102(a) of FECA8 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.9 Section 8129(a) of FECA provides, in pertinent part, “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”10 Section 8116(a) of FECA
provides that while an employee is receiving compensation or if she has been paid a lump sum in
commutation of installment payments until the expiration of the period during which the
installment payments would have continued, the employee may not receive salary, pay or
remuneration of any type from the United States, except in limited specified instances.11
In determining whether a claimant has discharged his burden of proof and is entitled to
compensation benefits, OWCP is required by statute and regulation to make findings of fact.12
OWCP procedure further specifies that a final decision of OWCP must include findings of fact
and provide clear reasoning which allows the claimant to “understand the precise defect of the
claim and the kind of evidence which would tend to overcome it.”13 These requirements are
supported by Board precedent.14
ANALYSIS
In a November 9, 2009 decision, the Board reversed a determination by OWCP that
appellant received a $4,202.12 overpayment of compensation and that she was at fault in creating
the overpayment, thereby precluding waiver of the overpayment. The Board noted that OWCP
had not adjudicated the issue of wage-earning capacity in light of her employment in the private
sector or analyzed her eligibility for wage-loss compensation under such a wage-earning capacity
determination. Therefore, OWCP could not indicate what effect such a wage-loss capacity
determination might have on the calculation of the overpayment. The Board found that OWCP
did not adequately support its finding of a $4,202.12 overpayment and it remanded the case to
OWCP for further development including consideration of appellant’s actual wages in the
nonfederal sector to determine whether they fairly and reasonably reflected her wage-earning
capacity.
8

5 U.S.C. §§ 8101-8193.

9

Id. at § 8102(a).

10

Id. at § 8129(a).

11

Id. at § 8116(a).

12

5 U.S.C. § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or
against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.”
13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997).

14

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

4

On remand, OWCP further developed the evidence and issued a January 28, 2011 letter
containing a preliminary determination that appellant received a $2,933.12 overpayment for the
period August 11 to November 22, 2008 and a March 2, 2011 decision finalizing this preliminary
determination.
The Board finds that OWCP did not present adequate facts and findings to support its
determination that appellant received a $2,933.12 overpayment. It does not appear that OWCP
carried out a wage-earning capacity evaluation which considered her actual wages (in a private
teaching position starting August 11, 2008) as previously directed to do by the Board. In its
January 28, 2011 preliminary determination, OWCP calculated that appellant received $4,202.12
in compensation for the period August 11 to November 22, 2008 and indicated that subtracting
$1,269.00 from this amount yielded the overpayment of $2,933.12. It did not provide any
explanation of how it derived the $1,269.00 figure.15 OWCP did not make any reference to
precedent regarding the determination of wage-earning capacity based on actual wages or
otherwise indicate that it performed a wage-earning capacity determination in its January 28,
2011 preliminary determination or March 2, 2011 decision.
The Board finds that OWCP still has not adjudicated the issue of wage-earning capacity
in light of appellant’s employment in the private sector or analyzed her eligibility for wage-loss
compensation under such a wage-earning capacity determination. Therefore, OWCP has not
indicated what effect such a wage-loss capacity determination might have on the calculation of
the overpayment. In the absence of such a wage-loss capacity determination, it has not
adequately explained how it calculated the $2,933.12 overpayment and therefore appellant could
not fully understand the consequences of its determination in this regard. OWCP did not
adequately support its finding of the $2,933.12 overpayment of compensation and the case is
remanded to OWCP for further development including consideration of her actual wages in the
private sector to determine whether they fairly and reasonably reflected her wage-earning
capacity.16
CONCLUSION
The Board finds that OWCP did not properly find that appellant received a $2,933.12
overpayment of compensation.

15

OWCP obtained additional information from the employing establishment and appellant and performed a
Shadrick formula calculation. See supra note 6. However, this does not provide further clarification of how OWCP
calculated the $2,933.12 overpayment and OWCP did not mention the Shadrick formula calculation in its
January 28, 2011 letter or March 2, 2011 decision. The record contains an undated OWCP document indicating,
“The claimant was entitled to $1,269.00 in compensation after returning to work in the private sector as a
schoolteacher on August 11, 2010.” No explanation was provided for this finding.
16

Given the Board’s finding regarding the first issue of this case, it is not necessary for it to consider the second
issue concerning fault and waiver.

5

ORDER
IT IS HEREBY ORDERED THAT the March 2, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 9, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6