United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF THE AIR FORCE, 402ND
MAINTENANCE WING, ROBINS AIR FORCE
BASE, GA, Employer
__________________________________________

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

Docket No. 11-1168
Issued: December 21, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On April 14, 2011 appellant filed a timely appeal from a December 16, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) and a March 24, 2011 decision
denying a hearing. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that he sustained more than a 13
percent binaural hearing loss in the performance of duty; and (2) whether OWCP properly denied
his request for an oral hearing.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant asserts that OWCP failed to include tinnitus in its schedule award
rating.
FACTUAL HISTORY
OWCP accepted that on or before February 17, 2010 appellant, then a 63-year-old heavy
mobile equipment repairer, sustained a bilateral sensorineural hearing loss due to hazardous
noise exposure at work. He submitted annual employing establishment audiograms from 2007
and 2009 obtained as part of a hearing conservation program.
In a January 11, 2010 report, Dr. Kristin Lower, an attending Board-certified
otolaryngologist, noted a one-year history of bilateral tinnitus, worse on the left. She described
appellant’s military and occupational noise exposure. Dr. Lower obtained audiometric test
results. Testing for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per
second (cps) revealed decibel losses of 15, 20, 15 and 20 respectively. Testing for the left ear at
the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 20, 20, 25 and
40 decibels. Dr. Lower opined that appellant had essentially normal hearing in the right ear
through 3,000 hertz (Hz) and a mild sensorineural hearing loss in the left ear. She diagnosed a
bilateral high-frequency sensorineural hearing loss with tinnitus.
On June 24, 2010 OWCP referred appellant to Dr. Charles E. Hollingsworth, a Boardcertified otolaryngologist, for a second opinion examination. A statement of accepted facts
noted hazardous occupational noise exposure. In a July 14, 2010 report, Dr. Hollingsworth
diagnosed occupationally-related bilateral low, mid- and high-frequency sensorineural hearing
losses. Testing for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps
revealed decibel losses of 15, 20, 15 and 20 respectively. Testing for the left ear at the frequency
levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 20, 20, 25 and 40 decibels.
Referring to the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), Dr. Hollingsworth found a 9.4 percent right monaural
impairment, a 28.1 percent left monaural impairment, resulting in a 12.5 percent binaural
impairment. He recommended bilateral hearing aids.
OWCP referred Dr. Hollingsworth’s reports and the medical record to an OWCP medical
adviser for review. In an August 11, 2010 report, the medical adviser concurred with
Dr. Hollingsworth’s diagnosis of a work-related bilateral hearing loss. He found that appellant
had attained maximum medical improvement as of July 14, 2010. The medical adviser totaled
the decibel losses for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps of
25, 30, 30 and 40 to equal 125. He then divided this total by 4 to obtain the average hearing loss
at those cycles of 31 decibels. The average of 31 decibels was then reduced by the 25 decibel
“fence” to equal 6. Multiplying the balance of 6 by 1.5 resulted in a 9 percent monaural hearing
loss for the right ear. The medical adviser then totaled the 35, 35, 40 and 65 decibel losses in the
left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps to equal 175. He then divided
this total by 4 to obtain the average hearing loss at those cycles of 44 decibels. The average of
44 decibels was then reduced by 25 decibels to equal a balance of 19 decibels. Multiplying the
balance of 19 decibels by 1.5 resulted in a 29 percent monaural hearing loss for the left ear.
OWCP medical adviser then multiplied 9, the lesser monaural loss, by 5, for a result of 45. He

2

then added the greater monaural loss of 29, to equal 74. The medical adviser then divided the
result of 74 by 6, to equal a 13 percent binaural sensorineural hearing loss. He authorized
bilateral hearing aids.
By decision dated December 16, 2010, OWCP granted appellant a schedule award for a
13 percent binaural hearing loss.
In a letter dated January 22, 2011, appellant requested a review of the written record. He
enclosed copies of evidence previously of record. OWCP’s Branch of Hearings and Review
received the letter on January 26, 2011. The envelope in which appellant mailed the hearing
request is not of record.
By decision dated March 24, 2011, OWCP denied appellant’s request for a review of the
written record on the grounds that it was not timely filed within 30 days of the December 16,
2010 schedule award. It further denied appellant’s request as the issue in the case could be
addressed equally well pursuant to a valid request for reconsideration.
LEGAL PRECEDENT- ISSUE 1
The schedule award provision of FECA2 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
los or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
has been adopted by OWCP for evaluating schedule losses and the Board has concurred in such
adoption.3
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps the losses at each
frequency are added up and averaged.5 The remaining amount is multiplied by a factor of 1.5 to
arrive at the percentage of monaural hearing loss.6 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the

2

5 U.S.C. §§ 8101-8193.

3

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

4

A.M.A., Guides 250.

5

Id.

6

Id.

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binaural hearing loss.7 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.8
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.9 The A.M.A., Guides state that, if tinnitus
interferes with activities of daily living, including sleep, reading and other tasks requiring
concentration, enjoyment of quiet recreation, and emotional well being, up to five percent may
be added to a measurable binaural hearing impairment.10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a binaural sensorineural hearing loss due to
hazardous noise exposure at work. To determine his entitlement to a schedule award, OWCP
obtained a second opinion report and audiometric test results from Dr. Hollingsworth, a Boardcertified otolaryngologist, who found a 12.5 percent binaural hearing loss due to occupational
noise exposure. OWCP then referred Dr. Hollingsworth’s findings to an OWCP medical adviser
for calculation of a schedule award according to the A.M.A., Guides.
OWCP medical adviser properly applied OWCP’s standardized procedures to the July 14,
2010 audiogram obtained by Dr. Hollingsworth. Testing for the left ear at the frequencies of
500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 35, 35, 40 and 65 decibels,
respectively. These decibel losses were totaled at 175 and divided by 4 to obtain the average
hearing loss per cycle of 44 decibels. The average of 44 was then reduced by the 25 decibels
fence to equal 19 decibels for the left ear.11 Following the same mathematical procedure, the
medical adviser totaled the 25, 30, 30 and 40 decibel losses in the right ear at the frequency
levels of 500, 1,000, 2,000 and 3,000 cps to equal 125. He divided the total by 4 to obtain the
average hearing loss at those cycles of 31 decibels, reduced by 25 decibels to equal 6.
The binaural hearing loss is determined by calculating the loss in each ear using the
formula for monaural loss; the lesser loss, in this case 9, is multiplied by five, equaling 45, then
added to the greater loss of 29 for a sum of 74, and the total is divided by six to arrive at the
amount of the binaural hearing loss of 12.5 rounded up to 13 percent.12

7

Id.

8

C.C., Docket No. 11-731 (issued October 11, 2011).

9

See A.M.A., Guides 249. See also C.C., supra note 8.

10

A.M.A., Guides 249. See also Robert E. Cullison, 55 ECAB 570 (2004); R.H., Docket No. 10-2139 (issued
July 13, 2011); C.C., supra note 8.
11

The decibel fence is subtracted as it has been shown that the ability to hear everyday sounds under everyday
listening conditions is not impaired when the average of the designated hearing levels is 25 decibels or less. See
A.M.A., Guides 250.
12

The policy of OWCP is to round the calculated percentage of impairment to the nearest decimal point. Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3.b (June 2003).

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The Board finds that OWCP’s medical adviser applied the proper standards to the
findings in the July 14, 2010 report of Dr. Hollingsworth and accompanying audiogram
performed on his behalf. The result is a 13 percent binaural hearing loss. The Board further
finds that OWCP’s medical adviser properly relied upon the July 14, 2010 audiogram as it was
part of Dr. Hollingsworth’s evaluation and met OWCP’s standards.13 OWCP properly found that
appellant had a 13 percent binaural hearing loss due to hazardous noise exposures at work.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
On appeal, appellant asserts that OWCP did not consider tinnitus in calculating the
schedule award; but Dr. Hollingsworth did not mention tinnitus in his report or state that
appellant reported tinnitus on examination. Dr. Lower, an attending Board-certified
otolaryngologist, diagnosed tinnitus on January 11, 2010 but did not opine that it impacted
activities of daily living. Therefore, OWCP did not include tinnitus as an element in the
schedule award calculation.14
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b))(1) of FECA states unequivocally that a claimant not satisfied with a
decision of OWCP has a right, upon timely request, to a hearing before an OWCP
representative.15 Section 10.615 of Title 20 of the Code of Federal Regulations provide that a
hearing is a review of an adverse decision by an OWCP hearing representative. Initially, the
claimant can choose between two formats: An oral hearing or a review of the written record.16
A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark or other carrier’s date marking of
the request.17 OWCP has discretion, however, to grant or deny a request that is made after this
30-day period.18 In such a case, it will determine whether to grant a discretionary hearing and, if
not, will so advise the claimant with reasons.19

13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirement for Medical Reports, Chapter
3.600.8(a) (September 1994).
14

See R.D., 59 ECAB 127 (2007).

15

5 U.S.C. § 8124 (b)(1). See A.B., 58 ECAB 546 (2007); Joe Brewer, 48 ECAB 411 (1997).

16

20 C.F.R. § 10.615.

17

Id. at § 10.616(a).

18

Herbert C. Holley, 33 ECAB 140 (1981); see also G.W., Docket No. 10-782 (issued April 23, 2010).

19

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

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ANALYSIS -- ISSUE 2
On December 16, 2010 OWCP issued a schedule award. Appellant had 30 days from the
date of that decision or until January 18, 2011, to make a timely request for a hearing.20 His
letter requesting a review of the written record was dated January 22, 2001. Although the
postmark and envelope are not of record, the letter was dated after January 18, 2011. Therefore,
the Board finds that the letter requesting a review of the written record was not timely even in the
absence of the postmark.21
Because appellant’s request was untimely, the Board finds that OWCP properly found
that he was not entitled to a hearing as a matter of statutory right under section 8124(b)(1) of
FECA. Exercising its discretion to grant an oral hearing, OWCP denied his request on the
grounds that he could equally well address any issues in his case by requesting reconsideration.
Because reconsideration exists as an alternative appeal right to address the issues raised by
OWCP’s December 16, 2010 decision, the Board finds that OWCP did not abuse its discretion in
denying appellant’s untimely request for an oral hearing.22
CONCLUSION
The Board finds that appellant has not established that he sustained greater than a 13
percent binaural hearing loss in the performance of duty. The Board further finds that OWCP
properly denied his request for an oral hearing as untimely.

20

The 30th day from December 16, 2010 was Saturday January 15, 2011. The Board has held that, in computing
a time period, the date of the event from which the designated period of time begins to run shall not be included
while the last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday.
John B. Montoya, 43 ECAB 1148 (1992). As Monday, January 17, 2011 was a federal holiday, the first regular
business day after January 15, 2011 was Tuesday, January 18, 2011.
21

See Glenda G. Muri, Docket No. 05-437 (issued July 1, 2005).

22

See Gerard F. Workinger, 56 ECAB 259 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 24, 2011 and December 16, 2010 are affirmed.
Issued: December 21, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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Appearances:
Lonnie Boylan, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0417
Issued: July 11, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 19, 2018 appellant, through her representative, filed a timely appeal from a
July 19, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish lumbar, right hip,
right knee, or bilateral leg conditions causally related to the accepted factors of her federal
employment.
FACTUAL HISTORY
On May 1, 2016 appellant, then a 51-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she injured her back, right hip, right knee, and legs due
to daily repetitive tasks. She indicated that she first became aware of her claimed conditions on
November 15, 2013, and related them to factors of her federal employment on January 17, 2014.
On the reverse side of the claim form the employing establishment noted that appellant first
received medical care on November 18, 2013, that she stopped work on January 18, 2014, that she
first reported the claimed conditions to her supervisor on April 26, 2016, and that she had not yet
returned to work.
In a development letter dated May 4, 2016, OWCP advised appellant of the factual and
medical deficiencies of her claim. It provided a questionnaire for her completion to establish the
employment factors alleged to have caused or contributed to her medical condition and requested
a medical report from her attending physician explaining how and why her federal work activities
caused, contributed to, or aggravated her medical condition. OWCP afforded appellant 30 days to
submit the necessary evidence.
In a supplemental statement dated January 15, 2016, appellant indicated that on or about
February 12, 2007 she experienced pain and discomfort in her lower extremities including her
hip/thigh and right leg.3 She noted that her employment duties consisted of walking across uneven
properties with steep hills, slopes, and unseen holes. Appellant related that she stepped down into
a hidden hole, her leg and body twisted as she braced her fall to the ground, and she experienced
pain in her lower extremities. She indicated that, even though her symptoms never subsided, she
returned to full duty in April 2009, and continued to work in a limited-duty work status with
walking and weight lifting restrictions from 2007 through 2009. Appellant noted that, as a letter
carrier, she was required to constantly stand, walk, sort mail, and reach and bend to deliver mail.
In an addendum to her statement dated May 8, 2016, appellant related that she was not
informed of the proper documents to file until the later part of April 2016. She indicated that she
filed notices of recurrence several times, but OWCP notified her to file her claim as a new injury.
Appellant noted that, during a visit to her treating physician on November 15, 2013, she became
aware of new information about her conditions and their relationship to her federal employment.
She related that on January 17, 2014 her treating physician recommended that she not return to
work.

3

The record reflects that appellant had filed previous compensation claims. Appellant resubmitted medical reports,
physician’s statements, personal statements, and other evidence from her previous OWCP File No. xxxxxx389, which
was accepted for a February 12, 2007 employment injury. OWCP has not administratively combined appellant’s prior
compensation claims with the current claim.

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In a progress report dated September 30, 2015, received by OWCP on May 8, 2016,
Dr. Louis D. Zegarelli, a Board-certified family practitioner, diagnosed lumbar grade 1
spondylolisthesis at L4-L5, lumbar facet arthropathy, internal derangement of the right hip, right
hip sprain, and right knee sprain based on magnetic resonance imaging (MRI) scans dated
October 12, 2013. He opined that there was objective evidence that appellant’s conditions were
deteriorating, which necessitated that appellant be placed off of work commencing
January 18, 2014.
In a report dated December 1, 2015, and resubmitted (and redated) on June 2, 2016,
Dr. Zegarelli indicated that appellant was able to return to gainful employment in April 2009, but
her symptoms never resolved. He noted that appellant had sustained progressive dysfunction and
deterioration of her anatomical structures associated with her injuries. Dr. Zegarelli opined that
there was a direct relationship between appellant’s ongoing persistent functional deficits and her
symptoms.
By decision dated June 10, 2016, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
conditions and the accepted factors of her federal employment.
On August 9, 2016 appellant requested reconsideration of OWCP’s June 10, 2016
decision. She submitted a June 22, 2016 statement along with her request for reconsideration
which was substantially similar to her May 8, 2016 statement describing the implicated factors of
her federal employment. Appellant submitted additional evidence along with her request.
In a report dated June 22, 2016, Dr. Zegarelli noted that appellant related that she had been
engaged in daily repetitive employment activities including driving and delivering mail, constant
bending and twisting, and dismounting from her vehicle. He opined that these activities caused
repeated stress and aggravation to her lower extremities.
By decision dated September 20, 2016, OWCP denied modification of its June 10, 2016
decision, finding that the medical evidence of record was insufficient to establish causal
relationship between appellant’s diagnosed conditions and the accepted factors of her federal
employment.
On August 9, 2017 appellant, through counsel, requested reconsideration of OWCP’s
September 20, 2016 decision. Counsel submitted additional argument and evidence along with
the request.
In a report dated June 6, 2017, Dr. Zegarelli indicated that appellant was unable to perform
her federal employment duties. He opined that appellant was medically incapacitated from any
gainful employment due to her accepted lumbosacral injury and the resulting symptoms associated
with that injury.
In a letter dated August 1, 2017, Dr. Zegarelli opined that the ongoing continual daily
trauma to appellant’s lumbosacral spine had resulted in irreversible changes. He indicated that
appellant was temporarily totally disabled.

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By decision dated October 5, 2017, OWCP denied modification of its September 20, 2016
decision.
On March 29, 2018 appellant, through counsel, requested reconsideration of OWCP’s
October 5, 2017 decision. Counsel submitted additional argument and evidence along with the
request.
In a report dated January 4, 2018, Dr. Zegarelli indicated that appellant requested that the
employment incident on November 15, 2013 be considered a new injury. He opined that appellant
had an aggravation of her condition as opposed to a new injury. Dr. Zegarelli noted that he
instructed appellant to present his findings of aggravation of her original condition to the
employing establishment, that the employing establishment disagreed, and instead related that it
should be designated as a new injury. He again opined that appellant’s condition was an
aggravation of a preexisting injury from February 12, 2007. Dr. Zegarelli indicated that appellant
did not have new insult to the lumbar spine region, but began experiencing increasing dysfunction
of her lumbar spine, which resulted in worsening symptoms and greater disability. He opined that
appellant’s worsening symptoms and greater disability was directly/causally related to the new
pathology detected by the updated MRI scan.
By decision dated July 19, 2018, OWCP denied modification of its October 5, 2017
decision.
LEGAL PRECEDENT
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
In an occupational disease claim, a claimant must submit the following: (1) medical
evidence establishing the presence or existence of the disease or condition for which compensation
is claimed; (2) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; and (3) medical evidence
4

Supra note 2.

5

A.M., Docket No. 18-1748 (issued April 24, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
A.M., supra note 5; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

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establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.10
Neither the mere fact that a disease or condition manifests itself during a period of
employment nor the belief that the disease or condition was caused or aggravated by employment
factors or incidents is sufficient to establish causal relationship.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish lumbar, right
hip, right knee, or bilateral leg conditions causally related to the accepted factors of her federal
employment.
Appellant submitted multiple reports dated September 30 and December 1, 2015, June 2
and 22, 2016, June 6 and August 1, 2017, and January 4, 2018 from Dr. Zegarelli who repeatedly
diagnosed lumbar grade 1 spondylolisthesis at L4-L5, lumbar facet arthropathy, internal
derangement of the right hip, right hip sprain, and right knee sprain based on MRI scans dated
October 12, 2013. Dr. Zegarelli related that appellant’s conditions were deteriorating which
necessitated that appellant be placed off work. In his June 22, 2016 report, he noted that appellant
explained that she engaged in daily repetitive employment activities including driving and
delivering mail, constant bending and twisting, and dismounting from her vehicle. Dr. Zegarelli
opined that these activities caused repeated stress and aggravation to her lower extremities. In his
August 1, 2017 letter, he opined that the ongoing continual daily trauma to appellant’s lumbosacral
spine had resulted in irreversible changes. Dr. Zegarelli indicated that appellant was temporarily
totally disabled from work. In his January 4, 2018 report, he opined that appellant had an
aggravation of her original injury dated February 12, 2007 as opposed to a new injury.
Dr. Zegarelli indicated that appellant did not have new insult to the lumbar spine region, but began
experiencing increasing dysfunction of her lumbar spine which resulted in worsening symptoms
and greater disability. He opined that appellant’s worsening symptoms and greater disability was
directly/causally related to the new pathology detected by the updated MRI scan.
While Dr. Zegarelli noted an employment-related injury and diagnosed multiple lumbar
conditions, his opinion regarding causal relationship in these reports was merely conclusory. The
Board has held that a medical opinion is of limited probative value if it is speculative and
8

E.M., Docket No. 18-0275 (issued June 8, 2018).

9

A.M., Docket No. 18-0685 (issued October 26, 2018).

10

E.V., Docket No. 18-0106 (issued April 5, 2018).

11

A.M., supra note 5; Dennis M. Mascarenas, 49 ECAB 215 (1997).

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conclusory in nature.12 A medical opinion must provide an explanation as to how the specific
employment factors physiologically caused or aggravated the diagnosed conditions.13 While he
attempted to explain that appellant’s continued employment activities aggravated her previous
injury-related conditions, without medical reasoning to explain how, physiologically, the accepted
employment factors caused or aggravated the diagnosed conditions, Dr. Zegarelli’s reports are
insufficient to establish appellant’s claim.14
As appellant has not submitted rationalized medical evidence to establish that her
diagnosed conditions were causally related to the accepted employment factors, the Board finds
that she has not met her burden of proof to establish her claim.15
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 lumbar, right
hip, right knee, or bilateral leg conditions causally related to the accepted factors of her federal
employment.

12

See M.W., Docket No. 17-0186 (issued March 13, 2018).

13

See V.T., Docket No. 18-0881 (issued November 19, 2018).

14

See R.T., Docket No. 17-2019 (issued August 24, 2018).

15

On return of the case record OWCP should consider combining File No. xxxxxx389 with the present claim.

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ORDER
IT IS HEREBY ORDERED THAT the July 19, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 11, 2019
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
C.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dodgeville, WI, Employer
__________________________________________

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

Docket No. 20-0424
Issued: August 30, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 16, 2019 appellant filed a timely appeal from a December 4, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established a diagnosed medical condition causally
related to the accepted October 23, 2019 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 4, 2019 decision, appellant submitted 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.

FACTUAL HISTORY
On October 23, 2019 appellant, then a 59-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that same day she injured her knees when a dog got loose and
knocked her to the ground while in the performance of duty. She indicated that she twisted and
fractured her left knee and also scratched and bruised her right knee. Appellant stopped work on
October 23, 2019.
In an October 28, 2019 development letter, OWCP informed appellant that it had received
no evidence in support of her traumatic injury claim. It informed her of the evidence necessary to
establish her claim and provided a questionnaire for her completion regarding her employment
activities. OWCP also requested a narrative medical report from appellant’s treating physician,
which contained a detailed description of findings and a diagnosis, explaining how the claimed
employment incident caused, contributed to, or aggravated her medical conditions. It afforded her
30 days to respond.
On October 23, 2019 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16). J.B., the authorizing official, described appellant’s
injury as a sprain/twist of the left knee. The portion of the form designated as Part B-Attending
Physician’s Report was signed on November 4, 2019 by Dr. James Self, a Board-certified
orthopedic surgeon, who diagnosed a closed fracture of the lateral portion of the left tibial plateau.
In October 23, 2019 diagnostic reports, Dr. Alessando Rossi, a Board-certified radiologist,
performed a CT scan and x-ray scan of appellant’s left knee, observing an acute, mildly
comminuted, depressed lateral tibial plateau fracture.
In work status reports dated November 11 and 25, 2019, Dr. Self initially recommended
appellant not return to work and subsequently found she could return to work with restrictions.
By decision dated December 4, 2019, OWCP denied appellant’s traumatic injury claim,
finding that she had failed to submit medical evidence signed by a qualifying physician containing
a diagnosis in connection with her claimed injury. It concluded, therefore, that the requirements
had not been met to establish an injury as defined under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to

3

Supra note 1.

4
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

2

the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
specific employment incident.10
ANALYSIS
The Board finds that appellant has established a diagnosed medical condition. The Board
further finds that this case is not in posture for decision with regard to whether the diagnosed
condition is causally related to the October 23, 2019 employment incident.
On October 23, 2019 the employing establishment’s authorizing official executed a Form
CA-16 and described appellant’s injury as a sprain/twist of the left knee. On November 4, 2019
Dr. Self completed Part B of the CA-16 (Attending Physician’s Report). He diagnosed a closed
fracture of the lateral portion of the left tibial plateau.
As the medical evidence of record establishes a diagnosed condition, the case must be
remanded for consideration of the medical evidence with regard to the issue of causal relationship.
Following any further development deemed necessary, OWCP shall issue a de novo decision.

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7
K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q)
8

T.H., 59 ECAB 388, 393-94 (2008); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

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

3

CONCLUSION
The Board finds that appellant has established a diagnosed medical condition. The Board
further finds that this case is not in posture for decision with regard to whether the diagnosed
condition is causally related to the October 23, 2019 employment incident.11
ORDER
IT IS HEREBY ORDERED THAT the December 4, 2019 decision of the Office of
Workers’ Compensation Programs is reversed in part and set aside in part and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: August 30, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11

A completed Form CA-16 authorization may constitute a contract for payment of medical expenses to a medical
facility or physician, when properly executed. The form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See
20 C.F.R. § 10.300(c); J.G., Docket No. 17- 1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB
608 (2003).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Capitol Heights, MD, Employer
__________________________________________

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

Docket No. 15-116
Issued: June 2, 2015

Case Submitted on the Record

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

JURISDICTION
On October 21, 2014 appellant filed a timely appeal from June 13 and October 2, 2014
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on April 5, 2014, as alleged.
FACTUAL HISTORY
On April 6, 2014 appellant, then a 54-year-old mail handler, filed a traumatic injury
claim alleging that on April 5, 2014 at 11:30 p.m., while she was pulling containers off a truck
she felt a pain in her lower back and that, as she walked the containers to the door, the pain got
worse.
1

5 U.S.C. § 8101 et seq.

In support of her claim, appellant submitted a verification of treatment form signed by
Dr. Elizabeth Biru, a Board-certified internist, dated April 6, 2014 at 10:01 a.m., wherein
Dr. Biru noted that appellant received medical treatment on that date and was unable to work
from April 6 to 9, 2014. Dr. Eunice F. Shakir, a Board-certified family practitioner, noted in
reports dated April 8 and 14, 2014 that appellant was evaluated and unable to work through
April 21, 2014. Appellant also submitted a verification of treatment form indicating that she
received physical therapy from Roshin Kuriadom on April 8, 2014.
By letter dated May 14, 2014, OWCP provided appellant 30 days to submit additional
documentation to support her claim. Appellant did not file a timely response to OWCP’s letter.
On June 13, 2014 OWCP denied appellant’s claim as she had not submitted medical
evidence containing a diagnosis in connection with the accepted employment incident.
On June 26, 2014 appellant requested reconsideration. In support of her request, she
submitted a June 24, 2014 report by Dr. Shakir, who listed the dates of examination by
appellant’s physicians on April 6, 8, and 14, 2014 and noted that she had physical therapy on
April 8, 22 and 29, and May 6, 2014. Dr. Shakir noted that when she saw appellant on August 8,
2014, appellant reported that she had begun to unload heavy material from a post truck and that,
near the completion of the job, she experienced right-sided lower back pain and spasm. She
noted that appellant had no prior history of these symptoms. Dr. Shakir indicated that appellant
was in obvious discomfort during her appointment, and held her right side getting on and off the
examination table. She opined that the prolonged lifting of heavy boxes caused appellant’s
lower back strain injury on April 6, 2014. Appellant also submitted physical therapy notes from
Ms. Kuriadom and Irene Perrakis.
In an October 2, 2014 decision, OWCP denied modification of its June 13, 2014 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury. 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.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.3
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012).

2

in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place, and in the manner
alleged.4
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.5 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
ANALYSIS
Appellant alleged that she sustained an injury on April 5, 2014 at 11:30 p.m. while
pulling containers off a truck. OWCP accepted that this incident occurred as alleged. However,
it denied appellant’s claim as it determined that she had failed to establish a medical condition
causally related to the accepted incident. The Board finds that OWCP properly denied her claim.
Appellant received treatment from Dr. Biru, on April 6, 2014, who noted that appellant
was unable to work from April 6 to 9, 2014. However, Dr. Biru did not provide a medical
diagnosis nor did she discuss a cause for appellant’s visit.
Appellant was treated by Dr. Shakir on April 6, 8, and 14, 2014. At that time, Dr. Shakir
noted that appellant appeared to hold her side moving on and off the examination table and she
diagnosed a back strain injury. She noted in her April 8, 2014 report that appellant stated that
two days earlier she was unloading heavy material at work and felt a pain and spasm. Dr. Shakir
advised appellant to follow-up with a physical therapist. In a June 24, 2014 report, she noted that
when she saw appellant she was in obvious discomfort and held her right side getting on and off
the examination table. Dr. Shakir opined at that time that the prolonged lifting of heavy boxes
caused appellant’s lower back strain injury on April 6, 2014. She, however, failed to provide any
medical rationale or results from her medical examination to support her opinion.
The Board notes that physical therapists are not considered physicians as defined under
FECA.7 As such, the Board finds that the notes by Ms. Kuriadom and Ms. Perrakis are of
limited probative value.8

4

Linda S. Jackson, 49 ECAB 486 (1998).

5

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

6

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

7

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

8

J.V., Docket No. 14-1025 (issued November 24, 2014).

3

Causal relationship must be based on rationalized medical opinion evidence.9 A
physician must accurately describe appellant’s work duties and medically explain the process by
which these duties would have caused or aggravated his condition.10 As appellant failed to
submit a rationalized medical opinion finding her injuries causally related to the accepted
April 5, 2014 employment incident, she has not met her 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.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an injury in
the performance of duty on April 5, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 2 and June 13, 2014 are affirmed.
Issued: June 2, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9

M.E., Docket No. 14-1064 (issued September 29, 2014).

10

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also G.G., Docket No
15-234 (issued April 9, 2015).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dayton, OH, Employer
__________________________________________

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

Docket No. 08-2224
Issued: May 20, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 12, 2008 appellant, through her representative, filed a timely appeal from the
May 9, 2008 merit decision of the Office of Workers’ Compensation Programs, which denied
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of the case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty on February 6, 2008.
FACTUAL HISTORY
On February 20, 2008 appellant, then a 46-year-old program support assistant, filed a
claim alleging that she sustained a traumatic emotional injury at work on February 6, 2008: “I
had a meeting with Mr. Frazee on February 6, 2008, 2:00 p.m. for a decision of proposed
removal. This decision was to remove me. I got so stressed out that I left the office and called

Dr. Reynolds and made AP.” Appellant stated that during the meeting she could not believe the
director had decided to remove her “on all the bogus charges, some of which was false.” She
stated that she felt Mark D. Frazee, a chief, voluntary and recreation therapy service, was
laughing to himself about firing her.
The record shows that appellant was removed from her position effective February 22,
2008 on four charges: allowing an unauthorized user to use her veterans administration
computer login, inappropriate conduct, deliberate failure to carry out supervisor’s instruction and
inappropriate behavior. Mr. Frazee stated that he met with appellant and her union
representative on February 6, 2007 to present her with the Medical Center Director’s decision to
remove her. He stated that when appellant understood she was being fire, she became upset.
In a decision dated May 9, 2008, the Office denied appellant’s claim for compensation
benefits. It found no incident that could be considered in the performance of duty.1 The Office
specifically found that the termination of an employee is an administrative function of the
employer and is not considered to be a compensable factor of employment. It further found no
evidence of error or abuse by the employer in terminating her.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for disability of an
employee resulting from personal injury sustained while in the performance of duty.2 When an
employee experiences emotional stress in carrying out her employment duties or has fear and
anxiety regarding her ability to carry out her duties and the medical evidence establishes that the
disability resulted from her emotional reaction to such situation, the disability is generally
regarded as due to an injury arising out of and in the course of employment. This is true when
the employee’s disability resulted from her emotional reaction to a special assignment or
requirement imposed by the employing establishment or by the nature of her work. By contrast,
there are disabilities having some kind of causal connection with the employment that are not
covered under workers’ compensation law because they are not found to have arisen out of
employment, such as when disability results from an employee’s fear of a reduction-in-force or
frustration from not being permitted to work in a particular environment or to hold a particular
position.3
Workers’ compensation law does not cover an emotional reaction to an administrative or
personnel action unless the evidence shows error or abuse on the part of the employing

1

On February 7, 2008 appellant described what happened leading up to the February 6, 2008 meeting. In an
effort to be as comprehensive as possible, the Office addressed the compensability of all the events she mentioned.
The Board, however, considers this background information and is not convinced that appellant intended to claim a
broad occupational injury spanning the course of several months. Instead, appellant’s later February 20, 2008 claim
form stands as persuasive evidence that she intended to claim a traumatic emotional injury on February 6, 2008,
when she learned that she was being removed from her employment.
2

5 U.S.C. § 8102(a).

3

Lillian Cutler, 28 ECAB 125 (1976).

2

establishment.4 As a rule, allegations alone by a claimant are insufficient to establish a factual
basis for an emotional condition claim.5 The claimant must substantiate allegations with
probative and reliable evidence.6
ANALYSIS
The evidence shows that appellant had an emotional reaction on February 6, 2008 when
she learned in a meeting with her supervisor that the medical center director had decided to
remove her from her employment. Although this meeting and appellant’s removal, are clearly
connected to her employment, the decision to remove an employee for cause is a managerial or
administrative function of the employer and is not considered a compensable factor of
employment. Appellant’s emotional injury, therefore, does not fall within the scope of workers’
compensation.
Appellant alleged that the director had decided to remove her on bogus charges, but there
is no probative evidence of wrongful termination. She also alleged that she felt that Mr. Frazee
was laughing to himself about firing her, but this appears to be nothing more than her personal
perception of someone else’s mood or thinking. Appellant’s union representative attended this
meeting and has made no charge of abusive behavior or misconduct by Mr. Frazee. In the
absence of proof that the employer committed error or abuse in removing her from her
employment, the Board finds that appellant has not met her burden of proof to establish that her
February 20, 2008 claim for compensation falls within the scope of the Act.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty on February 6, 2008.

4

Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566, 572-73 (1991).

5

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).
6

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).

3

ORDER
IT IS HEREBY ORDERED THAT the May 9, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 20, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
TROOP SUPPORT AGENCY, Fort Sill, OK,
Employer
__________________________________________

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

Docket No. 16-0319
Issued: April 6, 2016

Case Submitted on the Record

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

JURISDICTION
On December 8, 2015 appellant filed a timely appeal of an October 28, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from June 17, 2013, the date of the most recent OWCP merit decision, to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and did not establish clear evidence of error.
On appeal, appellant requests reconsideration of the merits of his claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On April 28, 1978 appellant, a 39-yearold store worker, filed a traumatic injury claim (Form CA-1), alleging that on April 26, 1978 he
injured his head and shoulder as a result of being struck by a metal door while bailing cardboard.
He stopped work on the date of injury and returned to full duty the next day on April 27, 1978.
OWCP accepted appellant’s claim for contusion of the left shoulder and scalp hematoma.2
Thereafter, appellant filed claims for a recurrence of disability (Form CA-2a) on October 16,
1984 and March 13, 2004. On July 19, 2004 OWCP denied the March 13, 2004 recurrence
claim as the medical evidence was insufficient to establish that it was causally related to the
April 26, 1978 work injury. Appellant requested a hearing and by decision dated August 10,
2005, an OWCP hearing representative affirmed the July 19, 2004 decision. On December 23,
2005 appellant requested a review of the written record and submitted additional evidence.3 By
decision dated January 24, 2006, an OWCP hearing representative denied appellant’s request for
a review of the written record, on the grounds that he was not entitled to a second review as a
matter of right. The request was further denied because the issue in the case could be equally
well addressed through a request for reconsideration. Appellant appealed to the Board. By
decision dated December 11, 2006, the Board affirmed the August 10, 2005 and January 24,
2006 OWCP decisions which denied appellant’s claim for a recurrence and request for a review
of the written record.4 Appellant requested reconsideration multiple times. OWCP denied his
requests in decisions dated July 15, 2008, August 13, 2009, January 22 and August 16, 2010.
On December 18, 2009 appellant filed a timely appeal from a June 26, 2009 merit
decision in OWCP File No. xxxxxx397 and the August 13, 2009 nonmerit decision in the present
claim, OWCP File No. xxxxxx587. In its February 16, 2011 decision, the Board affirmed
OWCP’s June 26, 2009 decision in File No. xxxxxx397, finding that he failed to establish that he
sustained a recurrence of disability commencing March 3, 1980 due to his accepted
September 23, 1975 employment injury, and that OWCP properly refused to reopen his claim for
reconsideration of the merits under 5 U.S.C. § 8128(a). The Board also affirmed OWCP’s
August 13, 2009 decision in OWCP File No. xxxxxx587, finding that appellant’s request for
reconsideration was untimely filed and failed to establish clear evidence of error.5
On January 18, 2012 appellant again requested reconsideration. In a decision dated
April 27, 2012, OWCP denied his request as it was untimely filed and failed to establish clear
evidence of error. On July 23, 2012 appellant filed a timely appeal from OWCP’s April 27, 2012
nonmerit decision. By decision dated November 2, 2012, the Board affirmed the April 27, 2012
2

Appellant has a separate claim for a September 23, 1975 injury that OWCP accepted for a right lumbar muscle
strain. (OWCP File No. xxxxxx397).
3

Evidence included a September 26, 1975 report from Dr. Robert L. Shore, a physician, an April 14, 1980 report
from Dr. Steven Rowlan, a Board-certified orthopedic surgeon, an August 2, 1985 report from Dr. Jerry Martin, a
chiropractor, and a June 23, 1987 report from Dr. Hans von Brauchitsch, a Board-certified psychiatrist.
4

Docket No. 06-1337 (issued December 11, 2006), Order Denying Petition for Reconsideration (issued
June 15, 2007).
5

Docket No. 10-634 (issued February 16, 2011).

2

OWCP decision, as the request was untimely and failed to establish clear evidence of error.6
Appellant again requested reconsideration. In a merit decision dated June 17, 2013, OWCP
denied modification of its prior decision. The facts of the case, as set forth in the prior Board
decisions, are incorporated herein by reference.
By letter dated July 18, 2015 and received on July 30, 2015, appellant again requested
reconsideration.7 He submitted narrative statements and previously filed traumatic injury and
recurrence claim forms. Appellant also resubmitted a September 26, 1975 report from Dr. Shore,
a request for examination and/or treatment (Form CA-16) dated April 26, 1978, an April 14,
1980 report from Dr. Rowlan, reports dated January 23 and August 2, 1985 from Dr. Martin, and
a June 23, 1987 report from Dr. von Brauchitsch.
In an August 1, 2005 report, Dr. Mark W. Cotton, a Board-certified family practitioner,
asserted that appellant suffered from organic brain syndrome and opined that he was mentally
impaired as a result of a head injury that occurred in 1978. He opined that appellant was unable
to make decisions regarding his own affairs because of his mental impairment since the initial
injury of 1978 and it was not expected that this condition would improve. On June 11, 2015
Dr. Cotton reported that appellant had been under his care since July 2003 for chronic low back
pain and a closed head injury with resulting organic brain syndrome. He opined that both
injuries were work related and occurred approximately 36 years ago. Dr. Cotton found that
appellant was totally disabled from work and had not held a job since the time of the injury.
By decision dated October 28, 2015, OWCP denied appellant’s request for
reconsideration as it was untimely filed and failed to establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.8 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).9 One such limitation provides that an application
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.10 The Board has found that the imposition of this one-year time limitation does
not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).11
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
6

Docket No. 12-1515 (issued November 2, 2012).

7

Appellant submitted other such forms that that were received on July 30 and August 5, 2015. Not all of the
writing on these forms is legible.
8

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

9

See Annette Louise, 54 ECAB 783, 789-90 (2003).

10

20 C.F.R. § 10.607(a).

11

See F.R., Docket No. 09-575 (issued January 4, 2010).

3

decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.12
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.13 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.14 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.15 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.16 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.17
To establish 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 shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.18 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.19
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. OWCP’s regulations20 and procedures21 establish a one-year time
limit for requesting reconsideration, which begins on the date of the original OWCP decision.
The most recent merit decision was OWCP’s June 17, 2013 decision. Appellant had one year
from the date of this decision to make a timely request for reconsideration. Since OWCP did not
receive his request until July 30, 2015, it was filed outside of the one-year time period. As
appellant’s request for reconsideration was submitted more than one year after the June 17, 2013
12

20 C.F.R. § 10.607(b).

13

See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

14

See M.L., Docket No. 09-956 (issued April 15, 2010).

15

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

16

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

17

See Jimmy L. Day, 48 ECAB 652 (1997).

18

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

19

See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

20

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011); see
supra note 18.

4

merit decision, it was untimely filed. Consequently, he must establish clear evidence of error by
OWCP in the denial of his claim.22
The Board finds that the evidence submitted by appellant in support of his request for
reconsideration does not raise a substantial question as to the correctness of OWCP’s June 17,
2013 decision or shift the weight of the evidence of record in his favor.
In his reports, Dr. Cotton reported that appellant had been under his care since July 2003
for chronic low back pain and a closed head injury with resulting organic brain syndrome and
opined that he was mentally impaired as a result of a head injury that occurred in 1978. He
found that appellant was totally disabled and did not expect his condition to improve. Dr. Cotton
opined that both injuries were work related and occurred approximately 36 years ago. The term
clear evidence of error is intended to represent a difficult standard. A detailed, well-rationalized
medical report which would have created a conflict in medical opinion requiring further
development if submitted prior to issuance of the denial decision, does not constitute clear
evidence of error.23 It is not enough to show that evidence could be construed so as to produce a
contrary conclusion. Instead, the evidence must shift the weight in appellant’s favor.24 While
the reports of Dr. Cotton are generally supportive of appellant’s continuing residuals and
disability, it does not establish clear error on the part of OWCP in rendering its June 17, 2013
decision. Thus, the Board finds that the reports of Dr. Cotton are insufficient to shift the weight
of the evidence in favor of appellant or raise a fundamental question as to the correctness of
OWCP’s decision denying his request for reconsideration.
The remaining medical reports submitted were duplicative of reports previously of record
and do not show error with respect to the June 17, 2013 decision.25 Appellant has not explained
how resubmission of these reports raises a substantial question concerning the correctness of
OWCP’s decision.
The Board finds that this evidence is insufficient to shift the weight of the evidence in
favor of appellant’s claim or raise a substantial question that OWCP erred in its June 17, 2013
decision.
On appeal, appellant requests reconsideration of the merits of his claim. As noted above,
the Board only has jurisdiction over OWCP’s October 28, 2015 nonmerit decision which denied
his request for reconsideration and therefore is precluded from conducting a merit review. As
explained, the medical evidence provided by appellant is insufficient to shift the weight of the
evidence in his favor and does not establish clear evidence of error.

22

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

23

See D.G., 59 ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013).

24

See M.N., Docket No. 15-0758 (issued July 6, 2015).

25

See L.M., Docket No. 14-1738 (issued March 3, 2015) (where the claimant resubmitted medical reports
previously of record, the Board found that the evidence was duplicative and failed to establish clear evidence of
error).

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the basis that it was untimely filed and did not establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the October 28, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 6, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Los Angeles, CA, Employer )
__________________________________________ )
D.P., Appellant

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

Docket No. 10-121
Issued: July 23, 2010

Case Submitted on the Record

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

JURISDICTION
On October 16, 2009 appellant filed a timely appeal from the May 1, 2009 merit decision
of the Office of Workers’ Compensation Programs, which denied her recurrence claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on July 21, 2008
causally related to her May 31, 2006 employment injury.
FACTUAL HISTORY
On May 31, 2006 appellant, then a 35-year-old transportation security screener, filed a
claim alleging that she injured her lower back in the performance of duty that day when she tried
to keep a big bag “of excessive weight” from falling on her. The Office accepted her claim for
lumbar sprain and displacement of the L5-S1 disc without myelopathy and acceleration of L5-S1
degeneration. Appellant received compensation for temporary total disability on the periodic

rolls. On May 19, 2008 she returned to limited duty in a modified position, which required no
standing greater than 20 minutes without a sitting break.
Appellant missed work intermittently for physical therapy appointments. On July 21,
2008 she stopped work completely and claimed compensation for total disability. On July 24,
2008 appellant filed a notice of recurrence and explained that she stopped work on July 21, 2008
after prolonged standing for a period of two weeks. Her pain had gradually worsened and was in
the same region “except it’s worse and shoots down my back into my legs now.”
The Office asked appellant for more information to support her claim, including a
statement on whether her limited-duty assignment had changed such that it no longer met her
medical restrictions. It also asked her to submit a physician’s narrative report describing the
objective findings that showed her condition had worsened and explaining how she could no
longer perform the duties she was performing when she stopped work.
Dr. Artis Woodward, an attending specialist in pain management, reported that he
evaluated appellant on July 17, 2008 for complaints of gradually worsening lower back pain. He
recommended an increase in her pain medication and to increase her home exercise regimen.
Dr. Woodward continued her on modified duties. He saw appellant again on July 21, 2008 with
complaints of increasing back pain “over the past two days.” Examination demonstrated pain
with all arcs of motion, increased muscle guarding and increased pain on palpation. Gait and
posture were antalgic. Dr. Woodward initiated physical therapy three times a week, continued
appellant’s pain medication and prescribed a muscle relaxant. “At this point, it was medically
indicated to place the patient on total temporary disability for a period of July 21, 2008 until
[August 21, 2008], to allow attenuation of symptoms.”
Dr. Woodward saw appellant again on August 21, 2008. He reported findings on
examination, including exquisite tenderness at the L5-S1 articulation with continued compromise
of range of motion and musculature that remained in a guarded posture. Dr. Woodward
recommended additional physical therapy, continued her disability through September 21, 2008
and sought consultation with a pain control specialist. He noted that appellant’s May 17, 2007
magnetic resonance imaging (MRI) scan was “somewhat grim” and, coupled with appellant’s
obese body habitus, provided a poor prognosis for conservative care response.
The Office referred appellant, together with the medical record and a statement of
accepted facts, to Dr. G.B. Ha’Eri, a Board-certified orthopedic surgeon, for a second opinion.
Dr. Ha’Eri evaluated appellant on October 29, 2008. He described her history of injury and
medical treatment. Dr. Ha’Eri noted appellant’s present complaints and findings on physical
examination. He diagnosed L5-S1 disc herniation, industrial and caused by the work injury of
May 31, 2006. Dr. Ha’Eri also diagnosed L5-S1 disc degeneration, industrial and consequential
to the industrial L5-S1 disc herniation. He advised that the diagnosed L5-S1 herniated disc was
a result of appellant’s original injury of May 31, 2006 “and her light-duty assignment … has not
caused any additional injury.” Dr. Ha’Eri found that she was able to work with her limited-duty
assignments since he last examined her in 2007. He described the prognosis as guarded. In
Dr. Ha’Eri’s opinion, appellant’s lower back condition would show periodic episodes of
exacerbation for the foreseeable future requiring further medical care. He recommended
continued conservative care. Dr. Ha’Eri found that appellant had no neurological deficit in her

2

lower extremity and that her low back pain was intermittent, so she was not a candidate for
surgical intervention.
In a decision dated November 20, 2008, the Office denied appellant’s recurrence claim.
It found that Dr. Ha’Eri’s opinion represented the weight of the medical evidence and failed to
establish that appellant was totally disabled from her limited-duty assignment beginning
July 21, 2008.
On May 1, 2009 an Office hearing representative affirmed the denial of appellant’s
recurrence claim. He found that appellant’s lack of response to the query about her employment
duties did not allow the Office to determine whether there was a spontaneous worsening. The
hearing representative further found that the weight of the medical evidence failed to support her
claim.
On appeal, appellant contends that Dr. Ha’Eri reviewed an MRI scan that was two years
old, did not fully examine her and had only asked questions.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.1
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.2
A “recurrence of disability” means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.3 When an employee who is disabled from the job she held when injured on
account of employment-related residuals returns to a limited-duty position, or the medical evidence
of record establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the limited-duty job requirements.4
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.5
1

5 U.S.C. § 8102(a).

2

20 C.F.R. § 10.5(f).

3

Id. at § 10.5(x).

4

Terry R. Hedman, 38 ECAB 222, 227 (1986).

5

5 U.S.C. § 8123(a).

3

ANALYSIS
When appellant filed her notice of recurrence, she explained that she stopped work on
July 21, 2008 after prolonged standing for a period of two weeks. She did not make clear
whether there was a change in her limited-duty job requirements such that she was no longer
allowed to take a sitting break after standing for 20 minutes. The Office asked appellant to
address the issue, but she did not respond. The Board therefore finds that she has not met her
burden to establish a change in the nature and extent of her limited-duty job requirements. To
establish her recurrence claim, therefore, she must show a change in the nature and extent of the
injury-related condition.
Appellant’s attending specialist in pain management, Dr. Woodward, examined her on
July 17 and 21, 2008. He reported increased complaints and findings. Dr. Woodward prescribed
physical therapy and a muscle relaxant, continued her pain medication and took her off work
until August 21, 2008. He reported that it was “medically indicated” to place appellant on
temporary total disability beginning July 21, 2008.
Dr. Ha’Eri, a Board-certified orthopedic surgeon and Office referral physician, disagreed.
He had appellant’s medical record and a statement of accepted facts. Although Dr. Ha’Eri
reported that appellant’s lower back condition would show periodic episodes of exacerbation for
the foreseeable future requiring further medical care, it was his opinion that she was able to work
in her limited-duty assignment since he last saw her in 2007.
The Board finds a conflict in medical opinion between Dr. Woodward and Dr. Ha’Eri on
whether appellant sustained a recurrence of total disability on July 21, 2008 as a result of a
change in the nature and extent of the injury-related condition. The Office gave the weight of the
medical evidence to Dr. Ha’Eri, but he disagreed with the opinion of Dr. Woodward who found
it medically necessary to place appellant on temporary total disability beginning July 21, 2008.
Under section 8123(a) of the Act, the Office must resolve this conflict by referring appellant,
together with the medical record and a statement of accepted facts, to an impartial medical
specialist.
The Board will set aside the Office’s May 1, 2009 decision affirming the denial of
appellant’s recurrence claim and will remand the case for referral to an impartial medical
specialist. After such further development of the medical evidence as may be necessary, the
Office shall issue an appropriate final decision on appellant’s entitlement to compensation for
wage loss beginning July 21, 2008.
Appellant’s concerns on appeal with Dr. Ha’Eri’s failure to obtain an updated MRI scan,
and with his examination of her, are no longer an issue because the Office will refer her to a
different physician to settle the matter. An impartial medical specialist may decide whether
another MRI scan is necessary or helpful in resolving whether there was a change in the injuryrelated condition such that appellant became totally disabled beginning July 21, 2008.

4

CONCLUSION
The Board finds that this case is not in posture for decision. A conflict in medical
opinion warrants referral to an impartial medical specialist under section 8123(a) of the Act.
ORDER
IT IS HEREBY ORDERED THAT the May 1, 2009 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further action consistent with this
opinion.
Issued: July 23, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, MADIGAN ARMY
MEDICAL CENTER, JOINT BASE
LEWIS-McCHORD, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Howard L Graham, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0555
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On February 24, 2021 appellant, through counsel, filed a timely appeal from a
November 16, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).

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.

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
ISSUE
The issue is whether appellant has established that the acceptance of her claim should be
expanded to include additional or consequential conditions of major depression and anxiety, or a
cognitive disorder as a result of her accepted November 21, 2013 employment injury.
FACTUAL HISTORY
On December 13, 2013 appellant, then a 62-year-old social services assistant, filed a
traumatic injury claim (Form CA-1) alleging that on November 21, 2013 she sustained a right
shoulder strain with rotator cuff tearing when moving a large cabinet to retrieve documents which
had fallen from the printer while in the performance of duty. She did not initially stop work.
OWCP accepted the claim for right shoulder and upper arm acromioclavicular sprain, right
shoulder and arm rotator cuff sprain, right rotator cuff tear, and subsequently expanded acceptance
of the claim to include consequential conditions of right shoulder stress fracture and right shoulder
rotator cuff tear or rupture.4
OWCP paid appellant wage-loss compensation on the supplemental rolls as of
February 5, 2014. On June 28, 2016 it granted her a schedule award for 12 percent permanent
impairment of the right upper extremity for 37.44 weeks from April 12 through
December 30, 2016. OWCP paid appellant wage-loss compensation on the periodic rolls as of
October 15, 2017.
OWCP authorized a right shoulder arthroscopic rotator cuff repair, and biceps tendon repair
surgery, which occurred on February 7, 2014, a right shoulder rotator cuff repair and removal of
foreign body from humeral head, which occurred on January 23, 2015, and a right total shoulder
arthroplasty, which occurred on April 17, 2017. On October 4, 2018 appellant underwent an
OWCP authorized surgery for removal of right support implant.
In a letter dated November 20, 2018 appellant, through counsel, requested that the
acceptance of appellant claim be expanded to include additional conditions of major depression
and anxiety. In support of her request, appellant submitted a neuropsychological evaluation dated
March 9, 2016 from Philip Tate, Ph.D. and licensed clinical psychologist, which noted her mild
neurocognitive disorder and moderate-to-severe major depression. Dr. Tate related that she had
moderate-to-severe symptoms of depression that worsened during the holidays due to her
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the November 16, 2020 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.
4

Appellant retired from the employing establishment effective April 30, 2015.

2

daughter’s death four years prior. He also related that it was possible that depression and chronic
pain from appellant’s industrial injury adversely affected her auditory working memory somewhat,
but would not account for her deficits in visual and spatial memory. OWCP also received a work
capacity evaluation psychiatric/psychological conditions form (Form OWCP-5a) dated
November 15, 2018 from Vanessa J. Honn, Ph.D. and clinical psychologist, who noted severe
depression and anxiety, with chronic stress related to physical disability as a significant factor
contributing to depression and anxiety. In a work capacity evaluation musculoskeletal conditions
form (Form OWCP-5c) dated November 14, 2018 Dr. Matthew Jenkins, a Board-certified
orthopedic surgeon, related appellant’s permanent restrictions due to her accepted right shoulder
condition.
On January 3, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions, to Dr. Michael Friedman, an osteopath and Board-certified
psychiatrist, for a second opinion examination. It requested that he address whether she suffered
from an emotional condition that was a direct and natural result of her accepted work conditions.
OWCP also requested that Dr. Friedman evaluate whether any diagnosed cognitive disorder was
an aggravation of a preexisting condition, and if so whether the aggravation was temporarily or
permanently aggravated by appellant’s employment-related conditions. In a report dated
February 12, 2019, Dr. Friedman reviewed her history of injury and medical reports of record. He
diagnosed mild neurocognitive disorder due to multiple factors, generalized anxiety disorder,
recurrent-moderate major depressive disorder, and predominant somatic symptoms disorder, pain
persistent. Dr. Friedman opined that appellant did not suffer from an employment-related
emotional condition. He also opined that her mild neurocognitive disorder was unrelated to her
employment injury and had not been aggravated by her accepted employment injury.
By decision dated March 8, 2019, denied appellant’s request to expand the acceptance of
her claim to include major depression and anxiety, or a cognitive disorder as causally related to
her November 21, 2013 work injury.
In a report dated March 20, 2019, John A. Ernst, Ph.D. and clinical neuropsychologist,
detailed treatment provided and attributed appellant’s neurocognitive functioning to medical and
psychosocial factors.
On April 6, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on August 16, 2019.
In a report dated September 27, 2019, Dr. Honn agreed with Dr. Friedman’s diagnoses of
mild neurocognitive disorder due to multiple factors, generalized anxiety diso rder, somatic
symptoms disorder, recurrent major depressive disorder-of-moderate severity, and persistent
predominant pain. She opined that appellant “suffers from the consequences shoulder injury in
2013 and subsequent surgical treatment of this injury as well as limited use of [appellant’s] right
arm as a result of the injury have contributed substantially to the diagnosed conditions mentioned
above.” While appellant’s depression and anxiety were preexisting conditions, Dr. Honn
explained that the severity of these conditions had dramatically increased due to appellant’s pain,
loss of self-esteem after appellant stopped working, and financial worries. She noted that at the
time of appellant’s injury her depression was not disabling. Dr. Honn disagreed with
Dr. Friedman’s opinion that appellant’s diagnosed cognitive disorder had not been aggravated by

3

appellant’s employment injury. In support of her opinion, she explained that appellant’s pain and
distress due to the shoulder injury appeared very distracting for appellant, decreased her capacity
for functional cognitive capacity, and reduced her capacity to be gainfully employed.
By decision dated October 31, 2019, OWCP’s hearing representative found an unresolved
conflict in the medical opinion evidence between Dr. Honn and Dr. Friedman on the issue of
whether appellant’s preexisting depression and anxiety, or cognitive impairment had been
aggravated by the November 21, 2013 work injury. She vacated the March 8, 2019 decision and
remanded the case to OWCP for referral to an impartial medical examiner (IME).
On November 1, 2019 OWCP referred appellant along with the medical record, a SOAF,
and series of questions to Dr. Douglas Robinson, a Board-certified psychiatrist, to resolve the
conflict in the medical opinion evidence between Drs. Honn and Friedman . Dr. Robinson was
asked by OWCP to address whether appellant had sustained any emotional condition that was a
natural and direct result of her accepted employment injury. OWCP also asked him to address
whether her cognitive disorder was an aggravation of a preexisting condition and if so whether this
condition was temporary or permanent.
In a report dated October 13, 2020, Dr. Robinson noted appellant’s complaints of
depression and worsening cognitive loss. Appellant related that she first became aware of her
emotional problems before she retired. According to her she had cognitive problems at the time
of her injury, which she described as lapses of memory such as being unable to recall personal data
or her PIN number. Dr. Robinson diagnosed bereavement, possible history of major depressive
disorder currently resolved, and history of panic disorder, currently in remission. He noted a
history of depression beginning in 1981 when appellant’s brother died. At the date of the
examination, Dr. Robinson found no symptoms of depression, but noted that it was clear that her
bereavement over her daughter’s death, who died in 2011 from breast cancer, was substantial. He
reported appellant’s cognitive functioning appeared normal during his examination and there was
no evidence of any symptoms of depression. Based on his review of the records, Dr. Robinson
noted that her cognitive problems began in 2014 and were aggravated by her anxiety and panic
attacks. He opined that appellant’s panic attacks were unrelated to any pain from her accepted
work injuries because they tend to occur intermittently over the course of an individual’s life.
Thus, Dr. Robinson concluded that her panic attacks were unrelated to her work injury with an
unknown cause, which he opined that was most likely biological.
By decision dated November 16, 2020, OWCP denied appellant’s request to expand the
acceptance of her claim to include consequential conditions of major depression and anxiety, or a
cognitive disorder.

4

LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.5
To establish causal relationship between a condition and the employment event or incident,
the employee must submit rationalized medical opinion evidence based on a complete factual and
medical background, supporting such a causal relationship.6 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.7
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury. 8
In a case where 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. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional or consequential conditions of
major depression and anxiety, or a cognitive disorder as causally related to the accepted
November 2, 2013 employment injury.
OWCP found a conflict in the medical opinion evidence between appellant’s treating
physician, Dr. Honn, who opined that appellant’s preexisting emotional and cognitive disorders
had been aggravated by the November 21, 2013 employment injury, and its second opinion
5

See D.E., Docket No. 20-0936 (issued June 24, 2021); S.L., Docket No. 19-0603 (issued January 28, 2020); T.E.,
Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo,
55 ECAB 200 (2004).
6

See D.E., id.; S.L., id.; T.E., id.; S.A., Docket No. 18-0399 (issued October 16, 2018).

7

See D.E., id.; S.L., id.; M.M., Docket No. 19-0061 (issued November 21, 2019); P.M., Docket No. 18-0287 (issued
October 11, 2018).
8

B.P., Docket No. 19-1376 (issued January 4, 2021); K.S., Docket No. 17-1583 (issued May 10, 2018).

9

M.O., Docket No. 18-0229 (issued September 23, 2019); J.F., Docket No. 19-0456 (issued July 12, 2019); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

5

physician, Dr. Friedman, who opined that appellant’s preexisting major depression and anxiety,
and cognitive disorder were unrelated to her accepted November 21, 2013 employment injury. It
properly referred appellant to Dr. Robinson, serving as the IME, to resolve the conflict, pursuant
to 5 U.S.C. § 8123(a).
In his October 13, 2020 report, Dr. Robinson found that appellant’s major depression and
anxiety, and cognitive disorder were not causally related to the accepted November 21, 2013
employment injury. He noted that her major depressive disorder began at the time of her brother’s
death in 1981. Dr. Robinson reported no current symptoms of depression and normal cognitive
functioning. He reported appellant’s first mention of panic attacks was in 2014. Dr. Robinson
indicated that her cognitive problems began in 2014 and that they had been aggravated by her
anxiety and panic attacks. He opined that appellant’s anxiety and cognitive issues were unrelated
to any pain from her accepted work injuries. Dr. Robinson explained that panic attacks tend to
occur intermittently over the course of an individual’s life and, thus, they were unrelated to her
work injury. He opined that the panic attacks were due to an unknown cause which he opined was
most likely biological.
The Board finds that Dr. Robinson’s impartial medical examination report represents the
special weight of the medical opinion evidence as his opinion is based on a proper factual and
medical history, and his report contained a detailed summary of appellant’s complex medical and
psychiatric history. Dr. Robinson addressed the medical records and provided his examination
findings to reach a reasoned conclusion regarding her employment-related conditions. 10 The
Board, therefore, finds that his opinion is entitled to the special weight accorded to an IME with
regard to the issue of whether acceptance of appellant’s claim should be expanded to include
depression and anxiety, or a cognitive disorder due to her accepted employment injury. 11
Consequently, appellant has not met her burden of proof to expand the accepted conditions of 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 that the
acceptance of her claim should be expanded to include additional or consequential conditions of
major depression and anxiety, or a cognitive disorder as a result of her accepted November 21,
2013 employment injury.

10
F.A., Docket No. 20-1652 (issued May 21, 2021); K.V., Docket No. 18-0947 (issued March 4, 2019); Michael S.
Mina, 57 ECAB 379 (2006); Kathryn Haggerty, 45 ECAB 383 (1994) (the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care
of analysis manifested, and the medical rationale expressed in support of the physician’s opinion are facts, which
determine the weight to be given to each individual report).
11

F.A., id; W.C., Docket No. 19-1740 (issued June 4, 2020); M.M., Docket No. 16-1655 (issued April 4, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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