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

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

Docket No. 18-0832
Issued: December 4, 2018

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 March 12, 2018 appellant filed a timely appeal from an October 13, 2017 merit decision
and a February 2, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a lumbar
injury causally related to the accepted factors of his federal employment; and (2) whether OWCP

1
Appellant filed a timely request for oral argument in this case. By order dated August 24, 2018, the Board
exercised its discretion and denied appellant’s request as oral argument as the case could be adequately decided based
on the case record and oral arguments would further delay issuance of a Board decision and not serve a useful purpose.
Order Denying Request for Oral Argument, Docket No. 18-0832 (issued August 24, 2018).
2

5 U.S.C. § 8101 et seq.

properly denied appellant’s request for reconsideration of the merits of his claim pursuant to 5
U.S.C. § 8128(a).
FACTUAL HISTORY
On November 15, 2016 appellant, then a 58-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed a degenerative spine condition as a result
of his repetitive federal employment duties which entailed constant turning, swiveling, bending,
and lifting of packages over the years. He stated that on a Saturday in 2012 he was casing mail
and experienced extreme pain in his lower back. Appellant did not realize that he had a pinched
nerve which had caused pain for several years. He noted that he first became aware of his claimed
condition and of its relationship to his federal employment in September 2012. The employing
establishment reported that appellant most recently stopped work on November 12, 2016.
In an accompanying November 16, 2016 narrative statement, appellant reported that the
stress from constant turning, swiveling, bending, and lifting packages of all sizes, shapes, and
weights had destroyed his lower spine. He stated that the pain had become intense and unbearable
at times, noting that his back was in great condition prior to starting his career at the employing
establishment. Appellant reported that around 2006 he was diagnosed with a degenerative spine
condition and had been taking pain medication since that time. He discussed his course of medical
treatment which included surgery two years prior. However, by November 5, 2016 appellant’s
back was hurting so badly with associated left leg numbness that he had to stop work.
In support of his claim, appellant submitted a March 6, 2006 cervical spine x-ray, an
October 4, 2012 magnetic resonance imaging (MRI) scan of the lumbar spine, and a January 8,
2014 MRI scan of the lumbar spine. The diagnostic reports revealed disc bulges at L1-2, L2-3,
and L3-4, as well as an L5-S1 disc protrusion.
In an April 5, 2009 medical report, Dr. Leslie McLean, Board-certified in family medicine,
noted appellant’s complaints of severe lower back pain radiating to his left leg, worse in the
morning when attempting to work. Dr. McLean diagnosed severe back pain and recommended
epidural steroid injections.
In a November 18, 2016 medical report, Dr. Dwain Rickertsen, a family medicine
physician, reported that appellant was under his care and could return to work on
February 18, 2017.
By development letter dated November 30, 2016, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the medical and factual
evidence necessary. OWCP afforded appellant 30 days to submit the necessary evidence.
In support of his claim, appellant submitted an October 3, 2014 medical report from
Dr. Jesse D. Babbitz, a Board-certified neurological surgeon. Dr. Babbitz reported that appellant
presented for evaluation of back pain which was present for over seven years. He noted that the
pain was unbearable and radiating to his lower extremities, rendering him unable to perform most
activities. Until two weeks prior, appellant was working as a rural postal carrier and intermittently
lifting 50 to 60 pound boxes of mail over short distances. Dr. Babbitz discussed his diagnostic and

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physical examination findings. He diagnosed diffuse thoracolumbar disc degeneration, lumbar
spondylosis with chronic low back pain, and left greater than right lumbosacral radiculopathy,
most likely L5. Dr. Babbitz noted that this was likely in part due to his L4-5 stenosis, but may
also be due to his L5-S1 foraminal stenosis. He discussed treatment options via L4-S1
decompression.
Hospital notes dated October 27 through 30, 2014 document appellant’s pre- and
postoperative treatment for L4-S1 decompression, bilateral L4-5 laminectomies, bilateral L4-5 and
L5-S1 medial facetectomies and foraminotomies, resection of ligamentum, and microdissection.
On October 29, 2014 Dr. Babbitz performed the L4-S1 decompression and noted a discharge
diagnosis of lumbar stenosis L4-S1 with neurogenic claudication, lumbar radiculopathy, chronic
low back pain, and spondylosis.
In a December 1, 2016 diagnostic report, Dr. Alka Thakran, a Board-certified diagnostic
radiologist, reported that a lumbar spine MRI scan revealed L2-3 increased narrowing of the left
neuroforamen and left lateral recess with moderate central canal narrowing, L3-4 severe narrowing
of the central canal which had progressed since his prior study, and severe narrowing of the left
neuroforamen, L4-5 widening of the central canal secondary to posterior decompression,
moderate-to-severe narrowing of multiple neuroforamen, and interval progression of degenerative
changes.
By decision dated February 17 2017, OWCP denied appellant’s claim finding that the
medical evidence of record was insufficient to establish that his diagnosed disc bulges and
protrusions of the lumbar spine were causally related to the accepted factors of federal
employment.
On March 2, 2017 appellant requested an oral hearing before an OWCP hearing
representative. In support of his claim, he provided a narrative statement describing his injury and
course of medical treatment. Appellant noted that despite his surgery, he suffered from continued
pain and asserted that the only factor which could have caused his injury was his employmentrelated work duties.
In an April 17, 2017 neurosurgical consultation report, Dr. Babbitz noted that appellant
had severe degeneration and facet arthropathy associated with moderate degenerative lumbar
scoliosis with neurogenic claudication, and that his chronic low back pain was multifactorial and
not likely to improve with surgery. He reported that the surprisingly advanced degree of severity
of degeneration in the appellant’s lumbar spine at his young age suggested that there had been a
great deal of vocational contribution to his condition from his repetitive twisting and lifting
motions over the years.
A hearing was held on August 14, 2017 during which appellant testified regarding his
employment duties and course of medical treatment, further denying any prior injuries to his back.
Appellant reported that issues with his back began while working for the employing establishment,
having started his career as a rural carrier on May 9, 1998. He first noticed symptoms involving
his lumbar spine after 2004, but did not pay much attention until 2006 when the pain continued to
worsen. Appellant indicated that he first received treatment with Dr. McLean in 2006 who
identified a degenerative spine based on MRI scan. He underwent spinal decompression with

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Dr. Babbitz on October 29, 2014 and returned to work despite the physician’s recommendation to
remain off duty. Appellant reported that he stopped work on November 12, 2016 when the pain
became unbearable, forcing him into retirement. Following his retirement, he had a lumbar spine
MRI scan and computerized tomography (CT) scan performed which revealed scoliosis,
degenerative spine, and two fused discs, and was informed that another operation would not rectify
his lumbar issue. Appellant discussed how the rural carrier position was physically demanding
and he could not think of anything else that could have caused this problem. He was advised of
the evidence needed in support of his claim and the record was held open for 30 days. No
additional evidence was received.
By decision dated October 13, 2017, OWCP’s hearing representative affirmed the
February 17, 2017 decision finding that the evidence of record was insufficient to establish that
his diagnosed lumbar disc bulges and herniations were causally related to the accepted factors of
his federal employment.
On December 14, 2017 appellant requested reconsideration of OWCP’s October 13, 2017
decision. In his narrative statement, appellant repeated his prior assertions discussing the course
of his medical treatment and argued that his injury was employment related.
In support of his claim, appellant submitted a November 22, 2017 medical report from
Dr. Babbitz, who reported that appellant had severe disc degeneration and facet arthropathy
associated with moderate degenerative lumbar scoliosis. Dr. Babbitz reiterated that appellant
would likely not improve with surgery. He opined that the surprisingly advanced degree of
severity of degeneration in appellant’s lumbar spine at his young age suggested that there had been
a great deal of vocational contribution to his condition from his repetitive twisting and lifting
motions over the years.
In a November 22, 2017 attending physician’s report (Form CA-20), Dr. Babbitz
diagnosed degenerative lumbar stenosis, lumbar disc desiccation, and lumbar radiculopathy. He
reported the history of injury as seven years of progressive low back pain radiating to the lower
extremities. When asked whether he believed the condition was caused or aggravated by an
employment activity, Dr. Babbitz checked the box marked “yes,” noting that twisting, lifting,
carrying, and driving all exacerbated appellant’s lumbar degenerative disc disease.
By decision dated February 2, 2018, OWCP denied appellant’s request for reconsideration,
finding that he neither raised substantive legal questions nor submitted relevant and pertinent new
evidence.
LEGAL PRECEDENT -- ISSUE 1
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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

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employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
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 which is alleged to have occurred.5 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.7 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.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a lumbar injury
causally related to the accepted factors of his federal employment.9

3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

8

K.V., Docket No. 18-0723 (issued November 9, 2018); James Mack, 43 ECAB 321 (1991).

9

S.Y., Docket No. 11-1816 (issued March 16, 2012).

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In support of his claim, appellant submitted medical reports dated October 3, 2014 through
April 17, 2017 from Dr. Babbitz documenting treatment for his lumbar injury and L4-S1
decompression. The Board finds that the opinion of Dr. Babbitz is not well rationalized. While
Dr. Babbitz provided a firm medical diagnosis of lumbar disc degeneration, lumbar spondylosis,
and lumbosacral radiculopathy, he failed to provide a fully-rationalized opinion on the cause of
appellant’s condition. In his April 17, 2017 report, Dr. Babbitz reported that the surprisingly
advanced degree of severity of degeneration in appellant’s lumbar spine at his young age suggested
that there had been a great deal of vocational contribution to his condition from his repetitive
twisting and lifting motions over the years. However, he did not address why appellant’s
complaints were not caused by his preexisting degenerative condition nor did he discuss whether
his preexisting injury had progressed beyond what might be expected from the natural progression
of that condition.10 It is unclear whether appellant’s injury was caused by his federal employment
duties, a result of a preexisting condition, or due to degenerative changes. A well-rationalized
opinion is particularly warranted when there is a history of a preexisting condition.11
Furthermore, while Dr. Babbitz had some understanding of appellant’s employment duties,
he failed to detail the number of hours per day spent performing each task and the frequency of
the physical movements which appellant attributes to his injury. His statement on causation failed
to provide a sufficient explanation as to the mechanism of injury pertaining to this occupational
disease claim as alleged by appellant, namely, how repetitive turning, swiveling, bending, and
lifting of packages would cause or aggravate his lumbar injury.12 Without explaining how
physiologically the movements involved in appellant’s employment duties caused or contributed
to his diagnosed conditions, Dr. Babbitz’s opinion on causal relationship is equivocal in nature
and of limited probative value.13
The remaining medical evidence of record is also insufficient to establish appellant’s
occupational disease claim. The medical reports submitted identify treatment to the lumbar spine
dating back to 2006. The reports of Dr. McLean and Dr. Rickertsen document treatment for these
lumbar conditions, but fail to provide an opinion on the cause of appellant’s injuries. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value.14
The diagnostic reports of record dated March 6, 2006 to December 1, 2016 are also
insufficient to establish appellant’s claim as the physicians only interpreted imaging studies and
provided no opinion on the cause of appellant’s injury.15 The Board has held that reports of

10

R.E., Docket No. 14-0868 (issued September 24, 2014).

11

T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

12

S.W., Docket 08-2538 (issued May 21, 2009).

13

See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).
14

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

15

D.H., Docket No. 11-1739 (issued April 18, 2012).

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diagnostic tests lack probative value as they do not provide an opinion on causal relationship
between appellant’s employment duties and the diagnosed conditions.16
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relationship.17 An award of compensation may
not be based on surmise, conjecture, speculation, or on the employee’s own belief of causal
relation.18 Appellant’s honest belief that his occupational employment duties caused his injury,
however sincerely held, does not constitute medical evidence necessary to establish causal
relationship.19 Herein, the record lacks rationalized medical evidence establishing causal
relationship between appellant’s federal employment duties as a rural carrier and his diagnosed
lumbar conditions. Thus, appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.20 OWCP
has discretionary authority in this regard and has imposed certain limitations in exercising its
authority.21 One such limitation is that the request for reconsideration must be received by OWCP
within one year of the date of the decision for which review is sought.22 If the request is timely,
but fails to meet certain requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.23
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.24 Section 10.608(b) of OWCP regulations provides
16

See L.M., Docket No. 18-0473 (issued October 22, 2018).

17

Daniel O. Vasquez, 57 ECAB 559 (2006).

18

D.D., 57 ECAB 734 (2006).

19

D.A., Docket No. 18-0783 (issued November 8, 2018); H.H., Docket No. 16-0897 (issued September 21, 2016).

20

5 U.S.C. § 8128(a).

21

20 C.F.R. § 10.607.

22

Id. at § 10.607(a).

23

Id. § 10.608(b); see also E.R., Docket No. 09-1655 (issued March 18, 2010).

24

Id. at § 10.606(b)(3); see also D.K., 59 ECAB 141 (2007).

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that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.25
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
The issue presented on appeal was whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In his application for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, and he did not advance a new and relevant legal argument not
previously considered. Appellant argued that he sustained a work-related lumbar injury and
described his course of treatment.26 The Board finds that the arguments made by appellant on
reconsideration are cumulative, duplicative, or repetitive in nature and are insufficient to warrant
reopening a claim for merit review.27 Consequently, he is not entitled to review of the merits of
his claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The underlying issue in this case was whether appellant sustained a lumbar injury causally
related to the accepted factors of his federal employment. That is a medical issue which must be
addressed by relevant and pertinent new medical evidence.28 The only medical evidence received
with his reconsideration request was Dr. Babbitz’s November 22, 2017 report and Form CA-20.
While the November 22, 2017 report was new, the report was essentially duplicative of his
previously submitted April 17, 2017 report in the case record. Dr. Babbitz’s opinion on causation
was substantially similar to the previously submitted medical evidence which was addressed in the
Board’s October 13, 2017 merit decision for failing to establish his occupational injury. The
November 22, 2017 Form CA-20 is also cumulative and repeats the physician’s prior assertion
that appellant sustained a work-related injury without any explanation pertaining to the mechanism
of injury. Material which is duplicative of that already contained in the case record does not
constitute a basis for reopening a case.29
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.

25

K.H., 59 ECAB 495 (2008).

26

Sherry A. Hunt, 49 ECAB 467 (1998).

27

See T.B., Docket No. 16-1130 (issued September 11, 2017).

28

See Bobbie F. Cowart, 55 ECAB 746 (2004).

29

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lumbar injury
causally related to the accepted factors of his federal employment. The Board also finds that
OWCP properly denied appellant’s request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2018 and October 13, 2017 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 4, 2018
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
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Perry, OH, Employer
__________________________________________

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

Docket Nos. 10-1451,
10-1452, 10-1453
Issued: February 11, 2011

Case Submitted on the Record

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

JURISDICTION
On April 26, 2010 appellant filed a timely appeal of October 28, 2009 and April 13, 2010
decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her bilateral wrist
condition was causally related to factors of her employment.
FACTUAL HISTORY
On August 10, 2009 appellant, then a 60-year-old rural letter carrier, filed an
occupational disease claim alleging that she suffered from bilateral carpal tunnel due to moving
and bending her wrists while casing and delivering mail at work.1 She reported that she first
1

Appellant filed the same occupational disease claim three times. These claims were consolidated by the Branch
of Hearings and Review.

became aware of her carpal tunnel in August 2007 and realized that it resulted from her work
duties in January 2008. Appellant retired on September 16, 2008. She also submitted a Form
SF50, Notification of Personnel Action, and a letter from her attorney.
In a September 8, 2009 letter, the employing establishment controverted appellant’s
claim on the grounds of insufficient medical evidence establishing a medical diagnosis or causal
relationship between factors of her employment and the claimed condition.
In a September 23, 2009 letter, the Office advised appellant that the evidence submitted
was insufficient to establish her claim and requested additional information from her. It
specifically asked her to describe in detail the employment-related activities, which she believed
contributed to her condition, including how often and for how long she performed these duties on
each occasion and describe all activities outside of her federal employment, the development of
the claimed condition and all previous injuries to her hand, arm and wrist. The Office also
requested a comprehensive medical report from appellant’s treating physician, which should
include a description of her symptoms, results of her examination and tests, diagnosis, treatment
provided and a physician’s opinion, with medical reasons, regarding the cause of her condition.
On October 26, 2009 the Office received an electromyogram (EMG) report for a study
performed on December 28, 2007. This report noted that there was no evidence of sensory
cervical radiculopathy but the findings were consistent with bilateral carpal tunnel syndrome.2
By decision dated October 28, 2009, the Office denied appellant’s claim on the grounds
of insufficient evidence establishing that she sustained an injury in the performance of duty. It
stated that she failed to submit evidence describing specific work duties, providing specific time
periods of her work duty or quantifying the amount of time and frequency spent performing
these duties. In addition, the Office pointed out that the record did not contain any medical
evidence providing a history of injury, diagnosis, description of work-related factors or
physician’s opinion regarding whether appellant’s carpal tunnel resulted from her employment
factors.
In a letter dated November 17, 2009, appellant, through her representative, appealed the
October 28, 2009 decision before the Branch of Hearings and Review and requested a telephone
hearing. She also submitted as evidence copies of e-mail correspondence between herself and
her representative dated July 29 and October 19, 2009 describing her employment duties and
how often and for how long she performed these duties. Appellant further noted her surgeries in
April and May 2008. Her prior injuries included a 1996 sprain at work and a December 2006
right hand and arm injury resulting from a fall at work.
On February 18, 2010 a telephone hearing was held. Appellant first provided factual
background regarding her employment duties. She stated that she worked for the employing
establishment from May 1981 until she retired in September 2008. Appellant’s duties included
retying tubs of flats, casing them, which involved folding some to fit into the mail case,
retrieving the letter mail and organizing them in sequential order. She stated that she was five
feet, three inches tall and the cases she worked with were approximately six feet tall with around
2

The Office initially associated this study with File No. xxxxxx182.

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544 call boxes. Appellant’s movements while casing mail involved reaching, bending, stooping,
picking up mail and putting them into the boxes. After casing the mail, she placed the mail into
trays and loaded the trays into her car for delivery. While delivering mail, appellant described
the movement as constant pushing and pulling to open and close the mailboxes. She further
noted that she worked an average of five or six hours a day, which meant she performed these
duties roughly 3,950 times a day.
Regarding a history of her medical condition, appellant stated that her hands and wrists
gradually began to ache until it worsened to the point where she was waking up about 12 times a
night. She reported that the first physician she visited was Dr. Michael Kellis, an orthopedist,
who ordered an EMG. Appellant stated that the EMG revealed she had carpal tunnel. She
further reported that she had surgery on her wrist by Dr. Harmat and on her shoulder by
Dr. Sarkisen in April and May 2008. Appellant also stated that the surgery helped to alleviate
much of the pain. In addition, she noted that she wore braces to keep her arms straight and took
medication for her bipolar condition. Appellant’s last treatment for her wrist condition was right
before she retired. The hearing representative requested copies of all the treatment notes and a
medical report from her physician, but none of these reports appear in the record.
In addition, appellant stated that she first became aware of her wrist condition in
August 2007. She continued to work full time and noted that she did not request time off
because she was intimidated by her boss. Appellant stated that one reason she waited for over a
year to file a claim was because she was afraid of her boss’ response.
In a decision dated April 13, 2010, a hearing representative affirmed the October 28,
2009 Office decision denying appellant’s claim. The hearing representative accepted that she
provided sufficient evidence that her work duties as a rural letter carrier required constant
bending, stopping, grasping, reaching and repetitive movement of her wrists and hands. The
hearing representative, however, determined that appellant did not provide sufficient medical
evidence establishing a diagnosed medical condition that was causally related to the specified
work factors. The hearing representative pointed out that she did not submit a physician’s report
with his opinion, based on an accurate factual and medical background and stated medical
reasons, regarding whether her employment factors caused or aggravated appellant’s diagnosed
condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of proof to establish the essential elements of her claim by the weight of the reliable,
probative and substantial evidence.4 In a claim for occupational disease, that burden of proof
includes: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is

3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

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claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
specified employment factors or incident.7 The opinion of the physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
employee.8 The mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of an employment relation. Such a relationship must be
shown by rationalized medical evidence of a causal relation based upon a specific and accurate
history of employment conditions which are alleged to have caused or exacerbated a disabling
condition.9
ANALYSIS
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an injury in the performance of duty. The Office accepted her alleged factors of
employment including grasping, reaching and repetitive movement of her wrists and hands
associated with her job as a letter carrier. The Board affirms the denial of the claim on the
grounds that appellant failed to submit sufficient medical evidence establishing that her bilateral
wrist condition was causally related to these particular employment activities.
The Office advised appellant to submit a comprehensive medical report containing a
diagnosis and a physician’s opinion, with stated medical reasons, regarding whether her
diagnosed condition was causally related to the particular employment activities. The only
medical evidence of record is the December 28, 2007 EMG report which was reported as
consistent with findings of bilateral carpal tunnel syndrome. While this report contained a
diagnosis of appellant’s condition, it did not provide any medical opinion regarding the cause of
the diagnosed condition.10

5

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

I.R., 61 ECAB __ (Docket No. 09-1229, issued February 24, 2010); W.D., 61 ECAB __ (Docket No. 09-658,
issued October 22, 2009); D.I., 59 ECAB 158 (November 6, 2007).
7

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

8

D.S., 61 ECAB __ (Docket No. 09-860, issued November 2, 2009); B.B., 59 ECAB 234 (2007).

9

Patricia Bolleter, 40 ECAB 373 (1988).

10

Although appellant reported visiting a number of physicians and surgeries, these reports do not appear in the
record.

4

Appellant failed to submit the necessary medical evidence which explained, with medical
rationale, how her accepted factors caused her diagnosed condition.11
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
bilateral carpal tunnel syndrome was sustained in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2010 and October 28, 2009 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 11, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB
365 (1994).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Turner Falls, MA, Employer
__________________________________________

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Appearances:
Linda Temple, for the appellant
Office of Solicitor, for the Director

Docket No. 08-1239
Issued: February 13, 2009

Case Submitted on the Record

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

JURISDICTION
On March 21, 2008 appellant filed a timely appeal from the May 9 and December 21,
2007 merit decisions of the Office of Workers’ Compensation Programs denying her traumatic
injury claim. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant sustained a left knee injury while in the performance of
duty on August 8, 2005.
FACTUAL HISTORY
On November 7, 2005 appellant, then a 53-year-old letter carrier, filed a traumatic injury
claim alleging that she sustained an injury to her left knee in the performance of duty on
August 8, 2005. She stated that she tore her left medial meniscus while climbing stairs to deliver
mail.

Appellant submitted a note dated August 10, 2005 from Dr. Richard McGinn, a Boardcertified obstetrician, reflecting her complaints of continuing knee and foot pain. Dr. McGinn
indicated that appellant could perform office duties, but was restricted from walking a mail route.
The record contains a November 3, 2005 letter from the Office regarding File No.
xxxxxx490, which was accepted for a left foot condition. It informed appellant that her request
for approval of a magnetic resonance imaging (MRI) scan of the left knee was not causally
related to her accepted foot condition.
A November 9, 2005 memorandum from Patricia Stoddard, a registered nurse, reflects
that appellant sustained a stress-related fracture to her left foot on November 14, 2004. She
stated that appellant had preexisting arthrosis of the medial compartment of the left knee.
Appellant submitted a September 15, 2005 report from Dr. George W. Ouster, Jr., a
treating physician, who noted complaints of moderate left knee pain, which increased with
ambulation. Dr. Ouster related appellant’s reported history of a work-related knee injury in the
1990’s, which required arthroscopic surgery and her placement on light duty following a
July 2004 left foot injury. He stated that appellant began experiencing increasing pain in the
medial aspect of her left knee in August 2005. An MRI scan of the left knee showed
degenerative changes to the medial compartment, with thinning of cartilage tissue. Examination
of the left knee revealed full extension and flexion to 130 degrees without pain. Examination of
the ligaments was considered to be normal, with no associated effusion. On flexion and rotation
of the tibia, appellant reported slight pain along the medial joint line. Dr. Ouster diagnosed mild,
preexisting degenerative arthrosis of the left knee, not associated with a tear of the medial
meniscus reported by MRI scan. He opined that appellant’s left knee condition, which
developed while she was on light-duty status, was not causally related to her work injury.
Appellant submitted reports from Dr. Thomas S. Echeverria, a Board-certified orthopedic
surgeon. On January 19, 2006 Dr. Echeverria diagnosed a torn posterior horn of the left medial
meniscus. He noted that appellant had been performing basically inside duties, such as standing
and casing and that by the end of the day, her left knee was swollen. Appellant also continued to
have occasional catching and clicking. On February 22, 2006 Dr. Echeverria indicated that, for
several months, appellant had been experiencing pain and swelling in her left knee, which had
periodically been giving way. He stated that the injury occurred in August 2005 while appellant
was going up stairs.
By letter dated April 7, 2006, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It requested details surrounding the alleged incident, as
well as a medical report from an attending physician which included dates of examination and
treatment, a history of injury, a detailed description of findings, x-ray and laboratory test results,
a diagnosis and an opinion supported by medical explanation as to how the reported work
incident caused or aggravated the claimed injury. The Office advised appellant that the medical
explanation was crucial to her claim.
In a report dated August 26, 2005, Dr. Echeverria provided an assessment of “pain and
effusion of the left knee of uncertain etiology.” He stated that appellant remembered no specific
injury, but that she had been experiencing some discomfort in her left knee “for the last several

2

months.” On April 20, 2006 Dr. Echeverria reported that, in August 2005, appellant was going
up stairs at work, when she felt discomfort in the medial aspect of her left knee. He diagnosed a
torn left medial meniscus. On February 8, 2007 Dr. Echeverria noted continued pain and
swelling. On March 13, 2007 he opined that appellant’s continued ambulation on a torn
meniscus was likely causing further interarticular deterioration.
In an undated statement, appellant alleged that the following events occurred on
August 8, 2008 while she was carrying mail on 3rd Street in Turner’s Fall, MA: As she was
“climbing the stairs to the porch where the mailbox is located,” she experienced noticeable pain
in her left knee, followed by swelling. There were no witnesses to the incident, as she did not
fall. By the time appellant returned to the employing establishment, her knee was noticeably
swollen and quite painful. After reporting the incident to her supervisor, she went home, where
she elevated and iced her leg. Appellant stated that she had never had any previous problems
with her left leg.
By decision dated May 9, 2007, the Office found that the evidence was insufficient to
establish that appellant sustained an injury in the performance of duty. The factual evidence of
record failed to establish that the August 8, 2005 incident occurred at the time, place and in the
manner alleged.
On June 8, 2007 appellant requested an oral hearing. She stated that she failed to file a
traumatic injury claim immediately following the August 8, 2005 incident because she originally
attributed the onset of her pain to her preexisting arthritis, rather than to a traumatic injury.
Appellant did not become aware of the connection between her left knee condition and the
incident until Dr. Echeverria informed her that a person can tear a meniscus by walking up stairs.
The record contains a September 6, 2005 report of a September 4, 2005 MRI scan of the
left knee, signed by Dr. Robert Y. Yoon, a Board-certified radiologist. The report reflects
degenerative changes in the left knee, with no evidence of significant internal derangement of the
left knee. Dr. Yoon stated, “There is no evidence of a meniscal tear.” In a September 12, 2005
addendum to the September 6, 2005 MRI scan report, he stated that, on review, he observed
certain signal aberrations, which were suspicious for a tear of the posterior horn of the left
medial meniscus. Dr. Yoon indicated that clinical correlation was required.
At the October 18, 2007 hearing, appellant testified that, as she was walking up stairs to
deliver mail on August 8, 2005, she felt a sudden, sharp pain in her knee. She knew something
was wrong, but she had no idea what it was.
In a report dated June 5, 2007, Dr. Echeverria stated that his note of August 26, 2005,
which reflected that appellant remembered no specific injury, was incorrect. He indicated that
appellant had “subsequently informed [him] that her left knee pain and swelling began after she
twisted her knee walking up stairs while at work.”
In a report dated November 19, 2007, Dr. Echeverria stated that his August 26, 2005
notes, which were dictated immediately after his visit with appellant, represented his best
recollection of his discussion with appellant on that date. He indicated, however, that it was
“certainly possible and most likely probable” that appellant had informed him that she

3

experienced a sharp, acute pain in the medial aspect of her knee while she was walking up stairs
delivering mail on August 8, 2005. Dr. Echeverria noted that, appellant subsequently informed
him of that injury, which would be consistent with the findings on examination and subsequent
MRI scan. He opined that “just walking up stairs” was sufficient to cause appellant’s meniscal
tear, as walking up stairs may result in tensional stresses on the knee that are sufficient to cause a
tear in the medial meniscus. Dr. Echeverria indicated that the acuteness of the onset of
appellant’s pain led him to believe that her symptoms in August 2005 were the result of the
meniscal tear seen on the MRI scan, rather than underlying degenerative arthritis.
By decision dated December 21, 2007, the hearing representative accepted that the
employment incident occurred on August 8, 2005 as alleged. Namely, he found that appellant
had walked up stairs to deliver mail on the date in question. However, the hearing representative
affirmed the Office’s denial of the claim on the grounds that the medical evidence failed to
establish that appellant sustained an injury causally related to the accepted event.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty. The phrase “sustained while in the performance of duty” is regarded as the
equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment.2
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of her claim, including the fact that the individual is an employee of the
United States within the meaning of the Act, that the claim was timely filed within the applicable
time limitation period of the Act, that an injury was sustained in the performance of duty, as
alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.3 When an employee claims that she sustained a
traumatic injury in the performance of duty, she must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury and generally this can be established only by medical evidence.4

1

5 U.S.C. § 8102(a).

2

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
3

Robert Broome, 55 ECAB 339 (2004).

4

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term injury as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q)(ee).

4

The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship.6 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.7 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion 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 established incident or factor of employment.9 The Board has long held that medical
evidence which does not offer any opinion regarding the cause of an employees’ condition is of
diminished probative value.10 Medical conclusions unsupported by rationale are also of little
probative value.11
ANALYSIS
The Office accepted that appellant was a federal employee, that she timely filed her claim
for compensation benefits and that the August 8, 2005 workplace incident occurred as alleged.
The issue, therefore, is whether appellant has submitted sufficient medical evidence to establish
that the employment incident caused an injury. The medical evidence presented does not contain
a rationalized medical opinion establishing that the work-related incident caused or aggravated
any particular medical condition or disability. Therefore, appellant has failed to satisfy her
burden of proof.
Contemporaneous medical evidence does not support a causal relationship between the
accepted incident and appellant’s left knee condition. When she saw Dr. Echeverria on
August 26, 2005 she made no mention of sustaining an injury to her left knee walking up stairs
on August 8, 2005. Rather, appellant reported that she had been experiencing ongoing problems,
5

Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

7

Id.

8

20 C.F.R. § 10.303(a).

9

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

10

Michael E. Smith, 50 ECAB 313 (1999).

11

Willa M. Frazier, 55 ECAB 379 (2004).

5

including pain, swelling and occasional giving out, for several months. In fact, Dr. Echeverria
expressly stated that appellant remembered no specific injury. He did not provide any opinion
on the cause of appellant’s left knee condition. Therefore, Dr. Echeverria’s report is of
diminished probative value.12 On January 19, 2006 he diagnosed a torn posterior horn of the left
medial meniscus. However, Dr. Echeverria failed to explain how the diagnosed condition was
causally related to the accepted work incident. Therefore, his report is also of diminished
probative value.
On February 22, 2006 Dr. Echeverria again indicated that, for several months, appellant
had been experiencing pain and swelling in her left knee, which had periodically been giving
way. He stated that the injury occurred in August 2005 while appellant was going up stairs.
However, Dr. Echeverria did not provide a detailed history of the alleged injury or explain how
appellant’s climbing activity caused or contributed to her left knee condition. As it is
unsupported by rationale, his opinion is of little probative value.13
In Dr. McGinn’s August 10, 2005 note, he did not identify a specific recent injury.
Rather, his comment that appellant was experiencing “continual knee and foot pain,” implies that
her pain was chronic. As the report did not contain a diagnosis or an opinion as to the cause of
appellant’s condition, it is of diminished probative value.
Dr. Ouster’s September 15, 2005 report undermines appellant’s claim that her left knee
condition was caused by the accepted incident. After noting a preexisting knee condition, he
stated that appellant began experiencing increasing pain in the medial aspect of her left knee in
August 2005. Dr. Ouster diagnosed mild, preexisting degenerative arthrosis of the left knee, not
associated with a tear of the medial meniscus reported by MRI scan and opined that appellant’s
left knee condition, which developed while she was on light-duty status, was not causally related
to her work injury.
The remaining medical evidence of record is insufficient to establish appellant’s claim.
On June 5, 2007 Dr. Echeverria indicated that appellant had “subsequently informed [him] that
her left knee pain and swelling began after she twisted her knee walking up stairs while at work.”
This report is inconsistent with his August 26, 2005 report, which reflected that appellant
remembered no specific injury. Moreover, it is inconsistent with appellant’s own version of the
facts. On November 19, 2007 Dr. Echeverria stated that his August 26, 2005 notes, which were
dictated immediately after his visit with appellant, represented his best recollection of his
discussion with her on that date. He speculated, however, that it was “certainly possible and
most likely probable” that appellant had informed him that she experienced a sharp, acute pain in
the medial aspect of her knee while she was walking up stairs delivering mail on August 8, 2005.
Such inconsistencies in the medical history diminish the probative value of Dr. Echeverria’s
reports.
Dr. Echeverria opined that “just walking up stairs” was sufficient to cause appellant’s
meniscal tear and stated that the acuteness of the onset of appellant’s pain led him to believe that
12

Michael E. Smith, supra note 10.

13

Willa M. Frazier, supra note 11.

6

her symptoms of August 2005 were the result of the meniscal tear seen on the MRI scan, rather
than underlying degenerative arthritis. However, he did not explain the physiological process
whereby appellant would have sustained a meniscal tear by the simple act of “just walking up
stairs.” Equivocal in nature and unsupported by rationale, Dr. Echeverria’s opinion is of limited
probative value. Insofar as the remaining medical evidence of record, including nursing notes
and reports of MRI scans, does not contain an opinion as to the cause of a diagnosed condition, it
is of limited probative value and is insufficient to establish appellant’s claim.
Appellant expressed her belief that her left knee condition resulted from the August 8,
2005 employment incident. The Board has held that the mere fact that a condition manifests
itself during a period of employment does not raise an inference that there is a causal relationship
between the two.14 Neither the fact that the condition became apparent during a period of
employment nor the belief that the condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.15 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Therefore, her belief that her condition was caused by the work-related incident is not
determinative.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of her condition. Appellant failed to submit
appropriate medical documentation in response to the Office’s request. As there is no probative
rationalized medical evidence addressing how appellant’s claimed knee condition was caused or
aggravated by her employment, she has not met her burden of proof in establishing that she
sustained an injury in the performance of duty causally related to factors of her federal
employment.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained a left knee injury while in the performance of duty on August 8, 2005.

14

See Joe T. Williams, 44 ECAB 518, 521 (1993).

15

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the December 21 and May 9, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 13, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


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

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Appearances:
Brett Elliot Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1251
Issued: March 8, 2022

Case Submitted on the Record

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

JURISDICTION
On August 18, 2021 appellant, through counsel, filed a timely appeal from a March 4, 2021
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.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective January 13, 2020 as she had no further disability or
residuals causally related to her accepted employment injury; and (2) whether appellant has met
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.

her burden of proof to establish continuing disability or residuals on or after January 13, 2020 due
to her accepted employment injury.
FACTUAL HISTORY
On September 25, 1995 appellant, then a 27-year-old part-time flexible letter carrier, filed
an occupational disease claim (Form CA-2) alleging that she sustained bilateral heel pain causally
related to factors of her federal employment, including casing mail and walking. OWCP accepted
the claim for bilateral plantar fibromatosis and a right calcaneal spur. It paid appellant wageintermittent wage-loss compensation for periods of total and partial disability.
By decision dated August 15, 2012, OWCP reduced appellant’s wage-loss compensation,
effective that date, based on its finding that she had the capacity to earn wages in the selected
position of receptionist.
In a report dated March 26, 2014, Dr. Joseph M. Page, an orthopedic surgeon, advised that
he was treating appellant for bilateral plantar fasciitis and planovalgus feet. On examination he
found ligamentous laxity and pain over the plantar fascia. Dr. Page recommended new shoes and
noted that appellant had a collapsed arch. He instructed her to return as needed.
On April 19, 2019 OWCP referred appellant to Dr. Richard A. Rogachefsky, a Boardcertified orthopedic surgeon, for a second opinion examination. In the accompanying statement
of accepted facts (SOAF), it advised that appellant had an episode of bilateral plantar fasciitis
walking on her route and that it had accepted her claim for plantar fibromatosis and calcaneal spur.
In a report dated May 2, 2019, Dr. Rogachefsky discussed appellant’s history of injury and
provided his review of the evidence of record. On examination he found intact sensation and full
strength of the right foot and ankle, mild tenderness of the right heel, negative varus and valgus
stress tests, and a negative anterior drawer test of the right ankle. Dr. Rogachefsky further found
intact sensation and full strength with mild tenderness to palpation of the left foot and plantar heel,
but no swelling, erythema, or ecchymosis. He found a mild pes planus deformity of the bilateral
feet. Dr. Rogachefsky diagnosed bilateral plantar fibromatosis and calcaneal spurs. He indicated
that appellant had objective findings of a “well-healed scar in the right heel and very mild pes
planus deformity on the right and left feet. Subjective findings are mild pain and tenderness in the
right and left plantar heel regions.” Dr. Rogachefsky opined that the accepted employment-related
condition had resolved, noting that appellant had “minimal tenderness to palpation, minimal
discomfort, and minimal subjective complaints and objective findings.” He found that she required
no further medical treatment and could return to her usual employment as a letter carrier without
restrictions.
On December 9, 2019 OWCP notified appellant of its proposed termination of her
compensation as the weight of the evidence established that she no longer had any employmentrelated disability or residuals due to her accepted employment injury. It afforded her 30 days to
submit additional evidence or argument if she disagreed with the proposed termination.
By decision dated January 13, 2020, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that date. It found that Dr. Rogachefsky’s opinion

2

represented the weight of the evidence and established that she had no further disability or residuals
of her accepted employment injury.
In a report dated October 28, 2020, Dr. John B. Dorsey, a Board-certified orthopedic
surgeon, reviewed appellant’s history of injury and noted that she had last worked for the
employing establishment in 2010. He discussed her complaints of bilateral foot pain with
numbness and tingling radiating into the right lower leg and left ankle. On examination Dr. Dorsey
found bilateral pes planus deformity or flat feet, worse on the right. He found tenderness to
palpation bilaterally from the bottom of the foot to the heels and noted that appellant had gait
difficulty because of pain. Dr. Dorsey further found hypersensitivity to pinprick and touch on the
right heel. He noted that x-rays from 2010 revealed bilateral heel spurs and a hallux valgus
deformity. Dr. Dorsey diagnosed bilateral plantar fibromatosis and a right calcaneal spur. He
requested that OWCP expand the acceptance of the claim to include neuropathy of the medial
calcaneus nerve and anxiety and depression as a consequential injury. Dr. Dorsey indicated that
appellant received medication from a psychiatrist, but had not received treatment for her physical
symptoms in four years. He opined that her employment-related conditions had not resolved.
Dr. Dorsey related:
“Over and above that, [appellant] continues to have anxiety and depression related
to the pain in her medial heel, which is a hypersensitivity/neuropathy, which
continues to the present time. There is evidence of hypersensitivity from the
posteromedial heel to the medial malleolus to pinprick and touch as well as pes
planus of both feet, right worse than left. [Appellant] continues to have an unusual
gait (a steppage/neuropathic gait without true foot drop) in which she tries to avoid
striking her heels, and she has a great deal of difficulty trying to squat due to pain
in her heels and in her posterior plantar feet.”
Dr. Dorsey recommended continued treatment. He found that appellant was disabled from
her usual employment, but could work as a clerk.
On December 9, 2020 appellant requested reconsideration.
By decision dated March 4, 2021, OWCP denied modification of its January 13, 2020
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

3

R.H., Docket No. 19-1064 (issued October 9, 2020); M.M., Docket No. 17-1264 (issued December 3, 2018).

3

the employment. 4 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. 6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment. 7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective January 13, 2020, as she no longer had disability or residuals causally
related to her accepted employment injury.
The Board finds that OWCP properly accorded the weight of the evidence to
Dr. Rogachefsky, who provided a second opinion examination on May 2, 2019. Dr. Rogachefsky
discussed appellant’s history of injury and provided examination findings showing no loss of
sensation or strength and findings of mild tenderness to palpation in the feet and a bilateral mild
pes planus deformity. He diagnosed bilateral plantar fibromatosis and calcaneal spur.
Dr. Rogachefsky asserted that appellant had no residuals of the accepted employment injury based
on the minimal examination findings. He opined that she could resume he r regular employment
duties without restrictions and required no further medical treatment.
Dr. Rogachefsky based his opinion on a proper factual and medical history and findings on
physical examination. He provided medical rationale for his opinion by explaining that the
minimal findings on examination failed to support continued residuals or disability due to the
accepted employment conditions.8 Moreover, there is no contemporaneous medical evidence
demonstrating continued disability or residuals. The Board, therefore, finds that OWCP properly
relied upon the reports of Dr. Rogachefsky in terminating appellant’s wage-loss compensation and
medical benefits.9
LEGAL PRECEDENT -- ISSUE 2
When OWCP properly terminates compensation benefits, the burden shifts to appellant to
establish continuing residuals or disability after that date, causally related to the accepted
employment injury. 10 To establish causal relationship between the condition as well as any
4

A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).

5

C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018).

6

E.J., Docket No. 20-0013 (issued November 19, 2020); L.W., Docket No. 18-1372 (issued February 27, 2019).

7

A.J., Docket No. 18-1230 (issued June 8, 2020); R.P., Docket No. 18-0900 (issued February 5, 2019).

8

See E.J., supra note 6.

9

See L.S., Docket No. 20-1204 (issued October 4, 2021); L.B., Docket No. 19-1380 (issued February 11, 2020).

10

See S.M., Docket No. 18-0673 (issued January 25, 2019); Manuel Gill, 52 ECAB 282 (2001).

4

attendant disability claimed and the employment injury, an employee must submit rationalized
medical evidence based on a complete medical and factual background, supporting such causal
relationship.11
Section 8123(a) provides that, 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. 12 This is called a referee examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case. 13
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision.
Subsequent to the termination of appellant’s compensation, appellant submitted a report
dated October 28, 2020 from Dr. Dorsey. Dr. Dorsey reviewed the history of injury and her
complaints of bilateral foot pain and numbness. He found a ples planus deformity bilaterally and
hypersensitivity to pinprick on the right heel. Dr. Dorsey diagnosed bilateral plantar fibromatosis
and a right calcaneal spur. He further diagnosed as related to the accepted employment injury
neuropathy of the medial calcaneus nerve and anxiety and depression as a consequential injury.
Dr. Dorsey found that appellant had objective findings of a neuropathic gait and hypersensitivity
in the medial heel. He opined that she was disabled from her usual employment, but could work
as a clerk. Dr. Dorsey advised that appellant required further medical treatment.
Dr. Rogachefsky, the second opinion examiner, found that appellant had no residuals of
her left shoulder condition. Both Dr. Dorsey and Dr. Rogachefsky provided rationale for their
respective opinions based on their review of the medical evidence and findings on examination.
The Board, therefore, finds that a conflict in medical opinion exists regarding whether ap pellant
has established continuing employment-related disability or residuals on or after
January 13, 2020.14
OWCP’s regulations provide that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of a second opinion physician, OWCP shall appoint
a third physician to make an examination. 15 The Board will, thus, remand the case for OWCP to
refer appellant to an impartial medical specialist, pursuant to 5 U.S.C. § 8123(a), to determine
whether she has met her burden of proof to establish continuing employment-related disability or
residuals on or after January 13, 2020 due to her accepted employment injury. The specialist
should further address whether the acceptance of appellant’s claim should be expanded to include
any additional conditions. Additionally, on remand OWCP shall update the SOAF to clarify that
11

Id.

12

5 U.S.C. § 8123(a); L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309,
317 (1994).
13

20 C.F.R. § 10.321.

14

See B.C., Docket No. 16-0978 (issued November 21, 2016).

15

5 U.S.C. § 8123(a); G.K., Docket No. 16-1119 (issued March 16, 2018).

5

it has accepted a calcaneal spur on the right side instead of bilaterally. Following this and other
such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective January 13, 2020, as she no longer had disability or residuals causally
related to her accepted employment injury. The Board further finds that the case is not in posture
for decision on the issue of whether appellant has met her burden of proof to establish continuing
employment-related disability or residuals on or after January 13, 2020 due to her accepted
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: March 8, 2022
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Q., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Columbus, NM, Employer
__________________________________________

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

Docket No. 21-1284
Issued: March 22, 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 August 25, 2021 appellant, through counsel, filed a timely appeal from an August 10,
2021 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 his burden of proof to establish an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 28, 2019 appellant, then a 65-year-old retired assistant port director, filed an
occupational disease claim (Form CA-2) alleging that he developed non-smokers emphysema due
to factors of his federal employment. He noted that he first became aware of his condition and
first realized its relationship to his federal employment on March 27, 2019. On the reverse side of
the claim form D.C., an assistant port director for the employing establishment, noted that
appellant retired, effective August 31, 2018.
In a development letter dated July 19, 2019, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of medical and factual evidence necessary to establish his
claim and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP also requested additional information from the employing establishment. It afforded
both parties 30 days to submit the necessary information.
In a memorandum dated August 8, 2019, D.C. responded on behalf of the employing
establishment reporting that appellant’s position at the employing establishment was primarily a
supervisory and administrative position that did not require constant exposure to the elements. He
noted that the port area was surrounded by open desert with the associated dust and wind. D.C.
provided a position description for an assistant port director.
By decision dated August 28, 2019, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record failed to establish the alleged factors of his employment. It
specifically noted that he failed to respond to OWCP’s request for a detailed statement regarding
how his federal employment caused or contributed to his claimed condition. OWCP, therefore,
concluded that the requirements had not been met to establish an injury as defined by FECA.
On September 25, 2019 appellant requested reconsideration. By decision dated
October 29, 2019, OWCP denied his request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
On April 8, 2020 appellant, through counsel, requested reconsideration.
In reports dated June 7, 2019 through February 3, 2020, Dr. Juan Fernandez, a Boardcertified pulmonologist, diagnosed interstitial lung disease, post-influenza syndrome, and history
of deep vein thrombosis and pseudo aneurysm. In a July 24, 2019 report, he indicated that a
3

Docket No. 20-1477 (issued March 25, 2021).

2

computerized tomography (CT) scan of appellant’s chest4 showed panlobular emphysema.
Dr. Fernandez opined that etiology was “most likely to be related to his previous job/work
environment” since he did not have a history of smoking.
By decision dated June 30, 2020, OWCP denied modification of the August 28, 2019
decision.
Appellant timely appealed to the Board. By decision dated March 25, 2021, the Board
affirmed the June 30, 2020 decision, finding that appellant had not met his burden of proof to
establish an injury in the performance of duty, as alleged. 5
On May 14, 2021 appellant, through counsel, requested reconsideration. 6
Appellant submitted a completed OWCP’s development questionnaire dated May 5, 2021.
He indicated that he believed he developed emphysema while working as a customs inspector from
1988 to 2018. Appellant explained that his primary duty was inspecting vehicles coming inbound
from Mexico. He reported that he worked an average of 64 hours per day and inspected an average
of 2,080 vehicles per week. Appellant asserted that he was exposed to and had contact with car
exhaust fumes from vehicular traffic, air pollution, and weather elements, such as dust. He
indicated that outside of his federal employment, he had limited exposure to vehicle exhaust fumes
and dust. Appellant explained that he first noticed his condition changing in early 2015 when his
stamina and endurance declined and he developed a persistent cough. He noted that, at that time,
doctors attributed his symptoms to the cold and flu. Appellant reported that he was finally
diagnosed in 2019 when he suffered respiratory distress and had to go to the hospital.
In an August 10, 2021 decision, OWCP denied modification of the June 30, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim, including 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

4

A January 8, 2020 chest CT scan showed parenchymal distortion with mild subpleural reticulation suggestive of
an interstitial lung disease, stable 5.0 mm partly calcified nodule in the right upper lobe, moderate generalized
centrilobular emphysema in the upper lobe, and persistent small loculated right pleural effusion. A plethysmography
report of even date revealed moderate restrictive lung defect, increased airway resistance, and a decrease in diffusing
capacity.
5

Supra note 3.

6
Although appellant claimed to be filing a request for reconsideration from the Board’s March 25, 2021 decision,
OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject
matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R.
§ 501.6(d). Although the March 25, 2021 Board decision was the last merit decision, the June 30, 2021 OWCP
decision is the appropriate subject of possible modification by OWCP.
7

Id.

3

limitation of FECA, 8 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. 9 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. 10
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has alleged that he developed emphysema due to factors of his federal
employment. OWCP initially denied his claim finding that he had failed to establish that the
employment factors occurred as alleged. It specifically noted that appellant failed to respond to
OWCP’s request for a detailed statement regarding how his federal employment caused or
contributed to his claimed condition. By decision dated March 25, 2021, the Board affirmed the
denial of his claim.
Following the Board’s March 15, 2021 decision, appellant submitted his response to
OWCP’s July 19, 2019 development questionnaire. He asserted that he developed emphysema
while working as a customs inspector for the employing establishment from 1988 to 2018.
Appellant explained that, as a customs inspector, he worked an average of 64 hours per day and
inspected an average of 2,080 vehicles per week arriving inbound from Mexico. He indicated that
he was exposed to car exhaust fumes from vehicular traffic, air pollution, and weather elements.
OWCP’s procedures provide that a description of job duties will almost always be required
to adjudicate an occupational disease claim. 12 It further notes that a claimant should usually be
asked to describe the physical and environmental requirements of the job, and the supervisor or
injury compensation specialist should review that statement and provide comments if there is any
8

D.D., Docket No. 19-1715 (issued December 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
9

Y.G., Docket No. 20-0688 (issued November 13, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
10

C.H., Docket No. 19-1781 (issued November 13, 2020); 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).
11

T.M., Docket No. 20-0712 (issued November 10, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019);
R.H., 59 ECAB 382 (2008).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7b(2).
(June 2011)

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disagreement. 13 While the employing establishment responded to OWCP’s July 19, 2019
development letter, the Board notes that it provided information regarding appellant’s employment
duties as an assistant port director and provided a position description for an assistant port director.
Appellant, however, has not attributed his pulmonary condition to his employment duties as an
assistant port director, but to his employment as a customs inspector from 1988 to 2018. The
Board notes that OWCP did not request further information, including his position description as
a customs inspector from 1988 to 2018, from the employing establishment addressing appellant’s
contentions that he was exposed to vehicle fumes and/or environmental conditions. For this
reason, the Board finds that the case must be remanded for further development of the factual
evidence.14
It is well established that, proceedings under FECA are not adversarial in nature and while
the claimant has the responsibility to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment.15 OWCP has an obligation to see
that justice is done. 16
On remand OWCP should obtain a detailed statement from the employing establishment
indicating whether it concurred with appellant’s allegations and a position description for a
customs inspector. If the employing establishment fails to respond to a request for comments on
appellant’s allegations, OWCP’s claims examiner may accept the statements as factual. 17
Following this and any such further development as deemed necessary, OWCP shall issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

Id.

14

See D.C., Docket No. 21-0231 (issued August 27, 2021) (case was remanded because the employing
establishment did not provide a detailed statement indicating whether it concurred with appellant’s allegations); see
also M.T., Docket No. 18-1104 (issued October 9, 2019) (case was remanded for OWCP to obtain a statement from
the employing establishment addressing appellant’s allegations regarding harassment at work).
15

D.O., Docket No. 20-0006 (issued September 9, 2020); R.A., Docket No. 17-1030 (issued April 16, 2018);
Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).
16

S.S., Docket No. 18-0397 (issued January 15, 2019); Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
17

Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.800.5d(1) (June 2011). See also L.B., Docket
No. 17-1671 (issued November 6, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the August 10, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 22, 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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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF THE AIR FORCE,
SPECIAL OPERATIONS COMMAND,
RANDOLPH AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 13-1816
Issued: January 27, 2014

Case Submitted on the Record

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

JURISDICTION
On July 30, 2013 appellant, through his attorney, filed a timely appeal from a March 21,
2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
reconsideration request on the grounds that it was untimely filed and failed to present clear
evidence of error. Because more than 180 days elapsed since the most recent merit decision
dated May 2, 2011 and the filing of this appeal on July 30, 2013, the Board lacks jurisdiction to
review the merits of appellant’s case pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was not timely filed and did not establish clear evidence of error.
1
2

5 U.S.C. §§ 8101-8193.

The Board notes that, following the issuance of the March 21, 2013 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, counsel contends that OWCP’s decision is contrary to fact and law.
FACTUAL HISTORY
On March 25, 2009 appellant, then a 54-year-old wood worker/forklift operator, filed a
traumatic injury claim (Form CA-1) alleging that he sustained a right shoulder injury in the
performance of duty on March 24, 2009 while pushing a sheet of plywood.
By decision dated May 2, 2011, OWCP denied the claim as the evidence submitted was
not sufficient to establish a causal relationship between appellant’s condition and the March 24,
2009 employment incident.
In an appeal request form postmarked June 4, 2011, appellant requested an oral hearing
before an OWCP hearing representative. He also submitted an October 6, 2009 x-ray of the right
shoulder showing mild osteoarthritis and mild acromioclavicular (AC) arthrosis and a
January 31, 2011 x-ray revealing moderate degenerative arthropathy in the right shoulder.
By decision dated July 13, 2011, OWCP denied appellant’s request for an oral hearing
finding that his request was untimely because it was not made within 30 days of its May 2, 2011
decision. It further indicated that it had exercised its discretion and further denied the request for
the reason that the relevant issue of the case could be addressed by requesting reconsideration
and submitting evidence not previously considered by OWCP.
On March 12, 2013 appellant, through his attorney, requested reconsideration and
submitted an April 13, 2009 magnetic resonance imaging (MRI) scan of the right shoulder which
revealed a high grade partial tear along the articular surface of the distal supraspinatus tendon, a
partial tear along the deep fibers of the subscapularis tendon, tendinosis of the infraspinatus
tendon and AC arthritic changes.
Appellant submitted reports dated October 6, 2009 through October 31, 2011 from
Dr. Mimi Zumwalt, a Board-certified orthopedic surgeon, who diagnosed torn right rotator cuff
based on clinical examination and on an MRI scan. On October 6, 2009 Dr. Zumwalt indicated
that appellant had a “distant history of right shoulder weight[-]lifting injury about 30 years ago”
and was pushing a piece of plywood at work weighing about 60 pounds and noted a pop and
pain. In an October 24, 2011 report, she diagnosed right shoulder pain, post work-related injury,
right shoulder impingement syndrome, right AC joint disorder, right shoulder long head biceps
tendon and partial supraspinatus and subscapularis tears. Dr. Zumwalt stated that appellant was
seen for his right shoulder pain after he sustained a traumatic injury to his shoulder while
working approximately two years ago.
On December 5, 2011 Dr. Leslie Donaldson, an internist, indicated that she had been
treating appellant for the past eight years. In March 2009 appellant was seen for right shoulder
pain, loss of strength and mobility and hernia. Dr. Donaldson stated that appellant was lifting
and moving approximately 4,000 pounds of materials and equipment per day at work and opined
that this was too much for one man to be doing. She also indicated that appellant had trace
amounts of blood in his urine due to the heavy lifting. Dr. Donaldson opined that appellant’s
right shoulder, hernia and blood conditions were a direct result of constant and steady heavy
lifting at work from 2008 to 2009, which was set off by an awkward movement during the
employment incident on March 24, 2009.
2

By decision dated March 21, 2013, OWCP denied appellant’s request for reconsideration
on the grounds that it was untimely filed and failed to present 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.3 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).4 One such limitation provides that an application
for reconsideration must be submitted within one year of the date of OWCP’s decision for which
review is sought.5 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).6
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
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.8 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.9 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 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.12
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 prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.13 The
3

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

4

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

5

20 C.F.R. § 10.607(a).

6

See Jesus D. Sanchez, supra note 3; F.R., Docket No. 09-575 (issued January 4, 2010).

7

20 C.F.R. § 10.607(b).

8

See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

9

See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., Docket No. 09-956 (issued April 15, 2010).

10

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

11

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

12

See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

13

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

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Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that it abused its discretion in denying merit review in the
face of such evidence.14
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. The most recent merit decision was OWCP’s May 2, 2011 decision.
Appellant had one year from the date of this decision to make a timely request for
reconsideration. Since he did not file his request until March 12, 2013, it was filed outside the
one-year time period. Consequently, he must demonstrate clear evidence of error by OWCP in
the denial of his claim.15
The Board finds that appellant’s untimely request failed to demonstrate clear evidence of
error. In its May 2, 2011 merit decision, OWCP denied appellant’s traumatic injury claim
because there was insufficient medical evidence to establish a causal relationship between his
condition and the March 24, 2009 employment incident. Thereafter, counsel submitted reports
from Dr. Donaldson and Dr. Zumwalt. As noted, the question of whether a claimant has
established clear evidence of error entails a limited review of how the new evidence submitted
bears on the evidence previously of record. None of the reports, though, manifest on their face,
that an error had been made by OWCP in denying the claim. Dr. Donaldson’s December 5, 2011
report stated that appellant was lifting and moving approximately 4,000 pounds of materials and
equipment per day at work and opined that appellant’s right shoulder, hernia and blood
conditions were a direct result of constant and steady heavy lifting at work from 2008 to 2009,
which was set off by an awkward movement during the employment incident on
March 24, 2009. Although supportive of appellant’s claim, it does not establish error in
OWCP’s prior decision.
Dr. Zumwalt’s reports also diagnosed right shoulder pain, post work-related injury, right
shoulder impingement syndrome, right AC joint disorder, right shoulder long head biceps tendon
and partial supraspinatus and subscapularis tears. On October 6, 2009 she indicated that
appellant had a “distant history of right shoulder weight[-]lifting injury about 30 years ago” and
was pushing a piece of plywood across his body weighing about 60 pounds at work and noted a
pop and pain. These reports from Dr. Zumwalt do not establish that OWCP committed an error
in denying appellant’s claim on the grounds that the medical evidence did not establish causal
relationship, nor does it raise a substantial question as to the correctness of that decision. The
Board has held that even reports that could have created a conflict in medical evidence, if timely
filed, would not be sufficient to establish clear evidence of error.16
The April 13, 2009 MRI scan and x-rays dated October 6, 2009 and January 31, 2011 are
diagnostic in nature and also are insufficient to establish clear evidence of error.

14

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

15

Supra note 5; see Debra McDavid, 57 ECAB 149 (2005).

16

See J.R., Docket No. 10-2137 (issued July 12, 2011).

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To establish clear evidence of error, it is not sufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is
intended to represent a difficult standard.17 None of the evidence submitted establishes on their
face that OWCP committed an error in denying appellant’s claim. Appellant has not otherwise
submitted evidence of sufficient probative value to raise a substantial question as to the
correctness of OWCP’s decision. Thus, the evidence is insufficient to establish clear evidence of
error.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For the
reasons stated above, the Board finds that counsel’s argument is not substantiated.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the basis that it was not timely filed and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 21, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 27, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011); see
Dean D. Beets, supra note 8.

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