United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Washington, DC, Employer
__________________________________________

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

Docket No. 17-0417
Issued: September 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 15, 2016 appellant filed a timely appeal from a September 28, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a back injury causally
related to the accepted November 5, 2014 employment incident.
FACTUAL HISTORY
On December 17, 2014 appellant, then a 39-year-old customs and border patrol officer,
filed a traumatic injury claim (Form CA-1) alleging that on November 5, 2014 he experienced
1

5 U.S.C. § 8101 et seq.

right lower back pain as a result of hitting a punching bag with his baton at full force during a
baton recertification exercise. He did not stop work.
In a letter dated January 16, 2015, OWCP advised appellant that the evidence of record
was insufficient to establish his claim. It requested that he respond to specific questions in order
to substantiate that the November 5, 2014 incident occurred as alleged and that he provide
medical evidence to establish a diagnosed condition causally related to the alleged incident.
Appellant was afforded 30 days to submit this additional evidence.
Appellant provided a January 21, 2015 report from Dr. Jeffrey Wise, a Board-certified
orthopedic surgeon. Dr. Wise related that appellant informed him that he had injured his lower
back in November 2014 when he used a baton on a fake dummy during routine training.
Appellant told Dr. Wise that he had tightness and pain in the right side of the midlumbar area,
but the symptoms improved after about one and a half weeks. Dr. Wise conducted an
examination and reported paraspinal muscle tenderness on the right side of appellant’s lumbar
spine and full range of motion. Straight leg raise testing was negative. Motor and sensory
examinations were within normal limits. Dr. Wise related that a January 21, 2015 x-ray scan
showed a pars fracture at L4 on the right and mild disc degeneration at L5-S1. He diagnosed
lumbar facet syndrome and lumbosacral disc degeneration.
OWCP denied appellant’s claim in a decision dated March 6, 2015. It accepted that the
employment incident occurred as alleged and that the medical evidence of record provided valid
diagnoses of lumbar facet syndrome and lumbar disc degeneration, but denied his claim because
the medical evidence of record did not establish that his diagnosed back conditions were causally
related to the accepted incident. OWCP noted that Dr. Wise had not provided a clear opinion on
the cause of his back condition.
On November 10, 2015 appellant requested reconsideration.
Appellant submitted various medical reports in support of his request for reconsideration.
He was treated by Dr. Faisal Siddiqui, a Board-certified orthopedic surgeon, who indicated in an
August 20, 2015 report that appellant had complained of lower back pain at work after
participating in a training exercise on November 15, 2014. Appellant noted that he heard a pop
and felt pain in his right low back. Upon physical examination of appellant’s lumbar spine,
Dr. Siddiqui observed decreased range of motion and no evidence of scoliosis. Neurological
examination revealed decreased reflex. Dr. Siddiqui diagnosed thoracic/lumbosacral neuritis and
sciatica.
In an unsigned August 31, 2015 lumbar spine magnetic resonance imaging (MRI) scan,
an unknown provider noted mild degenerative changes at L2-3, L3-4, and L4-5.
In a September 10, 2015 report, Sohail Safdari, a certified physician assistant, related that
on November 15, 2014 appellant injured his lower back while training at work. He noted that he
reviewed an August 31, 2015 lumbar MRI scan, which showed mild degenerative changes at L23, L3-4, and L4-5, and no disc herniation or spinal stenosis. Mr. Safdari reported that
examination of appellant’s lumbar spine showed decreased range of motion and no evidence of

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scoliosis. Neurological examination demonstrated decreased reflex.
lumbosacral/thoracic neuritis, lumbar spinal stenosis, and sciatica.

Mr. Safdari diagnosed

In a decision dated January 19, 2016, OWCP denied modification of the March 6, 2015
decision. It found that the medical evidence of record was insufficient to establish that
appellant’s back conditions were causally related to the accepted November 5, 2014 employment
incident.
Appellant requested reconsideration on February 18, 2016. He submitted a February 11,
2016 report from Dr. Siddiqui who related that appellant’s current symptoms were definitively
related to his work-related incident. Dr. Siddiqui noted that appellant had no prior symptoms
before the incident. He opined that appellant had significant radicular symptoms that were
“directly related to [appellant’s] work-related injury on November 5, 2014.” Dr. Siddiqui opined
that the mechanism of the injury led to appellant’s current symptoms.
By decision dated May 26, 2016, OWCP denied modification of the January 19, 2016
decision. It found that the medical evidence of record was insufficient to establish that
appellant’s lumbar conditions were causally related to the accepted November 5, 2014
employment incident. OWCP determined that Dr. Siddiqui’s February 11, 2016 report did not
establish a causal relationship between appellant’s diagnosed lumbar condition and the accepted
November 5, 2014 work incident.
On June 28, 2016 appellant again requested reconsideration.
Appellant provided a June 13, 2016 report from Dr. Siddiqui who noted that appellant
had been under his care since August 20, 2015. Dr. Siddiqui related that appellant was a federal
police officer, who had injured himself while participating in training on November 5, 2014. He
reported that upon physical examination appellant had increased Achilles reflex and decreased
range of motion of the lumbar spine. Dr. Siddiqui related that an August 31, 2015 lumbar spine
MRI scan showed loss in disc height and desiccation of intervertebral disc and a mild disc bulge
present at the L2-3 level, a disc bulge at the L3-4 level, and a mild disc bulge and facet disease
causing mild neural foraminal encroachment at the L4-5 level. He opined that appellant’s
diagnoses of lumbar radiculopathy and spinal stenosis of the lumbar region were directly related
to his work-related injury on November 5, 2014. Dr. Siddiqui noted that appellant had no
symptoms prior to this accident. He explained that the mechanism of the injury led to his current
symptoms.
In a decision dated September 28, 2016, OWCP denied modification of the May 26, 2016
decision. It found that the medical evidence of record was insufficient to establish that appellant
sustained a lumbar injury as a result of the accepted November 5, 2014 employment incident.
OWCP determined that the new June 13, 2016 medical report lacked sufficient medical rationale
explaining how appellant’s lumbar conditions were causally related to the accepted incident.

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LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence,3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.5
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.6 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.7 An employee may establish that the
employment incident occurred as alleged, but fail to show that his or her disability or condition
relates to the employment incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.9 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.10 The weight of the 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.11

2

Id.

3

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

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

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

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

11

James Mack, 43 ECAB 321 (1991).

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ANALYSIS
Appellant alleged that on November 5, 2014 he injured his back when he hit a punching
bag with his baton during a baton recertification exercise. OWCP accepted that the employment
incident occurred as alleged and found that the evidence confirmed a diagnosed back condition.
It denied appellant’s claim, however, finding insufficient medical evidence of record to establish
that his back conditions were causally related to the November 5, 2014 employment incident.
The Board finds that appellant has failed to meet his burden of proof to establish that his
back condition resulted from the accepted employment incident.
In the January 21, 2015 report, Dr. Wise indicated that appellant injured his lower back in
November 2014 when he hit a fake dummy with a baton during routine training at work. He
noted that appellant’s initial mid-lumbar pain, improved a week and a half following the
incident. Dr. Wise provided examination findings and related that an x-ray scan showed a pars
fracture at L4 on the right and mild disc degeneration at L5-S1. He diagnosed lumbar facet
syndrome and lumbosacral disc degeneration. Dr. Wise did not, however, offer an opinion as to
whether the November 5, 2014 work incident caused or contributed to appellant’s two diagnosed
back conditions. The Board has held that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.12 This report, therefore, is insufficient to establish appellant’s claim.
The unsigned August 31, 2015 report of an MRI scan is of no probative value as the
author is not known to be a physician.13
Appellant was treated by Dr. Siddiqui. In his August 20, 2015 report, Dr. Siddiqui
related that appellant heard a pop and felt pain in his low back after participating in a training
exercise. He provided examination findings and diagnosed thoracic/lumbosacral neuritis and
sciatica. In a February 11, 2016 report, Dr. Siddiqui noted that appellant did not have symptoms
prior to the incident. He opined that appellant’s radicular symptoms were directly related to his
November 5, 2014 work-related injury and explained that the mechanism of injury as described
by appellant led to the current symptoms. In a June 13, 2016 letter, Dr. Siddiqui reported that
appellant’s diagnoses of lumbar radiculopathy and spinal stenosis of the lumbar region were
directly related to his November 5, 2014 work-related injury. He explained that the mechanism
of the injury led to his current symptoms.
Although Dr. Siddiqui provided an affirmative opinion on causal relationship, he did not
support his opinion with any medical rationale. He failed to provide any medical explanation of
how hitting a punching bag with a baton at work caused or contributed to his two diagnosed back
conditions.14 The need for rationalized medical opinion based on medical rationale is especially
important in this case as the evidence suggests that appellant had preexisting degenerative
12

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009);
A.D., 58 ECAB 149 (2006).
13

See J.W., Docket No. 17-0870 (issued July 12, 2017); Merton J. Sills, 39 ECAB 572, 575 (1988).

14

See B.T., Docket No. 13-0138 (issued March 20, 2013).

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changes to his lumbar spine. The Board notes Dr. Wise related in his January 2015 report that
x-ray findings indicated mild disc degenerative at L5-S1. Appellant’s August 31, 2015 lumbar
spine MRI scan also noted mild degenerative changes at L2-3, L3-4, and L4-5. In light of his
degenerative lumbar condition, rationalized medical evidence is particularly important to explain
how his current back condition resulted from the November 5, 2014 work incident.15 The Board
has held that a medical report is of limited probative value on the issue of causal relationship if it
contains a conclusion regarding causal relationship which is unsupported by medical rationale.16
Because Dr. Siddiqui has not provided such medical rationale to support his opinion on causal
relationship, his reports are insufficient to establish appellant’s claim.
The September 10, 2015 report by the physician assistant, Mr. Safdari, lacks probative
value and is likewise insufficient to establish appellant’s claim because physician assistants are
not considered physicians as defined under FECA and their medical opinions regarding diagnosis
and causal relationship are of no probative value.17
On appeal appellant alleges that Dr. Siddiqui clearly opined that his back issues were
definitely related to his November 5, 2014 employment incident. He indicated that he had
experienced lower back pain every single day for two years since his injury. As found above,
however, Dr. Siddiqui’s reports are insufficient to meet appellant’s burden of proof to establish
causal relationship. The issue of causal relationship is a medical question that must be
established by a probative medical opinion from a physician.18 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.19 The Board therefore finds that appellant did not meet 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.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a back injury
causally related to the accepted November 5, 2014 employment incident.

15

See W.N., Docket No. 16-1722 (issued March 22, 2017).

16

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-0975 (issued February 6, 2009).

17

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005). Section 8102(2) of FECA provides that the term
“physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law); see also Sean O’Connell, 56
ECAB 195 (2004) (physician assistants are not considered physicians as defined under FECA).
18

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, 57 ECAB 137 (2005).

19

E.J., Docket No. 09-1481 (issued February 19, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the September 28, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 13, 2017
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
L.B., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 17-1100
Issued: November 15, 2017

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 April 25, 2017 appellant filed a timely appeal from a January 20, 2017 merit and a
March 30, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish an
occupational disease causally related to the accepted factors of her federal employment; and
(2) whether OWCP properly denied appellant’s request for an oral hearing before an OWCP
hearing representative as untimely filed pursuant to 5 U.S.C. § 8124.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts of the case as presented in the
Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
Appellant, then a 59-year-old painter, filed a traumatic injury claim (Form CA-1) on
April 8, 2009 alleging that on March 31, 2009 she bruised her right knee when she slipped on
paint and fell down. The claim form did not indicate whether she stopped work.3 OWCP
accepted her claim for right knee contusion, right knee medial meniscus tear, and right knee
lateral meniscus tear.
On July 5, 2009 appellant underwent authorized right knee surgery. She stopped work on
July 27, 2009 and returned on August 25, 2009. OWCP paid disability compensation. Appellant
continued to receive medical treatment for her right knee injury.
On May 27, 2014 appellant filed claim for recurrence of medical treatment (Form CA-2a)
alleging that she sustained a recurrence of the March 31, 2009 employment injury. She indicated
that her right knee never stopped hurting and her right calf and ankle remained swollen. On the
back of the Form CA-2a, the employing establishment reported that they provided work
accommodations during appellant’s recuperation period. It noted that appellant had been
performing light-duty work, sitting all day in a workstation, since February 14, 2010.
In a July 15, 2014 letter, A.H., an injury compensation program administrator at the
employing establishment, controverted appellant’s recurrence claim. She noted that the 2009
injury claim was closed out in 2013 and only approved for right knee contusion and medial and
lateral meniscus tears. A.H. alleged that appellant had not provided evidence of any medical
treatment since the March 31, 2009 employment injury until the medical reports she provided
with her recurrence claim. She also alleged that the medical evidence submitted did not
sufficiently explain how appellant’s current right knee conditions were related to her March 31,
2009 employment injury. A.H. further contended that appellant had failed to identify the
specific employment factors which she believed caused or contributed to her medical condition.
By letter dated March 30, 2015, OWCP informed appellant that based on the description
she provided on the Form CA-2a, she was claiming a new occupational disease related to factors
of her federal employment. It advised her that it would administratively convert her recurrence
claim to an occupational disease claim (Form CA-2).4
In a March 31, 2015 letter, OWCP advised appellant that the evidence submitted was
insufficient to establish her occupational disease claim. It requested that she respond to an
attached questionnaire in order to substantiate the factual elements of her claim and that she
provide additional factual and medical evidence to establish that she sustained a diagnosed
condition causally related to her federal employment. Appellant was afforded 30 days to submit
2

Order Remanding Case, Docket No. 15-1838 (issued October 4, 2016).

3

OWCP assigned File No. xxxxxx618.

4

OWCP assigned the claim File No. xxxxxx793.

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the additional evidence. The employing establishment was also requested to provide further
information.
The employing establishment responded in an April 6, 2015 letter that it had already
controverted appellant’s claim. OWCP reviewed an August 6, 2009 report from Dr. Richard
Sharp, Board-certified in physical medicine and rehabilitation, who opined that appellant’s right
knee degenerative changes were not related to the March 31, 2009 employment injury. The
employing establishment also noted that appellant’s latest medical report dated January 2014
noted a diagnosis of right knee pain consistent with arthritis.
OWCP received an August 6, 2009 report from Dr. Sharp, who described that on
March 31, 2009 appellant fell down at work and experienced immediate onset of right knee pain.
Dr. Sharp noted that appellant has complained of persistent right knee pain since the injury. He
related that an April 15, 2009 right knee magnetic resonance imaging (MRI) scan showed a
complex tear of the posterior horn or lateral meniscus, probable fibular collateral ligament tear,
and calcified loose body in the joint as well. Dr. Sharp indicated that a May 5, 2009 report
described preexisting osteoarthritis with complex tear of the posterior horn of the lateral
meniscus. Upon physical examination of appellant’s right knee, he reported slight tenderness,
particularly laterally, joint effusion, and warmth. Range of motion demonstrated flexion to 110
degrees but extension lacked 19 degrees. Dr. Sharp diagnosed right lateral meniscus tear, status
post partial meniscectomy and premorbid degenerative changes of the right knee. He indicated
that appellant’s degenerative changes of the knee were not related to appellant’s workers’
compensation injury. Dr. Sharp noted that appellant reached maximum medical improvement as
of July 24, 2009. He indicated that according to the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment, appellant had 9 percent whole
person permanent impairment or 25 percent right lower extremity permanent impairment.
The employing establishment also submitted a January 16, 2014 report and handwritten
chart by Dr. Thomas Pressly, a Board-certified internist, who noted diagnoses of polyarthralgia,
knee pain with flare most consistent with osteoarthritis, carpal tunnel syndrome, and hip pain
secondary to trochanteric bursitis.
A January 10, 2014 radiology report of appellant’s right knee by Dr. Charles A. Borrell, a
Board-certified radiologist, demonstrated large joint effusion with progression of degenerative
changes.
In a decision dated May 1, 2015, OWCP denied appellant’s occupational disease claim.
It found that the evidence of record failed to establish the employment factors which she
believed caused or contributed to her condition. OWCP also determined that the medical
evidence of record did not establish a diagnosed medical condition causally related to factors of
her employment.
On June 1, 2015 appellant requested reconsideration.
Appellant submitted handwritten chart notes from Dr. Pressly dated September 6, 2012
and May 15, 2014, which were mostly illegible. Dr. Pressly noted diagnoses of polyarthralgia,

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knee pain with flare most consistent with osteoarthritis, carpal tunnel syndrome, and hip pain
secondary to trochanteric bursitis.
Appellant also resubmitted Dr. Borrell’s January 10, 2014 right knee radiology report.
By decision dated August 19, 2015, OWCP denied further merit review of appellant’s
claim. It found that appellant’s reconsideration request failed to raise a substantive legal
question and that appellant failed to submit relevant and pertinent new evidence sufficient to
warrant merit review pursuant to 5 U.S.C. § 8128(a).
Appellant appealed to the Board. In an order dated October 4, 2016, the Board remanded
appellant’s case for OWCP to combine appellant’s current case file with the previous claim,
OWCP File No. xxxxxx618.
On January 20, 2017 OWCP issued a de novo decision denying appellant’s occupational
disease claim. It noted that it had reviewed appellant’s case after her current case record was
combined with the prior file and found that the medical evidence of record was insufficient to
establish her claim. OWCP accepted appellant’s employment duties, but determined that the
medical evidence of record did not establish a diagnosed medical condition causally related to
the factors of her federal employment.
On March 8, 2017 OWCP received appellant’s request for an oral hearing before an
OWCP hearing representative dated February 22, 2017 and postmarked February 24, 2017.
OWCP also received a June 2, 2009 report by Dr. Douglas E. Thompson, a Boardcertified internist, who noted appellant’s diagnoses of right lateral meniscus tear, right knee
osteoarthritis, and right knee contusion. Dr. Thompson related that appellant continued to have
pain in her right knee and had been working light duty. He reported that physical examination
showed tenderness throughout the right knee and good range of motion. Dr. Thompson advised
appellant that she would likely continue to have some problems due to her underlying arthritis.
He recommended right knee surgery.
Appellant submitted a handwritten August 30, 2012 statement. She accurately described
the May 31, 2009 employment injury when she slipped and fell on paint at work.
By decision dated March 28, 2017, a representative of the Branch of Hearings and
Review denied appellant’s request for an oral hearing as it was untimely filed. She found that
the request was not postmarked within 30 days of the issuance of the January 20, 2017 OWCP
decision. After exercising her discretion, the hearing representative further found that the issue
in the case could be equally well addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
5

Supra note 1.

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evidence6 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.7 In an occupational disease claim, appellant’s burden requires
submission of the following: (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.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 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.10
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained right knee pain and swelling, requiring medical
treatment, as a result of factors of her employment. OWCP accepted her employment factors as
a painter, but denied her claim because the medical evidence of record failed to establish that her
diagnosed medical conditions were causally related to factors of her employment.
The Board finds that appellant has not met her burden of proof to establish her
occupational disease claim.
Appellant submitted an August 6, 2009 report from Dr. Sharp, who described appellant’s
previous March 31, 2009 right knee employment injury and related appellant’s complaints of
persistent right knee pain. Dr. Sharp reviewed appellant’s medical treatment and provided
physical examination findings. He reported slight tenderness, particularly laterally, joint
effusion, and warmth. Dr. Sharp diagnosed right lateral meniscus tear, status post partial
meniscectomy and premorbid degenerative changes of the right knee. He opined that appellant’s
degenerative changes of the knee were not related to appellant’s workers’ compensation injury.
The Board finds that Dr. Sharp’s medical report failed to establish that appellant’s current right
knee condition resulted from her employment duties. On the contrary, he explicitly denied that
appellant’s right knee degenerative condition was related to her employment. Dr. Sharp did not
explain how or why appellant’s employment duties as a painter caused or contributed to her
6

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

7

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
8

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

9

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

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current right knee condition.11 His report, therefore, is insufficient to establish her occupational
disease claim.
OWCP also received a January 16, 2014 report and various handwritten charts dated
September 6, 2012 to January 16, 2014 by Dr. Pressly. Dr. Pressly noted diagnoses of
polyarthralgia and knee pain with flare most consistent with osteoarthritis. Although he provided
various medical diagnoses for appellant’s right knee, he did not provide any opinion on the cause
of appellant’s right knee condition. The Board has held that medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.12
Likewise, Dr. Borrell’s January 10, 2014 radiology report also failed to contain any
opinion on the cause of appellant’s right knee condition. Because none of these reports offer any
opinion regarding the cause of appellant’s condition, they are insufficient to establish appellant’s
claim.13
On appeal appellant alleges that she continued to suffer from constant right knee pain
since the March 31, 2009 employment injury. She noted that she had to use a cane to walk. As
found above, however, the medical evidence of record is not of sufficient probative value to
establish that appellant’s current right knee condition was causally related to factors of her
federal employment. Neither the fact that a disease or condition manifests itself during a period
of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.14 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.15 As appellant has not submitted such evidence in this case,
she has not met her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through § 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his or her claim before a representative of the
11

See M.M., Docket No. 15-607 (issued May 15, 2015); M.W., Docket No. 14-1664 (issued December 5, 2014).

12

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
13

D.R., Docket No. 16-1395 (issued January 26, 2017).

14

Jennifer Atkerson, 55 ECAB 317 (2004).

15

Patricia J. Bolleter, 40 ECAB 373 (1988).

6

Secretary.16 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.17 A claimant is entitled to a hearing or
review of the written record as a matter of right only if the request is filed within the requisite 30
days as determined by postmark or other carrier’s date marking and before the claimant has
requested reconsideration.18 Although there is no right to a review of the written record or an
oral hearing if not requested within the 30-day time period, OWCP may within its discretionary
powers grant or deny appellant’s request and must exercise its discretion.19 OWCP procedures
require that it exercise its discretion to grant or deny a hearing when the request is untimely or
made after reconsideration under section 8128(a).20
ANALYSIS -- ISSUE 2
On January 20, 2017 OWCP denied appellant’s occupational disease claim, finding that
appellant had not established a work-related right knee injury causally related to factors of her
federal employment. Appellant requested a telephone hearing by an appeal form postmarked
February 24, 2017.
Because the postmark date was more than 30 days after the date of OWCP’s January 20,
2017 decision, the Board finds that OWCP properly determined that appellant’s request for an
oral hearing was untimely filed. Appellant was therefore not entitled to a hearing as a matter of
right.21 Although her request for a hearing before an OWCP hearing representative was
untimely, OWCP has the discretionary authority to grant the request and it must exercise such
discretion.22
In its March 30, 2017 decision, OWCP properly considered the matter in relation to the
issue involved and that additional evidence and argument could be submitted with a request for
reconsideration. The Board has held that the only limitation on OWCP’s authority is
reasonableness. An abuse of discretion is generally shown through proof of manifest error, a
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and

16

5 U.S.C. § 8124(b)(1).

17

20 C.F.R. §§ 10.616, 10.617.

18

Id. at § 10.616(a).

19

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

20

See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011).
21

The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review of the
written record commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB
90 (1989).
22

Supra note 18.

7

probable deductions from established facts.23 In this case, the evidence of record does not
indicate that OWCP abused its discretion by denying appellant’s request for an oral hearing.
Accordingly, the Board finds that OWCP properly denied appellant’s request for an oral
hearing before an OWCP hearing representative.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an
occupational disease causally related to factors of her federal employment. The Board also finds
that OWCP properly denied appellant’s request for an oral hearing before an OWCP hearing
representative as untimely filed pursuant to 5 U.S.C. § 8124.
ORDER
IT IS HEREBY ORDERED THAT the January 20, 2017 merit decision and March 30,
2017 nonmerit decision of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 15, 2017
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

23

Samuel R. Johnson, 51 ECAB 612 (2000).

8


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

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

Docket No. 21-0253
Issued: March 24, 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 December 10, 2020 appellant filed a timely appeal from a November 16, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $5,022.00 for the period May 26, 2019 through February 29, 2020 for which he was
without fault, because of an underwithholding of optional life insurance (OLI) premiums from his
FECA compensation; and (2) whether OWCP properly denied waiver of recovery of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 18, 2016 appellant, then a 62-year-old underground mine safety and health
inspector, filed a traumatic injury claim (Form CA-1) alleging that on October 13, 2016 he injured
his neck when he slipped and fell onto a mine floor while in the performance of duty. OWCP
accepted the claim for strain of muscle(s) and tendon(s) of the right shoulder rotator cuff (tear) and
later expanded the acceptance of the claim to include aggravation of radiculopathy and spinal
stenosis of the cervical region. It paid appellant wage-loss compensation on the supplemental
rolls, effective November 17, 2016, and then on the periodic rolls effective September 17, 2017.
In a September 27, 2017 letter, OWCP outlined appellant’s entitlement to compensation
benefits. It advised him that it was making deductions for health insurance benefits, basic life
insurance (BLI), and OLI premiums (in the amount of $421.20) from his compensation payments
every 28 days.
On February 25, 2020 the Office of Personnel Management (OPM) informed OWCP that
as a compensationer appellant was eligible to continue Federal Employees’ Group Life Insurance
(FEGLI) coverage in the form of basic, postretirement basic life insurance (PRBLI), and OLI
coverage. The final base salary on which FEGLI was based was $92,316.00. OPM requested
OWCP to deduct for code X0 basic Option A for 75 percent reduction and Option B times five
with no reduction. It noted that appellant’s PRBLI reduction commenced on October 14, 2017.
OPM forwarded an Option B election form that appellant signed on February 14, 2020 freezing all
of his Option B (additional) life insurance at the value as of age 65, to continue for life.
In a preliminary overpayment determination dated April 9, 2020, OWCP notified appellant
that he had received an overpayment of compensation in the amount of $10,819.00 because OLI
and PRBLI premiums after he reached age 65 had not been properly deducted from his FECA
compensation for the period October 14, 2017 through February 29, 2020. It provided an
overpayment calculation. OWCP further advised appellant of its preliminary determination that
he was not at fault in the creation of the overpayment and requested that he complete an
overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20).
Additionally, it notified him that within 30 days of the date of the letter, he could request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
In a memorandum of telephone call (Form CA-110) dated April 30, 2020, appellant
informed OWCP that OPM had advised him that he had paid BLI and OLI premiums up to age
65. However, deductions should have continued to have been made as of 2019 when he turned 65
years old and not in 2017 as indicated in OPM’s February 25, 2020 letter.
In a May 11, 2020 amended overpayment referral, OWCP noted that its compensation
history records showed that appellant had paid OLI premiums up to May 25, 2019 and that
deductions for OLI and PRBLI premiums began on March 1, 2020. It further noted that the
overpayment occurred from May 26, 2019 to February 29, 2020, 10 periodic roll cycles. As
appellant’s premium for OLI after age 65 was $502.20 every 28-day cycle, the total overpayment
was $5,022.00.

2

OWCP, in a corrected preliminary overpayment determination also dated May 11, 2020,
informed appellant that he had received an overpayment of compensation in the amount of
$5,022.00 because OLI premiums had not been properly deducted after he turned 65 years old on
May 12, 2019 from his FECA compensation for the period May 26, 2019 through
February 29, 2020. It provided an overpayment calculation. OWCP again found that appellant
was not at fault in the creation of the overpayment and requested that he complete an overpayment
action request form containing appeal rights and a Form OWCP-20 and submit supporting
documentation including copies of tax returns, bank account statements, bills and cancelled
checks, pay slips, and other records which supported the income and expenses listed. It again
notified him that he could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing. OWCP advised that, under 20 C.F.R. § 10.438, failure to
submit the requested information within 30 days would result in a denial of waiver of recovery of
the overpayment. However, no financial information was submitted by appellant.
On June 8, 2020 appellant requested a telephonic prerecoupment hearing, which was held
on August 31, 2020. He contested the fact and amount of the overpayment and requested waiver
of recovery of the overpayment. Appellant asserted that he was subject to double jeopardy as
OWCP had vacated the initial preliminary overpayment determination, admitted error, but had
thereafter issued a new preliminary overpayment determination. He also indicated that he had
alerted OWCP that premiums were not being withheld properly from his FECA compensation.
By decision dated November 16, 2020, an OWCP hearing representative finalized the
May 11, 2020 preliminary overpayment determination that appellant had received an overpayment
of compensation in the amount of $5,022.00 for the period May 26, 2019 through February 29,
2020, for which he was without fault, because OWCP had failed to deduct OLI premiums after he
reached age 65 from his compensation payments. He found that issuance of a corrected decision,
reducing the amount of the overpayment, did not constitute double jeopardy. The hearing
representative noted the rates of FEGLI premiums effective January 1, 2016. For option B (per
$1,000 of insurance), the bi-weekly premium for age band 65-69 was .54. Based on his rounded
final salary of $93,000.00 and 5x multiple election, appellant was insured for $465,000.00. The
hearing representative further calculated that twice the bi-weekly rate of .54 was 1.08 and
multiplied by 465 equaled a 28-day premium of $502.20. He denied waiver of recovery of the
overpayment as no financial evidence had been submitted in response to the May 11, 2020
preliminary overpayment determination, as requested. Because OWCP did not have the necessary
financial information to determine an equitable monthly repayment amount, the hearing
representative ordered recovery of the overpayment in full within 30 days. Appellant was directed
to contact OWCP if he wished to enter into a monthly repayment agreement.
LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in BLI and one or more of the options. 2 The coverage for BLI is effective unless
waived,3 and premiums for basic and optional life coverage are withheld from the employee’s
2

5 U.S.C. § 8702(a).

3

Id. at § 8702(b).

3

pay.4 Upon retirement or upon separation from the employing establishment or being placed on
the FECA periodic compensation rolls, an employee may choose to continue BLI and OLI
coverage in which case the schedule of deductions made will be used to withhold premiums from
his or her annuity or compensation payments.5 BLI coverage shall be continued without cost to
an employee who retired or began receiving compensation on or before December 31, 1989;6
however, the employee is responsible for payment of premiums for OLI coverage which is
accomplished by authorizing withholdings from his or her compensation.7
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing n o life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium). 8 When an underwithholding of life insurance premiums occurs, the entire
amount is deemed an overpayment of compensation because OWCP must pay the full premium to
OPM upon discovery of the error.9
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of duty. 10 When
an overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which the individual is entitled. 11

4

Id. at § 8707.

5

Id. at § 8706.

6

Id. at § 8707(b)(2).

7

Id. at § 8706(b)(3)(B). See J.H., Docket No. 20-0281 (issued May 18, 2021); B.B., Docket No. 17-1733 (issued
March 26, 2018).
8

See I.J., Docket No. 19-1672 (issued March 10, 2020); C.A., Docket No. 18-1284 (issued April 15, 2019); James J.
Conway, Docket No. 04-2047 (issued May 20, 2005).
9

5 U.S.C. § 8707(d); see also B.B., supra note 7.

10

Id. at § 8102(a).

11

Id. at § 8129(a).

4

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$5,022.00 for the period May 26, 2019 through February 29, 2020, for which he was without fault,
because of an underwithholding of OLI premiums from his FECA compensation.
OPM notified OWCP that on February 14, 2020 appellant had elected to freeze all of his
Option B additional life insurance at the value as of age 65. OWCP found that appellant had paid
OLI premiums up to May 25, 2019 when he reached the age of 65 on May 12, 2019 and that
deductions for these premiums began on March 1, 2020, but that it did not deduct the proper
amounts of OLI premiums from appellant’s wage-loss compensation benefits for the period
May 26, 2019 through February 29, 2020. It calculated the amount of the resulting overpayment
as $5,022.00. The record contains compensation payment records, as well as an overpayment
worksheet explaining the overpayment calculation and how the overpayment occurred. While in
compensationer status, appellant remained responsible for all insurance benefits, including the
premiums for OLI at whatever option he or she had selected. 12 Moreover, as noted, when an
underwithholding of life insurance premiums occurs, the entire amount is deemed an overpayment
of compensation because OWCP must pay the full premium to OPM upon discovery of the error. 13
The Board thus finds that OWCP properly determined the fact and amount of the
overpayment. As OWCP failed to properly deduct OLI premiums for the period May 26, 2019
through February 29, 2020, appellant received an overpayment of $5,022.00 during this period. 14
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 15
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 16 Additionally, recovery of an
12

5 C.F.R. § 870.504(b); S.P., Docket No. 17-1888 (issued July 18, 2018).

13

5 U.S.C. § 8102.

14

See J.H., supra note 7; I.J., supra note 8; D.H., Docket No. 19-0384 (issued August 12, 2019); R.W., Docket No.
19-0451 (issued August 7, 2019).
15

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
16

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(2) (September 2020).

5

overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 17
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 18 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The fact that a claimant is without fault in the creation of an overpayment does not preclude
OWCP from recovering the overpayment. 20 As OWCP found appellant without fault in the
creation of the overpayment, waiver must be considered, and repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience. 21 Appellant, however, has the responsibility to provide the appropriate
financial information and documentation to OWCP.22
In its preliminary overpayment determination dated May 11, 2020, OWCP explained the
importance of providing the completed Form OWCP-20 and financial information, including
copies of income tax returns, bank account statements, bills, pay slips, and any other records to
support income and expenses. It advised appellant that it would deny waiver of recovery if he
failed to furnish the requested financial information within 30 days. Appellant, however, did not
respond. As such, OWCP did not have the necessary financial information to determine if recovery
of the overpayment would defeat the purpose of FECA or if recovery would be against equity and
good conscience.23

17

Id. at § 10.437(a)(b).

18

Id. at § 10.438(a).

19

Id. at § 10.438(b).

20

See George A. Rodriguez, 57 ECAB 224 (2005); Joyce O. Diaz, 51 ECAB 124 (1999).

21

20 C.F.R. § 10.436.

22

Id. at § 10.438; see also N.J., Docket No. 19-1170 (issued January 10, 2020); S.M., Docket No. 17-1802 (issued
August 20, 2018).
23

J.H., supra note 7; D.H., supra note 14.

6

As appellant did not submit the information required under 20 C.F.R. § 10.438, which was
necessary to determine his eligibility for waiver, the Board finds that OWCP properly denied
waiver of recovery of the overpayment. 24
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$5,022.00 for the period May 26, 2019 through February 29, 2020, for which he was without fault,
because of an underwithholding of life insurance premiums. The Board further finds that OWCP
properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 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

24

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NATIONAL CEMETARY, Eagle Point, OR,
Employer
__________________________________________

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

Docket No. 16-1913
Issued: April 11, 2017

Case Submitted on the Record

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

JURISDICTION
On September 29, 2016 appellant filed a timely appeal from a June 23, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective June 23, 2016 under 5 U.S.C. § 8106(c)(2) for refusal of suitable
work.
1
2

5 U.S.C. § 8101 et seq.

Appellant requested oral argument before the Board. By order dated February 7, 2017, the Board exercised its
discretion and denied the request, finding that the issues could properly be adjudicated based on the evidence of
record. Order Denying Oral Argument, Docket No. 16-1913 (issued February 7, 2017).

FACTUAL HISTORY
On January 10, 2013 appellant, then a 59-year-old cemetery caretaker, filed a traumatic
injury claim (Form CA-1) alleging that he injured his right knee in the performance of duty on
January 4, 2013. He alleged that while setting up a casket-lowering device the ground gave way,
causing him to fall and twist his right knee. On May 21, 2013 OWCP accepted the claim for
right medial meniscus derangement, right knee internal derangement, and tibiofibular ligament
sprain.
In a report dated August 2, 2013, Dr. David Galt, a Board-certified orthopedic surgeon,
indicated that appellant had undergone a partial medial and lateral meniscectomy that date.
Appellant stopped work and began receiving wage-loss compensation as of August 23, 2013.
On March 10, 2014 appellant underwent a total right knee replacement surgery. A
nurse’s report dated July 1, 2014 indicated that appellant had returned to work on June 9, 2014 at
four hours per day, increasing to six hours per day as of June 30, 2014.
Appellant underwent a functional capacity evaluation (FCE) on September 30, 2014. By
letter dated August 14, 2015, the employing establishment offered him a position as an
information receptionist consistent with the FCE restriction. The job required standing or
walking for one half to one hour in duration, no more than four hours in an eight-hour day. On
August 24, 2015 appellant rejected the job offer because he claimed that he could not physically
perform the position.
OWCP referred appellant, along with medical records and a statement of accepted facts
(SOAF), to Dr. Ronald Teed, a Board-certified orthopedic surgeon. In a report dated October 3,
2015, Dr. Teed provided a history, reviewed medical evidence, and provided results on
examination. He diagnosed resolved tibiofibular ligament sprain, resolved medial meniscus
derangement of the right knee, resolved internal right knee derangement, degenerative joint
disease, status post total knee arthroplasty, right knee arthrofibrosis, and chronic right knee pain.
Dr. Teed wrote that appellant’s right knee condition was significantly limiting. He indicated that
the arthroplasty surgery was for degenerative joint disease, unrelated to the January 4, 2013
employment injury. As to work restrictions from employment injuries or preexisting conditions,
Dr. Teed wrote, “light activities with intermittent standing and walking no greater than six-hour
workday.” He completed a Form OWCP-5C dated December 15, 2015. Dr. Teed indicated that
appellant could work an eight-hour day, with restrictions of no more than two hours standing and
walking.3 He also indicated that appellant had a 20-pound lifting restriction, with no squatting or
kneeling.
By letter dated February 29, 2016, the employing establishment again offered appellant a
full-time position as an information receptionist. It indicated that the position would conform to
work restrictions provided by Dr. Teed, of two hours standing and walking, with no squatting or
kneeling. A position description indicated that the job was performed in an office setting with no
physical demands.
3

The form indicated that Dr. Teed initially checked a box to indicate that appellant could not work eight hours,
but crossed this out and initialed the change, checking a box that appellant could work eight hours per day.

2

On March 11, 2016 appellant rejected the job offer. He wrote that he had developed back
problems from sitting, he had not received proper care after his knee surgery, and he was still in
pain.
In a letter dated March 29, 2016, OWCP advised appellant that it found the job offer of
information receptionist to be a suitable position. It indicated that the case would be held open
for 30 days with the expectation that appellant would accept the position. The provisions of
5 U.S.C. § 8106(c)(2) were noted, and appellant was advised that if he failed to accept the
position or provide adequate reasons for refusing the job offer, his right to compensation would
be terminated.
On April 6, 2016 appellant submitted an undated letter writing that he was appealing
OWCP’s decision and had an appointment with Dr. Galt. He asserted that the case needed to be
looked at again and he felt he was still injured. On April 25, 2016 appellant submitted a form
report from Dr. Galt dated April 21, 2016. Dr. Galt indicated that appellant could lift up to 25
pounds occasionally, with no squatting or kneeling. He wrote that appellant should be able to
stand or walk for a total of two hours, with a break every half hour, and should be able to sit six
hours, with a break every two hours.
Appellant, through his congressional representative, submitted additional statements on
April 27, 2016. He argued that he was permanently disabled and discussed the history of his
knee injury.
By letter dated May 6, 2016, OWCP advised appellant’s congressional representative that
it expected to make a decision by May 16, 2016. On June 13, 2016 it received a May 23, 2016
FCE. The report included Dr. Galt’s name and was signed by occupational and physical
therapists.
By decision dated June 23, 2016, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective June 23, 2016. It found that he had refused an offer of suitable
work and terminated his compensation pursuant to 5 U.S.C. § 8106(c)(2). OWCP found it “did
not receive a written explanation to the 30-day notice regarding any reason for refusing the
position.”
LEGAL PRECEDENT
5 U.S.C. § 8106(c) provides in pertinent part, “A partially disabled employee who …
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.4 To justify such a termination, OWCP
must show that the work offered was suitable.5

4

Henry P. Gilmore, 46 ECAB 709 (1995).

5

John E. Lemker, 45 ECAB 258 (1993).

3

With respect to the procedural requirements of termination under section 8106(c), the
Board has held that OWCP must inform appellant of the consequences of refusal to accept
suitable work, and allow him an opportunity to provide reasons for refusing the offered position.6
If appellant presents reasons for refusing the offered position, OWCP must inform the employee
if it finds the reasons inadequate to justify the refusal of the offered position and afford appellant
a final opportunity to accept the position.7
Section 10.516 of FECA’s implementing regulations provide that OWCP shall advise the
employee that it has found the offered work to be suitable and afford the employee 30 days to
accept the job or present any reasons to counter OWCP’s finding of suitability.8 If the employee
presents such reasons and OWCP determines that the reasons are unacceptable, it will notify the
employee of that determination and that he or she has 15 days in which to accept the offered
work without penalty. At that point in time, OWCP’s notification need not state the reasons for
finding that the employee’s reasons are not acceptable.9 After providing the 30- and 15-day
notices, OWCP will terminate the employee’s entitlement to further wage-loss compensation and
schedule award benefits.10 However, the employee remains entitled to medical benefits.11
ANALYSIS
In the present case, the employing establishment offered appellant the full-time position
of information receptionist on February 29, 2016. Appellant rejected the offer, asserting that he
had developed back problems from sitting and ongoing knee pain. As such, he could not
physically perform the offered position. OWCP terminated appellant’s wage-loss compensation
and medical finding that appellant had refused an offer of suitable work under 5 U.S.C.
§ 8106(c)(2).
OWCP issued a letter dated March 29, 2016, advising appellant that it found the offered
information reception position suitable, but, in the final decision dated June 23, 2016, it found
appellant had not submitted a written explanation to the March 29, 2016 letter, regarding reasons
for refusing the position. OWCP did not discuss any additional evidence received between
March 29 and June 23, 2016.
The record indicates that appellant did respond in writing to the March 29, 2016 letter
with reasons for refusing the position. Appellant submitted a statement on April 6, 2016
contesting the suitable work letter. He wrote that he felt he was still injured and his claim should
be reevaluated. On April 25, 2016 appellant submitted the April 21, 2016 report from Dr. Galt
6

Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

7

Id.

8

20 C.F.R. § 10.516.

9

Id.

10

Id. at § 517.

11

Id.

4

with work restrictions.
He subsequently submitted additional statements through his
congressional representative on April 27, 2016, arguing that he was permanently disabled.
Under established procedures as noted above, OWCP should have issued a letter with
respect to the evidence and arguments received after the March 29, 2016 letter. As appellant
submitted additional evidence within the 30-day period afforded by OWCP of responding to the
suitability determination, he was entitled to have this evidence evaluated to determine whether or
not he had provided acceptable reasons for refusing the offer of suitable work.12 OWCP should
have reviewed the evidence and argument, and if it determined the reasons unacceptable, issued
a 15-day letter providing appellant a final opportunity to accept the position.13 `
The Board accordingly finds that OWCP failed to follow established procedures with
respect to termination of compensation under 5 U.S.C. § 8106(c). The Board has recognized that
5 U.S.C. § 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to
future compensation and, for this reason, will be narrowly construed.14 It is OWCP’s burden of
proof to terminate compensation and, due to the above-noted procedural error, the Board finds
that OWCP failed to meet its burden of proof.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation effective
June 23, 2016 under 5 U.S.C. § 8106(c)(2) for refusal of suitable work.

12

C.C., Docket No. 15-1778 (issued August 16, 2016). Even if submitted after the 30-day period, but prior to the
final decision, OWCP must evaluate the evidence to determine if acceptable reasons for refusing the position. See
M.M., 59 ECAB 680 (2008).
13

R.G., Docket No. 15-0492 (issued November 16, 2015); see also Maggie L. Moore, supra note 6; Federal
(FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5(e)(3) (June 2013) (if
new evidence received, it should be identified in the 15-day letter).
14

H. Adrian Osborne, 48 ECAB 556 (1997).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 23, 2016 is reversed.
Issued: April 11, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 18-0813
Issued: November 20, 2018

Case Submitted on the Record

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

JURISDICTION
On March 7, 2018 appellant, through counsel, filed a timely appeal from a February 15,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed since the last merit decision, dated May 30, 2013, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

3

20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the prior Board decisions are incorporated herein by reference. The relevant facts are set forth
below.
On December 2, 2006 appellant, then a 37-year-old carrier, filed a traumatic injury claim
(Form CA-1) alleging that she sustained multiple injuries on December 1, 2006 when she fell down
a staircase. On June 11, 2007 OWCP accepted the claim for displacement of lumbar intervertebral
disc without myelopathy. Appellant returned to full-time work without restrictions on
January 2, 2007.
On April 30, 2009 appellant filed Form CA-7 claims for compensation for leave without
pay for the periods August 13 to November 18, 2007 and July 30, 2008 to May 15, 2009.
By decision dated August 3, 2011, OWCP denied appellant’s claims for disability
compensation.
By decision dated September 28, 2011, OWCP expanded the acceptance of the claim to
include cervical radiculopathy, cervicalgia, and temporary aggravation of cervical degenerative
disc disease.
By decision dated November 5, 2012, OWCP denied modification of its August 3, 2011
denial of appellant’s disability compensation for the period August 13 to November 18, 2007 and
July 30, 2008 to May 15, 2009. It found that she had failed to submit medical evidence to establish
disability during the claimed periods.
On November 19, 2012 appellant, through counsel, appealed the November 5, 2012
OWCP decision and requested a telephone hearing before an OWCP hearing representative.
By decision dated May 30, 2013, an OWCP hearing representative reversed the
November 5, 2012 decision in part, finding that appellant was entitled to wage-loss compensation
for the period August 13 to November 18, 2007. He affirmed the decision in part, finding that she
had not submitted sufficient medical evidence to establish disability for the period July 30, 2008
to May 15, 2009. The hearing representative determined that appellant had not established that
her work stoppage after returning to work in November 2007 was due to a recurrence of her workrelated conditions. He further determined that she had not established a change in her modifiedduty position which prevented her from returning to work during this period, noting that she was
provided with multiple, suitable, modified-duty positions after she stopped work.

4

Docket No. 14-1875 (issued March 20, 2015); Docket No. 17-0146 (issued October 24, 2017).

2

On May 5, 2014 appellant, through counsel, requested reconsideration of the May 30, 2013
hearing representative’s decision. Counsel submitted a March 24, 2014 medical report not
previously considered from Dr. Michael Haak, a Board-certified orthopedic surgeon.
By decision dated July 30, 2014, OWCP denied appellant’s request for reconsideration
finding that she neither raised substantive legal questions, nor included relevant and pertinent new
evidence sufficient to warrant a merit review.
On August 26, 2014 appellant, through counsel, appealed to the Board.
By decision dated March 20, 2015, the Board affirmed the July 30, 2014 OWCP decision
denying appellant’s request for reconsideration.5
On October 12, 2015 appellant, through counsel, requested reconsideration of the
March 20, 2015 decision. In support of the reconsideration request, counsel submitted the
deposition transcript from U.S. District Court of Dr. Charles W. Mercier, a Board-certified
orthopedic surgeon. Dr. Mercier discussed appellant’s treatment for her injuries stemming back
to the December 1, 2006 employment incident and her release to full-duty work after he last
evaluated her on November 26, 2007, noting that her cervical conditions had resolved. He
explained that appellant presented for evaluation on April 1, 2008 with new complaints relating to
the lumbar spine. A magnetic resonance imaging scan revealed L4-5 disc herniation which was
not present on prior examinations. Dr. Mercier noted that it did not appear that the disc herniation
was caused by the December 1, 2006 injury and was likely due to another injury. Due to her disc
herniation, he provided appellant her previous limited-duty work restrictions for the period
October 2008 to April 2009.
By decision dated September 27, 2016, OWCP denied appellant’s request for
reconsideration, finding that the evidence submitted was insufficient to warrant further merit
review.
On October 28, 2016 appellant, through counsel, appealed to the Board.
By decision dated October 24, 2017, the Board set aside the September 27, 2017 decision,
finding that OWCP erroneously applied the standard of review for a timely request for
reconsideration pursuant to section 8128(a) of FECA.6 The Board remanded the case for
application of the clear evidence of error legal standard for cases in which a reconsideration request
is untimely filed.
By decision dated February 15, 2018, OWCP denied appellant’s reconsideration request as
it was untimely filed and failed to demonstrate clear evidence of error.

5

Docket No. 14-1875 (issued March 20, 2015).

6

Docket No. 17-0146 (issued October 24, 2017).

3

LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.7
Timeliness is determined by the document receipt date, i.e., the “received date” in OWCP’s
Integrated Federal Employees’ Compensation System (iFECS).8 The Board has found that the
imposition of the one-year limitation does not constitute an abuse of the discretionary authority
granted OWCP under section 8128(a) of FECA.9
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation, if the claimant’s application for review demonstrates clear evidence of error on the part
of OWCP in its most recent merit decision. To demonstrate clear evidence of error, a claimant
must submit evidence relevant to the issue decided by OWCP. The evidence must be positive,
precise, and explicit and it must manifest on its face that OWCP committed an error.10
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.11
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to demonstrate clear evidence of error.12 It is not enough merely to show
that the evidence could be construed so as to produce a contrary conclusion.13 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence demonstrates
clear error on the part of OWCP.14 The Board makes an independent determination as to whether
a claimant has submitted clear evidence of error on the part of OWCP.15

7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.4(b) (February 2016).

9

See M.P., Docket No. 17-0367 (issued March 12, 2018); Thankamma Mathews, 44 ECAB 765 (1993).

10

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

11

Annie L. Billingsley, 50 ECAB 210 (1998).

12

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

13

Id.

14

Id.

15

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, supra note 9.

4

ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.16
The last merit decision of record was OWCP’s May 30, 2013 decision denying disability
compensation for the period July 30, 2008 to May 15, 2009. Appellant’s last request for
reconsideration was dated October 12, 2015. Since the reconsideration request was received more
than one year after the last May 30, 2013 merit decision, it was untimely filed. As appellant’s
request for reconsideration was untimely, she must demonstrate clear evidence of error by OWCP
in denying her claim.17
With the October 12, 2015 reconsideration request, counsel provided Dr. Mercier’s
deposition transcript. Dr. Mercier discussed appellant’s treatment pertaining to the December 1,
2006 work-related injury, noting that she was released to full-duty work in November 2007. He
reported that appellant returned for evaluation in April 2008 due to a new injury for an L4-5
herniated disc which he considered a new injury unrelated to the December 1, 2006 employment
incident. Dr. Mercier discussed appellant’s disability, noting that he provided her work restrictions
from October 2008 to April 2009 due to her L4-5 disc herniation. Dr. Mercier’s testimony fails to
provide support for total disability from July 30, 2008 to May 15, 2009 as appellant was released
to work with restrictions. Moreover, the restrictions provided related to appellant’s L4-5 disc
herniation, a condition not accepted by OWCP as work related, which the physician opined was
caused by a new injury. Appellant did not explain how this evidence was positive, precise, and
explicit in manifesting on its face that OWCP committed an error in denying her claim for
disability compensation.18
The Board has held that clear evidence of error is intended to represent a difficult standard.
Evidence, such as a detailed well-rationalized medical report, which if submitted before the merit
denial might require additional development of the claim, is insufficient to demonstrate clear
evidence of error.19 The Board finds that the evidence submitted with appellant’s untimely request
for reconsideration is insufficient to establish that OWCP erred in its denial of appellant’s claim.20
As the underlying issue is medical in nature, the medical evidence submitted was insufficient to
shift the weight in appellant’s favor to establish that OWCP erred in denying her claim for
disability compensation for the period July 30, 2008 to May 15, 2009.21

16

S.E., Docket No. 14-1223 (issued November 7, 2014).

17

See Debra McDavid, 57 ECAB 149 (2005).

18

G.B., Docket No. 13-1557 (issued October 29, 2013).

19

Supra note 8 at Chapter 2.1602.5 (February 2016).

20

See W.R., Docket No. 09-2336 (issued June 22, 2010).

21

H.T., Docket No. 14-964 (issued December 17, 2014).

5

Appellant did not submit the type of positive, precise, and explicit evidence that manifests
on its face that OWCP committed an error.22 Thus, she did not demonstrate clear evidence of error
in the denial of her compensation claim.23
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.24
ORDER
IT IS HEREBY ORDERED THAT the February 15, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2018
Washington, DC

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

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

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

22

J.T., Docket No. 10-313 (issued February 24, 2010).

23

B.B., Docket No. 08-232 (issued August 7, 2008).

24

J.V., Docket No. 14-0788 (issued October 19, 2015).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKER SAFETY, HEALTH &
ENVIRONMENT, OFFICE OF AUDIT,
Dallas, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0718
Issued: March 1, 2022

Case Submitted on the Record

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

On April 12, 2021 appellant filed a timely appeal from a March 26, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards
docketed the appeal as No. 21-0718.
On October 25, 2016 appellant, then a 60-year-old auditor, filed an occupational disease
claim (Form CA-2) alleging that he sustained a bilateral hand injury due to factors of his federal
employment which required repetitive movements. He stopped work on December 19, 2016 .
OWCP accepted appellant’s claim for carpal tunnel syndrome of the right and left upper limbs. It
paid him wage-loss compensation on the supplemental rolls beginning March 19, 2017.
In a February 28, 2018 letter, appellant claimed that he sustained bilateral ring and middle
trigger fingers as a consequence of his accepted employment injury.

1

The Board notes that appellant’s Application for Review (Form AB-1) notes that she is also requesting an appeal
from a December 17, 2019 decision. However, as that decision was issued more than 180 days before the filing of this
appeal, the Board lacks jurisdiction over that decision. 20 C.F.R. § 501.3(e).

By decision dated January 24, 2019, OWCP denied expansion of appellant’s claim to
include consequential conditions.
On September 19, 2019 appellant requested reconsideration and submitted additional
medical evidence in support of his claim.
By decision dated December 17, 2019, OWCP denied modification of its January 24, 2019
decision, finding that the medical evidence of record was insufficient to establish that appellant’s
claimed consequential bilateral ring and middle trigger finger conditions were causally related to
his accepted employment injury.2
On November 2, 2020 appellant requested reconsideration. Along with appellant’s letter,
OWCP received additional medical evidence.
In a letter dated February 19, 2021, OWCP informed appellant that “[o]n November 2,
2020 we received your letter requesting reconsideration.” It advised that it was not clear from his
letter which decision or issues for which he was seeking reconsideration. OWCP then advised
appellant that no further action would be taken on his letter. It related that if he wished to request
reconsideration, then he should make such request in writing within one year of the decision for
which review was sought together with relevant evidence not previously submitted or legal
argument not previously considered.
On February 19, 2021 appellant again requested reconsideration of the December 17, 2019
decision.
By decision dated March 26, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that
his reconsideration request was not received until February 19, 2021.
The Board has duly considered this matter and finds that OWCP improperly determined
that appellant’s request for reconsideration was untimely filed. 3 In the instant case, the case record
contains a request for reconsideration received by OWCP on November 2, 2020. As the
November 2, 2020 request for reconsideration was received within one year of OWCP’s
December 17, 2019 merit decision, 4 it was timely filed. 5 Therefore, OWCP should have applied
the standard applicable to timely reconsideration requests as set forth in 20 C.F.R. § 10.606(b)(3),
rather than the more stringent clear evidence of error standard for untimely reconsideration
2

In a July 13, 2020 decision, OWCP granted appellant a schedule award for five percent permanent impairment of
the right arm. It found that he had zero percent permanent impairment of the left arm.
3

Order Remanding Case, J.C., Docket No. 20-1360 (issued March 12, 2021); I.A., Docket No. 19-1910 (issued
September 29, 2020); Order Remanding Case, D.F., Docket No. 20-0267 (issued June 29, 2020); E.S., Docket
No. 17-0698 (issued July 14, 2017).
4

J.C., id.; R.T., Docket No. 20-0298 (issued August 6, 2020); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4(a) (February 2016).
5

J.C., id.; J.H., Docket No. 18-1367 (issued July 17, 2019); R.M., Docket No. 17-0473 (issued June 6, 2017); C.B.,
Docket No. 13-1732 (issued January 28, 2014).

2

requests set forth in 20 C.F.R. § 10.607(a). Because it erroneously reviewed the evidence
submitted in support of appellant’s reconsideration request under the incorrect standard, the Board
will remand the case for review of this evidence under the proper standard of review for timely
reconsideration requests. 6
Thus, the Board finds that this case must be remanded for proper adjudication and
application of the appropriate standard of review, to be followed by an appropriate decision.
Accordingly,
IT IS HEREBY ORDERED THAT the March 26, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 1, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6

J.C., id.; Order Remanding Case, L.N., Docket No. 19-0170 (issued August 21, 2019).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Parsons, KS, Employer
__________________________________________

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

Docket No. 07-1342
Issued: October 23, 2007

Case Submitted on the Record

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

JURISDICTION
On April 20, 2007 appellant filed a timely appeal of the January 19, 2007 decision of the
Office of Workers’ Compensation Programs which denied further merit review. Because more
than one year elapsed between the most recent merit decision of January 9, 2006 and the filing of
this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to
20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On April 11, 2000 appellant, then a 40-year-old carrier, filed an occupational disease
claim alleging that he developed bilateral carpal tunnel syndrome in the performance of duty. He
became aware of his condition on June 1, 1999. Appellant did not stop work but returned to a

limited-duty position.1 He retired on June 15, 2002. The Office accepted the claim for right
carpal tunnel syndrome.
Appellant came under the treatment of Dr. Gary Yarbrough, a Board-certified family
practitioner. In reports dated January 17, 2000 to February 5, 2001, the physician noted that
appellant was a letter carrier, who performed repetitive duties involving both arms and
experienced pain and paresthesias in his hands. An electromyogram (EMG) of February 9, 2000
revealed right median mononeuropathy of the wrist primarily involving the motor fibers, mild to
moderate in nature and consistent with right carpal tunnel syndrome. Dr. Yarbrough diagnosed
bilateral carpel tunnel syndrome and recommended wrist and forearm splints. In reports dated
February 2 and 19, 2001, Dr. Yarbrough noted a worsening of appellant’s carpal tunnel
syndrome and referred him to Dr. Paul Toma, an osteopath, for an endoscopic carpal tunnel
release which was performed on March 5, 2001. Appellant continued postoperative treatment
with Dr. Yarbrough. In reports dated April 6 to June 20, 2001, he stated that appellant’s
symptomology was slowly resolving with residual weakness and diminished functional capacity
in the right hand and forearm. He noted that an EMG dated April 27, 2001 revealed no
abnormalities.2
Dr. Yarbrough subsequently noted appellant’s continued complaints of pillar pain of the
right hand, osteoarthritis and fusiform in the right wrist. On March 15, 2002 he opined that
appellant had reached maximum medical improvement with respect to his bilateral carpal tunnel
syndrome and hip condition. Dr. Yarbrough opined that appellant was permanently disabled
from his position as a letter carrier.3
On June 26, 2002 appellant filed a claim for a schedule award. On March 25, 2003 the
Office referred appellant for a second opinion evaluation by Dr. Michael H. Munhall, a Boardcertified orthopedic surgeon. He was requested to rate any impairment in accordance with the
American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001) (A.M.A, Guides).4 In a report dated April 14, 2003, Dr. Munhall found that appellant
sustained one percent permanent impairment of the right arm and a five percent permanent
impairment of both the left and right lower extremity. In a report dated April 14, 2003, an Office
medical adviser concurred with Dr. Munhall’s impairment rating.

1

On September 22, 1999 appellant filed a Form CA-2, notice of occupational disease, which was accepted by the
Office for aggravation of traumatic arthritis of both hips, File No. 11-0174207. This claim was consolidated with
the current claim before the Board.
2

In the course of developing the claim regarding continuing residuals of his work-related condition, the Office
referred appellant to a second opinion physician and also to an impartial medical examiner.
3

Appellant was offered a position as a limited-duty city letter carrier effective March 4, 2002. On June 21, 2002
the Office advised that appellant returned to a modified position as a letter carrier on March 4, 2002 and has been
working successfully for 60 days. The Office determined that this position fairly and reasonably represented
appellant’s wage-earning capacity with no loss of wage-earning capacity.
4

A.M.A., Guides (5th ed. 2001).

2

In a decision dated June 5, 2003, the Office granted appellant schedule awards for a
10 percent permanent impairment to both lower extremities. The period of the award was from
May 6 to November 23, 2003. On August 18, 2003 the Office granted appellant a schedule
award for one percent permanent impairment of the right upper extremity. The period of the
award was from April 14 to May 5, 2003.
In a letter dated August 16, 2004, appellant requested reconsideration of the schedule
award for the right arm. He noted that he was not requesting reconsideration of the 10 percent
permanent impairment of the bilateral lower extremities. In a May 19, 2004 report, Dr. Bruce
Silverberg, a Board-certified orthopedic surgeon, opined that appellant was not at maximum
medical improvement with respect to the condition of bilateral carpal tunnel syndrome and
recommended an EMG. An EMG dated July 9, 2004 revealed right distal median motor axonal
neuropathy greater than a sensory axonal or demyelinating neuropathy consistent with a right
carpal tunnel syndrome with recent denervation changes persisting, borderline left distal median
sensory latency prolongation suggestive of carpal tunnel syndrome
Dr. Silverberg’s report and the case record were referred to an Office’s medical adviser.
In a September 8, 2004 report, he advised that the medical evidence was inadequate to determine
impairment. He noted that Dr. Silverberg determined that appellant had not obtained maximum
medical improvement.
By decision dated September 9, 2004, the Office denied modification of the August 18,
2003 decision.
On September 8, 2005 appellant requested reconsideration. He submitted a statement
from Joseph Lombardo, a carpenter, who employed appellant as a handyman from May 2003 to
April 2004. Mr. Lombardo advised that appellant had medical restrictions which prevented him
from working full time.
In a decision dated January 9, 2006, the Office denied modification of the September 9,
2004 decision.
In a letter dated January 5, 2007, appellant requested reconsideration. He summarized his
employment and his medical treatment for bilateral carpal tunnel syndrome. Appellant asserted
that the Office misinterpreted Dr. Silverberg’s medical report and Mr. Lombardo’s statement.
He contended that he had residuals of his accepted bilateral carpal tunnel syndrome and should
be compensated for his condition.
By decision dated January 19, 2007, the Office denied appellant’s reconsideration request
on the grounds that his letter neither raised substantive legal questions nor included new and
relevant evidence and was therefore insufficient to warrant review of the prior decision.

3

LEGAL PRECEDENT
Under section 8128(a) of the Act,5 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulations,6 which provides that a
claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, sets forth arguments and contain evidence that:
“(1) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(2) Advances a relevant legal argument not previously considered by the
[Office]; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
[the Office.]”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.7
ANALYSIS
Appellant’s January 5, 2007 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office.
Appellant did not submit any new medical evidence with his reconsideration request,
only a narrative statement which summarized his employment and his medical treatment for
bilateral carpal tunnel syndrome. He contended that the Office misinterpreted Dr. Silverberg’s
medical report and Mr. Lombardo’s statement and asserted that residuals of his accepted bilateral
carpal tunnel syndrome had not been adequately compensated. However, this is insufficient to
show that the Office erroneously applied or interpreted a specific point of law nor does it
advance a relevant legal argument not previously considered. The Board notes that the factual
aspects of appellant’s claim are not in dispute and were not the basis of the Office’s prior denial
of modification of the schedule award for the right upper extremity. Therefore, the Office
properly determined that this evidence did not constitute a basis for reopening the case for a
merit review. Appellant is not entitled to a review of the merits of his claim based on the first
and second above-noted requirements under section 10.606(b)(2).
Appellant did not submit any new evidence with his reconsideration request. The
Office’s January 9, 2006 merit decision denied modification of the August 18, 2003 decision
5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b).

7

Id. at § 10.608(b).

4

granting appellant a schedule award for one percent impairment of the right arm finding there
was no medical evidence supporting that appellant had a greater impairment. The underlying
issue in this case is medical in nature. As noted, appellant did not submit any new and relevant
medical evidence with his reconsideration request.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his January 5, 2007 request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 19, 2007 is affirmed.
Issued: October 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5