United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS, REGIONAL OFFICE, Deer Park, WA,
Employer
__________________________________________

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

Docket Nos. 14-1804 &
15-314
Issued: April 17, 2015

Case Submitted on the Record

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

JURISDICTION
On August 12, 2014 appellant, through counsel, filed a timely appeal of a June 23, 2014
nonmerit decision of the Office of Workers’ Compensation Programs’ (OWCP) decision denying
further merit review. The Board assigned Docket No. 14-1804 to this appeal. Because over 180
days elapsed between the most recent merit decision on that issue, which was on January 14,
2014, to the filing of this appeal, the Board lacks jurisdiction to review the merits of that issue,
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3. Appellant filed a second appeal on November 25,
2014 of an October 8, 2014 merit decision of OWCP, to which the Board assigned Docket No.
15-314. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of that decision.
ISSUES
The issues are:
(1) whether OWCP properly denied appellant’s request for
reconsideration on the merits pursuant to 5 U.S.C. § 8128(a) on June 23, 2014 in Docket
1

5 U.S.C. § 8101 et seq.

No. 14-1804; and (2) whether appellant has met her burden of proof to establish disability
beginning June 16, 2013 due to her January 20, 2013 employment injury in Docket No. 15-314.
FACTUAL HISTORY
On February 6, 2013 appellant, then a 39-year-old part-time field representative, filed a
traumatic injury claim alleging that she was injured in an employment-related motor vehicle
accident. The employing establishment stated that she worked a variable job averaging 3.87
hours a day for the 52 weeks prior to her employment injury. OWCP accepted appellant’s claim
for disturbance of skin sensation on the left, sprain of the pelvis, wrist sprain on the left, sprain of
the left hip and thigh, displacement of cervical intervertebral disc without myelopathy, sprain of
the chest wall muscle, and sprain of the lumbar back.
Dr. Edgar A. Figueroa, a Board-certified family practitioner, completed a report on
February 22, 2013 and found that appellant could return to work effective that date with
restrictions to four hours a day. Appellant returned to part-time light duty on February 24, 2013
working four hours a day.
Dr. Jonathan J. Wilson, an osteopath, completed a note dated March 7, 2013 and stated
that appellant could work four hours a day with restrictions from February 22 through
April 8, 2013. On April 8, 2013 he stated that she was experiencing increasing pain. Appellant
had returned to her census work but was also working in another nonfederal position as a
noxious weed inspector for the State of Washington. She reported difficulty driving and stated
that everything got much worse after a long car ride to the coast for vacation from March 28
through 30, 2013. Dr. Wilson completed a duty status report and indicated that appellant could
perform part-time light-duty work. He determined that her disability was unchanged on
April 23, 2013.
Appellant filed claims for compensation requesting wage-loss compensation from
March 7 through April 20, 2013. On her claim form, she indicated that she worked as a noxious
weed inspector on April 1 through 18, 2013. In a letter dated May 10, 2013, OWCP requested
additional medical information supporting appellant’s disability for her federal employment
during the periods claimed.
Dr. Wilson completed a report dated May 20, 2013 and noted that appellant worked hard
in her home garden over the weekend and drove to Sullivan Lake, a six-hour drive, which made
things worse. On May 28, 2013 he found that she could work three to four hours a day with
restrictions. Dr. Wilson completed a report on June 19, 2013 and noted that on May 20, 2013
appellant had become overwhelmed with telephone interviews and hurt her neck and arm.
Appellant stated that bouncing down dirt roads caused her pain and that driving was still scary to
her. She stated that she was having trouble with the activities of daily living. Appellant reported
that she had returned to full-time four-hour-a-day work at the employing establishment.
Appellant submitted a copy of her job description as a noxious weed inspector which
included driving her personal vehicle through inspection areas, stopping, noting weeds, and
making personal contact with property owners. She frequently aided the owners in removing
weeds with a shovel. Appellant was responsible for 500 property owners in her inspection area.

2

In April 2013 she worked 64 hours and in May 2013 she worked 91 hours. At this time
appellant’s pay rate was $12.50 an hour.
By decision dated June 20, 2013, OWCP denied appellant’s claim for intermittent periods
of compensation commencing March 7, 2013 and continuing. It stated that she submitted
evidence dated through May 29, 2013, but found that she had not submitted the necessary
medical opinion evidence to establish that she was totally disabled from employment for the
periods in question. Appellant, through counsel, requested an oral hearing before an OWCP
hearing representative on July 11, 2013.
OWCP referred appellant for a second opinion evaluation on May 14, 2013 with
Dr. James Schwartz, a Board-certified orthopedic surgeon. In his June 24, 2013 report, which
was received subsequent to the June 20, 2013 OWCP decision, Dr. Schwartz noted appellant’s
history of injury and reported her symptoms of leg and back pain. He diagnosed cervical and
lumbar strain related to the January 20, 2013 employment injury. Dr. Schwartz found that
appellant had no residuals of her employment injury in that her physical examination was
strikingly normal. He opined that she had no restrictions for her job duties and could work an
eight-hour day. Dr. Schwartz stated that with extended driving appellant might need to stop
every hour to get out and move around. He stated that her complaints were areas of tenderness
which was consistent with cervical and lumbosacral strain injuries.
Dr. Wilson examined appellant on June 26, 2013 and continued to find that she could
work four hours a day or full time at the employing establishment. He also completed a duty
status report of the same date with the same findings.
Dr. T. Daniel Dibble, a Board-certified anesthesiologist, examined appellant on July 9,
2013 and noted that she received epidurals on May 7 and 28, 2013. He noted that she performed
physical labor for an hour, stretched, worked for four hours, and sat for four hours.
Appellant filed additional claims for compensation dated May 4 and 27, and June 1, 2013
requesting wage-loss compensation from April 21 through June 1, 2013. She indicated that she
worked as a field inspector on April 23, 24, 29, and 30, 2013. Appellant also worked as a field
inspector on May 5, 2013 and from May 7 through 15 and 18, 2013, as well as from May 20
through 25, and May 28 through 31, 2013.
In a decision dated July 15, 2013, OWCP again denied appellant’s claim for intermittent
wage-loss compensation beginning March 7, 2013.2 It stated that the medical evidence dated
through July 5, 2013 did not support her disability for work. Appellant, through counsel,
requested an oral hearing on July 19, 2013.
Dr. Wilson completed a report on July 29, 2013 and again noted that appellant was
working four hours a day. Appellant worked hard in her home garden over the weekend and
took a six-hour drive which increased her pain. Dr. Wilson stated that she was stable, but in pain
with her current work regimen. He provided a duty status report and indicated that appellant was
2

OWCP did not further reference the specific period of disability denied and did not mention the June 20, 2013
decision.

3

unchanged and working four hours a day.
September 13 and October 29, 2013.

Dr. Wilson provided similar reports dated

Appellant testified at the oral hearing on December 2, 2013 regarding both, the June 20
and July 15, 2014, decisions issued by OWCP, stating that it was impossible for her to work only
four hours a day and complete both of her jobs. In a report dated December 2, 2013, Dr. Wilson
found her incapable of driving or using a computer. He also reported that appellant could not
focus on work during periods of increased pain which made driving unsafe.
Appellant filed additional claims for compensation beginning November 13, 2013
claiming periods of total disability commencing June 16 through November 16, 2013. She
provided the dates that she worked as a noxious weed inspector. The employing establishment
noted on these forms that appellant had requested a lower case load. In a letter dated
December 16, 2013, OWCP requested that she supply additional medical evidence explaining
how her claimed disability was caused or aggravated by her employment injuries.
By decision dated January 14, 2014, an OWCP hearing representative noted both OWCP
decisions, June 20 and July 15, 2013, and found that appellant had not established that she was
totally disabled commencing March 7, 2013. The decision found that the medical evidence did
not support appellant’s disability for work due to her accepted employment-related condition
commencing March 7, 2013. The hearing representative affirmed OWCP’s June 20, 2013 and
July 15, 2013 decisions.
In a decision dated January 21, 2014, OWCP denied appellant’s claims for compensation
on or after June 16, 2013. It found that Dr. Wilson had provided work restrictions based on
subjective complaints, but failed to provide contemporaneous medical evidence to support
temporary total disability. Counsel requested an oral hearing on January 24, 2014.
In a report dated February 24, 2014, Dr. Wilson reported that appellant made subjective
complaints on October 8 and 29, 2013 including pains and muscle spasms. Appellant requested
two to three months to recuperate. On February 24, 2014 she informed Dr. Wilson that she had
quit her position at the employing establishment and had not worked since early October 2013.
Appellant, through counsel, requested reconsideration on April 17, 2014 of the
January 14, 2014 decision of the hearing representative and submitted an additional report from
Dr. Wilson dated March 24, 2014. Dr. Wilson reviewed her history of injury and the conditions
for which he provided treatment. He reported that in late April 2013 and early May 2013
appellant attempted to return to work on a part-time basis for four hours a day, which escalated
her pain level and paresthesia. In a note dated February 24, 2014, Dr. Wilson reported that on
February 22, 2013 she did not return to work as she tried to go hiking and experienced left side
pain. Appellant also drove for one hour and experienced tingling down her left leg and arm as
well as low back and cervical pain.
By decision dated June 23, 2014, OWCP declined to reopen appellant’s claim for
consideration of the merits finding that the evidence submitted in support of her April 17, 2014
request for reconsideration of the January 14, 2014 decision of the hearing representative was not
relevant as it did not address her disability for work on or after March 7, 2013.

4

Dr. Wilson completed a report on July 2, 2014 and noted that appellant was still working
for the noxious weed board and having continued issues with her neck and left arm.
Appellant testified at the oral hearing on August 8, 2014 regarding the January 21, 2014
OWCP decision. She stated that she was employed four and a half months out of the year with
the local noxious weed board. Appellant stated that she was no longer working at the employing
establishment. She stopped working in October 2013 because of difficulty using her computer
and driving so that she could not perform her normal field representative duties. Appellant
described her preinjury employment as working for the employing establishment for 14 days a
month eight hours a day and then worked an additional eight hours on those days for the noxious
weed board. After she completed the employing establishment assignment, she worked the
remaining days of the month as a noxious weed inspector for eight hours a day. Following her
injury and in keeping with Dr. Wilson’s restrictions, appellant earned only half her wages from
both employers. She stated that the employing establishment gave her only 10 cases rather than
the 25 she received before her accident. Appellant testified that she worked four hours a day
almost every day so that she could get her work done for both employing establishment’s, but
she never worked more than four hours a day for either employing establishment.
The employing establishment responded on September 11, 2014, stating that appellant
was a permanent employee working intermittent hours. Appellant had no guarantee of hours as a
field representative. The employing establishment stated that the lost time was calculated by
calculating her average hours during the 52 weeks prior to the injury.
By decision dated October 8, 2014, the hearing representative found that appellant had
not submitted the necessary medical evidence addressing the claimed periods of disability to
establish entitlement to wage-loss compensation on and after June 16, 2013 and affirmed
OWCP’s January 21, 2014 decision.
LEGAL PRECEDENT -- ISSUE 1
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.3
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.4 Section
10.608 of OWCP’s regulations provide that when a request for reconsideration is timely, but
does not meet at least one of these three requirements, OWCP will deny the application for
review without reopening the case for a review on the merits.5

3

5 U.S.C. §§ 8101-8193, 8128(a).

4

20 C.F.R. § 10.606.

5

Id. at § 10.608.

5

ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for disturbance of skin sensation on the left, sprain of
the pelvis, wrist sprain on the left, sprain of the left hip and thigh, displacement of cervical
intervertebral disc without myelopathy, and sprain of the chest wall muscle and sprain of the
lumbar back. Appellant requested wage-loss compensation. OWCP denied her claim for
compensation beginning on March 7, 2013 on the grounds that she had not submitted the
necessary medical opinion evidence to establish disability due to her accepted employment
injuries. She requested reconsideration and submitted additional evidence. OWCP found that
the submitted evidence was not new, relevant, and pertinent to the issue for which appellant’s
claim was denied, whether she had submitted sufficient medical opinion evidence to establish a
causal relationship between her periods of disability claimed and her accepted employment
injuries. It declined to reopen her claim for consideration of the merits on June 23, 2014.
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a point of law. Appellant has also not advanced a relevant legal argument not
previously considered.
In order to present pertinent, new, and relevant evidence in support of her claim,
appellant must submit medical opinion evidence attributing her disability for work on or after
March 7, 2013 to her accepted employment injuries. The Board finds that she failed to submit
such pertinent, new, and relevant evidence. Appellant submitted two reports from Dr. Wilson
which OWCP had not previously considered dated February 24 and March 24, 2014. In the note
dated February 24, 2014, Dr. Wilson stated that she did not return to work the week of
February 22, 2013 as she tried to go hiking and experienced left side pain. Appellant also drove
for one hour on February 21, 2013 and experienced tingling down her left leg and arm as well as
low back and cervical pain. This note also repeats Dr. Wilson’s earlier assessments that she felt
that she was unable to work without providing medical opinion evidence that she was in fact
disabled due to her accepted employment injuries. On March 24, 2014 Dr. Wilson completed a
report stating that in late April and early May 2013 appellant attempted to return to work on a
part-time basis for four hours a day, which escalated her pain level and paresthesia. This report
does not address a specific period of disability or provide a medical opinion as to the causal
relationship between appellant’s diagnosed disability and her employment activities. The report
is merely repetitious of other statements by Dr. Wilson that appellant felt that she reported
subjective complaints of pain which precluded her from performing her federal duties. As the
Board has held, evidence which is duplicative and repetitious of evidence already in the case
record is of no evidentiary value and does not constitute a basis for reopening a case.6
The Board finds that as appellant has not met any of the criteria, OWCP properly refused
to reopen her claim for consideration of the merits.

6

See Eugene F. Butler, 36 ECAB 393, 398 (1984).

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LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA7 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.8 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.9
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.10 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.11 The Board will not require OWCP to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.12
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.13 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.14 Neither the fact that
a disease or condition manifests itself during a period of employment nor the belief that the

7

5 U.S.C. §§ 8101-8193.

8

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

9

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity.)
10

See Fereidoon Kharabi, 52 ECAB 291 (2001).

11

Id.

12

Id.

13

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14

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

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disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.15
ANALYSIS -- ISSUE 2
OWCP accepted appellant’s claim for disturbance of skin sensation on the left, sprain of
the pelvis, wrist sprain on the left, sprain of the left hip and thigh, displacement of cervical
intervertebral disc without myelopathy, and sprain of the chest wall muscle and sprain of the
lumbar back. The employing establishment indicated that she worked an average of 3.87 hours a
day for the 52 weeks prior to her employment injury. Appellant requested wage-loss
compensation beginning on June 16, 2013 and OWCP denied her claim for compensation
because she had not submitted the necessary medical opinion evidence to establish disability due
to her accepted employment injuries.
In his June 24, 2013 report, Dr. Schwartz, the second opinion physician, discussed
appellant’s history of injury. He diagnosed cervical and lumbar strain related to the January 20,
2013 employment injury. Dr. Schwartz found that appellant had no residuals of her employment
injury in that her physical examination was strikingly normal. He opined that she had no
restrictions for her job duties and could work an eight-hour day. This report does not support
appellant’s claim for disability on or after June 16, 2013. Dr. Schwartz determined that appellant
could work eight hours a day with no restrictions.
Appellant submitted a series of reports from Dr. Wilson indicating that she could work
four hours a day. On June 19, 2013 Dr. Wilson completed a duty status report and indicated that
she could work four hours a day. He reported that appellant normally worked four hours a day at
the employing establishment. Dr. Wilson never opined that she was totally disabled due to her
accepted employment injury. There is no medical evidence in the record supporting appellant’s
claim that she was unable to work for the four hours a day in her part-time employment. The
Board finds that she has not submitted the necessary medical opinion evidence to establish that
she was totally disabled from her date-of-injury position.
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
As appellant’s request for reconsideration did not comply with the requirements of
section 8128(a) of FECA and section 10.606(b) of OWCP’s regulations, the Board finds that
OWCP properly declined to reopen her claim for consideration of the merits on June 23, 2014 in
Docket No. 14-1804. The Board further finds that there is no medical evidence in Docket No.
15-314 supporting appellant’s claim that she was disabled beginning June 16, 2013, causally
related to her January 20, 2013 employment injury.

15

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

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ORDER
IT IS HEREBY ORDERED THAT the June 23, 2014 decision of the Office of
Workers’ Compensation Programs in Docket No. 14-1804 is affirmed and that the October 8,
2014 decision of the Office of Workers’ Compensation Programs in Docket No. 15-314 is also
affirmed.
Issued: April 17, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, GREENSBORO
PERFORMANCE CLUSTER, Greensboro, NC,
Employer
__________________________________________

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

Docket No. 12-305
Issued: November 14, 2012

Case Submitted on the Record

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

JURISDICTION
On November 28, 2011 appellant, through her attorney, filed a timely appeal from the
June 24, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her recurrence of disability claim. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of total disability on or after September 23, 2010 due to her May 7, 2004 work injury.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on May 7, 2004 appellant, then a 32-year-old letter carrier,
sustained tendinitis of her left foot and ankle due to stepping out of a postal vehicle. Appellant
began working in a light-duty position with restrictions on various activities, including the
amount of time spent walking and standing. OWCP paid her compensation for periods of
disability.
In an August 3, 2004 report, Dr. Hyatt M. Todd, an attending podiatrist, noted that
appellant reported that the resolution of her left plantar fasciitis was doing well. He stated,
“There is no pain on palpation of the medial calcaneal tubercle, left, just minimal pain on
palpation to the lateral aspect of the left foot. However, the right foot is experiencing some
symptomatology associated with the abnormal use of the orthotics.”
In a November 14, 2004 report, Dr. Todd noted that x-ray testing of appellant’s left foot
did not show any osseous abnormality. He diagnosed tendinitis of the left perineal tendon and
recommended work restrictions, including limits on walking and standing.
From September through November 2004, appellant received treatment from Burlington
Orthopedic and Hand Surgery, but no diagnosis or details of any treatment were provided. On
February 27, 2006 Dr. Todd diagnosed plantar fasciitis of the right foot and recommended work
restrictions.
In a September 23, 2010 letter, the employing establishment advised appellant that her
position had been evaluated under the National Reassessment Process (NRP). The employing
establishment informed her that, effective September 23, 2010, it could no longer provide work
within her medical restrictions.
Appellant stopped work on September 23, 2010 and filed a claim alleging that she
sustained a recurrence of total disability on September 23, 2010 due to her May 7, 2004 work
injury. She requested that she be reimbursed for medical care necessitated by the tendinitis,
plantar fasciitis and arthritis of her left foot. Appellant stated that “restrictions have been kept
over the years as it comes back when I stand or work for long periods of time on hard surfaces.
Also, back pain adds to discomfort.”
In an October 27, 2010 letter, OWCP noted that it had received appellant’s claim for a
recurrence of disability on September 23, 2010 due to her May 7, 2004 work injury.2 It advised
that she had the burden of proof to establish her claimed recurrence of disability and indicated
that the evidence of record was insufficient to establish that her current medical conditions and
total disability were causally related to the May 7, 2004 work injury. OWCP requested that
appellant submit additional factual and medical evidence within 30 days of the date of the letter,
including medical evidence containing a firm diagnosis, description of clinical course followed,
findings of diagnostic testing and opinion on causal relationship between the accepted work
injury and the claimed disability. Appellant did not submit any evidence within the period
allotted by OWCP.
2

OWCP stated, “You are asking to have your claim reopened as a result of the NRP program.”

2

In a December 2, 2010 decision, OWCP denied appellant’s claim on the grounds that she
did not submit sufficient medical evidence to establish that she sustained a recurrence of total
disability on or after September 23, 2010 due to her May 7, 2004 work injury.
Appellant disagreed with this decision and requested a telephonic hearing with an OWCP
hearing representative. During the April 12, 2011 hearing, appellant’s counsel argued that
OWCP erred by requesting that appellant submit additional medical evidence in support of her
claim as she had already established that she sustained a recurrence of total disability.
In a June 24, 2011 decision, an OWCP hearing representative affirmed OWCP’s
December 2, 2010 decision noting that appellant had the burden of proof to submit medical
evidence establishing her claimed recurrence of total disability. She indicated that OWCP
properly followed its procedure by requesting that appellant submit supporting medical evidence
but indicated that she failed to submit such evidence.
LEGAL PRECEDENT
A recurrence of disability includes an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn -- except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force (RIF).3 Absent a
formal wage-earning capacity determination and assuming the position was not withdrawn for
cause or because of a RIF, the employee would be entitled to compensation based upon a
showing of continuing injury-related disability for regular duty.4
In addition to the generally applicable provisions in the preceding paragraph, OWCP has
issued specific guidance for employees affected by NRP of the postal service. FECA Bulletin
No. 09-05 outlines procedures for light-duty positions withdrawn pursuant to NRP. Regarding
claims for total disability when a wage-earning capacity decision has not been issued, FECA
Bulletin No. 09-05 provides that if the claimant has been on light duty due to an injury-related
condition without a loss of wage-earning capacity (LWEC) rating (or if the LWEC rating has
been set aside), payment for total wage loss should be made based on the Form CA-7 as long as
the following described criteria are met. First, the current medical evidence within the file
establishes that injury-related residual conditions continue. There must be sufficient medical
evidence in the record within the last six months to make this determination. In addition, the
evidence in the file must support that light duty is no longer available. There must be no
indication that a retroactive LWEC determination should be made. Where a retroactive LWEC
is considered, an OWCP district Director must approve any such decision. In the event OWCP’s
claims examiner finds that the evidence in file is not sufficient to determine whether total wageloss benefits should continue, current medical evidence should be requested from the claimant
and the employer.5
3

20 C.F.R. § 10.5(x).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.7(a)(4) (October 2009).

5

FECA Bulletin No. 09-05 (issued August 18, 2009).

3

ANALYSIS
OWCP accepted that appellant sustained tendinitis of her left foot and ankle on May 7,
2004 and she began working in a light-duty position with restrictions on various activities. The
employing establishment advised appellant that her position had been evaluated under NRP.
Effective September 23, 2010, it could no longer provide work within her medical restrictions.
Appellant stopped work on September 23, 2010 and filed a claim alleging that she sustained a
recurrence of total disability due to her May 7, 2004 work injury.
Generally, a withdrawal of limited-duty constitutes a recurrence of disability under
OWCP regulations. In the instant case, there is no LWEC in place. According to the guidelines
outlined in FECA Bulletin No. 09-05, OWCP must consider whether the current medical
evidence establishes that the injury-related residuals continue (within the last six months); that
evidence in the file supports a certain number of hours of light duty are no longer available; and
that there is no indication that a retroactive LWEC should be made. If such medical evidence
does not exist or is insufficient, it should request current medical evidence from both the postal
service and claimant.6
OWCP’s December 2, 2010 and June 24, 2011 decisions denying appellant’s claim for a
recurrence of total disability beginning September 23, 2010 did not address FECA Bulletin No.
09-05 or fully follow its guidance. As such, the Board will set aside OWCP’s June 24, 2011
decision and the case will be remanded for a proper decision in accordance with the procedures
and guidance offered in FECA Bulletin No. 09-05. After such development OWCP finds
necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds that OWCP failed to follow the procedures it has adopted for
adjudicating claims under NRP and that the decision dated June 24, 2011 must be set aside and
the case remanded.

6

See T.C., Docket No. 11-1880 (issued September 25, 2012).

4

ORDER
IT IS HEREBY ORDERED THAT the June 24, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for adjudication in
accordance with this decision of the Board.
Issued: November 14, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
New York, NY, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1746
Issued: April 17, 2007

Case Submitted on the Record

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

JURISDICTION
On July 25, 2006 appellant filed a timely appeal of decisions of the Office of Workers’
Compensation Programs dated January 27, 2005 and March 1, 2006, denying her claim for an
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether appellant has established an emotional condition causally related to
compensable work factors.
FACTUAL HISTORY
On October 4, 2004 appellant, then a 50-year-old occupational health nurse, filed a claim
for an emotional condition alleging that she developed severe heart palpitations and abdominal
pain due to a heavy workload. She alleged that her workload increased in August 2002 when

another nurse, Sarah Curry, retired and she had to perform the work of two nurses.1
Additionally, the number of claimants had increased. Appellant sometimes worked more than
eight hours a day in order to complete her work and sometimes ate lunch at her desk. She
supervised 70 nurses. When appellant returned from a vacation, her workload greatly increased
because there was no one to perform her duties while she was gone. The employing
establishment did not provide full-time clerical assistance as it had promised her. Appellant
reviewed 50 to 450 reports daily from field nurses and entered data into the computer from these
reports. During the first week of June 2004 her supervisor, Zev Sapir, instructed her to review
71 cases for accuracy and coding which required five days and caused a delay in appellant
completing other work. When a new computer system was installed, appellant had to spend
more time processing reports and bills from field nurses.
Appellant alleged that there were several stressful cases for which she had difficulty
obtaining authorization for medical treatment and payment for medications for injured workers.
She had difficulty getting a seriously ill patient, Shirley Johnson, admitted to a hospital because
of outstanding hospital bills and there were other problems obtaining authorization for treatment.
Ms. Johnson was eventually admitted to a hospital. Appellant had difficulty getting a pharmacy
to provide medication for Eddie Bauer prior to written authorization from the employing
establishment. Appellant had difficulty getting an unnamed critically ill patient airlifted to a
hospital. During the process, the claimant’s wife cried and expressed concern that her husband
would die. In another incident, a claimant’s supervisor refused to authorize epidural injections
and the claimant telephoned appellant and was crying. These difficult and stressful cases made
her depressed and sad because the claimants were not receiving treatment in a timely manner and
sometimes developed serious medical complications as a result. Appellant felt that the
procedures at the employing establishment for authorizing medical treatment hindered her in
assisting claimants.
Appellant alleged problems with her supervisor, Mr. Sapir. She alleged that he spoke to
her in a condescending manner. On April 15, 2004 he requested a copy of a case status query
report and stated: “I want it today.” For several weeks in June 2004, he asked appellant on a
weekly basis “How are the numbers?” and she always replied “Fine.” In an August 23, 2004
letter, Mr. Sapir criticized her for failing to call in and directed her to call him every other day
while she was on sick leave. By letter dated February 24, 2005, he advised appellant that she
would be allowed to return to part-time work for only one month and would then perform fulltime work. She was advised that she had been in absent without leave (AWOL) status since
December 13, 2004 and continuing in this status could result in disciplinary action up to and
including removal from her position.
In a November 5, 2004 statement, Mr. Sapir stated that appellant was the staff nurse for
the New York District Office and was responsible for the nurse intervention program. Since the
inception of the nurse intervention program, there had been only one staff nurse who
administered the program without any clerical assistance. Appellant was hired to replace
Ms. Curry, who was retiring and with the understanding that she would be the only staff nurse
when Ms. Curry retired. When appellant complained of too much work, an assistant was
1

Appellant began working at the employing establishment in May 2002.

2

assigned in August 2003 to help with clerical duties. The employing establishment also provided
a summer intern in 2003 to assist her clerical tasks. Although appellant complained about her
workload, she never told Mr. Sapir the specific tasks or duties that she was not able to perform.
She did not fall behind in her work. Mr. Sapir stated that the workload for the staff nurse had
remained steady over the past several years. He stated that, when appellant was on vacation, an
assistant provided essential clerical services so that appellant would not return to an
unmanageable workload. Mr. Sapir denied that he had been condescending to appellant.
In reports dated September 2 and November 14, 2004, Dr. Charles E. McDermott, an
attending psychiatrist, indicated that appellant had depression and anxiety caused by having to
perform the work of two nurses by herself.
By decision dated January 27, 2005, the Office denied appellant’s claim on the grounds
that the evidence did not establish that her emotional condition was causally related to a
compensable work factor.
Appellant requested an oral hearing that was held on December 12, 2005.
In a report dated February 5, 2005, Dr. McDermott diagnosed an adjustment reaction
with physical symptoms and agoraphobia with panic. He indicated that these conditions were
caused by a doubled workload and feelings of unpredictable and unappreciative responses from
supervisors. In a December 11, 2005 report, Dr. McDermott stated that appellant had been
overwhelmed at work because she was performing the work of two nurse supervisors after
Ms. Curry left. Appellant was hospitalized several times in 2004 and 2005 for stress-related
gastrointestinal problems and chest pain and palpitations.
By letter dated October 31, 2005, Mr. Sapir stated that appellant supervised 50 field
nurses, not 70. Regarding appellant’s claim that she worked more than eight hours a day, her
timesheets revealed that she averaged a little over one hour of credit time each two-week pay
period for pay periods 1 to 13 in 2004. She also used credit time during that period and her
credit balance never exceeded 10 hours. Mr. Sapir never discouraged appellant from taking her
lunch break and other breaks. Appellant received between 10 and 30 reports a day, not 50 to
450. Regarding her problems in obtaining authorization for medical care for claimants, she did
not provide sufficient details for Mr. Sapir to verify the extent of her work on those cases.
By decision dated March 1, 2006, an Office hearing representative affirmed the
January 27, 2005 decision.
LEGAL PRECEDENT
To establish a claim that she sustained an emotional condition in the performance of duty,
a claimant must submit the following: (1) medical evidence establishing that she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or

3

incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with employment but nevertheless does not come within the concept
or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned employment duties or to a requirement
imposed by the employing establishment, the disability comes within coverage of the Federal
Employees’ Compensation Act.3 On the other hand, the disability is not covered where it results
from such factors as an employee’s fear of reduction-in-force or frustration from not being
permitted to work in a particular environment or to hold a particular position.4
Administrative and personnel matters, although generally related to the employees’
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.5 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment, in what would otherwise be an administrative matter, coverage will be afforded.6
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
compensable factors of employment and may not be considered.8 If a claimant does implicate a
factor of employment, the Office should then consider whether the evidence of record
substantiates that factor. As a rule, allegations alone by a claimant are insufficient to establish a
factual basis for an emotional condition claim; the claim must be supported by probative
evidence.9 Where the matter asserted is a compensable factor of employment and the evidence
2

Pamela D. Casey, 57 ECAB ___ (Docket No. 05-1768, issued December 13, 2005); George C. Clark, 56 ECAB
___ (Docket No. 04-1573, issued November 30, 2004).
3

5 U.S.C. §§ 8101-8193; see Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

4

Gregorio E. Conde, 52 ECAB 410 (2001).

5

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

6

See William H. Fortner, 49 ECAB 324 (1998).

7

Ruth S. Johnson, 46 ECAB 237 (1994).

8

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

9

See Charles E. McAndrews, 55 ECAB 711 (2004).

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of record established the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.10
ANALYSIS
Appellant alleged that she began performing the work of two nurses in August 2002
when Ms. Curry retired. Additionally, the number of claimants increased. Appellant sometimes
worked more than eight hours a day in order to complete her work and sometimes ate lunch at
her desk. She supervised 70 nurses. When appellant returned from a vacation, her workload
doubled or tripled because there was no one to perform her duties in her absence. The
employing establishment did not provide full-time clerical assistance as it had promised.
Appellant reviewed 50 to 450 reports daily from field nurses. During the first week of June 2004
Mr. Sapir instructed her to review 71 cases for accuracy and coding, which required five days
and caused a delay in appellant completing other work. When a new computer system was
installed, she had to spend additional time processing documents.
Appellant’s description of her work duties and workload was contested by the employing
establishment. Mr. Sapir stated that appellant was the staff nurse for the New York District
Office and was responsible for the nurse intervention program. Since the inception of the nurse
intervention program, there had been only one staff nurse who administered the program without
any clerical assistance. Appellant was hired to replace Ms. Curry who was retiring and with the
understanding that she would then be the only staff nurse. There were two nurses only while
Ms. Curry was training appellant to take over her job. When appellant complained of too much
work, an assistant was assigned to help with clerical duties. Although appellant complained
about her workload, she never told Mr. Sapir the specific tasks or duties that she was not able to
perform. She did not fall behind in her work. Mr. Sapir stated that the workload for appellant’s
position had remained steady. He stated that when appellant was on vacation, an assistant
performed clerical duties so that appellant would not return to an unmanageable workload.
Mr. Sapir stated that appellant supervised 50 field nurses, not 70. Appellant received between
10 and 30 reports a day, not 50 to 450. Regarding her claim that she worked more than eight
hours a day, her timesheets did not support this allegation. Mr. Sapir never discouraged
appellant from taking her breaks. The Board finds that there is insufficient evidence to establish
appellant’s allegations regarding her workload as factual. The employing establishment disputed
these allegations and appellant did not provide corroborating evidence to support them.
Consequently, these allegations are not accepted as factual and therefore are not deemed
compensable factors of employment.
Regarding Mr. Sapir’s actions, appellant alleged that he treated her unfairly in
supervising her job performance and spoke to her in a condescending manner. Mr. Sapir denied
this allegation. She alleged that on April 15, 2004 Mr. Sapir requested a copy of a case status
query report and stated: “I want it today.” For several weeks in June 2004 he asked appellant on
a weekly basis “How are the numbers?” and she always replied “Fine.” In an August 23, 2004
letter, Mr. Sapir criticized her and directed her to call him every other day while she was on sick
leave. On February 24, 2005 he advised appellant that she would be allowed to return to part10

Jeral R. Gray, 57 ECAB ___ (Docket No. 05-1851, issued June 8, 2006).

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time work for only one month and would then perform full-time work. Mr. Sapir advised her
that she should avoid being in AWOL status which could result in disciplinary action. These
actions by Mr. Sapir in supervising appellant are administrative matters which generally do not
fall within coverage of the Act.11 An administrative or personnel matter will be considered to be
an employment factor only where the evidence discloses error or abuse on the part of the
employing establishment. The Board finds that appellant has provided insufficient evidence that
the Mr. Sapir erred or acted abusively in handling these administrative matters. Therefore, these
allegations are not deemed compensable employment factors.
Appellant alleged that there were several cases for which she had difficulty obtaining
authorization for medical treatment and payment for medications for injured workers. She had
difficulty getting a seriously ill claimant, Ms. Johnson, admitted to a hospital because of
outstanding hospital bills and encountered other problems obtaining authorization for her
treatment. Ms. Johnson was eventually admitted to a hospital. Appellant had difficulty getting a
pharmacy to provide medication for Mr. Bauer prior to written authorization from the employing
establishment. She had difficulty getting an unnamed critically ill claimant airlifted to a hospital.
During the process, the claimant’s wife cried and expressed concern that her husband would die.
In another incident, a claimant’s supervisor refused to authorize epidural injections and the
claimant telephoned appellant and was crying. These difficult cases made appellant depressed
and sad because the claimants were not receiving treatment in a timely manner and sometimes
developed serious medical complications as a result. She felt that the procedures at the
employing establishment for authorizing medical treatment hindered her in assisting claimants.
As noted, where the disability results from an employee’s emotional reaction to her regular or
specially assigned employment duties or to a requirement imposed by the employing
establishment, the disability comes within coverage of the Act. Appellant alleged that she was
attempting to perform her job duties in these cases and had an emotional reaction to the
difficulties and delays in obtaining medical treatment and medicine for these claimants due to
employing establishment procedures.
The Board finds that appellant’s allegations regarding her emotional reaction to cases
where the employing establishment did not timely authorize medical treatment for claimants,
such as the cases of Ms. Johnson and Mr. Bauer, could constitute compensable factors of
employment if supported by the medical evidence. While appellant provided some specific
information, such as the names of Ms. Johnson and Mr. Bauer, additional information is
necessary for the Office to determine the nature of these incidents and whether the events in
these stressful cases concerned her regular or specially assigned duties. On remand, the Office
should further develop the factual evidence regarding these cases. If the Office determines that
the allegations concerning the stressful cases constitute compensable employment factors, the
Office should evaluate the medical evidence to determine whether appellant’s emotional
condition was caused or aggravated by these factors.

11

Michael L. Malone, 46 ECAB 957 (1995).

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CONCLUSION
The Board finds that this case is not in posture for a decision. On remand, the Office
should further develop the factual and medical evidence concerning the stressful cases identified
by appellant as contributing to her emotional condition. After such further development as the
Office deems necessary, it should issue an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 1, 2006 and January 27, 2005 are set aside and the case is
remanded for further action in conformance with this order of the Board.
Issued: April 17, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shreveport, LA, Employer
__________________________________________

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Appearances:
William Hackney, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1850
Issued: December 17, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 8, 2015 appellant, through his representative, filed a timely appeal from an
August 28, 2015 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 has met his burden of proof to establish an employmentrelated disability from June 30, 2011 to February 18, 2012.
FACTUAL HISTORY
On October 29, 2010 appellant, then a 52-year-old carrier technician, filed an
occupational disease claim (Form CA-2) alleging that carrying mail during his federal
employment contributed to back and hip conditions. In a November 3, 2010 statement, he
1

5 U.S.C. § 8101 et seq.

indicated that he had worked at the employing establishment since 1983, with 16 years of
carrying mail on a walking route, and an additional 11 years on a vehicle route. The reverse side
of the claim form indicated that appellant had not stopped working.
Appellant submitted an October 26, 2010 report from Dr. Austin Gleason, a Boardcertified orthopedic surgeon. Dr. Gleason indicated that appellant had radiating back pain and
was not able to return to his regular job. He reported that a return to light duty was discussed as
appellant was not able to stand and case mail for more than 45 minutes.
OWCP denied the claim by decision dated December 15, 2010, finding that the medical
evidence was insufficient to establish the claim. Appellant requested a hearing before an OWCP
hearing representative, which was held on April 15, 2011. At the hearing, appellant asserted
that, in late October or early November, 2010, he had begun working five to five and a half hours
per day.
By decision dated June 23, 2011, an OWCP hearing representative remanded the case for
further development. The hearing representative found that the medical evidence was sufficient
to warrant further development.
In a July 25, 2011 report, Dr. Gleason indicated that appellant continued to have
lumbosacral pain.
He noted that a magnetic resonance imaging (MRI) scan from
November 2010 showed spondylolisthesis and lumbar degenerative disc disease. Dr. Gleason
reported that appellant had to carry mail for 28 years and there seemed to be some progressive
increase in pain and loss of back motion that was aggravated by walking and carrying mail. He
reported that appellant can “continue to work on a light[-]duty basis.” According to Dr. Gleason,
appellant could continue to case his route, load parcels up to 25 pounds, and drive a vehicle.
Following the remand by the hearing representative, OWCP referred appellant for a
second opinion examination by Dr. Robert Holladay, a Board-certified orthopedic surgeon. In a
report dated August 22, 2011, Dr. Holladay provided a history and results on examination. He
diagnosed low back pain, bilateral hip osteoarthritis, and early bilateral knee osteoarthritis.
Dr. Holladay opined that it appeared that genetic, nonwork-related factors were the more
prevalent causation of current findings.
By decision dated September 8, 2011, OWCP denied the claim for compensation, finding
the medical evidence insufficient to establish the claim. Following appellant’s request for a
telephonic hearing an OWCP hearing representative set aside the September 8, 2011 decision on
December 1, 2011. The hearing representative found that the statement of accepted facts
(SOAF) should provide a more detailed description of appellant’s regular job duties, and
Dr. Holladay should be asked to provide clarification regarding his opinion.
On remand, OWCP provided Dr. Holladay with an amended SOAF and a list of
questions. Dr. Holladay submitted a February 15, 2012 report based on a February 13, 2012
examination. He opined that appellant had a temporary aggravation of his degenerative back and
hip conditions. Dr. Holladay noted that appellant’s work had been modified.
On March 8, 2012 OWCP accepted the claim for aggravation of bilateral leg
osteoarthritis, aggravation of pelvic and thigh region osteoarthritis, and spondylolisthesis.
2

On July 9, 2012 appellant submitted a (Form CA-7) claim for compensation for the
period June 30, 2011 to February 18, 2012. The time analysis forms for the period show that he
worked 4.79 hours on June 30, 2011, and 2.58 hours on July 1, 2011. From July 26 to
August 19, 2011, appellant did not work. On August 29, 2011 he worked approximately five
hours, and he continued to work generally from four to six hours through February 18, 2012 with
intermittent periods of total disability (September 20 and 21 and September 28 to
October 1, 2011). The record indicates that appellant stopped working on April 12, 2012 and has
received compensation for total disability since that date.
In support of his claim appellant submitted a form report dated September 6, 2012 from
Dr. Gleason. Dr. Gleason diagnosed “back, both hips injury” and wrote that appellant was
unable to work more than five hours from June 30, 2011 to February 18, 2012.
By decision dated September 20, 2012, OWCP denied the claim for compensation from
June 30, 2011 to February 18, 2012. It found that the medical evidence was insufficient to
establish the claim.
Appellant requested a hearing before an OWCP hearing representative on
October 1, 2012. A hearing was held on January 8, 2013. Appellant submitted an October 31,
2012 report from Dr. Gleason, noting that appellant was no longer working and was scheduled
for left hip replacement surgery.2 Dr. Gleason opined that appellant would not be able to return
to his previous occupation. In a report dated January 15, 2013, he reported that appellant
continued to have problems in numerous areas, including the low back, left hip, and knees.
Dr. Gleason opined, “From June 30, 2011 to February 28 [sic], 2012 [appellant] was only able to
work [five] hours a day per my recommendation. This was due to degeneration of his hips and
knee joints.”
By decision dated March 26, 2013, a hearing representative affirmed the September 20,
2012 OWCP decision. He found that the medical evidence did not establish the claimed periods
of disability from June 30, 2011 to February 18, 2012.
On April 25, 2013 appellant submitted an April 10, 2013 report from Dr. Gleason.
Dr. Gleason reported that appellant continued to have chronic low back pain. He noted that in
reviewing appellant’s past problems and the November 2010 MRI scan, which showed
spondylolisthesis and a spontaneous fusion at L5-S1 without surgery, with degenerative disc
changes at L4-5, he opined that “for this reason” he placed appellant on restrictions of five hours
per day with lifting restrictions from June 30, 2011 to April 11, 2012.
On May 8, 2013 appellant, through his representative, requested reconsideration. The
representative argued that the April 10, 2013 report from Dr. Gleason was sufficient to establish
the claim for compensation commencing June 30, 2011. In a brief report dated August 8, 2013,
Dr. Gleason opined that appellant would not be able to return to work as a letter carrier.

2

Appellant underwent right hip surgery on June 4, 2012 and left hip surgery on February 11, 2013.

3

By decision dated November 6, 2013, OWCP reviewed the case on its merits and denied
modification. It found that the medical evidence was insufficient to establish an employmentrelated disability from June 30, 2011 to February 18, 2012.
Appellant, through his representative, requested reconsideration by letter dated
February 3, 2014. He argued that Dr. Gleason had provided a reasoned medical opinion. He
submitted copies of diagnostic studies.
In a decision dated May 14, 2014, OWCP reviewed the merits of the claim and denied
modification. It again found that the evidence did not establish an employment-related disability
from June 30, 2011 to February 18, 2012.
By letter dated March 12, 2015, appellant, through his representative, requested
reconsideration. Appellant submitted a December 11, 2014 report from Dr. Gleason, who
reported that at the time he reduced appellant’s work hours from eight to five hours a day,
appellant had twisted his knee and had pain and swelling in the knee. Dr. Gleason reported that
x-rays showed degenerative changes in the knee and that appellant was not capable of working
eight hours. He noted in an addendum that appellant had both hip replacement and knee
replacement surgeries.3
By decision dated August 28, 2015, OWCP reviewed the merits of the claim and denied
modification. It found that the evidence failed to establish an employment-related disability
from June 30, 2011 to February 18, 2012.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.4 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.5
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.6 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statement regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
3

The record indicates that appellant underwent right total knee replacement surgery on May 19, 2014.

4

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
6

See Fereidoon Kharabi, 52 ECAB 291 (2001).

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being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.7 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.8
To establish a causal relationship between the disability claimed and the employment
injury, an employee must submit rationalized medical evidence, based on a complete factual and
medical background, supporting such a causal relationship.9 Causal relationship is a medical
issue and the medical evidence required to establish a causal relationship is rationalized medical
evidence.10 The opinion of the physician must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship.11
ANALYSIS
In the present case, appellant claimed wage-loss compensation from June 30, 2011 to
February 18, 2012. The Board notes that during this period appellant was working a modifiedduty position, at approximately five hours per day. There were also periods of total disability,
including July 26 to August 19, September 20 and 21, and September 28 to October 1, 2011. It
is not clear why appellant’s claim for disability began on June 30, 2011, as he indicated that he
began working five hours a day sometime in late October or early November, 2010.
To meet his burden of proof, appellant must submit rationalized medical evidence that
addresses the specific dates of claimed disability. The only contemporaneous report of record
was a July 25, 2011 report from Dr. Gleason. As to disability, Dr. Gleason reported only that
appellant could continue light duty. He does not limit appellant to five hours of modified duty or
explain why appellant could not work full time as a result of an employment-related condition.
In a January 15, 2013 report, Dr. Gleason now stated that appellant was limited to five
hours of work commencing June 30, 2011. He does not address the specific periods of total
disability from June 30, 2011 to February 18, 2012, nor does he provide a complete factual and
medical background or explain why he believed that appellant could work only five hours as of
June 30, 2011. In his April 10, 2013 report, Dr. Gleason refers to the November 2010 lumbar
MRI scan results and opines that this is the reason he placed appellant on restrictions of five
hours of work per day. The diagnosis of spondylolisthesis is an accepted condition, but he does
not explain why this limited appellant to five hours of work per day, and in his December 11,
2014 report, he now refers to the work restrictions as being based on a knee injury. Dr. Gleason

7

Id.

8

Id.

9

Kathryn E. DeMarsh, 56 ECAB 677 (2005).

10

Elizabeth Stanislaw, 49 ECAB 540 (1998).

11

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

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reported that appellant had twisted his knee, without providing further explanation. OWCP
never accepted a traumatic knee injury in the current case.
The Board finds that the evidence of record is not sufficient to meet appellant’s burden of
proof. The medical evidence does not address the specific periods of total disability claimed
from June 30, 2011 to February 18, 2012.
On appeal, appellant’s representative argues that Dr. Gleason’s reports are sufficient and
OWCP had authorized the knee surgery. The knee surgery was on May 19, 2014 and the issue in
this case was the claims for disability from June 30, 2011 to February 18, 2012. For the reasons
discussed, the medical evidence is not sufficient to establish the claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an
employment-related disability from June 30, 2011 to February 18, 2012.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 28, 2015 is affirmed.
Issued: December 17, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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Appearances:
Scott B. Baron, Esq., for the appellant
No appearance, for the Director

Docket No. 07-1599
Issued: December 12, 2007

Oral Argument November 7, 2007

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

JURISDICTION
On May 30 2007 appellant filed a timely appeal of a May 3, 2007 decision of the Office
of Workers’ Compensation Programs which denied her request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider and decide appeals from
final decisions of the Office issued within one year of the filing of the appeal. As the most recent
merit decision was issued on November 19, 2004, the Board does not have jurisdiction over the
merits of the claim.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely and failed to establish clear evidence of error.
FACTUAL HISTORY
The Office accepted that appellant sustained right shoulder impingement syndrome due
to repetitive activities in her federal employment.1 Appropriate compensation benefits were
1

Appellant, then a 52 year-old distribution clerk, filed an occupational disease claim on November 22, 2001.

paid. On July 29, 2004 appellant filed a claim for a schedule award but did not submit any
medical evidence addressing permanent impairment to her right upper extremity. By decision
dated November 19, 2004, the Office denied appellant’s schedule award claim.
In an undated form received on November 20, 2006, appellant filed another claim for a
schedule award for permanent impairment to her right shoulder. In an October 25, 2006 report,
the Dr. G. Howard Bathon, an attending orthopedic surgeon, provided a review of appellant’s
right shoulder condition and findings on physical examination. He advised that appellant had
reached maximum medical improvement and that she had 12 percent impairment of the right
upper extremity, based on the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment.2 Dr. Bathon stated that the rating was derived based on
loss of range of motion to her right shoulder of 12 percent and on 3 percent impairment for pain
caused by the impingement syndrome, or a combined total of 15 percent impairment.
By letter dated December 6, 2006, the Office advised appellant that it had received her
November 30, 2006 schedule award claim. It noted that her case was previously denied in the
November 19, 2004 decision and that she had not exercised her appeal rights. By letter
postmarked January 17, 2007, appellant requested reconsideration of the November 19, 2004
decision.
In a May 3, 2007 decision, the Office denied appellant’s request finding that it was
untimely filed and failed to establish clear evidence of error in the denial of her claim for a
schedule award.
LEGAL PRECEDENT
A claimant may seek an increased schedule award if the evidence establishes that she
sustained increased impairment at a later date causally related to the accepted employment
injury.3 Even if the term reconsideration is used, when a claimant is not attempting to show error
in the prior schedule award decision and submits medical evidence regarding a permanent
impairment at a date subsequent to the prior schedule award decision, it should be considered a
claim for an increased schedule award which is not subject to time limitations.4 A proper claim
for an increase in permanent impairment is not subject to time limitations or to the clear evidence
of error standard.
ANALYSIS
On November 19, 2004 the Office previously denied appellant’s claim for a schedule
award, noting that she did not submit any medical evidence addressing permanent impairment to
her right shoulder due to her accepted claim for impingement syndrome. On November 20, 2006
appellant filed a schedule award claim and submitted the October 25, 2006 report of Dr. Bathon,
2

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

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.7b (August 2002).
4

See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994).

2

who described impairment of the right upper extremity based on loss of range of motion to the
shoulder and pain. However, on December 6, 2006, the Office erroneously advised appellant
that she had not exercised her appeal rights following the November 19, 2004 decision.
Following her request of January 17, 2007, the Office denied reconsideration on the grounds that
her request was untimely and did not establish clear evidence of error.
This case is substantially similar to that of Linda T. Brown.5 In Brown, the Office denied
the employee’s claim for a schedule award for impairment of her arms and legs in an August 2,
1995 decision. It found that the extent of her impairment was not ratable. By letter dated
September 2, 1997, she requested reconsideration and submitted a new medical report from an
attending physician who noted that her condition had stabilized and who estimated 25 percent
impairment to her arms and legs. The Office denied reconsideration, finding the request to be
untimely and failing to show clear evidence of error. On appeal, the Board set aside the Office’s
decision and remanded the case for a de novo decision which addressed the medical evidence
submitted in support of the employee’s claim of permanent impairment. It was noted that a
claimant may seek a schedule award if the evidence establishes an increased impairment at a
later date causally related to the employment injury. For this reason, the May 3, 2007 decision of
the Office will be set aside. Appellant has clearly submitted new medical evidence in support of
her claim of increased impairment due to her accepted right shoulder injury. The claim will be
remanded for appropriate adjudication.
CONCLUSION
The Board finds that the Office improperly adjudicated appellant’s claim for an increased
schedule award as a request for reconsideration.

5

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the May 3, 2007 decision of the Office of Workers’
Compensation Programs be set aside. The case is remanded for further action in conformance
with this decision.
Issued: December 12, 2007
Washington, DC

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

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

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

4


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

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

Docket No. 15-1009
Issued: October 23, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 30, 2015 appellant, through counsel, filed a timely appeal of a January 23,
2015 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 has met his burden of proof to establish that he sustained
an occupational disease in the performance of duty.
FACTUAL HISTORY
On June 7, 2013 appellant then a 56-year-old rural letter carrier filed an occupational
disease claim (Form CA-2), alleging that he developed right shoulder, arm, and elbow pain as a
result of repetitive motion in casing and delivering mail. He first became aware of his condition
1

5 U.S.C. §§ 8101-8193.

on March 5, 2013 and first realized it was causally related to his employment on May 24, 2013.
Appellant did not stop work.
In an accompanying narrative statement, appellant noted experiencing right shoulder pain
radiating down to his elbow which his physician believed to be caused by repetitive casing and
delivering of mail with his right arm. He noted working three hours a day casing mail and four
hours a day delivering mail. Appellant sought treatment for his right shoulder and arm on
March 5, 2013 when the pain became intolerable.
Mario Mughetti, the postmaster, noted in a June 6, 2013 e-mail that appellant owned and
operated a snowplowing business for over 20 years which required him to lift 80-pound bags of
salt. He further noted that appellant was a volunteer fireman and split firewood for personal use
and for sale. In a June 13, 2013 statement, Mr. Mughetti noted first learning of appellant’s
shoulder issue on June 6, 2013 when appellant submitted a magnetic resonance imaging (MRI)
scan report. He advised that appellant’s route required him to work 11 days in a two-week
period. Mr. Mughetti delivered mail to 533 mailboxes and made 521 stops along a route that
was 71.16 miles. He noted that appellant cased mail approximately one to one and a half hours
per workday and delivered mail for four to six hours per workday.
Appellant was treated by Dr. Kwabena Boakye, a Board-certified family practitioner, on
May 14 and 24, 2013 for worsening right shoulder pain. He reported working at the employing
establishment in a job that required lifting. Dr. Boakye diagnosed right shoulder pain and partial
tears in the infraspinatus and subscapularis. On June 10, 2013 appellant reported performing
work duties which required lifting, pushing, and daily use of the upper extremity. Dr. Boakye
noted that a recent MRI scan revealed a partial tear in the tendon of the infraspinatus,
subscapularis, and teres minor muscle with tendinosis. He opined that normally these changes
were seen with chronic usage and stress on the joints. Dr. Boakye opined that appellant’s job at
the employing establishment “puts him at high risk for these kinds of injuries.” A May 20, 2013
right shoulder MRI scan showed an incomplete full thickness tear of the anterior supraspinatus
tendon with partial retraction. Also noted were partial tears of the infraspinatus, subscapularis,
and teres minor tendons as well as long head biceps tendinosis.
In a letter dated June 25, 2013, OWCP advised appellant of the type of evidence needed
to establish his claim. It particularly requested that he submit a physician’s reasoned opinion
addressing the relationship of his claimed condition and specific work factors.
Appellant submitted a June 26, 2013 report from Dr. Joseph Choi, a Board-certified
orthopedist, who treated him for right shoulder pain. Dr. Choi noted that appellant was a rural
mail carrier and had shoulder pain while working. He noted right shoulder findings of no
atrophy, minimal crepitus, intact sensation, limited range of motion, and a positive impingement
test. An x-ray revealed osteoarthritis of the shoulder. Dr. Choi diagnosed right rotator cuff tear
refractory to conservative treatment. He recommended a right shoulder rotator cuff tear repair.
In a June 26, 2013 attending physician’s report, Dr. Choi diagnosed right rotator cuff tear and
noted with a checkmark “yes” that appellant’s condition was caused or aggravated by work
activity. He recommended surgery and returned appellant to work full duty. In a duty status
report dated June 26, 2013, Dr. Choi diagnosed rotator cuff tear and noted that appellant could
return to work full time with a lifting restriction. On July 11, 2013 he diagnosed right shoulder

2

rotator cuff tear. Dr. Choi opined that appellant’s shoulder pain was the result of repetitive
activity of delivering mail. He noted that appellant did not have a prior shoulder injury and has
failed conservative treatment. On July 24, 2013 Dr. Choi reported treating appellant on June 26,
2013 and releasing him to work without restrictions.
In an undated statement, appellant reiterated that his letter carrier activities contributed to
his right shoulder condition and required use of his right arm to case and deliver mail to over 500
mailboxes on a 71-mile route. He noted repetitive motion while spending three hours a day
casing mail and four hours delivering mail. In an undated statement, appellant noted working as
a chief and incident commander for a volunteer fire company doing administrative paperwork,
driving a firetruck, and operating water pump controls at fire calls. He reported making 50 calls
a year which last from one half hour to three to eight hours. Appellant noted having a
snowplowing business serving 30 homes and a church parking lot and a salting service where he
would lift approximately six 50-pound bags of salt. He stated that the snowplow was a push
button operation. Appellant noted between 2008 and 2010 that he and a friend split logs and
used the wood to heat his home and those of friends.
On July 11, 2013 the employing establishment controverted the claim. A human resource
specialist noted outside of his carrier job appellant worked as a fire chief, operated a
snowplowing business, and cut fire wood. He stated that appellant was not providing an accurate
history of injury as his physicians did not note the outside activities in their reports.
In an August 5, 2013 decision, OWCP denied the claim finding that the medical evidence
was insufficient to establish that the claimed condition was causally related to his employment.2
Appellant submitted a state workers’ compensation form report from Dr. Boakye dated
April 16, 2013. Dr. Boakye diagnosed pain in the shoulder joint and sleep apnea. A June 6,
2013 x-ray revealed no evidence of acute abnormality of the right shoulder.
Appellant was treated by Dr. Shoaib Asgher, a Board-certified family physician, on
June 17, 2013 for a right shoulder injury sustained at work. He reported working as a letter
carrier sorting and delivering mail. Dr. Asgher noted that appellant did not have a specific injury
but noted this “could be” from repetitive movement while working at the employing
establishment and during delivery. He diagnosed supraspinatus tendon tear.
On March 3, 2014 appellant requested reconsideration. In support of his request, he
submitted reports from Dr. Choi. On July 25, 2013 Dr. Choi saw appellant for a preoperative
right shoulder evaluation for a torn rotator cuff. On August 9, 2013 he performed a right
shoulder arthroscopic subacromial decompression and right shoulder arthroscopic rotator cuff
tear repair. Dr. Choi diagnosed right shoulder massive rotator cuff tear. In reports dated
August 26 to December 3, 2013, he treated appellant for a right shoulder rotator cuff tear repair.
Dr. Choi diagnosed status post rotator cuff repair. On February 12, 2014 he noted that appellant
was a mail carrier and began to have right shoulder pain while delivering mail. Dr. Choi
2

On December 30, 2013 appellant appealed to the Board. On February 21, 2014 he requested withdrawal of his
appeal. In an order dated March 13, 2014, the Board dismissed appellant’s appeal. Docket No. 14-0500 (issued
March 13, 2014).

3

diagnosed right shoulder rotator cuff tear. He noted that appellant’s extracurricular activities
included being a volunteer firefighter, snowplowing, and preparing wood to heat his home.
Dr. Choi opined that appellant’s shoulder injuries were the result of the work he did as a mail
carrier. He noted that appellant had no prior shoulder pain with other activities and reported his
shoulder started to hurt him while delivering mail. Dr. Choi noted repetitive motion at the
shoulder level or above can cause a rotator cuff tear. He stated that the imaging studies,
intraoperative findings, and the resolution of symptoms after fixation suggest this was the reason
behind his shoulder pain.
In a decision dated June 4, 2014, OWCP denied modification of the prior decision.3
On November 5, 2014 appellant requested reconsideration.
He submitted a
September 15, 2014 report from Dr. Choi who noted that appellant was a rural carrier who
reported his shoulder pain was from repetitive work delivering mail. Appellant noted no prior
shoulder issues. Dr. Choi noted that appellant’s injury was symptomatic and refractory to
conservative care. He opined that the facts of this injury were the direct and proximate cause of
the diagnosis based on reasonable medical probability. Dr. Choi noted “there may be other
causes for this medical problem, but one of the causes is clearly the activities of work described
above.”
In a decision dated January 23, 2015, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident or exposure occurring at the time, place, and in the
manner alleged. Appellant must also establish that such event, incident, or exposure caused an
injury.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
3

On August 14, 2014 appellant appealed to the Board. On September 22, 2014 he requested that his appeal be
withdrawn. In an order dated October 31, 2014, the Board dismissed appellant’s appeal. Docket No. 14-1808
(issued October 31, 2014).
4

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).

4

opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
ANALYSIS
It is not disputed that appellant’s work duties as a rural carrier included casing and
delivering mail.
OWCP denied appellant’s claim for compensation as the medical evidence was
insufficient to establish that appellant’s medical condition of right arm condition causally related
to his employment. However, the Board notes that the medical evidence submitted by appellant
generally supports appellant’s claim. Specifically, the February 12, 2014 report from Dr. Choi
noted that appellant was a mail carrier and began to have right shoulder pain while delivering
mail. Dr. Choi diagnosed right shoulder rotator cuff tear. He opined that appellant’s shoulder
injuries were the result of the work he did as a mail carrier. Dr. Choi noted that appellant
reported his shoulder started to hurt him while delivering mail and he noted repetitive motion at
the shoulder level or above can cause a rotator cuff tear. He also had an accurate history of the
activities performed by appellant outside of his federal employment including work as a
volunteer firefighter, snowplowing, and preparing wood to heat his home. Dr. Choi considered
these outside factors when rendering his medical opinion. He stated that the imaging studies,
intraoperative findings, and the resolution of symptoms after fixation suggest activities
associated with delivering mail are the reason behind his shoulder pain. Although Dr. Choi’s
opinion is not sufficiently rationalized to carry appellant’s burden of proof in establishing his
claim, it stands uncontroverted in the record and is, therefore, sufficient to require further
development of the case by OWCP.6
In view of the above evidence OWCP should have referred the matter to an appropriate
medical specialist to determine whether appellant may have sustained right shoulder, arm, and
elbow pain as a result of his employment duties.
Proceedings under FECA are not adversary in nature nor is OWCP a disinterested arbiter.
While the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. It has the obligation to see that justice is
done.7
Therefore, the Board finds that the case must be remanded to OWCP for preparation of a
statement of accepted facts concerning appellant’s working conditions and referral of the matter
5

Solomon Polen, 51 ECAB 341 (2000).

6

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

7

John W. Butler, 39 ECAB 852 (1988).

5

to an appropriate medical specialist, consistent with OWCP procedures, to determine whether
appellant may have sustained right shoulder, arm, and elbow pain as a result of performing his
employment duties. Following this, and any other further development as deemed necessary,
OWCP shall issue an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 23, 2015 is set aside and the case is remanded for further
development in accordance with this decision of the Board.
Issued: October 23, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, Ohio, Employer
__________________________________________

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

Docket No. 10-585
Issued: September 17, 2010

Case Submitted on the Record

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

JURISDICTION
On December 30, 2009 appellant filed a timely appeal from a December 7, 2009
nonmerit decision of the Office of Workers’ Compensation Programs that denied reconsideration
of a November 13, 2008 merit decision.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
On September 4, 2008 appellant, a 47-year-old mail processor, filed an occupational
disease claim (Form CA-2) for severe knee and back pain and osteoarthritis in her knees. She
attributed her condition to the performance of her employment duties. Appellant first became
aware of her condition on July 25, 2008 and that it was caused by her federal employment on
July 28, 2008.
In reports dated July 28 and August 11, 2008, Dr. Delilah Armstrong, a Board-certified
internist, diagnosed osteoarthritis, pain and lumbar radiculopathy. She also provided work
restrictions.
On July 31, 2008 Dr. James R. Tagliabue, a Board-certified diagnostic radiologist,
reported that x-rays of appellant’s lumbosacral spine revealed no evidence of compression or
subluxation. He reported that x-rays of appellant’s left knee revealed no evidence of fracture or
dislocation. Dr. Tagliabue diagnosed knee and low back pain.
Appellant submitted medical records from Dr. Armstrong and Dr. Lilia M. Henry, a
Board-certified internist, that excused her from work for intermittent periods of time and
provided when appellant could return to work. Dr. Armstrong noted that, when appellant
returned to work, she could not work more than six hours per day. On October 3, 2008 the
Office received a September 26, 2008 offer of limited duty for six hours of work a day.
On November 10, 2008 appellant submitted records signed by Nancy J. Holmes, a
physician’s assistant, dated July 30 to September 9, 2008. She also submitted an unsigned
medical authorization form from Kaiser Permanente.
In a narrative dated September 12, 2008, a supervisor stated that appellant claimed her
injury was “not job related.” The supervisor stated that appellant was authorized to work within
her limitations, which restricted her to no more than a six-hour workday.
On October 24, 2008 appellant described her history of injury and attributed her
condition to the motion of pulling trays that weigh more than 25 pounds from the back of a pie
wagon rack at a quick pace and in a simultaneous motion.
In a November 13, 2008 decision, the Office denied the claim, finding that the evidence
of record did not demonstrate that appellant’s alleged medical condition was caused by the
accepted employment factors.
On November 5, 2009 appellant requested reconsideration.
She resubmitted
Dr. Armstrong’s July 30, 2008 report, copies of the notes signed by Ms. Holmes and the
unsigned medical authorization form from Kaiser Permanente. Appellant also resubmitted the
September 26, 2008 offer of modified limited duty.
By decision dated December 7, 2009, the Office denied reconsideration without
conducting a merit review.

2

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle a claimant
to a review of an Office decision as a matter of right. This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.3 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).4
To require the Office to reopen a case for merit review under section 8128(a) of the Act,5
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.6 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.7 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.8
ANALYSIS -- ISSUE 1
Appellant’s reconsideration request did not allege that the Office erroneously applied or
interpreted a specific point of law. It did not advance a relevant legal argument not previously
considered by the Office. Therefore, appellant is not entitled to a merit review based upon the
first two grounds noted.
Concerning the submission of new relevant and pertinent evidence not previously
considered by the Office, appellant submitted copies of Dr. Armstrong’s report, the report signed
by a physician’s assistant, an unsigned authorization form from Kaiser Permanente and the
September 26, 2008 offer of limited duty. This evidence was all previously of record and
considered by the Office in the November 13, 2008 merit decision. This evidence does not
constitute a basis for reopening appellant’s claim for further merit review.9

2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8128(a).

4

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

5

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

See Richard Yzdron, 57 ECAB 207 (2006).

3

Appellant has not satisfied any of the above-mentioned criteria, the Board finds that the
Office properly refused to reopen her case for merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a merit review of
her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 7, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 17, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4