United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0904
Issued: November 25, 2019

Case Submitted on the Record

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

JURISDICTION
On March 26, 2019 appellant filed a timely appeal from a November 9, 2018 merit decision
and a January 10, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a lower back
injury related to the accepted July 22, 2018 employment incident; and (2) whether OWCP properly

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 10, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

denied appellant’s request for a review of the written record by an OWCP hearing representative
as untimely filed pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On August 2, 2018 appellant, then a 49-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that on July 22, 2018 she sustained a lower back injury when she was attempting
to move a cart while in the performance of duty. She stated that she was pushing a medication cart
when a wheel seemed to be stuck or stopped rolling smoothly and she attempted to shift the cart
so the wheels would roll properly. While shifting the cart, appellant subsequently felt sharp pain
in her lower back and heard a grinding/clicking noise. Afterwards it was difficult for her to
walk/stand or push/move the cart around, as well as perform other duties that required bending or
moving items. Appellant stopped working on the date of injury.
In an August 2, 2018 return to work/school verification form, Dr. Allison Martin, a Boardcertified family practitioner, indicated that appellant had received treatment on August 2, 2018 and
was totally disabled from August 5 to 14, 2018.
In return to work/school verification form dated September 6, 2018, Shanay Johnson, a
registered medical assistant, indicated that appellant was able to resume light-duty work with a 10pound lifting restriction for two weeks. She further indicated that appellant had been diagnosed
with lumbar spondylosis causing low back pain and recommended a physical therapy program.
In a duty status report (Form CA-17) dated September 25, 2018, an unidentifiable
healthcare provider diagnosed low back pain due to pushing a medication cart and advised that
appellant was able to resume full-time, light-duty work.
Appellant also submitted physical therapy treatment notes dated September 6, 2018.
In a development letter dated October 4, 2018, OWCP advised appellant that when her
claim was received, it appeared to be a minor injury that resulted in minimal or no lost time from
work and, since the employing establishment had not controverted continuation of pay or
challenged the case, a limited amount of medical expenses were administratively approved and
paid. It noted that it had reopened the claim for formal consideration because she had requested
authorization for physical therapy. OWCP informed appellant of the type of factual and medical
evidence necessary to establish her claim and afforded her 30 days to submit the necessary
evidence.
In response, appellant submitted physical therapy treatment notes dated October 9, 11, 16,
and 18, 2018.
A medical excuse note dated October 19, 2018 from Marlon McCurine, a certified medical
assistant, indicated that appellant was able to resume work on October 21, 2018.
In an October 12, 2018 narrative statement, appellant related that she was pushing a cart
into an elevator at the time of injury and one of the wheels slid down into the open gap space
between the floor and the elevator. The cart had to be pushed up and pulled out to release it and it
weighed approximately 75 to 140 pounds due to carrying medications and other medical devices.
2

By decision dated November 9, 2018, OWCP accepted that the July 22, 2018 employment
incident occurred as alleged, but denied appellant’s claim, finding that she had not established a
diagnosed medical condition causally related to the accepted employment incident and, thus, the
requirements had not been met for establishing an injury as defined by FECA.
On an appeal request form postmarked on December 31, 2018, appellant requested a
review of the written record by a representative of OWCP’s Branch of Hearings and Review.
By decision dated January 10, 2019, a representative of OWCP’s Branch of Hearings and
Review denied appellant’s request for a review of the written record, finding that it was untimely
filed as it was not postmarked within 30 days of the issuance of the November 9, 2018 decision.
After exercising its discretion, the hearing representative further found that the issue in the case
could equally well be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8

3

Supra note 1.

4

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
5

K.V., and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

6

R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
7

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8
A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 6.

3

Causal relationship is a medical issue, and rationalized medical opinion evidence is
generally required to establish causal relationship.9 The opinion of the physician must be based
on a complete factual and medical background, must be one of reasonable medical certainty, and
must be supported by medical rationale explaining the nature of the relationship between a
diagnosed condition and the specific employment incident identified by the claimant.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a lower back
injury causally related to the accepted July 22, 2018 employment incident.
In her August 2, 2018 report, Dr. Martin indicated that appellant was totally disabled from
work for the period August 5 to 14, 2018; however, she did not provide a medical diagnosis.
Lacking a firm diagnosis and rationalized medical opinion regarding causal relationship, this report
is of no probative value.11
Appellant also submitted a September 25, 2018 duty status report (Form CA-17), which
provided a diagnosis of low back pain. However, the report contained an illegible signature from
an unidentifiable healthcare provider. The Board has held that reports that bear illegible signatures
cannot be considered probative medical evidence because they lack proper identification that the
author is a physician.12 Moreover, the Board has held that pain is a symptom and not a
compensable medical diagnosis.13 Accordingly, this report is also insufficient to satisfy
appellant’s burden of proof to establish the medical component of fact of injury.14
The record also contains evidence from medical assistants and physical therapists, as well
as a September 6, 2018 report from Ms. Johnson, a registered medical assistant, noting that
appellant had been diagnosed with lumbar spondylosis, causing low back pain. The Board has
held that certain medical providers, such as medical assistants and physical therapists, are not
considered “physician[s]” as defined under FECA.15 Consequently, their medical findings and/or

9

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

See B.J., Docket No. 18-1276 (issued February 4, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).

11

See A.S., Docket No. 17-2010 (issued October 12, 2018); Louis R. Blair, Jr., 54 ECAB 348 (2003).

12

J.P., Docket No. 19-0197 (issued June 21, 2019).

13

R.C., Docket No. 19-0376 (issued July 15, 2019).

14

Supra note 9.

15

See 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law). E.W., Docket No. 16-1729 (issued May 12, 2017) (physical therapists); R.S., Docket No. 16-1303
(issued December 2, 2016) (medical assistants); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). See also
Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in general, can only be
given by a qualified physician).

4

opinions are of no probative value and will not suffice for purposes of establishing entitlement to
compensation benefits.
As appellant has not submitted rationalized medical evidence that establishes a lower back
injury in connection with the accepted July 22, 2018 employment incident, she has not met her
burden of proof.
On appeal appellant reiterated her claim that she sustained a back injury while on duty at
work. As explained above, there is no competent medical evidence of record that establishes an
injury in connection with the accepted employment incident.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his or her claim before a representative of the Secretary.16 Sections
10.617 and 10.618 of the federal regulations implementing this section of FECA provide that a
claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary.17 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration.18
Although there is no right to a review of the written record or an oral hearing, if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s December 31, 2018 request for a
review of the written record before an OWCP hearing representative as untimely filed pursuant to
5 U.S.C. § 8124(b).
OWCP’s regulations provide that the request for a review of the written record must be
mailed within 30 days of the date of the decision for which a review is sought. OWCP received
an appeal request form postmarked on December 31, 2018. As the postmark date was more than

16

5 U.S.C. § 8124(b)(1).

17

20 C.F.R. §§ 10.616, 10.617, and 10.618.

18

Id. at § 10.616(a).

19
J.T., Docket No. 18-0664 (issued August 12, 2019); Eddie Franklin, 51 ECAB 223 (1999); Delmont L.
Thompson, 51 ECAB 155 (1999).

5

30 days after OWCP’s November 9, 2018 decision, it was untimely filed and she was not entitled
to a review of the written record as a matter of right.20
Although appellant’s request for a review of the written record was untimely, OWCP has
the discretionary authority to grant the request and it must exercise such discretion.21 In its
January 10, 2019 decision, OWCP’s hearing representative properly exercised her discretion by
notifying appellant that she had considered the matter in relation to the issue of whether appellant
established that she sustained an injury within the performance of duty causally related to the
accepted July 22, 2018 employment incident and determined that the issue involved could be
equally well addressed by a request for reconsideration before OWCP. The Board finds that the
hearing representative properly exercised her discretionary authority in denying appellant’s
request for a review of the written record.22 The Board has held that the only limitation on
OWCP’s authority is reasonableness. An abuse of discretion is generally shown through proof of
manifest error, a clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deductions from established facts.23 In this case, the evidence of record
does not indicate that OWCP abused its discretion by denying appellant’s request for a review of
the written record. Accordingly, the Board finds that OWCP properly denied her request for a
review of the written record.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a lower back
injury related to the accepted July 22, 2018 employment incident. The Board further finds that
OWCP properly denied her request for a review of the written record as untimely filed pursuant to
5 U.S.C. § 8124(b).

20

Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis
of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4a (October 2011); see also G.S., Docket No. 18-0388 (issued
July 19, 2018).
21

Id.; see also Rudolf Bermann, 26 ECAB 354 (1975).

22

Id.; see also Mary B. Moss, 40 ECAB 640, 647 (1989).

23

Id.; see also Samuel R. Johnson, 51 ECAB 612 (2000).

6

ORDER
IT IS HEREBY ORDERED THAT the January 10, 2019 and November 9, 2018
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 25, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-611
Issued: June 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 23, 2015 appellant filed a timely appeal from a December 19, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,733.36 for the period October 19 to November 15, 2014 because she returned to
work but continued to receive disability compensation; and (2) whether she was at fault in the
creation of the overpayment, thereby precluding waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 14, 2008 appellant, then a 47-year-old window distribution clerk, filed an
occupational disease claim alleging that she sustained bilateral medial epicondylitis as a result of
using her hands in repetitive motions. OWCP accepted her claim for right medial epicondylitis.2
On October 14, 2009 appellant filed a recurrence claim alleging that on September 24,
2009 she stopped work because the employing establishment could not accommodate her
modified-duty requirements. OWCP accepted the claim and paid wage-loss compensation
benefits.
In a letter dated December 23, 2009, appellant was advised that she was placed on the
periodic rolls effective November 7, 2009. In that same letter, OWCP informed her that she was
only entitled to compensation benefits when she could not perform her duties due to her
employment injury. Appellant was to advise OWCP if she returned to work, and to return any
payment to which she was not entitled.
Appellant received compensation by direct deposit.
On October 20, 2014 appellant returned to full-time light duty. On November 15, 2014
OWCP issued a payment of compensation via direct deposit in the amount of $1,733.36 for the
period October 19 to November 15, 2014.
On November 18, 2014 OWCP made a preliminary determination that appellant received
an overpayment of compensation in the amount of $1,733.36 because she returned to full-time
light duty on October 20, 2014 but received a disability payment for the period October 19
through November 15, 2014. It found that she was at fault in the creation of the overpayment
because she accepted a payment that she knew or reasonably should have known to be incorrect.
OWCP explained how it calculated the amount of the overpayment and noted that appellant
received a payment of $1,733.36 for the period October 19 to November 15, 2014. It requested
that she complete the Overpayment Recovery Questionnaire and submit relevant financial
information within 30 days.
By decision dated December 19, 2014, OWCP finalized the determination that appellant
received an overpayment in compensation in the amount of $1,733.36 for the period October 19
to November 15, 2014 because she continued to receive compensation after she returned to work.
It found that she was at fault in the creation of the overpayment because she knew or reasonably
should have known that she was not entitled to compensation after returning to work. As
appellant was no longer receiving compensation from OWCP, it found that she should forward a
check for the full amount of the debt.

2

The record reveals that appellant has two previously accepted claims for January 6, 2001 (File No. xxxxxx025)
and June 1, 2004 (File No. xxxxxx007) injuries.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, she
may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.4 Compensation for wage loss due to disability is available only for any
periods during which an employee’s work-related medical condition prevents him or her from
earning the wages earned before the work-related injury.5
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim and paid appropriate wage-loss compensation benefits.
Appellant returned to full-time light duty on October 20, 2014. As of that date, she was no
longer entitled to wage-loss compensation benefits. After appellant returned to work, OWCP
made an automatic payment of compensation in the amount of $1,733.36 on November 15, 2014.
The payment was made by direct deposit covering the period October 19 to November 15, 2014.
The Board finds that the direct deposit of this compensation created an overpayment of
compensation in the amount of $1,733.36 for the period October 19 to November 15, 2014 as
appellant was not entitled to compensation for total disability after returning to work. The Board
has reviewed OWCP’s calculation of the overpayment in its preliminary determination and finds
that it is correct. Accordingly, the Board will affirm OWCP’s December 19, 2014 decision on
the issues of fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or be against equity and good conscience.6 No waiver of
payment is possible if appellant is with fault in helping to create the overpayment.7

3

5 U.S.C. § 8102(a).

4

Id. at § 8116(a).

5

20 C.F.R. § 10.500(a).

6

5 U.S.C. § 8129(b).

7

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

3

In determining whether an individual is not without fault or alternatively, with fault,
section 10.433(a) of OWCP’s regulations provide in relevant part:
An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have
known to be material; or
“(3) Accepted a payment which he or she knew or should have known to
be incorrect.8”
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.9
ANALYSIS -- ISSUE 2
OWCP found appellant at fault in creating the overpayment of compensation because she
accepted a payment which she knew or should have known to be incorrect. The Board finds,
however, that OWCP failed to provide any explanation of how she was at fault in creating the
overpayment when she could not avoid the incorrect payment sent by electronic fund transfer
(EFT). In Tammy Craven,10 the Board explained that an employee who receives payment from
OWCP in the form of a direct deposit may not be at fault for the first incorrect deposit into his or
her account since the acceptance of the overpayment, at the time of receipt of the direct deposit,
lacks requisite knowledge. The Board has recognized that in the case of EFTs, an employee
would not receive notification of the date and amount of payment until after the deposit was
made and the overpayment created.11
In this case, appellant received one electronic deposit on November 15, 2014 in the
amount of $1,733.36. Although she accepted the overpayment at the time it was deposited into
her account, OWCP has not shown that she knew or should have known at the time of the direct
deposit on November 15, 2014 that the payment was incorrect. It has not presented evidence to
establish that appellant accepted a payment at the time of deposit which she knew or should have
known to be incorrect.12 Appellant had no reason to suspect at the time of the direct deposit that
8

20 C.F.R. § 10.433(a).

9

Id. at § 10.433(b).

10

Docket No. 05-249 (issued June 20, 2005), order granting petition for recon. and reaffirming prior decision
(issued July 24, 2006).
11

See J.H., Docket No. 15-195 (issued March 17, 2015).

12

V.A., Docket No. 12-637 (issued August 27, 2012).

4

OWCP had issued an incorrect payment since this was the first and only incorrect payment
made.13 Thus, the Board finds that she was not at fault in creating the overpayment received on
November 15, 2014. A finding of no fault, however, does not mean that the claimant may keep
the money, only that OWCP must consider eligibility for waiver for this period.14 The Board
will remand the case for OWCP to obtain current financial information regarding income and
expenses and consider waiver of recovery of the overpayment based on appellant’s updated
financial information.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $1,733.36 because she received wage-loss compensation after she returned to work. The
Board further finds that OWCP improperly found that she was at fault in creating the
overpayment and will remand the case for consideration of waiver of the recovery of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: June 2, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
13

See S.C., Docket No. 14-1730 (issued April 13, 2015).

14

D.B., Docket No. 14-397 (issued June 3, 2014); M.F., Docket No. 12-456 (issued November 13, 2012).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, UT, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-399
Issued: September 16, 2010

Case Submitted on the Record

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

JURISDICTION

On November 30, 2009 appellant filed a timely appeal from an October 30, 2009 decision
of the Office of Workers’ Compensation Programs which denied merit review. Because more
than one year has elapsed since the most recent merit decision dated October 15, 2008 and the
filing of this appeal on November 30, 2009, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On June 18, 2004 appellant, then a 49-year-old mail processing clerk, filed an
occupational disease claim alleging that she developed herniated discs as a result of performing
her clerk duties. She became aware of her condition on November 10, 2004 and realized it was
caused by her employment on January 8, 2007. Appellant stopped work on November 17, 2006
and did not return.

In a June 18, 2007 statement, appellant indicated that she worked as a mail processing
clerk since 1988 and her duties consisted of heavy lifting, prolonged standing, pulling, pushing,
dispatching and feeding mail into a machine, 8 to 10 hours daily. She noted developing acute
and debilitating pain in her neck and back radiating into her head and shoulders.
In a September 24, 2007 decision, the Office denied the claim. It found that the claimed
work events were not established and that the medical evidence was insufficient.
Appellant submitted reports from Dr. Prisco I. Olaya, a Board-certified internist, from
2004 to 2007, who treated her for respiratory problems, hypothyroidism, severe headaches, neck
pain and arthrosis of the thoracic and lumbar spine. She also submitted reports from Dr. Bruce J.
Montella, a Board-certified orthopedist. On September 5, 2007 Dr. Montella noted appellant’s
symptoms commenced in November 2006 and arose from her job as a clerk. He diagnosed
work-related overuse syndrome and recommended anti-inflammatories and physical therapy.
On October 11, 2007 appellant requested an oral hearing that was held on
January 30, 2008. She submitted a January 15, 2008 report from Dr. Lawrence M. Rugg, a
chiropractor, who diagnosed cervical spine intervertebral disc syndrome with spondylosis,
lumbar spinal stenosis and thoracic spine pain. Dr. Rugg opined that appellant’s current
complaints were due to a work injury that occurred on November 1, 2006. Appellant submitted a
February 11, 2008 report from Dr. Montella who diagnosed herniated disc and degenerative
arthrosis of the mid to lower thoracic spine. Dr. Montella noted that appellant’s job required her
to perform repetitive lifting, pushing and pulling and opined that appellant’s injuries were related
to her work activities.
On April 10, 2008 the hearing representative set aside the September 24, 2007 decision
finding that the evidence established that appellant performed her work duties as reported. The
hearing representative instructed the Office to refer appellant to a second opinion physician to
address whether the accepted employment activities contributed to the diagnosed conditions.
Appellant continued to submit medical certificates and return to work slips from
Dr. Olaya from March 18, 2003 to November 14, 2006, who treated her for weakness in her
extremities, a herniated disc and spinal stenosis and returned her to work with restrictions.
Pursuant to the hearing representative’s instruction, the Office referred appellant to a
second opinion physician. Thereafter, it also referred her to an impartial medical examiner who,
on September 8, 2008, opined that her claimed condition was not caused or aggravated by her
job duties.
In a decision dated October 15, 2008, the Office denied appellant’s claim on the grounds
that the weight of the medical evidence as established by the referee physician who determined
that her condition was not caused by her work duties.
On September 1, 2009 appellant, through her attorney, requested reconsideration. She
asserted that the Office’s decision should be vacated and her claim approved. Appellant
indicated that her request for reconsideration was based on a medical report from Midwest Sports
Medicine dated June 11, 2009. She attached a signed attorney authorization form authorizing her
attorney to represent her before the Office. No additional medical evidence accompanied
appellant’s request.
2

By letter dated September 16, 2009, the Office acknowledged receipt of appellant’s
September 1, 2009 reconsideration request. It indicated that appellant’s reconsideration request
referenced medical evidence from Midwest Sports Medicine dated June 11, 2009; however, the
Office informed her that no report was enclosed. The Office requested that appellant forward a
copy of the medical evidence within 20 days. This correspondence was sent to appellant and her
attorney.
In an October 30, 2009 decision, the Office denied appellant’s reconsideration request on
the grounds that her request neither raised substantive legal questions nor included new and
relevant evidence and was therefore insufficient to warrant review of the prior decision. It
advised that her reconsideration request of September 1, 2009 referenced a medical report dated
June 11, 2009; however, no report was enclosed nor was it received prior to issuing this decision.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,1 the Office has the
discretion to reopen a case for review on the merits. It must exercise this discretion in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits of his or her written
application for reconsideration, including all supporting documents, sets forth arguments and
contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”2
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.3
ANALYSIS
The Office’s October 30, 2009 decision, denied appellant’s reconsideration request,
without conducting a merit review, on the grounds that the evidence submitted neither raised
substantive legal questions nor included new and relevant evidence and was therefore
insufficient to warrant review of the prior decision. Appellant’s September 1, 2009 request for
reconsideration neither alleged nor demonstrated that the Office erroneously applied or

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.606(b)(2).

3

Id. at § 10.608(b).

3

interpreted a specific point of law. Additionally, she did not advance a relevant legal argument
not previously considered by the Office.
Appellant’s request for reconsideration asserted that the Office’s decision should be
vacated and her claim approved based on the medical evidence from Midwest Sports Medicine
dated June 11, 2009. Although her reconsideration request referenced a June 11, 2009 report
from Midwest Sports Medicine, no such report was enclosed. By letter dated September 16,
2009, the Office advised appellant that the referenced medical evidence did not accompany her
request for reconsideration and it allowed her 20 days to submit this evidence. Appellant did not
respond to the Office’s letter prior to the October 30, 2009 decision. This is important since the
underlying basis for the Office’s denial of her claim is medical in nature. The Board also notes
that appellant did not otherwise submit any new and relevant medical evidence following the
Office’s October 15, 2008 decision.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim as she did not present evidence or argument satisfying any of
the three regulatory criteria, under section 10.606(b)(2), for obtaining a merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the October 30, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 16, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 10-215
Issued: July 19, 2010

Case Submitted on the Record

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

JURISDICTION
On October 23, 2009 appellant filed a timely appeal from a May 26, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration. The final merit decision of record is dated December 13, 2006. As the last
merit decision was issued more than one year before the filing of this appeal, pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of the case.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
On appeal, appellant asserts that the Office erred in denying her request for
reconsideration as she submitted relevant, pertinent new evidence, including a new psychiatric

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).

report and a grievance settlement agreement. She also asserts that the Office prejudiced her case
by delaying its decision on her October 25, 2007 request for reconsideration.
FACTUAL HISTORY
On October 20, 2004 appellant, then a 47-year-old distribution window clerk in a
permanent rehabilitation position,2 filed an occupational disease claim (Form CA-2) alleging that
she sustained an emotional condition with migraine headaches in the performance of duty. She
stopped work on September 25, 2004 and did not return. Appellant attributed her condition to a
pattern of supervisory harassment, discrimination and threats due to her rehabilitation status, a
hostile work environment, being denied work details and promotions from 1988 through 2003,
denied additional work hours, falsely accused of dropping a money order machine in June 2000
and issued a September 25, 2004 public policy letter regarding customer relations.
Appellant submitted documents related to August 16, 2000 and December 9, 2003 Equal
Employment Opportunity (EEO) grievances for harassment and discrimination on the basis of
disability. She withdrew the August 16, 2000 grievance on September 21, 2000.3 The
employing establishment submitted supervisory statements explaining that it had taken no
disciplinary actions against appellant and generally denying her of harassment, discrimination
and hostility.
By decision dated May 25, 2005, the Office denied appellant’s claim on the grounds that
she did not establish any compensable employment factors. It found that appellant did not
submit sufficient evidence to establish harassment, threats or a hostile work environment. The
Office further found that appellant’s frustration over being denied a particular work schedule or
promotion was not in the performance of duty and that no error or abuse was shown.
In a June 21, 2005 letter, appellant requested a review of the written record, later
modified to a request for a telephonic hearing, held on September 26, 2006. At the hearing, she
again asserted that she was not promoted due to her permanent rehabilitation status. Appellant
submitted grievance documents and new psychiatric reports.
In a decision dated December 13, 2006, an Office hearing representative affirmed the
May 25, 2005 decision, finding that appellant failed to establish any compensable employment
factors.
In an October 25, 2007 letter, appellant requested reconsideration. She submitted
December 14, 2005 and November 13, 2006 psychiatric reports and a January 10, 2007 letter to
her elected representative reiterating her allegations against her employer. Appellant also
provided 2004 documents regarding a class action settlement between the employing
establishment and rehabilitation employees in which she accepted $26,068.19 in “back pay” and
2

Under a separate claim, the Office accepted an October 26, 1987 right shoulder injury requiring 1988 surgical
repair.
3

Appellant submitted reports from October to December 2004 from two attending psychiatrists, diagnosing
severe anxiety and major depression.

2

“compensatory damages, if any.” The settlement agreement did not admit any wrongdoing by
the employer.
In a May 26, 2009 decision, the Office denied appellant’s request for reconsideration on
the grounds that it did not raise substantive legal questions or include new, relevant evidence.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,4 section 10.606(b)(2) of Title 20 of the Code of Federal
Regulations provides that 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.5 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.6 Section 10.608(b) provides that, when an application for review of
the merits of a claim does not meet at least one of the three requirements enumerated under
section 10.606(b)(2), the Office will deny the application for reconsideration without reopening
the case for a review on the merits.7
In support of a request for reconsideration, an appellant is not required to submit all
evidence, which may be necessary to discharge his or her burden of proof.8 An appellant need
only submit relevant, pertinent evidence not previously considered by the Office.9 When
reviewing an Office decision denying a merit review, the function of the Board is to determine
whether the Office properly applied the standards set forth at section 10.606(b)(2) to the
claimant’s application for reconsideration and any evidence submitted in support thereof.10
ANALYSIS
The Office denied appellant’s emotional condition claim because she failed to establish
error or abuse by the employer in assigning work or evidence to support her allegations of threats
or harassment. Accompanying her October 25, 2007 request for reconsideration, appellant
submitted her letters, psychiatric reports and grievance settlement documents. On appeal, she
contends that this evidence was new, relevant and warranted a merit review by the Office.

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b). See also T.E., 59 ECAB ___ (Docket No. 07-2227, issued March 19, 2008).

8

Helen E. Tschantz, 39 ECAB 1382 (1988).

9

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

10

Annette Louise, 54 ECAB 783 (2003).

3

To be considered relevant, the evidence on reconsideration must address the critical issue
concerning a compensable work factor. Appellant’s letters do not advance a point of law or fact
not previously considered by the Office in this case. The grievance settlement forms do not
admit acknowledge or establish any wrongdoing by the employing establishment or specifically
describe the subject matter of the individual grievances.11 The psychiatric reports are irrelevant
as they do not establish a compensable factor of employment.12
Appellant asserts that the Office prejudiced her case by delaying its decision on her
October 25, 2007 reconsideration request. The Board has carefully reviewed the evidence and
finds that the Office’s delay did not constitute error or prejudice her claim.13 As appellant’s
request for reconsideration was filed only 60 days before her right to file an appeal with the
Board, the Office’s delay, while over a year and a half, did not prejudice appellant. Even if the
Office’s decision had been issued within 90 days, appellant would still have been precluded from
a merit review before the Board.
Appellant has not established that the Office improperly refused to reopen her claim for a
review of the merits under section 8128(a) of the Act. She did not show that the Office
erroneously applied or interpreted a specific point of law, advance a relevant legal argument not
previously considered by the Office or submit relevant and pertinent new evidence not
previously considered by the Office.
However, as set forth above, the evidence appellant submitted on reconsideration was not
relevant to the critical issue in the case at the time of the final merit decision. Therefore, the
Office’s May 26, 2009 decision was proper under the law and facts of the case.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.

11

D.L., 58 ECAB 217 (2006) (the Board has held that grievances and EEO complaints, by themselves, do not
establish wrongdoing by an employing establishment).
12

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

13

See C.J., (Docket No. 09-2103, issued June 1, 2010), loc. cit. Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.9 (June 2002) (when the Office delays a reconsideration decision beyond
90 days and such delay jeopardizes the claimant’s right to review of the merits of the case before the Board, it
should conduct a merit review).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 26, 2009 is affirmed.
Issued: July 19, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, Memphis, TN,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-124
Issued: April 11, 2008

Case submitted on the record

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

JURISDICTION
On October 16, 2007 appellant filed a timely appeal from an August 22, 2007 decision of
the Office of Workers’ Compensation Programs, denying his request for reconsideration and a
May 29, 2007 decision denying his request for a review of the written record. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the May 29 and August 22,
2007 decisions. The Board does not have jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether the Office abused its discretion in denying appellant’s
request for a review of the written record; and (2) whether the Office properly denied his request
for reconsideration as untimely filed and lacking clear evidence of error.
FACTUAL HISTORY
On January 27, 2004 appellant, then a 61-year-old revetment worker, filed an
occupational disease claim alleging that he sustained a hearing loss and a tinnitus condition

beginning July 1, 2000 due to noise exposure at work from cranes, derricks, barges, trucks and
machine engines.1 He began working for the employing establishment in 1987. Appellant was
also exposed to hazardous noise while serving as a military medic from 1961 to 1967. He retired
on September 30, 2003.
In a May 17, 2004 report, Dr. Edgar R. Franklin, an otolaryngologist and an Office
referral physician, reviewed the factual and medical evidence and provided findings on physical
examination.2 He noted that appellant refused to undergo audiometric testing. However,
Dr. Franklin noted that audiometric data from 1987 to 2003 did not reveal any significant change
in appellant’s hearing during his federal employment. He diagnosed sensorineural hearing loss
that was not related to appellant’s federal employment.
By decision dated May 26, 2004, the Office denied appellant’s claim on the grounds that
the evidence failed to establish that he sustained a hearing loss causally related to his
employment.3
On March 16, 2007 appellant provided a history of his noise exposure dating back to
1961 and a description of his noise exposure during his federal employment. A former
supervisor provided a statement that hearing protection was available to employees beginning in
2000 when he became head of the revetment section. He did not know whether hearing
protection was available prior to that time. Appellant provided clinical notes dated January 25,
2004 from Dr. David Armstrong, an otolaryngologist, who provided no factual or medical
history. Dr. Armstrong opined that appellant’s hearing loss and a tinnitus condition were
secondary to noise exposure. Appellant provided a copy of an October 21, 2003 audiogram and
notes from audiologists dated November 21, 2003 and January 8 and February 25, 2004.
On April 16, 2007 appellant requested a review of the written record.
By decision dated May 29, 2007, the Office denied appellant’s request for a review of the
written record because it was not timely filed within 30 days of the May 26, 2004 merit decision.
The Office exercised its discretion and determined that the issue in the case, causal relationship,
could be addressed equally well through a request for reconsideration and additional evidence.
On June 7, 2007 appellant requested reconsideration.
By decision dated August 22, 2007, the Office denied appellant’s request for
reconsideration on the grounds that it was not timely filed within one year of the last merit
decision and the evidence failed to show clear evidence of error.

1

Appellant submitted a duplicate claim on February 26, 2007. The cases were combined.

2

The statement of accepted facts provided to Dr. Franklin included a description of appellant’s noise exposure at
the employing establishment from 1987 to 2003, his military noise exposure from 1961 to 1967 and his noise
exposure from 1967 to 1987 in private industry.
3

As appellant did not seek an appeal of this decision to the Board within one year, the Board does not have
jurisdiction over the merits of the case. 20 C.F.R. § 501.3.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8124(b)(1) of the Federal Employees’ Compensation Act, concerning a
claimant’s entitlement to a hearing before an Office hearing representative, states: “Before
review under section 8128(a) of this title, a claimant for compensation not satisfied with a
decision of the Secretary under subsection (a) of this section is entitled, on request made within
30 days after the date of the issuance of the decision, to a hearing on his claim before a
representative of the Secretary.”4 A hearing is a review of an adverse decision by a hearing
representative. Initially, the claimant can choose between two formats: an oral hearing or a
review of the written record. In addition to the evidence of record, the claimant may submit new
evidence to the hearing representative.5
ANALYSIS -- ISSUE 1
Appellant’s request for a review of the written record was dated April 16, 2007, more
than 30 days after the Office’s May 26, 2004 decision. Therefore, he was not entitled to a review
of the written record as a matter of right. The Office exercised its discretion and determined that
the issue in the case, whether appellant’s hearing loss was causally related to his federal
employment, could be resolved through a request for reconsideration and the submission of
additional evidence. The Board finds that the Office did not abuse its discretion in denying
appellant’s untimely request for a review of the written record in its May 29, 2007 decision.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act6 does not entitle a claimant to a review of an Office decision
as a matter of right.7 This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.8 The Office, through its
regulations, has imposed limitations on the exercise of its discretionary authority. One such
limitation is that the Office will not review a decision denying or terminating a benefit unless the
request for reconsideration is filed within one year of the date of that decision.9 The Board has
found that the imposition of this one-year time limitation does not constitute an abuse of the
discretionary authority granted the Office under 5 U.S.C. § 8128(a).10
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. § 10.615.

6

5 U.S.C. § 8128(a).

7

Thankamma Mathews, 44 ECAB 765 (1993).

8

Id. at 768.

9

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

10

Thankamma Mathews, supra note 7 at 769.

3

merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.11 To establish clear evidence of error, a claimant must submit evidence relevant
to the issue which was decided by the Office.12 The evidence must be positive, precise and
explicit and must be manifest on its face that the Office committed an error.13 Evidence which
does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.14 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.15 To show clear evidence of
error, the evidence submitted must not only be of sufficient probative value to create a conflict in
medical opinion or establish a clear procedural error, but must be of sufficient probative value to
prima facie shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of the Office’s decision.16 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that the Office abused its discretion in denying merit review in the face of such
evidence.17
ANALYSIS -- ISSUE 2
The merits of appellant’s case are not before the Board. His request for reconsideration
was dated June 7, 2007. As this request was filed more than one year after the Office’s May 26,
2004 merit decision, it is not timely.18 The issue is whether appellant demonstrated clear
evidence of error in the May 26, 2004 Office decision, which denied his claim for hearing loss.
In support of appellant’s untimely request for reconsideration of the May 26, 2004 merit
decision, he submitted a written history of his noise exposure dating back to 1961 and a
description of his noise exposure during his federal employment. This information was already
of record, as contained in the statement of accepted facts prepared by the Office on
April 16, 2004. Therefore, it does not demonstrate clear evidence of error in the May 26, 2004
merit decision denying appellant’s claim for hearing loss. A former supervisor provided a
statement that hearing protection was available to employees beginning in 2000 when he became
head of the revetment section. This statement is not relevant to the issue of causal relationship.
Therefore, it does not demonstrate clear evidence of error in the May 26, 2004 decision.
Appellant submitted notes from an otolaryngologist who opined that his hearing loss and a
tinnitus condition were secondary to noise exposure. However, he did not address the issue of
11

20 C.F.R. § 10.607(b); see also Donna M. Campbell, 55 ECAB 241 (2004).

12

Dean D. Beets, 43 ECAB 1153 (1992).

13

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

14

Darletha Coleman, 55 ECAB 143 (2003).

15

Leona N. Travis, supra note 13.

16

Darletha Coleman, supra note 14.

17

Pete F. Dorso, 52 ECAB 424 (2001).

18

Howard Y. Miyashiro, 51 ECAB 253 (1999).

4

whether appellant’s condition was causally related to noise exposure at his federal job as
opposed to noise exposure from some other source. Additionally, the physician did not provide
any audiometric test results. Therefore, this evidence does not show clear evidence of error in
the May 26, 2004 merit decision. Appellant provided a copy of a 2003 audiogram and notes
from audiologists which do not address the issue of causal relationship. The Board finds that the
evidence submitted by appellant in support of his reconsideration request does not demonstrate
clear evidence of error. It does not raise a substantial question as to the correctness of the
Office’s May 26, 2004 merit decision denying his hearing loss claim. Consequently, the Office
properly found, in its August 22, 2007 decision, that appellant’s untimely request for
reconsideration failed to establish clear evidence of error in the May 26, 2004 merit decision.
On appeal, appellant asserts that he was not able to timely file his request for
reconsideration because he had a nervous breakdown. The Office’s regulations provide that the
one-year time period for filing a reconsideration request does not include any period subsequent
to an Office decision for which a claimant can establish, through probative medical evidence,
that he was unable to communicate in any way and that his testimony is necessary in order to
obtain modification of the decision.19 Appellant has provided no such medical evidence.
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for a review of the written record. The Board further finds that appellant has failed to
demonstrate clear evidence of error in the Office’s May 26, 2004 merit decision denying his
claim for hearing loss.

19

20 C.F.R. § 10.607(c).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 22 and May 29, 2007 are affirmed.
Issued: April 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Hauppauge, NY, Employer
)
___________________________________________ )
M.M., Appellant

Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-192
Issued: June 15, 2007

Case Submitted on the Record

DECISION AND ORDER

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

JURISDICTION
On October 27, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 3, 2006 which denied his claim for a
back injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained a low back injury causally related to his October 21, 1999 traumatic injury.
FACTUAL HISTORY
On October 21, 1999 appellant, then a 53-year-old tractor trailer operator, filed a
traumatic injury claim alleging injury to his head while driving a trailer that day over a
construction area. The Office accepted his claim for head contusion and expanded his claim to
include cervical radiculopathy. Appellant did not stop work.

Appellant submitted emergency room treatment notes prepared by Dr. R. Uy Megur, a
Board-certified emergency room physician, dated October 21, 1999. Dr. Megur noted that while
appellant was driving a truck he sustained an injury to his head and also complained of lower
back pain. He advised that a computerized tomography (CT) scan of the neck revealed an old
fracture at C6. Dr. Megur diagnosed head contusion. A CT scan of the cervical spine dated
October 21, 1999, revealed an irregularity of C6 with associated focal degenerative changes
consistent with a fracture which may be chronic in nature.
Appellant came under the treatment of Dr. Peter J. Lesniewski, a Board-certified
orthopedic surgeon. In an October 25, 1999 report, Dr. Lesniewski reviewed the history of
injury in which appellant stuck his head on the top of the cab. He noted symptoms of significant
neck pain with restricted range of motion in the neck and back. Dr. Lesniewski diagnosed
decreased disc space at C5-6 with probable spondylosis. On November 2, 1999 he diagnosed
spinal cord contusion and underlying spinal stenosis. In reports dated December 22, 1999 to
March 29, 2000, Dr. Lesniewski noted symptoms of numbness radiating into appellant’s left
hand due to the whiplash injury to his cervical spine. The record reflects that appellant
underwent two epidural injections with good results and returned to regular duty in June 2000.
A December 15, 1999 cervical spine x-ray, revealed degenerative changes with C6-7 disc space
with narrowing and neural foraminal compromise. A February 16, 2000 magnetic resonance
imaging (MRI) scan of the cervical spine revealed a small midline disc herniation at the C6-7
level and mild bulging disc disease at the C2-3 and C5-6 levels.
Thereafter, appellant submitted reports from Dr. Harvey Finkelstein, a Board-certified
anesthesiologist. On April 7 and June 12, 2000 Dr. Finkelstein noted that appellant underwent
three cervical epidural steroid injections with a 75 percent improvement in symptoms. In reports
dated July 9, 2001 and May 17, 2002, he advised that appellant experienced persistent headache,
neck pain and upper extremity radiculopathy since his work injury of October 21, 1999. An MRI
scan of the lumbosacral spine dated December 2, 2002 revealed an L3-4 small disc herniation
asymmetric to the left and a small disc bulge at L4-5.
In an October 1, 2002 report, Dr. Lesniewski advised that appellant had significant low
back and neck pain and opined that his back condition was related to the original
October 21, 1999 injury. In a report dated November 6, 2002, he advised that appellant’s low
back pain was increasing and that appellant had complained of low back pain when he initially
sought treatment in the emergency room on October 21, 1999. Dr. Lesniewski opined that
appellant’s low back condition was part of his original work injury. In a March 5, 2003 report,
he indicated that, after appellant’s automobile accident on October 21, 1999, he complained of
back pain that persisted through the years although he was not treated for this condition. In a
report dated March 26, 2003, Dr. Lesniewski noted that on October 21, 1999 appellant was
driving a trailer and drove over a construction area and was thrown around the cab of his truck.
Appellant hit his head on the ceiling of the truck. Dr. Lesniewski indicated that the initial
examination note reported appellant’s complaints of pain radiating down his arms, wrist pain,
low back and neck pain. He advised that appellant’s low back pain was sporadic and gradually
developed into a full blown syndrome with the development of an absent ankle jerk on the right
and a positive Michelle sign. Dr. Lesniewski diagnosed herniated disc of the cervical spine,
probable herniated disc of the lumbar spine and recommended epidural injections for the back.
He opined that within a degree of medical certainty appellant’s cervical and lumbar spine

2

problems were related to the October 21, 1999 injury. On September 16, 2003 and
November 14, 2005 Dr. Finkelstein diagnosed cervical herniated disc disease, bulging disc at
C2-3, old herniated cervical disc disease at C6-7, degenerative post-traumatic disc disease at
C5-6 and C6-7 and recommended epidural steroid injections and facet blocks.
Appellant submitted statements dated July 18 to October 10, 2005 and requested that his
claim be expanded to include his lumbar condition.
In a November 29, 2005 decision, the Office denied appellant’s claim for a low back
injury on the grounds that the medical evidence was not sufficient to establish that his lumbar
condition was caused by the October 21, 1999 incident.
On January 17, 2006 appellant appealed his claim to the Board. In an order remanding
case dated June 26, 2006, the Board set aside the November 29, 2005 Office decision.1 The
Board found that the Office’s decision did not contain an adequate description of the basis for the
denial of the claim and remanded the case for a de novo decision with appropriate findings of
fact and conclusions of law.
On May 25, 2006 appellant filed a CA-2a, claim for recurrence of disability alleging that
he experienced a spontaneous return of the symptoms of his work-related injury. He stopped
work on May 16, 2006.2 In a report dated June 7, 2006, Dr. Lesniewski noted a history of injury
and advised that he first treated appellant on October 25, 1999. At that time, he noted
examination findings of diffuse tenderness, pain and spasm with restricted range of motion of the
neck and reflexes revealed pain on motion in appellant’s back with restricted range of motion
and minimal radiation. Dr. Lesniewski indicated that appellant’s major problem was his cervical
spine; however, his low back pain was also present. In a September 18, 2006 report,
Dr. Frank P. Cammisa, Jr., Board-certified orthopedic surgeon, evaluated appellant for cervical
spinal surgical surgery and diagnosed cervical spondylosis with foraminal stenosis and left C7
radiculitis and dizziness.
In a decision dated October 3, 2006, the Office denied appellant’s claim for a low back
condition.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that any specific condition or disability for work for which he
claims compensation is causally related to the employment injury.3 To establish a causal
relationship between the condition, as well as any attendant disability claimed and the

1

Docket No. 06-583 (issued June 26, 2006).

2

In a decision dated October 6, 2006, the Office denied appellant’s claim for a recurrence of disability. However,
appellant, through his attorney, did not appeal this matter and therefore this issue is not before the Board at this time.
3

Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

3

employment injury, an employee must submit rationalized medical evidence, based on a
complete factual and medical background, supporting such a causal relationship.4
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 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.6 Neither the fact that a
disease or condition manifests itself during a period of employment nor the belief that the disease
or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.7
ANALYSIS
Appellant sustained an injury on October 21, 1999 while driving a trailer. The Office
accepted that he hit his head on the top of the cab. It accepted appellant’s claim for head
contusion and expanded his claim to include cervical radiculopathy.
The Office denied appellant’s claim for compensation for a low back injury on the
grounds that the medical evidence was not sufficient to establish that his lumbar condition was
causally related to the October 21, 1999 injury. However, the Board notes that the medical
evidence submitted by appellant generally supports that he sustained a back injury from the
October 21, 1999 incident. Specifically, the emergency room report from October 21, 1999
noted that while appellant was driving his truck he sustained an injury to his head and also
complained of lower back pain.
Also submitted was a report from Dr. Lesniewski dated October 25, 1999.
Dr. Lesniewski noted that on October 21, 1999 appellant was driving a tractor trailer and drove
over a construction area and struck his head on the top of the cab. He noted symptoms of
significant neck pain with restricted range of motion in the neck and back. Dr. Lesniewski
diagnosed decreased disc space at C5-6 with probable spondylosis. In a report dated October 1,
2002, he advised that appellant experienced a significant amount of low back and neck pain and
opined that appellant’s back condition was related to the original accident on October 21, 1999.
In a report dated March 5, 2003, Dr. Lesniewski indicated that, after appellant’s automobile
accident on October 21, 1999, he complained of back pain which has persisted through the years
although he was not treated for this condition. On March 26, 2003 he noted a history of injury
and indicated that the initial examination note reported appellant’s complaints of low back pain.
4

Id.

5

Elizabeth Stanislav, 49 ECAB 540 (1998).

6

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

7

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

4

Dr. Lesniewski advised that appellant’s back pain was sporadic and gradually has developed into
a full blown syndrome with the development of an absent ankle jerk on the right and a positive
Michelle sign. He diagnosed herniated disc of the cervical spine and probable herniated disc of
the lumbar spine. Dr. Lesniewski opined that within a degree of medical certainty appellant’s
cervical and lumbar spine problems were associated with his October 21, 1999 accident and his
treatment has been ongoing. In a June 7, 2006 report, he noted that he first treated appellant after
his work-related accident on October 25, 1999 and at that time he noted findings upon physical
examination of pain on motion in his back with restricted range of motion and minimal radiation.
Dr. Lesniewski indicated that appellant’s major problem was his cervical spine; however, his
back pain was present. Although his opinion is not sufficiently rationalized to carry appellant’s
burden of proof in establishing his claim, they stand uncontroverted in the record and are,
therefore, sufficient to require further development of the case by the Office.8
In view of the above evidence, the Office should have referred the matter to an
appropriate medical specialist to determine whether appellant may have sustained a back injury
as a result of his employment duties.
Proceedings under the Act are not adversary in nature nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.9
The case will be remanded to the Office for preparation of a statement of accepted facts
concerning appellant’s working conditions and referral of the matter to an appropriate medical
specialist for an opinion on whether appellant’s low back condition was caused or contributed to
by the October 21, 1999 incident. Following this, and any other further development as deemed
necessary, the Office shall issue an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

8

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

9

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

5

ORDER
IT IS HEREBY ORDERED THAT the October 3, 2006 decision of the Office of
Workers’ Compensation Programs is hereby set aside and the case is remanded for further
development in accordance with this decision of the Board.
Issued: June 15, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
Spokane, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1720
Issued: November 25, 2020

Case Submitted on the Record

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

JURISDICTION
On August 12, 2019 appellant filed a timely appeal from a July 1, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1
The Board notes that, following the July 1, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than seven
percent permanent impairment of his left lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On August 7, 2017 appellant, then a 34-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that on August 4, 2017 he sustained two fractures of his left
ankle, deep bruising to his right heel, multiple stitches in his chin, sore teeth and gums, as well as
contusions to his chest when the relief valve on a high pressure scuba tank that he was using failed
to deploy and exploded while in the performance of duty.
Appellant underwent left ankle surgery including left talus open reduction and internal
fixation with medial malleolar osteotomy to repair a left ankle comminuted talar neck fracture on
August 5, 2017.
On September 22, 2017 OWCP accepted appellant’s claim for left foot fracture and
surgery. On February 14, 2018 it expanded acceptance of his claim to include the additional
conditions of displaced fracture of the neck of the left talus, open wound of the scalp, and fractures
of his teeth at 2, 3, 15, 18, and 31.
Appellant underwent a second left ankle arthroscopy for lysis of adhesions, major
synovectomy, and hardware removal on September 26, 2018.
On March 26, 2019 Dr. Miguel A. Schmitz, an attending orthopedic surgeon, provided
measurements of appellant’s range of motion (ROM) of the left lower extremity including 10
degrees of dorsiflexion, 40 degrees of plantar flexion, 5 degrees of inversion, and 0 degrees of
eversion. He described appellant’s left ankle as stiff. Dr. Schmitz noted that appellant’s left talus
fracture was healed and that he had some postoperative pain associated with this condition which
impacted his ability to run and walk at a typical pace.
In a report dated March 27, 2019, Dr. Schmitz found that appellant had reached maximum
medical improvement (MMI) on March 26, 2019. He described appellant’s surgeries and provided
an impairment rating based on the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides).3 Dr. Schmitz utilized Table 16-2,
page 503, for a diagnosis of talus fracture with a class of diagnosis (CDX) of grade 1, with a default
value of 5 for nondisplaced talus fracture with minimal findings. He found mild motion deficits,
but no malalignment and no avascular necrosis. Dr. Schmitz further found grade modifier for
function history (GMFH) of one in accordance with Table 16-6, page 516. He found a grade
modifier for physical examination (GMPE) of zero as appellant had good range of motion and no
arthrodesis. Dr. Schmitz reported a grade modifier for clinical studies (GMCS) of zero based on
Table 16-8, page 519, as no radiographs had identified stability nonunion or arthrodesis. In
applying the net adjustment formula, he found that appellant had a net adjustment of -2.
3

A.M.A., Guides (6th ed. 2009).

2

Dr. Schmitz then determined that appellant had mild motion deficits and/or mild malalignment,
avascular necrosis without talar body collapse. He calculated a final rating of seven percent
permanent impairment of the left lower extremity in accordance with Table 16-2, page 503 of the
A.M.A., Guides.
On April 15, 2019 appellant filed a schedule award claim (Form CA-7).
OWCP referred Dr. Schmitz’ rating report to a district medical adviser (DMA). In a report
dated April 28, 2019, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as the
DMA, reviewed the medical evidence of record and diagnosed status post open reduction and
internal fixation of the left talus open fracture. He concurred with Dr. Schmitz that appellant had
seven percent permanent impairment of his left lower extremity based on the diagnosis of a left
talus fracture in accordance with Table 16-2, page 503 of the A.M.A., Guides. The DMA further
found that appellant’s diagnosed condition did not meet the criteria to allow impairment to be
calculated by the ROM methodology as set forth in section 16.7, page 543, of the A.M.A., Guides.
He concluded that appellant reached MMI on March 26, 2019.
By decision dated July 1, 2019, OWCP granted appellant a schedule award for seven
percent permanent impairment of his left lower extremity.
LEGAL PRECEDENT
The schedule award provisions of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides.6 The Board has approved the use by OWCP of the
A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the body
for schedule award purposes.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability

4

Supra note 2

5

20 C.F.R. § 10.404.

6
For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).
7
X.Y., Docket No. 19-1290 (issued January 24, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).

3

and Health (ICF).8 Under the sixth edition, the evaluator identifies the CDX, which is then
adjusted by grade modifiers of GMFH, GMPE, and GMCS.9 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 Evaluators are directed to provide reasons
for their impairment choices, including the choices of diagnoses from regional grids and
calculations of modifier scores.11
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than
seven percent permanent impairment of his left lower extremity, for which he previously received
a schedule award.
In March 26 and 27, 2019 reports, Dr. Schmitz provided physical examination findings and
provided a rating of permanent impairment based upon the sixth edition of the A.M.A., Guides.
He indicated that appellant had a CDX of 1 for the diagnosis of a talus fracture with an initial grade
C or five percent permanent impairment. Dr. Schmitz then applied the net adjustment formula,
and increased the value rating to seven percent permanent impairment of the left lower extremity.
Consistent with its procedures,13 OWCP properly referred the matter to a DMA for an
opinion regarding appellant’s permanent impairment in accordance with the sixth edition of the
A.M.A., Guides.14
In April 28, 2019 report, Dr. Harris, serving as the DMA, identified the diagnosis for the
left lower extremity as fracture of the talus in accordance with Table 16-2, page 503, of the A.M.A.,
Guides. He found that appellant had seven percent permanent impairment of the left lower
extremity due to the accepted employment injury, concurring with Dr. Schmitz’ impairment rating.
The Board finds that the DMA applied the appropriate tables and grading schemes of the
A.M.A., Guides to Dr. Schmitz’ clinical findings and properly calculated seven percent permanent
impairment of appellant’s left lower extremity. As there is no medical evidence of record in
8

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
ICF: A Contemporary Model of Disablement.
9

Id. at 494-531.

10

Id. 411.

11

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

12

Supra note 6 at Chapter 2.808.6(f) (March 2017).

13

Id.

14

X.Y., supra note 7; J.J., Docket No. 18-1615 (issued March 5, 2019).

4

conformance with the sixth edition of the A.M.A., Guides, establishing that appellant has greater
than the seven percent permanent impairment of his left lower extremity previously awarded, the
Board finds that appellant has not met his burden of proof to establish that he is entitled to
additional schedule award compensation.15
Appellant may request a schedule award or an increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than
seven percent permanent impairment of his left lower extremity, for which he previously received
a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the July 1, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 25, 2020
Washington, DC

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

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

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

15
S.C., Docket No. 19-1177 (issued August 27, 2020); J.H., Docket No. 19-0395 (issued August 10 2020); D.D.,
Docket No. 19-1676 (issued July 29, 2020).

5