United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, GOLDEN GATE
NATIONAL RECREATION, San Francisco, CA,
Employer
__________________________________________

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Appearances:
James Wright, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1339
Issued: December 6, 2012

Case Submitted on the Record

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

JURISDICTION
On June 6, 2012 appellant, through her representative, filed a timely appeal of the
January 4, 2012 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 filed a timely claim for compensation for hearing loss
pursuant to the applicable time limitations under FECA.
On appeal, appellant’s representative contends that the evidence of record establishes that
appellant filed a timely claim for employment-related hearing loss. Appellant was not aware that
her hearing loss constituted a compensable injury for which she could file a claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 9, 2010 appellant, then a 52-year-old maintenance worker, filed an
occupational disease claim alleging that on August 2, 2010 she first became aware of her hearing
loss and realized that it was caused by her employment. She contended that after her exposure to
loud noise at work as a maintenance worker and other exposure to construction noises as a
supply technician, she began to experience hearing loss which progressively worsened.
Appellant stated that she was last exposed to conditions alleged to have caused her condition on
April 5, 1995. In a July 7, 2010 narrative statement, she contended that she was exposed to loud
noise at work eight hours a day, five days a week beginning in 1985 when she started work as a
maintenance laborer. Appellant further contended that the employing establishment was aware
of her hearing loss.
In a December 9, 2010 letter, Winnie Fong, a human resources specialist, stated that
appellant worked as a laborer at the employing establishment from January 6, 1985 through
June 6, 1987. She worked as a maintenance worker from June 7, 1987 to February 17, 1996.
Appellant was off work due to a workers’ compensation injury under OWCP File No.
xxxxxx106 from April 4, 1995 to February 17, 1996. She returned to work on February 18, 1996
in a supply technician position that accommodated her physical restrictions. Appellant stopped
work on April 29, 2003 due to the prior workers’ compensation injury. Ms. Fong stated that
appellant separated from federal service on February 8, 2008. She contended that appellant’s last
exposure to noise was in her maintenance worker position which was before April 4, 1995, over
15 years ago. Ms. Fong related that there was no record of hearing loss in appellant’s employee
medical file. She stated that an accompanying Form SF-78 dated March 28, 1985 established a
threshold that appellant’s hearing was normal. The medical file did not contain any subsequent
medical documentation regarding her hearing. Ms. Fong stated that, if appellant’s supervisors
were aware of a hearing loss, they did not annotate it in her employee medical file. The
employing establishment had no evidence to confirm that appellant had any hearing loss due to
her employment, that she was exposed to high levels of noise eight hours a day, five days a
week, or that she lost time from work as a result of her claimed condition.
By letter dated December 16, 2012, OWCP notified appellant of the deficiencies of her
claim and requested additional factual information. Also, on December 16, 2012 it requested
that the employing establishment answer questions regarding appellant’s claim.
In a December 29, 2012 letter, appellant provided her employment history at the
employing establishment from January 1981 to February 2008. She was last exposed to
hazardous noise at work in April 2003. On August 2, 2010 appellant first realized that her
hearing loss was related to her work exposure to loud noises. She selected August 2, 2010 as her
date of injury because a physician’s audiological evaluation performed on that date found that
she had hearing loss due to loud noises at work.
In a March 2, 2011 letter, Ms. Fong stated that a maintenance worker was exposed to
minimum noise. Under unusual circumstances, i.e., 10 percent to 15 percent of the time,
maintenance workers assisted building, utility, roads and trails crews. Ms. Fong stated that under
no circumstances did maintenance workers operate any type of tools and/or equipment for eight
continuous hours. Their primary function was to clean restrooms, perform minor repairs to these
restrooms when needed, pick up litter throughout the park and assist other maintenance trades as
needed. Ms. Fong noted a description of the maintenance worker position provided by Billy
2

Vogele, a maintenance worker supervisor, who currently managed appellant’s former work area.
Mr. Vogele stated that such workers used a gas-powered hand-held blower 15 to 30 minutes
every 4 or 5 days. When there was a full gardening staff, maintenance workers performed no
string trimming, mowing or edging. They only occasionally assisted with tree branch removal
and used a gas-powered blower instead of a broom 15 minutes or less per week. In a March 31,
2011 letter, Ms. Fong contended that appellant’s hearing loss claim was not timely filed. She
stated that earplugs and muffs were issued to employees. The employing establishment did not
have a noise abatement program during appellant’s employment. Complaints of hearing loss due
to exposure to loud noises would have been treated on a case-by-case basis. There were no
records documenting hearing loss or complaints of exposure to loud noises in appellant’s files.
In a June 1, 2011 decision, OWCP denied appellant’s claim on the grounds that it was not
timely filed under 5 U.S.C. § 8122. It found that she did not file her claim until December 9,
2010, more than three years after April 3, 1995, the date she was last exposed to hazardous
federal noise. OWCP further found that there was no evidence that a supervisor had actual
knowledge of appellant’s claim within 30 days of the date of injury.
By letter dated June 7, 2011, appellant, through her representative, requested an oral
hearing before an OWCP hearing representative.
During the October 26, 2011 hearing, appellant testified that she was not aware that her
hearing loss could be compensable until after she underwent an audiological evaluation in 2010.
She first realized that her hearing loss was caused by her employment while working as a supply
technician in an airplane hangar. Appellant stated that she was exposed to loud noise in this
position from 1996 until maybe 2002. She noted that after 2002 her office moved from the
airplane hangar to an office setting. Appellant did not report her hearing loss to the employing
establishment because she did not think it was significant enough at that time.
In a January 4, 2012 decision, an OWCP hearing representative affirmed the June 1, 2011
decision. The hearing representative found that appellant did not file her claim within three
years from when she was last exposed to noise as a supply technician from 1996 until 2002.
LEGAL PRECEDENT
Under FECA,2 as amended in 1974, a claimant has three years to file a claim for
compensation.3 In a case of occupational disease, the Board has held that the time for filing a
claim begins to run when the employee first becomes aware or reasonably should have been
aware, of a possible relationship between her condition and her employment.4 Where the
employee continues in the same employment after such awareness, the time limitation begins to
run on the date of her last exposure to the implicated factors.5 Section 8122(b) provides that, in
latent disability cases the time limitation does not begin to run until the claimant is aware or by
2

5 U.S.C. § 8122(a).

3

See Duet Brinson, 52 ECAB 168 (2000); William F. Dorson, 47 ECAB 253, 257 (1995); see also 20 C.F.R.
§ 10.101(b).
4

See William C. Oakley, 56 ECAB 519 (2005).

5

See Larry E. Young, 52 ECAB 264 (2001); William D. Goldsberry, 32 ECAB 536, 540 (1981).

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the exercise of reasonable diligence, should have been aware, of the causal relationship between
her employment and the compensable disability.6 Even if the claim is not filed within the threeyear period, it may be regarded as timely under section 8122(a)(1) if appellant’s immediate
supervisor had actual knowledge of her alleged employment-related injury within 30 days such
that the immediate superior was put reasonably on notice of an on-the-job injury or death.7 The
Board has held that a program of annual audiometric examinations conducted by an employing
establishment may constructively establish actual knowledge of a hearing loss such as to put the
immediate supervisor on notice of an on-the-job injury.8
ANALYSIS
The Board finds that the evidence of record establishes that appellant did not timely file a
claim for compensation under FECA. Appellant reported on the claim form that she was aware
of a relationship between the claimed condition and her employment as of August 2, 2010.
Under section 8122(b), the time limitation begins to run when she became aware of causal
relationship, or, if she continued to be exposed to noise after awareness, the date she is no longer
exposed to noise. The record reflects that appellant stated that she first realized that her hearing
loss was caused by her employment while working as a supply technician in an airplane hangar
from 1996 to 2002. She further stated that after 2002 her office moved from the airplane hangar
to an office setting. Appellant, therefore, was aware of a causal relationship between her hearing
loss and her work during her federal employment and was last exposed to the work condition that
caused her condition before she retired on February 8, 2008. Therefore, the three-year time
limitation began to run in 2002, her date of last exposure to the implicated employment factor.
Since appellant did not file her claim until December 9, 2010, the Board finds that her claim was
filed outside the three-year time limitation period under section 8122(a).
Appellant’s claim would still be considered timely if her immediate supervisor had actual
knowledge of her injury within 30 days of her last exposure or if she provided written notice.9
The record does not reflect that appellant provided written notice of injury prior to filing the
instant claim, and Ms. Fong advised that the employing establishment had no knowledge of any
hearing loss or complaints of exposure to loud noise. The record does not contain evidence of
annual audiograms by the employing establishment. The Board finds, therefore, that appellant
has not established that the employing establishment had knowledge of a hearing loss within 30
days of her last exposure in 2002.

6

5 U.S.C. § 8122(b); see also Bennie L. McDonald, 49 ECAB 509, 514 (1998).

7

See Duet Brinson, supra note 3; Delmont L. Thompson, 51 ECAB 155, 156 (1999).

8

See Jose Salaz, 41 ECAB 743 (1990); Kathryn A. Bernal, 38 ECAB 470 (1987). See also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3c and 6c (October 2010) which states: “If the employing
[establishment] gave regular physical examinations which might have detected signs of illness (for example, regular
x-rays or hearing tests), the agency should be asked whether the results of such tests were positive for illness and
whether the employee was notified of the results. [If the claimant was still exposed to employment hazard on or
after September 7, 1974 and the agency’s testing program disclosed the presence of an illness or impairment, this
would constitute actual knowledge on the part of the agency, and timeliness would be satisfied even if the employee
was not informed...].”
9

Id. at § 8122(a)(1); see Ralph L. Dill, 57 ECAB 248 (2005).

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The contention of appellant’s representative, on appeal, that appellant was not aware that
she could file a hearing loss claim is an insufficient cause or reason for failure to file a timely
claim. The Board has held that an employee’s unawareness of possible entitlement, lack of
access to information or ignorance of the law or one’s rights and obligations under it do not
constitute exceptional circumstances that excuse a failure to file a timely claim.10 Appellant was
not under 21 years old and provided no evidence to show that she was incompetent or was
prevented from giving notice by exceptional circumstances. Thus, she did not timely file a claim
for compensation.11
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not file a timely claim for compensation for an
employment-related hearing loss and, therefore, her claim is barred by the applicable time
limitation provisions of FECA.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

10

B.J. (B.J.), 59 ECAB 660 (2008).

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Id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, RICHLAND
STATION, Dallas, TX, Employer
__________________________________________

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

Docket No. 12-268
Issued: May 24, 2012

Case Submitted on the Record

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

JURISDICTION
On November 22, 2011 appellant filed a timely appeal from the November 3, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied
authorization for physical therapy. 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 OWCP properly exercised its discretion in denying authorization for
further physical therapy.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 5, 1997 appellant, then a 42-year-old carrier technician, sustained a
traumatic injury in the performance of duty when she lifted a bucket and felt a sharp pain in her
left shoulder and neck area. OWCP accepted her claim for left shoulder and cervical strain.
On July 20, 2010 Dr. Robert E. Holladay, IV, a Board-certified orthopedic surgeon and
OWCP referral physician, examined appellant and reviewed her record. He found it difficult to
explain her ongoing subjective complaints some 13 years after a strain and sprain of the cervical
spine. Soft tissue strains and sprains, Dr. Holladay noted, resolved after a period of three to four
months. Appellant had no clinical complaints or examination findings to support a
radiculopathy. Dr. Holladay noted multiple physicians had not documented objective complaints
and examination findings that would support a radiculopathy.
Dr. Holladay found no medical indication for formal physical therapy. He believed that
appellant was capable of managing her chronic pain with over-the-counter analgesics and
anti-inflammatory medications. Appellant did not require prescription medications for her
chronic musculoskeletal complaints, which were more likely due to a preexisting, progressive
degenerative change at the C5-6 level. Dr. Holladay found her to be a poor surgical candidate.
He also found that cervical spine epidural steroid injections were not medically indicated that
because appellant did not show objective findings, by clinical examination or by complaints, to
support a radiculopathy.
On June 6, 2011 OWCP received a request from appellant to participate in a physical
therapy program.
In a June 10, 2011 decision, OWCP denied authorization for physical therapy. It noted
that a second-opinion evaluation determined that all residuals of the accepted work injury had
resolved.
Dr. Serge M. Pamphile, appellant’s general practitioner, continued to recommend
physical therapy. On July 27, 2011 he found that appellant was still symptomatic of conditions
related to the original work injury. Dr. Pamphile stated, however, that, although she was
compliant with conservative therapy, appellant was not getting any improvement from that line
of treatment.
In decisions dated September 29 and November 3, 2011, OWCP denied modification of
its June 10, 2011 decision. It noted that additional medical documentation did not support the
need for continued physical therapy: Dr. Pamphile did not offer a rationalized medical opinion
to support treatment that is generally medically feasible for only 120 days following the date of
injury or surgical intervention.2 As Dr. Holladay provided a reasoned medical opinion
explaining why medical authorization should not be given for continued physical therapy,
OWCP denied authorization.

2

Dr. Pamphile noted that appellant had been compliant with occupational therapy “but she is not getting any
improvement from that line of treatment.”

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LEGAL PRECEDENT
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances and supplies prescribed
or recommended by a qualified physician that the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.3 OWCP must therefore exercise discretion in determining whether the
particular service, appliance or supply is likely to effect the purposes specified in FECA.4 The
only limitation on OWCP’s authority is that of reasonableness.5
ANALYSIS
The issue is whether OWCP properly exercised its discretion when it denied
authorization for continued physical therapy. OWCP based its decision on the opinion of
Dr. Holladay, a Board-certified orthopedic surgeon, who explained that soft tissue strains and
sprains resolves in a period of months and that it had now been 13 years since appellant had
suffered a work-related left shoulder and cervical strain. With no evidence of radiculopathy, it
was difficult to explain appellant’s ongoing subjective complaints. Moreover, Dr. Holladay
found no medical indication for formal physical therapy, as she could manage her chronic pain
with over-the-counter analgesics and anti-inflammatory medications.
Dr. Holladay reviewed appellant’s record and offered a rationale opinion on whether she
needed continued physical therapy. Given this evidence, it was reasonable for OWCP, prior to
authorizing any further physical therapy, to require appellant’s general practitioner,
Dr. Pamphile, to explain how the requested services were related to the soft tissue strain
appellant sustained on November 5, 1997, as opposed to, perhaps, progressive degenerative
changes at C5-6.
The Board finds that OWCP considered the medical opinion evidence and properly
exercised its discretion under section 8103 of FECA. The Board will therefore affirm OWCP’s
November 3, 2011 decision denying authorization for further physical therapy.
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 OWCP properly exercised its discretion in denying authorization for
further physical therapy.
3

5 U.S.C. § 8103(a).

4

See Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad discretionary authority in the administration of
FECA and must exercise that discretion to achieve the objectives of section 8103).
5

Daniel J. Perea, 42 ECAB 214 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the November 3, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 24, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 20-0764
Issued: January 12, 2021

Case Submitted on the Record

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

JURISDICTION
On February 24, 2020 appellant filed a timely appeal from a February 18, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted November 21, 2019 employment incident.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that following the February 18, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On November 21, 2019 appellant, then a 30-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on that date, she sustained a right back rib bruise when she
was struck on the back by a hamper while in the performance of duty. She stopped work on that
date. Appellant’s supervisor, L.M., signed the form, certifying that the information provided by
appellant on the form was true to the best of his knowledge.
In an employing establishment accident report dated December 17, 2019, A.S., a supervisor
at the employing establishment, indicated that on November 21, 2019, appellant was loading
parcels into her vehicle for delivery, bent down between two wires to retrieve packages, and was
struck in the middle back by a hamper being pushed by another employee. She noted that as a
result, appellant sustained contusions to the middle back. Under the heading “Injury/Illness” the
condition was described as a “Contusion -- Bruise with Skin Intact” and under the heading “Body
Part” was described as affecting the middle back and right back rib.
In progress notes dated November 21, 2019, Ricardo Garza, a family nurse practitioner,
examined appellant for complaints of right rib pain. Appellant recounted to Mr. Garza that she
had been squatting to perform work when someone pushed a cart into her, striking her right ribs.
On physical examination, Mr. Garza observed point tenderness to the lateral posterior ribs. An
x-ray of the right ribs obtained on the date of examination demonstrated no evidence of rib fracture.
Mr. Garza diagnosed right rib contusion.
In a duty status report (Form CA-17) dated December 4, 2019, Dr. Jill Schroeder, a family
medicine specialist, diagnosed anterolateral back pain without sciatica. She listed appellant’s date
of injury as November 21, 2019 and stated that the injury occurred when appellant was struck in
the back by a rolling hamper. Dr. Schroeder recommended that appellant could return to work on
December 9, 2019 with work restrictions of lifting no more than 10 pounds intermittently.
On December 11, 2019 appellant resigned from her position with the employing
establishment.
In a development letter dated January 6, 2020, OWCP informed appellant that she had
submitted insufficient factual and medical evidence to establish her claim. It advised her of the
type of evidence needed and provided a questionnaire for her completion. OWCP afforded
appellant 30 days to respond.
In progress notes dated November 25, 2019, Kerry Gillette, certified physician assistant,
diagnosed acute bilateral low back pain without sciatica, which she described as secondary to a
work injury.
On December 3, 2019 Dr. Katrina Terry, a Board-certified family practitioner, diagnosed
acute bilateral low back pain without sciatica and left-sided sciatica. She referred appellant to
physical therapy and for chiropractic treatment, explaining that appellant had bilateral back pain
with some numbness on the right and chronic tingling on the left.
In progress notes dated December 4, 2019 and January 10, 2020, Dr. Schroeder examined
appellant for back pain. Appellant was able to walk and drive, but twisting, bending, and lifting

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remained painful. Dr. Schroeder diagnosed an acute back injury, related to a work injury. She
again recommended physical therapy and chiropractic treatment.
By decision dated February 18, 2020, OWCP denied appellant’s claim, finding that she
had not submitted sufficient evidence to establish a causal relationship between her diagnosed leftsided sciatica and the accepted incident of November 21, 2019.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment incident
identified by the employee.9

3

Supra note 1.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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Pursuant to OWCP’s procedures, no development of a claim is necessary where the
condition reported is a minor one which can be identified on visual inspection by a lay person (e.g.,
burn, laceration, insect sting, or animal bite).10 No medical report is required to establish a minor
condition such as a laceration.11
ANALYSIS
The Board finds that appellant has met her burden of proof to establish a contusion/bruise
to the middle back/right back rib causally related to the accepted November 21, 2019 employment
incident.
The Board notes that, pursuant to Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Development of Claims, Chapter 2.800.6(a) (June 2011), if a condition reported is a minor
one, such as a burn, laceration, insect sting, or animal bite, which can be identified on visual
inspection by a lay person, a case may be accepted without a medical report and no development
of the case need be undertaken, if the injury was witnessed or reported promptly, and no dispute
exists as to the occurrence of an injury; and no time was lost from work due to disability.12 This
section of OWCP’s procedures further states that in cases of serious injury (motor vehicle
accidents, stabbings, shootings, etc.) if the employing establishment does not dispute the facts of
the case, and there are no questionable circumstances, the case may be accepted for a minor
condition, such as laceration, without a medical report, while simultaneously developing the case
for other more serious conditions. This is true even if there is lost time due to such a serious
injury.13
The record contains a December 17, 2019 form accident report from A.S., a supervisor at
the employing establishment. The supervisor described the November 21, 2019 incident and noted
that as a result appellant sustained contusions to the middle back. Under the heading
“Injury/Illness” the condition was described as a “Contusion -- Bruise with Skin Intact” and under
the heading “Body Part” was described as affecting the middle back and right back rib. In progress
notes dated November 21, 2019, Mr. Garza, a family nurse practitioner, diagnosed right rib
contusion. The Board finds that this information, taken together, is sufficient to meet the standards
set forth in OWCP’s procedures for accepting a contusion/bruise to the middle back/right back rib
without a medical report from a qualified physician. Based on the description of the condition, it
was a minor condition identifiable on visual inspection by a lay person.14 The signature of L.M.,
appellant’s supervisor, on the November 21, 2019 Form CA-1 and the December 17, 2019 form
accident report prepared by A.S., a supervisor at the employing establishment, clearly indicate that
appellant’s contusion/bruise to the middle back/right back rib had been viewed and accepted as
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.800.6(a) (June 2011).

11

Id.; see B.C., Docket No. 20-0498 (issued August 27, 2020) (the Board accepted lumbar contusion as causally
related to the accepted employment incident); S.H., Docket No. 20-0113 (issued June 24, 2020) (the Board accepted
a right ankle contusion as causally related to the accepted employment incident); M.A., Docket No. 13-1630 (issued
June 18, 2014).
12

Supra note 10.

13

Id.

14

See supra note 11.

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work related, and that the incident alleged by appellant to have taken place on November 21, 2019
occurred in the performance of duty. The November 21, 2019 progress notes from Mr. Garza
support the existence of a right rib contusion capable of being identified on visual inspection by a
lay person.
Accordingly, the February 18, 2020 decision is reversed to find that the claim is accepted
for contusion/bruise to the middle back/right back rib. Upon return of the case record OWCP shall
make payment and/or reimbursement of medical expenses with regard to the accepted
contusion/bruise to the middle back/right back rib.15
The Board also finds that appellant has not established additional compensable diagnosed
conditions or entitlement to wage-loss compensation for disability due to the condition of
contusion/bruise to the middle back/right back rib. The record indicates that appellant did not
return to work immediately following the incident of November 21, 2019 and that she has not
alleged any specific dates of disability due to this condition. She submitted a December 3, 2019
report from Dr. Terry, who diagnosed acute bilateral low back pain without sciatica and left-sided
sciatica. Appellant submitted a Form CA-17 dated December 4, 2019 from Dr. Schroeder, in
which she diagnosed anterolateral back pain without sciatica and recommended that appellant
could return to work with restrictions. On December 4, 2019 Dr. Schroeder diagnosed an acute
back injury, and on December 10, 2019 she diagnosed low back pain, without sciatica. The Board
notes that appellant has not established additional compensable diagnoses of anterolateral back
pain, acute bilateral low back pain, left-sided sciatica, or acute back injury. The Board has
consistently held that pain is a symptom, not a compensable medical diagnosis.16 As to acute back
injury, the Board has previously explained that a purported diagnosis of “injury” is not a firm
diagnosis.17 As appellant did not submit any medical evidence from a qualified physician
containing a compensable diagnosis addressing specific dates of disability, the Board finds that
she has not established entitlement to wage-loss compensation based upon her accepted condition
of contusion/bruise to the middle back/right back rib.18
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 met her burden of proof to establish a contusion/bruise
to the middle back/right back rib causally related to the accepted November 21, 2019 employment
incident. The Board further finds that she has not established disability causally related to the
accepted November 21, 2019 employment injury.

15

B.C., supra note 11.

16

See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).

17

See J.L., Docket No. 18-1804 (issued April 12, 2019).

18

See M.A., supra note 11.

5

ORDER
IT IS HEREBY ORDERED THAT the February 18, 2020 decision of the Office of
Workers’ Compensation Programs is reversed in part and affirmed in part.
Issued: January 12, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
L. STOKES CLEVELAND VETERANS
ADMINISTRATION MEDICAL CENTER,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 15-1245
Issued: December 4, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 13, 2015 appellant filed a timely appeal of the November 14, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed since the most recent merit decision dated August 19, 2013 and the filing of this
appeal on May 13, 2015, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument. After exercising its discretion, by order dated October 9,
2015, the Board denied his request as his arguments could be adequately addressed in a decision based on a review
of the case record. Order Denying Request for Oral Argument, Docket No. 15-1245 (issued October 9, 2015).

FACTUAL HISTORY
On October 11, 1983 appellant, then a 36-year-old medical technician, fractured his right
ankle while on a motorcycle when he failed to negotiate a turn as he entered the employing
establishment property. The employing establishment did not dispute that he was in the
performance of duty at the time of this incident. OWCP accepted appellant’s condition for
bimalleolar fracture of the right ankle and expanded his claim to include osteomyelitis, infection
at the fracture site, and deformity distal fibula of the right ankle. It authorized right ankle
surgery which was performed on October 12 and November 30, 1983, March 23, 1984 and
September 1997. Appellant stopped work on October 11, 1983 and returned to light-duty work
on December 1, 1983. He was granted disability retirement on October 1, 2000.3
On September 7, 2012 appellant submitted a Form CA-2a, recurrence of medical
treatment, asserting that in 2008, 2009, and 2011 he sustained recurrences causally related to his
employment injury of October 11, 1983. He noted that in 2008, he was walking with a cane in
his home and his ankle gave out and he fell into his entertainment center. Appellant noted in
2009 he walked from the basement upstairs and almost fell again. In 2011, after returning home,
his right ankle gave out while ascending the front steps and he fell backwards and caught himself
on the hand rail. Appellant reported retiring in 2000 and remaining unemployed since that time.
By letter dated October 4, 2012, OWCP advised appellant of the type of factual and
medical evidence needed to establish his recurrence claim. It requested that he submit a
physician’s reasoned opinion addressing the relationship of his claimed recurrent condition and
specific employment factors.
In support of his claim, appellant submitted an x-ray of the right ankle dated July 8 and 9,
2009 which revealed no acute fracture but an old fracture of the distal fibula with post-traumatic
arthritic changes. A March 19, 2010 x-ray of the right foot revealed mild osteopenia, no definite
fracture, small left calcaneal spur and extensive osteoarthritis of the right tibiotalar joint. X-rays
of the right ankle dated January 19 and July 31, 2012 revealed an old fracture of the distal fibula
with post-traumatic arthritic changes. A February 23, 2013 x-ray of the right ankle revealed a
questionable nondisplaced distal fibular fracture with additional remote healed fracture of the
distal fibula and severe degenerative changes of the ankle mortise joint.
On March 4, 2013 appellant underwent a computerized tomography (CT) scan of the
right lower extremity which revealed a remote distal fibular fracture with prior external fixation
hardware and significant degenerative changes of the ankle mortise joint on the right.
A July 26, 2012 report from a physician assistant noted treating appellant since 2002 for
right ankle pain and arthritis. He noted appellant’s right ankle condition has progressed and he
required an ankle fusion.
3

On December 23, 1987 OWCP proposed to reduce compensation as the evidence established that appellant was
no longer totally disabled, but rather partially disabled, and had the capacity to earn wages as a medical technologist,
at the rate of $8.00 an hour. In a decision dated February 5, 1988, it adjusted appellant’s compensation benefits to
reflect his wage-earning capacity as a medical technologist. Appellant filed a claim for a schedule award. In
decisions dated September 17, 1991, April 6, 1995, April 18, 2002, February 6, 2003 and June 6, 2003, he was
granted a schedule award for a total of 42 percent permanent impairment of the right leg.

2

On August 19, 2013 OWCP denied appellant’s claim for a recurrence of medical
treatment, finding that the evidence did not show a spontaneous worsening of his accepted
condition.
On August 2, 2014 appellant requested reconsideration. In an accompanying August 11,
2014 letter, he asserted that he experienced a worsening of his original injury and needed further
medical care. Appellant indicated that he has unsuccessfully attempted to obtain employment as
a medical technologist at several hospitals and enrolled in a vocational rehabilitation program
without success. He indicated that he underwent a third operation on his right ankle in 1997 and
subsequently required a cane. Appellant indicated that his work restrictions were ignored by the
employing establishment. He indicated that he continued to receive care at the Veterans
Administration Medical Center. Appellant also submitted handwritten notes.
Appellant submitted an x-ray of the right ankle dated July 8, 2009, a March 19, 2010
x-ray of the right foot, a January 19, 2012 x-ray of the right ankle, a July 31, 2012 x-ray of the
right ankle, a February 23, 2013 x-ray of the right ankle, a March 4, 2013 CT scan of the right
lower extremity, and a copy of OWCP’s decision dated August 19, 2013, all previously of
record. Appellant submitted an enrollment record from the University of Maryland noting he
was registered as an undergraduate in January 2001. He submitted a letter to Suburban Hospital
human resources recruiter applying for a medical technologist position. Appellant submitted a
marriage license dated May 8, 2003 and a divorce decree dated August 31, 2007. He submitted a
note from Health First dated August 30, 2013, prepared by an unidentified individual who
diagnosed right ankle fracture with hardware, arthritis, spinal stenosis, degenerative joint disease
of the back, and neuropathic pain.
In a November 14, 2014 decision, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,4 OWCP 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)(3) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or his written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”5
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3).

3

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
OWCP without review of the merits of the claim.6
ANALYSIS
OWCP denied appellant’s recurrence of disability finding that the medical evidence did
not demonstrate that the claimed recurrence of his medical condition was causally related to the
accepted injury. Thereafter, it denied his reconsideration request, without a merit review.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In his request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. In his August 11, 2014 request for reconsideration, he
indicated that he experienced a worsening of his original injury and needed further medical care.
Appellant indicated that he has unsuccessfully attempted to obtain employment as a medical
technologist at several hospitals and enrolled in a vocational rehabilitation program without
success.7 He indicated that he had a third operation on his right ankle in 1997, uses a cane, and
continues to receive care at a Veterans Administration hospital. Appellant indicated that his
work restrictions were ignored by the employing establishment. These assertions do not show a
legal error by OWCP or a new and relevant legal argument not previously considered by OWCP.
The underlying issue in this case is whether appellant submitted medical evidence establishing
that he sustained a recurrence of his medical condition causally related to the October 11, 1983
work injury. That is a medical issue which must be addressed by relevant new medical
evidence.8
However, appellant did not submit any pertinent new and relevant medical evidence in
support of his claim. He submitted an x-ray of the right ankle dated July 8, 2009, a March 19,
2010 x-ray of the right foot, a January 19, 2012 x-ray of the right ankle, a July 31, 2012 x-ray of
the right ankle, a February 23, 2013 x-ray of the right ankle, a March 4, 2013 CT scan of the
right lower extremity, and a copy of OWCP’s decision dated August 19, 2013. However, these
reports are duplicative of evidence previously submitted and were considered by OWCP in its
decision dated August 19, 2013. Evidence that repeats or duplicates evidence already in the case
record has no evidentiary value and does not constitute a basis for reopening a case.9 Therefore,
these reports are insufficient to require OWCP to reopen the claim for a merit review.
Appellant submitted a note from Health First dated August 30, 2013, prepared by an
unidentified individual who diagnosed right ankle fracture with hardware, arthritis, spinal
6

Id. at § 10.608(b).

7

The record indicates that appellant is not currently in receipt of wage-loss benefits, that he has claimed such
benefits, or that he has requested modification of the February 5, 1988 loss of wage-earning capacity decision.
8

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

9

See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35
ECAB 1090, 1093-94 (1984).

4

stenosis, degenerative joint disease of the back, and neuropathic pain. There is no indication of
who signed this report. The Board has held that medical reports lacking proper identification do
not constitute probative medical evidence.10 Thus, this report is insufficient to require OWCP to
reopen the claim for a merit review.
Appellant submitted an enrollment record from the University of Maryland dated
January 2001, a letter to Suburban Hospital human resources recruiter applying for a medical
technologist position, a marriage license dated May 8, 2003, and a divorce decree dated
August 31, 2007. As explained, the underlying issue in this claim is whether the medical
evidence establishes that he sustained a recurrence of his accepted medical condition. These
records are not relevant to this underlying medical issue. Therefore, this new evidence is
insufficient to warrant reopening the case for a merit review.
On appeal, appellant asserts that he submitted sufficient evidence to establish that he
sustained a recurrence of disability causally related to his October 11, 2013 work injury. He also
asserts that OWCP failed to inform him that his claim was closed in 2012. The Board does not
have jurisdiction over the merits of the claim.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

10

See R.M., 59 ECAB 690 (2008); D.D., 57 ECAB 734 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the November 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 4, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
DEPARTMENT OF THE AIR FORCE, 560th
AIRCRAFT MAINTENANCE SQUADRON,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 19-1462
Issued: June 26, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 25, 2019 appellant filed a timely appeal from an April 26, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated March 8, 2018, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.2

1

2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 26, 2019 decision, OWCP received additional evidence. Appellant also
submitted additional evidence on appeal to the Board. 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
FACTUAL HISTORY
On January 18, 2018 appellant, then a 55-year-old aircraft mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on November 1, 2017 he sustained a lower back injury
while in the performance of duty. He asserted that he heard something “pop” in the right side of
his lower back when he sat down to remove screws from floor boards and that he then had difficulty
getting back up. Appellant did not stop work.
In support of his claim, appellant submitted a job description for the aircraft mechanic
position.
In a development letter dated February 1, 2018, OWCP requested that appellant submit
additional evidence in support of his claim, including a physician’s opinion supported by a medical
explanation as to how the claimed November 1, 2017 employment incident caused or aggravated
a medical condition. It provided a questionnaire for his completion which posed questions
regarding the claimed employment incident and his receipt of medical treatment. In a separate
letter of the even date, OWCP also requested additional information from the employing
establishment. It afforded both appellant and the employing establishment 30 days to respond, but
neither party responded within the afforded period.
By decision dated March 8, 2018, OWCP accepted that the November 1, 2017 incident had
occurred, as alleged. However, it denied appellant’s claim finding that he had not established the
medical component of fact of injury because he had not submitted medical evidence containing a
medical diagnosis in connection with the accepted November 1, 2017 employment incident.
OWCP concluded, therefore, that the “requirements have not been met for establishing that you
sustained an injury as defined by the FECA.”
On March 25, 2019 appellant requested reconsideration of the March 8, 2018 OWCP
decision.
Appellant submitted a November 1, 2017 emergency room report from Dr. David
Kocherla, Board-certified in emergency medicine, who advised that appellant complained of acute
midline and right-sided low back pain radiating down the back of his right thigh. He reported that
his symptoms began at work on that date, noting that he was leaning over and felt a sharp pain
when he went to stand up.3 Dr. Kocherla noted findings on physical examination of midline and
right-sided lumbar tenderness to palpation, positive pain with right straight leg raise testing, and
limited range of motion of the right leg secondary to pain. He diagnosed low back strain and right-

3
Another portion of the report noted that appellant complained of right hip pain after he sat down at work on
November 1, 2017 and heard a “pop.”

2

sided sciatica, and prescribed pain medication. Appellant submitted administrative documents
from his November 1, 2017 emergency room visit.
Appellant also submitted a November 1, 2017 report of x-rays of his lumbar spine which
contained an impression of no acute finding.
By decision dated April 26, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence
of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.5 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS).6 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.7
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error.8 If a request demonstrates
clear evidence of error, OWCP will reopen the case for merit review.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.10 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.11 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate

4

5 U.S.C. § 8128(a); see also A.B., Docket No. 19-1539 (issued January 27, 2020); W.C., 59 ECAB 372 (2008).

5

20 C.F.R. § 10.607(a).

6

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

7
G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
8

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).
9

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 2.1602.5 (February 2016).
10

A.A., Docket No. 19-1219 (issued December 10, 2019); J.F., Docket No. 18-1802 (issued May 20, 2019); J.D.,
Docket No. 16-1767 (issued January 12, 2017); Dean D. Beets, 43 ECAB 1153 (1992).
11

J.D., Docket No. 19-1836 (issued April 6, 2020); Leon N. Travis, 43 ECAB 227 (1999).

3

clear evidence of error.12 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.13 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP.14 To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.15
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard.16 The claimant must present evidence which on its face shows that OWCP made
an error.17 Evidence such as a detailed, well-rationalized medical report which, if submitted before
the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.18 The Board makes an independent determination of
whether a claimant has demonstrated clear evidence of error on the part of OWCP.19
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. An application for reconsideration must be received within one year
of the date of OWCP’s decision for which review is sought.20 The last merit decision was OWCP’s
March 8, 2018 decision which denied appellant’s traumatic injury claim. As appellant’s request
for reconsideration was not received by OWCP until March 25, 2019, more than one year after the
March 8, 2018 decision, the Board finds that it was untimely filed. Consequently, appellant must
demonstrate clear evidence of error on the part of OWCP in denying his traumatic injury claim.21

12

S.W., Docket No. 18-0126 (issued May 14, 2019); Robert G. Burns, 57 ECAB 657 (2006).

13

T.N., Docket No. 18-1613 (issued April 29, 2020).

14

Id.

15

J.M., Docket No. 19-1842 (issued April 23, 2020).

16

See supra note 6 at Chapter 2.1602.5(a) (February 2016); see also J.S., Docket No. 16-1240 (issued
December 1, 2016).
17

K.W., Docket No. 19-1808 (issued April 2, 2020).

18

Id.

19

D.S., Docket No. 17-0407 (issued May 24, 2017).

20

See supra note 5.

21

See supra notes 8 and 9.

4

The Board further finds that appellant has not demonstrated clear evidence of error on the
part of OWCP in its last merit decision dated March 8, 2018. OWCP denied his traumatic injury
claim because he had not submitted medical evidence containing a medical diagnosis in connection
with the accepted November 1, 2017 incident. The evidence submitted failed to raise a substantial
question concerning the correctness of OWCP’s March 8, 2018 decision.22
Appellant submitted a November 1, 2017 emergency room report from Dr. Kocherla who
indicated that appellant reported experiencing acute midline and right-sided low back pain
radiating down the back of his right thigh after an incident at work on even date. Dr. Kocherla
noted findings on examination and diagnosed low back strain and right-sided sciatica. The
findings of November 1, 2017 x-rays of appellant’s lumbar spine contained an impression of no
acute finding. Appellant also submitted administrative documents from his November 1, 2017
emergency room visit. The Board notes, however, that Dr. Kocherla’s report and the diagnostic
testing report did not provide a clear opinion on the cause of the diagnosed conditions and appellant
failed to explain how the evidence submitted raised a substantial question regarding the correctness
of OWCP’s March 8, 2018 decision. In addition, the submitted administrative documents would
not demonstrate error with respect to the medical issue considered in that decision, i.e., whether
appellant submitted sufficient medical evidence to establish a November 1, 2017 employment
injury.
As noted, the term clear evidence is a difficult standard and it is not enough to show that
the evidence could be construed to produce a contrary conclusion.23 None of the evidence
submitted by appellant in connection with his untimely reconsideration request manifests on its
face that OWCP committed an error in denying his traumatic injury claim. Appellant has not
submitted evidence of sufficient probative value to raise a substantial question as to the correctness
of OWCP’s decision.24 Thus, the evidence of record is insufficient to demonstrate clear evidence
of error.
On appeal appellant asserts that OWCP improperly denied his claim for a traumatic injury
and indicated that he has received several bills relating to treatment for his claimed injury that have
not been paid. As noted, however, the Board does not have jurisdiction over the merits of the
claim. Appellant has not presented evidence or argument that raises a substantial question as to
the correctness of OWCP’s March 8, 2018 decision for which review is sought.25
The Board finds that the evidence submitted in support of the untimely request for
reconsideration is insufficient to shift the weight of the evidence in favor of appellant’s claim or
to raise a substantial question that OWCP erred in its March 8, 2018 decision. Accordingly, the

22

See P.T., Docket No. 18-0494 (issued July 9, 2018).

23

See supra notes 13 and 16; see also W.D., Docket No. 19-0062 (issued April 15, 2019); R.M., Docket No.
18-1393 (issued February 12, 2019).
24

See supra notes 11 and 12.

25

R.T., Docket No. 14-0779 (issued August 22, 2014).

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Board finds that OWCP properly denied his reconsideration request, finding that it was untimely
filed and failed to demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
ORDER
IT IS HEREBY ORDERED THAT the April 26, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 26, 2020
Washington, DC

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

Janice B. Askin, 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
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Spokane, WA,
Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 12-1536 &
13-255
Issued: March 20, 2013

Case Submitted on the Record

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

JURISDICTION
On July 9, 2012 appellant filed a timely appeal from a June 27, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP) finding an overpayment of compensation
and denying waiver of recovery. The Board assigned Docket No. 12-1536. On November 13,
2012 appellant, through his attorney, filed a timely appeal from a June 8, 2012 schedule award
decision.1 The Board assigned Docket No. 13-255. 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 these issues.
ISSUES
The issues are: (1) whether appellant has more than a 37 percent permanent impairment
of the right lower extremity; (2) whether he received an overpayment of $54,008.31 because he
received inaccurate schedule award compensation; and (3) whether OWCP properly denied
waiver of recovery of the overpayment.
1

Appellant retained counsel after filing the first appeal.

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 26, 2008 appellant, then a 45-year-old electronics technician, filed a traumatic
injury claim alleging that he sustained right knee pain on June 20, 2008 in the performance of
duty. OWCP accepted the claim for right knee sprain, a medial meniscus tear and a temporary
aggravation of right knee degenerative joint disease. Appellant underwent a partial medial
meniscectomy of the right knee on October 30, 2008. He stopped work on October 30, 2008 and
returned to work in January 2009.
On March 20, 2009 appellant filed a claim for a schedule award. By decision dated
May 12, 2009, OWCP denied his schedule award claim. It determined that appellant had not
reached maximum medical improvement. In a decision dated September 25, 2009, OWCP’s
hearing representative affirmed the May 12, 2009 decision.
On January 12, 2010 appellant underwent a total right knee replacement. He returned to
modified employment on April 21, 2010. In a report dated June 30, 2010, Dr. Alan Alyea, a
Board-certified orthopedic surgeon, found a small amount of mediolateral laxity and measured
flexion of more than 120 degrees with full extension.
In an impairment evaluation dated December 20, 2010, Dr. John W. Ellis, Board-certified
in family medicine, evaluated the extent of appellant’s bilateral knee impairment.3 On the right
side, he measured 101 degrees of right knee flexion and negative 8 degrees extension with
“moderately severe laxity of the medial collateral and lateral collateral ligaments” and “moderate
laxity of the anterior cruciate ligament.” Dr. Ellis applied Table 16-3 on page 511 of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009) (A.M.A., Guides) to the clinical findings. He identified a class 4 impairment due to
appellant’s total knee replacement, which yielded a default value of 67 percent. Dr. Ellis applied
grade modifiers and concluded that he had a 59 percent permanent impairment of the right lower
extremity.
On February 8, 2011 OWCP’s medical adviser noted that Dr. Alyea found a small
amount of mediolateral laxity while Dr. Ellis found moderately severe laxity of the medial and
lateral collateral ligaments and moderate laxity of the anterior cruciate ligament. He
recommended a second opinion examination to determine whether appellant’s condition had
worsened and the extent of his right lower extremity impairment.4
On June 1, 2011 Dr. Kenneth S. Bayles, an osteopath, provided a second opinion
examination, diagnosed status partial right medial meniscectomy and subsequent right total knee
replacement arthroplasty with slight ligamental laxity.5 He measured 100 degrees of right knee
flexion and 0 degrees extension. Dr. Bayles found that Lachman’s test and drawer tests showed
“slight laxity on the right” with weaker quadriceps strength “due to knee pain with give-away
weakness.” He noted that appellant had an “antalgic gait favoring his right knee” and was
3

Appellant has a separate claim for the left knee.

4

In an April 22, 2011 response to OWCP’s request for information, Dr. Alyea advised that he believed that
appellant was stable at the time of his June 30, 2010 evaluation and that he had not evaluated him since that time.
5

Dr. Bayles also evaluated the extent of impairment of appellant’s left knee.

2

unable to squat or heel or toe walk. Dr. Bayles utilized Table 16-3 of the A.M.A., Guides to
identify the diagnosis as a total knee replacement, class 4, applicable to total knee replacements
with a poor result due to instability, loss of motion or poor position. He related:
“Using Table 16-6, [F]unctional [H]istory (GMFH) adjustment, the claimant falls
into modifier grade 3 with severe problems with antalgia. Using Table 16-7,
[P]hysical [E]xam[ination] (GMPE) adjustment modifier, the claimant falls into
grade 3, for severe palpatory findings and limited range of motion. Using Table
16-8, [C]linical [S]tudies (GMCS) adjustment, there is no available imaging
studies, giving a grade modifier 0.”
Dr. Bayles concluded that appellant had a 59 percent permanent impairment of the right lower
extremity.
On July 28, 2011 OWCP’s medical adviser reviewed Dr. Bayles’ report and stated:
“For the right knee, the history and physical reported by Dr. Bayles is very
detailed and complete. The [t]able references are correct. The total knee
arthroplasty, on the basis of impairment range of motion and joint instability is a
DBI [diagnosis-based impairment] [c]lass 4 ([p]oor result), with a grade C value
of 67 percent. Again a man of few words when it comes to his rationale,
Dr. Bayles applies grade modifiers to reduce the grade of C to a grade of A, which
is a PPI [permanent partial impairment] of 59 percent. Although he does not
show the worksheets or the math, he appears to be tracking the correct process of
DBI classification and grade modification and his history and physical
exam[ination] clearly support his conclusions.”
OWCP’s medical adviser found that he was unable to determine the extent of physical
impairment for the left side due to differences in physical examination but opined that the extent
of the impairment of the right lower extremity was 59 percent due to appellant’s unstable total
knee replacement. He then related that an impartial medical examination was required in view of
the difference in the findings of Dr. Ellis and Dr. Bayles regarding the bilateral knees and the
issue of “whether the right knee post arthroplasty is stable or unstable….”
By decision dated September 1, 2011, OWCP granted appellant a schedule award for a 59
percent permanent impairment of the right leg. The period of the award ran for 169 weeks from
June 30, 2010 to October 1, 2013.6
On December 15, 2011 OWCP found a conflict in medical evidence existed between
Dr. Ellis on one side and Dr. Bayles and OWCP’s medical adviser on the other side regarding the
extent of appellant’s permanent impairment of the right lower extremity.7

6

On September 19, 2011 OWCP paid appellant the remainder of his schedule award for the period September 25,
2011 to October 1, 2013 in a lump sum of $92,092.63.
7

In a progress report dated January 4, 2012, Dr. Alyes measured flexion of the right knee of 125 degrees from
full extension. He found a “little bit of increased medial lateral laxity in all positions, but the knee is well balanced.”

3

By letter dated March 1, 2012, OWCP referred appellant to Dr. Donald D. Hubbard, a
Board-certified orthopedic surgeon, to resolve a conflict in medical opinion. In a report dated
March 23, 2010, Dr. Hubbard reviewed the history of injury and the medical reports of record.
He discussed appellant’s complaints of his right knee pain and his inability to squat, kneel or
climb stairs. Dr. Hubbard found that the knees were “stable to posterior drawer testing for
instability” but that with “approximately 10 degrees flexion there is mild-to-moderate
instability.” He diagnosed right knee pain due to status post right medial meniscus partial
excision, right knee joint arthrosis/degenerative arthritis and status post right total knee
arthroplasty. Applying the sixth edition of the A.M.A., Guides, Dr. Hubbard found that
appellant had a class 3 impairment due to his total knee arthroplasty which yielded a default
impairment of 37 percent using Table 16-3 on page 511. He applied a grade modifier of 3 for
functional history due to appellant’s inability to squat or climb stairs, a grade modifier of 3 for
physical examination due to his restricted knee motion and a grade modifier of 0 for x-ray
findings of a stable total knee replacement. Dr. Hubbard applied the net adjustment formula to
find no adjustment from the 37 percent lower extremity impairment.
On April 17, 2012 OWCP’s medical adviser reviewed Dr. Hubbard’s report. He noted
that Dr. Hubbard found a mild-to-moderate positive right anterior drawer test and loss of range
of motion and placed appellant in a class 3 impairment with a default value of 37 percent. The
medical adviser determined that Dr. Hubbard’s modifiers would reduce the grade from an A to a
C but found that the “modifiers are very subjective and confused in this case, with conflicting
views presented at different times by different observers.” He concluded that appellant had a 37
percent permanent impairment of the right lower extremity.
On May 17, 2012 OWCP advised appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $54,008.31 because it incorrectly
determined the extent of his right lower extremity impairment. It further advised him of its
preliminary determination that he was without fault in the creation of the overpayment. OWCP
requested that appellant complete the enclosed overpayment recovery questionnaire and submit
supporting financial documents. Additionally, it notified him that, within 30 days of the date of
the letter, he could request a telephone conference, a final decision based on the written evidence
or a prerecoupment hearing.
On May 19, 2011 appellant submitted an overpayment recovery questionnaire. He
questioned the need for another examination given that he had attended two evaluations and both
physicians found that he had a 59 percent impairment. Appellant requested a telephone
conference.
A conference was held on June 7, 2012. In a decision dated June 8, 2012, OWCP granted
appellant a corrected schedule award for a 37 percent permanent impairment of the right lower
extremity, reduced from the original 59 percent award. The period of the award ran for 106.58
weeks from June 30, 2010 to July 14, 2012.
By decision dated June 27, 2012, OWCP found that appellant received an overpayment
of $54,008.31 because it had inaccurately calculated his schedule award compensation. It found
that he was without fault in creating the overpayment but denied waiver of recovery. OWCP
requested that appellant submit the full amount of the overpayment.

4

On appeal, counsel argues that the record did not contain a conflict in medical opinion at
the time of OWCP’s referral to Dr. Hubbard as Dr. Ellis, Dr. Bayles and OWCP’s medical
adviser found that he had a 59 percent permanent impairment of the right lower extremity. He
argues that there is no overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA8 and its implementing federal regulations9 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. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.10 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.11
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on functional history, physical
examination and clinical studies.12 The net adjustment formula is (GMFH-CDX) + (GMPECDX) + (GMCS-CDX).
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.13 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.14
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained right knee sprain, a right medial meniscus tear
and a temporary aggravation of right knee degenerative joint disease due to a June 20, 2008
employment injury. He underwent a partial medial meniscectomy on October 30, 2008 and a
total knee replacement on January 12, 2010. In a report dated June 30, 2010, Dr. Alyea provided
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404(a).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
12

A.M.A., Guides 494-531.

13

5 U.S.C. § 8123(a).

14

20 C.F.R. § 10.321.

5

measurements for flexion of 120 degrees and found that appellant had a small amount of
mediolateral laxity.
Appellant submitted a December 20, 2010 impairment evaluation from Dr. Ellis, which
reflected 101 degrees of flexion from negative 8 degrees of extension and found moderately
severe medial and lateral collateral ligament laxity. Dr. Ellis used the knee regional grid set forth
in Table 16-3 of the A.M.A., Guides in determining that appellant had a 59 percent permanent
impairment of the right lower extremity due to his total knee replacement.
OWCP’s medical adviser reviewed Dr. Ellis report and recommended a second opinion
examination in view of the different physical findings of Dr. Alyea and Dr. Ellis. OWCP
referred appellant to Dr. Bayles for a second opinion examination. In a report dated June 1,
2011, Dr. Bayles measured 100 degrees of flexion and 0 degrees extension of the right knee and
found slight ligamental laxity and an anatalgic gait favoring the right side. He found a loss of
strength of the quadriceps with “give-away weakness” and noted that appellant could not squat
or walk on his heels or toes. Dr. Bayles utilized Table 16-3d in finding that appellant had a class
4 impairment of the right knee due to a poor result from a total knee replacement. He applied
grade modifies and concluded that he had a 59 percent permanent impairment of the right lower
extremity.
On July 28, 2011 OWCP’s medical adviser concurred with Dr. Bayles’ finding of a 59
percent impairment due to the right total knee replacement. He further stated, however, that a
conflict existed regarding the stability of the right arthroplasty. OWCP determined that a
conflict existed between Dr. Ellis on one side and Dr. Bayles and the medical adviser on the
other side regarding the extent of appellant’s right lower extremity impairment. It referred
appellant to Dr. Hubbard for an impartial medical examination. There was, however, no conflict
between Dr. Ellis and Dr. Bayles at the time of OWCP’s referral to Dr. Hubbard on the issue of
the extent of appellant’s permanent impairment. Despite the conflict as to the amount of
instability of the knee as both physicians, nonetheless, found that he had a 59 percent permanent
impairment of the right lower extremity. While the medical adviser indicated that an impartial
medical examination was required to determine the stability of the right knee replacement, he
also agreed with Dr. Bayles’ impairment rating and asserted that Dr. Bayles’ examination and
history “clearly support[ed]” his conclusions. As the record contained no conflict at the time of
OWCP’s referral of appellant to Dr. Hubbard, his report is that of a second opinion examiner
rather than an impartial medical specialist.
On March 23, 2010 Dr. Hubbard noted that appellant could not climb stairs, squat or
kneel due to right knee problems. On examination, he found mild-to-moderate instability with
flexion. Dr. Hubbard determined that appellant had a class 3 impairment due to his total knee
arthroplasty which yielded a default impairment of 37 percent according to Table 16-3. He
applied a grade modifier of 3 for functional history due to appellant’s inability to squat, climb
stairs or kneel, a grade modifier of 3 for physical examination due to his restriction knee motion,
and a grade modifier of 0 for x-ray findings of a stable total knee replacement. Dr. Hubbard
determined that there was no adjustment from the 37 percent right lower extremity impairment.
The Board finds that the record now contains a conflict between Dr. Ellis and
Dr. Hubbard regarding the extent of appellant’s right lower extremity impairment.15 Section
15

See Bryan O. Crane, 56 ECAB 713 (2005).

6

8123 of FECA provides that if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.16 On remand, OWCP should refer appellant to
an appropriate physician for an impartial medical examination. Following this and any further
development deemed necessary, it shall issue an appropriate decision.17
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 27 and 8, 2012 decisions of the Office of
Workers’ Compensation are set aside and the case is remanded for further proceedings consistent
with this opinion of the Board.
Issued: March 20, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

16

5 U.S.C. § 8123(a).

17

In view of the Board’s disposition of the schedule award issue, it is premature to address the issue of whether
appellant received an overpayment of compensation.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Durham, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-2428
Issued: February 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 10, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 16, 2008, affirming the termination of her
compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate compensation for
wage-loss and medical benefits effective February 17, 2008.
FACTUAL HISTORY
Appellant filed a claim alleging that on February 12, 1998 she sustained a needle stick
injury in the performance of duty as a nurse.1 The claim was accepted for a needle prick to the
1

Appellant filed both a CA-1 (traumatic injury) and CA-2 (occupational injury) regarding the incident.

third finger of the left hand and hepatitis C.2 Appellant began receiving compensation for
temporary total disability.
In a work capacity evaluation (OWCP-5c) dated November 4, 2003, the attending
physician, Dr. Paul Killenberg, stated that the hepatitis C had been cured. He noted that
appellant was having joint symptoms not due to chronic hepatitis C. Dr. Killenberg provided
work restrictions, such as two hours standing per day, and indicated the restrictions would apply
“until rehab[ilitation] of arthropathy.” By report dated December 17, 2003, Dr. Rex McCallum,
a rheumatologist, noted that appellant had been treated for hepatitis C with alfa interferon. He
reported “intermittent neuropathy secondary to hepatitis C and alfa interferon.” Dr. McCallum
provided results on examination and concluded that appellant most likely had fibromyalgia.
Appellant also submitted reports from a Dr. Ruth Guyer commencing November 22, 2005
diagnosing fibromyalgia.
The Office referred appellant, medical records and a statement of accepted facts to a
Dr. Obiefuna P. Okoye. In a report dated November 1, 2007, Dr. Okoye provided a history and
results on examination. He diagnosed “chronic hepatitis C, treated,” fibromyalgia by history and
degenerative joint disease. Dr. Okoye concluded that appellant had been treated for hepatitis C,
and could stand or walk for at least four to six hours provided she had routine breaks.
In an OWCP-5c dated November 8, 2007, Dr. Okoye stated that appellant “has
arthropathy which may or may not be related to medication used for her hepatitis C.” In a report
dated November 9, 2007, Dr. Okoye, in response to a question as to whether the accepted
condition was still active, stated that the hepatitis C had been treated. He indicated that appellant
could work with restriction sand again stated that appellant had arthropathy that may or may not
be related to the medication used for hepatitis C.
In a report dated November 16, 2007, the Office medical adviser opined that there were
no residuals of the hepatitis C. He attributed the generalized joint pain to an age-related process.
Dr. Okoye submitted an additional report dated November 20, 2007, stating that appellant
completed her hepatitis C treatment in June 2003.
By letter dated January 3, 2008, the Office advised appellant that it proposed to terminate
her compensation for wage-loss and medical benefits. Appellant submitted a January 23, 2008
letter stating that, while she did not dispute she was no longer infected with hepatitis C, she felt
the current symptoms were related to the infection or the medication used to treat the condition.
By decision dated February 7, 2008, the Office terminated compensation for wage-loss
and medical benefits effective February 17, 2008. Appellant requested a review of the written
record. In a decision dated May 16, 2008, the Office hearing representative affirmed the
February 7, 2008 decision. With respect to arthropathy or fibromyalgia, the hearing
representative found Dr. Okoye’s opinion was equivocal and not sufficient to establish causal
relationship.

2

The accepted condition was subsequently described as an open wound of the finger.

2

LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.3
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition which require
further medical treatment.4
ANALYSIS
The accepted conditions in this case were the needle prick to the third finger of the left
hand and hepatitis C. The medical evidence clearly indicated that these conditions had resolved
prior to February 17, 2008. Appellant’s physician, Dr. Killenberg, indicated on November 4,
2003 that the hepatitis C had been cured. The second opinion physician, Dr. Okoye, indicated
that the hepatitis C had previously been treated and his reports do no indicate any continuing
hepatitis condition. An Office medical adviser also opined that the condition had resolved, and
appellant herself does not dispute that she no longer has hepatitis C.
Based on the medical evidence of record, the Board finds the Office met its burden of
proof to terminate compensation for wage-loss and medical benefits based on the accepted
conditions.
The May 16, 2008 decision, however, raises another issue. Appellant has contended that
she developed a consequential injury from her accepted condition or the medication used to treat
the hepatitis C. It is well established that every natural consequence that flows from the
employment injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause.5 The second opinion physician, Dr. Okoye, in responding to the
Office’s inquiry as to work restrictions, stated that appellant has an arthropathy condition that
“may or may not” be related to the hepatitis C medication. While the hearing representative is
correct that this opinion is equivocal, Dr. Okoye is a second opinion physician, not an attending
physician. Since the Office referred appellant to Dr. Okoye it has the responsibility to secure a
probative medical report resolving the issue.6

3

Patricia A. Keller, 45 ECAB 278 (1993).

4

Furman G. Peake, 41 ECAB 361 (1990).

5

See Kathy A. Kelley, 55 ECAB 206 (2004). It is appellant’s burden of proof to establish a consequential injury.

Id.
6

See Robert Kirby, 51 ECAB 474, 476 (2000); Mae Z. Hackett, 34 ECAB 1421 (1983); Richard W. Kinder, 32
ECAB 863 (1981). Compare Charles W. Downey, 54 ECAB 421 (2003), where the second opinion referral
physician provided a rationalized opinion that the claimant’s diabetes condition was not a consequence of his
employment injuries.

3

The case will be remanded to the Office for additional development on the issue of
whether appellant developed a consequential injury as a result of the accepted hepatitis C or
treating medication. After such further development as the Office deems necessary, it should
issue an appropriate decision.
CONCLUSION
The Office met its burden of proof to termination compensation for the accepted
employment injuries. The case is remanded for further development on the issue of whether
appellant developed an arthropathy or other condition as a consequence of her employment
injuries.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 16, 2008 and February 7, 2008 are affirmed with respect to
termination of compensation. The case is remanded for further development on the issue of
whether appellant developed an additional employment-related injury.
Issued: February 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4