United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.Z., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

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Appearances:
Lonnie Boylan, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1544
Issued: March 4, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 30, 2014 appellant, through her representative, filed a timely appeal from a
March 6, 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.
ISSUE
The issue is whether appellant met her burden of proof to establish injuries to her back,
neck, shoulders, arms, and lower extremities in the performance of duty.
On appeal, counsel contends that the medical evidence sufficiently established causal
relationship, particularly the reports from Dr. Kimy Charani, a physician Board-certified in
osteopathic manipulative medicine, and Dr. Demitri Adarmes, a Board-certified physiatrist.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 21, 2012 appellant, then a 56-year-old rural carrier associate, filed an
occupational disease claim (Form CA-2) alleging that she injured her back, neck, shoulders,
arms, and lower extremities due to factors of her federal employment, including lifting tubs,
pushing heavy carts of mail, twisting, driving, and walking. She became aware of her condition
on December 2, 2011 and attributed it to her federal employment on December 28, 2011.2
On December 28, 2011 Dr. Charani excused appellant from work until January 16, 2012
“due to illness.”
In a June 6, 2012 report, Dr. Adarmes stated that appellant complained of right low back
pain, right hip pain, and right leg pain. He indicated that the date of injury was May 21, 2007
when she was involved in a motor vehicle accident while delivering mail and sustained injuries
to her right shoulder, neck, low back, left knee, and forehead. Appellant stated that “everything
ha[d] improved except the low back pain and the right shoulder pain” and that “she had right
lower extremity pain since the accident.” She reported that she had neck surgery in 2009 and
subsequently underwent a fusion. Dr. Adarmes noted that appellant had a claim accepted for
neck sprain, cervical myelopathy, and lumbar sprain3 and diagnosed right greater trochanteric
bursitis and right sacroiliac joint pain.
In an October 1, 2012 letter, OWCP notified appellant of the deficiencies of her claim
and requested factual and medical evidence. It afforded her 30 days to submit additional
evidence and respond to its inquiries.
Appellant submitted a narrative statement dated October 8, 2012 and a series of pay
stubs.
In an October 16, 2012 report, Dr. Adarmes diagnosed increased muscular tone and
motor weakness in the upper and lower limbs secondary to cervical myelopathy. He opined that
appellant’s accepted conditions of cervical disc herniation and lumbosacral sprain were
permanently aggravated by her repeated lifting of tubs of mail every day, pushing heavy carts
filled with mail, and getting in and out of her postal vehicle “on a more probable than not basis.”
On October 22, 2012 the employing establishment indicated that appellant had been a
rural carrier associate for the past 10 years. Appellant’s duties included: delivering a hamper of
mail to four prisons, lifting tubs of mail, and delivering mail from a postal vehicle.
By decision dated January 8, 2013, OWCP denied the claim on the basis that the medical
evidence failed to establish a causal relationship between appellant’s condition and the
established factors of her federal employment.
2

Appellant has the following additional claims: xxxxxx854 (May 21, 2007 motor vehicle accident); xxxxxx431
(October 15, 2009 short form closure); xxxxxx699 (February 13, 2010 recurrence of the May 21, 2007 injury);
xxxxxx901 (September 15, 2010 date of injury); and xxxxxx270 (February 22, 2011 stress condition).
3

OWCP No. xxxxxx854.

2

On January 15, 2013 appellant, through her representative, requested an oral hearing
before an OWCP hearing representative.
Appellant submitted reports dated December 28, 2011 through February 15, 2013 from
Dr. Charani, who diagnosed chronic cervical and lumbar pain with right leg radiculopathy,
myofascial pain across the lower back, chronic right hip pain, and chronic right leg pain due to
motor vehicle accident. On March 20, 2012 Dr. Charani indicated that a study revealed leftsided radiculopathy, although most of appellant’s pain was down the right leg at that time. On
May 10, 2012 he found a positive abnormal electromyography (EMG), which revealed a right
leg radiculopathy. Dr. Charani opined that appellant was not capable of performing the
repetitive tasks required by her federal employment, including sitting, driving, stooping, bending,
and lifting.
On May 1, 2012 Dr. Ali Araghi, an orthopedic surgeon, diagnosed lumbago, lumbalgia,
and lumbar radiculopathy. He stated that her chief complaint was low back pain due to a motor
vehicle accident that occurred on May 21, 2007. Appellant returned to work in May 2009 and
continued to have lower back pain radiating down her right leg which was aggravated by
bending forward, leaning back, sitting, standing, walking, physical activity, rising out of
bed/chair, coughing, and sneezing. Upon examination, Dr. Araghi found no erythema, no
significant joint swelling, no tenderness to palpation, no sign of instability, and range of motion
within functional limits in the bilateral upper and lower extremities.
In a January 25, 2013 report Dr. George Wang, a sleep medicine specialist, diagnosed
cervical radiculopathy, neck pain, cerebral concussion, headache, and migraine. He indicated
that appellant’s conditions began in 2007 subsequent to a motor vehicle accident on the job.
On April 16, 2013 a telephonic oral hearing was held before an OWCP hearing
representative.
By decision dated July 3, 2013, the hearing representative affirmed the January 8, 2013
decision.
On January 7, 2014 appellant, through her representative, requested reconsideration and
submitted a position description and terms of employment.
In a July 31, 2013 report, Dr. Charani stated that he initially saw appellant on
December 9, 2008 for an employment-related motor vehicle injury, which occurred on
May 21, 2007. He reported that she underwent cervical spinal surgery on March 5, 2009 and
continued to have issues, particularly in the lower back with radiculopathy into the right leg,
which was made worse by her continued work schedule at the employing establishment.
Dr. Charani indicated that appellant’s duties included repeated bending, lifting, squatting,
walking, sitting, and climbing in and out of her vehicle. Appellant filled and pushed one to two
carts filled with mail weighing anywhere between 70 to 100 pounds each day. Her duties also
included a lot of driving, which at times was 30 miles of unpaved roads with lots of bumps.
Dr. Charani stated that over the course of two years it came to a point where appellant could no
longer function at work due to her chronic pain issues. He reported that an October 19, 2011
magnetic resonance imaging (MRI) scan revealed degenerative disc disease with possible

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radiculopathy on her EMG. Dr. Charani stated that he took appellant off work and put her on
full disability beginning December 28, 2011 because of her deteriorating condition and the
constant pain in her neck, lower back, down her leg, and into her shoulder and because her pain
was not being adequately controlled with medication. He opined that her injuries were chronic
in nature and “clearly related to the activities of her work.”
An MRI scan of the cervical spine dated October 2, 2013 showed anterior cervical
discectomy and fusion with hardware in place from C5-7, mild spinal stenosis at C4-5,
effacement of the central subarachnoid space at C6-7 and small focus of myelomalacia in the
spinal cord at C5-6.
An MRI scan of the lumbar spine dated October 16, 2013 revealed no spinal canal or
neural exit foraminal stenosis, a straightened thoracolumbar lordosis, circumferential disc
bulging, disc desiccation, endplate hypertrophic degenerative changes, and posterior element
degenerative changes.
In a November 1, 2013 report, Dr. Adarmes indicated that appellant was first seen on
June 6, 2012 for evaluation of her right shoulder, neck, low back, left knee, and forehead pain
that began after a motor vehicle accident in 2007. Abnormal findings on his examination of
appellant showed a magnetic shuffling gait, wide-based station, restriction of lumbar flexion and
extension and a positive right Patrick’s test. Muscle strength was 4/5 in both lower limbs.
Appellant had right C5 and C6 myotomal weakness rated with strength of 3/5. She had positive
bilateral Babinski reflexes and increased muscle tone in the upper and lower limbs. Dr. Adarmes
stated that it was “a miracle that she returned to work in a physically demanding position
considering that she sustained a spinal cord injury in the mid cervical spine.” He reviewed the
physical requirements of appellant’s federal employment and opined that the repetitive physical
demands of her job had a direct impact on her cervical and lumbar spine conditions.
Dr. Adarmes opined that her “lumbar spine intervertebral disc disorder was permanently
aggravated as a consequence of the physical demands of her job on a more probable than not
basis.” He indicated that repetitive carrying, lifting, and pushing, as well as prolonged standing
to sort mail and operating a vehicle on unpaved roads “can cause injury or exacerbate already
injured lumbar discs and contribute to degenerative changes in the lumbar spine.” Dr. Adarmes
further indicated that repetitive reaching activities, carrying, lifting, pushing, pulling, and driving
a vehicle “also contribute to [appellant’s] cervical spine problem.” He concluded that appellant’s
workplace exposure of repetitive lifting, bending, stooping, twisting, pushing, pulling, climbing,
and operating a motor vehicle while performing her federal duties accelerated the expected
progression of her preexisting conditions of intervertebral disc disorder with myelopathy of the
cervical region and lumbosacral sprain with evidence of left L4, L5, and S1 radiculopathy.
Dr. Adarmes opined that “her present debilitating condition would not have manifested itself but
for her employment.”
By decision dated March 6, 2014, the hearing representative affirmed the July 3, 2013
decision.

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LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury5 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on whether there
is a causal relationship between the employee’s diagnosed condition and the implicated
employment factors.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 the specific employment factors identified by the employee.9
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish a claim that
federal employment factors caused or aggravated her back, neck, bilateral upper and lower
extremity conditions. Appellant submitted a statement in which she identified the factors of
employment that she believed caused the conditions, including lifting tubs, pushing heavy carts
of mail, twisting, driving, and walking. However, in order to establish a claim that she sustained
an employment-related injury, she must also submit rationalized medical evidence which

4

See supra note 2.

5

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
6

See J.C., Docket No. 09-1630 (issued April 14, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004).

7

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

8

See D.N., Docket No. 10-1762 (issued May 10, 2011).

9

See D.E., Docket No. 07-27 (issued April 6, 2007). See also Victor J. Woodhams, 41 ECAB 345 (1989).

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explains how her medical conditions were caused or aggravated by the implicated employment
factors.10
In his reports, Dr. Charani diagnosed chronic cervical and lumbar pain with right leg
radiculopathy, myofascial pain across the lower back, chronic right hip pain, and chronic right
leg pain due to motor vehicle accident. He opined that appellant was not capable of performing
the repetitive tasks required by her federal employment, including sitting, driving, stooping,
bending, and lifting. In his report dated July 31, 2013, Dr. Charani stated that he initially saw
her on December 9, 2008 for an employment-related motor vehicle injury, which occurred on
May 21, 2007. He reported that appellant underwent cervical spinal surgery on March 5, 2009
and continued to have issues, particularly in the lower back with radiculopathy into the right leg,
which was made worse by her continued work schedule at the employing establishment.
Dr. Charani indicated that appellant’s duties included repeated bending, lifting, squatting,
walking, sitting, climbing in and out of her vehicle, and driving, which at times was 30 miles of
unpaved roads with lots of bumps. He stated that over the course of two years it came to a point
where she could not function any longer at work due to her chronic pain issues. Dr. Charani
stated that he took appellant off work and put her on full disability beginning December 28, 2011
because of her deteriorating condition and her constant pain in her neck, lower back, down her
leg and into her shoulder and because her pain was not being adequately controlled with
medication. He opined that her injuries were chronic in nature and “clearly related to the
activities of her work.” Dr. Charani failed to directly address the issue of causal relationship as
he did not provide a rationalized medical opinion explaining how factors of appellant’s federal
employment, such as repeated bending, lifting, squatting, walking, sitting, driving, and climbing
in and out of her vehicle, caused or aggravated her conditions. The Board has held that the mere
fact that her symptoms arise during a period of employment or produce symptoms revelatory of
an underlying condition does not establish a causal relationship between her condition and her
employment factors.11 Although Dr. Charani noted that appellant’s conditions occurred while
she was at work and stated that her injuries were “clearly related to the activities of her work,”
such generalized statements do not establish causal relationship because they are unsupported by
adequate medical rationale explaining how her physical activity at work actually caused or
aggravated the diagnosed conditions.12 Thus, the Board finds that his reports are insufficient to
establish that she sustained an employment-related injury.
In his reports, Dr. Adarmes diagnosed right greater trochanteric bursitis, right sacroiliac
joint pain, increased muscular tone, and motor weakness in the upper and lower limbs secondary
to cervical myelopathy. He opined that appellant’s accepted conditions of cervical disc
herniation and lumbosacral sprain were permanently aggravated by her repeated lifting of tubs of
mail every day, pushing heavy carts filled with mail and getting in and out of her postal vehicle
“on a more probable than not basis.” On November 1, 2013 Dr. Adarmes stated that it was “a
miracle that she returned to work in a physically demanding position considering that she
10

See A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005);
Leslie C. Moore, 52 ECAB 132 (2000).
11

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

12

See K.W., Docket No. 10-98 (issued September 10, 2010).

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sustained a spinal cord injury in the mid cervical spine.” He reviewed the physical requirements
of appellant’s federal employment and opined that the repetitive physical demands of her job had
a direct impact on her cervical and lumbar spine conditions. Dr. Adarmes opined that her
“lumbar spine intervertebral disc disorder was permanently aggravated as a consequence of the
physical demands of her job on a more probable than not basis.” He indicated that repetitive
carrying, lifting, and pushing, as well as prolonged standing to sort mail and operating a vehicle
on unpaved roads “can cause injury or exacerbate already injured lumbar discs and contribute to
degenerative changes in the lumbar spine.” Dr. Adarmes further indicated that repetitive
reaching activities, carrying, lifting, pushing, pulling, and driving a vehicle “also contribute to
[appellant’s] cervical spine problem.” He concluded that appellant’s workplace exposure of
repetitive lifting, bending, stooping, twisting, pushing, pulling, climbing, and operating a motor
vehicle while performing her federal duties accelerated the expected progression of her
preexisting conditions of intervertebral disc disorder with myelopathy of the cervical region and
lumbosacral sprain with evidence of left L4, L5 and S1 radiculopathy. Dr. Adarmes opined that
“her present debilitating condition would not have manifested itself but for her employment.”
He noted that appellant’s conditions occurred while she was at work, however, he repeatedly
maintained that her conditions were aggravated “on a more probable than not basis” and such
generalized statements do not establish causal relationship because they are unsupported by
adequate medical rationale explaining how her physical activity at work actually caused or
aggravated the diagnosed conditions.13 The Board finds that Dr. Adarmes failed to provide a
rationalized opinion explaining how factors of her federal employment, such as prolonged
standing, repetitive carrying, lifting, bending, stooping, twisting, pushing, pulling, climbing, and
operating a motor vehicle, caused or aggravated her conditions. Therefore, appellant has failed
to meet her burden of proof to establish a claim.
In his May 1, 2012 report, Dr. Araghi diagnosed lumbago, lumbalgia and lumbar
radiculopathy, indicating that appellant’s condition was aggravated by bending forward, leaning
back, sitting, standing, walking, physical activity, rising out of bed/chair, coughing, and
sneezing. He failed to provide a rationalized opinion explaining how factors of her federal
employment caused or aggravated her lumbar condition. Lacking thorough medical rationale on
the issue of causal relationship, the Board finds that Dr. Araghi’s reports are insufficient to
establish that appellant sustained an employment-related injury.
In his January 25, 2013 report, Dr. Wang diagnosed cervical radiculopathy, neck pain,
cerebral concussion, headache, and migraine. He indicated that appellant’s conditions began in
2007 subsequent to a motor vehicle accident on the job. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.14 As such, the Board finds that
appellant did not meet her burden of proof with the submission of this report.
In support of her claim, appellant submitted a position description, terms of employment,
and MRI scans dated October 2 and 16, 2013. These documents do not constitute competent
medical evidence as they do not contain rationale by a physician relating her disability to her
13

Id.

14

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

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employment.15 As such, the Board finds that appellant did not meet her burden of proof with
these submissions.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to the indicated employment factors, she
failed to meet her burden of proof to establish a claim.
On appeal, appellant’s representative contends that the medical evidence sufficiently
established causal relationship, particularly the reports from Dr. Charani and Dr. Adarmes. For
the reasons stated above, the Board finds that the representative’s arguments are not
substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish injuries to her
back, neck, shoulders, arms, and lower extremities in the performance of duty causally related to
factors of her federal employment.

15

See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N.
Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the March 6, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, 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
__________________________________________
A.J., Appellant
and
DEPARTMENT OF THE ARMY, MONTCRIEF
ARMY HOSPITAL, Fort Jackson, SC, Employer
__________________________________________

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

Docket No. 10-2012
Issued: July 1, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 3, 2010 appellant filed a timely appeal from a February 5, 2010 merit decision
of the Office of Workers’ Compensation Programs terminating her compensation benefits.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.2
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective February 13, 2010.

1
2

5 U.S.C. §§ 8101-8193.

Appellant’s appeal also sought review of her claim in Office file number xxxxxxx762. However, the claim file
does establish that the Office issued a decision within 180 days of the filing of the appeal on August 3, 2010. The
Board does not have jurisdiction over an Office decision in this claim file. See 20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
On May 14, 2002 appellant, then a 40-year-old medical records clerk, experienced
burning in her nasal passages after inhaling fumes from a stained door and perfume of employees
at work. On September 24, 2003 the Office accepted temporary aggravation of chronic chemical
irritant contact dermatitis.3 Appellant stopped work on the date of injury, May 14, 2002 and
returned to work on May 16, 2002. On August 9, 2002 she stopped work and subsequently
retired.
Appellant was initially treated by Dr. Billy J. Lance, a Board-certified family practitioner,
from June 14, 2001 to June 20, 2002 for several toxic exposures at work. Dr. Lance noted
treating her since March 27, 1989 for allergic rhinitis and asthma. On April 2, 2002 appellant
presented with tightness in the chest and nausea, which she attributed to burning odors and
strong perfumes at work. Dr. Lance diagnosed mild bronchial upper respiratory airway irritation
from odors on the job, smoke and perfume. On April 16, 2002 he noted that appellant was no
longer able to work as a radiology technician because of her work environment and was totally
disabled. On June 10, 2002 appellant reported being exposed to a burning smell and staining
fumes in the medical records department at work which caused chest tightness. On June 20,
2002 she presented with irritation of the upper and lower respiratory tract from toxic workplace
chemical fumes. Dr. Lance noted that a biopsy of her tongue revealed chronic irritant lesion.
On April 9, 2002 appellant was treated by Dr. Mark J. Mayson, a Board-certified
pulmonologist, for significant broncospastic disease and mild obstructive process. Dr. Mayson
noted exposure to aldehydes and sulfites produced bronchospasm. In a May 29, 2002 report, he
treated appellant for burning in her nasal passages and her chest associated with shortness of
breath. Dr. Mayson diagnosed chest discomfort of undetermined etiology. Appellant was seen
by Dr. Allan D. Lieberman, Board-certified in occupational medicine, on October 21, 2002, for
eye, ear and nose throat burning and chronic irritant dermatitis exacerbated by exposure to
volatile chemicals. Dr. Lieberman noted that onset of complaints with toxic chemicals came in
1993 when working in the radiology department. He noted that chemicals used in x-ray
processing and to which appellant was chronically exposed by dermal and inhalational routes
caused skin and respiratory problems. Dr. Lieberman noted that appellant developed a
heightened sensitivity to odors.
On August 1, 2002 the employing establishment offered appellant a permanent
reassignment to the position of medical records clerk. Appellant accepted the position and
returned to work. On August 9, 2002 she stopped work and later retired. She elected to receive
wage-loss benefits from the Office.
In reports dated January 16 and October 10, 2006, Dr. Lance noted that appellant
continued to have significant medical problems with regard to her workplace polyallergy or
occupational exposure syndrome. He noted that her symptoms were manifested by chronic
perennial allergic rhinitis symptoms, recurrent bronchospasms, polyarthritis in the joints and
fatigue. Dr. Lance indicated that appellant was treated symptomatically and continued to be
3

The record also indicates that appellant filed previous claims for fume exposure at work.

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totally disabled. Similarly, in reports dated September 27, 2007 and September 29, 2008, he
noted appellant’s significant problems with bronchospasms when exposed to irritating chemical
with recurrent allergic rhinitis symptomology. Dr. Lance noted her condition significantly
inhibited her ability to perform activities of daily living and her exposure to the outside
environment was limited. He opined that appellant’s residual symptoms resulted from
workplace exposure to chemicals. Dr. Lance noted that she attempted to perform clerical work
on prior occasions but was unsuccessful due to personal hygiene measures of coworkers, dust,
fumes and other environmental irritants. He opined that appellant continued to remain totally
disabled.
In a September 1, 2009 statement of accepted facts, the Office noted that appellant had
five documented chemical exposure incidents: on May 22, 2001 she was exposed to noxious
odors while the mammography room was painted; on December 13, 2001 she was exposed to
chloroform from a spill in the employees work area; on April 2, 2002 she was exposed to odors
related to the draining of a sprinkler system; on April 22, 2002 she was exposed to perfume
fumes in her work area and on May 14, 2002 she was exposed to fumes from paint stain applied
to a door in the medical records area.
On September 11, 2009 the Office referred appellant to Dr. David Amrol, a Boardcertified pulmonologist, for a second opinion evaluation. In a report dated October 1, 2009,
Dr. Amrol discussed appellant’s work history. He noted symptoms of mild to moderate allergic
rhinitis with no evidence of asthma or reactive airway dysfunction syndrome. Dr. Amrol noted
that the methylcholine challenge was normal which excluded asthma and reactive airway
dysfunction. He found no current active respiratory condition except for allergic rhinitis and no
evidence of contact dermatitis. Dr. Amrol opined that appellant’s contact dermatitis had ceased.
He indicated that she was limited in occupation by her irritant rhinitis and noted that she would
be unable to work in environments that had strong smells, irritants, tobacco smoke, perfume,
ozone changes or abrupt temperature changes. Dr. Amrol opined that appellant’s condition was
due to her irritant rhinitis and was not the result of any form of reactive airway dysfunction
syndrome. He opined that she could resume successful employment and should work in an
environment in which there are no excessive irritant exposures and believed this would be
feasible with a regimen of medical care. Dr. Amrol opined that appellant’s diagnosed allergic
rhinitis and nonallergic rhinitis caused her headaches, fatigue, burning nose, itchy eyes and
congestion. He advised that her diagnoses should not prohibit her from pursuing active work.
Appellant submitted a September 18, 2009 report from Dr. Lance who noted that her
history was significant for working 13 years as a radiology technician with daily exposures to the
darkroom, chemicals and other cleaning agents used in the hospital. Dr. Lance noted that she
continued to have significant problems with bronchospasms when exposed to irritating chemicals
with recurrent allergic rhinitis symptomology. He noted that inflammation inhibited appellant’s
ability to perform activities of daily living and her exposure to the outside environment is
limited. Dr. Lance opined that her residual symptoms resulted from exposure to chemical in the
workplace. He noted that appellant continued to have problems with respiratory inflammations
and was unable to perform her work because of exposures causing eye, ear, nose and throat
irritation, chronic irritant dermatitis, reactive airway dysfunction. Dr. Lance noted that she
attempted to perform clerical work; however, this was not successful due to the personal hygiene
measures used by other workers in the workplace, plus dust, fumes and other environmental

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irritants to which she was exposed. He opined that the sequelae of appellant’s injury remained
present and unless she could work in a temperature controlled, isolated environment without
chemical or environmental irritants, she was unable to work. Dr. Lance opined that she remained
totally disabled.
On December 10, 2009 the Office proposed to terminate compensation benefits for
appellant’s accepted temporary aggravation of chronic chemical irritant contact dermatitis based
on Dr. Amrol’s October 1, 2009 report.
Appellant disagreed with the proposed action and submitted a July 31, 2001 report from
Dr. Lissy Menachery, a family practitioner, who treated appellant for work-related respiratory
exposure. Other reports from Dr. Edward Shumes, a Board-certified dermatologist, dated
March 7 and May 20, 2002, noted treatment for work-related contact dermatitis caused from
exposure to chemicals including glutaraldehyde. Appellant submitted an April 16, 2002 report
from Dr. Lance and reports from Dr. Lieberman dated October 21, 2002 and June 25 and
October 17, 2003, previously of record. She submitted a January 12, 2005 report from
Dr. R. Douglas Markham, Board-certified in allergy and immunology, who diagnosed significant
allergic rhinitis with recurrent sinusitis. Dr. Markham opined that exposure to various chemicals
as an x-ray technician and to other chemicals while working as a medical records technician
caused the onset of allergic rhinitis. Appellant submitted literature on glutaraldehyde.
By decision dated February 5, 2010, the Office terminated appellant’s compensation
benefits effective February 13, 2010.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.4 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.5 The right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.6
ANALYSIS
The Office accepted that appellant developed a temporary aggravation of chronic
chemical irritant contact dermatitis. Appellant stopped work on the date of injury, May 14, 2002
and returned to work on May 16, 2002. On August 9, 2002 she stopped work and subsequently
retired. The Office terminated appellant’s compensation effective February 13, 2010, based on
4

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

5

Mary A. Lowe, 52 ECAB 223 (2001).

6

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

4

Dr. Amrol’s report. The Board finds, however, that there is a conflict in medical opinion
between Dr. Amrol, the Office referral physician and Dr. Lance, appellant’s treating physicians.
In an October 1, 2009 report, Dr. Amrol opined that appellant did not have residuals of
her accepted condition. He found no current active respiratory condition except for allergic
rhinitis and no evidence of contact dermatitis which resolved. Dr. Amrol opined that appellant
could resume successful employment and should work in any environment in which there are no
excessive irritant exposures and believed this would be feasible with a regimen of medical care.
In contrast, Dr. Lance noted that she continued to have significant residuals of her work-related
injury with bronchospasms and recurrent allergic rhinitis symptomology. He opined that
appellant’s residual symptoms resulted from exposure to chemicals in the workplace and the
sequelae of her injury was still present and she remained totally disabled. Dr. Lance consistently
supported work-related disability related to her temporary aggravation of chronic chemical
irritant contact dermatitis. The Board, therefore, finds that a conflict in medical opinion has been
created.
Section 8123 of the Act7 provides that, if there is a disagreement between the physician
making the examination for the United States and the employee’s physician, the Office shall
appoint a third physician who shall make an examination.8 The Board finds that, because the
Office relied on Dr. Amrol’s opinion to terminate appellant’s compensation without having
resolved the existing conflict,9 the Office has failed to meet its burden of proof in terminating
medical and compensation benefits on the grounds that disability had ceased.10
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
benefits.

7

5 U.S.C. §§ 8101-8193.

8

Id. at § 8123(a); Shirley L. Steib, 46 ECAB 39 (1994).

9

See Craig M. Crenshaw, Jr., 40 ECAB 919, 923 (1989) (finding that the Office failed to meet its burden of
proof because a conflict in the medical evidence was unresolved).
10

Upon return of the case record, the Office shall combine all claim files pertaining to appellant’s exposure to
fumes. Office procedures provide for doubling case files where there is more than one claim involving similar
conditions or parts of the body. See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and
Management, Chapter 2.400.8(c)(1) (February 2000).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 5, 2010 is reversed.
Issued: July 1, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE, Washington, DC,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1042
Issued: November 8, 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 April 11, 2019 appellant, through counsel, filed a timely appeal from a November 9,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee
condition causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the prior Board decision are incorporated herein by reference. The relevant facts are
as follows.
On June 3, 2015 appellant, then a 58-year-old pipefitter, filed an occupational disease claim
(Form CA-2) alleging that he developed knee osteoarthritis as a result of his federal employment
duties. He reported that his injury was a result of the repetitious stress to his bilateral knees from
23 years of work servicing 430 plumbing fixtures. Appellant first became aware of his condition
on March 1, 2010 and of its relationship to his federal employment on February 1, 2015. He did
not stop work. OWCP initially denied the claim by decision dated September 8, 2015 as appellant
had not established that his diagnosed medical condition was causally related to the accepted
employment factors.
In a March 29, 2016 narrative report, Dr. Evan Crain, a Board-certified orthopedic surgeon,
reported that he initially evaluated appellant on December 16, 2015 for bilateral knee pain. He
reported that appellant had worked for over 23 years, initially as a plumber and later as a pipefitter.
Dr. Crain noted that appellant’s work required frequent squatting, kneeling, bending, and working
on his knees. He reported that appellant personally serviced 430 plumbing fixtures over the course
of 23 years, including toilets, sinks, and water fountains, which required that appellant be on his
knees to perform the work. Dr. Crain discussed appellant’s x-rays which revealed progressive
deterioration of the medial compartment in both knees as a result of his employment activities over
the years. He opined that, as a result of appellant’s employment duties, appellant developed a
meniscus tear of the right knee, which required arthroscopy, and which had caused deterioration
of the medial joint space that had collapsed to bone-on-bone contact. Based on these findings,
Dr. Crain concluded that there was a direct causal relationship between appellant’s
symptomatology and his work activities.
Following further development of the record, by decisions dated July 28, and
November 17, 2016, OWCP affirmed the denial of the claim.
On January 19, 2017 appellant, through counsel, again requested reconsideration and
submitted a January 9, 2017 report from Dr. Crain. In the January 9, 2017 report, Dr. Crain noted
submission of his prior March 29, 2016 report which summarized his findings and reviewed
appellant’s work activities. He opined that appellant experienced bilateral, right greater than left,
knee pain aggravated by his work activities, which he had performed over a 23-year time frame.
Dr. Crain also opined that those specific work activities caused further deterioration of his knees
and an increase in his symptomatology. He reported that appellant had undergone a previous right
knee arthroscopy for a tear of his medial meniscus. Dr. Crain explained that the tearing of the
3

Docket No. 17-1870 (issued April 11, 2018).

2

meniscus caused further deterioration of the knee joint to the extent that appellant had loss of shock
absorber on the medial side. He noted an exacerbation and worsening of appellant’s symptoms.
Dr. Crain reviewed appellant’s prior medical reports which documented prior knee pain.
Appellant was evaluated by Dr. Ricardo O. Pyfrom, a Board-certified orthopedic surgeon, on
November 27, 2012 due to complaints of right knee pain for several years. He had also related a
history that his right knee had been struck by a car 30 years ago. Appellant had previously been
diagnosed with arthritis and had worn knee braces. A prior magnetic resonance imaging (MRI)
scan was suggestive of a medial meniscus tear and arthroscopic surgery was recommended. On
April 3, 2013 appellant underwent surgery which revealed a large complex tear of the medial
meniscus. Surgery further revealed degenerative changes of the medial femoral condyle grade 3
and medial tibial plateau grade 4, as well as a chronically torn anterior cruciate ligament and
chondromalacia grade 3 of the patella. A partial medial meniscectomy and chondroplasty were
performed. Dr. Crain reported that appellant returned to work approximately four weeks
postsurgery. In 2014, appellant began treatment with a Dr. Joly who administered multiple
injections and provided him with a knee brace. Dr. Crain reported that he initially evaluated
appellant in December 2015.
Dr. Crain noted that, after review of subsequently provided medical records, there was no
change in his opinion with regard to appellant’s condition. Appellant’s medical history reflected
that, following his April 3, 2013 surgery, he did not experience a distinct injury, but rather had a
progressive increase in knee pain which he attributed to his work activities. After having reviewed
the nature of appellant’s employment, job description, and self-reported work activities, Dr. Crain
opined that appellant’s employment duties aggravated an underlying degenerative condition. He
reported that, if appellant were in a different job that did not require the employment activities
required of him, appellant would not have experienced the symptoms necessitating his current
treatment. Dr. Crain concluded that appellant developed further deterioration of his knees and an
increase in symptomatology. He opined that the need for treatment was, therefore, related to
appellant’s work activities.
By decision dated April 25, 2017, OWCP denied modification of its November 17, 2016
decision, finding that the medical evidence of record failed to establish that appellant’s diagnosed
conditions were causally related to his accepted factors of his federal employment.
On September 5, 2017 appellant, through counsel, requested an appeal before the Board.
By decision dated April 11, 2018, the Board affirmed OWCP’s April 25, 2017 decision, finding
that appellant had not met his burden of proof to establish a bilateral knee condition causally related
to the accepted factors of his federal employment.4
On August 14, 2018 appellant, through counsel, requested reconsideration and submitted
a July 25, 2018 medical report from Dr. Crain.
In his July 25, 2018 report, Dr. Crain reported that he last evaluated appellant on May 29,
2018 for a follow-up due to continued severe right medial knee pain. He reported that appellant
experienced a lot of pain with prolonged standing, getting up from a seated position, and going up
4

Id.

3

and down stairs, noting that the pain was localized to the medial aspect of the knee. Physical
examination revealed varus alignment because appellant was bone-on-bone, pain with varus
compression of the medial compartment, and trace swelling. Dr. Crain noted review of x-rays
which showed that appellant’s right knee was completely bone-on-bone. He further noted that
there was cupping and spur formation on the patella and the left knee showed minor narrowing.
Dr. Crain recommended right total knee replacement. He opined that, based on appellant’s
employment duties, he sustained a tear of the medial meniscus that led to the deterioration of the
medial compartment. Dr. Crain explained that the medial meniscus was an important shock
absorber to the medial aspect of the knee. He opined that, due to this repetitive positional
requirement, appellant sustained a medial meniscus tear during the scope of his employment in
which he performed this specific mechanism of activity for many years. Dr. Crain noted that, once
the medial meniscus tore, appellant lost the shock absorber in the medial compartment of the knee
and this caused deterioration and further deterioration of the medial compartment of the knee to
the extent that appellant was now bone-on-bone. Dr. Crain reported that this mechanism was
clearly supported in orthopedic practice as a common mechanism of developing post-traumatic
arthritis of the knee. He explained that kneeling, squatting, bending, stooping, and twisting
increase pressure on the meniscus and when done repetitively or with one single event, a tear can
occur. Based on the tear and the lack of shock absorption, Dr. Crain opined that appellant’s knee
progressed to bone-on-bone contact. He concluded that, as a result of appellant’s job activities,
the progression of appellant’s knee condition occurred, causing him to become symptomatic, and
require treatment including knee replacement surgery.
By decision dated November 9, 2018, OWCP denied modification of its prior decision,
finding that the evidence of record was insufficient to establish causal relationship between the
accepted employment factors and the diagnosed right knee conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 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.6 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.7
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, appellant’s burden of proof requires submission of the following: (1) a
factual statement identifying employment factors alleged to have caused or contributed to the
5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

4

presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.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 the diagnosed
condition and the specific employment factors identified by appellant.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted factors of his federal employment.
Preliminarily, the Board notes that it is unnecessary for it to consider the evidence appellant
submitted prior to the issuance of OWCP’s April 25, 2017 decision because the Board considered
that evidence in its April 11, 2018 decision and found it insufficient to establish causal relationship.
Findings made in prior Board decisions are res judicata absent any further review by OWCP under
section 8128 of FECA.11
In further support of his claim, appellant submitted a July 25, 2018 medical report from
Dr. Crain discussing his right knee condition. The Board finds that the opinion of Dr. Crain is not
well rationalized and fails to establish appellant’s occupational disease claim.12 In his July 25,
2018 report, Dr. Crain opined that, based on appellant’s employment duties, he sustained a tear of
the medial meniscus that led to the deterioration of the medial compartment. He noted that, once
the medial meniscus tore, appellant lost the shock absorber in the medial compartment of the knee
and this caused deterioration and further deterioration of the medial compartment of the knee to
the extent that he was now bone-on-bone. The Board notes that Dr. Crain’s July 25, 2018 medical
report is largely duplicative of the opinions expressed in his prior reports.13 While Dr. Crain
provided some additional discussion pertaining to mechanism of injury, he failed to clearly
describe the specific physiological mechanism through which specific work activities could have
caused or aggravated appellant’s diagnosed medical condition. He explained that kneeling,
squatting, bending, stooping, and twisting increased pressure on the meniscus and when done
repetitively or with one single event, a tear could occur. Dr. Crain opined that, due to this repetitive
8

See M.W., Docket No. 18-1555 (issued March 20, 2019); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994).
9

B.K., Docket No. 19-0829 (issued September 25, 2019).

10

S.S., Docket No. 18-1488 (issued March 11, 2019).

11

See L.E., Docket No. 18-1138 (issued February 1, 2019); B.R., Docket No. 17-0294 (issued May 11, 2018).

12

S.F., Docket No. 18-1030 (issued April 5, 2019).

13

S.S., Docket No. 17-1106 (issued June 5, 2018).

5

positional requirement, appellant sustained a medial meniscus tear during the scope of his
employment as he performed this specific mechanism of activity for many years. The Board finds
his explanation to be generalized and of limited probative value on the issue of causal
relationship.14 Dr. Crain failed to adequately describe appellant’s employment duties, during any
specific time period, but instead referred to appellant’s employment as a whole. His generalized
explanation pertaining to the mechanism of injury addresses a meniscus tear occurring from one
single event, as well as from repetitive movements. Therefore, it is unclear whether appellant’s
right meniscus tear was the result of his repetitive employment duties, rather then caused by a
single traumatic occurrence.
Moreover, the record reflects that appellant had a preexisting right knee condition from a
motor vehicle accident, as well as a degenerative osteoarthritic condition. However, Dr. Crain
failed to discuss whether appellant’s preexisting conditions had progressed beyond what might be
expected from the natural progression of that condition.15 A well-rationalized opinion is
particularly warranted when there is a history of a preexisting condition.16 The Board finds that
Dr. Crain’s July 25, 2018 report is insufficient to establish appellant’s claim.17
The Board finds that the record lacks rationalized medical evidence establishing causal
relationship between the accepted employment factors and appellant’s diagnosed right knee
condition.18 Thus, appellant has not met his burden of proof.19
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted factors of his federal employment.

14

D.M., Docket No. 19-0389 (issued July 16, 2019).

15

C.E., Docket No. 19-0192 (issued July 16, 2019); R.E., Docket No. 14-0868 (issued September 24, 2014).

16

E.B., Docket No. 17-1497 (issued March 19, 2019).

17

See C.D., Docket No. 19-0611 (issued August 9, 2019).

18

K.L., Docket No. 18-1029 (issued January 9, 2019).

19

T.O., Docket No. 18-0139 (issued May 24, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the November 9, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 8, 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.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carol Stream, IL, Employer
__________________________________________

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

Docket No. 15-1380
Issued: December 11, 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 June 10, 2015 appellant filed a timely appeal from a February 12, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated September 17, 2013, 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 to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On May 11, 2009 appellant, then a 49-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that on December 19, 2008 she first became aware of her
bilateral hand/wrist tendinitis, but that it was not until May 7, 2009 that she realized it was due to
1

5 U.S.C. § 8101 et seq.

the repetitive tasks she performed. OWCP accepted the claim for bilateral wrist and carpus
enthesopathy, bilateral ulnar nerve lesion, bilateral carpal tunnel syndrome, and cervical
intervertebral disc displacement at C5-6 without myelopathy. By letter dated February 24, 2010,
it placed appellant on the periodic rolls for temporary total disability effective February 6, 2010.2
In a January 8, 2013 report, Dr. Bruce Montella, a treating Board-certified orthopedic
surgeon, diagnosed cervical disc herniation and bilateral carpal tunnel syndrome due to her
employment. He reported appellant was last seen on November 7, 2012 and provided physical
examination findings. A neck physical examination revealed limited range of motion, paraspinal
spasms, decreased motor function, and negative bilateral Spurling’s, Hawkins, and impingements
tests. An examination of her wrists revealed no effusion or crepitus, tenderness, normal range of
motion, and positive Tinel’s and Phalen’s signs.
On January 23, 2013 appellant filed a claim for a schedule award (Form CA-7).
By correspondence dated February 4, 2013, OWCP informed appellant that the evidence
of record was insufficient to support her claim for a schedule award and referenced
Dr. Montella’s report. OWCP advised appellant as to the requirements that a medical report
should contain for impairment rating purposes.
By letter dated March 13, 2013, OWCP informed appellant that it was closing her claim
for a schedule award as no impairment rating had been provided.
On April 1 and 12, 2013 appellant filed additional claims for a schedule award.
In a June 3, 2013 report, Dr. Montella assigned 25 percent permanent impairment for her
neck, 1 percent right wrist impairment and, 1 percent left wrist impairment.
In an August 19, 2013 report, an OWCP medical adviser (OMA) reviewed Dr. Montella’s
June 3, 2013 impairment rating. He found no objective evidence supporting a diagnosis of
radiculopathy and, thus, no additional upper extremity permanent impairment based on the neck
impairment was warranted. In concluding, the OMA concurred with Dr. Montella’s one percent
impairment for the right upper extremity and one percent impairment for the left upper
extremity, but opined that appellant was not entitled to a permanent impairment rating for her
neck.
By decision dated September 17, 2013, OWCP denied her claim for a schedule award. It
found that she had previously been granted schedule awards for 20 percent left upper extremity
impairment and 21 percent right upper extremity impairment under OWCP File No. xxxxxx448
and was granted a schedule award for an additional 15 percent left upper extremity under OWCP
File No. xxxxxx639. As the permanent impairment found by the OMA was less than what she
had previously been awarded, OWCP denied her request for an increased schedule award for her
right and left upper extremities.

2

On August 1, 2010 the employing establishment issued an administrative separation effective July 22, 2010 due
to appellant’s inability to perform the essential duties of her date-of-injury job.

2

On September 19, 2014 OWCP received appellant’s request for reconsideration dated
August 25, 2014 and a January 8, 2014 medical report. Appellant contended that this was a new
claim with an injury of cervical disc herniation, which was unrelated to conditions accepted in
prior claims as noted in the September 17, 2013 decision.
In support of her request, appellant submitted a January 8, 2014 report of Dr. Montella
who diagnosed cervical disc herniation and bilateral carpal tunnel syndrome due to her
employment. Dr. Montella noted that appellant has a permanent employment injury requiring
treatment and that a functional capacity evaluation had been conducted on March 13, 2013.
By decision dated December 15, 2014, OWCP denied reconsideration. It found
appellant’s request was untimely and that she had failed to establish clear evidence of error.
OWCP informed appellant that a cervical herniated disc had been accepted, but that FECA does
not provide for a schedule award based on a permanent impairment of the spine unless there is
evidence of upper or lower extremity impairment caused by a spinal nerve injury.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.3
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.4
OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is untimely filed, it must nevertheless
undertake a limited review to determine whether the application establishes clear evidence of
error.5 OWCP regulations and procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the
claimant’s application for review shows clear evidence of error on the part of OWCP.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.7 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(e)
(December 2011). OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made an error (for
example, proof that a schedule award was miscalculated). 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. Id. at Chapter 2.1602.3(c).
7

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

8

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

3

clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 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.11 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 shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.12
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. As noted above, an application for reconsideration must be received
within one year of the date of OWCP’s decision for which review is sought.13 As appellant’s
request for reconsideration was not received by OWCP until September 19, 2014, more than one
year after issuance of the most recent merit decision dated September 17, 2013, it was untimely.
Consequently, she must demonstrate clear evidence of error by OWCP in its September 17, 2013
decision, which found that she was not entitled to an additional schedule award.14
The Board also finds that appellant did not demonstrate clear evidence of error. The
evidence submitted by appellant in support of her application for review does not raise a
substantial question as to the correctness of OWCP’s most recent merit decision and is therefore
insufficient to demonstrate clear evidence of error.
With her request for reconsideration, appellant submitted a January 8, 2014 report by
Dr. Montella diagnosing employment-related cervical disc herniation and bilateral carpal tunnel
syndrome and also assigning a rating of permanent impairment. The Board finds that this
medical evidence is insufficient to shift the weight of the evidence in favor of appellant’s claim
or raise a substantial question that OWCP erred denying her claim for an increased schedule
award.
In her request for reconsideration, appellant argued that her cervical disc herniation was a
new injury and unrelated to conditions accepted in prior claims. As OWCP explained in its
December 15, 2014 decision, FECA does not provide for a schedule award based on a permanent
impairment of the spine unless there is evidence of upper or lower extremity impairment caused
by a spinal nerve injury. It also stated that a cervical herniated disc had been accepted. Thus,
this argument does not show that OWCP erred in denying her claim for a schedule award for her

9

See Jesus D. Sanchez, 41 ECAB 964 (1990).

10

See supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919 (1992).

12

Leon D. Faidley, Jr., supra note 4.

13

20 C.F.R. § 10.607(a).

14

Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

4

cervical condition or denying her claim for an increased schedule award for upper extremity
impairment. Therefore, the Board finds that appellant has not presented clear evidence of error.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 15, 2014 is affirmed.
Issued: December 11, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Denver, CO, Employer
__________________________________________

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

Docket No. 21-1357
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On September 14, 2021 appellant filed a timely appeal from a May 19, 2021 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 5, 2021 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.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 18, 2019 appellant, then a 57-year-old scheduling officer, filed a traumatic
injury claim (Form CA-1) alleging that on October 17, 2019 she experienced an asthma attack
when exposed to dust while in the performance of duty. She stopped work on the date of injury.
In support of her claim, appellant submitted an October 17, 2019 hospital emergency
department report by Dr. Richard D. Zane, Board-certified in emergency medicine. Dr. Zane
related that appellant had a history of asthma, and had not experienced a severe exacerbation since
2014 until that day while in her office in the baggage claim area at work. He attributed the current
episode to odor and mold caused by water leaking through the ceiling tiles in her office. On
examination, Dr. Zane observed diminished expiratory sounds with end expiratory wheezing,
coughing, tachycardia, dyspnea, respiratory distress, and tremulousness. As nebulizer treatments
in the emergency department did not improve appellant’s symptoms, she was admitted to the
intensive care unit. Dr. Zane diagnosed an asthma exacerbation attack.
In an October 17, 2019 intensive care unit report, Dr. Richard William Vandivier, Boardcertified in internal medicine and pulmonology, noted that appellant presented with acute shortness
of breath while at work. He noted “[s]he states that there has been some construction and leaking
of moldy odor fluid in her office which likely precipitated her shortness of breath.”
In an October 18, 2019 hospital discharge report, Dr. Vandivier diagnosed an asthma
exacerbation and prescribed medication. He noted that it was important for appellant to avoid any
environmental triggers, particularly at her workplace, “to prevent this from occurring again.”
In a development letter dated June 12, 2020, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion. In a separate development letter of even
date, OWCP requested that the employing establishment provide comments from a knowledgeable
supervisor on the accuracy of appellant’s statements and the type of tasks performed which
resulted in the exposure and the duration. It afforded both parties 30 days to provide the necessary
evidence.
In response, the employing establishment provided a June 22, 2020 statement confirming
that in the area where appellant was seated on October 17, 2019, there were missing ceiling tiles
and large trashcans placed to collect dripping water. There was also a “smell that was not right.
[Appellant] began coughing and using her emergency inhaler.” She left the area at her supervisor’s
instruction, but her breathing became more erratic. Paramedics were called to the scene and
recommended appellant be taken to an emergency department. Appellant’s husband then
transported her to the hospital.
In a June 24, 2020 statement, appellant’s supervisor, asserted that on the date appellant
experienced an asthma attack, “[w]hen entering the office there was a strong mildew smell with
several wet ceiling tiles and trash cans filled with water.” Appellant began coughing 30 minutes
after her arrival. She exited the office to get fresh air, then began struggling to breathe. Paramedics
were summonsed and administered medication, which did not relieve appellant’s symptoms.
Appellant’s husband then transported her to the hospital.

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By decision dated July 23, 2020, OWCP accepted that the October 17, 2019 incident
occurred as alleged but denied appellant’s claim as the medical evidence of record did not contain
a diagnosis causally related to the accepted incident. It concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
On August 11, 2020 appellant requested reconsideration.
medical evidence.

She submitted additional

In an August 4, 2020 report, Dr. Mark Nathanson, an osteopath specializing in family
medicine, noted treating appellant for severe, persistent asthma for more than five years.
Appellant also submitted employing establishment e-mails dated from October 18
through 20, 2019 noting that a water pipe had broken above her work area, causing extensive
leakage and significant odor. In an October 18, 2019 e-mail, a safety specialist, cautioned that
there were “layers of particles that can easily set off [appellant’s] asthma again.”
By decision dated September 16, 2020, OWCP denied reconsideration of the merits of
appellant’s claim.
On December 2, 2020 appellant requested reconsideration. She submitted an October 1,
2020 report by Dr. Nathanson, who noted that appellant had been doing fairly well with her asthma
until an exacerbation at work caused by black mold on waterlogged tiles which caused appellant
to be hospitalized due to the injury. Dr. Nathanson diagnosed a resolved severe exacerbation of
moderate persistent allergic asthma, vocal cord dysfunction, and stable asthma. He prescribed
medication.
By decision dated March 5, 2021, OWCP modified its July 23, 2020 decision to find that
appellant had established a diagnosis that could reasonably be connected to the claimed condition.
The claim remained denied as the medical evidence of record was insufficient to establish causal
relationship.
On May 12, 2021 appellant requested reconsideration. She submitted a May 7, 2021
statement reiterating her account of the events of October 17, 2019. Appellant also submitted an
April 26, 2021 note from Dr. Nathanson noting that her “[a]cute attack which led to
hospitalization” was “caused by dust and other particulate components which stemmed from wet
ceiling tiles at her place of work.” He opined, “this is what brought on her attack.”
By decision dated May 19, 2021, OWCP denied appellant’s request for reconsideration. It
found, “[s]pecifically, causal relationship is a medical issue and you did not submit any medical
evidence in support of your request for reconsideration. We have not received a well-rationalized
medical report.…”

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LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 2
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 4 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 5 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 6
ANALYSIS
The Board finds that this case is not in posture for decision.
In denying appellant’s request for reconsideration, OWCP did not reference
Dr. Nathanson’s April 26, 2021 report addressing the causal relationship between the claimed
asthma attack to appellant’s exposure to wet ceiling tiles and particulates at the employing
establishment.
In the case of William A. Couch,7 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. While OWCP is not required to list every piece of evidence
submitted to the record, there is no indication that Dr. Nathanson’s April 26, 2021 report was
reviewed and considered by OWCP in its May 19, 2021 decision. 8 In its May 19, 2021 decision,
OWCP denied appellant’s request for reconsideration, finding that she failed to submit any medical
evidence in support of her request for reconsideration. As it did not review or consider
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(a).

6

Id. at § 10.608(b).

7

41 ECAB 548, 553 (1990).

8

See T.G., Docket No. 19-1930 (issued January 8, 2021).

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Dr. Nathanson’s April 26, 2021 report, it failed to follow its own procedures by properly
discussing the relevant evidence of record. 9
As the Board’s decisions are final as to the subject matter appealed, it is crucial that OWCP
address all relevant evidence properly submitted to OWCP prior to the issuance of its decision. 10
For this reason, the case will be remanded to OWCP to properly consider all of the evidence
of record. Following this and other such further development as deems necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

9
All evidence submitted should be reviewed and discussed in the decision. Evidence received following
development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be
referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter
2.1401.5(b)(2) (November 2012).
10

20 C.F.R. § 501.6(d); supra note 8; W.G., Docket No. 20-1536 (issued December 17, 2021); see also A.V., Docket
No. 20-1251 (issued January 28, 2021).

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ORDER
IT IS HEREBY ORDERED THAT the May 19, 2021 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: March 15, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
U.S. POSTAL SERVICE, ALABAMA
PERFORMANCE CLUSTER, Birmingham, AL,
Employer
__________________________________________

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Appearances:
C.B. Weiser, Esq., for the appellant
Office of the Solicitor, for the Director

Docket No. 08-2215
Issued: May 21, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 11, 2008 appellant filed a timely appeal from a May 19, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying her reconsideration request.
Because more than one year has elapsed between the last merit decision dated September 28,
2004 and the filing of this appeal on August 11, 2008, 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 a merit review
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 6, 2003 appellant, then a 44-year-old operations support specialist, filed a
traumatic injury claim (Form CA-1) alleging that on November 3, 2003 she received electronic
mail from her supervisor stating that her work hours would be changed from 7:00 a.m. to 4:00

p.m. to 5:00 p.m. to 1:30 a.m., and her off days of Saturday and Sunday would be changed to
Sunday and Monday, effective November 8, 2003. She alleged that these changes in her
employment caused her major depression. Appellant stopped work on November 5, 2003.
By decision dated November 18, 2003, the Office denied appellant’s claim on the
grounds she did not establish an emotional condition in the performance of duty. It found there
was no evidence of error or abuse in the administrative actions concerning change in reporting
times and rescheduling of days off.
On December 2, 2003 appellant disagreed with the Office’s November 18, 2003 decision
and requested an oral hearing, which was held on July 26, 2004. She testified regarding the tour
change, the change in work environment, the use of leave, and an allegation that Dawiyd R.
Barrow-El, an acting manager, had left her claim in the men’s bathroom.
The record also includes another claim for an emotional condition. On March 1, 2004
appellant filed another occupational disease claim (Form CA-2) alleging that she sustained an
aggravation of her emotional condition due to the employing establishment putting her in a leave
without pay status instead of allowing her to use sick leave. She further claimed that
Mr. Barrow-El left her claim in the men’s bathroom. Appellant stated that she first realized her
condition was aggravated by her employment on February 11, 2004. She stopped work
November 6, 2004. The Office assigned the claim file number xxxxxx854. By decision dated
May 24, 2004, it denied appellant’s claim on the grounds she did not establish an emotional
condition in the performance of duty.
By decision dated September 28, 2004, the Office hearing representative affirmed the
Office’s November 18, 2003 decision. The hearing representative stated that the Office properly
denied appellant’s claim with respect to the issues concerning use of leave and her allegation that
Mr. Barrow-El left her CA-1 form in a public restroom.
By letter dated September 23, 2005, appellant, through her attorney, requested
reconsideration. Counsel argued that the employing establishment’s changes in appellant’s work
shift and work duties were compensable employment factors. He additionally alleged that
appellant’s allegation regarding the supervisor’s leaving her claim form in the men’s restroom
should be considered factual and compensable as there is no rebuttal of appellant’s testimony
that such event occurred.
In support of the reconsideration request, copies of material previously of record in the
current claim and file number xxxxxx854 were submitted. Material previously of record in the
current claim included: an October 31, 2003 letter from Mr. Barrow-El originally received
November 12, 2003 and a September 2, 2004 letter by Anna Oxendine Connor, Lead Plant
Manager, addressed to the Office and originally received September 7, 2004. Material
previously of record under file number xxxxxx854 included: an April 1, 2004 letter by Injury
Compensation Manager Linda L. Smith received April 5, 2004; a March 5, 2004 memorandum
by Mr. Barrow-El in response to appellant’s allegations in her second claim for emotional stress
received April 5, 2004; and a copy of appellant’s statement in support of her second claim for
emotional stress received March 12, 2004.

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In a follow-up letter of May 7, 2008, appellant’s attorney requested the status of his
September 23, 2005 reconsideration request.
By decision dated May 19, 2008, the Office denied appellant’s application for review on
the grounds that it did not raise substantive legal questions or include new and relevant evidence
sufficient to require further merit review.
LEGAL PRECEDENT -- ISSUE 1
To require the Office to reopen a case for merit review under section 8128(a) of the Act,1
the Office regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.2 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.3 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.4 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.5
ANALYSIS -- ISSUE 1
By decision dated November 18, 2003, the Office denied appellant’s claim for an
emotional condition arising on November 3, 2003 on the grounds that no compensable
employment factors were established. By decision dated September 28, 2004, an Office hearing
representative affirmed the November 18, 2003 decision. The record additionally reflects that
the Office denied appellant’s second claim for emotional stress arising on February 11, 2004 in
case file number xxxxxx854.
Appellant’s September 24, 2005 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, she did not advance a relevant legal argument not previously considered by the
Office. While appellant’s attorney contended in his September 23, 2005 letter that appellant’s
change in her work shift and work duties were compensable employment factors, the Office
hearing representative previously considered and addressed this argument in the September 28,
2004 decision. The Office hearing representative also addressed appellant’s allegation regarding
1

5 U.S.C §§ 8101-8193. Under section 5 U.S.C § 8128(a), the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.
2

20 C.F.R § 10.606(b)(2).

3

Id. at § 10.607(a).

4

Id. at § 10.608(b).

5

Howard A. Williams, 45 ECAB 853 (1994).

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a copy of appellant’s claim allegedly being left in a public restroom. The Board notes this
allegation was also part of file number xxxxxx854 and was addressed in the Office’s May 24,
2004 decision. As these contentions were previously considered and rejected by the Office, they
are cumulative and repetitive and do not constitute a basis for reopening appellant’s claim.
Consequently, appellant is not entitled to a review of the merits of her claim based on the first
and second above-noted requirements under section 10.606(b)(2).
In support of her request for reconsideration, appellant submitted material which was
duplicative of record and previously considered by the Office in both the current claim and in file
number xxxxxx854. As these documents were previously received and reviewed by the Office,
it is therefore, cumulative and duplicative in nature.6 Therefore, the Office properly determined
that this evidence did not constitute a basis for reopening the case for a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2), and properly denied her September 24, 2005 request for reconsideration.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 19, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
6

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL PROTECTIVE SERVICE,
Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0500
Issued: March 22, 2022

Case Submitted on the Record

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

On February 14, 2022 appellant filed an appeal from a July 14, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0500.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the July 14, 2021 decision was January 10, 2022. As appellant
did not file an appeal with the Board until February 14, 2022, more than 180 days after the
July 14, 2021 OWCP decision, the Board finds that the appeal docketed as No. 22-0500 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not
explained his failure to timely file an appeal with supporting documentation sufficient to
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

establish compelling circumstances. Because there is no final adverse decision issued by OWCP
within 180 days of the filing of the instant appeal, the Board concludes that the ap peal docketed
as No. 22-0500, must be dismissed.3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0500 is dismissed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

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